New South Wales District Court CITATION: Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299 HEARING DATE(S): Section 7A jury trial: 19 – 23 July 2004; 26 – 30 July 2004; 2 – 5 August 2004; Liability and damages: 28 May - 1 June 2007; 4-8 June 2007; 12-15 June 2007; 19-22 June 2007; 27 June 2007; 25-26 September 2007; 3-5 October 2007; 8-10 October 2007; 12 October 2007; 15-17 October 2007; 6 December 2007; 12 December 2007; 5 May 2008; 12 May 2008; 15 May 2008; 19-21 May 2008; 26-30 May 2008; 2-4 June 2008; 10-12 June 2008; 16-17 June 2008; 19 June 2008; 23-26 March 2009; 30-31 March 2009; 1-3 April 2009; 6-8 April 2009; 15 April 2009; 1 May 2009, 24 July 2009, 27 August 2009; 10 September and 12 November 2009 JUDGMENT DATE: 8 December 2009 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ (1) Leave granted to the second defendant to amend his defence in accordance paragraphs 9, 10, 11 and 13 of the proposed Further Amended Defence. (2) Second defendant pay costs thrown away by reason of the amendment but with liberty to apply for any application to vary this order in accordance with the timetable set out in order 6 below. (3) Judgment for the plaintiff for a total of $240,000 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums: (a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000; (b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000; (c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000; (d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000; (e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000; (f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000; (g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000; DECISION: (h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000; (i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000; (j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000; (k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, making a total of $10,000. (4) At the request of the plaintiff, no assessment made of damages for publication of Exhibit X (6 July 2001) by the sixth defendant. (5) The Registrar of this Court is directed to forward a copy of this judgment to the Director of Public Prosecutions, together with a copy of Exhibit 27, for consideration of the conduct of Mr Sung Joo Sung concerning the alteration and dishonest taking of the accounts book or books recording the Supporting Committee's financial history. (6) Second and fourth defendants pay plaintiff's costs with liberty to restore by any party for any applications for costs on any other basis including any application for indemnity costs pursuant to Part 47 Div 2 Uniform Civil Procedure Rules 2005 (NSW) or s 48A Defamation Act 1974, such application to be made no later than 9.00 a.m. 9 December 2009. (7) In the event of such application being made by the plaintiff, the second and fourth defendants provide written submissions in answer to the plaintiff's submissions on costs dated 27 August 2009 by 4.00 p.m. 10 December 2009. (8) Both parties are to serve outlines of interest calculations and any copies of offers relied upon pursuant to Part 47 Div 2 Uniform Civil Procedure Rules 2005 (NSW) or s 48A Defamation Act 1974 (NSW) by 4.00 p.m. 10 December 2009. (9) These proceedings stood over for further directions, or hearing, in relation to interest, costs and any application for a stay, to the Defamation List on Friday 11 December 2009 at 9.00 a.m. (10) Exhibits retained for 28 days, save for Exhibit 27, which will remain in the custody of the Registrar of the District Court until further order. CATCHWORDS: TORT - defamation - publication in Korean language newspapers allege misappropriation and personal misconduct by chairman of Australia Korean 2000 Sydney Olympics Supporting Committee - plaintiff brings proceedings for defamation against seven defendants for 14 publications in Korean newspapers - defences of truth, contextual truth, qualified privilege at common law and pursuant to s 22 Defamation Act 1974 pleaded by remaining two defendants - justification of imputations of misappropriation - whether proof of 'contextual misappropriation' sufficient evidence to establish truth - imputations of personal failings such as self-righteousness - whether evidence of specific acts of conduct required - whether imputations fact or comment - whether defence of comment should be pleaded to imputations or to matter complained of - whether defences of qualified privilege available for documents asserted to be audit reports, and to the newspaper which published these reports - whether published on a protected occasion and, if so, whether malice established - damages - limited publication - lack of specific evidence concerning individual publications due to lapse of time since publication - impact of substantial settlement with third defendant - impact of similarity of imputations in multiple publications - practice and procedure - substantial amendment of particulars of justification throughout the trial - application by defendants to amend defence after evidence concluded - application by defendants for right of reply on issues on which the plaintiff bears the onus - case management issues - "mega-litigation" Access to Justice (Civil Litigation Reform) Amendment Bill 2009 (Cth) Associations Incorporation Act 1984 (NSW), s 70 Charitable Fundraising Act 1991 (NSW) Charitable Fundraising Act Regulations 1998 (NSW) Civil Procedure Act 2005 (NSW), s 56 Corporations Law (Cth), s 189 LEGISLATION CITED: Crimes Act 1900 (NSW), ss 175 and 178A Defamation Act 1974 (NSW), ss 7A, 15, 22, 30, 32, 33, 34, 46A, 48 and 48A Defamation Act 2005(NSW), s 40 Evidence Act 1995 (NSW), ss 46, 79, 84, 135 and 140 Financial Management and Accountability Act 1997 (Cth), s 5 Public Finance and Audit Act 1983 (NSW), s 4 Uniform Civil Procedure Rules 2005 (NSW), Pt 14 r 14.31(3), Pt 17 r 17.2(2), Pt 29 r 29.6 and Pt 47 Div 2 Ainsworth v Burden [2005] NSWCA 174 Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Allen v Tobias (1958) 98 CLR 367 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Abadee J, 5 February 1996, unreported) Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 18 February 1997, unreported) Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 24 April 1997, unreported) AON Risk Services Australia Ltd v Australian National University [2009] HCA 27 ASIC v Rich [2005] NSWSC 149 ASIC v Rich [2009] NSWSC 1229 Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 Australia and New Zealand Banking Group Ltd v Bechely-Crundell (Supreme Court of NSW, Sperling J, 11 June 1996 unreported) Australian Securities Investments Commission; re Richstar Enterprises P/L v Carey (No. 13) [2007] FCA 57 Australian Securities and Investments Commission (ASIC) v MacDonald (No 11) [2009] NSWSC 287 Bacon v Pianta (1966) 114 CLR 634 Bailey v Truth & Sportsman Ltd (1938) 60 CLR 700 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5 Bell Group Limited (in liquidation) v Westpac Banking Corporation (No. 9) [2008] WASC 239 Bennette v Cohen [2009] NSWCA 60 Blacktown City Council v Hocking [2008] NSWCA 144 Bishop Mar Meelis Zaia v David Tiglath Chibo [2005] NSWSC 917 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Carson v John Fairfax & Sons Ltd (1992 - 3) 178 CLR 44 Celestino v Celestino [1990] FCA 299 Cha v Oh (No. 10 & No. 11) (District Court of NSW, Gibson DCJ, 4 October 2007, unreported) Cha v Oh (No. 12) (District Court of NSW, Gibson DCJ, 5 October 2007, unreported) Cha v Oh (No. 21) [2009] NSWDC 130 Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300 Chakravarti v Advertiser (1998) 154 ALR 294 Chinatown Enterprises Pty Ltd v Maxims Entertainment Pty Ltd (Supreme Court of NSW, Levine J, 13 December 1996) Clark v Ryan (1960) 103 CLR 486 Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 Commonwealth of Australia v Davis Samuel Pty Ltd (No 6) [2009] ACTSC 12 Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738 Cornwall & Ors v Rowan [2004] SASC 384 Crampton v Nugawela (1996) 41 NSWLR 176 Croll v McRae (1930) 30 SR (NSW) 137 Cropper v Smith (1884) 26 Ch D 700 Cross v Queensland Newspapers Pty Ltd [2006] NSWCA 80 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Digby v Financial News Ltd [1907] 1 KB 502 Dingle v Associated Newspapers [1964] AC 371 Drabsch v Switzerland General Insurance Company Limited (Supreme Court of New South Wales, Santow J, 16 October 1996, unreported) Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 Egger v Viscount Chelmsford [1965] 1 QB 248 French v United Telecasters (1986) 5 NSWLR 425 Galloway v Telegraph Group Ltd [2004] EWHC 2786 QB Gli-Don Pty Ltd v Nominal Defendant [2002] NSWCA 308 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 Goyan v Motyka (2008) Aust Torts Reports ¶81-939; [2008] NSWCA 28 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Greig v Win Television NSW Pty Ltd [2009] NSWSC 632 Guise v Kouvelis (1947) 74 CLR 102 Habib v Nationwide News Pty Ltd [2007] NSWCA 91 Habib v Nationwide News Pty Ltd (2008) Aust Torts Reports ¶81-938; [2008] NSWSC 181 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 Hobbs v Tinling [1929] 2 KB 1 IOL Petroleum Ltd v O'Neill (Supreme Court of NSW, Young J, 17 November 1995, unreported) Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 Jeans v Commonwealth Bank of Australia (2003) 204 ALR 327 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 John Fairfax & Sons Pty Ltd v O'Shane [2005] NSWCA 164 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 CASES CITED: John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 Jones v Dunkel (1959) 101 CLR 298 Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395; [2007] NSWCA 375 Keramianakis v Regional Publishers Pty Ltd (No 2) [2008] NSWCA 3 Ketteman v Hansel Properties Ltd [1987] AC 189 King v Telegraph Group [2004] EWCA Civ 613; [2005] 1 WLR 2282 Kuligowski v Metrobus (2004) 220 CLR 363 Lane v Reid [2005] NSWCA 198 Lee v Cha [2006] HCA Trans 132 Mair v Public Accountants Registration Board (Supreme Court of NSW, Hunt J, 2 February 1989, unreported) Maisel v Financial Times Ltd [1915] 3 KB 336 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Marsden v Amalgamated Television Services Pty Ltd (Supreme Court of NSW, Levine J, 17 December 1996, unreported) Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1120 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338; [2003] NSWCA 186 Martin v Bruce [2007] NSWDC 264 McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 McCombie v Bennett (1886) NSWR 151 Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 501 MindShare Communications Limited v Orleans Investments Pty Ltd (2007) NSWSC 637 Mobileciti v Vodaphone Pty Ltd [2009] NSWSC 891 Morgan v John Fairfax Pty Ltd (1990) 23 NSWLR 374 Musgrave v Commonwealth (1937) 57 CLR 514 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Obeid v John Fairfax Group Pty Ltd [2006] NSWSC 1059 Obeid v Australian Broadcasting Corporation [2007] NSWDC 26 Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 Page v Vanker [1990] NSWCA 142 Papakosmos v R (1990) 196 CLR 297 Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177 Price v Manning (1889) 43 Ch. D 372 Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; (1997) 151 ALR 505 R v Logue (NSW Court of Criminal Appeal, 31 March 1994, Gleeson CJ, McInerney and Mathews JJ, unreported) Re Nottage; Jones v Palmer [1895] 2 Ch 649 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rose v Boxing NSW Incorporated [2007] NSWSC 20 Rowan v Cornwall [2002] SASC 160 Royal National Agricultural and Industrial Association v Chester (1974) 3 ALR 486 Rural and General Insurance Broking Pty Ltd (ACN 093483928) v Australian Prudential Regulation Authority [2009] ACTSC 67 Seary v Molomby (1999) Aust Torts Reports 81-536; [1999] NSWSC 981 Seven Network Limited v News Ltd [2007] FCA 1062 Seven Network Limited v News Ltd [2009] FCAFC 166 Silver v Dome Resources NL (2005) NSWSC 265 Sims v Wran [1984] 1 NSWLR 317 Singleton v Ffrench (1986) 5 NSWLR 425 Skalkos v Assaf [2002] NSWCA 14 SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816 State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 60 ALR 588 Suzy David v David Tiglath Chibo [2006] NSWSC 1257 Tahche v Abboud [2002] VSC 42 Tasmania v Lee [2006] TASSC 58 TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994, unreported) The Nominal Defendant v Kostic [2007] NSWCA 14 The State of Queensland & Ors v J L Holdings (1997) 189 CLR 146 The State of Western Australia v Colin Maxwell Watson (Supreme Court of Western Australia Full Court, Malcolm CJ, Brinsden & Seaman JJ, 4 November 1988, unreported) Trantum v McDowell [2007] NSWCA 138 TVNZ Ltd v Ah Koy [2002] 2 NZLR 616 Urban Traders Pty Ltd v Proceris Pty Ltd [2005] NSWSC 1192 Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of NSW, Hunt J, 20 October 1986) Weaver v Lloyd [1824] 2 B & C 678 Webb v Bloch (1928) 41 CLR 331 Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279 Brown, The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994) Gatley on Libel and Slander, 10th Edition (London: Sweet and Maxwell, 2008) Greenhow, A, "The Statutory Business Judgment Rule: Putting the Wind into Director's Sails" [1999] BondLRev 3; (1999) 11(1) Bond Law Review 33 The Honourable Justice Hayne, "The Vanishing Trial" (2008) The Judicial Review 33 The Honourable Justice Heydon, "Practical impediments to the fulfilment of judicial duties" in "The Role of the Judge", Judicial Commission of New South Wales, 2004 TEXTS CITED: The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales The Honourable Justice McHugh, "What is an actionable defamation?", Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990 The Honourable Justice Pagone, "Lost in Translation: The Judge From Provider to Consumer of Legal Services" in "The Art of Judging", Southern Cross University Law Review, Vol. 12, 2008 The Honourable Justice Sackville in "Meeting the Challenges of Complex Litigation: Some Further Questions" (2009) The Judicial Review 197 Tobin & Sexton, Australian Defamation Law & Practice (Butterworths, Sydney, looseleaf) Odgers, Uniform Evidence Law (8th ed, 2009), Lawbook Co Plaintiff / First Cross-Defendant: Bob Chae-Sang Cha First defendant: Jik Il Oh Second defendant: Jae Kyung Lee Third defendant: Yoon Shin Lee PARTIES: Fourth defendant: Hak Joo Park Fifth defendant: Han Yong Lee Sixth defendant: Duk In Kim Seventh defendant: Hak Soo Cho Second Cross-Defendant: Chung Yup Kim FILE NUMBER(S): 5376 of 2002 Plaintiff / First Cross-Defendant: Mr C Dibb (s 7A jury trial); Mr C A Evatt / Mr C Dibb / Ms L Evans First Defendant: No appearance Second Defendant: Mr T D F Hughes (s 7A jury trial); Mr J S Wheelhouse SC / Mr T D F Hughes / Mr M Richardson Third Defendant: Mr J S Wheelhouse SC (s 7A jury trial); Mr J S Wheelhouse SC COUNSEL: Fourth Defendant: Mr R Weaver (s 7A jury trial); Mr M Seck Fifth Defendant: Mr R Weaver (s 7A jury trial) Sixth Defendant: No appearance Seventh Defendant: Mr R Weaver (s 7A jury trial) Second Cross-Defendant: Mr C Dibb (s 7A jury trial) Plaintiff / First Cross-Defendant: Strathfield Law (until 24/6/2002); Youngs Attorney (2/9/2003 - 28/6/04); Darryl Barlow & Co (29/6/04 - 17/4/05); Strathfield Law (18/4/05 - 2/5/07); CM Lawyers (3/5/07 - 5/5/08); Bilias & Associates (6/5/08 - 9/6/08); Hans Kim Lawyer (10/6/08 - 12/8/08); thereafter Schweizer Kobras Lawyers & Notaries First Defendant: Gilbert & Tobin Lawyers Second Defendant: Gilbert & Tobin Lawyers (up until 23/8/06); thereafter Gray & Perkins Lawyers Third Defendant: Corrs Chambers Westgarth (up until 2/8/05); thereafter Banki Haddock Fiora SOLICITORS: Fourth Defendant: David Geddes up to 17/1/07; self-represented until 2/5/08; thereafter Mr M Seck of Counsel Fifth Defendant: David Geddes up until 17/1/07; thereafter self-represented Sixth Defendant: No appearance Seventh Defendant: David Geddes (s 7A jury trial) Second Cross-Defendant: Mr C Dibb of Counsel (s 7A jury trial); thereafter self-represented INDEX PART 1 - The Parties and the Factual Background - [1] - [583] PART 2 - Evidence and Credit issues - [584] - [753] PART 3 - The Defences of Comment and Qualified Privilege - [754] - [1073] PART 4 - The Defences of Justification and Contextual Truth – Sections 15 and 16 Defamation Act 1974 (NSW) - [1074] - [1694] PART 5 - Damages - [1695] - [1855] PART 6 - Orders PART 7 - Annexure A - Matters Complained of and s 7A Jury Answers to Questions PART 7 - Annexure B - Matters Complained of in the Cross-Claim and s 7A Jury Answers to Questions JUDGMENT PART 1 – THE PARTIES AND THE FACTUAL BACKGROUND [1] These are defamation proceedings brought by Mr Chae-Sang Cha, the Chairman of the Aus-Kor Olympic Supporting Committee ("the Supporting Committee"), concerning publications in Korean language newspapers between January – March 2001. The Supporting Committee, an unincorporated association, was set up in May 1998 to play what its Constitution called a "channelling role" (Exhibit 1, Article 2 of the Constitution "Objectives of establishment") in conjunction with the Korean Sports Council, an incorporated association in New South Wales, funded by the South Korean Government. The aim was to ensure that the 2000 Sydney Olympic Games were a success, not only for the Korean athletes and Korean community in Australia, but from the point of view of the North and South Korean governments, who had made the momentous decision that the teams of both countries should march into the stadium together under one flag. The nature of these proceedings [2] The plaintiff initially commenced proceedings for defamation against seven defendants for 14 publications in four Korean language newspapers (Hoju Dong-A, TOP, the Sydney Korean Herald and Korean Community Magazine, also known as Kyo Min Jap Ji). (These are the four main Korean language newspapers in Sydney: Daily Transcript 1477 – 1478, 20 May 2008, Day 39). A s 7A jury found that the publications of certain of the imputations by the first six defendants defamed the plaintiff, but found in favour of the second and seventh defendant on one publication. [3] These imputations are: [3.1] Exhibit D: Publication 26 January, 2001 by the second defendant in TOP: * That the plaintiff managed the affairs of the Committee so incompetently that while he was the Committee's President $102,000 of the Committee's money was spent without proper documentation being kept ("imputation 36(d)"); [3.2] Exhibit H: Publication 9 February, 2001 by the second defendant in TOP: * That the plaintiff managed the affairs of the Committee so incompetently that $120,000 of the Committee's money was spent ("imputation 38(c)): [3.3] Exhibit J: Publication 23 February 2001 by the second defendant in TOP: * That the plaintiff failed to account for approximately $56,000 of money donated to the Committee ("imputation 39(a)"); * That the plaintiff failed in his duty as President to ensure the Committee kept proper accounts ("imputation 39(c)"); [3.4] Exhibit M: Publication 1 March 2001 by the second defendant in TOP and by the fourth and fifth defendants in TOP and two other Korean language newspapers, Honjudonga-Ilbo (published by the first defendant) and the Korean Weekly Times (the third defendant): * That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia ("imputation 40(a)"); * That the plaintiff impeded the working of the Committee through his self-righteous and self-indulgent behaviour ("imputation 40(d)"); * That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs ("imputation 40(e)"); * That the plaintiff misused his position as President of the Committee to gain a directorship for himself (imputation 40(h)"); * That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff (imputation 40(k)"); [3.5] Exhibit N: Publication 9 March 2001 by the second, fourth and fifth defendants in TOP and by the fourth and fifth defendants in the Korean language newspapers Hojudonga-Ilbo and the Korean Weekly: * That there was [sic] reasonable grounds for the Auditors to suspect the plaintiff of making a false claim for business expenses of $9,121.40 ("imputation 41(b)"); * That the plaintiff misappropriated to his own use, money belonging to the Committee ("imputation 41(d)"); * That the plaintiff misused his position as President to favour an associate as a supplier of gifts to the Committee ("imputation 41(f)"); [3.6] Exhibit P: Publication 16 March 2001 by the second, fourth and fifth defendants in TOP and by the fourth and fifth defendants in the Korean language newspapers Hojudonga and the Korean Weekly: * That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself ("imputation 42(d)"); [3.7] Exhibit S: Publication 30 March 2001 by the second defendant in TOP: * That the plaintiff misappropriated public money ("imputation 43(a)"). [4] The publications in Exhibit M, N and P consist of identical publications in three different Korean newspapers. The copies of these newspaper articles for the first and second defendants have never been discovered or tendered. However, it is not in dispute that the fourth and fifth defendants published the same article in the first and second defendants' newspapers as was published in the third defendant's newspaper, as these three newspaper articles were in fact their auditors' reports. [5] The fourth and fifth defendants also brought proceedings for defamation against the plaintiff and against the publisher of a different Korean language publication, The Korea-Oceania Business Review. The same s 7A jury found that three of these four publications published imputations defamatory of the fourth and fifth defendants. [6] During the trial, the plaintiff entered judgment against the fifth defendant, who filed a defence identical to the fourth defendant, but failed to attend the trial to defend himself or prosecute his cross-claim. The cross-claim brought by the fifth defendant was dismissed. The cross-claim brought by the fourth defendant was discontinued. It has not been necessary to deal with the cross-claim in this judgment. [7] In addition, the plaintiff settled the proceedings against the third defendant and obtained an order for judgment against the sixth defendant, and as the first defendant died, proceedings against him have abated. All of these publications, and the imputations the s 7A jury found were conveyed, is set out in chronological order in Schedule A to this judgment. [8] The second defendant's amended defence of 5 February 2007 asserted the following defences: (a) justification, contextual justification and qualified privilege in relation to imputations 39(a), 39(c), 40(a), 40(d), 40(e), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(b) (paragraphs 9 and 10 of the Amended Defence); and (b) defences of comment, comment of a stranger and unlikelihood of harm (paragraphs 11 – 13). [9] The fourth defendant's second further amended defence filed on 7 May 2008 asserts the following defences: (a) justification and contextual justification in relation to imputations 40(e), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(b) (paragraphs 6 and 6A); (b) qualified privilege, comment and unlikelihood of harm (paragraphs 7 – 8). [10] It should be noted that these three publications were each made in three separate newspapers, making a total of nine publications. [11] At the end of the trial the second defendant by Notice of Motion sought leave to rely on a further amended defence as follows: (a) the second defendant does not now admit to publication and defamatory meaning of imputations 36(d), 38(b), 39(a), 40(a), 40(e), 40(h), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(a). In its previous defences of 6 December 2004 and 13 February 2007, the second defendant had failed to traverse these imputations. No explanation for this proposed amendment is set out in the affidavit is support of 30 April 2009, nor was it referred to when the application came before me on 1 May 2009. (b) The second defendant now seeks to plead the defences of justification and contextual justification to imputations 36(d), 38(b), 40(h) and 43(a), abandoning the defence of qualified privilege in relation to imputations 36(d), 38(b), 39(c) and 43(a) – in other words, to the four publications which were not made jointly with the fourth and fifth defendants. In addition, the defence of unlikelihood of harm is abandoned. This is not opposed by the plaintiff (submissions paragraph 2.5.4(a) upon certain terms, including indemnity costs and the right to file a Reply. The plaintiff does, however, point to considerable prejudice caused by reason of both the amendments and the application to amend, noting the plaintiff framed and prepared his case and adduced evidence in accordance with the pleadings as they were before the trial and is deprived of the opportunity to adduce further evidence or to run the case differently, particularly in relation to the pleading of the Reply, drawing my attention to AON Risk Services Australia Ltd v Australian National University [2009] HCA 27. [12] I have dealt with this application in more detail below. I shall now set out the background events leading to the publication of the matters complained of. Background [13] The civil war between North and South Korea, in which millions died, is a matter of public record (Daily Transcript 941-943, 9 October 2007, Day 24). North and South Korea signed an armistice in 1959, but are still technically at war today. This affects every aspect of their dealings with each other, including sport. When the 1988 Olympic Games were held in Seoul, North Korea boycotted them. [14] By the time of the 2000 Olympics, a different approach, one of peaceful reunification, was the policy of the South Korean government. The 2000 Olympic Games in Sydney coincided with the 50th anniversary of the war between North and South. Olympic officials in both North and South Korea decided that, for the first time, teams from North and South Korea would enter the Olympic Stadium together, and under a neutral Korean Peninsula flag. [15] Members of the Korean community in Australia, especially sporting organisations supported or funded by the South Korean Government, were asked to help make not only the South Korean but also the North Korean Olympic team welcome. For this plan to succeed, local support and assistance by the Korean community in Australia would be important. As the Supporting Committee's activities show, this included finding and interviewing Korean-speaking volunteers for the Sydney Australian Olympic Organising Committee ("SOCOG") and for torch relays (Expenditure Resolution 388, Exhibit 56), providing "homestay" accommodation and transport for Koreans attending the Games, entertaining a stream of Korean officials and media representatives, and providing a cheer squad and commemorative flags and welcome banners for the two Koreas under one flag. This also included holding rallies and social functions, and paying special attention to Korean community groups such as war veterans and retiree associations and Korean sporting associations around Australia. The Korean media, visitors and officials came from Korea to check on progress and give advice. [16] The Supporting Committee had six subcommittees as well as the Executive and met in regular weekly meetings with the Korean Sports Council, which initially jointly ran these activities and later contributed volunteers, snacks and general assistance. These meetings were generally held outside office hours or on weekends; some volunteers, as well as the plaintiff, put aside their businesses for a while, such as Mr Choi, whose job was to look after the stream of journalists and broadcasters from Korea (Daily Transcript 1787, 30 May 2008, Day 45). A regular feature of these committee meetings was that committee members and volunteers would have a meal at a local Korean restaurant, which would be paid for out of Supporting Committee funds. [17] What was the Korean Sports Council's role? This is one of the disputed issues of fact in this trial. The South Korean Government had funded sports societies outside Korea for some time. One of these organisations was the Korean Sports Council. Mr Jung Hyun Park, a Sports Council member, explained (at Daily Transcript 1698, 28 May 2008, Day 43) that the Sports Council in Korea "tells us what to do". There were regular sports meets in Korea at which these Korean Sports organisations from around the world, including Australia, participated. The plaintiff, in his capacity as president of Korean Sports Council, attended these games in 1997, 1998, 1999 and 2000 (Daily Transcript 301 - 302, 13 June 2007, Day 10). [18] It was the Korean Sports Council's former presidents and its sports association members who played an important role in setting up the Aus-Kor Olympic Supporting Committee ("the Supporting Committee") with which the Sports Council was to participate in this "channelling role" to ensure the success of this new policy of "peaceful reunification", as it was called in the Supporting Committee's Resolutions dated 18 March 2000 (Exhibit 70, Tab 4) which were published in the newspapers of the first to third defendants prior to the Olympics. [19] The seventh defendant, who held senior positions in the Sports Council and the Korean Society (Daily Transcript 2251, 23 March 2009, Day 55), including auditor and treasurer (as well as being a former owner of TOP, the Korean language newspaper he either sold or gave to the second defendant), chaired a meeting on 1 May 1998 to set up the Supporting Committee. He also prepared a Constitution and was in charge of supervising the voting for the offices of chairman and auditors. [20] There were two candidates for chairman: the plaintiff and the second defendant. The plaintiff was the current head of the Sports Council. A golfer with a handicap of six, he had been the Sports Council president since 1997. The second defendant was a former chairman of the Sports Council as well as being the owner of TOP and of a supermarket cleaning business. They made speeches, the sports and community association representatives voted, and the plaintiff was elected the chairman. Although he lost the election, the second defendant was still asked to be the "honorary" chairman: Daily Transcript 2079, 12 June 2008, Day 51. It is the second defendant's name, not the plaintiff's, which appears at the top of the lists of officials circulated to committee members and others for most of the life of the Supporting Committee. [21] The seventh defendant also played an important role in the Supporting Committee. He supervised bookkeeping with Mr Sung Joo Sung as his assistant until November 1998, and even after Mr Sung Joo Sung took over this role (Daily Transcript 199 and 231, 8 June 2007, Day 8; Daily Transcript 913, 8 October 2007, Day 23; Daily Transcript 2168, 17 June 2008, Day 53) he continued to visit regularly (Daily Transcript 3068, 7 April 2009, Day 65; Exhibit 52 (see for example 17, 18 and 24 January and 4 and 17 February entries)). The seventh defendant watched the activities of the Supporting Committee "with a lot of great interest" (Daily Transcript 2168, 17 June 2008, Day 53). From February 2000 had his own desk in the Supporting Committee office (Exhibit 52 p. 8, 29 February 2000 entry), resuming the position of Secretary-General in August 2000 and keeping the accounts after Mr Sung Joo Sung left (Daily Transcript 75, 4 June 2007, Day 4). After the second defendant became president of the Korean Society, in or about June 1999 (Daily Transcript 83-84, 5 June 2007, Day 5), he remained a director, and had "many occasions" (Daily Transcript 2193, 17 June 2008, Day 53) to meet with the second defendant, who also shared his involvement in the Volleyball Association. [22] In November 1999, Mr Sung Joo Sung and the plaintiff had a disagreement after Mr Sung Joo Sung put a loan from Vice President Paek into his own bank account and a disputed issue of fact is how long Mr Sung Joo Sung remained involved in the Supporting Committee afterwards. Just before the Olympics, at about the time the seventh defendant (who had had a desk in the office since February) was appointed as Secretary-General, the plaintiff also asked a Mr Won Kang to fill this role. He did so from 11 August 2000 (Exhibit 64, paragraph 13; Exhibit 51), although the seventh defendant also held this role at the time, according to the Minutes (Exhibit 51). Mr Kang visited Korea on 28 August at the Committee's expense. After he returned from Korea on 5 September, he had an argument with the plaintiff (the substance of which is an issue in dispute) and resigned. [23] Between 1 May 1998 and the commencement of the Olympics in September 2000, the plaintiff and his Executive set up the Supporting Committee's office, appointed officials, set up six subcommittees, found volunteer staff and a series of three bookkeepers who, under the supervision of Committee members with accounting expertise, kept the books for $200 per week. He was in charge of a large organization of volunteers who processed hundreds of applications and offers for volunteer work, homestay, cheerleading and transport. A website was also set up. The main problem was a constant shortage of funds, so the plaintiff funded the Supporting Committee from his company's account for the first half of its life, assisted by loans and donations from other Committee members (such as Vice-President Paek, who loaned $15,000), members of the Korean community and, in mid-2000, generous donations from some sponsors in Korea. [24] Was the Committee successful in its endeavours? Were they ready when the Olympic teams arrived? Did anything go wrong during or after the Olympics? Those are not claims that were made in this litigation. The unchallenged evidence is that the Committee did everything that was expected of it, and that its activities were such a success the Korean Government indicated it would provide the Sports Council with $100,000 extra funding (an indication of the Sports Council's joint role in these successful activities: Daily Transcript 1790, 30 May 2008, Day 45). On 30 October 2000, as the Committee wound up its affairs, it inserted an advertisement in the Korean newspapers congratulating President Kim of South Korea for being awarded the Nobel Peace Prize for his peaceful unification policy of bringing North and South Korea together (Expenditure Resolution 285) during this momentous year in Korean peninsular politics. [25] A number of the witnesses spoke about the successful activities of the Supporting Committee. Mr Choi, the Supporting Committee officer who from 1999 dealt with the many Korean journalists and media organisations who visited Sydney, said (Daily Transcript 1790, 30 May 2008, Day 45): "A. Everybody from the Korean national team members is helping the committee is the what it done in - during the Olympics. Especially they, the athletes, thank him about what his good job for the Olympic period. Q. Did they thank him publicly? A. Definitely, yeah, by address. Q. Do you recall what was said in that address? A. I'm not particular [sic] remember, but the leader, the team leader, says "This is first time, to like this good helping. We have many Olympics in overseas, but Sydney Olympics during we have a great help from the community, Korean community. So really health, from the bottom of my heart." That's what he said. … Q. What was his reputation in the Korean community? A. It was great. Not only in local community, but also in South Korea. In political level or government level, was very appreciated to the Korean community, which is mentioning of a Olympic Committee. It's great help for the athletes in one way or another. Q. How do you know that he had a good reputation overseas as well? A. I understand - not clearly, but the country and tourism ministry promised about $100,000 for the development of the Sports Council, because Cha had such a good position. Because of the good job for the Olympic Committee, they promised the support of $100,000 for the development of the Sports Council. So it's very good news for the Korean community, for the diplomat of the community." [26] Mr Choi was not cross-examined on these statements, nor was Mrs Michelle Bae, a member of the Korean community, when she gave the following evidence: "A. INTERPRETER: Before he become the chairman of Olympic Committee, Mr Cha was the chairman of Sports Council. I would describe him as someone who was honest and very hard-working. And he wouldn't even look after his own business to devote to working for Korean Supporting Committee. And he has given - he has had a lot of burden to carry, if I can say. Q. Concentrating on the period before the Olympics, is there anything else you'd like to say about his reputation in that period, in your opinion? A. INTERPRETER: Yes, as I said, he was the chairman of the Sports Council, and he will do whatever he can to look after people from Korea and once he fell off the ladder and he, sort of, done some damage to his brain - not, sorry, brain, his head. … Q. Could you explain what you mean by falling off the ladder - that, just for— A. INTERPRETER: He was trying to put banners on the wall, and on the ceiling and that sort of things. And he could have asked somebody else to do, but he was doing most of these things by himself, and he fell off the ladder. Q. Could you explain why you were giving us that example in response to that question? A. INTERPRETER: What I mean is that, to be a chairman of Sports Council, you have to give a lot of yourself as a volunteer, and sacrifice yourself. So, it's not a job that you are paid money - is paid for. So, but he has given - he has given his own money and he's worked really hard for this job." (Daily Transcript 1701-1702, 28 May 2008, Day 43) [27] Mr Lee, president of the Tennis Association and a member of the Sports Council, described not only some of the meetings followed by dinners, but the importance of the North and South Korean teams being together at the Sydney Olympics: "A. INTERPRETER: Yes, my Tennis Association and the teams we were there to support, and with that, you know, we had meetings. Through that, we would have dinners. Towards the end of the Olympics, I remember the athletes - the Korean athletes that won medals in areas - would get together with the Olympic Committee and Mr Cha, the president, and with also the Sports Council members. We all got together and I remember having a congratulation party. I remember - I recall about 100 people or so attended this party. Within those people, there was gold medallist, and silver medallist and otherwise, and each other - congratulated each other, and also thanked each parties and associations. Also, the team leaders also give their thanks, and I remember that very - that's one of the things I remember in detail. Also, it was the first time - it was the time when the South and the North team of the Korean team were together at the Sydney Olympics, so it was a very - something that we were as a one, and it was one of those that was left in the history with the Olympics, so it was something that had a big meaning and big thing that we remember from the Olympics." (Daily Transcript 1879, 2 June 2008, Day 46) [28] SOCOG also showed its appreciation by providing plaques and an award for the volunteers: (Daily Transcript 168-169, 7 June 2007, Day 7). There was to be a farewell function, with presentation of awards and plaques. However, this never occurred, because on 24 November 2000 the plaintiff published the Supporting Committee's financial accounts in the Korean newspapers, and this caused so much upset and concern to certain members of the Korean community (and in particular to the fourth and fifth defendants, who were the auditors appointed at the May 1998 meeting) that these volunteers never received their plaques, or had their farewell dinner. Mr Choi commented at Daily Transcript 1804 (30 May 2008, Day 45): "Lots of volunteers work very hard. I understand that as the president, chairman of the Olympics, Mr Bob Cha, wants to have some closing ceremony for the volunteers, giving us thank you letters, everything, some party put on, but he just, there no time to think about that kind of things. I'm still waiting. I did a lot of things to do, but I ought to get some thank you letter or something from him. But he never send it. Still people waiting. There's no closing ceremony for the Olympic committee. They did a lot of good things, we are still waiting for Mr Cha, simply have no idea about, because of this kind of turmoil last seven years. I am sad to see that". [29] Why did the plaintiff publish the Supporting Committee's accounts in the Korean newspapers? He told the court that the Supporting Committee accounts were kept by bookkeepers under the supervision of the seventh defendant (until November 1998), Mr Sung Joo Sung until March 2000, and by the seventh defendant until November 2000 (Daily Transcript 591-592, 25 September 2007, Day 18; Daily Transcript 770 and 782-784, 4 October 2007, Day 21), with the help of a financial director appointed in December 1999. However, the plaintiff and Mr Sung Joo Sung had a disagreement when Mr Sung Joo Sung banked a loan made to the Supporting Committee (by the Supporting Committee's Vice-President, Mr Nam Yoon Paek) into his own personal account. The plaintiff demanded its return but Mr Sung Joo Sung kept $1,000 of it. Two weeks later, according to the Minutes for 1 December 1999 (Exhibit 51) the plaintiff appointed the treasurer of the Korean Sports Council, Mr Joo Yong Jo, as financial director of the Supporting Committee, and gave Mr Sung Joo Sung another position, that of vice chairman (see 17 and 25 January 2000 entry in Exhibit 52, Committee Activities Diary, page 2 and 3). Mr Sung Joo Sung continued to keep records until 21 December, and in his statement says he prepared financial statements "until he resigned" (Exhibit 72, paragraph 16) but inconsistently claimed to have completed financial records up to April 2000. When he left the Supporting Committee, he took with him the financial records Miss Chae, the bookkeeper, had maintained. [30] After the Games ended, accounts had to be prepared for the auditors to check, and for presentation to the Supporting Committee. The plaintiff asked Mr Sung Joo Sung to return the Supporting Committee accounts book but he refused (Daily Transcript 85, 5 June 2007, Day 5; Daily Transcript 969, 9 October 2007, Day 24). In his evidence, Mr Sung Joo Sung said when he resigned, he returned "everything" (see also Daily Transcript 3062, 7 April 2009, Day 65). However, he considered the green book to be his "personal record book as in evidence" (Daily Transcript 3071 and 3076, 7 April 2009, Day 65). The plaintiff asked the seventh defendant to prepare these accounts, but he refused (Daily Transcript 782-783 and 804, 4 October 2007, Day 21). The current bookkeeper, Miss Yoo, had, between 26 September and 12 October 2000, prepared a summary of all expenses from the Committee's chequebooks (Exhibit 7). The plaintiff decided to prepare the financial accounts himself, and to publish the accounts in the Korean newspapers, with the telephone numbers of the Supporting Committee and one of the auditors (the fifth defendant) so that donors whose names were omitted (because he had prepared these records without Mr Sung Joo Sung's book or the seventh defendant's assistance) could ring up if there was a problem (Daily Transcript 86, 5 June 2007, Day 5). [31] The fourth and fifth defendants did not accept this explanation. Their evidence is that the plaintiff should have called a meeting of the Supporting Committee and presented the financial report to the Supporting Committee only, not published the financial report in the paper as if the audit was a fait accompli. The fourth defendant's written submissions state that as a result of the plaintiff's "peremptory" decision to publish this information the false impression was created that the financial affairs had been audited when they had not been, and that the fourth and fifth defendants were unwillingly thrust into the public position of being held to account by persons whose donations to the Supporting Committee had been omitted (written submissions of the fourth defendant, paragraph 37). [32] The defendants assert that the plaintiff, and only the plaintiff (not the Supporting Committee, the bookkeepers, the seventh defendant, Mr Sung Joo Sung, or the financial director Mr Joo Yong Jo) is not only responsible for poor accounting practices, but is guilty of misappropriation and also of what the defendants call in their submissions "contextual misappropriation". [33] In particular, the many payments for meals for committee members after meetings, and for visiting Koreans, were considered excessive and unauthorised, as receipts were often not obtained from the modestly priced Korean restaurants and grocery stores from which they purchased their meals. To cite a typical example, on 26 September 2000, during the Olympic Games, the seventh defendant made a claim for 6 volunteer's lunches in the office for $52, a claim rejected by the auditors and marked "evidence required" (Expenditure Resolution 244). [34] How much money do the defendants say the plaintiff misappropriated? This figure changed before, during and after the trial. The particulars of justification served before the trial (12 February 2007, Exhibit 81) assert the plaintiff misappropriating the sum of $184,712.00 and spent $53,315.45 for functions outside those of the Committee's purposes. Particulars served on 3 October 2007 (at the end of the plaintiff's cross-examination) put the amount misappropriated at over $500,000, although this includes some overlapping claims and far exceeds the amounts of money ever handled by the Committee. The plaintiff, the defendants claim, was responsible for everything the Committee did because the Constitution said so, and because his personality and in particular his self-righteous conduct impeded the working of the Supporting Committee. [35] The circumstances leading to the publication of the thirteen publications the subject of these proceedings are as follows. Following meetings with the plaintiff up to 17 December 2000, at which he handed over certain Supporting Committee financial and administrative records, the auditors prepared three final reports which were published in each of the three main Korean newspapers (Exhibits M, N and P, dated 1, 16 and 30 March 2001). Their findings include allegations of misappropriation, responsibility for the failure to keep proper records and personal failings of a serious nature. These three audit reports, and four other articles published in the second defendant's newspaper (Exhibits D, H, J and S), constitute the matters complained of which form the subject of this litigation. [36] When I call the fourth and fifth defendant's "auditors", I should note that that they had no accountancy training or prior experience in auditing. The fourth defendant is a cleaner, and the fifth defendant, who managed a sushi restaurant at the time, now lives in Korea. The Supporting Committee's records for the period 1998 – 2000 have never been audited by a certified public accountant. The structure of this judgment [37] This is a long judgment, because the hearing took many weeks. It falls into five parts: (a) An overview of the cause of action and the parties and description of the Supporting Committee and its activities over the Olympic period, followed by a summary of the events leading to the publication of a series of Korean language newspaper articles in New South Wales by the defendants; (b) A consideration of the defendants' attack on the credibility of the plaintiff and related issues of witness credit; (c) A consideration of the defences of comment and comment of a stranger (ss 32 – 4 Defamation Act 1974 (NSW) ("the Act")) and of qualified privilege at common law and pursuant to s 22 of the Act; (d) A consideration of the principal defences, namely justification and contextual truth (sections 15 and 16 of the Act); and (e) Damages and costs. [38] I have set out, as a schedule to this judgment, not only the matters complained of that are the subject of these proceedings, but all publications which were considered by the s 7A jury, and the imputations the jury found were conveyed and defamatory. [39] Prior to and during the trial I handed down a series of 21 judgments, and these can be found at Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300, together with the text of the Supporting Committee's Constitution and Minutes. The limitations of the District Court Caselaw website make it impractical to publish these judgments in any different format. The nature of proceedings for defamation [40] The law of defamation is designed to resolve the conflict between two co-existent rights: the right of every citizen to enjoy a good reputation and the right of freedom of speech: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 ("Marsden"). [41] What is defamation, and how have these defamation proceedings come about? An actionable defamation is a publication which is not excused, protected or justified by one or more of the defences available to defendants (McHugh J, "What is an actionable defamation?", Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990, p. xi.). [42] If all the defences fail, the plaintiff brings a claim for damages. The purposes of an award of damages in defamation is described by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] as follows: "The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and (iii) the vindication of the appellant's reputation." [43] Section 46(2) Defamation Act 1974 (NSW) provides that: "Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm." [44] During the trial, one of the witnesses gave a layman's description of the impact of defamatory publications on the plaintiff: "Ten years ago, there were two people. They were white people, both of them were white, but today as I sit in the witness box, one of them was [sic] white and one of them black. What I mean by that is that the person who is black, he has taken all the blame on him and his arms and legs were amputated, and that means he's not – yes, he's not normal any more. He's a disabled person. That's what I meant. And I wonder how that person is going to live the rest of his life in Australia normally". (Daily Transcript 1693-1694, 28 May 2008, Day 43) [45] While this description does not accurately reflect the elements in damages in defamation, it is an indication of the kind of evidence I received concerning the damage to the plaintiff's reputation following the publications. The Issues [46] The principal question I must determine is whether the plaintiff is entitled to any remedy in relation to each of the seven publications made in the State of New South Wales by the second, fourth and fifth defendants. [47] The second and fourth defendants defend these proceedings and assert that the plaintiff is not entitled to any remedy. They rely upon defences of justification (including a defence of contextual justification), qualified privilege (at common law and pursuant to s 22 Defamation Act (1974) NSW) and comment. In addition, if these defences fail, the second defendant (from who damages are sought) claims the plaintiff should only be entitled to small or nominal damages. [48] I have received submissions from the fourth defendant on damages. The plaintiff does not seek an award of damages against the fourth, fifth and sixth defendants on the basis that they have no assets. For reasons I have explained in the section of this judgment on damages, I have not acceded to the plaintiff's request in relation to the fourth and fifth defendants. [49] Although only the second and fourth defendants still contest this litigation, it is important to understand who all the parties to this litigation are, because they all played an important role in the events described. The former and present parties to this litigation [50] I shall now set out some brief information about each of the parties to this litigation. By reason of the similarity in surname of many of the parties and witnesses, I have referred to the parties hereafter as "the plaintiff", "the first defendant" and so on. The plaintiff – Mr Bob Chae-Sang Cha [51] The plaintiff was born in Korea in 1946. He fought in Vietnam alongside Australian and American troops between 1965 – 8, leaving the army with the rank of staff sergeant (Daily Transcript 47, 4 June 2007, Day 4) then working for an American company in Korea before immigrating to Australia in 1973. He worked in Australia for Comalco and for McFee Engineering, studying hydraulic mechanical consulting. While he was at McFee he met the second defendant. [52] In 1976 the plaintiff married, became an Australian citizen and started work at ANI, where he remained until starting his own business CFM ("Cha Family Maintenance") (Daily Transcript 50, 4 June 2007, Day 4). He took up golf and had a handicap of six. He was made the chairman of the Korean golf club in 1991 and in 1997 became the sixth (in line) president of the Korean Sports Council, a position he held until the circumstances described in the seventh matter complained of published by the second defendant on 31 March 2001. From 1997 onwards he attended the Korean Games on behalf of the Korean Sports Council, and received plaques of appreciation for his services to Korean sport in Australia. [53] On 1 May 1998 the plaintiff stood as a candidate for election for the new role of chairman of the Olympic Sports Committee. He won by 33 votes to 11. [54] Between 1 May 1998 and the end of the Sydney 2000 Olympic Games, the plaintiff carried out the roles and duties of chairman of the Supporting Committee. This included arranging and attending meetings, dealing with SOCOG, arranging social functions and fundraisers, and supervising a wide range of committee activities including the six sub-committees for Olympic transport and the like. There were frequent visitors, including media and government officials, from Korea. These activities, as described in the Minutes of Meeting and Activities Book, (Exhibits 51 and 52; tendered on Day 17, Daily Transcript 521-522, 24 September 2009) , are set out in more detail below. The first defendant – Mr Jik Il Oh [55] The first defendant, Mr Oh, was the president of the Korean Journalists Association in Australia, according to a letter from the Association dated 30 September 2000 (Exhibit 56). He wrote the first, third, sixth, seventh, eighth, eleventh, twelfth and fourteenth matters complained of which went before the s 7A jury, which appeared in "Hojudonga", a Korean language newspaper. His article of 22 December 2000 (the first matter complained of) summarises the interim audit results provided to the Australian Korean Journalists Association by the fourth and fifth defendants on 21 December. Mr Park, the fourth defendant, disputes this, and says that Mr Oh came to his desk and stole documents from him (Daily Transcript 2638, 30 March 2009, Day 59). The "interim audit results" Mr Oh wrote about were not produced at the trial, nor were they provided to the plaintiff or the cross-defendant in response to their requests at the time (Daily Transcript 1767, 30 May 2008, Day 45); Mr Park says this report was mislaid (Daily Transcript 2793-2795, 1 April 2009, Day 61). [56] Mr Oh never contested these proceedings. After the s 7A jury found imputations were conveyed by each of these publications (a schedule is set out in Part 2 of this judgment), he failed to comply with peremptory orders to file a defence. Judgment was entered against him. He died after judgment was entered. Defamation actions do not survive death, so the action abates. This is an important exception to the general rule of survivorship of actions, and is one of the reasons why delay in defamation actions should be regarded with concern by the courts. The second defendant – Mr Jae Kyung Lee [57] The second defendant was the other candidate for election at the meeting of 1 May 1998. He is described in the List of Persons present at this meeting, prepared by the seventh defendant (Exhibit 1), as "adviser & second president of Sports Council". The other three ex-presidents of the Sports Council are listed as "Counsellors" (Exhibit S) but Mr Jae Kyung Lee occupied a more important role. This is because, although he lost the election to the plaintiff, he was appointed (without election) to the most senior role in this committee, namely the position of Honorary Chairman. His name appears at the top of every list of members of the Supporting Committee (Exhibit SS, Exhibit 1 and Exhibit 51, page 65) except the last. His name is above the plaintiff's on all but one of these documents. He participated in Committee activities such as meeting the Korean Olympics team at the airport. [58] The second defendant was also the publisher of TOP Weekly ("TOP"), the Korean language newspaper which published seven of the fourteen publications sued upon by the plaintiff. He was given TOP by the seventh defendant at an unknown date (Daily Transcript 2228, 19 June 2008, Day 54). TOP had its 8th anniversary of publishing in April 1999; the Supporting Committee and the Sports Council jointly sent a celebratory garland at the time (Expenditure Resolution 2 – 301). The seventh defendant said the second defendant was not interested in running a newspaper, and took it over only because the seventh defendant begged him to do so (Daily Transcript 2228, 19 June 2008, Day 54). The second defendant said that he had bought this publication (Daily Transcript 2082, 12 June 2008, Day 51) but that his visits to the newspaper office were "[n]ot even once a year, sometimes" (Daily Transcript 2086, 12 June 2008, Day 51). [59] As well as being successive owners of TOP, the second and seventh defendants had many occasions to meet when the second defendant became chairman of the Korean Society, as the seventh defendant remained as a director (Daily Transcript 2193, 17 June 2008, Day 53). This was in addition to their contact at the Sports Council (of which the second defendant was immediate vice-president), the Volleyball Association (of which they were successively the presidents: Daily Transcript 2193, 17 June 2008, Day 53) as well as their activities concerning the Supporting Committee and their membership of the Korean Veterans Association of which the seventh defendant was the president at the time of trial. [60] The Korean Society had given the Supporting Committee free office space when they started up. When the second defendant became the president of the Korean Society in mid-1999, the fourth defendant (who was appointed the Korean Society's Secretary-General at about this time) told Mr Sung Joo Sung, the Supporting Committee Secretary-General, that they should pay $150 per week rent (Daily Transcript 2985-2986, 6 April 2009, Day 64). The Committee had started paying $50 per week in April 1999 but this was considered insufficient and the fourth defendant told the court "we said [they should] leave" (Daily Transcript 84-85, 5 June 2007, Day 5; Daily Transcript 2745, 31 March 2009, Day 60; Daily Transcript 2985-2986, 6 April 2009, Day 64). The question of the second defendant's role in this was an issue at the trial. Counsel for the fourth defendant said no receipts were available for any rent payments, or a written lease, but asked me to infer that rent of $150 was payable (Daily Transcript 3219-3220, 15 April 2009, Day 67). [61] Over Mr Wheelhouse SC's objections (cf Price v Manning (1889) 43 Ch. D 372), the second defendant was called to give evidence by the plaintiff (Daily Transcript 2030, 11 June 2008, Day 50). He told the court that "they" asked me to be "honorary chairman" and that "basically the honorary chairman is to help them and assist them" (Daily Transcript 2079, 12 June 2008, Day 51). He "had no responsibility for the Committee", but "could be called upon from time to time to do things." (Daily Transcript 2098, 12 June 2008, Day 51). [62] The second defendant's defence prior to the amended defence of 13 February 2007 initially pleaded a limited plea of justification to imputations 39(c) and 40(e), namely that the plaintiff failed to keep proper accounting records. An application to amend the plea of justification to 11 of the 14 imputations was made on 5 February 2007, and on 8 February 2007 I made a peremptory order for service of particulars of justification or partial justification by 13 February 2007. There were further particulars supplied at the commencement of and during the trial and by the end of the trial these particulars were in excess of 160 pages. [63] The second defendant was consulted by the fourth and fifth defendants, in their capacity as auditors, because he was Honorary Chairman of the Supporting Committee and Chairman of the Korean Society, according to the 1 March 2001 matter complained of. He also presided over the meeting to consider the fourth and fifth defendants' audit report (Exhibit J) and attended the Sports Council meeting at which the plaintiff was forced to resign. This is the subject matter of the 30 March 2001 publication. The third defendant – Mr Yoon Shin Lee [64] The third defendant publishes the Sydney Korean Herald ("Korean Herald") which, like TOP and Hojudonga, is published weekly on Fridays. The edition for 8 – 14 May 1998 (exhibit 1) shows that it was a substantial newspaper of more than 50 pages, with offices in both Campsie in New South Wales and Fortitude Valley in Queensland, devoted to news stories as well as advertising not only from Korean businesses but also stores like Brescia furniture and government bodies like Landcom. No copy of the second defendant's newspaper was discovered or tendered but descriptions of the advertising and content show they must have some similarities. The plaintiff commenced proceedings against the Korean Herald in relation to the same three publications on the same three dates (1, 9 and 16 March 2001 as the publications in TOP and Hojudonga. The Korean Herald did not publish any other articles about these events. [65] Part way through the s 7A jury trial, on the application of counsel for the plaintiff, during the address to the jury of Mr Wheelhouse SC (counsel for the third defendants at the time), I discharged the jury. Appeals to the Court of Appeal and High Court were unsuccessful: Lee v Cha [2006] HCA Trans 132; Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279. There was a further s 7A trial at which the jury found all imputations pleaded against this defendant were conveyed for the three publications for which it was responsible. This delayed the litigation between the plaintiff and the other parties for two years. It was to avoid further delay that on 25 August 2006 I set the matter down for hearing as a four-week trial commencing 28 May 2007. [66] In a defence filed on 10 August 2006, the third defendant pleaded a defence of justification to all imputations in these three publications (unlike the second defendant, who pleaded this defence to only two imputations). However, before the trial commenced, the third defendant settled the proceedings for $60,000 plus costs and published an apology. The fourth defendant – Mr Hak Joo Park [67] The fourth defendant trained in Korea at a college as a physical education teacher. He had knowledge of bookkeeping from his activities as a sports teacher in Korea, but had no prior knowledge or experience of auditing. He was the basketball association representative on the Supporting Committee. In addition, he participated in Supporting Committee social activities such as the SK Security dinner (Statement, page 108; Daily Transcript 2573-2574, 26 March 2009, Day 58; Daily Transcript 2996, 6 April 2009, Day 64). [68] The second defendant did not tell the court what his occupation was on 1 May 1998, when he volunteered to become one of the Committee's auditors (Exhibit 70, Supplementary Statement, paragraphs 1 and 2). The plaintiff said he learned the fourth defendant had been the Korean Society's cleaner at that time after the second defendant was elected the president of the Korean Society (Daily Transcript 71, 4 June 2007, Day 4; Daily Transcript 2673, 31 March 2009, Day 60). The fourth defendant was appointed Secretary-General of the Korean Society during 1999, in which capacity he visited and contacted the Supporting Committee to obtain information and documents, according to the Activities Diary and Minutes of Meeting (exhibits 51 and 52). At or about the time when the second defendant's four-year term as president of the Korean Society ended, the fourth defendant's employment with the Korean Society ended. Since that time he has worked as a supermarket cleaner for companies owned by the second defendant (Daily Transcript 2672-2673, 31 March 2009, Day 60). [69] In his capacity as general secretary of the Korean Society, the fourth defendant took an active role requesting information from the Committee (Minutes of 6 March 2000, Exhibit 51, page 41; Activities Diary, 31 August 2000, Exhibit 52) and asking the Committee to pay more rent (Daily Transcript 1691, 28 May 2008, Day 43) and asking them to leave when they refused. [70] There is a disputed issue of fact as to whether the fourth and fifth defendants commenced the audit on 21 August 2000 (as recorded in Exhibit 51, the Committee Activities Diary) or on or about 10 December 2000, the date given by the fourth and fifth defendants as the date when they received the Committee records from the plaintiff. [71] During the cross-examination of the plaintiff it was put to him that the fourth defendant was responsible for checking all the Expenditure Resolutions and that his signature and red seal appear on them (Daily Transcript 81, 4 June 2007, Day 4; Daily Transcript 194, 7 June 2007, Day 7; Daily Transcript 200-209, 8 June 2007, Day 8; Daily Transcript 270, 12 June 2007, Day 8; Daily Transcript 933, 9 October 2007, Day 24; Daily Transcript 1014, 10 October 2007, Day 25; Daily Transcript 1459, 19 May 2008, Day 38; Daily Transcript 1664, 28 May 2008, Day 43). In fact this was not the case. Mr Wheelhouse SC advised on Day 60 that the fourth defendant had "picked up" an error in the translation of his affidavit and that in fact the signatures and red seals on the Expenditure Resolutions were those of the fifth defendant. (Daily Transcript 2731, 31 March 2009, Day 60). The fifth defendant – Mr Han Yong Lee [72] Mr Han Yong Lee, the fifth defendant, was a vice-chairman of the Korean Sports Council (Daily Transcript 1548, 26 May 2008, Day 41). He was the president of the Judo Association (Daily Transcript 2901, 3 April 2009, Day 63)). At the time of his appointment as auditor he ran a sushi restaurant. He had no training or knowledge in accounting or auditing. [73] The fifth defendant was represented by counsel and a solicitor at the s 7A hearing and filed a defence in the same form as the fourth defendant, pleading a defence of truth to the two imputations of failing to keep proper accounts, and providing the same three short paragraphs of particulars of truth. [74] The fourth and fifth defendants' solicitors filed a Notice of Ceasing to Act on 17 January 2007. They attended court in person in February 2007 in response to a request from the plaintiff for production of the Supporting Committee's accounting records. These documents were then uplifted by the second defendant (Daily Transcript 151-154, 6 June 2007, Day 6). [75] Although he filed a defence, the fifth defendant did not attend the trial to defend these proceedings. He was called to give evidence by the second defendant. Each time I asked the fourth defendant and Mr Wheelhouse about him I was told he was in Korea (Daily Transcript 25-26, 28 May 2007, Day 1; Daily Transcript 41, 4 June 2007, Day 4; Daily Transcript 108, 5 June 2007, Day 5; Daily Transcript 1426, 12 May 2008, Day 36). I severed the cross-claim on Day 36 (Daily Transcript 1425, 12 May 2008) and made directions for him to be notified (see orders dated 12 May 2008). On the application of Mr Evatt I struck out the defence of the fifth defendant and entered judgment for the plaintiff. In addition, I entered judgment in the cross-defendants' favour (plus costs) on the fifth defendant's cross-claim against Mr Kim and the plaintiff. [76] Mr Lee did come to Australia to give evidence for the second defendant. His cross-examination was restricted because he was only able to remain in Australia for a few days (Daily Transcript 2803 and 2821-2822, 2 April 2009, Day 62). The sixth defendant – Mr Duk In Kim [77] The sixth defendant was the publisher of the Korean Community magazine and published the thirteenth matter complained of on 6 July 2001. He did not participate in the s 7A trial and the plaintiff entered judgment against him after he failed to file any defence in relation to the imputations found by the s 7A jury. The seventh defendant – Mr Hak Soo Cho [78] The seventh defendant is the former owner of the newspaper TOP, which published all of the newspaper articles the subject of these proceedings. He gave this newspaper to Mr Lee, the second defendant. He was the director of the Korean Society (Daily Transcript 2193, 17 June 2008, Day 53) and is currently the vice-president of the Korean War Veterans Association (Daily Transcript 2164, 17 June 2008, Day 53). The seventh defendant presided over the meeting on 1 May 1998 at which the plaintiff and the second defendant were candidates (Daily Transcript 156; 7 June 2007, Day 7). He published the result of the meeting in the newspaper (Daily Transcript 146, 6 June 2007, Day 6; and Exhibit 1) and prepared the list of officials who were at the meeting and also the Constitution. At the top of this list was the second defendant, who was the Honorary Chairman (Exhibit SS). [79] The seventh defendant was Vice Chairman of the Supporting Committee at various times, keeping financial records between May – November 1998 and between April – October 2000, according to the plaintiff, who identified the seventh defendant's handwriting in the Committee's accounts for this latter period. He had his own desk in the Supporting Committee's office according to the Activities Diary, which records him as attending frequently between January and October 2000. The seventh defendant said there was no Activities Diary and that entries shown to him were "falsified" (Daily Transcript 2211-2212 and 2214, 19 June 2008, Day 54). [80] The seventh defendant answered interrogatories denying that he made statements to TOP denying he made statements attributed to him concerning the $3,000 left over after the purchase tickets (Exhibit U) and saying he could not recall what he did say "given the passage of time". The jury found in favour of both the second and seventh defendants in relation to this publication (S 7A transcript 626 3 August 2004). The cross-defendant – Mr Chung Yup Kim [81] Mr Kim, an engineer, was the publisher of the Korean-Oceanic Business Review ("the Oceanic Review"). He came to Australia in 1973 and worked for the Australian Bureau of Agricultural Research and Economics in Canberra, obtaining a Master of Economics degree in agricultural economics from the University of New England. In 1988 he moved to Sydney and started publishing the Korean-Oceanic Business Review, in which he translated into Korean items of interest from English newspapers. In addition to writing articles about education, immigration and law and order issues, he also reported on the activities of Korean community organisations. [82] The cross-defendant played no role in the Supporting Committee's activities and wrote no articles about the Supporting Committee until March 2001. He said he was asked by the plaintiff not to publish articles or participate, because the second defendant, who had him expelled from the Korean Society after attaining the presidency, objected to him being there (Daily Transcript 1765-1766, 30 May 2008, Day 45). [83] The cross-defendant published articles in the Korean Oceanic Review early in 2001 questioning the accuracy of the facts set out in matters complained of and published an interview with the plaintiff. This resulted in defamation proceedings being brought against him, and also against the plaintiff, by the fourth and fifth defendant, as a cross-claim in these proceedings. The cross-defendant gave evidence in the s 7A proceedings and in this trial. [84] After conclusion of the s 7A jury trial, the fourth and fifth defendants never prosecuted their cross-claim against the cross-defendants. I severed it from the main action on Day 36 of the trial (12 May 2008). The fourth defendant later discontinued the cross-claim and on the application of counsel for the plaintiff and Mr Kim I gave judgment in their favour against the cross-claimant Mr Lee, who is the fifth defendant in these proceedings. [85] It is not in dispute that when the cross-defendant and Mr Jae Sung Hwang, the editor of the Oceanic Review, attended the Sports Council meeting of 30 March 2001, the fourth defendant assaulted Mr Hwang and knocked his glasses to the ground (Daily Transcript 1770-1772, 30 May 2008, Day 45; Exhibit S – The ninth matter complained of). The matter complained of dated 30 March 2001 refers to this altercation, although it does not mention the assault. The explanation given both in this publication and by the cross-defendant in cross-examination is that the cross-defendant was expelled from the Korean Society following the election of the second defendant, which meant he was not welcome at any Korean function, including the Sports Council (Daily Transcript 1768, 30 May 2008, Day 45). Some procedural issues [86] Now that I have identified the parties and the issues, I should identify some procedural matters relevant to the determination of issues in this judgment. (a) The burden and standard of proof for imputations of criminal conduct [87] Imputations 39(a), 41(b), 41(d), 42(d) and 43(a) each identify conduct of an arguably criminal nature, such as misappropriation or failure to account. [88] In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [24] – [38] Levine J sets out the relevant law concerning the standard of proof for imputations of conduct capable of amounting to the commission of a crime. The issue in this case, as in Marsden, is a fact-finding one of whether, on the balance of probabilities but to the level of satisfaction of proof required, the evidence establishes the truth of imputations of Levine J calls "grave misconduct" (at [38]). [89] The parties agree (plaintiff's written submissions, 5.1.5) that the burden of proof in relation to the justification concerning the elements of each of these imputations which lies upon the defendants must be discharged on the balance of probabilities to the level of satisfaction of proof as required in Briginshaw v Briginshaw (1938) 60 CLR 336. Clear, cogent or strict proof is necessary where allegations of a serious nature such as fraud are made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. [90] This standard of proof is not met if the evidence gives rise to conflicting inferences of equal degree of probability so that the choice between them is a matter of conjecture: Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 at [20]. Where it is not possible to reach a conclusion either way, the court is not bound to do so, but may take the third course of finding that the party with the burden of proof has not discharged it: Kuligowski v Metrobus (2004) 220 CLR 363. [91] Defendants in defamation proceedings are required to provide particulars of the plea of justification before the trial. (b) Admissions by conduct [92] At [39] – [54] in Marsden, Levine J explained the nature of admissions by conduct, including evidence in relation to the preparation of the case. I propose to approach, in the same way, the question of whether the conduct of the plaintiff complained of by the defendant amounts to evidence of this kind. (c) Jones v Dunkel (1959) 101 CLR 298; Browne v Dunn (1893) 6 R 67; Allen v Tobias (1958) 98 CLR 367 [93] The parties have not referred to Jones v Dunkel (1959) 101 CLR 298 issues in their submissions, but if there is any question of witnesses who were not called, I propose to approach the issue in the same "common sense" way that Levine J employed in Marsden at [93] (citing Jones v Dunkel at 321 per Windeyer J). [94] Both the plaintiff and the second and fourth defendants assert that many disputed issues of fact were not put to the relevant witnesses in accordance with the rule in Browne v Dunn (1893) 6 R 67. [95] In some cases these problems arose because the defendants' particulars of truth were substantially enlarged throughout the trial. [96] Because of the length of the trial, counsel for the plaintiff sensibly suggested that all the defendant's witnesses could give evidence by affidavit or statement. In their affidavits they stated evidence in reply to matters raised by the plaintiff and his witnesses. Counsel for the defendants ("defendants" in this judgment refers to the second and fourth defendants) asserted that where witnesses were not cross-examined about these allegations, the rule in Browne v Dunn had not been complied with and that the approach I should take on all these occasions should be to accept the evidence of the defendants. [97] Once a witness has given evidence about the allegations against him or her, it is not necessary for his/her counsel to go through the exhaustive process of putting formally to all other witnesses questions designed to make them confirm or deny that evidence: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 23. In addition, the provisions of s 46 Evidence Act 1995 (NSW) give a number of alternatives to a trial judge when dealing with evidence which is asserted not to have been challenged or led. [98] The purpose of cross-examination is to seek admissions that evidence is incorrect or untruthful. It is not necessary to list every matter in dispute and formally put it to the witness that the other party's version is correct. In addition, many of these problems arose because of the enlargement of particulars in the defendants' justification defence during the trial. [99] Taking matters such as these into account, I have accordingly approached Browne v Dunn issues in the same common-sense way that Levine J did in Marsden, and noting the discussion of s 46 Evidence Act 1995 (NSW) in Odgers, "Uniform Evidence Law", 8th Ed. 2009. This means considering all of the alternatives before the court when evidence is challenged under this rule, rather than simply excluding it in the manner advocated by the defendants in their submissions. The very substantial amendments to the second and fourth defendants' pleadings and particulars, the multiple adjournments, the changes of legal advisers and witness problems (such as the ill health of the second and seventh defendant) require a flexible approach to such matters. [100] Complaints have been raised by the parties concerning failure to produce documents: Allen v Tobias (1958) 98 CLR 367 at 375 per Dixon CJ, McTiernan and Williams JJ; TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682. [101] Allen v Tobias is rarely referred to in modern litigation, where parties are required to produce documents for the purpose of discovery in accordance with the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff and second defendant during this litigation have complained about each other's discovery, and the fourth and fifth defendants never gave formal discovery, so the safeguards of the discovery procedure are accordingly limited. [102] The long delay in bringing this case to trial is no doubt responsible for the absence of many of these documents, and I shall approach the complaints of the parties on a common sense basis. (d) Adjournments of this case [103] The District Court roster requires accurate estimates of time from the parties before setting down all civil and criminal trials in this court. The Court of Appeal's finding that these proceedings were adjourned in June 2007 so that the plaintiff could read some documents (Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [51]) is incorrect. The hearing time allocated for this trial was four weeks, but after this four-week period, the case had to be adjourned part-heard because the plaintiff's cross-examination had still not concluded and the court calendar and lawyers' commitments meant the hearing could not continue. I made orders for further particularisation of the defence of justification as this defence had clearly not been adequately particularised. [104] Prior to the first adjournment, the parties gave the court an estimate of another four weeks to finish the matter. After four further weeks, the plaintiff's cross-examination was still not completed. The hearing was adjourned to January 2008. In the final week of this second period of hearing time, an application was brought for me to disqualify myself. That judgment was appealed: Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13. The January 2008 hearing had to be vacated pending the Court of Appeal's decision, and the hearing could not resume until May 2008. This being the third time the trial was part-heard, I asked the parties to give an estimate of the hearing time in writing. [105] For the third time, the hearing could not be completed in the time estimated by the parties. This time the parties had no further hearing dates available until 2009. [106] Each time the case was adjourned, there were problems with document management and changes to the court roster. Managing this case has been a strain on court resources and staff, as the transcript will demonstrate. (e) Delay in the commencement and conduct of these proceedings [107] Why was the s 7A jury trial not heard until 2004, why did the hearing not commence until May 2007, and why were the evidence and submissions not completed until November 2009? (i) Delay between commencement of proceedings in March 2002, the argument as to the capacity of the imputations and the section s 7A trial in August 2004 [108] The defendants could not agree between themselves, or with the plaintiff, upon how the section s 7A trial should be run. A three-week jury trial in August 2004 resulted in the discharge of the jury in relation to the third defendant's three publications. (ii) Delay between August 2004 and August 2006 [109] The discharge of the jury concerning the third defendant's publications during the three-week s 7A jury trial and the third defendant's subsequent unsuccessful appeals to the Court of Appeal and High Court, followed by a second s 7A trial for the third defendant, took two years. (iii) Failure to complete the case in the time allocated by the court [110] The inability of the parties to start and complete the trial in the four weeks allotted in May 2007 meant that the evidence was not completed until April 2009. Part of this is due to amendments to the defence and part is due to the plaintiff changing his solicitors and barrister when the trial resumed after the Court of Appeal returned these proceedings for continuation of the hearing. The new lawyers were not ready to proceed. (iv) Delays in the provision of written submissions [111] All parties are responsible for this. It has taken the parties eight months (15 April to 6 November 2009) to provide submissions. (f) Trial management issues [112] Neither Mr Wheelhouse SC nor Mr Evatt can use a computer. As the trial transcript grew longer and the adjournments more numerous, finding references in the paper transcript became, for them, a lengthy process. Disputes, usually on Browne v Dunn issues, arose. [113] For the 2009 section of the trial, I installed computer screens on the bar table. This had limited success because, as Mr Wheelhouse SC explained, he was "the Prince of Luddites" and could only use the paper transcript (Daily Transcript 1711-1712, 29 May 2008, Day 44; Daily Transcript 2319, 23 March 2009, Day 55). Mr Evatt was no better (Daily Transcript 2243, 23 March 2009, Day 55; Daily Transcript 2559, 26 March 2009, Day 58; Daily Transcript 2669 and 2679-2680, 31 March 2009, Day 60). [114] There were complaints on both sides about delay in the case, particularly concerning the length of the plaintiff's cross-examination. Mr Wheelhouse SC said that any delay in the cross-examination was because the plaintiff "never answered any questions, ever" (Daily Transcript 862, 8 October 2007, Day 23). In response to inquiries about the length of the cross-examination, he said that interruptions by Mr Evatt and myself meant he was only able to ask the plaintiff "ten questions a day" (Daily Transcript 1221-1222, 16 October 2007, Day 28). [115] For the purpose of efficient case management, I sought to encourage counsel to move the case along (e.g. Daily Transcript 542, 24 September 2007, Day 17; Daily Transcript 552, 24 September 2007, Day 17) or briefly adjourned the court (e.g. Daily Transcript 1753, 29 May 2008, Day 44; Daily Transcript 3065, 7 April 2009, Day 65). On 5 October 2007, I handed down a judgment (see Cha v Oh (No. 12) (District Court of NSW, Gibson DCJ, 5 October 2007, unreported), which is contained in Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300) putting a five-day limitation on further cross-examination of the plaintiff by Mr Wheelhouse SC. [116] At the end of the plaintiff's long cross-examination, there were only a few days of the trial remaining in 2007, and Mr Evatt was anxious to call witnesses who had been waiting since May (notably the plaintiff's accountant) to give evidence. The fourth defendant then told the court he wanted to cross-examine for five days, which meant the plaintiff could call no more witnesses. The fourth defendant had refused requests by both Mr Wheelhouse SC and myself to sit at the bar table for the duration of the case (Daily Transcript 123, 6 June 2007, Day 6; Daily Transcript 847, 5 October 2007, Day 22; Daily Transcript 1025, 10 October 2007, Day 25). Mr Wheelhouse SC had previously told me he would ask questions on the fourth defendant's behalf (Daily Transcript 371, 14 June 2007, Day 11) and on occasions took objections on the fourth defendant's behalf (Daily Transcript 67, 68 and 71, 4 June 2007, Day 4). [117] In the course of dealing with this application, which I granted, I commented that the fourth defendant had refused to sit at the bar table as counsel and I had several times requested and had sat at the back of the court laughing, and that his defence needed to be amended as he had only pleaded a defence of justification to two imputations. I did, however, allow the fourth defendant to amend his defence and to cross-examine the plaintiff, which he did for the rest of the time allotted for the trial. [118] The second and fourth defendant made an application for me to disqualify myself on the basis of both actual and apprehended bias for these remarks I made about the fourth defendant. I refused to do so. [119] The matter was adjourned to the following year (29 January 2008), with the plaintiff still technically under cross-examination, as the fourth defendant clearly needed to consider his position concerning issues of malice and qualified privilege, which he had not dealt with, and with the plaintiff having been unable to call any of his witnesses. [120] A Holding Summons was filed in the Court of Appeal, and an application for leave to appeal from my refusal to disqualify myself was brought in November 2007. This meant the hearing had to be adjourned. On 8 December 2007, at the request of the parties, I vacated the hearing date of 29 January 2008 and placed these proceedings in the Inactive List, pending the decision of the Court of Appeal. The Court of Appeal dismissed the appeal: Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13. The hearing was given a fresh trial date commencing on 5 May 2008. [121] When the hearing started, I was told the plaintiff was in financial difficulties and that his former lawyers were seeking to enforce judgments on legal costs in the Bankruptcy Court. His new lawyers sought a number of adjournments. Some evidence from reputation witnesses was taken. The seventh defendant's cross-examination was commenced but had to be adjourned part-heard to March 2009 when an exhibit was found to be missing. [122] It is not easy to case-manage a trial where there are multiple adjournments, applications to amend pleadings and enlarge particulars, and transcripts of thousands of pages, especially where there are applications to disqualify the judge for bias (the plaintiff's counsel also brought such an application on the basis that I expressed a concluded view about one fact in issue in the case). However, parties are entitled to bring applications for a judge to disqualify himself or herself in the course of hearings, and judges must be able to consider these applications in an objective fashion and not respond personally. (g) Interpreter problems [123] The length of hearing time is also partly due to the fact that all but three of the witnesses gave evidence in Korean, and all relevant documents were in Korean. [124] The Supporting Committee's financial records (which were kept by the fourth and fifth defendants after the audit) and the plaintiff's discovered documents were uplifted by the second defendant and kept at his solicitor's office, where they were translated by a translator who was retained and paid by the plaintiff. During the trial his translations were challenged on a number of occasions, by all parties. However, having heard the circumstances in which this interpreter was required to translate and type the contents of thousands of pages of documentation in difficult circumstances (discussed in more detail below), I consider blame for any errors in translation should not be laid at his door. [125] Mr Wheelhouse SC made an allegation of misconduct about the plaintiff's court interpreter (Daily Transcript 1254-1255, 16 October 2007, Day 28), which he later withdrew, but which led to her asking to be excused from the case (see also Daily Transcript 949-950, 9 October 2007, Day 24). Her request was entirely understandable but came at a difficult time in the plaintiff's cross-examination. [126] Mr Wheelhouse SC explained an important change in the fourth defendant's evidence about whether the red seal and signature on Expenditure Resolutions was his (Daily Transcript 2730, 31 March 2009, Day 60), as well as omissions from other witnesses' statements (Daily Transcript 2409-2410, 25 March 2009, Day 57), as arising from errors by his own client's interpreters. [127] The third defendant also made a complaint about one of the plaintiff's interpreters. [128] Although at the time I listened to these complaints sympathetically, with the benefit of hindsight, I do not accept any of these complaints has any merits. All of the interpreters and translators retained by the parties performed their difficult task both honestly and efficiently. Responsibility for any errors does not lie on the translators. (h) Mega-litigation [129] In judgments following long trials, judges may summarise case management information such the number of trial days and adjournments (3 weeks for the s 7A jury trial and 73 days (approximately 15 weeks) for the hearing on liability and damages), the number of transcript pages (3911 for the hearing and 695 for the s 7A trial), the number of witnesses (23 for the plaintiff and 11 for the defendants), exhibits (58 for the plaintiff and 81 for the defendants) and length of the written submissions (in excess of 1,000 pages), as well outlining procedural matters such as appeals during the trials, applications to amend and difficulties with the evidence. The question is whether these figures are proportionate to the issues in the trial, or the amount of compensation claimed. [130] In Seven Network Limited v News Ltd [2007] FCA 1062 Sackville J at [2] – [6] used the word "mega-litigation" to describe "electronic courtroom" proceedings which had taken 120 days to hear, resulting in 9,530 pages of transcript, thousands of exhibits and a "truly astonishing" (at [4]) 2,500 pages of submissions from both sides of the bar table, noting the judgment had taken nine months to write and that during that nine months he had been far from idle. What concerned Sackville J was that the legal costs (around $200 million) were likely to exceed the quantum of damages, which his Honour considered to be not only wasteful, but to border on the scandalous (at [10]). In Seven Network Limited v News Limited [2009] FCAFC 166 the Full Court dismissed Seven's appeal, noting at [1079] the size of the costs involved. [131] The issue of proportionality is not limited to commercial cases. In fact, Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510) was longer, had more appeals, and related to a damages claim for a tiny fraction of the sum involved in the proceedings before Sackville J. The concern following Marsden and other defamation trials led to a private member's bill in parliament, which in turn led to the enactment of s 48A Defamation Act, to provide for costs penalties where appropriate. When uniform defamation legislation was introduced in all States and Territories of Australia in 2005, this important statutory reform was included in all jurisdictions, and became s 40 Defamation Act 2005(NSW). [132] Following similar concerns expressed by the court in Bell Group Limited (in liquidation) v Westpac Banking Corporation (No. 9) [2008] WASC 239, a Bill was introduced into the Federal Parliament this year, called the Access to Justice (Civil Litigation Reform) Amendment Bill 2009 (Cth). According to its preamble, it mirrors many of the reforms set out in the Civil Procedure Act 2005 (NSW), and in particular the provisions of s 56 for the administration of justice to be "just, cheap and quick". [133] The Civil Procedure Act is still something of a lex imperfecta, in that failure to comply is rarely penalised. The burden on court resources, as well as on parties, caused by repeatedly part-heard trials and prolix pleadings is significant. Judges in the District Court are not given secretarial assistance or time out of court to write judgments, even lengthy ones, and all judgments must be handed down within two months of judgment being reserved. While I can understand the reasons for this regime, having regard to the need for justice to be just, cheap and quick, it is difficult to achieve without assistance from computer-literate counsel who have considered the law, distilled the facts and issues and presented them in a clear and concise fashion in properly pleaded and particularised claims and defences. [134] The causes and solutions to the problems of "mega-litigation" have been the subject of comment in articles by distinguished jurists (e.g. the Honourable Justice Pagone, "Lost in Translation: The Judge From Provider to Consumer of Legal Services" in "The Art of Judging", Southern Cross University Law Review vol. 12, 2008 at p. 160; the Honourable Justice Hayne, "The Vanishing Trial" (2008) The Judicial Review 33). The reducing number of trials actually taking place has led to fears for the future of the adversarial trial process if the trial process means litigation is "too horrible to contemplate" (to quote Sackville AJ in "Meeting the Challenges of Complex Litigation: Some Further Questions" (2009) The Judicial Review 197). Concerns about late amendments and delay have now been squarely confronted by the High Court in AON Risk Services Australia Limited v Australian National University [2009] HCA 27. [135] As courts now publish their judgments on the internet, litigation excesses by lawyers, or courts, quickly become publicly known. When Australian (or foreign) readers read judgments where lawyers have, for example, discovered documents by the roomful (Rural and General Insurance Broking Pty Ltd (ACN 093483928) v Australian Prudential Regulation Authority [2009] ACTSC 67), or appealed eleven times during a defamation trial (Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510), or that legal costs of $200 million have been run up in circumstances the trial judge described as bordering on the scandalous, they do not admire the cleverness of the lawyers involved; they lose faith in the common law system. [136] Both parties to this litigation, but particularly the defendants, have contributed to this trial being distorted by adjournments due to inaccurate trial time estimates, failure to give frank and fair discovery, inadequately pleaded and particularised defences and prolixity in presentation. The plaintiff's submissions are, fortunately, clear and succinct, particularly given the circumstances in which they were prepared (Cha v Oh (No. 21) [2009] NSWDC 130). [137] Despite the large number of publications, the issues of fact, if properly pleaded and particularised at the outset, would very likely have been concluded in the four weeks time estimate for which this case was originally set down. [138] What is necessary in this litigation is finality for all concerned. Whatever the responsibilities for the delays in preparation of the case and conducting the trial, I do not want to add to them by any further delay in handing down judgment. I am conscious that as a result, there is considerable repetition and overlap in this judgment's presentation, and probably also errors such as transcript pagination, informal language and other oversights. I have handed this judgment down as quickly as I can for the reasons expressed by Austin J in ASIC v Rich [2009] NSWSC 1229 at [14] – [15] (although Austin J has expressed this better than I can), taking into account the exhortations of Heydon J about the role of the trial judge as being the fact finder rather than the determiner of esoteric issues of law ("Practical impediments to the fulfilment of judicial duties" ("The Role of the Judge", Judicial Commission of New South Wales, 2004, pp. 31 – 42). [139] Having noted these preliminary matters, I now set out the factual issues in the case. I have set out who the parties are, so I now propose to describe the Committee set up to make the dreams of the North and South Korean Olympic officials and team a reality. The organisation of Korean sporting groups in New South Wales: the Korean Sports Council and unincorporated associations [140] The Korean Sports Council was a body funded by the Korean Government. It was incorporated pursuant to the Associations Incorporation Act 1984 (NSW), which relieves a company from complying with some but not all of the requirements for a corporation. [141] Mr Bonney Lee, an accountant who is the president of the Golf Committee, explained (at Daily Transcript 2147, 16 June 2008, Day 52) how he ran his unincorporated association: "A. INTERPRETER: Firstly, in all the Korean community's associations or committee, unlike the Australian, that it is hard to keep, or it's meant to be, but it's hard to, reality, to keep record of it, is because the income is not all recognised, and it is not enough. Like, just in my case there's the golf association. I try to keep the proper records, but sometimes the income is not enough and to keep the association going, I have to put a lot of my own money into the thing to keep it going. So I cannot say just for looking alone on this committee that, what - how it should have been done, to tell you the truth. That it's difficult." [142] Mr Lee went on to explain (at Daily Transcript 2148, 16 June 2008, Day 52): "Q. Mr Lee, you keep a precise record of who made a donation, when the donation was made and how much a donation was made, because that's the proper way to keep books of an association like the Golf Association, isn't it? A. INTERPRETER: Yes, me personally as an accountant, yes, I keep the books. But, as an overall in the community of various associations and committees, it is difficult to keep those proper records. Q. Do you agree, Mr Lee, that when an organisation is dealing with public money and accepting donations from members of the public, it's really important to keep a precise record of which members of the public made the donation, how much the donation was for and the date when the donation was made? A. INTERPRETER: Yes. Overall, yes, they need to record it and kept records. But, as I said, at times that this is not— Q. Mr Lee, if I could take you back to the statement that you made that's recorded in the document in front of you." [143] Although Mr Lee was interrupted, he made it clear that these Korean unincorporated sporting bodies' records, unlike Australian associations, are generally kept in an informal way, because there is not enough money and the president is running the organisation out of his own pocket. He went on to say that the job of keeping the records would have been the role of the treasurer, and if there was no treasurer then everybody, including the president would have been responsible: "Q. Mr Lee, are you aware who was responsible for keeping the financial books from time to time of the supporting committee? A. INTERPRETER: Yes. As far as I'm concerned, it would have been the treasurer of any committee but in the supporting committee, it was also the treasurer who would have been responsible. Q. And if there was no treasurer, who would then be responsible? A. INTERPRETER: If that's not the case, then everybody involved, including the president and the members of the committee. Q. Would you agree that the ultimate responsibility would be with the president? HER HONOUR Q. This is the responsibility for keeping the books. Would the ultimate responsibility of keeping the books have been the president's? A. INTERPRETER: Yes. Ultimately, if it came down to the crunch, yes, the president." (Daily Transcript 2151, 16 June 2008, Day 52) [144] Mr Kun Woo Lee, president of the Tennis Association, gave similar evidence concerning the structure of the Tennis Association. He also explained the relationship of these small associations with the Sports Council (Daily Transcript 1838-1842, 2 June 2008, Day 46). In particular, he stated that the fact that the Tennis Association was a member of the Korean Sports Council did not mean that during the Olympic period (when the Supporting Committee had been set up) it was the Sports Council that should donate money to the Tennis Association rather than the Supporting Committee. This was the subject of very vigorous cross-examination, but Mr Lee held firmly to this evidence: "Q. It was not appropriate for the Supporting Committee to make payments to the Tennis Association to support annual Tennis Association events from time to time because that was not part of the role of the Supporting Committee? A. INTERPRETER: Then I'd like to ask the question, and I've said it before, that during the Olympic time the money that was raised, the donations from the Supporting Committee - the main aim, the main focus is what, to support and to assist the Olympic teams? Isn't that the main role and the aim? Q. Yes, Mr Lee, I think you and I agree on that topic, so I'm asking you a question about that. I'm not putting something that's different to that. Do you understand? What I'm suggesting, Mr Lee - and I think you agree with this - is that it wasn't part of the role of the Supporting Committee to pay for annual events of the Tennis Association. (Objection) HER HONOUR: Mr Wheelhouse, ask the question again. WHEELHOUSE Q. The question I asked you was this: do you agree that it wasn't part of the role of the Supporting Committee to pay for annual events of the Tennis Association? A. INTERPRETER: Before the Olympics, as Tennis Association being the sub-association from the Sports Council, we raised monthly money to the association, or the president of each association would help and support the individual teams during the events or things that they do. But during the Olympics, he referred it as, like, a personality. It's a little bit different in the same that we did not - the Tennis Association did not use the money for their private use. It was used for the Korean team of the same to support and assist the team from Korea. Q. At the time when you were president of the Tennis Association, Mr Lee, did the Tennis Association have its own bank account? A. INTERPRETER: At that time, no, the Tennis Association did not. At the time when I was the president, no. The reason for that is that part of the Tennis Association to get along, to support the association, normally it's the president that takes care of - the money that's involved in supporting the association, between five, seven thousand dollars, but it's normally the president that, yes, are responsible for it. I do recall having one account, but did not use it because the president pay for [sic]." (Daily Transcript 1841-1842, 2 June 2008, Day 46) [145] As to the standards of bookkeeping in the Korean Society, Mr Sung Joo Sung, who was the Korean Society auditor for three years (Exhibit 72, paragraph 35(b)), said he attempted to prepare the accounts of the Committee "in the same form as I had experienced at the Korean Society" (Exhibit 72, paragraph 35(b)). He said that the plaintiff "would not agree with the way I proposed to record the income and expenditure" (Exhibit 72, paragraph 35(b)) but does not identify, in his affidavit or evidence, what the plaintiff did or did not want him to do. The seventh defendant also had prior experience in a financial role with the Korean Society, and following the resignation of the plaintiff from the Sports Council in March 2001 was appointed temporary auditor of the Sports Council, according to the 30 March matter complained of (Exhibit S, lines 52 – 3). Mr Joo Yong Jo, the financial controller, was also the treasurer of the Korean Sports Council. These three persons were the persons appointed to positions of financial responsibility in the Supporting Committee and presumably brought with them their knowledge an experience of bookkeeping for other Korean sporting or social associations. [146] Finally, although set up in Australia, many of these associations functioned along lines dictated not only by Korean custom (e.g. respect to seniors, playing the Korean national anthem) but also accounting practice. For example, not only did the Supporting Committee have its audit period from January to December, the Korean financial year, but so, apparently, did the Sports Council, judging by the circumstances in which financial information was being belatedly presented in March 2001 (Exhibit S, lines 46 – 54). [147] Having noted the nature and extent of bookkeeping in these unincorporated Korean sporting associations, I now consider the structure of the Supporting Committee. What was the structure of the Supporting Committee? [148] The Supporting Committee was neither a corporation nor an association registered under the Associations Incorporation Act 1984 (NSW). It was a "supporting" committee of individual members of the Korean community in Australia, set up in an informal meeting attended by: (a) the former presidents of the Korean Society; (b) the former presidents of the Korean Sports Council (a body incorporated under the Associations Incorporation Act ); (c) representatives of the unincorporated sporting associations who made up the membership of the Korean Sports Council (a body incorporated under the Associations Incorporation Act ); (d) community group representatives, notably the Korean Veterans Association; and (e) persons who appear to have held positions of importance in the Korean community. [149] The seventh defendant, who was the temporary chairperson of the Supporting Committee prior to 1 May 1998 and author of the Constitution, described the activities of this committee as having "a lot to do with in the relationship with Australia and so on" and that he felt he had a "responsibility towards that goal" (Daily Transcript 2168, 17 June 2008, Day 53). [150] It is not uncommon for organisations registered under the Associations Incorporation Act to be affiliates or associates with other incorporated associations, especially in the field of sport. An example is Rose v Boxing NSW Incorporated [2007] NSWSC 20 (see Brereton J at [48]). Although not imposing some of the more onerous obligations of the Companies Code, the Associations Incorporation Act still imposes requirements for the proper keeping of records, especially financial records. [151] The members of the Korean community who set up the Supporting Committee were familiar with these requirements by reason of their membership of the Korean Council, the Korean Sports Council, or both. When they set up the Supporting Committee as an unincorporated association, did they intend the same level of record-keeping required for corporations, or incorporated associations, or the even more flexible structure of unincorporated sporting groups, such as the Korean Golf Club? [152] The defendants assert in written submissions that the standard of record keeping should be at the standard required by the Charitable Fundraising Act 1991 (NSW) and the Charitable Fundraising Act Regulations 1998. This was raised for the first time in submissions so I did not have the benefit of evidence from the expert witness, or any of the lay witnesses, on any aspect of this legislation. I should briefly note: (i) The Committee's Constitution is very broadly phrased. There is reference to a financial director, auditors and a reporting process, but the reporting is to the Supporting Committee itself, not to any other association or government body. Clearly, there was no intention to file a tax return. (ii) The Committee's purpose could not be broader. It is to act in concert with the Korean Sports Council and to play a "channelling role", not just for sporting matters, but community matters. (iii) Committee positions were voluntary and unpaid, but when it was set up the clerks who kept the books and their supervisors, Mr Sung Joo Sung and the seventh defendant, were paid, as was Mr Dae Wong Kang, another office holder. This was an organisation staffed by volunteers. The lunches and dinners challenged as excessive relate largely to meals for these volunteers after meetings or in the office, their entertainment of Korean visitors and officials, and rallies or functions for the Korean community related to the Support Committee's activities. (iv) Although the plaintiff was the chairman, he was not the most important or powerful member of the Committee, as the command structure shows. (v) Finally, and importantly, the Constitution contained a provision that disputes or issues that were not the subject of a specific rule were to be regulated by "custom". What did this mean? Korean cultural issues [153] In addition to the evidence of Mr Bonney Lee about differences between Korean and Australian ways of running sporting associations, the evidence shows there were important obligations of custom, arising from Korean culture. [154] 77-year-old Mr Yong Kwang Kim, who had been both the plaintiff's (Daily Transcript 2252, 23 March 2009, Day 55) and the second defendant's commanding officer when they were young men in the Korean army, gave a helpful description of Confucian obligations of obedience to seniors and also the obligations of obedience in the Korean military structure (Daily Transcript 1475-1476, 20 May 2008, Day 39). Like other witnesses, he referred to the obligations of younger persons to be "obedient to senior" as Mr Yong Kwang Kim put it (Daily Transcript 1475, 20 May 2008, Day 39). The seventh defendant, for example, expected the plaintiff not to criticise him as he was ten years older than the plaintiff (Daily Transcript 2170-2171, 17 June 2008, Day 53; see also Mr Sung Joo Sung's evidence at Daily Transcript 3069 (7 April 2009, Day 65) and Mr Cha's evidence on Day 21 (Daily Transcript 783, 4 October 2007)). A similar relationship of obligation existed between the plaintiff and the much older second defendant; the plaintiff called the second defendant "ajeossi" ("uncle" – Daily Transcript 1490, 20 May 2008, Day 39). [155] In addition, the plaintiff, the second and seventh defendant and some of the witnesses had all been members of the Korean army. The Korean Veterans Association, not surprisingly, given the plans North and South Korean athletes to march together, had a representative on the Supporting Committee. Committee meetings sometimes started with a moment of silence for the fallen (e.g. Exhibit 51 pp. 1) and always with a ceremonial salute (e.g. Exhibit 51 p. 16). [156] The Supporting Committee's Constitution contained a proviso that where the Constitution was silent or there was a problem, the matter was to be settled according to custom. One of the issues in the trial is whether this meant Korean custom (as asserted by the plaintiff - see Daily Transcript 166, 7 June 2007, Day 7; Daily Transcript 927, 8 October 2007, Day 23) or Australian custom (as asserted by Mr Finney, the second defendant's expert witness - see Daily Transcript 3165, 8 April 2009, Day 66). What was the command structure of the Supporting Committee? [157] Three flow charts were prepared showing the structure of the Supporting Committee. (a) The selection of executive members of the Supporting Committee [158] The 8 May 1998 newspaper article (Exhibit 1) prepared by the seventh defendant, the acting chairman of officials election, on 8 May 1998 reports on the setting up and lists the people who were present, the people who were absent, the list of standing sub-committee members and the Constitution of the Kor-Aus Supporting Committee for Sydney Olympic Games. This gives an idea of who the members of the Supporting Committee were. [159] Who, apart from the plaintiff and the fourth and fifth defendants, were the other officials? The seventh defendant said that he was appointed on 8 May 1998 to the position of secretary-general (Daily Transcript 2165, 17 June 2008, Day 53), with Mr Sung Joo Sung as his "assistant secretary-general" (Daily Transcript 2168, 17 June 2008, Day 53). It was while they held these positions that they supervised the bookkeepers keeping the financial records. [160] The plaintiff described the persons he appointed and their qualifications (Daily Transcript 1548ff, 26 May 2008, Day 41). The question is when he did this. There were meetings of officials from June 1998 onwards. There are Minutes from October 1999 but earlier Minutes, if they exist, have not been produced. There were also lists of officials. Exhibit SS, which is the first list in chronological order, is apparently early 1999. [161] Mr Wheelhouse SC objected (Daily Transcript 1566, 26 May 2008, Day 41) to Exhibit SS on the basis that a "pre-incorporation document" could not be a business record. The Committee was never incorporated, and the list in Exhibit SS clearly postdates the executive in 1998 as the seventh defendant's name is no longer on it, as the plaintiff pointed out at Daily Transcript 1548 (26 May 2008, Day 41). [162] According to the plaintiff, the list headed "Details of Committee Members" (Exhibit SS) was prepared some time after the 1 May election but prior to the inauguration ceremony electing the plaintiff as the president of the Supporting Committee in March 1999 (see Daily Transcript Day 41). The person whose name is at the top of the list is the second defendant. The second defendant gave evidence that he considered his role as honorary chairman ornamental in nature. [163] Although Mr Wheelhouse SC sought to object to these documents insofar as they allocated a role to his client, the second defendant's role as honorary chairman of the Supporting Committee is also referred to by the first defendant in publications dated 2 February and 6 June 2001 and by the second, fourth and fifth defendants in the matter complained of dated 1 March 2001 at lines 140 – 141 as being the person to consult when the plaintiff did not respond to their requests; see also the matter complained of dated 23 February 2001 lines 28 – 9, identifying him as "the honorary president of the Committee" (Exhibit J). In a hierarchical structure such as the Confucian-based Korean culture, the second defendant's role as honorary chairman, in addition to his other entitlements for respect, meant that he held a significant position at the top of the Supporting Committee. [164] The list also refers to Joo Yong Jo as financial director, but not to Dae Won Kang, although the Minutes of November 1999 refer to them both being appointed to these positions at this meeting. [165] This is one of a series of lists of office bearers; the Activities Diary in 2000 (Exhibit 52) refers to the list being updated on a regular basis to ensure the information was as current as possible. The Activities Diary also records the fourth defendant asking for such information for the Korean Society as well as staff from the newspapers run by the first, second and third defendants asking for these lists. [166] The list is as follows: The List of Members of the Supporting Committee Honorary chairman Jae Kyung Lee Standing Advisor Sang Gi Kim Standing Advisor Myung Nam Kang The Executive Chairman [Chae] Sang Cha Vice Chairman Nak Yoon Paek Vice Chairman Byung Doo Choi Vice Chairman Sung Joo Sung secretary-general Ik Hee Kim Vice SG [secretary-general] Duk Hwan Rha General Director Ok Ja Park Planning Director Yang Bae Seo Financial Director Joo Yong Jo International Director Jung Soon Lee (b) The flow chart of November 1999 [167] In November 1999 new officials were appointed, and Joo Yong Jo was appointed as financial director. Mr Sung Joo Sung was now "promoted" to his new position as Vice Chairman. He agreed (Daily Transcript 3049, 7 April 2009, Day 65) in his evidence that this reflected the structure beforehand as well. (c) Organisational structure of January 2000 [168] This table appears in the January 2000 entry of The Minutes of Committee Meeting (Exhibit 51, at page 65): The organisation of the Supporting Committee 1. Honorary chairman 2. Advisory Group 3. Advisory Committee 4. chairman 5. Vice Chairman (administration) 6. Vice Chairman (business) 7. Vice Chairman (external cooperation) 8. Auditors (financial & administrative) 9. secretary-general (vice secretary-general) in charge of overall administration and management 10. Directors (general affairs, planning, finance, international, PR, press and liaison) 11. Sub-committees (organising, cheer, mobilisation, vehicles, women, volunteers & business) 12. Volunteers (clerical assistance) [169] The Honorary chairman is the second defendant. He, the Advisory Group and the Advisory Committee are all superior to the plaintiff, who is number 4 on the list. [170] This list also refers to a Finance Director. According to the Minutes, this was Joo Yong Jo, who was also the Financial Director of the Korean Sports Council. (d) Third flow chart (June 2000) [171] Another flow chart appears on page 19 of the Minutes of Committee Meetings (Exhibit 51) between the May and June 2000 entries. The flow chart appears as follows: [172] The same flow chart appears in Exhibit SS but its origin is the Committee Minutes, which enables a time frame to be put on it. Mr Joo Yong Jo is still listed as the Finance Director. Miss Lee took over in April from Miss Chae. According to Mr Sung Joo Sung (Exhibit 72, paragraph [18]) Miss Chae wrote up the accounts book under his supervision up to December 1999. According to the two financial statements for March and April 2000 which Mr Sung Joo Sung claims he prepared (Exhibit 72 p. 20), Miss Migi Lee started work on 27 March. Miss Chae continued to work at the Supporting Committee until 3 April. [173] I should briefly note a recurring error in the defendants' submissions as to who these bookkeepers were, by reason of the parties' failure to correct transcript errors or to reconcile different name spellings: (a) Huon Song Choy is identified by the defendants in the dramatis personae (Submissions chapter 1.4) as someone who performed secretarial duties assisting Mr Sung Joo Sung between 1998 – 99 and who was paid a wage. This is in fact the Miss Chae referred to above. Her name was misspelled at Daily Transcript 75 (4 June 2007, Day 4). (b) It is clear from the Activities Diary and Expenditure resolutions that the "Mege" Lee, "Jiong" Lee and Mee Kee Lee, who are referred to in the defendants' dramatis personae , are in fact the same person, namely the bookkeeper who replaced Miss Chae on 3 April 2000 and was herself later replaced by Miss Sarah Yoo. (c) There were three bookkeepers for the lifetime of the committee, according to the contemporaneous records, and they were paid $200 per week (although Ms Yoo's salary increased at the end). Mrs Ok Ja Park, who also worked in the office and helped keep the Activities Book, was also paid a small allowance, according to Exhibit A (the Committee's Financial Statement). Mr Sung Joo Sung claims that there was a fourth bookkeeper in late 1998 and early 1999, whose accounts keeping was so unsatisfactory he ripped these pages out and rewrote them. This person was named as Choi Jung Sun or a Ms Chae and is most likely the same Ms Chae as in (a) above. Does the Charitable Fundraising Act 1991 (NSW) apply to the Committee, either expressly or by analogy? [174] The defendants submit that the Charitable Fundraising Act 1991 (NSW) applies to the Supporting Committee either directly or so as to provide "guidance" (submissions, paragraph 36, p. 74) as to what records should be kept by the Supporting Committee. [175] This was not particularised during the trial, nor was any evidence (expert or otherwise) led on the subject. The plaintiff submits (paragraph 5.2.2, page 37) that such a late amendment should not be permitted: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29] – [32] per Spigelman CJ. The plaintiff's submissions also point to other provisions of the Charitable Fundraising Act which would make every member of the committee guilty of unlawful fundraising (section 9), would prevent unqualified persons such as the fourth and fifth defendants from carrying out the audit (section 24(1)) and render them liable for prosecution for not carrying out an annual audit and reporting to the Minister (sections 24(1) and (3)). [176] This unincorporated association's Constitution made no provision for the appointment of any appropriate personnel for the keeping of these kinds of records. There is no suggestion, even by the defendants, that it was intended to carry on any kind of income-producing activity or to lodge an income tax return. Its auditing was non-professional and internal. Its structure could never have satisfied the requirements for a charitable fundraising organisation, and the onerous obligations of record-keeping required for bodies under the Act were clearly not intended to be put into place. [177] Further, the Supporting Committee is not capable of being a charity because its aims do not fall within the scope of charitable purpose. The purpose was to play a "channelling role" to help Korean community and sporting organisations (such as the sports organisations which had helped to set it up), in association with the Korean Sports Council (a body funded and supervised, at least in part, by the South Korean government), to bring about some very generally worded aims about the Olympic teams from North and South Korea. [178] What were these aims? The real purpose of this committee, as the resolutions of 18 March 2000 show, was to play a small but vital role in South Korea's "peaceful reunification" programme (see the Resolution at Exhibit 70 tab 4). It was not set up to raise money to help the athletes, but to help the Korean government ensure that there were welcoming Korean faces, banners and cheer squads not only for the South Korean but also the North Korean team. The North Korean Olympic officials had clearly played some role in the decision that the teams would march into the Olympic Stadium together. Neither the North nor the South Korean governments had aims or objects of the kind that would fit within purposes of the kind set out in the definition of "charitable purpose". [179] In particular, the defendants submit that the Supporting Committee was limited, either by this legislation or some other unspecified law, to spend no more than a certain percentage of its income on meals for volunteers after meetings, social functions and entertaining Korean visitors. This claim was never particularised and has no basis in law. The contemporaneous records show the Supporting Committee functioned like a social committee and its purpose was to plan social functions for the Korean community as well as to entertain foreign guests. The specific percentage of "reasonable" expenses chosen by the defendants is unexplained, and appears to have been plucked out of the air. [180] If I have erred in these findings, then I should note that if I were to accept the committee was set up for the sporting and Korean community purposes identified by the defendants in their written submissions, these purposes would similarly not fall within the definition of "charitable purposes". As the plaintiff's helpful submissions point out at [5.2.15] and [5.2.16], gifts for the benefit of persons of a particular race (with the exception of Aboriginal persons) and organisations set up for the purpose of sport and recreation have been held not to be charitable unless the support is incidental to the promotion of an accepted charitable object: Royal National Agricultural and Industrial Association v Chester (1974) 3 ALR 486 at 489 per McTiernan, Menzies and Mason JJ; Re Nottage; Jones v Palmer [1895] 2 Ch 649 at 655 per Lindley LJ, at 656 per Lopes LJ and at 656 per Rigby LJ. Statutory amendments in other States of Australia to permit the provision of facilities for a sporting or recreational purpose to be classified as "charitable" have not been introduced in New South Wales. [181] Section 4 Charitable Fundraising Act 1991 (NSW) identifies charitable purpose as including "any benevolent, philanthropic or patriotic purpose". Does that include a patriotic purpose, as the second defendant asserts in the submissions in reply (paragraph 41, Submissions in Reply, 27 August 2009 ("Reply Submissions"))? Was the association carrying out patriotic activities? [182] As I have indicated in my discussion of the Supporting Committee's structure and purposes below, I consider the Supporting Committee's aims were not patriotic but political. The use of sporting events (and particularly the Olympics) for political aims has a long history. The Supporting Committee's function was to help in the task of bringing the teams of two once-warring nations into the Olympic arena together. As to the difficult question of the status of donations to political organisations, see Bacon v Pianta (1966) 114 CLR 634. Such purposes could never fall within the ambit of the Charitable Fundraising Act. [183] Accordingly, if I have erred in my finding as to the purposes of the committee, then I would adopt the purposes set out in paragraph 5.2.18 of the plaintiff's submissions, as well as the reasons for which such purposes could not be considered as charitable. [184] In the Reply Submissions (pages 11-15), the defendants assert that the plaintiff and the Supporting Committee should be regarded as trustees, with all the attendant duties of trustees, and that the plaintiff's conduct amounts to breach of trust, and/or that it is an association for the purposes of the Associations Incorporation Act (NSW). I do not accept either of these submissions and I gratefully adopt and endorse the submissions of the plaintiff in answer to these further arguments. As set out above, this was an association intentionally set up to operate informally and flexibly outside the parameters of such provisions. Conclusions concerning the Committee's structure and purpose [185] The following conclusions may be drawn from the Committee's structure: (a) The second defendant as honorary president had his name at the top, followed by unnamed senior counsellors, from May 1998 to June 2000. Those senior counsellors were never named, another indication of the secrecy with which this organisation wished to cloak itself. After June 2000, the increased role of the Korean consul, Mr Moon, is evident from the Minutes. It was left not up to the committee, let alone the plaintiff, to deal with something as important as making arrangements for the South, and especially the North, Korean athletes and officials. The real power in the Committee lay with the unnamed people who did this. This is another indication that the aims of this Committee were political, and were tied in with the "sunshine" policy in South Korea that had led to the proposal for the teams to march together in the Opening Ceremony, a policy for which the South Korean President won the Nobel Peace Prize that year (one of the last acts of the Supporting Committee was to publish an advertisement congratulating him: Exhibit 56, Expenditure Resolution 285). (b) As the Minutes and Activities diary (set out in more detail below) demonstrate, the plaintiff's role was to co-ordinate Korean community social events, supervise the six sub-committees (organising home stay, transport to and from the Olympic events, Korean-speaking volunteers for SOCOG, the cheerleaders), meet on a weekly basis with the Sports Council and arrange functions for visitors and athletes up to, during and after the games. He did not put himself forward as the spokesman or leader. For example, at the final press conference for the Paralympics on 30 October (Exhibit 52 pp. 38 – 40), attended not only by the plaintiff but by Consul Suk Woo Kang, Paralympics team manager Min Gyu Han and Athens Paralympics vice president Chang Il Park, the person who spoke on behalf of the Supporting Committee was the seventh defendant, not the plaintiff (Exhibit 52 p. 40). (c) The structure, including the three vice-chairmen and six sub-committees, remained much the same throughout the Committee's life. There are only minor changes to the official roles. The accounts were kept, successively, by two selected officials and three bookkeepers, with a financial controller having a supervisory position for the last and busiest year of the Committee's life. (d) This contemporaneous documentary evidence is contrary to the claims in the matters complained of, and to the assertions of the defendants' witnesses in the trial. The fourth and fifth defendants assert, inconsistently, in the matters complained of, that the plaintiff did the books himself some of the time (26 January 2001, lines 60 – 62); that the bookkeepers were used but they were untrained (26 January 2001, lines 59 – 60), that there was a financial controller (26 January 2001, lines 61 – 62); that the plaintiff managed the books with secretary-general Mr Sung Joo Sung in 1999 (26 January 2001 lines 60 - 61); and that the plaintiff managed receipts and expenses all by himself and refused to appoint a secretary-general or financial controller (1 March 1999, lines 37 - 40, 48 - 52). The evidence of the fourth and fifth defendants on these issues in the witness box was just as confusing. The fourth defendant gave the following explanation for not consulting the Committee members for information about the accounts, namely that there were so many changes on the Committee's executive that he did not know who to consult: "Q. Could you give us the names, please? A. INTERPRETER: I don't know the names. HER HONOUR Q. Sorry, you don't know the names of these people? A. INTERPRETER: That's right, because the executive members of the committee changed quite often, so I can't remember at that time who was these people. EVATT Q. You don't know whose signature they are? A. INTERPRETER: Correct." (Daily Transcript 2749-2750, 1 April 2009, Day 61) When the fifth defendant was cross-examined by Mr Evatt on Day 63 (Daily Transcript 2897, 3 April 2009), he gave evidence in almost identical terms as the fourth defendant, saying he did not know who was on the committee and referring to "rumour" as his source: "Q. Doesn't your position as auditor require you to know who all the officials are of the committee? A. INTERPRETER: Rumour say that some people were working for one month and some others two months and all changed; they quit. So, I didn't know who they were." (Daily Transcript 2897, 3 April 2009, Day 63) Like the fourth the defendant, the fifth defendant also claimed not to know who Financial Director Joo Yong Jo was, despite his also holding the position of financial director of the Sports Council (Daily Transcript 2897, 3 April 2009, Day 63), participating in meetings and being the claimant for a number of Supporting Committee Expenditure Resolutions they had in their possession (e.g. a-27, a-28, 37, 41, 46, 4749, 50, 54, 55, 57, 60, 61, 69, 79, 131). Mr Joo Yong Jo also signed other Expenditure Resolutions and presented a financial statement at the meeting in May 2000 (contained in the Minutes of Meeting, Exhibit 51). The fourth defendant's statement referred to receiving information about who was in charge of committee finances from "persons who had been employed by the Supporting Committee" (paragraph 71) without naming them. Both Mr Sung Joo Sung and the seventh defendant were assisting him in the preparation of the audit (paragraphs 91 and 122) and he had the Minutes of Meeting and Activities Diary (paragraph 101 of his statement). The seventh defendant and Mr Sung Joo Sung were in fact the persons who kept these records and who supervised the paid bookkeepers; one of the explanations given by Mr Sung Joo Sung for keeping $1,000 from Vice President Paek's $10,000 loan was that he needed to pay the bookkeeper's salary (Daily Transcript 3086, 7 April 2009, Day 65). The "list" of possible Committee members referred to by the fourth defendant in paragraph 72 of his statement was not attached to his statement. As is set out above, there were lists kept of committee office bearers throughout most of the Supporting Committee's life, and these persons were easy to identify, particularly for the fourth defendant, who was given them during his visits to the Committee office in February and August 2000, according to the Activities Diary. The fourth and fifth defendants had considerable information not only from the plaintiff but from Mr Sung Joo Sung and the seventh defendant. In addition they had (or could have obtained) information from the Sports Council, the Korean Society and the consulate. I particularly note: (a) They knew who was really doing the books. They knew there were paid bookkeepers keeping records under the supervision of the seventh defendant and Mr Sung Joo Sung, and that Mr Joo Yong Jo, the financial director, played an important role signing Expenditure Resolutions and cheques. While the seventh defendant may have told them (as he told the court, concerning Mrs Kim's donation in August 2000) that "everything, including finance, was all controlled by the plaintiff, managed by the plaintiff. There was no director-general, there was no finance director at the time, so the plaintiff did everything." (Daily Transcript 2173, 17 June 2008, Day 53), they had the Expenditure Resolutions, Minutes and other records which told them the truth. They knew Mr Sung Joo Sung (Expenditure Resolution 1), the seventh defendant (Expenditure Resolution 168, 199, 222, 240, 254, 268, 271, ) and the bookkeepers (e.g. Expenditure Resolutions 2-382, 2-386, 2-389, 27, 33, 38, 96, 111, 139, 169, 241, 251, 279, 282 ) received payment to keep the accounts. They knew Business Plans were prepared and circulated to committee members (Expenditure Resolution 2-404), and that the Minutes and Activities Diary recorded that was a financial controller as well (Exhibits 51 and 52). Written instructions were given to staff by Vice Chairman Paek that "expenses such as lunch should be paid from petty cash" (Expenditure Resolution 228), so they knew these decisions were being made by the Committee, not just the plaintiff. The fourth and fifth defendants had all these documents in their possession for the audit. (b) They also knew this committee was intended to operate even outside the condign parameters of legislation such as the Associations Incorporations Act. They also knew that after it began operation, they had an understanding with the Committee that even the Constitution's requirement for an annual audit should be dispensed with, and they never objected to this. (c) They knew that as organisations go, the Supporting Committee's structure was more flexible than an incorporated association, or indeed most voluntary organisations. It did not file tax returns, although it earned some income. It did not apply for an ABN in June 2000. They knew that, as "auditors", they were unpaid, untrained persons with no prior knowledge or experience of auditing. The purpose of their audit was not to prepare a tax return or report to any identified body other than itself (i.e. an internal audit). They knew its staff were volunteers or were receiving "allowances" that did not contain a PAYG or superannuation component. Its role was a "channelling" role. In other words, the Supporting Committee was not a "slush" fund, but close to being one. (d) They knew the persons responsible for keeping the accounts in this loosely organised association were first the seventh defendant, then Mr Sung Joo Sung, then the seventh defendant again, with financial controller Joo Yong Jo having authority to sign cheques and playing a supervisory role from December 1999 onwards. All of these people had prior experience as treasurers for the Korean Society or the Sports Council, and the fourth and fifth defendants knew this as well, because they were both members for their respective sports (basketball and judo) and because the fourth defendant was a full-time employee of the Korean Society. (e) They knew that at all times there was a paid bookkeeper. Miss Chae was the bookkeeper between late 1998 and April 2000; Miss Migi Lee replaced her and in August; Miss Sarah Yoo was appointed Head Official and took over doing the accounts. There was no period of time during which there was nobody appointed to be in charge of keeping the accounts, and the fourth and fifth defendants knew this. (f) Most importantly, they knew the Committee was run in accordance with Korean practices and for purposes related to complying with the wishes of the North and South Korean Governments concerning important changes of policy of these two countries towards each other, one of which would involve both countries' teams marching together under one flag for the first time since the Korean War fifty years beforehand. [186] The evidence for these findings comes from an examination of what the Committee was doing during its brief lifetime. What did the Supporting Committee do between May 1998 and November 2000? [187] The two main records kept by the Supporting Committee were the Minutes of Meeting ("the Minutes", Exhibit 51) and the Committee's Activities Diary ("the Activities Diary", Exhibit 52). The Minutes of meeting before October 1999 are not available, but it is clear from those Minutes that the Committee had been meeting regularly for some time; there are references in Expenditure Resolutions to committee meetings during 1998 and 1999 which were followed by a dinner, and in the matter complained of dated 1 March 2001, the fourth and fifth defendants refer to sighting "early" Minutes during their audit. [188] The Activities Diary is a detailed account of day-to-day activities which was kept by office staff. The handwriting in it is of more than one person. General director Ok Ja Park is referred to (in the third person) in some entries such as the 1 February 2000 entry, but on 4 February it is noted that Miss Chae was given $200 per week wages by the plaintiff (and see a similar reference to Miss Chae for 8 February). Miss Chae, Miss Migi Lee and Miss Sarah Yoo were successively employed for $200 a week by the Supporting Committee for the duration of the Committee's lifetime, and may have written in it as well as Mrs Park (there are a number of references to Miss Lee suggesting she was the author from April onwards as she refers to herself, and the style changes). Nothing turns on which of these persons was the author. In many ways this document presents a 'worm's eye view' of activities from the point of view of the office staff. There are about six stamps with signatures, showing this document was read and monitored by executive members. Of particular interest is the last page, which is not translated, but where a staff member has kept notes of office hours from 1 January to 31 August. This suggests the book is intended to cover the period 1 January 2000 onwards, in which case there may have been similar Activities Diaries for 1998 and 1999 which have not been produced. [189] The accuracy and legitimacy of the Activities Diary was challenged by the defendant's witnesses: (a) the seventh defendant on Day 54 (Daily Transcript 2211-2212, 19 June 2008); (b) the fourth defendant on Day 60 (Daily Transcript 2719 and 2724-2726, 31 March 2009); (c) the fifth defendant on Day 62 (Daily Transcript 2854, 2 April 2009); (d) Mr Dae Won Kang on Day 56 (Daily Transcript 2342-2343, 24 March 2009). [190] Some witnesses claimed that this whole document was a forgery (Mr Park on Day 60 (Daily Transcript 2719-2725, 31 March 2009), claiming there was another, genuine, Activities Diary in existence; the seventh defendant also made this claim (Daily Transcript 2212-2214, 19 June 2008, Day 54)). These claims of fraud receive no explanations in the defendants' submissions beyond the bald statement, in the introduction, that the contents of this document were challenged. [191] Mr Wheelhouse SC asserted during the trial that the plaintiff also claimed his signature in the Activities Diary had been forged (Daily Transcript 596 25 September 2007). However, at T 596 I noted that I did not know what documents he was referring to when he said his signature was forged, and asked his counsel to consider raising the matter in re-examination. The plaintiff was in a state of exhaustion at the time, and had just returned to court after I had adjourned because of his tired condition. [192] Mr Wheelhouse SC also drew to my attention the fact that the plaintiff said he did not know anything about the fourth and fifth defendants coming to carry out an administrative audit in August 2000, the inference being that he challenged this entry in the Activities Diary. However, the plaintiff did not challenge this entry. He just said he did not know about any such visit. I agree that this is significant, but not for the reasons submitted by Mr Wheelhouse SC. The administrative audit was prepared by the staff, and there was a lunch at which the seventh defendant, Mr Won Kang and others, not just the plaintiff, joined in. The fact that the plaintiff did not recall this is an indication that he left the conduct of the accounts to the bookkeepers and those who supervised them. More important is the subject matter of their audit, namely "matters of harmony and unity of the Korean society" (Exhibit 52 page 23) as well as support for the team and co-operation with SOCOG, which gives an understanding of what the audit was expected to cover. [193] The Supporting Committee also kept a correspondence register (see the 1 March 2001 matter complained of). The matter complained of dated 1 March 2001 refers to this correspondence as having been inspected by the fourth and fifth defendants. Some correspondence has accidentally come into evidence by reason of being attached to the Minutes or other documents, such as the plaintiff's letter to the Korean Traditional Arts Institute. The letter bears references to "document number" and "date enforced" and is not only signed by the plaintiff but has the official seal affixed (Exhibit 51 p. 25). In addition, there was an office computer on which business plans were made and kept, and documents relating to a website maintained by the Sub-committee from November 1999 (Exhibit 51). None of these documents are in evidence. [194] What should a trial judge do when witnesses and parties challenge the accuracy of contemporaneous records such as Minutes of Meeting and Activities Diary, or assert that documents that appear to have been in existence have not subsequently been produced? Where there is inconsistency between a document that is a business record and a witness' recollection almost a decade later, how should I deal with that inconsistency? Mr Wheelhouse submitted (Daily Transcript 3047, 7 April 2009, Day 65) that the witnesses, including the plaintiff, had challenged the authenticity of the Activities Diary and, by inference, that it was a document of little assistance. [195] As will become evident from the analysis of the Committee's activities set out below, the Activities Diary records, on a daily and chronological basis, routine events in the office, and the Minutes of Meeting record decisions and activities of the Committee in the same fashion. While the defendants and their witnesses challenged the accuracy of these documents in the witness box, the defendants cannot point to a single example of error in the entries giving rise to any doubt about the authenticity of the Minutes or Activities Diary. [196] An allegation that the two sets of documents which record the Committee's activities throughout its lifetime are forgeries or otherwise unreliable is a most serious matter. It is not a conclusion I would come to without the benefit of careful submissions identifying errors in these records warranting such findings. [197] When considering how to write this judgment and how to approach disputed issues of fact, I have had regard to two sources of assistance. The first is Ipp JA's advice in "Problems with Fact-finding" (accessible through the New South Wales Supreme Court's website at: http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906) concerning the greater evidentiary value of contemporaneous records, especially those kept by independent persons and which are business records or otherwise likely to be reliable. This is particularly the case in relation to the Minutes, which not only were sent out to the Committee members for approval each month, but where signed lists of persons attending give a clear picture of the roles of the various committee members. Where such contemporaneous records are contradicted by the oral testimony of witnesses, it is not necessary for each and every contradiction to be put to the witness for the reasons explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, supra. This is particularly the case where witnesses, when shown the contemporaneous records on one issue, have declared these to be a forgery. [198] The second source of assistance upon which I have drawn is a series of Court of Appeal judgments (e.g. Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; Whalan v Kogarah Municipal Council [2007] NSWCA 5, The Nominal Defendant v Kostic [2007] NSWCA 14) where the NSW Court of Appeal has urged trial judges to pay careful attention to the chronology of events and the accuracy of contemporaneous records as opposed to less accurate matters such as courtroom demeanour, and to analyse with precision the relevant timeline of fact. My role as trial judge is to evaluate the competing claims of the parties by examining the evidence in a careful and objective fashion. [199] Where documents that clearly did exist either no longer exist, or have not been produced, I have used my common sense. In the majority of cases, the explanation is that due to the long delays in the case documents have simply been lost. In a few cases, such as the interim auditors' reports, there may be other factors to consider. The Supporting Committee's history [200] It is by examining what the Committee was doing, according to its contemporaneous records, that I can arrive at a factually correct examination of the imputations concerning the plaintiff's alleged self-righteous behaviour and bringing shame on the Korean community. In many ways, these allegations are the key to the whole of the factual matrix. This is because the plaintiff was the president, not the treasurer, of this organisation, and for the period of time when donations were received and Olympic activities carried out, bookkeepers and financial directors were appointed. This was in fact confirmed by Mr Sung Joo Sung's evidence when he said "we had made an agreement that if there was any donations that female office worker should be writing it down and handled by her" (Daily Transcript 3075, 7 April 2009, Day 65). Consequently, for the imputations of misappropriation to survive, in circumstances where the plaintiff had delegated the task of bookkeeping to others, the plaintiff's personality is a key factor. Did his management of the Committee bring shame on the Korean community in Australia? Did he impede the working of the Committee, or cause distress to the staff, through his self-righteous and self-indulgent behaviour? Was he the person responsible for proper records not being kept? These are some of the imputations to which this history of the Supporting Committee, from its contemporaneous records, is relevant. [201] After requests from me for assistance with Korean names and dates for events in these proceedings, the parties supplied me with chronologies. The defendants' chronology notes the date the Activities Diary starts, but otherwise ignores its entries and does not mention the Minutes at all. Some of the dates are clearly wrong (for example, the defendants note October 1999 as the date Mr Sung Joo Sung stops keeping records in the Green Book). I have found these chronologies of limited assistance. May to December 1998 [202] After the establishment of the Supporting Committee, it was to be provided with office accommodation by the Korean Society "free of charge" according to Mr Park, who was then the secretary-general of the Korean Society: see Daily Transcript 1691, 28 May 2008, Day 43. [203] The plaintiff had to set up an office and buy equipment such as office supplies. In addition, there were organisations in other States of Australia set up for the Olympics; on 26 November the Committee spent $400 entertaining the Australian Organising Committee. In particular, the plaintiff had to appoint members of a Supporting Committee, and he had done so by 18 May, when he hosted a function for them (the invoice for $1,000 for this function was noted as "unjust" by the fourth and fifth defendants in their audit). It is not in dispute that he appointed the seventh defendant on 8 May 1998 and Mr Sung Joo Sung and the second defendant also seem to have been appointed at about this time. In addition, he attended the 79th National Sports Carnival in Korea between 24 September and 10 October 1998. [204] The plaintiff placed advertisements in the Korean newspapers announcing the establishment of the Committee, and the Constitution was published in the Korean Herald (Exhibits 1 and 2). These were paid advertisements. The Supporting Committee then started placing advertisements were placed in the three main Korean newspapers (the newspapers published by the first, second and third defendants); the first ones were placed in Sydney Korean Herald in May 1998 ($360) and August. Copies of these advertisements were not tendered, but later entries in the Activities Diary show the Committee put advertisements into the newspaper seeking homestay providers, Olympic torch bearers, drivers and volunteers. The Committee's projects for home stay arrangements, volunteer transportation during the games, volunteers for SOCOG, Korean unity functions kept the volunteers very busy. However, the Committee had no funds apart from the money the plaintiff donated himself, and obtaining donations and sponsorship from members of the Korean community at social functions and rallies, as well as Korean companies, was also a major activity. With a few exceptions, no discount rate for advertising was given to the Supporting Committee, and there does not appear to have been any publicity given to their activities either. The only article the second defendant points to, on the issue of lack of malice, is that the second defendant allowed the plaintiff to publish (as an advertisement) a revised list of donors to the Supporting Committee on 23 February 2001 (Exhibit 56). [205] The Committee received requests for funds from the sporting associations which had been instrumental in setting it up, such as the Judo Association (June 1998 - $500 – the fifth defendant was the president of this organisation), the Tennis Association (July 1998 - $400), the Soccer Association (September 1998 - $500), the Honam Fellowship Association, a Korean welfare group (November 1998 - $300) and the Kendo organisation (November 1998 - $500). These payments were all noted in the fourth and fifth defendants' reports as unjust. Expenses of $540 for an officials' meeting on 19 May were not challenged by the fourth and fifth defendants, nor were the 11 references to payments for "officials' meals" and for entertainment of officials over this period. The expense which was challenged by Mr Wheelhouse SC was the sum of $115.30 for entertaining a visiting Korean official (Ming Ji Kim) on the date of the plaintiff's election as chairman (Daily Transcript 160, Day 3). It was put to the plaintiff that this function did not take place. I consider it unlikely the South Korean government would not have had an official at such an important meeting, given the sensitivity of dealing with North Korea and I prefer the accuracy of the contemporaneous documents recording the costs of this function. [206] The seventh defendant was replaced by Mr Sung Joo Sung, who he described in his evidence as his "assistant" (Daily Transcript 2168, 17 June 2008, Day 53) in about November 1998 (Daily Transcript 769, 4 October 2007, Day 21). [207] Should the plaintiff have arranged for annual audits and opened a bank account? As to annual audits, it was the understanding of the fourth and fifth defendant that they would not be called upon to audit until the Olympic Games were over, notwithstanding provisions in the Constitution to the contrary. As to opening a bank account, it would not have been possible to open a bank account during 1998 unless it had an overdraft facility, something a bank was unlikely to grant to an unincorporated association with no income. Donations in 1998 amounted only to a few hundred dollars; the plaintiff was bankrolling the Committee over the whole of this period. January to December 1999 [208] In early 1999 the Committee set up its accounting system using Expenditure Resolutions, copied from the Expenditure Resolutions used by the Sports Council, and an accounts book kept by the bookkeeper Miss Chae (the first entry is 29 February 1999 according to Mr Sung Joo Sung's green book (Exhibit 27), the accounting record Miss Chae kept under his supervision). The first entry on 29 February ($65) relates to office supplies for the February 1999 monthly Committee meeting (for which no Minutes survive). There was a bookkeeper prior to Miss Chae whose bookkeeping Mr Sung Joo Sung considered inadequate but I can see no records of this. Mr Sung Joo Sung said he ripped out the pages written by this bookkeeper as a result. [209] Some time in February or March, the plaintiff's father died. He went to Korea to organise all of the funeral arrangements. March and April 1999 [210] The committee was advertising its homestay and volunteer projects in TOP ($350 on 16 March 1999, $1,000 for advertisements on 2 and 9 April). On 24 March there was a Supporting Committee meeting; Expenditure Resolution number 2 – 318 records a dinner function afterwards, costing $493. On 30 March Secretary-General Jo purchased a power line for the fax, white board cleaning oil (suggesting they kept a white board for planning purposes) and stationery. [211] The Supporting Committee held its inauguration in March at Belmore RSL ($878.10). This was a function for the Korean community which included the Song Min Sun dance troupe, a folklore group and master of ceremonies cost $600. [212] There were cash payments for office supplies such as stamps, stationery and other supplies from stationers and post offices, places where cheques are not accepted. Mr Sung Joo Sung's Green Book suggests the operation of a petty cash system. It seems likely that many office stationery expenses were simply not noted. [213] There are accounts for Mr Sung Joo Sung's phone $75.12, an APT phone bill $70 for phone connection (Expenditure Resolution 299) and a Telstra bill (overdue) for $139.75. Overheads for telephone and rent become a feature from April 1999 onwards. Although up to that time they had been permitted to occupy space in the Korean Society free of rent and to use the phone and fax (hence only overseas phone calls were paid for between May 1998 and April 1999) the Committee had to put the phone and fax on in April and start paying rent. The first rent payment starts on 8 April. If there was any written lease entered into by the Korean Society with the Supporting Committee, it was never tendered. It appears likely, given the disputes about the amount of rent the Korean Society wanted, that there never was a lease – another example of the informal way in which these organizations regulated their affairs. The fourth defendant, who was the Secretary-General of the Korean Society, gave evidence he wanted the Committee to pay $150 per week rent, not $50, and that he had an argument with Mr Sung Joo Sung about this (Exhibit 70). [214] During this first year of its life the Supporting Committee borrowed money from the Korean Sports Council to carry on its activities. The Committee and the Korean Sports Council also ran a number of functions jointly. For example, on 14 April the Sports Council and Supporting Committee held a joint meeting $229 and according to Expenditure Resolution 2-318 the expenses were equally shared, with the Supporting Committee paying $229. The same was the case with the 25 April Board meeting, the costs of which, according to Expenditure Resolution 2-318 were equally shared. On 27 April, expenses were jointly shared with the Korean Athletic association Vice President Park (Expenditure Resolution 2-318, $884). This pattern in fact continued throughout the whole of its life, if the contemporaneous records are to be accepted. I should note, however, the evidence of all of the defendants' witnesses was that there was no connection whatsoever between these bodies, notwithstanding the aims of the Constitution, the lending of money to the Committee, the weekly joint meetings between the Committee and the Sports Council, the joint sharing of expenses and the joint participation of members of both bodies in sport-related activities. May 1999 [215] The religious organisations' workers had a BBQ on or about 17 May for 26 people for $390, according to Expenditure Resolution 2 – 319. There was a monthly meeting on 28 May, followed by a dinner at Samwon Gardens. The Minutes for this meeting, as is the case with other meetings during 1999, have not been tendered. The Supporting Committee was still paying rent of $50 per week, according to Expenditure Resolution 2 – 320 (for $450). June 1999 [216] The Supporting Committee participated in a Veteran's Association "commemorative evening", drawing a cheque for $500 and making a donation of $250 that same day. There is no corroboration of this being a donation apart from the cheque butt. Resolution 4 described this as a Korean War Commemorative event. The plaintiff was cross-examined at length about these payments (Daily Transcript 926-929, 8 October 2007, Day 23; and Daily Transcript 930-931, 9 October 2007, Day 24) on the basis they were not Supporting Committee functions but opportunities for him to make himself important. On 26 June the Supporting Committee contributed $259 to a Korean Veterans Association event support, according to Expenditure Resolution 2 – 332 and the plaintiff (using his company funds as the Supporting Committee had no assets) made a donation towards the Remembrance Day commemorative activities. [217] Some of the most bitterly fought claims, in both the matters complained of and the cross-examination of the plaintiff, were the defendants' assertion being that Korean veterans' affairs had nothing to do with the Olympics and that these activities were outside the purposes of the Supporting Committee. [218] On 26 June $200 (Expenditure Resolution 2 – 331) was spent in relation to attendance at a Sports Council officials meeting, one of many expenses the fourth and fifth defendants asset was unjust (similar assertions were made concerning bills for telephone calls to Korea at this time). Social functions included a function for volunteers on 17 June; Expenditure Resolution 2-329 records a payment for volunteers' meals. July 1999 [219] In July 1999 the Supporting Committee bought a computer. On 4 July a dinner for the badminton team was held at the second defendant's charcoal restaurant (the cost was $293). Although there is no receipt for this, the auditors did not place the usual note that evidence is required. [220] Financing the Supporting Committee was a matter that appears to have been a preoccupation. On 6 July the Supporting Committee held a meeting about fundraising, according to Expenditure Resolution 2-335. On 16 July 1999 there was another joint function for the Sports Council and Supporting Committee; the Expenditure Resolution notes that "Mr Dae Won Kang holds the receipt". There was a monthly meeting in July as well, according to Expenditure Resolution 2– 328. August 1999 [221] As a result of the change of heart (or leadership) of the Korean Society, the Supporting Committee was obliged to move to new premises. On 20 August office rent for 2 weeks $800 was paid, according to Expenditure Resolution 2-342. The plaintiff's company, CFM, was reimbursed for office relocation expenses (Expenditure Resolution 7); the fourth and fifth defendants complain there was no supporting documentation. The Supporting Committee also set up a cheque account with the plaintiff, Mr Sung Joo Sung and Vice-President Paek as signatories (Exhibits 16, 17 and 26). [222] On 9 August the volleyball team obtained wine from Sydney Duty Free ($313.20). The words "not paid" appear on Expenditure Resolution 2 – 340. The seventh defendant was the volleyball representative on the Supporting Committee and called on the Committee to support the volleyball team, according to the Activities Diary entry for February 2000 set out below. [223] On 15 August visiting Korean Sports Council officials were taken to dinner at Shinchon restaurant ($280). The fourth and fifth defendants note this expenditure was "unfounded". On 18 August there was a board meeting, followed by dinner at Seionghoigwan Again, no Minutes are available. On 19 August $200 was donated to the Tennis Association and on 21 August $300 for baseball, expenses the fourth and fifth defendant considered unfounded. September 1999 [224] On 1 September an Expenditure Resolution records expenses for a dinner with SOCOG officials concerning the Paralympics. There are many claims for office supplies, all prepared by Mr Sung Joo Sung and authorized by him only. All of the Expenditure Resolutions for September are prepared and authorized by Mr Sung Joo Sung. The fourth and fifth defendants have put "evidence required" besides payments of office rent. October 1999 [225] More information is available for the activities of the Committee from October 1999 onwards because this is the period for which there are Minutes reflecting the Committee's activities. Although there are no Minutes for the October committee meeting, it is likely that these existed, as there are references to matters carried forward as well as October activities in the Minutes of meeting and agenda for the November 4 meeting. [226] The Committee received a request from two senior citizens' groups, the Chunghyo Senior Citizens and Korean Senior Citizens, to organise a visit to the Olympic Stadium. There was correspondence with the Sydney Organising Committee for the Olympic Games ("SOCOG"), the Departments of Immigration and Multicultural Affairs and a body building association about the Korean team's programme (there is a note that 10 bottles of wine costing $200 were presented). The Committee was requesting an invoice from SOCOG's Badminton Association for some advertisements that had been placed. No such advertisement or invoice is extant and suggest that there may have been invoices sought and/or obtained where the invoices are now not available for inspection. [227] One of the sub-committees was working on the Internet homepage, which had a deadline of November 1. We know that this homepage met the deadline because there is a reference to it in the November Minutes. An operational report was prepared for the November 1999 Minutes. [228] Between 7 and 23 October 1999 the plaintiff travelled to Korea in his capacity as president of the Sports Council. On 5 October 1999 a $500 donation from the Korea War Veterans was sent and the plaintiff was accused of misappropriating it (Daily Transcript 925, 8 October 2007, Day 23). [229] During the time that the plaintiff was overseas, Vice-President Paek made a loan of $10,000 to the committee. Mr Sung Joo Sung placed this sum in his own National Bank account. The plaintiff's evidence was that he confronted Mr Sung Joo Sung about this on his return; Mr Sung Joo Sung's explanations are set out in more detail in the section on his evidence below. The purpose of this chronology is, however, to set out only those facts for which there is contemporaneous evidence from the Activities Diary, the Minutes and the Expenditure Resolutions, and not from evidence. Accordingly matters disputed in the evidence are not dealt with. November 1999 [230] There are Minutes available from November 1999. Five matters were added to the agenda for the 4 November Committee meeting, including "discussion of the unity of the executive". It is from reading the Minutes of these meetings that one comes to have a fuller appreciation not only of what the Committee was doing but how they were doing it. These meetings usually opened with a minute's silence for the fallen and always with the South Korean national anthem. They show the Committee's extensive activities including homestay, accommodation, cheer leading, meeting foreign visitors and media and providing information on the website and in paid advertisements in the first to third defendants' newspapers. [231] If the plaintiff was arrogant and self-righteous, some clue or evidence might come from these Minutes to support it. Neither the second nor fourth defendants refer to any incident in the Minutes, although they cover the most active period of the Supporting Committee, namely November 1999 - August 2000. [232] There is an entry at the beginning of the November 1999 Minutes which shows the plaintiff raising the question of "provision of meals for sub-committee meetings". There were six sub-committees: the Cheer Squad Sub-Committee (chair Dong Soo Kim), Mobilisation Sub-Committee, Vehicles Sub-Committee (chair Seung Hyun Choi), the Women's Sub-Committee (chair Yoon Ok Han) and two others. All of these persons were listed as receiving the Minutes, and clearly some issue had been raised in relation to provision of meals for the cheer squad members after practising. Some of the meals the fourth and fifth defendants object to may well be these meals. [233] None of the defendants referred in their statements or evidence to activities of the Supporting Committee such as the provision of home stay and transport or to the committees responsible for these, although the Minutes and Activities Diary show these were the Committee's main preoccupation. I asked Mr Park if he knew anything about these arrangements (Daily Transcript 3011, 6 April 2009, Day 64) but he did not. If the auditors were concerned about why so much was spent on meals, they had potential explanations available to them because they were given the Minutes of Meeting when the fourth defendant visited the offices of the Supporting Committee in February and September, and again in December 2000 by the plaintiff. In addition, the Committee advertised its activities, including home stay arrangements, on a regular basis in the three Korean newspapers which published the matters complained of. December 1999 [234] On 1 December 1999 a meeting of the Supporting Committee and Sports Council was held. There was discussion about unity between the two during the meeting. According to the Minutes for the rest of the Committee's life, officials meetings always included the executives of both organisations. Mr Joo Yong Jo was elected financial director. Mr Dae Won Kang was appointed organisation subcommittee chairman. [235] Mr Sung Joo Sung's green book notes expenses of $2000 were incurred for Korea Day. $5,000 was deposited by the second defendant as the president of the Korean Society. The last entry for his green book is dated 21 December. January 2000 [236] The monthly meeting was held on 6 January. Attached to the Minutes is an organisation chart setting out the members of the Committee in descending order of importance. The first person on the list is the second defendant, Jae Kyung Lee. The second and third places are the "Advisory Group" and "Advisory Committee". The plaintiff is in fourth place, followed by the three vice-Chairmen and, in eighth place, the fourth and fifth defendants. [237] I showed this to Mr Sung Joo Sung while he was in the witness box (Day Transcript 3049 lines 30-44, 7 April 2009, Day 65). He said it was not different from the original organisational chart prior to that time. There is no evidence as to who the "Advisory Group" and "Advisory Committee" are. It was not put to the plaintiff that these were just other names for him; the defendants never referred to this document. Since the plaintiff's name appears in fourth position, and these are references to a group of people, the likely explanation is that other persons had an input into the Supporting Committee's activities such as the Korean consul (who played a very active role in Committee activities during 2000) and senior members of the Korean community in Australia. [238] There are a number of entries which refer to the role that the Korean Society played. For example, the fourth defendant contacted the Supporting Committee office on 31 August wanting a information about the Committee's activities. While it is possible that this could have related in part to his auditing duties, the likelihood is that the Korean Society (of which the second defendant was president) was closely monitoring the Committee's functions. The Committee had operated out of its premises for a while and was also involved in fundraising activities for the Korean Society such as the Damyang Bamboo Handicrafts Exhibition (3 - 6 February 2000) which was being held to raise funds for the construction of a Korean Society Hall, according to the Activities Diary entry for 27 January. When the Supporting Committee activities finished after the fourth and fifth defendant's audit, they recommended all documents and fittings be given to the Korean Society, according to the matters complained of. [239] The officers of the Supporting Committee had a special meeting on 14 January where they were briefed by Young Boon Kim, the general manager of the Sports Council, on the work to be carried out and this was followed the next day by a special meeting of the Planning Committee. [240] The Activities Diary starts from 15 January 2000. It is unclear whether this diary was only kept from 15 January, or whether there was an earlier Activities Diary which has since been lost. Mr Lee referred in his evidence to checking the Activities Diary for events during 1999 (Daily Transcript 2927, 3 April 2009, Day 63). Mr Cha said a volunteer, Miss Oh Ja Park, was employed to keep a diary for the committee (Daily Transcript 590, 25 September 2007, Day 18). The 2000 Activities Diary begins with a reference to "first day at work" but this may have been the first day back after the Christmas break; there are entries on the back page (untranslated) going back to 1 January 2000. The Diary ends on 6 November (Daily Transcript 2232, 19 June 2008, Day 54; paragraph 21 of the seventh defendant's Affidavit). The Activities Diary and Minutes give a clear picture of these regular weekly meetings between the Supporting Committee and the Sports Council, such as the meeting at 7 p.m. on 22 January (Exhibit 52, p.3). [241] On 28 January 2000 account no. 706295 was opened at Community First with $2 cash. The plaintiff's explanation for opening this second account was that Mr Sung Joo Sung had retained the cheque book for the other account; Mr Sung Joo Sung denied this. [242] On 30 January there was a briefing for the visiting Vice Chairman of the Sports Council of Korea, Mr Sang Ha Park (this was his position according to Mr Sung Joo Sung, Daily Transcript 3067, 7 April 2009), and 21 members of the Committee had an informal gathering for discussion. These expenses were all challenged by the fourth and fifth defendants on the basis that they do not relate to the Olympics. February 2000 [243] On 1 February a request for home stay accommodation and vehicles for 20 officials from the Gymnastics Association was received. Minutes were drawn up of the informal gathering the Committee had on 30 January were prepared for discussion with Mr Sang Ha Park, and a group of officials treated him (and also Pastor Kwang Soo Lee) to dinner before he headed off to the airport. It was not put to the plaintiff that Mr Park had nothing to do with the Olympics, but objections to these expenses were noted in the audit. [244] The regular weekly meeting between the Supporting Committee and Korean Sports Council took place at the Supporting Committee office between 7.40 – 9.50 pm on 3 February. On 4 February Minutes for this meeting were prepared. Miss Chae records that $200 received from the plaintiff was given to her for her wage for that week. The seventh defendant paid a visit. This is one of many records of visits made by the seventh defendant appearing in the Activities Diary. The seventh defendant denies all of them and says the Activities Book is a forgery (Daily Transcript 2211-2212, 19 June 2008, Day 54). [245] On 8 February Miss Chae records she is given $100 by Vice Chairman Paek for prepayment for the water purifier, which was approved by the Committee members in the weekly meeting of 3 February. Those Minutes were not produced, although the Activities Diary records (4 February) they were prepared. [246] The seventh defendant, described as "Planning Official Hak Soo Cho" is back in the office on 8 February 2000, making plans for the "Olympic Countdown Day 200 events" and also going out to lunch with Miss Chae and others to help Mr Sang Gi Kim celebrate getting a hole-in-one. He was back again on 15 February "revising the rally for Olympic Supporting Committee" to be held on 18 March, and on 17 February came in for a visit in company with financial director Joo Yong Jo, a man he said in evidence he did not know, claiming also there was no financial director at the time (Daily Transcript 2173, 17 June 2008, Day 53). The seventh defendant must have been a very regular visitor since the Activities Diary records that on 29 February an office desk was arranged for him. [247] The many other activities in February include dealing with inquiries from Chunghyo Senior citizens wanting to visit the stadium, notifying the Olympic Roads & Transport Authority of volunteer driver details, receiving inquiries from the sports magazine Chosunilbo, receiving a receipt for a dinner from the financial director Joo Yong Jo and writing out the Minutes. [248] "Vice Chairman" Mr Sung Joo Sung attended a dinner with Sang Ha Park on 1 February, he also came in on 14 February to pass on cash and a list of presents he had been given on 25 January as well as 100 Olympic volunteer forms. Mr Sung Joo Sung denied in evidence that he made these visits and said the Activities Diary was a forgery (Daily Transcript 3100, 7 April 2009, Day 65). March 2000 [249] On 1 March the staff faxed the editor in chief of the third defendant, Mr Kim, information "on the present state of the Committee operation and future events and plans". It was a busy day for Miss Chae; she posted 18 letters notifying the March regular monthly meeting, she asked international director Gyu Bum Choi to translate 12 volunteer application forms and the list of the executives of the Supporting Committee to send to SOCOG. In the middle of all this, planning official Byeong Hee Won came by to offer to paint the office, and it was decided that this would be done after work the following week. [250] On 2 March the staff drew up the Minutes of Meeting of the regular weekly meeting of the Committee members of the Supporting Committee and Sports Council (these minutes were not tendered). Mr Cha rang from Korea to ask that an invitation letter be sent to Mr Gi Sool Kim (president of Seoul Olympics International Service Society) for the Supporting Committee special function on 18 March. The seventh defendant answered a telephone inquiry from the Sports Council of Korea. [251] On 6 March the staff posted 14 notices of a joint meeting and answered a request made by the fourth defendant in his capacity as secretary-general of the Korean Society, by providing him with (1) 20 promotional booklets (2) a copy of "committee business information" (3) a copy of the list of committee officials and (4) a copy of the list of planning officials. "Vice Chairman" Sung Joo Sung also paid a visit. After the office was shut, the office painting started. [252] On 7 March Vice Chairman Nak Yoon Paek telephoned the general manager of Belmore RSL, Mr Tony Ghosn, to introduce Professor Hyung Hee Lee to him. The professor had something to do with the "Victory Chorus". As sub-committee chairman Mr Dae Won Kang's father-in-law had died, committee members, including Vice Chairman Sung Joo Sung, participated in sending greetings and Miss Chae organised a funeral wreath. This expense is challenged as there is no receipt. [253] There was a March regular executive meeting on 9 March (which was attended by the seventh defendant, Mr Cho as "special planning" officer) as well as a meeting of the Supporting Committee Executive and Special Planning Officials. Mr Cha gave a report from his "official trip to Seoul" according to the Minutes (Exhibit 51 p. 47) talking about his discussions with the Ministry of Culture and Tourism about the cheer squad support, but wanting to scale down the business plan as the cheer squad's request for $.43 million won was unreasonable. This "official trip to Seoul" is the one referred to in imputation 41(b), where the auditors suspected the plaintiff was making a false claim for business expenses of $9,121.40 as there is no evidence that this trip was a business trip rather than a private trip. The Committee agreed that the business plan would be redrawn by the executive; Jang Wan Goo suggested all meeting data and business plans be put on the computer. (None of these business plans or computer records have been produced). The Activities Diary notes that after the 15 March meeting finished at 9 pm, the Committee had dinner at Samwon Gardens and also, rather touchingly, noted that planning official Tae Ho Choi donated a box of ball point pens to the office. [254] Some idea of the amount of work the Committee was getting through can be gleaned from the reports of the Sub-committees. For example, chairman Duk Im Kim reported 121 volunteer applications were sent to SOCOG, and the Women's sub-Committee reported that of these applications, 55 were filled in by the applicants themselves while others required assistance or other work by the Committee. SBS' business operations manager, Jin Sup Moon, had been in touch, wanting 20 voluntary broadcast-related workers and Chunghyo Senior Citizens Association had also volunteered to provide services; wives of officials of both the Supporting Committee and the Sports Council were encouraged to provide voluntary services, another example of the close relationship between these two organisations. Supports were particularly wanted for meals and drinks for the cheer squad. One of the volunteers was the second defendant, who promised to offer free dinner at the Aseowon "after the meeting from next time" (Exhibit 51 p. 40). One of the particulars of justification is that too much was spent on meals for these volunteers. Entries such as this help to put such matters in context. [255] On the day before the meeting, 14 March, Miss Chae was struggling with problems for the cheer squad – their cheering was setting off the neighbourhood burglar alarms, according to Mr Dong Soo Kim's neighbours. However, the main topic at the 15 March regular meeting of the Sports Council and the Supporting Committee was their 18 March function. There is reference to a list of prizes and garlands (no longer, alas, attached to the Minutes) and confirmation that around 80 people from the Sports Council would attend. [256] Mr Gi Sool Kim, president of the Seoul Olympics Volunteers Association in Korea, arrived at the airport on 18 March. He was a guest of honour at the function that evening. The plaintiff had lunch with him. The social function started at 7.30 and there is a note that the office key was returned to the plaintiff. According to the Activities Diary there was also a function on 19 March for which flower arrangements were delivered. [257] On page 12 of the Activities Diary, and on a number of other pages elsewhere, appears the note "signed by General Director and chairman". I infer that the plaintiff regularly read the Activities Diary and signed it, and that another director would co-sign. [258] On 20 March the author of the Activities Diary notes she worked for 7 hours and notes she was checking the event of 18 March and drawing up the 15 March Minutes. There is a schedule at the back of the Activities Diary (not translated) setting out the hours worked by one of these volunteers for the period 1 January to October, with salary sums, but these hours do not reconcile with the activities recorded in the diary after July, so I do not know which volunteer it is. [259] On 27 March Mr Sung Joo Sung and the seventh defendant both visited; the seventh defendant was preparing an "official" document for shooters' accommodation for the Sports Council of Korea in Seoul. [260] The 23 March entry is the only entry which is out of order. Miss Chae records, after the 27 March entry, that on 23 March she took president Gi Sool Kim and his entourage to the Blue Mountains for the day, a trip of 11 hours. In the evening they went to the opening ceremony of the second defendant's charcoal barbecue restaurant at Parramatta before taking them to the airport after dinner. There is no suggestion that the second defendant paid for this meal. [261] The next entry is 29 March. The staff is busy preparing for the Committee meeting the next day. The seventh defendant visits the office to explain he cannot attend this meeting. In the evening there is a meeting with the "new secretary-general and computer team manager and an informal gathering for discussions" for 9 people. This new member is replacing Mr Sung Joo Sung, who appears from these records to have ceased to have anything to do with the Committee from this date. Mr Sung Joo Sung said in his evidence that he ceased having anything to do with the Committee at the end of November, but he agreed he "dropped into the office on a couple of occasion to do something" thereafter (Daily Transcript 3106, 7 April 2009, Day 65). The seventh defendant continued to come; his next visit was on the following day. [262] On 30 March the staff prepared a report for the new secretary-general (not produced in evidence) and continued her quest for an alternative venue for the cheer squad at two of the local churches (the Uniting Church and the Cheil Church). She ordered dinner for 13 people ($5 each) from Belmore Pericanna. The chairman and general director signed this entry. April 2000 [263] On 3 April the finance director Mr Joo Yong Jo came to the office. The staff sent out letters to everyone for the April monthly meeting with the new general director of the Sports Council, Mr Son Soon Lee, as well as the executives of the Supporting Committee and the Sports Council for another of their joint meetings. Belmore RSL sent a fax concerning those present at a social event (there were 149 people). [264] On 5 April Vice Chairman Mr Hee Mang Yang rang asking for the finance director's (Mr Joo Yong Jo) mobile number. Mr Sang Ji Kim advised that Messrs Sung Joo Sung and Myung Ho Ha were removed from the list of officials. This entry shows that the staff were careful to note changes to the officials list, and means that the Activities Diary is of assistance when considering what changes occurred to officials. The staff's job was, as the entry for 6 April shows, to make confirmation calls about meetings to every sub-committee chairman, and the staff member writing the Activities Diary notes, for example, that she replaced the liaison director with ex-national soccer player Mr Pan Geun Kim on that day. The Minutes show that this was because the liaison director resigned for health reasons (Exhibit 51, page 37). [265] 6 April was a busy day as the regular monthly meeting of the officials for the Supporting Committee and Sports Council occurred. The plaintiff introduced the new secretary-general, Mr Ik Hee Kim, who was taking over from Mr Sung Joo Sung, the computing team director Mr Myung Sung Park and head official Miss Migi Lee, who was the new paid "Head Official", a term later used by Miss Yoo. She carried out the same duties as Miss Chae, so she was a clerical assistant, typist and bookkeeper. [266] The meeting opened with the plaintiff reminding everyone that the opening day for the Olympics was 181 days away. There was discussion of a revised structure and the meeting unanimously agreed to leave this to the plaintiff. The date for the monthly meeting was changed to 6.30 on the first Tuesday of the month. The Committee settled down to solve the cheerleading problems; a new venue had been found, and they wanted to buy equipment such as an amplifier as well as improve their English. Further details were set out in a report which is referred to in the Minutes as attached, but is not included. A note that the second defendant provided dinner at Aseowon appears at the end of the Minutes. [267] On 7 April there the plaintiff and five other committee members had a meeting with Jinro officials at the office. The plaintiff's inclusion of other committee members is a regular feature of such meetings. On 10 April there were more visitors and two more people volunteered for the cheer squad. On 14 April official Bong Joo Kim, the new secretary-general Mr Ik Hee Kim and the financial director, Mr Joo Yong Jo, had a meeting with the plaintiff. [268] On 21 April the Korean Newspaper, the third defendant, published an interview with Jae Il Jo, Sydney Olympics Korean Classical Music Cheer Squad Director. The cheer squad director brought this article to the meeting on 22 April. The cheer squad leader wanted to correct the title of the article and requested that newspaper advertisements should be put in by the Committee to do this. This article does not refer at all to the Supporting Committee. [269] One of the curious aspects of this case is how little publicity was given to the activities of the Supporting Committee by the three main Sydney Korean newspapers who are the defendants in this litigation. The Activities Diary carefully notes approaches by the media, and there was clearly a lot of interest by Korean media and Australian media such as SBS. There seems to have been little interest in reporting the Supporting Committee's functions or activities; the Committee was obliged to insert paid advertisements at full rates in relation to requests for volunteers and home stays. The fourth and fifth defendants in evidence challenged these advertisements as unnecessary. The "auditors" made up their own minds about matters such as that the Committee did not need to advertise homestay or have an entry in the White Pages. They never asked the plaintiff about these matters: "A. INTERPRETER: As far as I remember, I don't think there was any need to advertise for - on behalf of Sports Council. I was aware that the committee had made advertisement on number of occasions. … Q. But you were talking about advertisements for accommodation. A. INTERPRETER: As I said, I didn't verify myself the telephone book but there was something about private accommodation and the others, but if Mr Cha came to our request and checked with us and I was able to verify, this wouldn't be a problem today. Q. Did you speak to Mr Cha about this advertisement in the 2000 telephone directory and the expenditure of $890? A. INTERPRETER: That's why I requested a meeting to Mr Cha because I wanted to discuss with him. Q. Did you speak to Mr Cha about the advertisement in the 2000 telephone directory and the $890? Yes or no? A. WITNESS: No. Q. Did you make a list of all your complaints and queries concerning the spending of the Supporting Committee and send that list to Mr Cha for an explanation? A. INTERPRETER: No, I didn't." (Daily Transcript 2944, 3 April 2009, Day 63) [270] The 22 April meeting between the Sports Council and Supporting Committee officials went through a great deal of business, including home stay plans for Samsung officials, SOCOG negotiations for field training team tickets, noting the need for the International Department to keep cheer and activities photo records and the plaintiff reporting a second meeting with the consul. The plaintiff noted that as the Committee had been "inundated" with requests for support from cheer squads in Korea all these matters should be "channelled through the Committee given its objectives" (Exhibit 51 page 30). Financial director Mr Joo Yong Jo suggested that future meetings should be attended only by necessary officials of the sub-committees concerned. The second defendant in written submissions points to this as evidence that Mr Joo Yong Jo's role in the Committee was sporadic and limited. [271] On 26 April the Activities Diary notes confirmation calls to officials to make a list of advisors. On 27 April the staff were "remaking" this and confirming its contents by phone with officials. This is an indication of how important it was for there to be an accurate list of officials. A staff member also visited Aseowon restaurant in relation to an outstanding account. May 2000 [272] The red accounts book (exhibit 5) commences for this period. [273] The seventh defendant is in the office on 2 May. Staff were busy preparing for the monthly May officials meeting, which began at 6.35 and was attended by 29 people (although the Minutes note 21 attended). The Minutes of the previous meeting of officials from the Supporting Committee and Sports Council were presented by another office assistant, Miss Oh Ja Park. (This is the Mrs Park to whom the plaintiff was alleged to have been rude by using the word "ya", which is equivalent to the French "tu" instead of "vous", and the Mrs Park whose name appears on the front cover of the book). [274] The plaintiff started by praising the person in charge of each section for his/her efforts, but reminding them to be punctual. He also instructed that copies of the Minutes of the previous monthly meeting be handed out, introduced Vice Chairman Young Soo Song and organising committee Vice Chairman Yoon Chang Jo. [275] Mr Joo Yong Jo, the financial director of both the Korean Sports Council and the Supporting Committee, was absent due to health reasons, and his report was made by Secretary-General Ik Hee Kim instead. The April financial statement is presented by him. That document is not in the Minutes. As discussed elsewhere in this judgment, an April financial statement appears in the Expenditure Resolutions folder, and Mr Sung Joo Sung in his statement (Exhibit 72 paragraph 20) claims authorship. This would appear to be inconsistent with the Minutes. [276] The home stay operation being undertaken by KOL Austwide Realty was discussed at length. The committee had interviewed around 80 families and received 51 inquiries. The problem was that only 6 of the home stay families met the requirements. Advertisements were to be placed in TOP and Hojudonga for private accommodation and "close inspections" of the homes carried out. Miss Lee was put in charge of handling this and it was noted that they needed someone who could manage the operation on weekends. [277] Other items on the busy agenda included welcoming the Korean team, the cheer squad being filmed by KBS, a report on mobilisation and a report from the plaintiff on sponsors; he was hoping for some "settlements" and would present a report as soon as there was an outcome. The meeting closed with a prayer from the Rev Suk Jin Choi. [278] Staff were in the office arranging documents on 8 May and on 12 May noted a special committee meeting at the office attended by the plaintiff, financial director Jo and others which looks like the regular meeting between the Sports Council and the Supporting Committee. The newspaper Hojudonga called, wanting Mr Dae Won Kang's telephone number. The Minutes of this meeting, which was attended by the plaintiff, Finance Director Jo and four other committee members, are at Exhibit 51 page 26 and related mainly to ticket purchase. Vice Chairman Joo suggested a letter to the press and the Korean Journalists' Association to ask them to allocate a page for SOCOG information. If such information was provided then the defendants would have been aware of the activities of the Committee in this regard. However, there is no evidence any of the defendants wrote any articles about the Supporting Committee save for the article about the donation by Mrs Kim which Mr Dae Won Kang was able to organise. [279] Miss Migi Lee was absent due to academic graduation around 17 May and the Activities Diary was filled in the morning by the Supporting Committee general director and in the afternoon by the Sports Council general director. Miss Migi Lee left a mobile phone number with them. This tends to suggest that the Activities Diary was not kept by Mrs Park at all times, as the front cover suggests, but by others such as Miss Lee. [280] On 26 May there was a meeting in the evening between Sports Council and Supporting Committee officials. Vice Chairman Song asked about the general financial supports at the time of the establishment of the Supporting Committee" (Exhibit 51, page 22). There was discussion of the Committee's organisational chart which is set out in full above; this chart was to be put before the Committee at the 6 June meeting. [281] A letter was sent to the Korean Traditional Arts Research Institute on 31 May thanking them for their offer of a performance but saying that "due to financial restrictions" the Committee could not provide assistance. June 2000 [282] From June onwards the Korean consul, Mr Ho Joo Moon, is an active participant in committee activities. He had a three hour meeting on 6 June, which was the day of the Committee meeting. No Minutes of this meeting have been tendered, but Minutes of a "2nd meeting" on 14 June appear at pages 13 – 15 of Exhibit 51. [283] At the Committee meeting the May financial statement for the Supporting Committee and for the Sports Council was presented by financial director Joo Yong Jo, who held this position in each organisation; these are attached to the Minutes. The other document which was put forward (apart from the Minutes of the previous meeting) was the organisational chart. [284] The Minutes note criticism by the plaintiff of Dong Soo Kim for making plans for the cheer squad and for PR and it was noted these matters needed to be discussed after a SOCOG meeting on 15 June. Dae Won Kang said these reproaches should be addressed to him, as he had given these instructions. Mr Dae Won Kang gave evidence in these proceedings but did not refer to this incident as being an occasion when the plaintiff was impeding the Committee, or being self-righteous. Whatever the rights and wrongs of the dispute, it would appear that if there were disputes during the meeting, they were resolved in the meeting and also minuted. MBC videotaped this meeting. [285] A significant issue raised in the Minutes is the reference to "fund-raising ads by the Committee" in "community newspapers". That must be a reference to some or all of the four newspapers who are the defendants in these proceedings as they have been identified as the four Korean language newspapers in Sydney by witnesses in these proceedings (Daily Transcript 1477 – 1478, 20 May 2008, Day 39). [286] Mr Moon gave a great deal of advice to the Committee members in the 14 June meeting. This ranged from reducing the numbers in the cheer squad to pointing out that they had not taken into account meals and vehicles for the cheer squad to advising that the Korean government would not subsidise the purchase of tickets. He particularly advised that it was "unnecessary to welcome the team on their arrival at the airport" but that "if really necessary, chairman Cha and consul Moon would meet them". The defendants assert that by not being at the airport to meet the Paralympics team (the plaintiff arranged for other committee members to attend), the plaintiff brought shame on the Korean community in Australia. They had lunch at Shilla afterwards. July 2000 [287] The Committee was particularly busy in July, with lengthy meetings on 16, 21 and 28 July. Financial director Jo and the general director of the Sports Council, Mr Soon Son Lee, came to the office on 6 July. The 16 July meeting with SK securities director Young Sik Kim and chief Ji Young Kim is set out in more detail elsewhere in this judgment. Regrettably the Minutes of this two-hour meeting, which Miss Lee spent over four hours drawing up on 17 July, have not been tendered. However, there is a list of expenditure approved behind the expenditure resolutions which gives some idea of what was agreed to. [288] On 12 July Miss Lee notes she is preparing envelopes and making a list of those invited to the Supporting Committee night scheduled for late July, and that she acted as translator for an interview with the plaintiff and advisor Sang Ji Kim by the Japanese newspapers. Mr Ji Hwan Kim of the Korean Herald (the third defendant) called asking about the position of official Kyung Gyu Lee. Before going on holidays for two days (and putting her mobile number in the Activities Diary for others she buys stamps to send letters to 410 expatriates asking for donations and has a receipt for these stamps "verified by the chairman" (page 19). [289] While Miss Lee is away, another staff member forwards correspondence about the Committee website to the plaintiff and notes the "schedule of vice president Young Suk Kim" in a 6-page fax he has sent from SK Securities. The SK Securities Chief calls on 21 July and there are calls and interviews from Incheon newspaper and Kyungin Broadcasting producer Goo Ik Jung. [290] The meeting of 21 July deals with issues of great relevance to this litigation: (a) the SK Securities donation. There is an inquiry from Mr Dae Won Kang "about the conditions of the donation of the sum". There is reference to the SK Securities night on 31 July being expected to cost $20,000, and in addition to expenses of another "event" there are golf fees. There is also a reference to "installing as honorary chairman" but it is not clear who this is referring to; it could be the second defendant or it could be a reference to some other person being installed. There are to be plaques of thanks to the SK directors. (b) Mr Dae Won Kang gives a report concerning the cheer leaders. He is described as "organising committee chairman". This is relevant to imputation 42(d). In his evidence he denied this role, saying this was another person, and that this person received the balance of the cash from the Uniting Church. (c) There was discussion of dismissing sub-committee chairman Mr Dong Soo Kim, who had been the subject of debate at the June meeting. The Minutes note that "a discussion resulted in its rejection" and "the matter was to be resolved according to the outcome of the chairman". The next entry in the Minutes quotes Mr Dae Won Kang and the Vice Chairman urging that "every [meeting] attendant should express their opinion during the proceedings." [291] Nothing was said during the trial about Mr Dong Soo Kim being treated badly by the plaintiff. What these Minutes show is that there was a problem, it was resolved democratically in discussion, that the Committee decided to leave the issue to be resolved by the plaintiff, and that Mr Dae Won Kang urged everyone to express their opinions. This does not suggest conduct capable of impeding the Committee, or acting in a self-righteous fashion. [292] The Minutes of 28 July are one of the few surviving Minutes for the joint meetings of the Sports Council and Supporting Committee. The plaintiff is quoted as saying there have been "bottlenecks" and asking for more support. The Sports Council Secretary General notes there will be a welcome at the airport for the team and a congratulatory party for medallists. [293] The defendants point to the handing over of a $200 donation to the plaintiff from Wangdaepo and say he misappropriated this sum as this donation is not recorded. [294] On 31 July the first defendant telephoned requesting "the list of the Supporting Committee and Sports Council executives and their addresses and phone numbers for the event". This is indicative of the relationship between the two bodies from the point of view of the first defendant, and also of his knowledge of "the event", which is the SK Securities Night. August 2000 [295] There is a gap in the Activities Diary for the period 1 – 4 August, followed by a note of the farewell party for the SK Securities Vice-President. Mr Dae Won Kang was among those who attended. [296] On 11 August is the note that "new Secretary General Won Kang started work". [297] On 17 August the staff spent all afternoon planning for the 6 pm meeting with committee members, "special planning officials" and the consular general. [298] At the 17 August 2000 meeting the Supporting Committee discussed its financial position in some detail. The expected revenue from guide map sales and the recent donation of SK Securities meant that the Committee was likely to have revenue of $264,000 (Daily Transcript 526-527, 24 September 2007, Day 17). After the SK Securities donation of $100,000 (and the loan from Mr Jong Kim of $10,000), the Committee had $110,000. One of the matters discussed was "deciding to discuss the disposal of the balance of the donations with officials following the close of the Olympics". Most of the meeting's decisions were based on proposals by Consul Moon, including having the flags made in Korea (a suggestion disapproved of by Mr Patrick Lee, according to his evidence in these proceedings) and co-operating with the Korean Society for Korea Day events on 23 September, another indication of the channeling role of the Committee exceeding its Olympic parameters. [299] This is the last recorded monthly meeting of the Committee. The Committee had a five and half hour meeting with the Olympic Mission Society the next day including lunch at Arisun, which was to be followed by a press conference the following day. On 23 August the staff spent all afternoon preparing minutes of this meeting but they are not in evidence. [300] The media conference was attended by Mr Won Kang, the seventh defendant Mr Dae Won Kang, the plaintiff and other members of the Supporting Committee and the Mission Society. Questions were asked by Hojudonga and the third defendant's reporter. Hojudonga wanted to know why Reverend Jang had been appointed to take charge of the North Korean division and the question was answered by Mission Society Secretary General Kwang Soo Lee and the plaintiff. Mr Won Kang volunteered: "Let's make it known to the whole world that Sydney is one." [301] The Activities Diary records a great deal of information between the end of August and the beginning of November; 16 of its 40 typed pages relate to this period. The staff note they have photocopied the tickets the seventh defendant purchased from SOCOG (this was not tendered) and note plans for Won Kang's trip to Seoul. In particular, they note a call from the Sports Council of Korea for application forms for participation in the 81st National Athletic Meeting. This is the meeting which the plaintiff and other Supporting Committee members attended which the defendants say was outside the parameters of the activities of the Supporting Committee. The staff telephoned TOP, the third defendant, Hojuilbo and Dongailbo to see if they were sending their reporters to Korea to attend this meeting. [302] A meeting was arranged between former and current presidents of the Sports Council, the Korean Society, the consul and the Supporting Committee members, to take place on 4 September. The last note for 31 August is a call from the fourth defendant, in his capacity as general secretary of the Korean Society, requesting that written details of support required from the society should be forwarded. September 2000 [303] On 1 September the plaintiff was interviewed by Yunhap, a Korean newspaper. The next entry is dated 9 September, but the other entries are in order so the reason for this is unknown. Mr Won Kang arrived back from his business trip to Seoul on 5 September. This is dealt with in more detail elsewhere. On 7 September there was a call from SK Securities director Young Sik Kim concerning the delivery, on the Olympic team's flight, of 500 CDs, 1,000 clothing items and "100 watches for the North Korean athletes" (Exhibit 52, p. 29). The role of SK Securities was not limited to its donation of $100,000; these were substantial gifts. In addition, if these gifts were on the same flight as the athletes, there may have been some knowledge of their contribution by the South Korean government. [304] The Olympic team arrived at the airport. Although Consul Moon told the Supporting Committee at the August meeting that it was not necessary to meet them (and that if there was to be a representative, he and the plaintiff could go), everyone was there to meet them, including the second, fourth, fifth and seventh defendant. There was a welcoming meal at the airport for the officials but the athletes went straight to the village. [305] During September the Committee members arranged tickets to events, transport, social functions and liaised with the Korean media. There was a constant stream of visitors, journalists and Korean officials including politicians and sports officials. Miss Lee, who appears to have been writing this up, had the day off for an interview on 17 September. [306] An indication of the plaintiff's role in the Committee can be seen from the 25 September entry that getting "all the stuff required" for the Cheer Squad was under his control. The plaintiff was someone who worked at the most menial tasks as well as meeting dignitaries. [307] 1,000 Korean peninsular flags arrived on 27 September, and a further shipment was to arrive the next day; the person keeping the diary went shopping for flag poles with Miss Sarah Yoo. On 28 September there was an emergency committee members meeting; the minutes have not been tendered. On 29 September the Korean athletes were invited to have dinner at the Charcoal Mine, Parramatta, which I note was agreed to be one of the restaurants owned by the second defendant. [308] Throughout the month plans were made for the farewell ceremony for the Korean team at the Korean Society Hall on 1 October. October 2000 [309] On 1 October the farewell ceremony for the athletes in the Korean Society hall was held. The chairman was Committee Vice President Jong Hyung Joo. The ceremony started with a congratulatory address followed by a message from the Consul General, followed by a gratitude address by the team's secretary general, dances from the cheer squad and meals. There was a committee meeting following which the committee office and workers went to Five Dock to cheer the marathoners. [310] The description of this ceremony does not refer to the plaintiff being the chairman or giving a speech. This is a common feature for the Committee's social functions and is indicative of the true nature of this organisation, and of the plaintiff's personality. [311] The athletes left Australia on 2 October and on 3 October the Supporting Committee office was busy preparing for the delegation to the National Athletic Meeting at Busan, as well as dealing with the March business plans for the Korean Sports Council. The telephone number for this inquiry is a Melbourne number, so the Korean Sports Council in Australia seems to be involved. Plans are being made on 4 October for the inaugural meeting of athletes of the council on 8 October; there was a meeting at the Sports Council office at 7 pm and Hojudonga newspaper asked for a half size advertisement. [312] On 5 October there were office staff problems and the diary keeper was told by the plaintiff to come to work with adviser Sang Gi Kim. The note is that the "general director" (Mrs Ok Ja Park) had "failed to be present". [313] Also on 5 October the plaintiff, who was about to leave "on account of the athletic meeting in Korea on 7 October", requested that this inaugural meeting on 8 October, should go ahead without him. This is the Korean sports event that the defendants say the plaintiff should not have attended, and that he should not have used money donated to the Supporting Committee to attend. [314] Three vice chairmen went to the National Athletic meeting at Busan: Nak Yoon Paek, Jong Hyung Joo and Byung Doo Choi went with the plaintiff. Before he left, Joo Hyung Jo chaired the team inaugural meeting on 8 October and a speech of welcome was given by the second defendant, followed by refreshments with former presents and officials of the Sports Council. The next day TOP newspaper (the second defendant's newspaper) telephoned about the inaugural meeting, asking for information, and the seventh defendant sent them a fax. If there was a report in TOP about this Sports Council function, it was not tendered. [315] On 12 October the seventh defendant is noted as attending to the filing, not only of "all the papers of the Supporting Committee", but also of the Sports Council, "again" (clearly there was a lot to file). This is of assistance when considering claims by witnesses such as the seventh defendant that these two organisations were separate. [316] On 13 October the seventh defendant was organising placards. On 15 October the plaintiff rang from Korea with the current medal tally from the Korean Athletic Games at Busan. He spoke with the seventh defendant and Mr Myung Boo Kim in turn. (There are two entries about this; it may be that more than one office assistant is writing in the diary). The third defendant rang to ask questions which were answered with the Paralympics news and "detailed explanations". Advertisements were booked in the Hoju Dong-A and its sister, the Dongailbo, as well as in TOP and the third defendant, the Sydney Korean Herald. The advertisements in TOP and the third defendant were half a page while the others were a quarter of a page. A Committee member too the Chunghyo Senior Citizens to the Olympic torch relay and the office staff drove the seventh defendant and others to watch the shooting. [317] On 20 October the staff sent an expenses budget statement for the 11th Paralympics to the Consulate General. This document is not in evidence. [318] The staff spent several days at the Paralympics and on 23 October there was a meeting and dinner for the Paralympics team at the 2000 BBQ restaurant. Those attended included consular staff, the plaintiff and executive. Between 24 and 27 October there were plans to distribute tickets, including a request to Hojudonga to advertise free tickets were available, and plans for a farewell party on 27 October. [319] A press conference on 26 October is summarised. The first three defendants' newspapers attended. Everyone was excited about the record medal tally. The final note is that the plaintiff went to the stadium to cheer, and a gold medal was won. [320] On 27 October the plaintiff, the seventh defendant and other officials went to the Olympic village for a presentation to the athletes that was videotaped. On 30 October the plaintiff came to the office to help carry on business. A group went to the airport to farewell the departing athletes; the second defendant was sent a fax about this. [321] On 30 October the Supporting Committee put a congratulatory message in the newspaper concerning the award of the Nobel Peace Prize to the South Korean Prime Minister, Mr Kim, following his historic meeting with the Prime Minister of North Korea in June (the 50th anniversary of the signing of the ceasefire between these two nations) and his general policy of peaceful reunification (the Expenditure Resolution in Exhibit 56 specifically notes the contents of this advertisement, which is unusual). Given the circumstances in which these two nations' teams had marched into the Olympic stadium together under the one flag, the Supporting Committee's interest in this award was understandable. [322] On 31 October there was another press conference, the text of which is set out in full. Those in attendance included the consul, executive members, the plaintiff and the seventh defendant. Although the seventh defendant and others answered questions, the plaintiff is not quoted as having said anything. Again, this is an indication of the committee being a team effort rather than a "one man band", to use a description of the plaintiff put to the jury during the s 7A trial. November 2000 [323] On 2, 3 and 6 November the office staff were putting correspondence, and internal documents into order and posing out public notices and letters. It was during this time that the plaintiff asked the seventh defendant to prepare the final accounts. According to the financial records, the seventh defendant received $200 in mid-November so he was still active in the office. He refused to help the plaintiff. The plaintiff prepared the financial statement, relying on the schedule prepared by the bookkeeper, Miss Yoo, and on 24 November it was published in the three Korean newspapers. That was when everything changed for the plaintiff and for the Supporting Committee. Conclusions concerning the Supporting Committee's activities during the Olympics [324] Reading through the Minutes and Activities Diary, it is not hard to see how it was the uncontested evidence of all of the plaintiff's witnesses that every aspect of the work of the Supporting Committee (except its financial record keeping) was a success, not only in the eyes of the Korean community, but in the eyes of the South Korean Government. [325] All of these records point to the Supporting Committee members working very long hours outside business hours, or putting their businesses aside, in the most unselfish way. The many dinners and lunches following Committee meetings need to be seen in this light. In addition, the records show there were constant visitors from South Korea as well as functions involving other sporting associations as well as SOCOG. This was a very busy committee. Everyone had their job to do. They got on and did it in a democratic and co-operative way. The next, question is then: whose job was it to look after the Committee's accounts? Who looked after the Committee's accounts? [326] According to the article in the second defendant's newspaper dated 26 January 2001, which is the second matter complained of: "Mr Hak Joo Park [the fourth defendant] says the problem originated from trying to do bookkeeping without a trained bookkeeper. The bookkeeping was done by Mr Cha from May 98 to Jan 99, it was done by president Cha and Mr Sung Joo Sung between Feb 99 and Dec 99, a financial controller was doing it for a while between Jan and Nov 2000 and Mr Cha was doing it after then." [327] I summarise my findings of fact from the contemporaneous records including the Activities Diary and Minutes concerning the identities of persons in charge of keeping records and accounts: (a) Between 1 May 1998 – November 1998 – the seventh defendant (to whom Mr Sung Joo Sung was deputy), assisted by Miss Choi (or Chae), the clerk whose record keeping Mr Sung Joo Sung later disapproved of; (b) Between November 1998 and March 1999 – Mr Sung Joo Sung was aided by the same Miss Chae. The last record for Mr Sung Joo Sung is dated 27 March and Miss Chae appears to have departed on 3 April 2000, as these pay periods for her and for Miss Migi Lee show 3 April 2000 according to the April financial statement (located in Exhibit 56). (c) On 1 December 1999 Mr Joo Yong Jo, the financial director (or treasurer) of the Sports Council) was appointed as financial director and he prepared monthly accounts for the Supporting Committee. He remained active until October, signing Expenditure Resolutions up to this time. (d) Between April or May 2000 and the end of the Committee's life, the seventh defendant kept the records, with the assistance of first Miss Migi Lee and later Sarah Yoo; (e) Between 26 September and 12 October, Head Official Sarah Yoo used the cheque butts to prepare an Earning and Expenditure Record for use in preparing the financial statement, according to the note she signed to this effect (Exhibit 7, page 1); (f) The plaintiff asked the seventh defendant to prepare financial statements but after he refused, prepared these using Miss Yoo's Earnings and Expenditure Record; and (g) In late 2000 the plaintiff's accountant prepared a statement in relation to moneys personally owed to the plaintiff; the plaintiff was reimbursed for approximately $61,000 of the $71,000 he sought. [328] I now turn to a consideration of the record keeping abilities of the seventh defendant and Mr Sung Joo Sung, the persons who either kept these records or supervised the bookkeepers who kept them. The seventh defendant's record keeping abilities [329] Was the seventh defendant a trained bookkeeper or a person with abilities enabling him to keep records? He considered he was knowledgeable about accounting from his prior experience in the Korean Society. He volunteered to be the temporary auditor of the Korean Sports Council in March 2001 (Exhibit S), and told the court that his son was a partner in accounting firm KPMG (Daily Transcript 2215, 19 June 2008, Day 54). [330] The seventh defendant held the position of Secretary General for the period May to December 1998. There are no financial records for that period. The Committee was just getting started, and there were few financial transactions in this period. [331] The seventh defendant's evidence is that in late 1998 he and the plaintiff had a dispute because the plaintiff (who was ten years his junior) was not polite to him (Daily Transcript 2167, 17 June 2008, Day 53). "A. INTERPRETER: In the beginning, initially, Cha and I had a very close relationship. We were very happy with each other. However, for instance - later on, for instance, if Mr Cha had a cheque received - that's the official cheque of the committee - he would hand it over to - instead of handing over to me he would throw it at me, and therefore he was behaving in a manner that was very impolite, out of politeness, from time to time, and I was thinking that it can't last like that, it had better stop, resign from the position." [332] This cannot be correct. The Supporting Committee did not have a cheque account until August 1999, which is nine months after the seventh defendant resigned in November 1998. In addition, the seventh defendant continued to come into the Supporting Committee office on a regular basis because of his friendship with the plaintiff, as Mr Sung Joo Sung commented: "A. Hak Soo Cho, even though he lost of his title or position at the committee, he was coming in and out of the office a lot of times with Mr Cha because he was a good friend of Mr Cha, and you can see it in the Telstra bill there, attached. Q. Yes, but you say Mr Cho came to the office regularly? A. WITNESS: Yeah." (Daily Transcript 3068, 7 April 2009, Day 65) [333] This is confirmed by many entries in the Activities Diary about the seventh defendant's regular attendances (including having his own desk) and his bookkeeping role (Exhibit 5). He signed many of the expenditure resolutions not only in 1999 (e.g. 2-295, 2-296, 2-298, 2-299) but also in 2000(e.g. Expenditure Resolutions 199, 214, 240, 243, 244, 254 and 268), and/or was the recipient in both 1999 (in, for example, the four invoices listed above), and again in 2000 (e.g. Expenditure Resolutions 155, 159, 160, 168, 199, 240, 254 and 268, for a weekly allowance of $200). Expenditure Resolution 269, according to the plaintiff's list of Expenditure Resolutions, notes that "the seventh defendant holds the missing documents" but that this note was not translated during the trial (this list of expenditure resolutions, with commentary, was the subject of objection by the defendants, so I shall treat its contents very cautiously). [334] An example of a transaction where the plaintiff signed a cheque requisition prepared by the seventh defendant is as follows: "Q. Mr Cha, I'll just show you the cheque butts for those two cheques. One is 1664 - that's a $700 one. Can you just tell us what the cheque butt says? A. The cheque butt says that it's a rent car that was borrowed for Mr Cho. HER HONOUR Q. So it's a rental car that was hired by Mr Cho? A. Yes. HER HONOUR: I think she means hired by, not borrowed. WHEELHOUSE A. It's a rental car hire. I remember asking Mr Cho, asking for a receipt regarding the $700 that the cheque is made out for. Q. Mr Cha, why is the cheque payee written out to KVA? You have signed it, haven't you? A. Mr Cho wrote the cheque himself, he took it. So you'll have to ask him. As you can see the cheque number and the cheque butt is a different number. It doesn't correspond." (Daily Transcript 905, 8 October 2007, Day 23) [335] This is an indication of the degree to which the plaintiff left the record keeping up to the seventh defendant. The age difference between them, and Korean traditions of respect, probably also play a role. [336] I find that the seventh defendant was continuously involved in the Supporting Committee's activities from 1 May 1998, when he chaired the meeting, until November 2000, when the plaintiff asked him to prepare the Supporting Committee's final accounts. I note that after that time he assisted the fourth and fifth defendants to prepare the audit report. [337] The plaintiff's unchallenged evidence was that in the financial records comprised in the "Red Book" (Exhibit 5) which comprised the Committee's financial records for the period 1 April 2000 – 17 October 2000, at which time the Olympic Games ended, entries were in the seventh defendant's handwriting. [338] I shall first set out what the evidence is about who kept Exhibit 5, and how. The Red Book of accounts (Exhibit 5) [339] The plaintiff identified a book of handwritten accounts for the period 1 May to 17 October 2000 ("the red book" – exhibit 5) as being the Supporting Committee's accounts book that he gave to the fourth and fifth defendants in December 2000. [340] The following cross-examination is relevant as to the identify of the persons whose handwriting appears in this book: "Q Mr Cha, I'm just going to ask you something which is not controversial, but I just ask you to confirm this please... Did you write those words the other day when you first saw the red book in the witness box... A This is not my writing, My writing is just on one page, the rest is someone else's writing." (Daily Transcript 192-193, 7 June 2007, Day 7) [341] The red book was then tendered as Exhibit 5 Daily Transcript 193, 7 June 2007, Day 7. [342] The following occurred at Daily Transcript 231, 8 June 2007, Day 8: "Q Mr Cha, in whose handwriting are these entries? A That I can't remember now but I presume it would have been somebody who was in the office. Q Who was the bookkeeper in the office at this time? A At the time mostly [sic] was done by Mr Hak Soo Cho [the seventh defendant] and I can see it's his handwriting there. He was paid $200 a week..." [343] It was put to the plaintiff that he had control of the cheque books and he wrote out the cheques, and the reason for the cheque butts being in the handwriting of others such as the seventh defendant or the bookkeepers was that he would then go through these cheque butts later with the bookkeepers and tell them what to write down. Mr Cha replied: "A. Do you think that there are people like that doing that sort of procedure? I just can't understand." (Daily Transcript 231). I accept this evidence, which is consistent with the evidence of the plaintiff having one cheque book and first Mr Sung Joo Sung and then Mr Jo having the other. The evidence does not support the contention that the plaintiff controlled the cheque books, or wrote out the financial records. [344] At Daily Transcript 304, 13 June 2007, Day 10 Mr Wheelhouse SC put a question to the effect that entries in the book for the period May to September were written by Migi Lee, the bookkeeper who took over from Miss Chae in April and remained there until August when Sarah Yoo took over the bookkeeping (again for payment of $200 per week). [345] It was never put to the plaintiff that the accounts (including Mr Sung Joo Sung's accounts) were in his handwriting. It would have been a straightforward matter for a handwriting expert to confirm if he had denied it. One page of the red book was in the plaintiff's writing, but this was a list of donations made at the end of the Committee's life, for the purpose of preparing the final accounts, and to distinguish between the Sports Council and Supporting Committee's donations – Daily Transcript 865, 8 October 2007, Day 23. [346] Could the red book kept while the seventh defendant was in charge have been written up by the bookkeeper Miss Yoo? The fourth defendant is confident that he can recognize Miss Yoo's handwriting; he was able, for example, to identify her handwriting in the financial records she prepared in September and October 2000 for the purpose of preparation of the accounts: Statement of the fourth defendant, Exhibit 70, paragraph 142. Similarly, he should have been able to identify the plaintiff's handwriting if the red book had been written up by the plaintiff, but he did not do so. Accordingly, the unchallenged evidence is the plaintiff's evidence that the entries in the red book were written up by the seventh defendant, as the plaintiff claims. [347] The contents of the Red Book are as follows: (a) a note on the inside front cover of the Korean Sports Council account; (b) a list of donors to the committee with a note at the top saying "guide Map 28/9/00"; (c) the next three pages are blank; (d) entries for May 2000; (e) A list of donors (on the page on the left hand side, opposite the June entry) which the plaintiff identified as being in his writing; (f) Entries for June to October in chronological order, written on the right hand page, with the left hand page blank; (g) A large number of blank pages; (h) Another list of donors [348] The balance column is only filled in for May, June and July. The monthly accounts are at least in date order, but they fail to do more than list receipts and outgoings. This is poor record-keeping. [349] It should also be noted that there are monthly financial statements for March and April (contained in Exhibit 56) and May, and that there were financial reports presented at the monthly meetings for the periods February – April and May, according to the Minutes of Meeting. The Minutes attribute the financial report to the Finance Director Mr Joo Yong Jo but Mr Sung Joo Sung claims in his statement that he is the author (at paragraph 20). [350] The seventh defendant made some admissions about record keeping, but did not consider it part of his obligations to set up a receipt book for donations. He thought (Daily Transcript 2173, 17 June 2008, Day 53)) that was the plaintiff's job: "Q. Mr Cho, whose job would it have been to give the receipt? A. INTERPRETER: Chairman. HER HONOUR: And why was that, Mr Richardson? Why is it the chairman's responsibility to give a receipt? RICHARDSON Q. Why was that, Mr Cho? A. INTERPRETER: Because in the supporting committee, everything, including finance, was all controlled by Mr Cha, managed by Mr Cha. There was no secretary-general, there was no finance director at the time, so Mr Cha did everything." (Daily Transcript 2173, 17 June 2008, Day 53) [351] This was not correct. There was a secretary-general and at the time of the donation in question (Mrs Kim's $5,000) this was the seventh defendant himself. It was his job, and he was paid an allowance of $200 per week for performing these duties. Nor is his statement about there being no finance director true. Mr Jo was the financial director from 1 December 1999 onwards. [352] The seventh defendant said he was asked by the plaintiff to prepare a financial report of the Supporting Committee, but the plaintiff had only given him 2-3 pages and he "couldn't do that" (Daily Transcript 2171, 17 June 2008, Day 53), even though he had been keeping the financial records for the Supporting Committee since May. This extra information given to him by the plaintiff was a list of entries from the plaintiff's CFM company account, which was information in addition to the contents of the red book kept by the seventh defendant: [353] The plaintiff said in cross-examination that he asked the seventh defendant to help prepare the accounts, and gave him some additional information from the CFM cheque butts: "Q. Mr Cha, in October or November 2000 when Mr Cho was in the support committee's office, did you speak to him and say the words, "Big brother, can you prepare the financial accounts for the supporting committee for me?" A. Yes, because at that time Sun Ju Soong left the committee and he took all the records with him and we asked for it and he didn't hand it back in. All the donations during 99 were left with that and I go on an incident about the 580 Olympic tickets that should have been given as part of the committee's doing supporting to the Korean community and give out as a part of like a goodwill and so on; but after only giving few away, Mr Cho later then sold them for money and I heard this from various times but even yesterday, so I don't even think of him as a human being now. Q. Mr Cha I'm showing you exhibit 10. Is this the document that you gave to Mr Cho in about October or November 2000? A. This has got nothing to do with the committee cheques, it's a listing of my companies, check listing and I asked him, yes, to retype that out. Q. Mr Cha, this is a document you gave to Mr Cho. Correct? It's in your handwriting. A. Yes. Q. And is this the document that you created by looking at the cheque butts of CMF Engineering? A. Yes. Q. They're the cheque butts upon which you changed the cheque butt entries. Correct Mr Cha? A. I'm not aware because some of the ones that's crossed out it's someone else's writing, it's not my writing. They had this document so it's written over it. The document that I have now is the full listing of all the—" (Daily Transcript 782 – 3, 4 October 2007, Day 21) [354] Mr Cho agreed he had been asked to prepare the accounts, but said: "A. INTERPRETER: After the Olympic Games were finished, I was asked by Mr Cha to prepare a financial report of the Olympic Committee. Q. At that time, did he hand over anything to you? A. INTERPRETER: Mr Cha had some sort of a memo of two, three pages, and he put that on my desk. And I thought "I cannot prepare financial statement based on those documents", so I couldn't do that. RICHARDSON Q. Pausing there, the memo that he handed you, Mr Cho, do you remember roughly how long that was? A. INTERPRETER: It was two or three pages, probably two pages of A4 papers. Q. And whose handwriting was on that document? A. INTERPRETER: It was Mr Cha's handwriting that he did memo of things. Q. At that time, did you have any other records of the Olympic Committee? A. INTERPRETER: I had something that said I distributed - the Olympic tickets had been distributed. Q. That was all you had? A. INTERPRETER: Yes. Q. What did you do with the two documents you had? A. INTERPRETER: I sort of summarised the memo, what was in the content of the memo. And I left that the next day on Mr Cha's desk. But Mr Cha, for some reason, he was not very happy and he was not very satisfied. As I said, I left it on Mr Cha's desk, and Mr Cha wasn't happy about that and satisfied, and he took those papers and said something to me or he was not really in a good mood. And he took it away after that. Q. Did you also return to Mr Cha the pages that he had given to you; the memo, as you call it? A. INTERPRETER: Yes, I did. Q. Was there any further discussion between you and Mr Cha about the preparation of accounts for the Olympic committee? A. INTERPRETER: Not much conversation after that with Mr Cha." (Daily Transcript 2171-2172, 17 June 2008, Day 53) [355] This was not, in fact, the only document the seventh defendant could have used to prepare the accounts. First of all, he could have used the red book containing the bookkeeper's entries (which he had supervised). Secondly, there was another document being prepared for the Supporting Committee by Miss Yoo, the bookkeeper employed by the Supporting Committee in its final months. She has recorded that on 26 September she took over seven cheque books and prepared an Earnings and Expenditure Report based upon the cheque butts. She was paid additional sums over this period; it was a considerable labour, and it would be surprising if the seventh defendant did not notice her doing this work. This document was ready on 12 October 2000, and it is also in a green book (Exhibit 7). This book comprehensively lists all of the contents of the cheque butts and also provides some draft lists of donations. [356] However, it was never put by the plaintiff to the seventh defendant that he saw or knew about this book, so I cannot assume that he knew about it. [357] The fourth defendant says in his statement that he never saw Miss Yoo's green book when he was preparing the audit. This document was translated by Mr Deokkon Kim on 27 May 2007 as part of the documentation in the hands of the second defendant. At Daily Transcript 2045 12 June 2008 I drew attention to this entry and the fact that another signature had not been translated. Mr Seck replied that Mr Kim was the plaintiff's translator and this was the plaintiff's document. However, the fourth defendant's submissions refer to Miss Yoo's green book (Exhibit 7) as one of the documents used in the audit and it is an annexure to the fourth defendant's statement. [358] Although the seventh defendant denied he was able to, or did, help the plaintiff with the Supporting Committee audit (Daily Transcript 2189, 17 June 2008, Day 53), he felt no such compunction helping the fourth and fifth defendants. The fourth defendant confirms (in paragraph 88-91 of his statement, Exhibit 70) that the seventh defendant assisted him in preparing for the audit during December 2000 and January 2001. Further, the fourth defendant said the seventh defendant was present at a meeting in late January 2001 when the plaintiff was questioned about the account entries (see the fourth defendant's supplementary statement). In other words, the seventh defendant was willing to help the fourth and fifth defendants but not the plaintiff, even though the financial records (or lack thereof) for about half of the Committee's life had been his own responsibility. [359] The seventh defendant's important positions in the Korean Society, Korean Veterans Association and Sports Council, as well as his seniority to the plaintiff, meant that he considered the plaintiff was not entitled to speak to him disrespectfully about anything. He said as much in his evidence. There was nothing the plaintiff could do to force the seventh defendant to keep better records, just as there was nothing the plaintiff could do to force the seventh defendant to prepare the financial statement in November 2000 (although I note the seventh defendant was still claiming reimbursement for expenses from the Supporting Committee as late as November 2000). [360] The plaintiff also could do nothing to prevent the seventh defendant from coming to the Supporting Committee office. He eventually resumed his former position in August 2000. The plaintiff's evidence was that the seventh defendant resumed the position of Secretary-General (Daily Transcript 773, 4 October 2007, Day 21), for which he was paid $200 per week and that he was told "the same thing should not happen this time as it happened in the past" (Daily Transcript 1001, 10 October 2007, Day 25). [361] I also note a conflict of testimony between the plaintiff and the seventh defendant concerning $3,000 left over after the purchase of Olympic tickets. This was the subject matter of the publication by the second and seventh defendant dated 13 July 2004. The seventh defendant swore interrogatories denying that he made the statements attributed to him (Exhibit U, question 3B(d)). He said he could not remember what he actually said because of "the passage of time" (question 4B). The jury found the imputations were not conveyed. [362] The bifurcated s 7A trial means that submissions can be made to a jury which are directly inconsistent with the evidence at the trial. In other words, a witness can tell a s 7A jury that he did not make statements, that he does not recall what was said, or (as his counsel said to the jury – Section 7A Transcript 618, 3 August 2004, Day 11) that he was just saying the plaintiff was "a silly bugger" who had "forgotten" what he did with his money, and then tell this court that the plaintiff had in fact stolen the money. The improvement of the seventh defendant's memory since the s 7A trial is of some (though limited) relevance to my findings concerning whether to accept his evidence or the plaintiff's concerning the Olympic ticket money and the KBS cash donation. [363] If the seventh defendant was capable of keeping (or supervising) the Red Book records, how can his failure to keep records for the period May to November 1998 be explained? [364] This brings me to the next financial record keeper, Mr Sung Joo Sung, who was the seventh defendant's deputy during May-November 1998, and who took over in November 1998. The question of his abilities (or lack thereof) as a record keeper is complicated by the fact that he took those records with him when he left the Supporting Committee in March 2000. One of the questions to be determined is the period of time covered by the pages he said he ripped out of that book. Mr Sung Joo Sung's record keeping abilities [365] Was Mr Sung Joo Sung a trained bookkeeper, or a person with abilities enabling him to keep records? He considered he was able to do so. In his statement of March 2009, at paragraph 35(b), he says: "Before commencing as secretary-general of the Committee I was auditor of the records at the Korean Society for approximately three years. There my duties as auditor involved checking bookkeeping and checking statements and expenditure to see that the expenditure could be verified. I attempted to prepare the accounts of the Committee in the same form as I had experienced at the Korean Society. There had been no complaints from members about the form of the accounts." [366] In August 1999, when the bank account was opened, Mr Sung Joo Sung and the plaintiff were the signatories; he kept one cheque book and the plaintiff kept the other (paragraph 35(a) of his statement). According to Exhibit 16, there were three names to the cheque book application. They are Mr Bob Chae-Sang Cha, Mr Nak Yoon Paek and Mr Andrew Sung (Sung Joo Sung). Under the "Signing Specification" section, a handwritten note next to "Other (specify)" reads "Two of Three". Therefore two of the three signatories sign cheques on behalf of the Supporting Committee, although in practice one person invariably did, for the Committee's lifetime. [367] Mr Sung Joo Sung was approached to fill this role "towards the end of 1998" (paragraph 2 of his statement), he having been the seventh defendant's deputy up to that time. He kept a green accounts book over this period which contains records of financial transactions which he considers are accurate and says that it "records all income of which I was aware and expenditure of the Committee while I was secretary-general" (paragraph 15). [368] There was an accounts clerk who kept records which should have appeared on pages 1 – 6 of the book, but Mr Sung Joo Sung ripped the pages out and re-wrote these accounts because they were "inept and confusing". He said he rewrote pages 1 – 6 of the accounts book. He then says (paragraph 18): "After page 6 the accounts book was maintained by an accounts clerk who replaced the earlier person. The accounts clerk who assisted me was Joon Sun Chae. The rest of the writing in the green accounts book is hers. Miss Joon Sun Chae wrote up the green accounts book under my supervision." [369] Although Mr Sung Joo Sung refers to "page 6", the stub of torn out pages seems to me to exceed that number. However, this evidence was not challenged at the trial. [370] The name Jung Sun Chae appears to be an error, as the name recorded as the person who was paid $200 per week for providing "clerical support" during 1999 and up to 3 April 2000 (the date of the last wage payment) is Jung Jun Chae. If that is correct, then an accounts clerk was in charge of the records at all relevant times after Mr Sung Joo Sung commenced in January 1999 and until 17 April 2000. [371] At all relevant times during 2000 there was a paid bookkeeper to keep the accounts. From 26 June 2000 to 26 July 2000 Miss Migi Lee was paid a wage. Miss Sara Yoo was paid wages for the period 29 September to 11 November 2000. There are also payments over this period recorded, noted as "wages for Hak Soo Cho" (e.g. 11 November 2000). [372] What kind of records did Mr Sung Joo Sung keep? A description of what is in his Green Book is of assistance. Mr Sung Joo Sung's Green Book [373] By definition, any accounting record must be in date order. When accounts are not only significantly out of date order but contain both missing and blank pages, the likelihood that the accounts represent either a complete or a contemporaneous record is open to question. [374] The following may be noted concerning Mr Sung Joo Sung's Green Book: (a) The monthly entries are significantly out of order, and interspersed with blank pages; (b) The first nine pages (according to my counting) or six pages (according to Mr Sung Joo Sung) have been torn out, and the front cover has fallen off as a result; (c) Page 1 is blank; (d) Pages 2 - 6 contain entries from February to May 1999. There are a number of important omissions of expenses for which there are Expenditure Resolutions. Chief among these is a payment to Mr Sung Joo Sung personally for $4,600 (Expenditure Resolution 2, 9 May 1999); (e) The next 7 A4 pages are blank; (f) The next page in the book is for November 1999, with an opening balance of $1531.08. These entries have been numbered pages 7 - 8 in the translation as they go across two pages. It should be recalled that the defendants assert Mr Sung Joo Sung stopped keeping records in October or November; (g) The next two pages are for December 1999, with the last entry being the phone bill paid on 21 December. Clearly Mr Sung Joo Sung continued to keep or have access to the keeping financial records after Mr Joo Yong Jo was appointed financial director; (h) The next two pages are blank; (i) The next pages again cover the period February to May, although there are some differences e.g. the payment of $45 for stamps on 9 April 1999 by cheque number 643208, which appears in the first version of the April accounts, does not appear in the second; (j) The following pages up to a page numbered 28 by the translator cover the period June - October 1999. The last entry is dated October 30; (k) The translator (who translated this document on 1 March 2007, notes that some entries "written in red" are incomprehensible. I could only find one entry written in red (for the second set of November 1999 entries); (l) In addition there are loose pages containing information about cash donations and Mr Sung Joo Sung volunteered that he tore out pages prior to March or April 1999 because he did not like the way that the bookkeeper had written them out; [375] Mr Cha said in evidence that Mr Sung Joo Sung was in charge of keeping the accounts up to February (Daily Transcript 85, 5 June 2007, Day 5). There are no accounts for January or February 2000. Mr Sung Joo Sung ceased being the Secretary General on or about 27 March or 1 April according to the Activities Diary and Minutes, but the plaintiff said Mr Sung Joo Sung continued to use the cheque book he had to write cheques up to June 2000. [376] Two monthly accounts were prepared for March and April 2000 (Exhibit 56). Mr Sung Joo Sung says that he prepared these documents (Exhibit 72 paragraph 20). If that is the case, then Mr Sung Joo Sung must have kept other records as well as the Green Book, and he must have remained with the Committee until 27 April, when he records, curiously, a donation of $200 by Mr Dae Won Kang. [377] Could these documents have been prepared by him during the audit process? The answer must be no, as the March Statement of Accounts is signed by the plaintiff, the director in charge and vice presidents, so it is clearly a Supporting Committee document. The April Statement (but not the March statement) is stamped as having been checked by the auditor. [378] The following may be noted: (a) there is no information as to what financial records Mr Sung Joo Sung inherited when he took over the role of the seventh defendant on the committee. At all relevant times there was the bookkeeper Mr Sung Joo Sung disapproved of, Miss Chae. In addition, it is clear that Mr Sung Joo Sung was keeping records after Joo Yong Jo was appointed Financial Director in December 1999. There is no explanation as to why the records stop on December 21, 1999 and start up again on March 3 (Exhibit 56). It is possible there were records for the period before Mr Sung Joo Sung started keeping records in February 1999 and up until Mr Sung Joo Sung left on or about April 27 (the last entry in the April accounts in Exhibit 56), and that these records are now missing. (b) Cheque number 643028 is not for $45 but for $203.75; a number of entries between 9 April and 4 December have 643028 beside them and when added up come to this total of $203.75 which corresponds to the amount appearing in the bank statement. Thus the fact that the reference to $45 for stamps appears on 9 April in the first set of accounts for 9 April but not the second suggests that someone was copying them out and accidentally omitted this entry. Clearly the $45 was incurred as otherwise the amount of $203.75 in the bank statement cannot be explained. However, whoever was rewriting these accounts must have done so after 21 December 1999. In fact, given that this is close to Christmas, and there was quite a lot of writing up to do, the likelihood is that the rewriting of the February to October accounts occurred some time in January 2000. Mr Sung Joo Sung was still at the Supporting Committee in January and still giving money to Miss Chae the bookkeeper at that time, according to the Activities Diary. If that is the case, were records also being kept in January, and if so, where are they? (c) A number of the deposits are asserted to have been made by Mr Sung Joo Sung personally. For example, on 8 October he makes three cash deposits of $70.06, $200 and $40. By contrast, deposits by the plaintiff or the Sports Council are identified as such e.g. on 7 October the plaintiff and the Sports Council each made deposits of $2,000. A number of these entries correspond to expenses for the same amount e.g. the deposit of $40 is followed by a payment in cash to Hankuk Printing for $40, in cash. The most likely explanation is that Mr Sung Joo Sung is dipping into a petty cash jar to pay cash for small bills for small businessmen such as florists and printers who do not take cheques. Where does this money come from? Mr Sung Joo Sung said there was a petty cash tin to which only the plaintiff had the key but as I have noted elsewhere, Vice President Paek gave an instruction noted on an Expenditure Resolution that lunches were to be paid for from petty cash (Exhibit 56). Given my reservations about the contemporaneity of this chronologically inaccurate document, I am reluctant to accept Mr Sung Joo Sung's claim's unless corroborated by witnesses of veracity, and prefer the accuracy of the contemporaneous note of Mr Paek's instructions to staff. (d) Mr Sung Joo Sung admitted he put the Paek loan into his own account. The explanation given in his statement of 6 April 2009 (Exhibit 72 paragraph 30) is instructive: "At one stage the Committee, when it was short of funds, borrowed $10,000 from Vice-President Paek. The cheque was handed to me. At this time the Committee had no bank account. I deposited the $10,000 cheque into a company account with the National Bank under my control. I held the money in that account until the Credit Union Account was set up. I then paid $9,000 from that sum into the Committee's account. I kept $1,000 to cover expenditure that I had incurred on behalf of the Committee and I recorded it in the green accounts book. This is recorded in the green accounts book for November 1999." This cannot be correct. The Committee opened an account in August 1999, as Mr Sung Joo Sung well knew, since he was an account signatory and he had one of the two cheque books for its operation. By November 1999 the account was not only up and running but in need of funds, which is why Vice-President Paek (who is, incidentally, the person who gave the instructions about taking lunch costs out of petty cash) loaned this money to the Committee. Mr Sung Joo Sung's explanation in the witness box, when the contents of paragraph 30 were put to him, was different again. He said "I borrowed that money from Mr Paek (Daily Transcript 3085, 7 April 2009, Day 65) because at the time the balance was in the red, and he could not prepare an Expenditure Resolution because at the time there was no financial manager who was in charge of finance, there was only "a temporary position to do accounting" and he had to use the money for the salary of the female office worker. He conceded that payment of the office worker for this period was covered by an Expenditure Resolution and indeed examination of the Green Book shows, as I have noted elsewhere in this judgment, shows that no such expenses were paid from the $1,000 Mr Sung Joo Sung kept. (e) Throughout his evidence Mr Sung Joo Sung insisted that this book, which he agreed it had been the job of the paid "female worker" to keep, was his own personal record. The information contained in it was, however, financial information confidential to the Supporting Committee, not information relevant to him personally. [379] Mr Sung Joo Sung agreed that he recorded cash transactions in this book. As the expenses exceeded donations during this period, when expenses were paid by the plaintiff's company, the Sports Council or Mr Sung Joo Sung personally, he noted this in his book. [380] There are a number of issues in dispute in relation to Mr Sung Joo Sung's evidence, including whether or not the plaintiff agreed with the way he proposed to record the income and expenditure of the Committee (paragraph 35(b)). In addition, Mr Sung Joo Sung claimed in his evidence that this green book was not the Supporting Committee's record (despite it having been filled out by the Supporting Committee's accounts clerk) but his own personal record. In addition, Mr Sung Joo Sung's evidence that he resigned about 10 months before the games were held in September 2000 (paragraph 3) is inconsistent not only with the Activities Diary but with the Minutes of Meeting which show that he moved to another position in the Committee where he remained until March 2000 as well as his own claim to have completed financial records up to the end of April 2000. [381] However, the fact remains that during 1999 Mr Sung Joo Sung, assisted by an accounts clerk, was keeping records, however inadequate they may be, and the clerk continued to be employed after Mr Sung Joo Sung ceased holding his position. The question is the degree to which that inadequacy is as a result of the plaintiff's conduct. [382] Whatever its status, the green book kept by Mr Sung Joo Sung was a record of income and expenses for at least the period January – December 1999, which represented about half of the life of the Supporting Committee, and it was a vital document. According to the plaintiff, Mr Sung Joo Sung continued to keep the records after the appointment of Joo Yong Jo as treasurer and up until February 2000 (Daily Transcript 85, 5 June 2007, Day 5) and according to Mr Sung Joo Sung's statement he was doing this until the end of April 2000 (paragraph 20). Since the entries continue until 21 December 1999 (which is after Mr Joo Yong Jo's appointment and just before he signed the form authorising him to sign cheques) and Mr Sung Joo Sung was, according to the Activities Diary and Minutes, still holding a position and coming into the office (and attending a dinner) this means that either he did not keep records for the period 21 December 1999 until the end of February or he has withheld them. [383] It is not in dispute that Mr Sung Joo Sung not only took the books when he left, but refused to return them to the plaintiff when requested. The plaintiff's evidence was: "A. Yes, and I asked Mr Sung Joo Sung to provide the documents relating to the Olympic committee from May 1998 to February 2000. Q. Did he provide them? A. No, I didn't get it." (Daily Transcript 85, 5 June 2007, Day 5) [384] The financial records kept by the Supporting Committee start on 1 April 2000, which is a matter of days after Mr Sung Joo Sung's last appearance at the Committee office on 27 March 2000 and overlaps with his claim to have completed a balance for April 2000. I have dealt with this book (which is generally referred to as "the red book" in the section considering the evidence of the seventh defendant, since he is the person who, on the unchallenged evidence of the plaintiff, wrote these entries, albeit with assistance from the bookkeepers Miss Migi Lee and Sarah Yoo. [385] The Minutes of Meeting for 2 May show the new secretary-general, Mr Kim, giving a report of the financial statement for the period February to April 2000. This was because Mr Joo Yong Jo was ill (Exhibit 51 p. 28). Did Mr Sung Joo Sung indeed prepare these reports of March and April? If he did, where are January and February? Are these records also records which he took when he left? This brings me to the next issue, which is when and in what circumstances he made the Green Book which he says is his own personal record, available to the fourth and fifth defendant for their audit. Did Mr Sung Joo Sung give the auditors the green book and if so, when? [386] According to Mr Park, Mr Sung Joo Sung did give him assistance in the preparation of the audit documents (Daily Transcript 2973, 6 April 2009, Day 64). In consulting him, Mr Park would not only have known, as an employee of the Korean Society, that Mr Sung Joo Sung had been the treasurer of the Korean Society for three years previously. He also knew that Mr Sung Joo Sung had responsibility for paying outgoings, because he had an argument with him about the Committee paying $150 per week rent. Mr Park says in his statement (Exhibit 70, paragraph 59) that it was as a result of these conversations that he knew Mr Sung Joo Sung was keeping records. [387] Mr Park says, at paragraph 60, that following the plaintiff's claim that Mr Sung Joo Sung had misappropriated sums to the Committee he "approached Mr Sung Joo Sung to discuss the matter with him" and that this let to Mr Sung Joo Sung saying he had been reimbursed from committee funds for money of his own that he had spent on behalf of the Committee. It was then, and only then, that Mr Sung Joo Sung volunteered the green book. [388] However, the plaintiff's evidence (Daily Transcript 87, 5 June 2007, Day 5) was that when the auditors asked for a meeting at the beginning of November, he said he could not do this because, inter alia, Mr Sung Joo Sung would not give him the green book. [389] On Day 64 (Daily Transcript 3030-3031, 6 April 2009) Mr Sung Joo Sung said: "Q. Would you hold up the green book. What is that book? A. INTERPRETER: When I was appointed as a secretary-general, they should have been financial director but there was no financial director. Q. There should have been a what? HER HONOUR: Financial director. Q. Sorry, when were you appointed again? Just remind me of the date. A. INTERPRETER: I can't recall exactly but it was around January or February 99. WHEELHOUSE: The witness was in the middle of giving an answer, your Honour. I've told the witness to break his answer up in little pieces to assist the translator. So, he just commenced his answer, your Honour. A. INTERPRETER: So I make this book, notebook, as my personal notebook to record of things that happen at the time. EVATT Q. Did you make that book available to Mr Park, the auditor, in August 00? A. INTERPRETER: I can't recall exactly but I have show this book to Mr Park, auditor Park, because I had some - my own money included or written in this book. The reason I have done that was because the plaintiff - Sang Cha has made an announcement in the newspaper that I was - Sung Sung Joo, I, Sung Sung Joo, was a thief. So I did it in response or reaction to what he has done." [390] In fact the article which contained the announcement in the newspaper was the plaintiff's list of donors of 23 February 2001, in which he specifically listed the names extracted from Mr Sung Joo Sung's records during his four February meetings with the fourth and fifth defendants (Exhibit 73). The fourth and fifth defendants had prepared a document Hojudonga called "interim" audit results by 22 December; Hojundonga sets out the interim figures in detail. Were Mr Sung Joo Sung's financial records used for this report, and if not, why not? [391] The fourth defendant originally said at paragraph 64 of his statement: "During the time when I was preparing my audit I was not shown a copy of the green book produced by Mr Sung Joo Sung or the green book [produced from the records of the plaintiff to Mr Park by Mr Nye, the solicitor for the second defendant] for the purpose of preparing my audit." (Exhibit 70). [392] However, the fourth defendant changed his evidence about this in 2009 and made a supplementary statement in which he said he saw the green book in "January 2001"(Exhibit 70). This was, however, after the preparation of the interim report referred to in the 22 December 2000 Hojundonga article. This means that the interim report was prepared without the benefit of these records, in circumstances where from the fourth defendant's own knowledge, Mr Sung Joo Sung performed record keeping tasks for the Committee, and the plaintiff had told the fourth and fifth defendant that these were Committee records which Mr Sung Joo Sung was refusing to return. More importantly, the fourth and fifth defendants knew, from information in the Committee's records, that bookkeepers had been hired and paid a salary for most of the life of the Committee. The complaint of the fourth and fifth defendants was originally that these bookkeepers were untrained. Whether they were trained or not, if they kept the records Mr Sung Joo Sung took, these records were likely to be the Committee's records [393] Ultimately, when considering the challenges to honesty and credibility made by the plaintiff and defendants about each other, the question really is Mr Sung Joo Sung's conduct and his credibility as a witness given his extraordinary conduct in removing the Committee's financial records in or about March 2000. [394] I should add that in written submissions counsel for the fourth defendant has also accepted that the fourth defendant also saw in early 2001 the other green book, namely the green book prepared by Ms Yoo for the subcommittee between September and October 2000 (Exhibit 7). Conclusions concerning Mr Sung Joo Sung's credit as a witness [395] Mr Sung Joo Sung's conduct in poorly maintaining, and then taking, the accounts kept by the Supporting Committee is what the plaintiff says led to the Supporting Committee's accounting problems. What does Mr Sung Joo Sung have to say about this? [396] Mr Sung Joo Sung claims that he had an argument with the plaintiff in or about late 1999, and said that he did not come to the Supporting Committee offices afterwards (Paragraph 35(b) of Mr Sung Joo Sung's Affidavit). That is inconsistent with the Activities Diary, which records him being there in January, February and March, attending a meeting and a lunch, as well as holding a position on the executive, and with other evidence in this statement concerning his activities as late as April 2000. [397] However, this difference in time about when he left and why is but one issue on which I do not accept his evidence. In his evidence, Mr Sung Joo Sung made a number of statements concerning financial records that I do not accept as truthful: (a) He gave conflicting and unsatisfactory explanations of the circumstances in which he banked Vice-President Paek's loan into his own bank account, which conduct I find was the real reason for his argument with the plaintiff. (b) he admitted he had not recorded a number of cash donations but falsely claimed this was because the accounts book was his "personal history" rather than an accounts book (Daily Transcript 3071, 3074, 3076 and 3077, 7 April 2009, Day 65). Miss Chae had been paid $200 a week to keep these accounts, and this information was confidential information of the Supporting Committee, not Mr Sung Joo Sung's personal history. (c) Mr Sung Joo Sung claimed he was not obliged to keep the records, and told the plaintiff to keep the accounts (Daily Transcript 3076, 7 April 2009, Day 65). This was not put to the plaintiff and I find it is not only implausible but untruthful. (d) Mr Sung Joo Sung claimed his money was put into the Supporting Committee and that the plaintiff only put a "little bit" of money into the Committee (Daily Transcript 3074, 7 April 2009, Day 65). The plaintiff's financial contribution was more than $71,000. (e) He denied keeping and using the cheque book to write a $300 cheque to the baseball association, of which he was Vice Chairman) (Daily Transcript 3064, 7 April 2009, Day 65). (f) He admitted he kept a separate list of cash donations (Daily Transcript 3074, 7 April 2009, Day 65) and ripped out a number of pages Daily Transcript 3075-3076, 7 April 2009, Day 65 from the book, which he claimed he "didn't keep"(Daily Transcript 3096, 7 April 2009, Day 65). He also gave evidence that since he had contributed his personal money to the committee, if there were cash donations, they need not be recorded every time, as he was simply reimbursing himself: Daily Transcript 3074, 7 April 2009, Day 65) (g) He repeatedly, and falsely, claimed there was no financial director (Daily Transcript 3076) when he knew that he himself was supervising the bookkeeper Miss Chae, and that Mr Joo Yong Jo was appointed on 1 December 1999 after the Paek loan controversy. (h) There is some further evidence (as well as the book being out of date order) that this book is a reconstruction. The date 9 December 2000 appears on an entry in this Green Book. Mr Sung Joo Sung at first attempted to say that this should have been 9 December 1999. He then, as witnesses sometimes do, accidentally revealed that this was written "when the auditors stated processing auditing, and I prepared this document for auditors [sic]" (Daily Transcript 3077, 7 April 2009, Day 65). The relevant passage in full is: "A. INTERPRETER: It's from the February 1999 to December 1999. Q. No, there's a date written at the bottom of the page. What is it? A. INTERPRETER: It's written 9 December 2000. Q. Yes. A. INTERPRETER: That's the date when the auditors started processing auditing, and I prepared this document for auditors. Q. That's right. You prepared this document for the auditors. A. INTERPRETER: No, it wasn't. Q. You prepared that document on 9 December 2000 for the auditors. A. INTERPRETER: No, it wasn't. Mr Cha called me, I was - receive for the cash donations so I wanted to prove that I wasn't, so I sorted out some of the figures and separated them and made a summary. Q. You wanted to prove you weren't - what, that you didn't misappropriate money or what? A. WITNESS: Yes. A. INTERPRETER: Correct. Q. Who accused you of misappropriating money? A. INTERPRETER: Mr Cha announced that in the newspaper. I have the copy of the announcement in the newspaper right here with me." (Daily Transcript 3077-3078, 7 April 2009, Day 65) (i) Mr Sung Joo Sung claimed that he prepared this book to answer allegations made by the plaintiff in the newspaper that he misappropriated moneys, and said he had the newspaper item in which this allegation was made (Daily Transcript 3078, 7 April 2009, Day 65). However, when shown to the court, it turned out to be exhibit 73, which is the list of revised donations published by the plaintiff after the series of four meetings he and the fourth and fifth defendants had with Mr Sung Joo Sung, in which Mr Sung Joo Sung revealed the names of donors in this book (Exhibit 73, 23 February 2000). There is no such allegation in this document, and in the matter complained of which appeared in the same newspaper, the fourth and fifth defendants are in fact recording what Mr Sung Joo Sung has told them about money being owed to him (Daily Transcript 3093 – 3094, 7 April 2009, Day 65). (j) Mr Sung Joo Sung claims he is the author of the March and April monthly accounts (paragraph 20 of his statement). However, the minutes for 2 May record Mr Kim, who took over his position, presenting these accounts, not on his own behalf but on behalf of Mr Joo Yong Jo, the financial director, who was ill. Mr Jo prepared May accounts, and did so both for the Supporting Committee and the Sports Council (he was their treasurer). Mr Sung Joo Sung was certainly at the Supporting Committee until late March but he was replaced by Mr Kim in April, according to the Minutes. Mr Sung Joo Sung may have had some input into the March monthly account (in which case, where are January and February?) but on the balance of probabilities I do not accept his evidence that he prepared the April accounts. He and other witnesses for the defendant sought to play down the role of Mr Joo Yong Jo as financial director. I find that, given the contents of the May meeting (Exhibit 51 p. 28) this report was prepared by Mr Joo Yong Jo, not Mr Sung Joo Sung. [398] I find that Mr Sung Joo Sung feared was that with the publication of the list of donors which he knew to be incomplete, suspicion would fall on him as the record keeper at the time many cash donations were made. In those circumstances, I do not accept that the Green Book entries accurately reflect either the bookkeeping for the Committee or the actual document Miss Chae kept. [399] Mr Sung Joo Sung's evidence on other issues was also unsatisfactory. He sought, in his supplementary statement (paragraph 1), to claim the plaintiff had been rude to and shouted at people in the Committee, such as Mr Hak Soo Cho, the seventh defendant. However, when he was asked about an entry in the Activities Diary describing him as having a dinner with Mr Hak Soo Cho and Vice President Byung Doo Choi, he denied it, saying "I don't know those names" (Daily Transcript 3098, 7 April 2009, Day 65). [400] In case the witness had misunderstood Mr Evatt's pronunciation, I intervened to help him, pointing out that not only the seventh defendant, Mr Hak Soo Cho's name was there, but also the plaintiff's. He still claimed not to know who they were (Daily Transcript 3098 and 3102-3103, 7 April 2009, Day 65). He denied the entry for 3 February, which showed him coming to the Supporting Committee office in company with Mr Myung Nam Kang, and said he had never heard of this person. (Daily Transcript 3099, 7 April 2009, Day 65). He also denied being at the weekly committee meeting of the Sports Council and Supporting Committee which then took place (Daily Transcript 3099, 7 April 2009, Day 65). He went on to deny all other entries, including one that described him bringing in 100 volunteer forms (Daily Transcript 3100, 7 April 2009, Day 6). Upon being faced with further entries for 6 and 7 March, Mr Sung Joo Sung angrily informed the court he would not answer any more questions as it was a "waste of time" (Daily Transcript 3101, 7 April 2009, Day 65). On being directed to do so, he said the entries were "falsified" (Daily Transcript 3102, 7 April 2009, Day 65). [401] Mr Sung Joo Sung was also shown the Minutes of Meeting which recorded him attending the 6 January 2000 meeting in the capacity of secretary-general. He then agreed that the plaintiff had asked him to be the vice-chairman (Daily Transcript 3106, 7 April 2009, Day 65) but said he told the plaintiff he would "think" about it and decided not to do it. He then said the signature purporting to be his on the attendance register was a forgery (Daily Transcript 3106-3107, 7 April 2009, Day 65). [402] I have set out, in the section of this judgment on justification, the reasons why I consider Mr Sung Joo Sung's conduct in dishonestly taking the Committee's financial records is a matter which should be referred to the Director of Public Prosecutions. [403] The third Secretary-General of the Supporting Committee called by the defendants was Mr Won Kang. He held office only for a matter of weeks, in August – September 2000. Mr Won Kang [404] Mr Won Kang is a supermarket cleaner (Exhibit 64, paragraph 1). He was the Acting Vice President of the Korean Society in 1999 and also the Judo Association vice president. He held positions in the Korean Sports Council, which was how he came to know the plaintiff. [405] The plaintiff asked Mr Kang to become Secretary-General after Mr Sung Joo Sung, the previous incumbent, left. Mr Kang discussed the role of Secretary-General with Mr Sung Joo Sung, and was initially reluctant to take it because he knew Mr Sung Joo Sung and the previous Secretary-General had both resigned (Exhibit 64, paragraph 12). He was concerned that if there were any problems he could be blamed. [406] He started work as the new Secretary-General on 11 August (Exhibit 51; Exhibit 64, paragraph 12), was introduced to the executive at the meeting of 17 August, attended the lunch with the fourth and fifth defendants on 21 August while they carried out the administrative audit, attended a lunch and a media conference on 22 and 23 August and then went to Korea on 28 August, returning on 5 September. He attended a number of meetings and a press conference (at which he spoke), according to the Minutes and Activities Diary, and signed Expenditure Resolutions. [407] Mr Kang's evidence related to the following issues: (a) He said he donated either $500 or $1,000 cash to the Supporting Committee for which the plaintiff failed to account in his financial statement; (b) He said that the plaintiff's rudeness and bad conduct towards him caused him to resign from the committee. (a) Cash donated to the Supporting Committee [408] Mr Won Kang said there was a donation of $1,000, not $500, from the Honam Society, and that $500 of this money was from him personally. He was asked why he did not tell the auditors at the time if this donation was left off the list (Daily Transcript 2440, 25 March 2009, Day 57). His explanation was that "I didn't look at the newspaper" and "didn't know" how much the plaintiff had put for the Honam Society donation (Daily Transcript 2442, 25 March 2009, Day 57). This is contrary to paragraph 11, where he said that he did read the published lists of donors, noted he was not named, and noted that $500 was listed as a donation from the Honam Hangwoo Society (of which he was president). He knew the Honam society had not made any donation and that this sum was $1,000 and a personal donation from him. It is also contrary to material in the cross-claim where the plaintiff tells the second cross-defendant in an interview Mr Won Kang claimed to have donated $200 (Exhibit Z). [409] Even at the time the plaintiff was being cross-examined (Daily Transcript 923-924, 8 October 2007, Day 23) about whether the Honam Society had donated $1,000, he was not cross-examined about having misappropriated $1,000. It was explained to the court that the reference to $1,000 was "a typographical error" Daily Transcript 924, 8 October 2007, Day 23). In fact, it seems to have been common ground between the fourth and fifth defendant and the plaintiff that the sum donated by the Honam Society was $650 (Daily Transcript 2439, 25 March 2009, Day 57). That certainly was the figure in both their published reports. Mr Won Kang continued to assert that the plaintiff had published a figure of $500 even after being shown these reports (Daily Transcript 2439-2440, 25 March 2009, Day 5) and to say he was sure the plaintiff had published a report putting this figure at $500. This evidence is hard to reconcile with his explanation of not telling the auditors about his donation not being included because at the time he had not looked at the newspapers and therefore did not know what amount the plaintiff had put. [410] When the defendants' written submissions were served a claim was made that the plaintiff had misappropriated two sums in relation to Mr Won Kang - the sum of $500 in November 1999 and the sum of $1,000 in August 2000 (page 208). In the revised submissions, the first of these allegations simply had a line drawn through it, without any explanation. [411] In fact, there is an entry in Mr Sung Joo Sung's Green Book for November 1999 showing $1,000 being donated by "Adviser Kang", as the defendants' written submissions now concede. How the fourth and fifth defendants missed this when Mr Sung Joo Sung was assisting them and letting them look at their Green Book is not clear. However, this is the missing $1,000, and that if the plaintiff had been given access to Mr Sung Joo Sung's green book (and Mr Kang had come forward to complain about this missing donation at the time) this could all have been cleared up and his name added to the list. [412] Another matter on which Mr Won Kang gave unsatisfactory evidence was the role of the second defendant in the Supporting Committee. Although it is clear beyond doubt that the second defendant stood for election against the plaintiff for the role of chairman, and that thereafter the second defendant was the honorary president of the Supporting Committee, Mr Won Kang denied these facts not once but many times (Daily Transcript 2432-2436, 25 March 2009, Day 57) asserting that the other candidate was a Mr Kim Chun Yong (Daily Transcript 2432 and 2436, 25 March 2009, Day 57). He said the second defendant not only did not make a speech, but was not there (Daily Transcript 2432 and 2435, 25 March 2009, Day 57). He was even more emphatic when he said that the second defendant had had nothing to do with the Supporting Committee thereafter (Daily Transcript 2433, 25 March 2009, Day 57). [413] Although the second defendant did not often attend court, he was in court during this evidence. Mr Evatt complained, during cross-examination in which he was trying to ask if Mr Won Kang was employed by one of the second defendant's companies as a cleaner, and about the Committee election, that the second defendant was "intimidating" the witness (Daily Transcript 2429, 25 March 2009, Day 57) and that the second defendant "kept nodding". By that time, the second defendant had left the court. Whatever the reason for Mr Won Kang giving this evidence, I find it is untruthful. As to whether the second defendant offered money in his election speech, I note in Mr Won Kang's statement (paragraph 7) he goes on to give an explanation that the second defendant's $300,000 donation was made on two occasions by the second defendant when he was seeking election as president of the Korean Society and that when he was unsuccessful he withdrew that amount. [414] A matter about which Mr Won Kang gave contradictory evidence was his claim that he was not reimbursed for any of his expenses and that the costs of the trip ($1855 air fare, $6,000 for guide maps and $703 for expenses) came from his "own pocket" (Daily Transcript 2442, 25 March 2009, Day 57). [415] When shown the documentation for the airfare, he changed his evidence to say he had been given a ticket, and then claimed that the $6,000 had been paid direct to the flag factory and not to him, by way of explaining that he had not been reimbursed (in fact this is inconsistent with the financial records, as Mr Evatt pointed out to him at Daily Transcript 2443-2444 (25 March 2009, Day 57)). He could not, however, explain how it was that he was reimbursed $703 for expenses, and gave a convoluted explanation of money being sent to him in Korea by the seventh defendant as opposed to the Supporting Committee (Daily Transcript 2445, 25 March 2009, Day 57). Again, this is inconsistent with the documentation attached to the Expenditure Resolution. [416] What is puzzling is that his statement (Exhibit 64 paragraph 25) admitted that the Supporting Committee paid his airfare and gave him funds to cover the printing costs. The statement incorrectly goes on to say that he incurred expenses of $950 for which he was not reimbursed; in fact these expenses came to $703 and he was reimbursed. [417] Paragraph 25 of his statement contains another matter about which he contradicted himself in the witness box: "My role with the Supporting Committee was in the capacity of a volunteer. I never asked Mr Cha or anyone else to be paid any money as wages for the work I did for the Supporting Committee and I did not receive any money as wages." [418] However, when Mr Won Kang explained what his fight with the plaintiff was about, it was a dispute about an allowance of $300 a week. None of this had been particularised, so it came as a surprise to everyone from the plaintiff (to whom it had not been put) to the parties' legal representatives. [419] Mr Won Kang said in his statement that the dispute arose because of his concerns "as to what was happening with the Supporting Committee's financial accounts (Exhibit 64 paragraph 20) and in particular approaching companies for donations more than once. However, the version he have in the witness box was that the plaintiff had offered to give him $300 per week for "meals and petrol" (Daily Transcript 2446, 25 March 2009, Day 57). He claimed the plaintiff in fact offered him the position on the basis that he would be paid this regular weekly amount, and that he had replied "I don't need that money" (Daily Transcript 2446, 25 March 2009, Day 57): "Q. What's this all about a fight with Mr Cha? A. INTERPRETER: We just had an argument. Q. The argument was that you asked for wages even though it was a voluntary organisation. Is that right? A. INTERPRETER: No, it wasn't about that. Q. You wanted money for your expenses. A. INTERPRETER: Because initially he said he will - initially because he said he will pay me, so I did ask him whether he was going to reimburse, but I didn't sort of say it in a forceful way. Initially he said he would give me $300 and I said I didn't need to. Q. What was the $300 for? A. INTERPRETER: He said, "I give you $300 per week for meals and petrol." Q. That's what you asked for, isn't it? $300 per week for meals and petrol for yourself. A. INTERPRETER: No, I didn't. Q. And Mr Cha refused, and you started to fight him. A. INTERPRETER: No, it wasn't like that. Q. And he had to defend himself. Is that correct? A. INTERPRETER: No, it wasn't about the money. It's not because I wasn't paid I started a fight. Q. Tell us about the $300 per week for petrol and expenses. What was that about? A. INTERPRETER: I can't understand your question. Q. But you just said so. $300 per week expenses and petrol. What was that about? A. INTERPRETER: For about a month, on a number of occasions, Mr Cha - at the time we were friends - he asked me to become secretary-general and I refused, but in the end I said yes because he was my friend. Mr Cha said, "If you do accept my offer, I will pay you $300 per week for petrol and lunch expenses." So I said, "I don't need them. I don't need that money." [420] Whether Mr Won Kang gave this generous reply or not (and it must be remembered that this conversation was not put to the plaintiff) I find that he became angry when, several weeks after starting work, he was not paid a $300 allowance. He grabbed the plaintiff and they had a fight (Exhibit 64 paragraph 21). He agreed in the witness box he grabbed the plaintiff first. [421] Mr Won Kang was unsure when this conversation took place. He initially said it happened before the Olympics but in re-examination thought it might have happened during the Olympics. [422] Mr Won Kang came to the office for the first time on 11 August and went overseas between 28 August and 5 September. It is likely that he had the fight after his return on 5 September (the athletes were due into the country on 9 September). [423] This was a committee which, as the chronology shows, was made up of a large group of volunteers who had worked tirelessly since 1998 on homestay, cheerleading, transport and other aspects of the Committee's very busy programme. Mr Won Kang joined this committee a month before the Olympics with no prior knowledge or background of what they were doing. Any request for a weekly allowance without any supporting documentation was out of proportion to any contribution he could have made, particularly as he had just traveled to Korea at the Committee's expense. [424] I reject the evidence that the plaintiff's conduct in relation to Mr Won Kang amounts to evidence of the truth of any imputation. [425] It cannot be a coincidence that a number of these witnesses who had disputes with the plaintiff did so because they wanted to be paid a "weekly allowance" (in fact a salary) for "petrol and meals". I also note: (a) Mr Dae Won Kang denied actually taking $200 per week for 10 weeks (Daily Transcript 2305, 23 March 2009, Day 55 but this is supported by an Expenditure Resolution he signed himself; (b) the plaintiff said that Mrs Park wanted $200 a week (Daily Transcript 590-591, 25 September 2007, Day 18) and as Exhibit A shows, she was in fact paid a small allowance; (c) the seventh defendant made a number of claims for expenses such as telephone (Daily Transcript 2622, 30 March 2009, Day 59) and regularly claimed $200 per week for transportation and lunch (Daily Transcript 2115, 19 June 2008, Day 54); (d) Mr Sung Joo Sung was paid a significant sum in early 1999 (Expenditure Resolution 2) and later helped himself to $1,000 of the Paek loan for "expenses" (Daily Transcript 3085, 7 April 2009, Day 65). [426] The plaintiff was funding the Supporting Committee out of his own company's pocket, including paying the salary of bookkeepers throughout the Committee's lifetime, and it was a constant struggle for him and for the Vice Presidents (who did not ask for allowances of this kind) to find funds for Committee activities: Daily Transcript 323, 13 June 2007, Day 10. [427] During the time that Mr Won Kang held this position he, like the seventh defendant and Mr Sung Joo Sung, signed a number of Expenditure Resolutions and conducted the financial affairs of the Committee in the same informal way for which the plaintiff is now blamed. This includes the manner in which he failed to keep copies of documentation and receipts, conduct for which the plaintiff is now blamed. [428] The defendants' complaints about the plaintiff spending excessively on meals needs to be seen in light of requests not only for reimbursement for specific meals but the fact that a number of committee members, notably the seventh defendant, Mr Kang and Mr Sung Joo Sung, were seeking allowances for meals and reimbursement for expenses. Far from counseling the plaintiff to spend less on meals, they wanted more. Conclusions concerning Mr Sung Joo Sung, the seventh defendant and Mr Kang [429] The seventh defendant, Mr Sung Joo Sung and Mr Won Kang are not witnesses of credit whose evidence I can accept. This is not because of their claims that the Activities Book and Minutes entries are forgeries, or because they made mistakes about dates and times; these could be the responses of frightened or tired witnesses. The conduct of the seventh defendant and Mr Sung Joo Sung, while in charge of the Supporting Committee's finances, shows that they were independently in charge of recording the Supporting Committee's financial activities, and they have attempted, unsuccessfully to deny it. [430] It is significant, in my opinion, that although the plaintiff clearly was dissatisfied with the performance of Mr Sung Joo Sung and the seventh defendant, and spoke to both of them about recording cash donations, he was not able to sack or get rid of them. This is an indication of where the real power lay in the Supporting Committee; the plaintiff, whose age and status was below both these persons, was bound by Korean custom to tolerate their behaviour. All he could do was to appoint the Sports Council's treasurer, Mr Joo Yong Jo, as the financial controller over their head. [431] I should briefly mention the financial director, Mr Joo Yong Jo. He did not give evidence during this trial. What was his role in the Committee, and were the fourth and fifth defendants entitled to exclude him from being consulted or taking part in the audit? Mr Joo Yong Jo [432] Mr Joo Yong Jo was not only the financial controller of the Supporting Committee; he was also the treasurer of the Sports Council. In the Minutes of Meeting for 17 January 2000 (Exhibit 52) he is listed separately in each of these capacities. He prepared financial statements for the Supporting Committee for the period February to May, according to the minutes; the May statement in the minutes shows he prepared a similar statement for the Sports Council. [433] Mr Joo Yong Jo may have been initially appointed the financial controller shortly after the Committee was set up (Exhibit SS) but there is little information about what he did, although the defendants in written submissions note some Expenditure Resolutions signed by a financial controller in April 1999. The Minutes (Exhibit 52) show he was appointed financial controller from November 1999, and he was authorised to sign cheques from January 2000 (Exhibit 15) when the new cheque account was opened. Although Exhibit 15 refers to a Mr Ju Young Cho as the treasurer, the address for Mr Ju Young Cho was 51 Tarana Crescent, which is the same address as Mr Joo Yong Jo. The interpreters have explained to the court during this trial that there is no standard Romanisation of the Korean language. [434] The plaintiff said (Daily Transcript 257, 12 June 2007, Day 9) he left the bookkeeping up to the treasurer Mr Joo Yong Jo. Mr Wheelhouse merely asked if that was Mr Stephen Cho, to which the plaintiff replied that he did not know Mr Joo Yong Jo's Christian name. Mr Wheelhouse SC avoided any reference to Mr Joo Yong Jo thereafter and the statement that the plaintiff relied upon him was not challenged. [435] A number of the defendants' witnesses, including the fifth defendant, claimed they did not know who Mr Joo Yong Jo was (Daily Transcript 2896-2897 and 2909, 3 April 2009, Day 63), the inference being that Mr Joo Yong Jo had played no part in the Committee's activities. For example, on Day 56, Mr Dae Won Kang says he did not know Mr Joo Yong Jo personally (Daily Transcript 2371, 24 March 2009, Day 56). I do not accept this evidence from any of these witnesses. Mr Jo was not only playing the role of financial director in the Supporting Committee, but he was Treasurer of the Sports Council as well, of which the fourth and fifth defendants were both active members as representatives of the sports of basketball and judo. He not only attended the same Supporting Committee meetings as Mr Dae Won Kang, but they were both on the board of the Korean Sports Council. [436] The denial by these witnesses of Mr Joo Yong Jo's identity is unlikely to be a mistake due to the effluxion of time. The fourth defendant referred to Mr Joo Yong Jo in his cross-examination of the plaintiff. He told the plaintiff that he had rung Mr Joo Yong Jo the night before and Mr Joo Yong Jo said he had been sacked by the plaintiff. (see Daily Transcript 1290, 17 October 2007, Day 29; this was an allegation made in the fourth defendant's statement which was later deleted). The plaintiff replied: "No, I have never done so and if that person is in Canberra, you can bring him as a witness to ask." (Daily Transcript 2191, 17 October 2007, Day 29). On one occasion I asked Mr Dae Won Kang, who was listing signatures on an Expenditure Resolution, if Mr Joo Yong Jo's signature was on a cheque requisition, and he said it was (Daily Transcript 2279, 23 March 2009, Day 55). [437] The defendants assert that Mr Joo Yong Jo never signed any Expenditure Resolution (second defendant's written submissions paragraph 21, p. 49). Examples of requests by him for payment include Expenditure Resolutions a-27, a-28, 20, 32, 37, 41, 43, 46, 47, 49, 50, 54, 55, 57, 60, 61, 69, 79, 288 (the James Ahn Academy was his coaching college) and Expenditure Resolution 2-291. Furthermore, he participated in keeping the financial records or in signing cheques. He was one of the two signatories to the cheque account from January 2000 (Exhibit 16), and he also did the banking at times; the plaintiff said that it was because Mr Jo put the $10,000 loan into the wrong account (the one for which Mr Sung Joo Sung was a signatory and had the cheque book) that eight cheques were not met on presentation due to lack of funds: Daily Transcript 375, 14 June 2007, Day 11. Mr Wheelhouse SC's claim that "as far as the second defendant is aware" (written submissions p 49 paragraph 22), Mr Joo Yong Jo did not sign any cheques is disingenuous. He was the only other signatory apart from the plaintiff and by definition any signature on the cheques from January 2000 which is not the plaintiff's is likely to be his. [438] Mr Joo Yong Jo attended Committee meetings on 6 January, 9 March and 15 March, 6 and 22 April, 12 May and 6 June meetings. At the 15 March meeting there was a business plan prepared for the Olympics. There was a great deal of lively discussion of its contents and it was agreed that the business plan be redrawn by the executive. At the meeting on 6 June Mr Joo Yong Jo presented monthly accounts for May for the Sports Council as well as for the Committee (an earlier report for February – April had been presented by Mr Kim on his behalf as he was away) and the plaintiff announced a newly drawn up organisational chart. He also attended the next meeting, on 21 July, when there was extensive discussion of the SK donation, but not the final meeting of 17 August. The Committee prepared an expenses budget for the Paralympics was sent to the Korean consulate and there were a number of business plans throughout 2000, all of which would have been among the documentation and correspondence seen by the fourth and fifth defendant when they took over the Committee's fittings and office contents, and none of which were tendered. [439] The defendants submit that the plaintiff "cannot be relieved of his responsibilities" because he was Mr Joo Yong Jo's "supervisor" because if he was not performing satisfactorily the plaintiff could have "terminated" him (written submissions paragraph 23). This is an unrealistic submission given the voluntary nature of these positions. It was clear from the very careful way that the plaintiff went about things that terminating a volunteer in this organisation, where deference to social status and age were at a premium, was a matter of great delicacy. [440] Furthermore, Mr Joo Yong Jo was operating under a heavy burden. He had no financial records to work from, because Mr Sung Joo Sung kept them. Mr Sung Joo Sung continued to keep the books until 21 December (indeed, up until April, if Mr Sung Joo Sung's statement is to be believed), which was well after the appointment of Mr Joo Yong Jo as financial director, so clearly the expectation was that Mr Sung Joo Sung would continue to do the books but with a financial adviser supervising. [441] As the treasurer of the Korean Sports Council, Mr Joo Yong Jo was the best person to advise about financial transactions involving the Sports Council such as loans, the circumstances of Supporting Committee donations being used for alleged Sports Council purposes (e.g. Mrs Kim's donation) and the reimbursement of the plaintiff for the sums he claimed. The Sports Council was an incorporated association which, it should be assumed, kept records of these transactions in accordance with its statutory obligations. The fourth and fifth defendant could never have prepared accurate audit records without consulting Mr Joo Yong Jo. Their failure even to consult him is hard to explain given paragraph 140 – 1 of the statement by the fourth defendant: "I simply could not prepare an audit of the Supporting Committee without access of [sic] the sports council documents. The position was especially difficult as Mr Cha had paid money into the sports council account without keeping proper records of this activity. Mr Cha spoke to me with very rude language. He said to me words such as "you bastard I don't want to speak to you. At exhibit HJP2 tab 21 is an advertisement from the Top newspaper reporting Mr Cha's expulsion from the Sports Council. The publication was made on 30 March 2001. Once Mr Cha had been expelled from the Sports Council, I thought there was nothing I could do to reconcile the two accounts. I felt very insulted by Mr Cha in the way he wouldn't help me complete my audit." [442] All the more reason, one would think, why the fourth and fifth defendants should seek help from the Sports Council's treasurer, Mr Joo Yong Jo. [443] Even if the fourth and fifth defendants considered Mr Joo Yong Jo to be tainted in some way by association with the plaintiff, that does not explain their failure to consult the Korean Sports Council board and accountants if they were genuinely concerned that there were irregularities. As the publications after 30 March 2001 by the first defendant (Hojudonga Newspaper) show, the resignation of the plaintiff led to the removal of all Sports Council officials (who are referred to as "Mr Cha's Party" in subsequent publications in Hojudonga, set out in the schedule to this judgment). This would mean that there were people on the Sports Council who were anxious to get to the bottom of things – if there was anything to get to the bottom of. There was every reason why, if there were gaps in the audit, the fourth defendant could have approached those newly appointed, or the Sports Council accountants, or the Sports Council's new temporary auditors (see the 31 March 2000 matter complained of, describing their election), one of whom was well known to both the fourth and fifth defendants, namely the seventh defendant. [444] Although the fourth defendant refers to having learned of this meeting of the Sports Council through an "advertisement" (actually the 30 March 2001 matter complained of), he was in fact at this meeting, as the evidence of all witnesses shows. It was while he was at this meeting that he assaulted the editor of the Oceanic Review, knocking his glasses to the ground' [445] If the fourth and fifth defendant could not get this information from the Sports Council while the plaintiff was president, who was president after that, and why did this person not help the fourth and fifth defendants by giving them the records. However, Mr Dae Won Kang, who has been an office bearer in the Korean Sports Council for the last 15 years, including holding the position of President and Vice President continuously since shortly after the plaintiff resigned in 2001, was called as a witness. Sports Council President Dae Won Kang [446] The evidence of this witness, a Mr Dae Won Kang, who at the time owned a Korean restaurant in Campsie, is set out in a statement which is Exhibit 62. This statement was originally prepared in 2007 and these dates (for example his age and period of time in the Sports Council) relate to 2007, not 2009. He sets out in paragraph 6 of Exhibit 62 a very long history of being a director of the Sports Council for 15 years as well as being President and Vice President for the past seven years. He participated in the setting up of the Supporting Committee and was appointed a director by the plaintiff shortly after his election (Exhibit 62 paragraph 8). [447] According to the Minutes, Mr Dae Won Kang was appointed organizing sub-committee member on 1 December 1999, the same meeting at which Mr Joo Yong Jo was appointed Financial Director (Exhibit 51 p. 68). However, in his 2009 statement (but not his 2007 statement) Mr Dae Won Kang challenged this, and said he did not recall such an appointment. The Minutes refer to him giving reports and attending meetings in this role. [448] Although Mr Dae Won Kang says in his statement he was very busy and "not able to participate to any much greater extent" in the Supporting Committee (paragraph 11 of Exhibit 62), Exhibit 51 contains signed attendance sheets for the monthly meetings following his appointment as Organising Subcommittee chairman on 1 December 1999 confirming his presence (see the meetings of 6 January, 10 February, 15 March, 6 April, 2 May, 6 June, 21 July, 28 July, 16 August). Further, Mr Kang's extent of involvement enabled him to observe that "Chairman Cha checked daily records" (Daily Transcript 2277, 23 March 2009, Day 55). [449] Mr Dae Won Kang is also referred to a number of times in the Activities diary (Exhibit 52). According to the Activities Diary and Minutes, he played a role in the SK Securities activities, including arranging (on 26 July) a venue for the function and helping to mail out the 428 invitations to members of the Korean community for this function, which the Supporting Committee had agreed would have a budget of $20,000. He specifically asked about the terms of the SK donation, according to the Minutes of 21 July. [450] He was also in the office on 18 August while Miss Lee was preparing the documents for the administrative audit (noted in the diary as to take place on 21 August) and again attended the office on 21 August and went to lunch with Miss Lee, the fourth and fifth defendants (whom Miss Lee describes in the Activities Diary as spending the day there) and the seventh defendant. [451] Mr Dae Won Kang challenged all these entries in the Activities Diary, and all his signatures in the Minutes, and said that the references to joint meetings of the Sports Council and Supporting Committee were not on the Attendance List when he signed it (Daily Transcript 2346, 24 March 2009, Day 56). However, these Minutes refer to his reports on the cheer squad (e.g. 2 May) and the suggestion that the reference to the Sports Council was in some way added to this document after he signed it is implausible, not least because executive members from the Sports Council were in attendance at such meetings and Sports Council activities with the Supporting Committee were discussed (Daily Transcript 2346-2347, 24 March 2009, Day 56). [452] Mr Dae Won Kang claimed that when he signed the record of attendance he was never allowed to look at the minutes, and that he was never sent copies of the Minutes of meeting, although the Activities Diary records the sending out of agendas and the Minutes record the discussion of matters raised in previous meetings (Daily Transcript 2351, 24 March 2009, Day 56). He also claimed not to know the financial director of the Sports Council and the Supporting Committee, Mr Joo Yong Jo (Daily Transcript 2371, 4 March 2009, Day 56), although Mr Joo Yong Jo was appointed to this position at the same meeting, and was also the treasurer of the Sports Council. [453] Hours of Mr Dae Won Kang's cross-examination were spent in denying that the Sports Council and Supporting Committee met at all, then that he was given notice of these meetings, and then on whether he signed the attendance register. To be more precise, Mr Dae Won Kang was certain the Committee "never" met with the Sports Council (Daily Transcript 2336-2337, 4 March 2009, Day 56) and denied that the Minutes' reference to the two organisations being united in working for the Olympics. He challenged the translation and a day was spent on a retranslation of the phrase in the Minutes "and the Supporting Committee and the Sports Council were merged or came together as a result of that meeting" before eventually (Exhibit 51A) a compromise agreement was reached that the translation should read that the Sports Council and Supporting Committee "should be united in one spirit and cooperate with each other" (Daily Transcript 2325, 24 March 2009, Day 56). [454] Mr Kang asserted the plaintiff had proposed that these two organizations should be amalgamated and said that the Committee had opposed this because the Sports Council was an incorporated body while the Supporting Committee was intended to end after the Olympics. However, the business card he presented at the end of his evidence shows there is still an unincorporated Olympics Association (although with a slightly different name); he is the chairman of both. [455] When shown minutes of meeting containing his actual signature (the originals of these minutes still exist) Mr Kang asserted the Minutes had never been sent to him, or that they had been altered after he signed them (Daily Transcript 2347 and 2351, 24 March 2009, Day 56) to change the name of the meeting from "Supporting Committee" to include a reference to the Korean Sports Council added later. When asked to explain why officials of the Korean Sports Council who were not members of the Supporting Committee were at this meeting, he said they had been invited by the plaintiff. After being showed a series of minutes with his signature he continued to say he was "still denying": "A. INTERPRETER: I'm saying it hasn't existed. I'm still denying. Q. You're still denying it? Look at D1 again-- A. WITNESS: Yeah. Q. Look at D1 again. It says, "Attendants, 18 people, refer to attachment." You see where it says, "18 people, refer to attachment"? A. INTERPRETER: Yes. Q. Look at D2. There's the list of 18 people and your name is one of them. A. INTERPRETER: Yes, mine is on the top. The first one. Q. Correct. You were one of the 18 people who attended the monthly meeting of the Sports Council and the Supporting Committee. A. INTERPRETER: Well, as I said - as it says here on top of the document, it says, "Olympic Supporting Committee list of attendees," so this is what I have attended and this document that you showed me - it's like D1 - is not the sort of document that we were able to - or have a look at it at the time." (Daily Transcript 2351, 24 March 2009, Day 56) [456] Mr Dae Won Kang specifically referred in both his 2007 and 2009 statements to his lengthy involvement in the Sports Council up to that time, and it is clear that the amount of time he spent as a director, vice-president and president would have made him the logical person to give evidence concerning the Korean Sports Council's reimbursement of the plaintiff, financial arrangements and loans, and just what the relationship between these two bodies were. This did not happen. He gave no evidence of monies being paid by the plaintiff to the Korean Sports Council which should not have been paid, or of loans to and from the Sports Council by the plaintiff that should not have been made, or of any shortfall or wrongdoing by the plaintiff in relation to his record-keeping at the Sports Council, whether in relation to the Supporting Committee or generally (and his comments about the plaintiff in the matter complained of dated 30 March 2001 should be read in this light). [457] This is a significant omission by the defendants. I note that Sports Council records were amongst the documents the defendants required the plaintiff to translate (Exhibit 76). They were available to be put to this witness and explained by him. [458] Instead of providing corroboration of these matters, and in contradiction to paragraph 6 of his 2007 statement and 2009 affidavit, Mr Dae Won Kang not only attempted to minimise his role on the Sports Council, he even denied it (Daily Transcript 2367, 24 March 2009, Day 56): "A. INTERPRETER: …At that time I was a vice-president, vice-chairman of the Volleyball Association but this - what you have just shown me - is to do with Sports Council, nothing to do with Supporting Committee. Q. But you were on the Sports Council. A. INTERPRETER: At that time, you mean? Q. Yes. A. INTERPRETER: No, I wasn't a member of the Sports Council. I was a vice-chairman of Volleyball Association, not Sports Council." [459] I have noted, in the summary of parties at the beginning of this judgment, that the Volleyball Association is the organisation for which the second and seventh defendants were successively the presidents. [460] I found this so astonishing, in light of his statement, that I checked with Mr Wheelhouse SC: "HER HONOUR: … I thought we heard that this gentleman was a member of the Korean Sports Council-- WHEELHOUSE: No, he denied he was. HER HONOUR: Did he? WHEELHOUSE: Yes. HER HONOUR: In that case, maybe he was - was he at the meeting? Maybe he saw this document and he would have known. EVATT: But that document was at the meeting that he's signed as being in attendance." (Daily Transcript 2368, 24 March 2009, Day 56) [461] He went on to repeat that he was not on the Sports Council, and also to say he did not know that the Volleyball players asked the Supporting Committee for $445 for meals: "Q. What was presented to the meeting was the financial statements of the Korean Sports Council for May. A. INTERPRETER: That's not true. It was of the committee. Q. Did the volleyball players have meals on 18 May valued at $445? A. INTERPRETER: Even if I was - as I mentioned, I was the vice-chairman of Volleyball Association - this, what you're referring to, I was - I have not known. I didn't know. Q. The question was "Did the volleyball players have meals to the value of $445 on 18 May?" What's your answer to that? A. INTERPRETER: That I do not know. I can't answer. I do not know. Q. What about on 8 May, the $500? A. INTERPRETER: I don't know anything about that. Q. What was the secretary-general of the Sports Council? A. INTERPRETER: That I'm not - I don't know because I wasn't involved with Sports Council." (Daily Transcript 2370, 24 March 2009, Day 56) [462] He also claimed not to know Mr Joo Yong Jo personally, the finance director of the Supporting Committee and treasurer of the Sports Council, although he agreed he had heard of him (Daily Transcript 2371, 24 March 2009, Day 56). [463] Eventually, in re-examination, he offered the following explanation for these inconsistencies between his statement, the contemporaneous documents and his evidence in court: "Q. Did that position mean that you were on the Sports Council? A. INTERPRETER: No. I wasn't but can I explain. HER HONOUR: I'd like him to explain. I don't understand what his position on the Sports Council was. Did he attend meetings or what? WHEELHOUSE Q. In the year 2000 were you a member of the Sports Council? A. INTERPRETER: I wasn't. Q. Did you hold any position on the Sports Council? A. INTERPRETER: Not at all. Q. Did you have anything to do with the Sports Council? A. INTERPRETER: Nothing at all. HER HONOUR: You said only 2000. What about in other years? WHEELHOUSE Q. What about in 1999? Same position? A. WITNESS: Yes. WHEELHOUSE: Does that clarify the position for your Honour? HER HONOUR Q. So you have never held any position on the Sports Council? Is that right? Ever? A. INTERPRETER: I'm sorry, I have to go back, right at the beginning. I wonder whether that - the Sports Council, for instance, it works like this. If there is a chairman elected, that chairman will compose the members of the council, and I was the vice chairman of the volleyball association, therefore it's different from participating in Sports Council as a member. Q. Does that mean that - so you've never been a member of the Sports Council, is that right? A. INTERPRETER: I have been. When Mr Cha was the chairman of Sports Council, I used to travel to out of New South Wales, out of Sydney, and I was a lot of times outside of Sydney when Mr Cha was the president of Sports Council. HER HONOUR: Now look, this is-- WHEELHOUSE: I just need to ask this question clearly. Q. Have you ever been a member of the Sports Council before 1998? A. INTERPRETER: On many occasions I was. Q. After May 1998, were you ever a member of the Sports Council? A. INTERPRETER: I have been on many occasions. Q. But during what period? Do you recall? A. INTERPRETER: While Mr Cha was the chairman of the Sports Council, even if there was an offer, I wasn't involved with Sports Council as such because I was out of Sydney or out of area doing other things. HER HONOUR: This is just not good enough, sir. WHEELHOUSE: I think he's trying to explain. HER HONOUR: No, what it is that he's saying he was on the Sports Council but he was out of Sydney. Q. Is that right? A. INTERPRETER: I declined the offer of becoming a member of Sports Council when Mr Cha asked me to become a member of Sports Council, because I was busy. Q. When was that? A. INTERPRETER: Maybe it was - might have been 97, 98." (Daily Transcript 2379 - 2380, 24 March 2009, Day 56) [464] This is completely different to his statement and, more revealingly, the business card he gave to me at the end of his evidence: "INTERPRETER: Mr Kang would like to give this card to you. HER HONOUR: No, judges don't take - first of all, you already gave me your business card once and it's now in packet 16. If you want to give it to me again, I'll add it to packet 16 if you'd like. How about we do that? In that case, give it my court officer and we will put it in packet 16. INTERPRETER: I am the chairman of Sports Council and I've been in this role in the last five years now. … INTERPRETER: So he would like to-- HER HONOUR: I tell you what, where is this business card? Wait a moment, let's have a look. I think this might be evidence. "The Korean Olympic Committee, Korean Sports Council of Australia." So does this mean this committee is still going, and he is now the president? EVATT: I tender this. HER HONOUR: Thank you, yes. Thank you very much, Mr Kang. In that case, are you tendering that document?" (Daily Transcript 2382, 24 March 2009, Day 56) [465] The business card, which is Exhibit BBB, is the current business card for Mr Dae Won Kang, showing him as president not only of the "Korea Sports Council of Australia", but a separate organization called the "Korean Olympic Committee". Although this is a different name, it seems likely it would perform similar tasks to the Aus-Kor Olympic Supporting Committee. [466] What was Mr Dae Won Kang's own standard of record-keeping? This should be an indication of how he considered records should be kept. However, his problems with documentation, including not providing receipts and dealing with cash payments, account for some of the matters for which the auditors blamed the plaintiff: (a) Expenditure Resolution 2 - 337 (16 July 1999) states that Mr Dae Won Kang "holds the receipts" for the $2,100 expended on the inauguration ceremony held in March 1999. That receipt was never produced. (b) Expenditure Resolution 337 (for $2,160 for meals) notes he has the receipts and Expenditure Resolution 198 ($1,500 for reimbursement to him for guide maps) does not have a receipt either, and instead attaches a letter from him. The defendants blame the plaintiff for these receipts being missing (for example: Daily Transcript 117, 6 June 2007, Day 6; Daily Transcript 238, 12 June 2007, Day 9). (c) According to Expenditure Resolution 180 he claimed an expense account of $200 per week and was paid a total of $2,000 but he denied that he ever received this money (Daily Transcript 2305, 23 March 2009, Day 55), saying "ask Bob Cha". (d) He was given the cheque for $1,100 to pay for the Uniting Church letting the cheer squad practice (the cheer squad was one of his responsibilities). He gave $450 to the church and the whereabouts of the remainder was the subject of cross-examination at Daily Transcript 2330 (24 March 2009, Day 56). His failure to pay the church the money owed, when he knew as the Organising Sub-Committee Chairman that it was owed, is what led to the allegations in imputation. Although the minutes clearly identify him as the Organising Sub-Committee Chairman, he sought to blame another person, namely Mr Dung Soo Kim (Daily Transcript 2332, 24 March 2009, Day 56). (e) He was the person who signed the Expenditure Resolution giving the seventh defendant cash to purchase Olympic tickets. This is dealt with elsewhere in this judgment. He highlighted all his signatures, and it is clear that the relevant portion was added after he signed. [467] Mr Dae Won Kang said in his statement that although he was not able to participate much in the Committee's activities, he observed that the plaintiff was in charge of the finances because the plaintiff "had the custody of the cheque books". This is contrary not only to the evidence of the plaintiff but also Mr Sung Joo Sung, who agreed he had one of the cheque books. [468] Mr Dae Won Kang was one of the persons listed by the Activities Diary as having lunch with the fourth and fifth defendant during their administrative audit at the Supporting Committee offices on 21 August 2000 (Exhibit 52 pages 23 – 4). He denied that this was correct. [469] Mr Dae Won Kang said that he was in charge of raising money for the Supporting Committee and that he flew to Korea at his own expense to do this. However, his affidavit does not identify any person or organization who donated as a result. The only person who did donate as a result of Mr Kang's activities was Mrs Kim, for whom he acted as a tour guided during her visit to Australia during the Olympics. I have dealt with this issue in the section of this judgment concerning the plaintiff's credit. [470] There is no reference, in Mr Dae Won Kang's statement, to any specific allegation that the plaintiff shouted at staff or a specific occasion when he behaved in a self-righteous manner. Although Mr Kang claims to have been an "infrequent" (paragraph 10) visitor who attended "irregularly" (paragraph 9), that is not what the Committee records show. In fact, they show he was paid an allowance of $200 for ten weeks during 2000 (which he also denied). If he was attending as often as these documents suggest, he would have observed such conduct and should have been able to give specific examples. He did not do so. [471] Having regard to the unsatisfactory way that he challenged the honesty and accuracy of everything from his own signature to translations of the Minutes, I reject any evidence of Mr Dae Won Kang which cannot be corroborated by reliable evidence. I note, in addition, that he did not give any evidence on disputed issues of fact concerning the Korean Sports Council, in circumstances in which the defendants bear the onus of proof. [472] It is important to deal with the credit of these witnesses before considering what happened during the audit. The fourth and fifth defendants had no prior experience of auditing and were dependent upon the seventh defendant and Mr Sung Joo Sung in particular to help them perform this task, which was frankly beyond their capabilities, even if the records had been in good order. What happened during the audit? [473] As the summary of events set out above shows, it is only by careful comparison of the accounts of each of the parties with the contemporaneous documentation that what in fact occurred can be discovered. Even if I uncritically accepted the evidence of the defendants and their witnesses, it is so long ago that many events have simply been forgotten. Whenever there is an inconsistency between a contemporaneous document and the testimony of a witness, I propose to regard the contemporaneous document with the care recommended by Ipp JA in his article ("Problems with Fact-finding") on witness credit. This brings me to consideration of the entry in the Activities Diary concerning when the administrative audit (as opposed to the financial audit) started. When did Mr Park and Mr Lee start to prepare the audit? [474] The fourth defendant's written submissions dismiss the entry in the Activities Diary stating that Mr Park and Mr Lee came to the office on 9 August 2000 as "plainly wrong" and goes on to assert that any claim that an audit was carried out that day is wrong, especially as the time given is 10 pm (Exhibit 52, Committee Activities Diary, page 23) [475] However, the Activities Diary does not say that the audit was carried out that day. There are not one but three entries in the Activities Diary relating to visits by the fourth and fifth defendants during August 2000. They are: (a) 18 August - preparations "for the administrative audit" to take place on Monday 21 August. The matters for administrative audit are listed. They are: "1. Supports for the Korean team 2. Matters of cooperation with SOCOG 3. Matters of harmony and unity of the Korean society" This paints a very clear picture of what this role of the administrative auditor (the fourth defendant) really entailed. (b) The entry of 21 August reciting that Mr Park and Mr Lee commenced their administrative and accounting audits of the Committee, and that they attended a lunch that day at Chamnamujib Restaurant with the plaintiff, Byung Doo Choi, Stephen Cho, Won Kang, Dae Won Kang, Ok Ja Park and Mi Gi Lee. That evening there was an officials meeting which some of these persons (eg Dae Won Kang) attended and Expenditure Resolution 199 approving $800 for Stephen Cho's "traffic expenses and meals" was passed. (c) On 31 August there is a note of a call from "Hak Ju Park" (the fourth defendant) requesting that written details of supports required of the Society (guests, reception, entertainment, cheer etc). should be forwarded. This is noted in the Activities Diary as being reported to the chairman, Vice Chairman Stephen Cho (the seventh defendant) and there is a note "Assisted by chairman Duk Im Kim." This last request may, of course, have been made for the purposes of the Korean Society, but it shows that Mr Park had access to information he wanting just by making a telephone call. [476] The plaintiff said in evidence (Daily Transcript 87, 5 June 2007, Day 5) the fourth and fifth defendants did not attend to carry out the audit prior to their requests in correspondence in October. The defendants assert this is evidence the plaintiff challenges the accuracy of the Activities Diary. However, the plaintiff's lack of knowledge of the events recorded in the Activities Diary is in my view consistent with my finding that the plaintiff did not in fact control the Committee finances and left these matters up to those whom he had put in charge of the keeping of records. It was the seventh defendant and the bookkeeper, Miss Migi Lee, who were recorded as going out to lunch with the fourth and fifth defendants, and the bookkeeper who is recorded as setting up the book and records for inspection. [477] The question of who paid for the audit is also not clear. Were the fourth and fifth defendants performing this work voluntarily like the other volunteers, or were they paid an allowance, and if so by whom and on what basis? [478] According to the fourth defendant, members of the Korean community whose names he could not remember paid him cash so that he could carry out the audit, and also paid for his lunch and dinner. People whose names he could not remember also paid the advertising costs for placing the audit reports in three newspapers (no accounts were ever tendered to establish that advertising fees were paid) as well as the $1,000 cash the fourth defendant said he gave to an accountant (whose name he could not remember) for advice: "Q. They said, "We've come to the office of the Korean society to pay you and Mr Lee money to do your audit." Is that right? A. INTERPRETER: No, they didn't. Q. What did they do? A. INTERPRETER: No, because they came and they saw that we were working really hard and toiling, so they thought, "This is for the encouragement", and there it is. Q. This is all lies, isn't it? A. INTERPRETER: It's not. Q. Did you give receipts? A. INTERPRETER: It wasn't a situation where you had to give receipts. Q. Did they pay you cash? A. INTERPRETER: Yes. Q. You gave no receipt? A. INTERPRETER: No, this was just encouragement; for encouragement and for our hard work. Q. That's the very thing you've accused Mr Cha of doing, isn't it? Taking donations without a receipt? A. INTERPRETER: No, in case of Mr Cha, it was - the donations were to support Korean athletes, so the expenses had to be done for that purpose and a receipt had to be given, and it should have been properly recorded. Q. And you should have given receipts for money paid to you? A. INTERPRETER: No." (Daily Transcript 2678-2679, 31 March 2009, Day 60) [479] One of the points made by Mr Bonney Lee (an accountant) in his evidence was that there was no real communication between the plaintiff and fourth and fifth defendants of the kind to enable the exchange of information for an audit to take place (Daily Transcript 2143-2144, 16 June 2008, Day 52). What kind of communication was there? Contact prior to publication of the reports by the plaintiff on 24 November [480] Between August and October the Olympic Games took place. The day after these ended, on 30 October, the fourth and fifth defendants wrote to the plaintiff saying they wished to carry out the financial audit on 1 November: Exhibit UU. I note the following significant comment at the end of this letter: "We would like to thank the volunteer committee members for the Sydney Olympics, Paralympics and the National Games ." (emphasis added) [481] The significance is that the fourth and fifth defendant would, during their audit, object to all expenditure by the Committee in relation to these "National Games" as being outside their bailiwick. [482] The plaintiff's evidence was that he told them this date was too soon, and said he would have everything ready by 1 December 2000 (Daily Transcript 87, 5 June 2007, Day 5). He also said he told them that Mr Sung Joo Sung had taken the green book. He prepared the accounts and decided to publish them in the Korean newspapers, which he did on 24 November 2000. Contact after 24 November 2000 and before the Hojudonga article of 22 December 2000 [483] Following publication on 24 November, a meeting took place on either 1 December (according to the plaintiff) or 3 December (the auditors). The defendants say the plaintiff only gave them the red exercise book he had kept, the Expenditure Resolutions and the organisational chart. The plaintiff said he gave them everything except the CFM records. There were further meetings on 10 and/or 17 December 2000. About a week later, the first defendant, claiming to have received an interim audit report on 21 December, published a summary of its contents in Hojundonga 22 December 2000 (the text of this article is set out in the schedule of publications at the end of this judgment). Were there interim audit reports? [484] The fourth and fifth defendant deny that there was an interim report in December 2000. The fourth defendant says the first defendant stole some documents from his desk while he was out and based the Hojudonga article on them. [485] Questions of when an auditor's report is prepared, by whom and to whom it was given are rarely an issue in legal proceedings relating to their contents. The fourth and fifth defendants were not professionally trained auditors and they did not perform many of the simplest tasks, such as dating successive reports and providing them to the organization that was audited for comment. [486] The first question is who participated in the preparation of these reports. The fourth defendant's's affidavit evidence right up to the moment he entered the witness box said that he was the one who checked all the receipts and put his seal and signature on missing documents but, as set out elsewhere he withdrew this evidence. In the witness box, the fourth defendant sought to minimise his role, saying he did not write the "Olympic Support Committee Auditing Result Notice" that was published in the newspaper (Daily Transcript 2635-2636, 30 March 2009, Day 59). Doing the best I can to resolve his conflicting answers, he was "involved" (Daily Transcript 2635-2636, 30 March 2009, Day 59) in its preparation but did not write it. [487] If Mr Park's role was minor, who did prepare the report? Mr Lee said that he was in fact the person who signed all the comments on the cheque requisitions and placed his red seal on the receipts (Daily Transcript 2872, 2 April 2009, Day 62). [488] The cross-defendant said that when he read the 22 December 2000 article in Hojudonga he telephoned the plaintiff, Mr Park and the first defendant, Mr Oh. Mr Park denied giving the information to Mr Oh (Daily Transcript 1767, 30 May 2008, Day 45) and Mr Oh said he had thrown Mr Park's report into the rubbish basket (Daily Transcript 1767, 30 May 2008, Day 45). The plaintiff asked for this report in correspondence and in conversations with the fourth and fifth defendants but said he never received it. What information did the fourth and fifth defendants have before they started the audit? [489] The fifth defendant (Exhibit 71(2)) under the heading "Contacts with Mr Cha", sets out a statement about these contacts. He states that he and the fourth defendant "wrote a number of letters" to the plaintiff and attaches letters dated 28 November 2000, 18 and 24 January and 5, 13 and 20 February 2001. He also says that he telephoned Mr Cha on "many occasions", the dates of which he cannot now recall, saying words to the effect "Mr Cha, please provide to me the documents necessary to enable me to carry out the audit." (paragraph 4). He goes on to say that although he requested the plaintiff "on many occasions" to supply "the documents" to me, the plaintiff "delayed" supplying documents of the Supporting Committee and Sports Council and never provided CFM documents. [490] None of these letters written by the fourth and fifth defendants complains of delay. In fact there were four meetings in February 2001, and the plaintiff confirmed this in an advertisement he placed in TOP, the second defendant's newspaper, dating and describing his four February meetings with the fourth and fifth defendants and providing a revised list of the donations, specifically noting Mr Sung Joo Sung's Green Book (which the fourth and fifth defendants had access to by February 2001) as the source for these (Exhibit 73). How were the fourth and fifth defendants able to write any financial report capable of being called "interim report" by 21 December, and what was the urgency? [491] Mr Park and Mr Lee say they returned the documents initially offered to them by the plaintiff and only took possession of the financial records on 10 December 2000. Yet they were able to prepare an interim report before 22 December, according to Hojudonga. Hojudonga refers to an interim report which was presented to the Australian Korean Media Association on 21 December 2000. If I were to accept Mr Park's version, namely that Mr Oh came to his office while he was out and stole documents to write the story, then Mr Oh either saw a completed interim report of unusual clarity or is gifted with accounting skills possessed by nobody else in this litigation, in that he was able to understand, immediately, exactly what the interim report should say, even though it had not been written. [492] The fourth defendant still invited this thieving journalist to the press conference on 27 January. In addition, it is stated in the matter complained of there was a conference on 17 January, and in the matter complained of dated 23 February 2000 it is stated that "the audit team" (the fourth and fifth defendants) had "announced publicly in Kyo Min Korean Magazine" a total of $501,000 which was revised, in the 23 February article, to $442,000. According to the contemporaneous records, the fourth and fifth defendants made a series of public announcements of interim findings in "some newspapers" (to quote line 65 of the matter complained of dated 26 January 2001), ranging from $450,000 on 22 December to $501,000 on 23 February. [493] Is it likely that these two untrained persons could produce an interim report on these confusing and inadequately kept records in a matter of days? The answer must be no, especially if they did not have Mr Sung Joo Sung's records for 1999 (as claimed by the fourth defendant in his affidavit) until January or later, or the plaintiff's CFM cheque butts, or the Sports Council records without which the fourth defendant "simply could not prepare an audit" (paragraph 40 of his statement). [494] I do not accept the fourth defendant's claim that the documents published by the first defendant were stolen by Mr Oh and then misconstrued by him as being the interim audit report. The fourth and fifth defendants published a document they called an "interim report" to "some" newspapers (to quote the 16 January 2001 matter complained of). Both these reports gave figures for donations that were not just tens of thousands but in fact hundreds of thousands of dollars higher than the plaintiff's published list on 23 February 2001 (Exhibit 73), as well as being unexplained. This is a very substantial error by any auditor. [495] The problem for the fourth and fifth defendant was that as a result, not only did the plaintiff call for the document and said he wanted an audit by a qualified certified practising accountant, but the second cross-defendant came onto the scene. He telephoned the first defendant and asked for a copy of this report (Daily Transcript 1767, 30 May 2008, Day 45), to which he said the first defendant replied that he had put it in the waste paper basket. [496] I have had the benefit of seeing the cross-defendant in the witness box. I also had the benefit of seeing the reaction of the fourth defendant to his evidence. The cross-defendant is a tertiary-trained, English-speaking editor of a Korean newspaper established long before TOP and which, from the description he gave of its informative contents, probably enjoyed some respect in the Korean community. He was also a bitter enemy of the second defendant, with whom he was involved in litigation in the Supreme Court. When he and his newspaper editor came to the meeting of the Sports Council in March 2001, the fourth plaintiff assaulted the Oceanic Review newspaper editor and knocked him to the ground. As the transcript demonstrates, on both occasions when the cross-defendant gave evidence in court, the atmosphere was very tense. (He was cross-examined twice because Mr Wheelhouse SC requested this.) The cross-defendant was, in my opinion, someone who the fourth and fifth defendants found intimidating because of his verbal skills. [497] Concerning these interim reports, I should note a change to the evidence on an important issue during the trial. Just prior to the fifth defendant giving evidence, he sought to amend the statement he made to include a provision that he offered to provide the plaintiff with the interim report: Daily Transcript 2830-2831, 2 April 2009, Day 62. I did not permit the leading of this evidence, because it was never put to the plaintiff that he was offered the interim report. All of the contemporaneous documentary evidence (including the references in the matters complained of to the plaintiff asking for it: see for example lines 17 – 23 of the matter complained of dated 23 January 2001) is inconsistent with any such offer being made. In addition, I note the cross-defendant published an open letter to the fourth and fifth defendants in his newspaper asking for this information (this is one of the publications in the cross-claims), and he was not supplied with this information either. [498] In his statement at page 84 (Exhibit 70), the fourth defendant refers to a draft report prior to 1 March 2001. He says "I no longer have a copy of the draft report". The matters complained of dated 26 January and 23 February also refer to draft reports, with different figures for the total income of the Committee. [499] The fourth and fifth defendants have not produced any of these interim reports to the court. I do not accept the claims they make that they have lost them. It would not be possible to prepare the final report without referring to the interim report; I note, for example, that the 23 February article refers to the donations total of $501,000 (an increase on the original sum of $450,000 in the 22 December publication) being revised to $442,000. [500] Having interim audit results being published in Hojudonga that were clearly wrong, the fourth and fifth defendants found their report being challenged not only by the plaintiff (who was calling for a certified public accountant to review the findings) but by the cross-defendant's Korean language newspaper. They then had to sit down and audit the accounts properly. The first thing they did was to accuse the plaintiff of refusing to provide documents, a surprising claim from auditors who had prepared and published anything capable of being called an interim report. Did the plaintiff refuse to provide documents? [501] On 18 January 2001 the fourth and fifth defendants wrote to the plaintiff complaining there was "no indication of the period and no confirmation by the auditors" in the financial statement in the newspaper, adding "We point out that this was not an advisable action by you". This is clearly their principal concern. They ask the plaintiff to provide cheque butts, deposit books, bank statements, cash book or cash receipt and payment book, the general journal, general ledger and trial balance and "other evidence documents". [502] This is a very general list, especially from auditors who have already prepared an interim report. What did they really want? They had already learned from the plaintiff that the cash book kept by the bookkeeper, Miss Chae, and by Mr Sung Joo Sung, contained records for the period February - 21 December 1999, and they knew Mr Sung Joo Sung, not the plaintiff, had this. [503] On 22 January 2001 the plaintiff wrote to the fourth and fifth defendants saying "I would like you to show the proof of accounts report that you opened [sic] to the public through Hojudonga dated on 22 December 2000, because the content of the reported accounts differs greatly from that of the actual accounts" and sets out five matters he would like the auditors to explain (exhibit KK). These were: (a) Proof of how the $52,874 claimed not to be deposited into the account was calculated; (b) Details of the items totalling $178,868.15 said not to have been used for committee purposes and the reasons for saying this; (c) How the amount of $50,981 for private loans and interest is calculated; (d) The reasons for the Committee's cheques being dishonoured 4 times and proof of this; and (e) The list of donors and donated amounts totalling $450,000. [504] The plaintiff went on to say that if he was not given the proof by 30 January he would regard "the rumour that you are acting emotionally" as the truth. The plaintiff added that he noted that this was said to be an interim report and asked them to advise him of the final report by 30 January 2001. If the auditors could not do this, they should hand over all materials on that date "so that a professional auditor can go through it." [505] A copy of this letter was sent to "relevant organisations" which the plaintiff said in his evidence, and in his Reply (on the issue of malice), included the second defendant. [506] Instead of answering these questions or providing the interim report, the auditors sent a letter dated 24 January asking the plaintiff to come to a meeting on 27 January "for the submission of materials and the final confirmation." (Exhibit 70 tab 23). [507] On 5 February 2001 the fourth and fifth defendant sent another letter (Exhibit 11) expressing concern that there was "no indication of the financial period" for the Supporting Committee financial statement. This is a specious complaint, since it is clear from the Financial Statement published on 24 November 2000 that it covered the whole of the Committee's short life. The complaint is made that the auditors cannot carry out the audit as there were "not enough accounts records, documentary evidence, financial records, transaction statements and a lack of bookkeeping" asserting they "had not received any cooperation". This is a very general description, and by now the auditors were well aware Mr Sung Joo Sung had the accounts book covering the period up to December 1999. [508] What is of significant interest is the claim that there should be $127,775.35 in the bank account. Where did the fourth and fifth defendants get this information from? It was never mentioned in the trial. Although the fourth and fifth defendants had no trouble totalling the donations and outgoings in December 2000, and again in January and February 2001, the contention of the defendants is now that it is "impossible to ascertain" the total figure of donations to the Supporting Committee. This submission requires them to ignore not only the plaintiff's estimate of $311,466.15 in the advertisement he published on 23 February 2001 (Exhibit 73), but also the fourth and fifth defendant's own interim audit reports volunteering all these precise amounts. [509] On 7 February 2001 the plaintiff held a meeting in the office of the Sports Council. This is the first of four meetings referred to in Exhibit 73. On 8 February 2001 the plaintiff sent a press release to the Korean media (Exhibit HH). Its terms are important not only to the defence of justification but also to issues of malice. The plaintiff said that "contrary to the purpose of the press conference" the fourth and fifth defendants did not give details of the $500,000 income and "just said that they would disclose it to the newspapers unilaterally". He went on to note that the total income of the Committee was around $350,000 and he had disclosed the names of the donors. He then said: "If the auditors make a public announcement that the total income is $500,000 without my prior confirmation, this will seriously mislead the Korean community, as Hoju-donga has given false reports twice. Therefore I would like you to bear in mind that if you place an advertisement as the two auditors suggest, defamation or similar legal action will follow." [510] On 13 February 2001 the fourth and fifth defendants sent two further letters to the plaintiff (Exhibits 12 and 13). The first complained of "insufficient documents" and asked for "additional documents as soon as possible" without saying what they were; the plaintiff was simply warned:" We would like you to know that we cannot accept any unaccounted expenses." [511] The second letter, in response to the plaintiff's letter of 9 January 2001, noted the requirement for a regular general meeting and asked for a temporary general meeting. If the plaintiff refused, the fourth and fifth defendants would ask "the promotion committee of the general meeting" to convene one. [512] This second letter is the first one to bear a document number (01-Kam-005). This would suggest there is a correspondence file set up by the fourth and fifth defendants; if so, it was never produced. However, the next document in the chain is a letter of 20 February 2001 which has document number Han-Hoo-01-009 (Exhibit 70) This letter informs the plaintiff that the auditing team drew up a balance sheet "in the presence of the executives, auditing team and various witnesses over two days, 16th and 17th"." They say they "do not have any confirming data" and ask the plaintiff to come to the meeting at 1 pm on 21 February with the Sports Council's statement "in order to substantiate the debits and credits from the Sports Council to Support Committee." [513] Although it is repetitious to do so, I want to note that this correspondence is inconsistent with the proposed evidence of fifth defendant that the plaintiff was offered the interim report (Daily Transcript 2830-2831, 2 April 2009, Day 62). At Daily Transcript 2830-2832 (2 April 2009, Day 62) Mr Seck and Mr Wheelhouse SC drew my attention to transcript pages 1272, 1275 and 1287. In fact, the fourth defendant did not give a copy of the interim report to anyone, according to his evidence. In the course of explaining why he did not call a meeting of the Supporting Committee to consider the interim report, the fourth defendant listed the persons whom he thought needed to consider his report, namely the first three defendants' newspaper reporters, the Korean Society (of which the second defendant was chairman), certain Sports Council officers and members of the Korean community with an interest in the Sports Council: "Q. What did you do to have a meeting called? A. INTERPRETER: I asked to have supplementary documents. That's my answer. Q. Do you understand the question I'm asking you? A. INTERPRETER: I do not understand your question. Q. The question is, "What did you do to have a meeting called to consider your report?" What don't you understand about that? A. INTERPRETER: I collect - the reporters were called, and the previous chairman and Sports Council, and the previous Korean Society chairman and Sports Council chairman, and the Korean community members who had interest in the Sports Council. Q. Did you have a meeting with those people? A. INTERPRETER: Yes. Q. Did you show them your reports? A. INTERPRETER: No." (Daily Transcript 2645, 30 March 2009, Day 59) [514] The fourth defendant went on to say that he and the fifth defendant presented their version, and the plaintiff presented his version. However, it is clear from the report in the matter complained of covering this meeting, and from the contents of the conversation, that the claims referred to in the "interim" report referred to in Hojudonga had been abandoned. It sounds as though some sort of revised report was being presented, but if there was a further document presented at this meeting this document, too, has neither been discovered nor tendered. [515] In Exhibit 73, a notice the plaintiff sent to TOP newspaper, the plaintiff has set out the four meetings with the fourth and fifth defendants, what was discussed, what was agreed, and the revised list of contributors. He sat through four meetings (7, 14, 17 and 21 February) with these auditors despite being the target of a series of publications in both Hojudonga and TOP making grave allegations of financial dishonesty. In Exhibit 73 the plaintiff says: (i) "Although $340,000 as a total amount of donations was published in November last year, Honjudonga published that $450,000 were [sic] donated according to the auditor's interim audit data, suggesting that I misappropriated $100,000. While I was waiting for its basis of the calculation, they now further published the total donations were $500,000, with its calculation basis. Anyone can tell they are fakes at a glance. $116,600 which were paid by my company cheques are put as income and $23,000 is double-calculated by adding up totally irrelevant data. Further, despite the fact that the donation from KBS was directly transferred into the account, they added the $10,500 based on the rumour of receiving 20,000,000 won, which is part of its double calculations of $174,600 , to make up the $500,000. (ii) Suggesting the basis of the double calculations of $174,600 and expecting it to be recognised as reasonable, I held four meetings with Korean community elders and auditors on 7th, 14th, 17th and 21st February but confirmed nothing but emotional confrontations. Whether the donations of $310,000 I published or those of $500,000 from the auditors are correct can be clarified by the data. This is a matter for which neither to fight by mobilising people nor to argue in the presence of many people [sic]. I suggest a certified accountant finally confirm who is right. (iii) In the previous meeting on 21st February, the auditors asserted they only acknowledged $70,000 as amounts double calculated despite double calculated amounts of $174,600 and this can also be clarified based on the data by a professional. Therefore I formally request to the auditors that they provide a Korean accountant they choose in Sydney with all the data by 28 February. If they fail to choose by the time, I will choose and notify. (iv) In November last year, total of $340,000 was published as donations but it mistakenly included loan amounts. Correcting this and amending other errors found to date, I publish the final total donations of $311,466. Please check them out and let me know if there are any discrepancies or omissions of donation amounts by personal donors or organisations. You may also give information to the media with your name put. (v) I have laid down my life for the Sports Council for the last five years and did my best for the Olympic Supporting Committee. Please trust me and help to ensure there will be no victim who is wrongly accused by the tyranny of the majority. I think I have but myself to blame and humbly tender my apologies for the trouble." [516] Why did not the fourth and fifth defendant take up this suggestion of appointing a Korean accountant of their choice? The fourth and fifth defendants were clearly out of their depth. The answer in the matters complained of is that the fourth and fifth defendants considered the appointing of a certified practising accountant as a sign that they could not be "trusted" (their explanation for not accepting accountant Mr Bonney Lee's offer of free auditing assistance was that he could not be "trusted" – Daily Transcript 2686, 31 March 2009, Day 60). However, if the fourth and fifth defendants were concerned that money was missing, or had been misspent, appointing an auditor of their choice would be an ideal way to resolve the problem. [517] The fourth and fifth defendants were initially adamant that they did not receive assistance from an accountant. At paragraph 89 of Exhibit 70 the fourth defendant says: "We did not seek professional accounting help at the time. As we were both experienced businessmen and generally aware of accounting practices, after discussions between ourselves we decided we could prepare a draft audit report without assistance." [518] Whatever experience the fourth and fifth defendants had in accounting, they did not have enough experience to keep copies of their interim reports, their audit expenses (these are non-existent) and information from persons responding to their inquiries. They do not even seem to have had a file labelled "Audit." [519] The fourth and fifth defendants had correspondence to put in this file. After their audit reports were published, they received an angry letter from SK Securities dated 21 March 2001 confirming the Committee had agreed with SK about expenses to come out of the donation and "I heard from other members of the Aus-Kor Support Committee that the decision was made in expectation of these figures from the beginning". Mr Kim of SK concluded his letter by saying that it was "a pity that such unfavourable news would last another six months in the Korean community in Australia and I think it is not wise to burden the corporations or persons in charge who have supported the organisation" (Exhibit 70). [520] What correspondence did they receive before they prepared their report? There is only one letter, the Korean Veterans Association dated 9 December 2000 addressed to the plaintiff and also to the fourth and fifth defendants confirming their receipt of a donation of $500. Their complaint was not that they had not received this donation, but that the Supporting Committee had not done the same in 2001. (It was put to the plaintiff (Daily Transcript 927, 8 October 2007, Day 23) that this donation had nothing to do with the Supporting Committee and that it was made for reasons of personal vanity (line 50 – 55)). They also complained, importantly, that their $500 donation to the Supporting Committee is not listed. This donation was a cheque for $500 dated 5 October 1999. The plaintiff was absent in Korea between 7 – 23 October 1999 and it was on 7 October that the cheque banked; however, it was banked in the Sports Council account (Exhibit 77), as the defendants admit in their written submissions (pages 227 – 9). This could be because the Korean Veterans Association, which refers in the text of the letter to the "Olympic Support Committee" and the "Olympic Games or Sports Council" (paragraphs 1 – 4, Exhibit 70 tab 15), made out the cheque to the Sports Council, or sent it to the Sports Council, or that somebody made a mistake at the Supporting Committee office while the plaintiff was away. [521] The plaintiff said in evidence that he never saw this letter and was unaware of this allegation at the time. It is addressed not only to him but to the fourth and fifth defendants. Given its explosive claims of a missing donation being in writing (it is the only such allegation in writing), it should have been the leading allegation. However, the 1 March 2001 report does not refer to a missing donation of $500 from the Korean Veterans Association. The likely answer is that when the matter was looked into in December 2000, it was quickly realised that the cheque had been paid, properly, into the Sports Council account, which is why there is no claim or receiving and investigating a complaint of the plaintiff stealing the donation from the Korean Veterans Association. In other words, the fourth and fifth defendants withheld exculpatory evidence. [522] Even though the Korean Veterans Association confirmed they did receive a donation of $500 in June 1999, the 1 March 2001 matter complained of accused the plaintiff of stealing this money. Under the heading "General expenditure of donation", the fourth and fifth defendants complain of donations the plaintiff made to organisations that were outside the purposes of the Supporting Committee, such as a donation for the Korean Olympic team's pre-soccer matches in South Australia just before the Olympics (a claim it is hard to take seriously, and which was abandoned at the trial), referring to "$500 to Veterans Association (Veterans Association claims they did not receive it)" (1 March 2001 matter complained of). This is contradicted by the Korean Veterans Association'a acknowledgement that they did receive it. However, the fourth defendant repeated this allegation in the witness box: "Q. Are you saying the money that was recorded as being paid to the Korean veterans was not paid; it was actually a fraudulent entry? A. INTERPRETER: Yes, because there is a letter from the chairman saying that in that, to that effect. HER HONOUR: I see. So in fact - am I right in assuming, Mr Wheelhouse, that that's part of your case, that the money that is supposed to have been paid to the Korean Veterans Association was in fact put in somebody's pocket and never paid to them? Is that right? WHEELHOUSE: Yes." (Daily Transcript 3012, 6 April 2009, Day 64) As is set out in the particulars of justification below, the defendants now run these allegations together, to claim "$500 donated to the Supporting Committee by the Korean Veterans Association in or about June 1999". However, despite the evidence of the fourth defendant, it is not claimed that the plaintiff misappropriated that sum by putting it in his pocket and never paying it to the Korean Veterans Association. What is claimed is that the Supporting Committee should never have made this donation in the first place, because it was outside the purposes of the Supporting Committee, and that by using Supporting Committee and Sports Council funds to do so (the plaintiff was reimbursed for this donation by the Sports Council), the plaintiff is guilty of misappropriation. (I have dealt with this very serious allegation in detail in the section of this judgment on the particulars of misappropriation). [523] The only other letter, from the Sydney Korean Uniting Church in Australia, was not received until 12 August 2002 (after these proceedings were started) saying they received $A200 on each of two occasions (11 June and 30 July 2000) and not $1,100 as claimed. The records show a cheque for $1100 cash was drawn; it is not in dispute this cheque was given to Mr Dae Won Kang. This was a matter the fourth and fifth defendants should have raised with Mr Dae Won Kang. I note a reference in the 16 March 2001 matter complained of to another newspaper, the Christian Review, having written an article pointing out errors about the 100 missing wristwatches. [524] This is not a lot of documentation of proof of missing donations. The only letter received before the interim or final reports were prepared, namely the Korean Veterans Association letter of 9 December 2000, turned out to relate to a donation they had given to the Korean Sports Council, and confirmed they did receive a donation from the Supporting Committee in June 1999. SK Securities wrote, after publication of the matters complained of, to tell the fourth and fifth defendants to stop making these claims. The Christian Review wrote an article saying the 100 wristwatches had indeed been given to the North Korean Olympic Team. This is not a promising start. What kind of oral complaints were made by individuals who telephoned or came to see them? [525] The fourth and fifth defendants kept no records of dates and contents of conversations, and telephone numbers to corroborate by whom they were contacted, or what the results of their investigations of any such complaints were. Some results are known from the matters complained of. For example, the fourth defendant rang the sports official in North Korea to check if the North Koreans had received watches, and reported his denial (although this error was later corrected by another Korean newspaper, and was clearly wrong). This was a foolish inquiry to make, when there were other persons who could have provided information about the Supporting Committee finances, such as the Sports Council and Mr Joo Yong Jo. Conclusions about the interim reports [526] In response to a question about how many reports, interim and final, did he prepare, Mr Park said (Daily Transcript 2634, 30 March 2009, Day 59): "Initially one statement, and then two supplementary statements were made later". He could not remember the dates of any of them (Daily Transcript 2634-2635, 30 March 2009, Day 59). However, he then said that the intermediate report was dated 22 December and that this is the document referred to in the Hoju Dong A newspaper article which published a summary of its contents. [527] Mr Park claimed that "This one was not provided to the newspaper by the auditors in the process of - I was preparing documents, the general manager of Hoju Dong A, he came to see me. At the time I was out….At that time there were lots of papers lying around on my desk. The general manager of Hoju Dong A, he got some papers and he published…This is not formally given to [sic] by me - to that person by me." (Daily Transcript 2637, 30 March 2009, Day 59). [528] Although Mr Park denied it (Daily Transcript 2637, 30 March 2009, Day 59) ("This is not formally given to by me - to that person by me") he went on to admit "we gave it to all three papers, but it was only printed in Hoju Dong A" (Daily Transcript 2637, 30 March 2009, Day 59). However, he then contradicted this evidence and said "In the process of working, the Hoju Dong A general manager came to see me, I was preparing some documents and Mr Oh, the general manager of Hoju Dong A, stole it" (Daily Transcript 2638, 30 March 2009, Day 59), and did not have authority to publish it. [529] Mr Park was next asked how it came to be in TOP Weekly. This time his explanation (eavesdropping) fell short of theft, but he still denied giving them the report: "Q. Did you send that to TOP Weekly? A. The reporters came and filed this report. Q. Did you give it to the reporters? A. It's not that I provided, it's that the reporters heard the conversation between myself and the plaintiff. Q. Did you give that to the reporter? A. No. Q. You did not? A. They heard what we were talking, and they wrote it. They compiled this report. Q. You didn't compile that report? A. No" (Daily Transcript 2638, 30 March 2009, Day 59) [530] The claim of theft by the Hojudonga reporter is also inconsistent with the notice of meeting dated 24 January 2001 sent to the plaintiff by the fourth and fifth defendants states: " In relation to the interim audit report which was published in Hoju Dong A Il Bo on 22nd December 2000, you are requested to come to a meeting for the submission of materials and the final confirmation." (Exhibit 70 tab 23, emphasis added). [531] I am comfortably satisfied, on the Briginshaw standard of proof, that the fourth and fifth defendants prepared a series of reports, each giving a widely different total for amounts received by the committee, and making serious accusations about the plaintiff which the fourth and fifth defendants have either deliberately destroyed and/or are withholding in breach of their obligations to give discovery. To whom were these reports given? [532] Were any of these reports ever presented to the Supporting Committee or to the Sports Council? At Daily Transcript 2645 (30 March 2009, Day 59) Mr Evatt asked what steps the auditors took to have a general meeting of the Olympic Committee called to consider the audit reports. The fourth defendant said that "the reporters were called, and the previous chairman and [sic] Sports Council, and the previous Korean Society chairman and Sports Council chairman, and the Korean community members who had interest in the Sports Council" (Daily Transcript 2645, 30 March 2009, Day 59). [533] If the Olympic Committee was indeed the separate entity it was alleged to be, the persons to call to this meeting would have been the Olympic Committee office bearers, including not only the plaintiff but also the Financial Director, Mr Jo, who had been appointed in November 1999 and had (as the fourth and fifth defendants clearly knew) overseen the accounts until November 2000. In addition, any prior persons who filled this position, such as Mr Sung Joo Sung, could have been shown the interim report and asked for comments and explanations. [534] However, when Mr Park had the meeting with these people, whether they were the right people to see the report became irrelevant, because he did not show them any of the audit reports (Daily Transcript 2645, 30 March 2009, Day 59). When asked why not, he said he was still checking the plaintiff's papers to see if they were correct. [535] What did happen at the meeting was that the auditors "presented the papers and explained" (Daily Transcript 2646, 30 March 2009, Day 59), as did the plaintiff. The plaintiff's version had been published in the newspaper so everyone knew what his figures were. However, there is no suggestion that multiple copies of the audit report were distributed to the meeting. In particular, the audit report was not given to the plaintiff before it was published in the newspaper, so that he could call a meeting of the Supporting Committee. [536] Although people who attended the meeting were not given the reports, in order to understand what was happening at the meeting, the fourth and fifth published their final reports in all three Korean newspapers because "the auditors were elected at the general meeting amongst the Korean community of 50,000 - 200,000 people, because auditors were elected amongst that many number of people" (Daily Transcript 2646, 30 March 2009, Day 59). The fourth defendant went on to say that the Supporting Committee "was for the Korean community" (Daily Transcript 2647, 30 March 2009, Day 59). Many of the items he disallowed as "unjust" were payments to community organisations such as the Korean Veterans Association. [537] Mr Evatt asked Mr Park about the provision in the Constitution that the auditors report to a meeting of the Supporting Committee (Daily Transcript 2652-2653, 30 March 2009, Day 59). Although Mr Park had a series of meetings with persons who were committed members during February and March 2001 it was "to explained [sic] how the report is made" (Daily Transcript 2652-2653, 30 March 2009, Day 59) and not to ask the Supporting Committee, some of whom may have had invoices or explanations, to help get to the bottom of things. [538] Although Mr Park did not give the Committee copies of the report, he considered it was his duty to publish it in "three papers, Hoju Dong A, Korean Herald, TOP" because "I was elected by Korean community, 52 - ten hundred thousand people" (Daily Transcript 2654, 30 March 2009, Day 59). (I note this is contrary to his assurance at the commencement of the s 7A jury trial to the court, through his counsel, that the report was not published in TOP – see my judgment of 27 July 2004). He said that he had authority under the Constitution and that "if I do not report to Korean community through paper then I am negligent in my duties" (Daily Transcript 2655, 30 March 2009, Day 59). When asked to identify what part of the Constitution, he pointed to the headline for the article which says "Kor-Aus" (KorAus Supporting Committee for Sydney 2000 Olympic Games) (Daily Transcript 2655, 30 March 2009, Day 59). This most likely means that because it is a Korean community activity the Korean community had a right to know about it, even though donations to Korean community organisations were considered by the auditors to be outside the purposes of the Supporting Committee [539] A number of witnesses who gave evidence said they attempted to resolve the matter by constructive suggestions such as having the books properly audited, but they were not listened to. Exhibit J records that Mr Bonney Lee, an accountant who was the president of the Golf Club, said this. Mr Lee confirmed in his evidence that he telephoned the fourth and fifth defendants to offer to do an audit without charge (Daily Transcript 2139, 16 June 2008, Day 52). His evidence was that the plaintiff agreed to this, but the fourth and fifth defendants did not answer his telephone messages (Daily Transcript 2141, 16 June 2008, Day 52). Mrs Michelle Bae, who was not cross-examined, said she made a suggestion to "Mr Hak Joo Park, who's here", indicating the fourth defendant, that there should be a mediation and reconciliation (although of a cultural, rather than a financial, nature) (Daily Transcript 1702, 28 May 2008, Day 44). The fifth defendant later agreed in evidence that it was a wiser thing to do to have the books properly audited before publishing the materials in the newspapers (Daily Transcript 2959, 3 April 2009, Day 63). [540] The evidence concerning Mr Bonney Lee was as follows: "Q. Mr Bonney Lee. Why wouldn't you accept his help? A. INTERPRETER: As I said, I can't remember that at all, but if that was true - that he told me that what you just suggested to me - I would have said, "No." The reason being, Lee..(not transcribable)..very close friends. Q. So what? A. INTERPRETER: Therefore I would have not accepted that. Q. What? INTERPRETER: Therefore I would have not accepted that. Q. Are you a close friend of Mr Cha? A. INTERPRETER: No, I mean that person-- Q What? A. INTERPRETER: --that guy. Q. What's being a close friend of Mr Cha got to do with-- A. INTERPRETER: Because we wouldn't be able to trust him as an auditor." (Daily Transcript 2686, 31 March 2009, Day 60) [541] However, the fourth defendant made the surprising claim, contrary to paragraph 89 of his statement (and contrary to the evidence of the fifth defendant), that an accountant had in fact been consulted. Who was this accountant? Did an accountant help the fourth and fifth defendants? [542] The fourth defendant is not an accountant; he studied physical education at a university in Korea and taught physical education there for 16 years before coming to Australia. He ran a travel agency for a while (Daily Transcript 2672, 31 March 2009, Day 60) and then worked fulltime as a cleaner and then as a secretary-general for the Korean Society from 1999 to July 2001, when with the second defendant's assistance he set up a contract cleaning business, Jemi, at Woolworths. The fifth defendant ran a sushi restaurant. [543] There is no doubt the fourth and fifth defendants received assistance from the seventh defendant because this is set out in their statements (e.g. paragraphs 51 and 91) as well as Mr Sung Joo Sung. Did they receive advice from a professional? There is a reference in one of the publications to the accounts being prepared by a "professional person". [544] The first suggestion that the fourth and fifth defendants consulted an accountant was made by the second defendant. Although he had trouble remembering what day it was or when he had come to court for these proceedings (Daily Transcript 2124, 16 June 2008, Day 52), he was sure the fourth and fifth defendants had consulted an accountant: "A. INTERPRETER: As far as I understand, the auditors examine and investigated the documents and also, based on that, as well as the articles in the newspaper, they have published what they have found and I also remember they have actually checked the contents by an accountant." (Daily Transcript 2089, 12 June 2008, Day 51) [545] One of the things the fourth defendant objected to about the financial report published by the plaintiff was that "he reported as if they were audited by auditors, but they were not." (Daily Transcript 2675, 31 March 2009, Day 60). This clearly rankled with him. Mr Evatt asked at Daily Transcript 2658, 30 March 2009, Day 59 about the fourth defendant's statement in the report published in TOP on 9 February 2001 that he wished to emphasise the audit was "done by a professional person". The fourth defendant had stated categorically in his 7 June 2007 Statement that he and the fifth defendant were experienced businessmen so they decided not to consult an accountant (paragraph 89). Mr Evatt put it to the fourth defendant that he wished to convey the misleading impression that a professional accountant had "done" the report. The fourth defendant said: "My report was sort of inspected, so to speak, by a professional person. So he commented on my report, whether the report was done correctly or not. So that's what I meant. I paid that professional advice for [sic] $1,000." (Daily Transcript 2658, 30 March 2009, Day 59) [546] When asked who this professional accountant was, the fourth defendant first said he was "now in Korea" and then "I forgot his name now."(Daily Transcript 2660, 30 March 2009, Day 59). Mr Evatt asked how, if he could not remember this gentleman's name, he could be sure he was in Korea and the fourth defendant replied "Five years ago I was told that he said he was going to Korea" (Daily Transcript 2660, 30 March 2009, Day 59). His explanation for not saying this before was that "I was never given a chance to say about this" and when it was pointed out that there were 150 paragraphs in his affidavit he said "I just remembered." [547] The fourth defendant went on to say that this gentleman whose name he could not remember had come to Australia from Korea for three months and was living in Blacktown. "Someone" (Daily Transcript 2661, 30 March 2009, Day 59) had referred the fourth defendant to him and he met him. He could not remember if he withdrew money from his account, but said that he paid him in cash and did not get a receipt. When asked why he did not pay $1,000 to a Korean accountant who lives in Sydney, the fourth defendant said "I wanted to be proper" and that "a Sydney-based accountant would have cost me a lot more." (Daily Transcript 2662, 30 March 2009, Day 59). A call for all documents (including reimbursement for the $1,000 paid and any receipt or Expenditure Resolution) could not be answered. All the fourth defendant did was to bring to court previous versions of his statements, which all contained paragraph 89 which said to the contrary (Daily Transcript 2668, 31 March 2009, Day 60). [548] At Daily Transcript 2676 (31 March 2009, Day 60) Mr Evatt asked the fourth defendant what documents he showed the Korean accountant. He said that the accountant was shown "overall documentation". He did not show the Korean accountant his own documents headed "Expenses Suspected to be Falsified", "Donations which cannot be used for committee donations" or any of their actual work product. He explained "the overall shape or structure that we need to follow" and "detailed sort of articles that he showed us to look at" (Daily Transcript 2677, 31 March 2009, Day 60). He did not give any written advice or documents such as pro forma auditing spreadsheets. Nor was he there very long; he just "popped in for a little while" for one to two hours on two days (Daily Transcript 2677, 31 March 2009, Day 60). He did not ask for payment, "we gave him that amount" to cover both his time and the cost of petrol for his car (Daily Transcript 2677, 31 March 2009, Day 60). [549] On being asked about who "we" was, the fourth defendant said that he and Mr Lee, the fifth defendant, paid him $500 each (Daily Transcript 2677-2678, 31 March 2009, Day 60). However he then said "If I can put it simply, there was [sic] some donations by Korean residents in Sydney, so out of that we paid to him" (Daily Transcript 2677, 31 March 2009, Day 60). These donations were made because "we, as an auditor, did a lot of work, and people in Korean [sic] thought we needed a bit of assistance, so some people gave money for us to buy meals and so on." (Daily Transcript 2678, 31 March 2009, Day 60). There are no records of the payment, no receipts and he cannot remember any of their names. These benefactors also paid for the insertion of his reports in the newspaper as advertisements (there are no receipts from the newspapers for these payments made by the auditors). [550] However, the fourth and fifth defendants did have documents giving precise details that they could have shown this accountant. They had estimates for the amount of donations, and as at 5 February 2001 (Exhibit 11) they thought there was still $127, 775.35 in the bank. Since the matter complained of published on 26 January 2001 gives the interim figure of $501,650.00, this would suggest that the fourth and fifth defendants had decided the Committee had spent $373,874.65. This actually resembles the figure of $373,876.00 in line 19 of the 26 January 2001 matter complained of. The auditors thought the following sums had been spent: 1998: $ 10,829.00 1999: $ 78,874.00 2000: $284,172.00 [551] This is followed by a list of matters on which money should not have been spent, which totalled $120,000 (line 28 of the 26 January matter 2001 complained of). When this wrongfully spent item was reimbursed, there would be a profit of $175,000, according to line 29, although this may be my misunderstanding of the translation. If the plaintiff had to return the $120,000 that was misspent, and this was added to the $127,775.35 total donations that either were (or should be) in the bank, even allowing for some overlapping in the plaintiff's favour, this is more than $200,000 profit (the total of these two sums is $247,775.35). [552] Whether the unknown accountant was from Korea or an Australian, if he saw any of these profit figures, he would have had to have given two pieces of advice. The first would have been to advise of the tax and related consequences (including the requirements for PAYG and GST) and the second would have been that consideration should be given to report such a large sum of missing money to the appropriate authorities. [553] Why did the fourth and fifth defendant choose to consult this unnamed accountant for a few hours to obtain fundamental accounting principles when they already had final figures of this kind? [554] At the Sports Council meeting (where the plaintiff had to resign, according to the 30 March 2001 matter complained of), the cross-defendant asked the defendants why were they wasting their time when they could get an accountant to look at the accounts, and said he was told this was not necessary because the second defendant would investigate: "A. And then, I - or any moment, I say to him [Mr Park, the fourth defendant], "Why you waste time to find out this affair, why don't you employ accountant?" But Mr Yoong Hwa Lee said "Please, give power to Jai Kun Lee, OK, Jai Kun Lee will investigate." Q. Sorry, Mr Kim, just so we're not confused. Before you said something, could you explain where you said that? Was that in the meeting, or-- A. In the meeting." (Daily Transcript 1769, 30 May 2008, Day 45) [555] The "Mr Lee" referred to is the second defendant. It was put to the cross-defendant in cross-examination that this part of the conversation was not said. I suspect Mr Richardson was putting it to the cross-defendant that the whole of this conversation did not occur, and not just the reference to his client, so I shall treat his questions as if that were the case. [556] There is definitely no love lost between the cross-defendant and the second defendant. However, from my observation of the cross-defendant, his comment about not wasting their time and getting a professional accountant is just the sort of annihilating remark he would make. As to whether the reply referred to the second defendant investigating, the fourth and fifth defendants specifically say in the first of their audit reports, as I have noted elsewhere, that they have consulted the second defendant as a "mediator" because of his role as honorary chairman of the Supporting Committee and Chairman of the Korean Society. I regard that statement by them as corroborative of what the cross-defendant has said. [557] After several months of meetings with the plaintiff and these secret interim reports, the fourth and fifth defendants were at last able to provide their report. They did so by publishing it in the three Korean newspapers in three instalments starting on 1 March 2001. What did the audit report say? [558] The expert evidence cannot help me answer this. Mr Finney said he was not briefed to carry out an audit. He noted firstly that there were so many incomplete documents and secondly that he does not believe there were sufficient information to draw a conclusion as to what Mr Park and Mr Lee did (Daily Transcript 3154 – 3155, 8 April 2009, Day 66). [559] The text of the matters complained of dated 1, 9 and 16 March 2000 constituted the audit report, according to the evidence of the fourth and fifth defendants (Daily Transcript 1247, 16 October 2007, Day 28; Daily Transcript 2640, 30 March 2009, Day 59). I have set out, in the section of this judgment concerning the defence of comment, the substantial errors of fact in many of the factual statements in these publications giving rise to the imputations. [560] A significant omission from the report is analysis of the overheads, such as rent, telephone and fax, regular outgoings such as newspaper advertising, significant "one-off" expenses such as moving office, and salaries for bookkeepers. Many of these expenses would be known to the fourth (and, for that matter, the second) defendant because the rental and telephone expense up to August 1999 were Korean Society-related expenses (where the fourth defendant worked), the newspaper advertising costs related significantly to the second defendant's newspaper, and the moving costs were incurred after the fourth defendant told the Supporting Committee to find other accommodation. [561] However, what about the accounting information in this document? The fourth and fifth defendants prepared a number of schedules. The fourth defendant refers to these from paragraph 116 onwards of his statement and the folders for the fourth and fifth defendants can be found at Exhibits 70 and 71 respectively. These schedules are set out in annexures to their statements and comprise the following: (a) A list which the fifth defendant claims is a list of all the people who telephoned him to complain that their donations were not recorded in the plaintiff's advertisement (Exhibits 70 and 71 tab 3). This is more likely to be a list of all the persons whose names were omitted, following the discussions the plaintiff and defendants and examination of Mr Sung Joo Sung's book (see Exhibit 73). (b) A schedule of each cheque, with information about whether there was an Expenditure Resolution and receipt (Exhibit 70 and 71 tab 5); (c) A list of all cheques and amounts by cheque butt entry (Exhibit 70 and 71 tab 6). This document is so similar in style to the list prepared by Miss Yoo for the Supporting Committee I have difficulty accepting the fourth and fifth defendants' assertion that during their meetings with the plaintiff they were not shown this document, especially as a copy of it appears amongst the documents they provided for translation for Mr Deokkon Kim. (d) A list of expenditure regarded as not proper expenditure of the Supporting Committee headed "Inappropriate actions during the tenure of Mr Cha that had to be repaid [sic]" (Exhibit 70 and 71 tab 7). (e) A second list, entitled "List of suspected false expenses" (Exhibit 70 and 71, tab 8). (f) A list of dishonoured cheques (Exhibit 70 and 71, tab 9). (g) Alleged "earnings omissions" (to use the language of paragraph 122 of the fourth defendant's affidavit). Examples of these "unreported donations" are the Korean Veterans Association and Mrs Kim. (h) A list of payments the auditors did not consider were within the Supporting Committee's activities as set out in its Constitution, entitled "Unclear Expenses". This is at tab 11 of both Exhibits 70 and 71. (i) A list of payments the fourth and fifth defendants considered the plaintiff should repay to the Committee. Precisely why the plaintiff should repay the $21,142.90 that went to the Sports Council (as opposed to asking the Sports Council to return this) was never explained. The other two sums were $1,890 which he should personally repay and $30,282.55 for excessive gifts and entertainment. (j) Prior to the publication of the first audit report, the fourth and fifth defendants published a summary of all their investigations. This is at tab 12 of Exhibit 70 and 71. [562] The reader of an audit report would want to know what the figure was for income, what the figure was for outgoings, whether there was any money left over (or any claim for a shortfall) and if there is money left over, how much and where it is. That was certainly my wish throughout the trial but despite the length of the trial (and written submissions) the defendants never told me. The defendants in written submissions (paragraph 22, page 308) assert it is "impossible to ascertain… the precise quantum of donations" despite the plaintiff having published on 23 February 2001 (in Exhibit 73) the revised total of $311,466.15 at the end of his list "breakdown of actual donations". The plaintiff having given this estimate publicly by publishing it, in the second defendant's newspaper in the week prior to the publication of the "audit" reports of 1, 9 and 16 March 2001, the onus lies on the defendants to disprove this figure, not merely assert that it is "impossible to ascertain". [563] The fourth and fifth defendants, in Exhibits 70 and 71 tab 12, provide what seems to be a final adding up. There is a total of $351,676.56 from which there are expenses of $249,152.87 and that the balance, after deduction of $71,143.38 (which is money the plaintiff sought in reimbursement) is $31,380.31. The plaintiff was in fact paid about $60,000 of the amount he claimed, so the Supporting Committee should have a profit of about $40,000 as well as fittings (computer, water cooler and office furniture). However, despite my inquiries about audit report figures (e.g. Daily Transcript 2284 2 April 2009) I never heard any evidence about whether there was a debit or credit and what happened to the money (or fittings, although I note the fourth and fifth defendants recommended giving them to the Korean Society in the 1 March 2000 matter complained of). [564] A number of the financial calculations and claims made by the fourth and fifth defendant are simply wrong. Exhibit 71(2) Tab 13 shows an analysis by the fifth defendant of suspected false expenses. Mr Evatt took the fourth and fifth defendant through these in detail. I summarise some their admissions below. "Expenses suspected to be falsified" (Exhibit 70 and 71, tab 13) Exhibit 70 Tab 13 sets out "expenses suspected to be falsified": (A) and (B): The reference to "interest on private loan of $14,881" and "repayment of $20,000" contains a number of errors. First of all there is the assertion that there is "no record" in the Supporting Committee records, Mr Sung Joo Sung's green book clearly shows the loan provided by Vice-President Nan Yoon Paek. Mr Sung Joo Sung was one of the people consulted by the fourth and fifth defendant, and it was from this loan that he took $1,000 for his own purposes. This was what led to the confrontation between himself and the plaintiff. There was no "pretext" that Mr Paek loaned $15,000 to the Supporting Committee. Nor is it the case that all the bank statement show is a $9,000 deposit by Mr Paek on 15 November. Mr Paek made two loans, one of $10,000 in October 1999 and one of $5,000 in November, in the circumstances described elsewhere in this judgment. Allegations made under paragraph (A) and (B) of "expenses suspected to be falsified" are inconsistent with Mr Sung Joo Sung's green book and information which Mr Sung Joo Sung could and should have provided to the fourth and fifth defendants. In re-examination, the fourth defendant was asked to give an example of information he obtained from Mr Sung Joo Sung's records. The one transaction he could remember was the Paek loan. Mr Park said: "15 November 99, and also there is a date, 25 November, $5,000 has been donated; but Sung Sung Joo's book says it's a deposit by Pak [sic], vice-chairman" (Daily Transcript 3014, 6 April 2009, Day 64). If he had access to Mr Sung Joo Sung's book, this directly contradicts the assertion that there is "no record" in the Supporting Committee records of this loan. In addition, the payment into the bank of these sums is clear from the cheque deposits for November 1999. Mr Sung Joo Sung's green book merely confirms the source. If the fourth and fifth defendant had been conscientious auditors, they would have checked Mr Sung Joo Sung's NAB account to see if other missing sums could be located there, and they would have mentioned Mr Sung Joo Sung's conduct in their report. "List of alleged suspicious expenses" (D) Exhibit 70 and 71 tab 13 contain a list of expenses for which the auditors "cannot help but be suspicious as the expenses are unclear in their ostensible reason for payment" is set out at paragraph (D) (see Exhibit 71(2) Tab 13). The fourth and fifth defendants effectively conceded in cross-examination (Daily Transcript 2770-2784, 1 April 2009, Day 61).that all of these had supporting documentation such as Expenditure Resolutions or CFM cheque butts: Ledger no. Date paid Reason for payment Amount paid Explanation 3 18/5/98 Committee $1,000 CFM cheque number 402848 (see Exhibit 70 - financial statement for May 1998) 4 19/5/98 Credit $520 This amount was for the officials meeting at Min Sok Chon – CFM cheque number 402859 12 31/7/98 Cash used $1,000 This was used by Vice-Chairman Choi – Cheque number 402953 17 4/8/98 Money borrowed $1,720 This was money used for committee activities – cheque number 402999 33 1/3/99 Credit $500 Inauguration expense 55 9/8/99 Money borrowed $500 CFM cheque number 200074 56 15/8/99 Cash & cheque $280 CFM cheque number 200079 63 6/9/99 Cash borrowed $900 Payment of head official's wage – cheque number 200093 74 10/11/99 Credit $1,500 Meal at Shinchon Restaurant - cheque number 403804 76 12/11/99 Money borrowed $1,365 Described by Mr Sung Joo Sung as "newspaper and money borrowed" – cheque butt 403858 81 25/11/99 Money borrowed $500 Deposit of $5,000 (703860) from Korean Society – In the course of cross-examination, the fourth defendant agreed that this was in fact an error. Item number 81 is not $500 "Money borrowed" but the $5,000 donated by the Korean Society. The typist has accidentally copied in the "Money borrowed" figure and the handwritten original shows it is $5,000. This is a typing error. (Daily Transcript 2781-2784, 1 April 2009, Day 61) 82 26/11/99 Money borrowed $500 CFM cheque butt 403886 (Daily Transcript 2766, 1 April 2009, Day 61) 83 28/11/99 Money borrowed $500 CFM cheque butt 403859 (Daily Transcript 2766, 1 April 2009, Day 61) 88 23/12/99 Cash $500 CFM cheque butt 403945 (Daily Transcript 2766, 1 April 2009, Day 61) 102 7/2/00 Credit $520 Official's meeting expenses - cheque number 200218 (Daily Transcript 2766, 1 April 2009, Day 61) 103 9/2/00 Money borrowed $1,500 CFM cheque butt (Daily Transcript 2766, 1 April 2009, Day 61) 108 3/4/00 Cash used $300 CFM cheque butt 20029 (this cheque number, which I have taken from the fourth defendant's own records, probably omits a digit). (Daily Transcript 2766, 1 April 2009, Day 61) 112 7/4/00 Business trip to Korea $2,080 CFM cheque butt (Daily Transcript 2766, 1 April 2009, Day 61) 113 8/4/00 Cash used $390 CFM cheque butt (Daily Transcript 2766, 1 April 2009, Day 61) 116 14/9/00 Money borrowed $1,310 CFM cheque butt (Daily Transcript 2766, 1 April 2009, Day 61) 119 28/9/00 Cash used $500 Credit Union cheque butts referred to this (Daily Transcript 2785, 1 April 2009, Day 61) 121 3/5/00 Belmore Health $3,005 Credit Union cheque butts referred to this (Daily Transcript 2767, 1 April 2009, Day 61) Foods 122 4/5/00 Credit $386 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 128 25/5/00 Cash used $300 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 135 4/6/00 Credit $600 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 137 6/6/00 Committee account $10,000 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 138 13/6/00 Money borrowed $500 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 140 14/6/00 Credit $704 Although the fourth and fifth defendants described these as "No payment evidence", this is in fact covered by Expenditure Resolution 86. 149 15/6/00 Money borrowed $500 This is supported by CFM Cheque Butt entry. Mr Park agreed the plaintiff has spent this amount, but he cannot accept this as being a reasonable expense (Daily Transcript 2770, 1 April 2009, Day 61) 154 19/6/00 Credit $4,470 Although the fourth and fifth defendants described these as "No payment evidence", this is in fact covered by Expenditure Resolution 87. 158 3/7/00 Karaoke credit $1,860 Although the fourth and fifth defendants described these as "No payment evidence", this is in fact covered by Expenditure Resolution 94. 161 5/7/00 Credit $877 Although the fourth and fifth defendants described these as "No payment evidence", this is in fact covered by Expenditure Resolution 102 (Daily Transcript 2770, 1 April 2009, Day 61). 18 28/9/98 Calls to Korea $66.20 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 23 17/11/98 Calls to Korea $155.75 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 39 14/4/99 Calls to Korea $218.84 These items are all covered by CFM cheque butts (Daily Transcript 2776, 1 April 2009, Day 61). 41 10/6/99 Calls to Korea $82.80 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 43 21/6/99 Calls to Korea $227.21 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 62 31/8/99 Calls to Korea $92.45 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 65 20/9/99 Calls to Korea $154.84 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 70 21/10/00 Mobile phone bill $747.40 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 72 28/10/00 Calls to Korea $472.26 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 73 29/10/00 Sports Council $104.00 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). phone bill 99 3/2/00 Calls to Korea $203.62 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 106 10/3/00 Calls to Korea $323.98 These items are all covered by CFM cheque butts (Daily Transcript 2776, 1 April 2009, Day 61). 110 6/4/00 Calls to Korea $320.35 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 118 27/4/00 Calls to Korea $270.34 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 136 5/6/00 Calls to Korea $173.17 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 178 17/7/00 Calls to Korea $309.47 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). Total $44,987.08 [565] In other words, these "suspicious" expenses, which related largely to telephone calls for which there were bills and meals after meetings (where there may well have been meeting records which no longer survive) are supported by documentary evidence in the form of Expenditure Resolutions and/or cheque butts. [566] The fourth and fifth defendants had information about the CFM cheque butts. The plaintiff withheld the originals, not the information and he offered CFM information to the seventh defendant when he asked him to prepare the financial statements. [567] The fourth and fifth defendants actually had much of this information from the plaintiff, Mr Sung Joo Sung and the seventh defendant, and could have obtained the rest if they had investigated objectively. They could all have sat down with the plaintiff (and a properly trained accountant) to work out what had happened in relation to the Supporting Committee's bookkeeping problems and all of these explanation would have been dealt with contemporaneously in the way Mr Bonney Lee suggested in his evidence (Daily Transcript 2150, 16 June 2008, Day 52). (D2) Earnings Omissions in Financial Report [568] Schedule D2 purports to list the "earnings omissions" (in fact the donations) which were omitted from the Financial Report. [569] I have dealt with this list in my discussion of imputation 39(a), below, concerning justification of the imputation that the plaintiff failed to account for donations of $56,000. I have first set out that most of these names are on this list, and that the few that are not are on the revised list the plaintiff published in the second defendant's newspaper on 23 February 2001, the week before the fourth and fifth defendants' audit report was published. They are simply not prepared to give the plaintiff credit for the fact that he found and listed all the donations. "Contents of Dishonoured Cheques being issued (Bank statement and check[sic])" [570] A third list of information is the list of seventeen dishonoured cheques. This list, which should have been comparatively simple to prepare, is incomplete. All but two relate to the period June-July. The plaintiff's explanation for eight of the cheques was that Mr Joo Yong Jo put the Joon Kim loan into the wrong account. The fourth and fifth defendants gave no evidence of contacting Mr Jo to confirm this. If he had confirmed it, it is hard to see what the plaintiff had done wrong in relation to these cheques. [571] This is not all of the documentation prepared by the fourth and fifth defendant, but it is the portion of their work product which led to them making many of the allegations they did. [572] I have set out, in the section of this judgment concerning the defence of comment, the falsity of many of the statements in these three "audit" reports, and I will not repeat them here. Conclusion concerning the audit report of the fourth and fifth defendants [573] I have selected the above as an example of the incomplete nature, substantial errors of fact (including typing errors) and general quality and standard of the fourth and fifth defendants' audit reports. In the section of this judgment on comment, where I have been required to go through the statements of fact to determine whether the comment (if any) is based on proper material, I have listed substantial errors of fact in the fourth and fifth defendant's description of the circumstances in which the Supporting Committee was set up. [574] In the cross-examination of the fourth and fifth defendants, Mr Evatt listed a number of other errors made by the fourth and fifth defendants. Mr Finney, the expert accountant said the following concerning the nature of the documentation of the fourth and fifth defendants: "Q. From what you've said, did Mr Park and Lee carry out an audit on the sense of a PKF audit rather than a compilation of documents? A. I don't believe I have sufficient information to draw a conclusion as to what Mr Park and Mr Lee carried out in their function." (Daily Transcript 3155, 8 April 2009, Day 66) [575] As the above analysis shows, the audit reports are full of mistakes, both mathematical and factual. Although the defendants submit the Supporting Committee failed to meet record keeping standards analogous to the statutory obligations imposed on incorporated associations or charitable bodies, they do not extend this analogy to the audit process. [576] These reports are not the opinion of an auditor who has taken reasonable steps to look into matters before coming to a considered judgment, but of an untrained person who preferred to "approach his work with suspicion or with a foregone conclusion that there is something wrong" ( In re Kingston Cotton Mill co (No.2) [1896] 2 Ch at 288 per Lopes LJ). Lopes LJ went on to explain that auditors are not detectives, and that the auditor "is a watchdog, but not a bloodhound". [577] The audit reports are not an "audit" in the proper sense of the word, but simply "the unchecked decision of an inexperienced clerk" (Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 at 79 per Moffitt P. The fourth and fifth defendant are doing work "beyond their capacity", to use Moffitt P's description. They made serious allegations of criminal conduct not only against the plaintiff but also other Supporting Committee office bearers, and they wrongly refused not only the sensible proposal of the plaintiff for the audit to be carried out by a certified practicing accountant, but also refused an offer by an accountant (Mr Bonney Lee) to carry out this work without charge. [578] The central problem for the fourth and fifth defendants is that they seemed to have thought it was their job to decide whether or not monies spent by the Supporting Committee were spent on purposes which fall within the Constitution. However, the job of the auditor is to audit the books. The question of what is a purpose for which monies should be spent by the Supporting Committee is a matter for the Supporting Committee. The role of the auditor was to check income and outgoings, not to make legalistic interpretations of the Constitution. It is almost impossible to ascertain where, in this report, they have dealt with the contents of the plaintiff's newspaper announcement of 23 February 2001 in which he set out his total as income and his list of persons who donated monies. In fact it is almost impossible to ascertain exactly where the fourth and fifth defendants have listed the total of income and outgoings. [579] Finally, the fourth and fifth defendants, while raising some justified criticisms of failure to keep records, have failed to address the fact the failure to keep records was a failure of Mr Sung Joo Sung and the seventh defendant, and in addition, Mr Joo Yong Jo. [580] In making this analysis of the fourth and fifth defendants' audit reports, I had been careful not to step into the shoes of an expert. It is not for me to opine on whether or not the fourth and fifth defendants' report complies with auditing rules, or even what these are. These are matters upon which the onus of proof lies on the defendants. As is set out in the section of this judgment concerning the reports of Mr Finney, he has done no more than express an opinion about the truth or falsity of the imputations, which is opinion evidence that is argument in support of the defendants case and thus not admissible under s 79: Clark v Ryan (1960) 103 CLR 486 at 491; ASIC v Rich [2005] NSWSC 149 at [280] per Austin J. [581] In conclusion, the "audit report" prepared by the fourth and fifth defendants were so incomplete, full of errors and lacking in essential information, such as the total of income and outgoings and whether there was a credit or debit left at the end of the day, as to be well below the standard of the financial records they were purportedly auditing. [582] The plaintiff's repeated suggestion that a certified public accountant be retained was a sensible one. If they had followed the methods described by Mr Bonney Lee (Daily Transcript 2150, 16 June 2008, Day 52) and tried to work out in a constructive way whether there is any missing donations, what the total of outgoings were and what to do with any balance, rather than attack the plaintiff and blaming him for everything, the accounts could have been audited in a proper fashion. [583] Why did the fourth and fifth defendants attack the plaintiff personally? This brings me to the question of the credit of witness, but in particular the credit of the plaintiff. PART 2 – EVIDENCE AND CREDIT ISSUES [584] I have dealt with the credit of Mr Sung Joo Sung and the seventh defendant first, because if they are accepted as witnesses of truth, this will impact significantly on the plaintiff, who asserted that they were the financial record keepers for the Supporting Committee. I will now consider the very substantial attack made on the credit of the plaintiff by the defendants. The credit of the plaintiff [585] The plaintiff's cross-examination was conducted for many weeks between 6 June 2007 and 17 October 2007) with further questions in writing from the fourth defendant and re-examination occurring in May 2008. I borrow the description of the cross-examination of the plaintiff in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [186], where his Honour noted : " A relentless and remorseless attack on Mr Marsden's credit initiated the defendant's submissions both written and oral… to underpin the principal submission that the case made for Channel 7 on the issue of truth is overwhelming" The conduct of this case has many similarities with Marsden , of which this is one. [586] Many of the matters put to the plaintiff over this period were not particularized and concerned documents he had not seen in the Korean language for many years. Cross-examination about factual matters which has not been particularized may lead to a defamation trial being aborted because of the bad impression likely to be created for the tribunal of fact: TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682. [587] The defendants at pages 54 - 71 made a strong, but generalised, attack on the plaintiff's credit. I summarise this as follows: (a) At pages 54 – 55 seven matters are put as impacting on the plaintiff's credit, ranging from the drafting of three witness statements in identical terms to "the repeated refusal of the plaintiff to answer the simplest questions"; (b) Instead of dealing with each of these in term, the defendants' submissions on Mrs Kim's donation occupy the next five pages; (c) The next section of the submissions deals with the matters in paragraphs 2(b) but then jumps to (d) and goes back to (c), then (e); (d) A section then appears, entitled "the plaintiff's conduct as a witness" which briefly reprises (c) and (a) but provides no transcript references for the assertion that the plaintiff repeatedly refused to answer the simplest question; (e) A brief note of transcript references to the plaintiff pointing out that there were staple holes in a number of the Expenditure Resolutions (matter (f) in the list). [588] How should I deal with this collection of material in an orderly fashion? The best place to start is with the assertion that the plaintiff repeatedly failed to answer the simplest questions. If that is the case, then the plaintiff is clearly a witness of little or no credit. Accordingly, I shall deal first with the sections at pp. 55 (paragraph 2(g)) and 70 (paragraph 34) of the defendants' written submissions, as this is an opportunity to look at the plaintiff's evidence as a whole. Paragraph 34 states: "The second defendant submits that the plaintiff consistently refused to answer the most simple questions and/or told obvious falsehoods when he suspected the answer was against his interests." [589] Three of "the more egregious examples" are given, and I have dealt with these below. However, what are some of these other examples of the plaintiff's refusal to answer the most simple question? I have selected some typical examples from his evidence which in my view illustrate the problem. (a) the plaintiff refuses to answer a question about his failure to call a general meeting of the Supporting Committee until August 2000 [590] At Daily Transcript 280 (12 June 2007, Day 9) the following cross-examination shows what appears to be a good example of the plaintiff not only refusing to answer the question, but calling Mr Wheelhouse SC a liar: "Q. Do you agree, Mr Cha, for the first time there was a substantial amount of money in the cheque accounting of the supporting committee for some time? A. Well, I can't really explain what happened at the time but my situation was that I wasn't too concerned about whether there was money in the account or not my concern was when there wasn't enough funds then it became my concern. Q. At this time there was sufficient money in the account, do you agree, to call a general meeting of the committee? A. You mean general meeting? Q. Yes, general meeting of the committee? A. We didn't call a general meeting because there was enough fund in the account, but about 20 to 30 members got together every, let's say twice or three times a week, and had a meeting. Q. That's nonsense, isn't it, Mr Cha? A. Well it was a regular meetings and it's not because we had enough funds or a lot of money in the account, we held a meeting. Q. Mr Cha, your explanation, as we understand it, for the failure of you to call a general meeting of the supporting committee as required by the Constitution was because there was not sufficient finance to enable such a meeting to be called, correct? A. That doesn't make sense, how could a lawyer like yourself keep lying. HER HONOUR: I'm sorry, you said-- WHEELHOUSE: It's a non-responsive answer, I'll just make a submission about, your Honour." [591] This is very strong language from any witness, as well as being non-responsive, and Mr Wheelhouse SC told me he would "make a submission" about it (i.e. include it in his final submissions). So, why is it not relied upon as a specific example? [592] The reason could be that Mr Cha's claim that the committee did meet regularly is clearly confirmed by the Minutes (see Exhibit 51; I note the "early" Minutes of the Committee, referred to in the 1 March 2001 matter complained of, have not been produced by the fourth and fifth defendants). This particular meeting was not a meeting called out of the blue, or because the committee had come into funds. This was not only the Committee's regular monthly meeting, properly minuted, with an agenda sent out in advance, but the meeting in which they discussed the finances of the Supporting Committee and what would happen to any surplus when the Olympics were over. There were not only regular weekly joint meetings with the Sports Council but regular subcommittee meetings and other meetings, as the Activities Diary makes clear. This was not a committee that failed to meet. The plaintiff's complaint, though couched in strong language, was understandable. [593] If what Mr Wheelhouse SC said was correct, he could have proved it at the time by going to the Minutes for this meeting, showing that the Supporting Committee did not meet regularly as alleged, looking at the issues discussed, and by these means demonstrated that this meeting was only held for the reason the plaintiff had denied was correct. He did not do so. I have looked at those Minutes, and I see no support for this question. I also note there was never any particularisation of this particular allegation. [594] While a witness calling cross-examining counsel a liar is not a practice that should be encouraged, this was one of a number of questions which were not only not particularised, but contrary to unchallenged evidence, and where the plaintiff's failure to concede its truth is treated with disdain ("nonsense") (other examples occur at: Daily Transcript 280,12 June 2007, Day 9; Daily Transcript 417, 19 June 2007, Day 13; Daily Transcript 462, 20 June 2007, Day 14; Daily Transcript 540 and 549, 24 September 2007, Day 17; Daily Transcript 867, 8 October 2007, Day 23). [595] I also note there were many questions in cross-examination about the plaintiff's failure to call an extraordinary general meeting (for example: Daily Transcript 176, 184 and 187, 7 June 2007, Day 7; Daily Transcript 280,12 June 2007, Day 9; Daily Transcript 975, 9 October 2007, Day 24; Daily Transcript 977, 9 October 2007, Day 24). However, the uncontradicted evidence of all the witnesses, including the fourth and fifth defendants, was that everyone agreed the audit would take place at the end of the Committee's life. In other words, there was no need for there to be annual extraordinary general meetings each year for an annual auditing of the records (a sensible step, since donations amounted to a few hundred dollars for the 1998 year and a few thousand for the 1999 year). (b) the plaintiff refused to agree the signature and seal on the Expenditure Resolutions was the fourth defendant's [596] Another complaint of apparently unresponsive answers occurs in situations where the question appeared to be consistent with the evidence but the evidence then changed. Perhaps the best example of this was the repeated questioning to get the plaintiff to agree that the signatures and red seals on placed on the Expenditure Resolutions were those of the fourth defendant (in fact, the fourth defendant later claimed this was a translation error he had not picked up before, and said the signatures and red seals were not his: Daily Transcript 2715, 31 March 2009, Day 60). [597] The plaintiff was asked to agree, a number of times, that the signature and red seal on the Expenditure Resolutions was that of the fourth defendant. He was first told that the fourth defendant put "his" red seal on (Daily Transcript 194, 7 June 2007, Day 7; Daily Transcript 202, 206-207, 8 June 2007, Day 8) and then asked to agree. The plaintiff said he did not know "whoever did it" which was not accepted by Mr Wheelhouse SC, who put the following at Daily Transcript 202-203, 8 June 2007, Day 8: "Q. What I am asking you to accept is that after you handed these documents which were the Expenditure Resolutions and the invoices and receipts Mr Park and Mr Lee went through the documents they were given. They placed Mr Park's seal, which is the red seal, on the documents and where there was no-- DIBB: I object to this question really, your Honour. HER HONOUR: It's too long, and that's the problem. DIBB: Partly it's too long, and it calls for him to speculate on who owns this seal-- WHEELHOUSE: No, it's accepted that, in his evidence yesterday. HER HONOUR: Mr Wheelhouse, look, it is too long. You need to put it in bits. That's the real problem, because it's a big responsibility for the interpreter but also it's a lot for him to answer. So how about you put it in bits. WHEELHOUSE: Your Honour, I thought I've done all little pieces yesterday and he has accepted it so I am now just finishing the last little bit. I don't want to go right back to yesterday afternoon but I'll do it." [598] The plaintiff was asked again to confirm if this was the fourth defendant's red seal (Daily Transcript 207, 8 June 2007, Day 8) and there was another objection. Mr Cha was told by Mr Wheelhouse SC he had already agreed to it. This time he did agree. [599] The plaintiff attempted to explain at Daily Transcript 933-934 (9 October 2007, Day 24): "A. I wasn't present with Mr Park when he actually put the seal on the resolutions, so I can't say what he has done. But one thing for sure is that I did ask auditors that I wanted to have some proof, or supporting documents, and they never provided to me. WHEELHOUSE Q. Mr Cha, the next thing I put to you is this; that it is completely false of you to assert that there were attached to Expenditure Resolutions receipts when that conflicts with what Mr Park has recorded. A. Even if I say the truth you always say I'm lying, so I can't say anything." [600] The second defendant's case at this time was that the fourth defendant played the major role in the preparing of the audit documents and that in particular he checked, signed and sealed all receipts. It was not until the fifth defendant came from Korea to give evidence that Mr Wheelhouse SC informed the court that, contrary to the statements in the fourth defendant's affidavit, he did not check these documents and sign and seal each of them and the fourth defendant gave evidence (Daily Transcript 2726-2727 and 2729, 31 March 2009, Day 60) that this was neither his seal nor his signature. [601] The fourth defendant was in court during this evidence, which was translated into Korean for the benefit of the plaintiff. He did not seek to correct what was being put to the plaintiff. [602] The image created for me as the trial judge was that of a plaintiff unwilling even to admit to something as straightforward as the fourth defendant's signature on these documents when, it was alleged, he must have seen the fourth defendant doing this. The plaintiff's answer that when he tells the truth, he is seen to be lying, needs to be seen in context. [603] At Daily Transcript 2730 (31 March 2009, Day 60), after the fourth defendant admitted in cross-examination that this was neither his signature nor his seal, and that contrary to his statement these were the fifth defendant's, Mr Evatt said: "EVATT: Your Honour, we might have the wrong man in the witness box." [604] Mr Wheelhouse SC explained that the fourth defendant's evidence on this point had been changed in a supplementary statement. He complained that I "didn't seem to notice and was busily writing something" when he said the fourth defendant wished to change his evidence on this issue (Daily Transcript 2730, 31 March 2009, Day 60) and had not granted him leave to withdraw his previous statement for this reason, and as a result the fourth defendant had an inconsistent statement in his evidence that he had not been permitted to delete. [605] This was a substantial change to the evidence of the fourth defendant and one which, despite Mr Wheelhouse's claim that it was an error in the translation which the fourth defendant had only recently "picked up" (Daily Transcript 2731, 31 March 2009, Day 60) reflects poorly on the fourth defendant, rather than on the plaintiff, since the fourth defendant had been in court hearing these exchanges translated in the cross-examination of the plaintiff throughout the trial, as well as in the Court of Appeal when submissions on the essential nature of his evidence were put to the Court. [606] This pattern of repeated cross-examination trying to make the plaintiff agree to this is instructive. It shows a witness being broken down into agreeing with the interrogator about a fact that turns out to be wrong. [607] As the weeks of cross-examination passed, the plaintiff's demeanour in the witness box was visibly one of exhaustion and at times disorientation. At Daily Transcript 357 (14 June 2007, Day 11) Mr Evatt expresses concern that the plaintiff is in a "state of shock" and at T 381 asks if it is necessary for counsel to stand over the plaintiff in an "intimidating" fashion. At this stage the plaintiff was being cross-examined about so many documents they could not be fitted into the witness box and he had to be seated in the well of the court at a large table, where he was asked to examine up to half a dozen documents at a time and answer questions quickly. These factors need to be borne in mind when considering complaints about the slowness of some of the plaintiff's answers. (c) The plaintiff refuses to agree he tore pages out of Mr Sung Joo Sung's accounting records [608] At Daily Transcript 223-224 (8 June 2007, Day 8) Mr Wheelhouse SC put it to the plaintiff that he had torn pages out of Mr Sung Joo Sung's accounting records and interrupted the plaintiff's reply to tender two pages which, by inference, were the torn out pages: "Q. Mr Cha, did you tear pages out of Mr Soong's book at any time? A. No, I haven't done that and he had never shown me this book so I-- WHEELHOUSE: I tender the loose pieces of paper that Mr Cha identifies as his pieces of paper. DIBB: We're talking about these top two pages, are we? HER HONOUR: No, there's more. Do you need a minute to look at those, have you seen those before? DIBB: No objection, your Honour. EXHIBIT #10 LOOSE PIECES OF PAPER IDENTIFIED BY PLAINTIFF TENDERED, ADMITTED WITHOUT OBJECTION WHEELHOUSE Q. Mr Cha, where did you get the information contained in those loose pieces of paper? A. It may be that some of them came from Expenditure Resolutions and some cheque records and various documents. Q. They are pages which you've created by taking information partly out of Mr Soong's book, aren't they? A. Well, there was a bank statement of the account in the office so I think I've prepared the document based on that. WHEELHOUSE: I tender Mr Soong's book as well, your Honour, so they can be together. HER HONOUR: Any objection? DIBB: Yes, your Honour. It's not been identified by anyone. We don't have any information about its accuracy or even any evidence about its origin so I object. HER HONOUR: This is a book that you say is Mr Soong's and basically this witness has disputed. What about we have it marked as an MFI?" [609] Mr Wheelhouse SC sought to tender the plaintiff's handwritten pages as part of the same exhibit as Mr Sung Joo Sung's account book "so they can be together" (Daily Transcript 224, 8 June 2007, Day 8). I understood this to mean these were the missing pages. The plaintiff's attempt to explain this was interrupted. If counsel for the plaintiff had not objected, the basis would have been laid to assert that the plaintiff had conceded this. [610] The defendants never particularised any claim that the plaintiff tore pages out of Mr Sung Joo Sung's book. As is set out above, Mr Sung Joo Sung agreed he did this and there is no evidence he either consulted the plaintiff at the time or sought his approval later. [611] In fact, as the transcript shows, Mr Wheelhouse SC actually handed three books up to the plaintiff. He handed up the red book (Exhibit 5), the green book which contains Miss Yoo's reconciliations of cheques (Exhibit 7) and Mr Sung Joo Sung's Green Book (later Exhibit 27), which that plaintiff said he was seeing for the first time. Mr Cha identified the first two as "mine" but said that he had not seen Mr Sung Joo Sung's book before. When he says "I have done the summary of it", it sounds as if he has done a summary of the Green Book, but the confusion is because he is referring to Miss Yoo's Green Book summary (Exhibit 7). It is at this stage that he is asked if he tore the pages out of the Green Book, and his denial is interrupted by Mr Wheelhouse SC. [612] At 224, the plaintiff was asked to identify the writing in the book as Mr Sung Joo Sung's (Daily Transcript 224, 8 June 2007, Day 8): "Q. I just want you to have a look at the MFI when it's marked, please, Mr Cha. I just want to ask you whether you recognise Mr Soong's writing in that book, please? A. I can't recall that now. This is the first time I'm seeing this book in seven, eight years. … Q. Mr Cha, there's no dispute, is there, that you were the one who appointed Mr Soong as head officer and you saw him regularly at the offices of the supporting committee? A. Yes, of course, almost every day. Q. And you saw him when he was there completing accounts? A. At that time I knew, but now eight years ago I can't say, or seven years later now so-- Q. So what you're saying in relation to the green book, MFI 14 is that it could be Mr Soong's book but you just don't recognise it at the moment? A. No, you're asking me whether it's the writing by Mr Soong Soong Joo and also Mr Soong did not provide me that book when I requested it so - and you're asking me whether that's his writing. If you ask me to compare with Expenditure Resolution which was written by Mr Soong I could perhaps identify whether they are same." [613] The manner in which this was presented was that the plaintiff was once again being obstructive in refusing to agree with a statement of fact that should not be in dispute. [614] The plaintiff is not being obstructive here; he is offering to help by looking at another example of Mr Sung Joo Sung's writing. However, Mr Wheelhouse SC does not take up the plaintiff's offer; he changes the topic from Mr Sung Joo Sung's account book to letters sent to the plaintiff by the fourth and fifth defendants (Daily Transcript 224-225, 8 June 2007, Day 8). This could be because, if the writing was all Mr Sung Joo Sung's and not Miss Chae's, it might indicate Mr Sung Joo Sung rewrote this book at a later time. (d) Was the plaintiff a drunk? [615] This was a theme during the plaintiff's cross-examination as well as in the defendants' written submissions, where they refer to the evidence of a witness saying that the plaintiff "loved to drink wine". The fourth defendant raised it in cross-examination of the plaintiff (Daily Transcript 1191-1213, 15 October 2007, Day 27; Daily Transcript 1268, 16 October 2007, Day 28, one of a series of questions about the plaintiff drinking wine with the fifth defendant). In his own cross-examination, the fourth defendant suggested not only the plaintiff but everyone might have been drunk (at Daily Transcript 2741-2742 31 March 2009, Day 60): "Q. Who signed that Expenditure Resolution? A. INTERPRETER: That I don't know. Q. Only one signature on it. A. INTERPRETER: Yes. Q. And you okayed it? A. INTERPRETER: It says, "Pak Sung Ha, Korean Sports Council vice-chairman, 884," and it says - in Mr Cha's prepared Expenditure Resolution, it says that. Q. Where? In 318? It's only got the one signature on it. Mr Cha didn't sign that. A. INTERPRETER: Mr Cha attended these meetings. He participate [sic] in the meal and he ate, and usually he should have signed the chairman and I think, because he was drunk, he didn't sign. Q. Mr Cha was drunk? A. INTERPRETER: Yes, I think that's what happened. Q. He was drunk and therefore didn't sign the Expenditure Resolution? A. INTERPRETER: Yes, correct. Q. What about the one before - that's 318? Go back to the 317. 318 is on 16 May 99. 317 21 April 99: was Mr Cha drunk on that day as well and didn't sign it? A. INTERPRETER: Yeah, if you look at the receipt, it's all drink - alcohol - in the back. Q. So that applies for 21 April 99: 317, and also for 318: 16 May 99 - full of alcohol? INTERPRETER: Sorry, what was the question? Q. Is the reason there's only the one signature on them, and not Mr Cha's - because they were all drunk? A. INTERPRETER: Yes, I do." [616] He went on to say at Daily Transcript 2742-2744 (31 March 2009, Day 60): "Q. If you look at ER 319-- A. INTERPRETER: Yes. Q. That again just has the one signature on it. A. INTERPRETER: Yes. Q. No signature of Mr Cha. A. INTERPRETER: Yes. Q. Is that because Mr Cha was still drunk, too drunk to sign? A. INTERPRETER: You can see the number of - cheque number, here, on the right hand side. Q. Yes. A. INTERPRETER: Mr Cha used to have the chequebook in his pocket and he was the only one who used chequebooks. Q. I'm talking about the Expenditure Resolution. A. INTERPRETER: That means that if he used chequebook - that means he made the payment. Q. Is the reason Mr Cha didn't sign that Expenditure Resolution was because he was drunk again? A. INTERPRETER: Yeah, this one also, obviously, says in the receipt that's - if I look at the receipt - they had drinks. Q. I beg your pardon? INTERPRETER: They had drinks - alcohol. EVATT Q. They had drinks again? A. INTERPRETER: Yes, it's continuation - meals. Q. So Mr Cha is drunk on 21 April 99, 317, 16 May 99, 318, and still drunk on 17 May 99, 319? A. INTERPRETER: There is a number - cheque number - and Mr Cha was the only one who had the chequebook, so he must have spent it and-- Q. But that applies to every cheque written by the Supporting Committee, if Mr Cha had the chequebook. Here's one, look, 320. A. INTERPRETER: He had the chequebook in his pocket and he used for expenses. Q. And he just wrote what he liked, is that right? A. INTERPRETER: Yes, he did." [617] Five days later, when the fourth defendant returned to the witness box after other witnesses were interposed, he added more, volunteering that the plaintiff spent about $3000 on drinking and visiting "room salons" (karaoke salons staffed by females of low repute) per day (Daily Transcript 2999, 6 April 2009, Day 64): "Q. But they were all supported by expenditure resolutions. A. INTERPRETER: Well, that's the very part that I mentioned, the expenses. They should have not come out of the committee but has been incurred by Mr Cha because Mr Cha loved drinking and I think that's how he spent the money. Q. Drinking? INTERPRETER: Drinking I call. Q. What, $160,000 of drink he drank? Is that right? INTERPRETER: 160-- HER HONOUR: Mr Evatt, that question is nonsensical. Just ask it again in English, please. EVATT Q. Are you saying that Mr Cha himself consumed drink costing $160,000? A. INTERPRETER: No, I never said that. HER HONOUR Q. How much money did he spend on alcohol, Mr Park? A. INTERPRETER: On average, if you go to a room salon, he used to spend about $3,000. EVATT Q. A day? A. WITNESS[in English]: Yeah. A. INTERPRETER: Yes. Q. $3,000 a day? A. INTERPRETER: On average, yes. Q. Mr Cha spent $3,000 a day on alcoholic drink for himself? HER HONOUR: No, and room salons, Mr Evatt. Please, listen. A. INTERPRETER: What I'm saying is, Mr Cha frequented place - visited places like where it costs $3,000 a day room salon, because this money was given as a donation by Korean residents here and there and little bit by here and little bit by there, but he used this money as if it was his own money. EVATT Q. $3,000 a day is over a million dollars a year. Is that right? [Objection] A. He didn't go every day but he went sometimes." [618] The fourth defendant alleged the plaintiff not only went out drinking but went to "room salons", karaoke bars where only alcohol and not food was served and there were bar girls. He cross-examined the plaintiff about two of these alleged room salons. The first was Pangon Jong (Daily Transcript 1186-1191, 15 October 2007, Day 27), which I was told was a different establishment to Mon Ami (Daily Transcript 1237, 16 October 2007, Day 28), and which the fourth defendant had attended in his capacity "as an auditor" (Daily Transcript 1189, 15 October 2007, Day 27). Mr Evatt objected, on the basis that this was not particularised (Daily Transcript 1191, 15 October 2007, Day 27). The second was Mon Ami, where the plaintiff twice entertained guests from Korea (ER 34 and ER 94 for $520 and $1,860). [619] Mon Ami provided a receipt for its services, and the fourth defendant was cross-examined about its contents. He made a suggestion that the receipt could be easily falsified because "this invoice book is sold at the Post Office anyway" (Daily Transcript 3005, 6 April 2009, Day 64). He was asked if he had checked at Mon Ami and replied: "Q. Did you check? Did you ask Mon Ami? A. INTERPRETER: Anyone could have written down Mon Ami because there is no stamp. Q. Did you check with Mon Ami? A. INTERPRETER: No, I didn't because Mon Ami is gone. It disappeared. Q. When did he go? A. INTERPRETER: At the time, there was change of hands. Q. But when? A. INTERPRETER: Different owner. At that time. Audit period. Q. In the audit period. A. INTERPRETER: Yes. Q. When? A. INTERPRETER: Probably end of January 2001. Q. Did you go and check the old receipts? A. INTERPRETER: I did check all the receipts. Q. And at the Mon Ami Restaurant. A. INTERPRETER: As I mentioned to you, the owner was changed." (emphasis added) (Daily Transcript 3005, 6 April 2009, Day 64) [620] I have highlighted part of the above because he claimed in cross-examination, when challenged about an error concerning this entry, that he did in fact check with this establishment: "Q. Why did you put karaoke credit in your report, instead of the restaurant? A. INTERPRETER: Because they told me that it has been paid back to them for the money owing. That's why I have written it down as such. Q. That doesn't make sense, does it? A. INTERPRETER: I can't help you, because I rang them and verified with the room salon, and they said so , so I have written that down as such. Q. It appears to be a mistake. Is that right? INTERPRETER: Sorry?" (emphasis added) (Daily Transcript 2779, 1 April 2009, Day 61) [621] There was no evidence from any other witness that these establishments were hostess bars, or room salons, or that there were drunken Supporting Committee functions. Mon Ami in fact donated $500 to the Supporting Committee: see the list in Exhibit A and Exhibit 73. [622] The defendants in written submissions rely on statements by a Mr Kim in his evidence that the plaintiff "loved drinking" and loved wine, and would enjoy having one, two or more glasses of wine. However, this submission takes that statement out of context. At Daily Transcript 1476 (20 May 2008, Day 39). Mr Kim was asked about these statements: "Q. Mr Cha was part of that meeting once every month? A. INTERPRETER: He used to come, but lately no. But they don't have to turn up at every meeting unless - there's no rule to say he has to come or one has to attend, but every now and then he turns up with a bottle of alcohol or wine, or something like that. Q. You've referred to Mr Cha's drinking, but you make no suggestion apart from Mr Cha being gregarious and good company. Is that the case? A. INTERPRETER: No. He is the son of Mr Cha; he is Mr Cha's junior. No, he doesn't have any problem." [623] Another witness, Mr Lee, volunteered that he personally enjoyed activities such as drinking and karaoke. The following cross-examination then ensued: "Q. Mr Lee, did you say you liked drinking alcohol? A. INTERPRETER: Yes. Q. And karaoke? A. INTERPRETER: Yes. Q. Are these two activities that you've ever engaged in with Mr Cha? A. INTERPRETER: Never had shared same place for drinking with Mr Cha." (Daily Transcript 2025, 11 June 2008, Day 50) [624] This is as high as the evidence goes. There is no breakdown supplied by the defendants to show that large quantities of alcohol were consumed at dinners and social functions. On one occasion when a point about alcohol consumption was being made, I inquired about alcohol being consumed at a function, and it turned out to be a bottle of Korean traditional potato spirit (Daily Transcript 2724, 31 March 2009, Day 60). This was a meal for 11 people which cost $9 per head each, which cost allowed for a total of two bottles of coca cola and one of potato starch spirit to be consumed. [625] In addition, as Mr Evatt correctly pointed out (Daily Transcript 1191, 15 October 2007, Day 27), these were some of the many matters that were not particularised. (e) Repeated questions about the number of signatories required by the bank for cheques: [626] The plaintiff said (Daily Transcript 229, 8 June 2007, Day 8; Daily Transcript 257-258, 12 June 2007, Day 9) that although when the account was set up the requirement was for two signatures but that the bank had agreed this was not necessary (Daily Transcript 229, 8 June 2007, Day 8) and thereafter only one person had signed the cheques. The plaintiff said that the other person authorized to sign the cheques in 2000 was the financial director, Mr Joo Yong Jo. Mr Wheelhouse asked if this was the seventh defendant, Mr Stephen Cho (Daily Transcript 257, 12 June 2007, Day 9), which was an error. The plaintiff went on to explain that he and Joo Yong Jo were busy people with offices which were some distance (Daily Transcript 257-259, 12 June 2007, Day 9) and had come to an agreement that only one of them need sign the cheques. However, the allegation was repeatedly put (Daily Transcript 257-265, 12 June 2007, Day 9), that two signatures were required. At Daily Transcript 267 (12 June 2007, Day 9) it was put to him that his signature could faintly be seen on the cheque as well as the signature of Joo Yong Jo, but he denied this and from my observation this is correct. At Daily Transcript 258-259 (12 June 2007, Day 9) it was put to him he repaid a loan with a cheque with "one signature" and he again replied that cheques went out with one signature with no problem. At Daily Transcript 278 (12 June 2007, Day 9), Mr Wheelhouse SC put to the plaintiff that he bought a lot of goods from Belmore Health Foods to curry favour with Mr Choi, and that as a result Mr Choi "went along" with there only being one signature on the cheques. [627] The plaintiff's explanation that two signatures was too much for a voluntary organisation, and that the bank accepted one, was a reasonable one. This was one of many issues about which the plaintiff was repeatedly cross-examined. Although there are references to there being only one signature in the written submissions of the defendants, this is a point that they now appear largely to have abandoned, but only after repetitive cross-examination. [628] Mr Wheelhouse SC complained that the plaintiff would "anticipate" his questions instead of answering the question that was asked. A feature of cross-examination was the raising of issues that were not in dispute which are then spun into a web of complicated questions. On occasions the plaintiff tried to answer the question he anticipated, not in an attempt to evade the issue, but to deal with the issues in the case. The following exchange occurred at (Daily Transcript 171-172, 7 June 2007, Day 7): "WHEELHOUSE: I haven't asked that question yet, your Honour, I'm getting towards that. He's anticipating. HER HONOUR: Can we cut to the chase? Is there some way can you say was the annual general meeting held, yes or no? WHEELHOUSE: I'm just laying a bit of groundwork for two propositions and I shouldn't conflate the two, it'll be confusing. HER HONOUR: I have to say I'm out in the wilderness to be frank. There's just all this great flood of information and I can't see where we're going. I'm really confused, Mr Wheelhouse. Isn't there some simple way that we can get to these points without laying all this groundwork? Do we need to lay all this groundwork? WHEELHOUSE: Yes. HER HONOUR: Why? Am I right in thinking that what's going to be shown is that notwithstanding what's in the Constitution that this was run with gay abandon? Is that basically what this is all about? WHEELHOUSE: No. HER HONOUR: In that case we'll move on. WHEELHOUSE: If I do it quickly it will just be unfathomable. HER HONOUR: It's unfathomable doing it this way. I'll leave it up to you, Mr Wheelhouse. I just don't see why we can't ask a few simple questions. All of these things are just things we can take for granted. WHEELHOUSE: I don't think Mr Cha takes them for granted, your Honour. HER HONOUR: The thing is you don't need Mr Cha to agree with you. If he's been elected to some position and he's supposed to honour the Constitution, I don't think we need to get him to agree in the witness box. It says in the document what he did. The document speaks for itself. I know it's all about the imputations of incompetence but the thing is if he didn't comply with the Constitution you can just make submissions. WHEELHOUSE: But, your Honour-- HER HONOUR: Isn't this all about the imputation of incompetence and that here he was, he was supposed to be behaving in accordance with the Constitution instead of which he kept pathetic records or whatever it is that you're going to submit? WHEELHOUSE: It's more complicated than that, your Honour. HER HONOUR: Does it go beyond incompetence? WHEELHOUSE: It certainly does. HER HONOUR: In that case I'll leave you to it but at the moment I feel hopelessly lost. I feel that we're not seeing the wood for the trees here, that's my concern. WHEELHOUSE: Your Honour, we're seeing the wood very clearly. HER HONOUR: All right, I hope so. Another thing is I don't think you need Mr Cha to agree on this very literal fashion to absolutely everything. How can he really seriously say as somebody who was elected and there was a Constitution, that he wasn't obliged to follow the Constitution. He'd look ridiculous if he said that, wouldn't he? WHEELHOUSE: Yes, your Honour. HER HONOUR: What's the point of going through it all? WHEELHOUSE: Because he'll refute understanding unless I do as he's done in chief for two and a half days." [629] I note there is no suggestion, even in the written submissions of the defendants, that Mr Cha's examination in chief consisted of refutations of understanding. [630] As Mr Wheelhouse SC said this was an essential process, I then gave a stern lecture to the plaintiff about answering the question and not anticipating the answer. I gave this direction on a number of occasions during the cross-examination and accepted uncritically Mr Wheelhouse's complaints about the plaintiff. Looking back at the questions asked, the plaintiff's response was understandable, and I should not have been critical of him. [631] At Daily Transcript 349 (14 June 2007, Day 11) Mr Wheelhouse said: "Mr Cha, you will say anything in your evidence, won't you" in that that it was "absolutely preposterous" that he would give a cash donation to North Korean team. However, the plaintiff then provided details, including pointing out that this was noted on the Expenditure Resolution, and nothing was heard of this allegation again. This allegation was not particularized. [632] In the course of making an application for me to disqualify myself, which was made while the plaintiff was still in cross-examination, Mr Wheelhouse SC said he was reluctantly making the application because, inter alia: "Your Honour, the prospect of having to cross-examine Mr Cha again is so daunting as to be almost unspeakable." (Daily Transcript 1072, 12 October 2007, Day 26). [633] Brown "Law of Defamation in Canada" (at 17.2(2)(c) notes that while defamation actions are adversarial proceedings, lawyers must act with decorum, and not allow oratorical exuberance to prevail (see Street CJ in Croll v McRae (1930) 30 SR (NSW) 137 at 146; Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177 at [18]). While the obligations of opposing counsel in a civil proceeding (even where criminal conduct is asserted) cannot match the obligations of the prosecutor in a criminal trial (for a discussion of the prosecutor's obligations, see the authorities collected in Tahche v Abboud [2002] VSC 42), it is still possible to remain polite. [634] There were requests at times by the plaintiff to have a chance to look at the material being shown to him, some of which was voluminous. At Daily Transcript 348, 16 June 2007, Day 11 he said: "That I can't answer before I look at the documents because I can't recall exactly. If you give me time I might - don't treat me like a thief" (see also Daily Transcript 480, 20 June 2007, Day 14). On this occasion, and on many other occasions, he was being cross-examined about matters that had not been particularised, concerning financial records he had not seen for many years because the fourth and fifth defendants kept them after the audit and refused to return them to the plaintiff. [635] Some of the questions the plaintiff was asked were about the minutiae of life. At Daily Transcript 449 (20 June 2007, Day 14) Wheelhouse asks him if he can remember his account number (not the phone number) for the Telstra account, to which he says "How can I remember that?" (Daily Transcript 449, 20 June 2007, Day 14). Determining issues of witness credit [636] As indicated at the commencement of this judgment, I have been guided in my analysis of witness credit by a number of helpful judgments of the Court of Appeal, by the careful analysis of Levine J in Marsden (especially at [646]ff concerning the late Mr Marsden's credit) and in particular by the analysis of Ipp JA in "Problems with Fact-finding" and by the Court of Appeal's analysis of these issues in The Nominal Defendant v Kostic [2007] NSWCA 14 at [44] ff. [637] Attacks on a witness's credit may be made on a number of bases: (a) Where independent evidence such as a business record or document of public record shows that a person has told a lie on an issue material to the case: Marsden at [39] and following (under the heading "Admissions by Conduct"). In particular, his Honour's analysis of how to treat an apparent lie told by a witness, and its impact on credit, is of assistance. An example relied upon by the defendants is the plaintiff's statement that cash was banked when the banking records show otherwise. Is this a conscious lie, easily shown to be so by the contemporaneous documents, or is there another explanation from the facts of the case? (b) Where there are competing versions of events, such as the differing versions given by the plaintiff and the seventh defendant as to what happened to the $3,000 left over when the seventh defendant purchased Olympic tickets. There is a document in existence, but it is interpreted differently by each party, and the question of who to believe, concerning the circumstances in which words have been added after the signatures, is a matter where the credit of each of the witnesses is an issue. (c) Where witnesses are unable to produce documents which clearly should be in existence, such as business records, or repeatedly assert they are unable to remember events ( R v Logue (NSW Court of Criminal Appeal, 31 March 1994, Gleeson CJ, McInerney and Mathews JJ, unreported) per Gleeson CJ ). (d) Where the "demeanour" of the witness in the witness box, such as the manner of answering questions, is challenged. The majority of the complaints concerning the plaintiff fall into this category. [638] In State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 60 ALR 588 at 617 Kirby J warns of "the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom", noting the maxim of Atkin LJ that "the value of the comparison of evidence with known facts is worth pounds of demeanour." [639] The plaintiff was generally able to remember, despite the circumstances in which documents and allegations were put before him without prior particularisation or proper discovery in the usual way. Many of the answers asserted to be non-answers are his requests to look at financial records. Was this an unreasonable request from a witness who had not seen many of these records since 2001, where the allegations had often not been particularised? [640] Does the plaintiff have to get every answer right? He was not keeping the financial records himself, and he was answering from memory, nearly always correctly; his answers concerning the donation to the North Korean team is a typical example (Daily Transcript 349, 14 June 2007, Day 11). His contradiction of his earlier evidence concerning some issues (such as the donation by the second defendant of $1,000) needs to be seen in light of his acknowledgement of this donation in the 23 February 2001 list he published after obtaining this information through discussions with the fourth and fifth defendants about the contents of Mr Sung Joo Sung's Green Book (see the revised list of donors published by the plaintiff on 23 February 2001 – Exhibit 73). [641] By comparison, Mr Sung Joo Sung, the seventh defendant, Mr Won Kang and Mr Dae Won Kang all had the benefit of giving evidence by statement, but contradicted their own statements and, when shown business records which contradicted their oral testimony, asserted these records were falsified. Where witnesses give evidence of this kind, their credibility on all issues is diminished. The second defendant's evidence falls into the third category; he was unable to remember anything; in fact, he could not remember what day it was (Daily Transcript 2123-2124, 16 June 2008, Day 52). [642] I have dealt with issues concerning the credit of the second, fourth and fifth defendants elsewhere in this judgment. Should I accept the defendants' contention that the plaintiff was caught out in a serious piece of dishonesty concerning Mrs Kim, that he fabricated witness statements, that he made false allegations that the fourth and fifth defendants removed receipts from the Expenditure Resolutions and is a witness who "ought not to be believed on any issue" (written submissions p. 18)? [643] I summarise the following factors as being relevant to the cross-examination of the plaintiff: (a) Contrary to the general rule where justification is pleaded (Tobin & Sexton, Australian Defamation Law & Practice [25,180]; Sims v Wran [1984] 1 NSWLR 317 at 328 per Hunt J; Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Abadee J, 5 February 1996, unreported) (first jury discharge) and Antoniadis v TCN Channel Nine Pty Ltd ( Supreme Court of NSW, Levine J, 18 February 1997, unreported) (second jury discharge)), the plaintiff was cross-examined about factual issues many of which were not particularised until three months after his cross-examination had commenced; (b) This cross-examination included showing him some Korean originals of documents which he was seeing for the first time because they had not been previously provided in a List of Documents or supplied to his solicitors, which put him at a serious disadvantage, for the reasons explained by Levine J in Antoniadis at p. 15; (c) The plaintiff's cross-examination and re-examination took a year to complete, in circumstances where the plaintiff's tiredness, glazed eyes or state of shock was drawn to the court's attention by counsel for the plaintiff; (d) The combination of one or more of any of the above factors would reduce the value of any concessions or admissions the plaintiff made in his evidence, and would render any attack on his credibility of diminished weight, particularly in circumstances where the defendants in these proceedings and not the plaintiff were responsible for the delays in these proceedings coming to trial. [644] I shall now deal also with each of the matters specifically raised by the defendants in relation to the plaintiff's credit. Blaming Mr Sung Joo Sung [645] At pages 63 – 66 of the submissions, the defendants say the plaintiff made "an extraordinary attack" on Mr Sung Joo Sung, namely the following: (a) he misappropriated a number of cash donations while he was Secretary-General of the Supporting Committee (identified as occurring at T 199, 221, 223, 300, 323, 329, 333, 444, 546, 509, 534, 547, 923, 970. 1004, 1197), including the donation of Mr Patrick Lee; (b) his refusal of hand over a cheque book caused the Supporting Committee to dishonour cheques (identified as occurring at T 375, 409, 412, 1001 – 2); (c) he continued to misappropriate money well into 2000 "after he ceased to be Secretary General" (T 314, 569) and was responsible for errors in the recording of income from the SK Securities Night on 31 July 2000. [646] A number of these issues are dealt with in other sections of this judgment. The first impression that springs to mind, when looking at the defendants' list of "extraordinary attacks" made by the plaintiff about Mr Sung Joo Sung, is that it leaves out all the most important (and factually unchallenged) reasons: (a) that Mr Sung Joo Sung failed to keep proper records, although it is clear from his statement that he considered he knew how to do so, (b) that he tore pages out of the accounts book at some stage, (c) that when he left he took the accounts book with him, and (d) that when asked by the plaintiff to return those records so the plaintiff could prepare the accounts, he refused. [647] I have already set out my findings concerning Mr Sung Joo Sung's credit and although it is repetitive, I shall briefly note the salient points again here. The first allegation asserted to be made by the plaintiff: the missing $1,000 incident [648] This is dealt with in paragraph 23 on p. 63 of the defendants' submissions. [649] The second defendant's written submissions put this as follows: "Mr Sung Joo Sung received $1,000 in or about November 1999. His evidence was that amount was reimbursement for previous expenses personally incurred by him. It was not put that he stole money or that it was a misappropriated donation on the contrary it was perfectly clear that the $1,000 derived from the loan by Mr Paek in November 1999. The $1,000 payment was recorded by Mr Sung Joo Sung in Exhibit 27, his account book." (written submissions p. 64). [650] The summary of events contains many errors. First of all, Mr Sung Joo Sung did not "receive" this sum. He helped himself to Mr Paek's cheque while the plaintiff was in Korea (Daily Transcript 419, 19 June 2007, Day 13). Secondly, it is not correct to say it was not put that he stole this money. Mr Evatt put to Mr Sung Joo Sung that he "just took" the money: "Q. And you kept $1,000 to cover your own expenditure. A. INTERPRETER: Yes. Q. Without any Expenditure Resolution in the sum of the $1,000. A. INTERPRETER: No, there isn't any Expenditure Resolution. Q. No. You just took it. A. INTERPRETER: At that time our book was in, in the red. The balance was in the red. So I would like to ask you if you would not have done the same thing if you spent your money. A. WITNESS: Because ..(not transcribable) Q. You've never set out any details of the $1,000. A. INTERPRETER: I couldn't do that because there was no financial manager who was in charge of finance. Q. You were the secretary-general. A. INTERPRETER: That was a temporary position to do accounting. You need to know that clearly. Q. The green book does not record how the $1,000 was broken up. A. INTERPRETER: There is a record of - that I had reimbursement of $1,000 on 15 November in the book. Q. Yes, but there's no breaking up of that amount." (Daily Transcript 3085, 7 April 2009, Day 65) [651] Mr Sung Joo Sung's claim that he could not set out any of the details of the $1,000 "because there was no financial manager who was in charge of finance" is wrong because Mr Joo Yong was appointed on 1 December, two weeks later, and the information could have been given to him. Mr Sung Joo Sung's description of his own role as secretary-general as a "temporary position to do accounting" (Daily Transcript 3085, 7 April 2009, Day 65) is also inaccurate, since he held that position between November 1998 and December 1999, with a paid bookkeeper to do his bidding, as well as being the deputy to the seventh defendant during 1998. In addition, as I noted in the section on Mr Sung Joo Sung's record-keeping abilities above, the explanation for putting this sum in his own bank account in his evidence is very different to the explanation offered in his statement (Exhibit 72, at paragraph 30), namely his false claim that the Committee had no bank account at the time. [652] As set out above in the section on Mr Sung Joo Sung's record keeping abilities, Mr Sung Joo Sung went on to claim he did not keep this $1,000; he used it to pay a female employee (presumably the bookkeeper Miss Chae) and for the running of the office. That is not consistent with the Green Book, which shows no payments to Miss Chae, and shows no office outgoings between 15 November (when the entry appears) and 25 November, when Mr Paek paid the rest of the loan money ($5,000) into the Sports Council account – apart from a payment of $14.05 for "beverage and others" (see page 7 of this exhibit, noting the entries are not in chronological order and the donation by Adviser Kang of $1,000 was also made on 15 November). A restaurant bill is noted as unpaid. There is an expense of $20 for printing on 25 November and another claim for beverages on 2 December. The donation by the second defendant of $5000 on 2 December also put the Supporting Committee into credit. [653] The money Mr Sung Joo Sung took and put in his own account was essential for the Committee's survival; it was a loan from the Committee Vice-President, and it was taken and kept by Mr Sung Joo Sung for some weeks until the plaintiff forced him to return it. Even then, he only returned $9,000 of it. Other matters raised on p. 63 of the defendants' submissions – Mr Patrick Lee [654] The submission is that the plaintiff unfairly blamed Mr Sung Joo Sung for a donation when he himself received it. The submissions on this issue are misleading. The precise text of the cross-examination at Daily Transcript 923 (8 October 2007, Day 23) is: "Q. Mr Cha, I think I omitted to put to you that, in relation to the donation made by Mr Patrick Lee, you converted that money to your own use, or you stole the money. HER HONOUR Q. Mr Cha, stop looking at the documents. Madam Interpreter, would you mind just translating that question, then put to him he stole that money. A. How could I steal the money when that money was received by Mr Soong?" [655] This cross-examination occurred on 8 October 2007. Mr Lee's claim had been particularised for the first time only a few weeks earlier, on 27 September. It was not put to the plaintiff in cross-examination that this sum was handed to him personally, or that the fourth defendant was there. The question was not a fair question as he was not put on notice that Mr Lee asserted that he gave the plaintiff this money in the presence of the fourth defendant (who, I note, never referred to this incident either during the audit or in his statement or evidence in these proceedings). Failure to hand over the cheque book [656] I have dealt with this issue in the section concerning Mr Sung Joo Sung's credit. I am satisfied that he kept the cheque book until some period of time well into 2000 and that Mr Sung Joo Sung also kept the Green Book, a matter the defendants do not refer to anywhere in their submissions. Ripping out pages of the Green Book [657] Mr Sung Joo Sung admitted that he did this. Mrs Kim [658] Mrs Kim was not contacted by either party until after this litigation started, and she told the court categorically that she was never contacted by the fourth defendant at the time of the audit or thereafter (Daily Transcript 2533, 26 March 2009, Day 58). The first she knew of this case was when either the plaintiff or Mr Dae Won Kang contacted her (she was not sure which). This must have been in 2007, seven years after the events in question. [659] Mrs Kim signed a statement for the plaintiff and affixed her identification card and photograph and sent it to his solicitors. Mrs Kim then had a visit in Korea from Dae Won Kang. She then provided a statement to the defendant. [660] When Mrs Kim came to court, she was a terrified witness. She was white-faced, spoke in a faint voice and was near to or in tears for most of the brief time she was in the witness box. I observed at Daily Transcript 2507 (26 March 2009, Day 58) that she was looking "very nervous" and sought to reassure her but as questioning began she became so frightened I asked Mr Evatt to be kind to her as she was "near tears" (in fact she was in tears, but I was being polite). She did her best to answer, bearing in mind that Mr Evatt and Mr Wheelhouse SC were fighting with each other throughout most of her evidence (Daily Transcript 2507-2509 and 2520 -1, 26 March 2009, Day 58) and the interpreter was having trouble translating as a result. [661] What was Mrs Kim giving evidence about that produced this level of antagonism? Mrs Kim came to Australia at the end of the Olympics and was chauffeured around by Mr Dae Won Kang on a sightseeing tour on 29 and 30 September 2000 (according to the defendants' chronology; the date given by Mr Dae won Kang in his first statement, namely March or April, is wrong). She agreed to donate $5,000 in cash, and did so. What were the terms of this donation? This donation was the subject of an article in TOP newspaper on 2 October 2000 (Exhibit 67). I note that, by that time, the Olympic Games were over (although the Para Olympics would be held the following month) and the newspaper article was about the farewell ceremony for the Olympic medallists.. TOP publishes a newspaper article about the donation [662] TOP published an article about the donation on 2 October 2000. The text of the whole of this article needs to be considered in full: " Direct exchanges with North Korea through Sports Mutual consent is reached between Australian-Korean Olympic Supporting Committee and Yung Sung-Bum, head of North Korea Olympic Team After Sydney Olympic Games, Supporting Committee, led by chairman Cha Chae-Sang, has been busy. The Supporting Committee has arranged a meeting to celebrate Olympic medallists (Gold and Silver Medals) in the Korean Society of Sydney Hall in Croydon Park on the first [sic] where 36 Korean Olympic athletes and staff, and other [sic] 70 people attended. The program in the event was diversified [sic] as chairman Cha Chae-Sang gave a welcome speech followed by consul general Bac Ki-Moon's congratulatory address, then luncheon was served after proposing a toast, and then a performance [sic] of Supporting Committee members continued. In addition, it is reported that the Committee of the Supporting Committee will attend a farewell party for North Korean Olympic Team to build ties between North Korean sportsmen and Korean overseas sportsmen. "I have shared thoughts with Yun Sung-Bum about direct exchanges through Sports" said chairman Cha. Before this, on the 28th last month, Kim Young-hee, Managing Director of Komyumgwon Food Inc based in Sunchun, who was visiting Australia for the Olympic Games, submitted her donation of $5,000 to chairman Cha at the Sports Council and it is also reported that visiting deputy assistant for Ministry of Culture and tourism offered a gratuity. Managing Director Kim Young-Hee who has made a donation had been running a restaurant in Sunchun for 22 years before recently establishing and running a Kimchi-making company." [663] I should first note the timing and content of this article. Mr Dae Won Kang's evidence was that this article was designed to encourage donations to the Supporting Committee. This cannot be correct. First of all, the article does not say anything to this effect; for example, there is no statement from the plaintiff to that the Committee is looking for donations. Secondly, the Olympics were over, and this article is about the farewell celebrations as the Olympians depart to return to Korea (and, as I note below, Mrs Kim expressed no interest in the Para Olympics, and was not staying to watch them or otherwise seeking to help). [664] I also note that this is the only article which appeared in TOP concerning the activities of the Supporting Committee which has been tendered, and it is not without significance that its contents are to the effect that the Olympics are over. The Activities Diary carefully notes every telephone call from journalists, as well as requests to journalists to come to press conferences, and the lack of interest from the three newspapers who are the defendants in this case is marked. It is significant in my view that on the issue of whether there is prior ill will between the plaintiff and defendant, all the second defendant can point to is that he permitted the plaintiff to publish an advertisement on 23 February 2001 containing the revised list of donations to the Supporting Committee (Exhibit 73). In addition, the Expenditure Resolutions confirm that each time the Supporting Committee placed an advertisement in these newspapers concerning its activities, they paid the full advertising rate, and they also paid a subscription for Hojudonga to be delivered. [665] I next note that Mrs Kim recalled giving the donation of $5,000 to the plaintiff "in the office". It is not in dispute that the "office" in which the donation was made over was the Sports Council office. She said she had had come to Australia in 2000 for sightseeing, not for the Olympics. [666] The donation is challenged because the plaintiff used this money to go to the Korean National Games on 3 October 2000. This was part of his role as the Chairman of the Sports Council and he had attended every year since 1997. However, this year, he was accompanied by the Vice-Presidents of the Supporting Committee. These expenses were met out of a mixture of Sports Council and Supporting Committee funds. [667] It was put to the plaintiff in cross-examination that Mrs Kim's donation was listed in the 24 November accounts as a donation to the Supporting Committee and that he should not have used this donation to travel to the National Games in Korea, because this was outside the Olympic "purpose" as identified in the Constitution. [668] The plaintiff in 2007, while under cross-examination, contacted Mrs Kim and obtained a statement from her, the English of which (together with her identity card) is Exhibit 68. In it she says that she knew Mr Cha well "and I knew of him being president of the [Supporting] Committee" and that for this reason "I donated the sum of $5,000 and had requested that he use those funds for the benefit of the Korean Sports Council of Australia, as he was also involved with this association". She went on to say that when she was contacted "sometime ago" by "an auditor of the Sydney community" she told him she had directed the plaintiff to use the money for the "Australia Sports Council" and she believed he had done so. [669] Mrs Kim's evidence is inconsistent with this. She did not know the plaintiff, and she said that she had signed the English statement to the contrary because the Korean original of her statement (Exhibit 68) did not say this. She said she had thrown away the Korean version she was sent. [670] Mrs Kim's explanation of what she gave the money for was simple: "Q. If the money went to help the Olympic Games and Korean participants, you would be satisfied. Is that correct? A. INTERPRETER: Of course that's the reason why I gave and I just assumed that that money was spent in that way. Q. If you heard that Mr Cha got the money and bought a new watch with it, you'd be angry. A. INTERPRETER: Of course." (Daily Transcript 2531, 26 March 2009, Day 58) [671] I find that Mrs Kim had given little or no thought to the precise recipient of her donation in the seven years since the Sydney Olympics. She was interested in Korean sporting success. Which organization was likely to bring this about was, I find, a matter of indifference to her. She had been treated with kindness by the plaintiff and Mr Dae Won Kang and she wished to donate money for the Olympics and for participants in Korean sport. She attached no conditions to her gift concerning its ultimate use beyond this, and it is of significance that she gave it at a time when the Olympics (as opposed to the Paralympics, in which she expressed no interest) were over, and at a location which was the Sports Council and not the Supporting Committee office. [672] In addition, the use was for the Korean National Games at Busan, and I am satisfied that this was within the purposes of the Supporting Committee. I have noted elsewhere the text of the auditors' letter of 30 October 2000 in which they congratulated the Supporting Committee not only on the success of the Olympics and Paralympics but on the success of the National Games. Other representatives from the Supporting Committee attended these National Games as well as the plaintiff. If the South Korean government wanted to continue its policy of reconciliation by using sporting events as a vehicle, I can see the importance of the Australian Supporting Committee attending this sporting event. In fact, if the plaintiff had not attended, that might have led to speculation. The plaintiff's presence at the National Games was, in my view, part of his duties as chairman of the Supporting Committee. [673] Looking at Mrs Kim's evidence in a common sense way, I see nothing to suggest that she would have refused to donate the money if she knew the purpose to which it would be put. [674] While it is not unusual for defamation cases to be "combative", to use Levine J's description of the litigation in Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 24 April 1997, unreported), the level of hostility in these proceedings has been palpable. This has been contributed to by repeated claims by the defendants' witnesses that the Committee's minutes, Activities Diaries and even receipts (such as the Mon Ami receipt) are forgeries. The statements of Mrs Kim fall within such a category. At best, she is a witness who gave two differing statements after being courted by both sides. I reject any challenge to the plaintiff's honesty or credit arising from this change. Responsibility for three witness statements being in the same terms in English [675] Three of the plaintiff's witnesses gave evidence by way of statement which was prepared in English by the legal advisers for the plaintiff, whose names appeared on the front sheets attached to the documents in question. These documents were poorly prepared. Clearly, one statement had been used as a pro forma for the other two, and in fact, portions of the statement had to be crossed out by these witnesses because they related to other witnesses. [676] I note that elsewhere in this judgment I had commented on the fact that the solicitors for the second defendant copied across the particulars of the material upon which comment was based from the particulars of the third defendant, and forgot to change "third defendant" to "second defendant". In lengthy litigation where there is a great deal of paperwork, these mistakes often occur. [677] There is no question of the plaintiff playing any part in the preparation of these witness statements in English. It is self-evident from reading these statements that they were prepared by a native English speaker with legal training. None of the witnesses gave evidence that the plaintiff had written out their statement or made any admission of any kind to this effect. [678] While the circumstances in which these three statements were almost identical does not reflect much credit on the plaintiff's legal representatives, just as the copying of the third defendant's particulars in relation to comment does not reflect much credit on the solicitors for the second defendant, this kind of error is to be expected where there are busy solicitors working to a timetable who cut corners. [679] There were similar problems during the trial. One of the lawyers in this litigation took an exhibit from the exhibits desk in the court without notifying the court or returning it, with the result that the seventh defendant's cross-examination had to be adjourned for six months. On another occasion earlier in the litigation, a solicitor who no longer acts for the plaintiff left the plaintiff's box of cheque butts in Court 21A after the hearing was adjourned. Arguments broke out between the parties as to what had happened to them. Fortunately a court attendant located the relevant documents in a box under a chair, where they had escaped the attention of other persons attending official court functions and hearings between October 2007 and March 2008. Mistakes, errors and carelessness occur in long trials. [680] I decline to draw any inference adverse to the plaintiff arising from the preparation of three statements in identical terms in relation to three of the plaintiff's witnesses. Cash cheques [681] For most of its life the Supporting Committee's outgoings exceeded its income. It survived because of the financial support of the plaintiff. It was not in a position to open a cheque account until August 1999 because its outgoings exceeded its income and an unincorporated association without assets would not be likely to obtain an overdraft (the interest costs of which would be considerable). [682] The majority of Committee purchases (such as restaurant meals, postage stamps, stationery) were made at organisations which as a general rule do not accept cheques. The Committee did not have any credit facility or credit card at any time during its life. [683] The plaintiff agreed in cross-examination that the drawing of cheques to cash was a bad business practice. However, I see no reason why, if the withdrawal purpose is documented, a person or organisation cannot withdraw cash, or use cash given to them, to pay expenses, as opposed to writing cheques, since a significant number of small businesses do not accept cheques in payment. Cheques payable to cash may be a requirement in court orders or settlements; for example in Australian Securities Investments Commission; re Richstar Enterprises P/L v Carey (No. 13) [2007] FCA 57 French J (as the Chief Justice then was) required a "cheque payable to cash" to be paid to a Receiver (see order 14 in the judgment). [684] In the many reported and unreported decisions of Australian courts thrown up by the search "cheque payable to cash", I was not able to find any assertion that the drawing and presentation of cash cheques amounted of itself to misappropriation, failure to account or even a bad business practice. If there is such authority, it has not been drawn to my attention by the defendants. I also note there is no expert evidence on this issue; although Mr Finney notes in his findings an assumption that cheques drawn to cash were all misappropriated, this appears to be a statement of his instructions. [685] The use of keycards to withdraw cash from cheque or savings accounts is almost universal in Australia. To withdraw cash from a cheque account by cheque rather than by a card is probably safer, because the purpose of the withdrawal can be written on the cheque butt. That was what the plaintiff did. [686] The real problem in relation to these cash withdrawals was that proper records of their purpose were not kept. That, however, is the fault of the bookkeeping staff rather than the plaintiff. [687] The plaintiff's drawing and presentation of cash cheques "in circumstances where he knew this was inappropriate conduct" does not reflect adversely on his credit. Missing receipts [688] As I have noted elsewhere, it is obvious from the face of the Expenditure Resolutions that some of the receipts have come off the staples, and someone has, in the past, tried to rectify this by pasting some of them onto the back of the Expenditure Resolution (with the result that some have a staple mark but the receipt is pasted onto the back). Some of the Expenditure Resolutions may already have been in this state when handed to the fourth and fifth defendants, or the receipt may have been removed for some other purpose. [689] It is not necessary for the plaintiff or those whom he instructs to put it to the fourth and fifth defendants that they removed receipts, unless there is some other evidence to suggest this. Some of the expenses approved by the fourth and fifth defendants did not have receipts stapled to them, and there may have been some other evidence at the time, such as a letter in a correspondence file. [690] It is not necessary, for an expenditure to be justified, for the receipt to be actually stapled or pasted to the Expenditure Resolution. If such a receipt exists in some other place, that is sufficient. If, for example, receipts for lease payments are stored in the lease file, that would not amount to grounds for saying the lease payments were not warranted expenditure as the receipt is not attached. The legal obligation to pay rent is not conditional upon invoices being sent, or such invoices being physically stapled to requisitions. [691] The plaintiff was entitled to raise the fact that there were staple holes in some of the Expenditure Resolutions. It is to his credit that he did so in a sensible way. CFM Cheque butts [692] The defendants ask me to examine the plaintiff's original cheque butts to find that he "manipulated" them to make false claims for reimbursement. [693] In Blacktown City Council v Hocking [2008] NSWCA 144 at [166] and following, Tobias JA warns trial judges to be careful to form opinions from evidence such as photographs only where there is expert guidance on the subject. [694] Tobias JA's sensible comments were directed to a case where a judge had examined photographs to arrive at opinions of an expert nature concerning the operation of a lid. Such comments should apply with all the more force to an invitation to a trial judge to examine a bundle of cheque butts to determine whether the plaintiff "manipulated" (written submissions Chapter 4 paragraph 6) these cheque butts so as to alter their content and make false claims for reimbursement to the Sports Council by his company. [695] The defendants uplifted these cheque butts from the court to send them to a document expert in Canberra (Daily Transcript 2, 18 April 2008, Day 33). I indicated my preference for the expert to examine them in the court premises but the defendants wished, for their own purposes, to retain an interstate expert. [696] The defendants then elected not to serve the report they received. They now ask me to examine these cheque butts and to make findings that the plaintiff manipulated these. [697] As I have set out elsewhere, the plaintiff's evidence was that he gave these cheque butts to his accountant, who prepared a schedule for reimbursement which was examined by the Sports Council in 2001. The defendants have called no evidence from the Sports Council records, and no witnesses, to suggest that anything untoward happened. None of these matters were particularised prior to the trial. [698] It would be setting a precedent of a most unwelcome kind for a party who elects not to serve an expert report to ask the trial judge to make findings in that expert's place. Having said that, I have looked at these cheque butts, and can see no evidence to support the defendants' contentions that these cheque butts have been "manipulated" in any way. Accordingly, this is not a matter which goes against the plaintiff's credit as a witness. Other allegations of criminal conduct [699] I also note at Daily Transcript 451-453 (20 June 2007, Day 14) allegations were made that the plaintiff not only made false claims for reimbursement but then fraudulently claimed these a second time in his tax returns. When Mr Evatt pointed out that this matter had not been particularised, Mr Wheelhouse SC said he was cross-examining on the basis of the tax return the plaintiff had tendered, and that he was entitled to cross-examine on Exhibit GG. [700] Assuming that the tax return was not discovered, this is still a matter that should have been particularised, to give the plaintiff the opportunity to make inquiries. If the tax return was discovered, then this is another example of a matter that should have been particularised. [701] However, not only was this allegation never particularised, it was in fact abandoned. I never heard any further allegation about Exhibit GG or fraudulent tax returns. Not only was it not mentioned again in these proceedings, but it is not referred to in the defendants' submissions. The only reference to the plaintiff's tax returns occurs at page 199, footnote 367, where the defendants ask me to infer that the plaintiff was short of money and therefore likely to steal and cite the tax return as evidence of his low income. [702] This was one of a series of allegations of criminal conduct put to the plaintiff without particularisation and then abandoned, without explanation. This allegation was so serious that I raised the question of a certificate under section 128. [703] In the course of dealing with Mr Evatt's objection, Mr Wheelhouse said that he must be allowed to conduct his cross-examination as he saw fit (Daily Transcript 454, 20 June 2007, Day 14), making similar statements at (Daily Transcript 177, 7 June 2007, Day 7; and Daily Transcript 1995, 11 June 2008, Day 50). He later explained his methodology to me in relation to the cheque butts as follows: "HER HONOUR: Mr Wheelhouse, these are your particulars, not mine. You tell me that you want to assert that every single one of these claims is completely fraudulent, and I will judge them on that and that will be a relevant factor I'll take into account. If you want to say that the plaintiff fraudulently made, what is it, about 120 fraudulent claims - in other words, every single claim he made - I will judge that submission on the fact that it's said that every single claim he made is fraudulent. WHEELHOUSE: With great respect, your Honour, I'm in a better position - I want to put forward that they are all fraudulent because I put forward that the cheque butts have been altered, and I've tendered the cheque butts. But your Honour may be satisfied that my case in relation to some is better than others." (Daily Transcript 648, 26 September 2007, Day 19) [704] A party who swamps his opponent, and the court, with hundreds (or thousands) of potential allegations of criminal conduct should not indulge in the hope that the trial judge will, by reason of the sheer number of allegations, use "conjecture" (Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 at [20] to decide whether the accept a defendant's assertions over a plaintiff's denials. This is all the more the case if a matter has been looked into by the company (the Sports Council) in charge of refunding the plaintiff, which by reason of its obligations under the Associations Incorporations Act may be presumed to have gone about this task in accordance with its obligations and with the benefit of professional advice. The plaintiff's accountant had looked at these expenses with a professional eye in 2001. [705] I have found the plaintiff to be a witness of credit. Even if I did disbelieve him, however, this does not lead to automatic acceptance of the defendants' witnesses in the manner asserted by the defendants. I refer to the observations of Scrutton LJ in Hobbs v Tinling [1929] 2 KB 1 at 21, where his Lordship pointed out that disbelief in a witness's evidence does not establish to the contrary. Similarly, disbelief in the evidence provided by one party does not mean that the evidence of the opposing party is correct: Kuligowski v Metrobus (2004) 220 CLR 363 at 385 per the Court, noting that in particular cases it may not be possible to reach a conclusion either way. The judge is not always bound to make a finding one way or the other with regard to the facts averred by the parties. The court has open to it the third alternative of saying that the party upon whom the burden of proof lies has failed to discharge that burden. [706] As I have rejected each of the specific matters raised by the defendants, I shall now consider the credit of the second, fourth and fifth defendants. The credit of the second, fourth and fifth defendants [707] I now consider issues relevant to the credit of the second, fourth and fifth defendants as witnesses. The second defendant [708] The second defendant was called by the plaintiff to give evidence. This meant he was not cross-examined in the usual way; in fact, he was cross-examined by his own counsel. [709] In the section of this judgment in which I have set out the history of the Supporting Committee's activities, I have identified the role of the second defendant, who was the Honorary Chairman of this organisation and who participated in some of the activities. He donated $1,000 cash personally and arranged for a donation of $5,000 from the Korean Society of which he was the President. He was also immediate past President of the Korean Sports Council. He is the person referred to as the "mediator" by the first audit report (1 March 2001), he chaired at least one of the meetings, and he attended the Sports Council meeting at which the plaintiff had to resign (30 March 2001 matter complained of). [710] The second defendant's role as the Honorary Chairman of the Supporting Committee, the President of the Korean Society and immediate President of the Sports Council, as well as the person approached by the fourth and fifth defendants (according to the 1 March 2001 matter complained of) and his participation in the events means that he had his own knowledge to draw upon when considering whether or not to publish the matters complained of. In this regard he is in a position akin to being an "expert" of the kind referred to by Mason P in Skalkos v Assaf [2002] NSWCA 14, in that he had the necessary specialised knowledge to know of the falsity of the imputations in each of the three matters complained of for which the defence of qualified privilege at common law and pursuant to s 22 Defamation Act 1974 is pleaded. In addition, as is particularised in the Reply, the plaintiff wrote to the second defendant complaining of the falsity of the imputations contained in the previous three publications (January and February 2001), for which the second defendant does not plead this defence. [711] The matters raised by the second defendant include the following: (a) The false statement by the plaintiff that the second defendant did not donate money to the Supporting Committee. The second defendant points to the recording of this amount in the final accounts the plaintiff sent to Mr Bae, the accountant, on 5 April 2001 (Daily Transcript 445, 20 June 2007, Day 14). I should add that Exhibit 73, the revised list of donors published on 23 February 2001 also contains this amount. The plaintiff's denial of this donation needs to be seen in context, namely that there was no particularisation of this sum when the plaintiff was cross-examined about it. In re-examination, he agreed that there had been a donation by the second defendant. This is not a case of a false statement made by the plaintiff; he set out in Exhibit 73 (23 February 2001) that the money had been donated, but when giving evidence in June 2007, contradicted this earlier statement. If this had been particularised by the defendants and denied, that might be a complaint of more substance. However, when a witness agrees to an error in re-examination, that is not a matter which I regard as being "false". (b) The second matter raised by the second defendant (written submissions page 354) was the plaintiff's complaint that the second defendant did little to support him or the Supporting Committee during its lifetime, and that his only contribution was that the plaintiff bought some meals at the second defendant's restaurant for which the second defendant paid. In fact the plaintiff went on to say that the second defendant gave some assistance with the rent while they were at the Korean Society, but it is a correct statement of the plaintiff's evidence to say he did complain that the second defendant did not do more. The second defendant points to evidence in the Activities Diary (Exhibit 52) that on several occasions the second defendant hosted meals at his restaurant for members of the Supporting Committee for which he, the second defendant, paid. There were several references in the Activities Diary and Minutes to the second defendant paying for meals, and to his inviting Supporting Committee members to the opening to his new charcoal restaurant at Parramatta. The second defendant's submissions at paragraph 3(c) note that he also paid for the meal at the airport when the South Korean Olympic Team arrived. The second defendant did go to meet the Korean Olympic team when they arrived in Sydney. I note from the Minutes of Meeting that Consul Moon was not in favour of a large delegation to the airport saying he considered that if anybody needed to go it should only be himself and the plaintiff. The second defendant must have attended because he wished to go, not because he was under any obligation. As to the attendance of the second defendant to greet the Paralympics team during the plaintiff's absence at the 81st National Games in Korea, this is relied upon by the second defendant as one of the matters going to the proof of imputations about the plaintiff bringing shame on the Korean community in Australia and impeding the working of the Committee through his self-righteous behaviour. However, the kind of assistance that the second defendant could have given the Committee, if he had really wished to be of assistance, was enormous. Although he told the court that holding dinner functions was not the way to raise money (Daily Transcript 2100, 12 June 2008, Day 51), there is no evidence that he ever gave the Supporting Committee assistance by, for example, a discount for advertising in his own newspaper, or published promotional material or even articles about the Supporting Committee's rallies and other activities. The second defendant's newspaper enjoyed substantial revenue from the Supporting Committee in the form of advertising which was clearly done at full rates, although these advertisements concerned issues of direct relevance and importance to the Supporting Committee's activities, such as homestay, Olympic information and the like. The best evidence of absence of malice would have been for the second defendant to tender newspaper clippings from his own newspaper publicising Supporting Committee activities. The only article that ever appeared in relation to the plaintiff's role as the Supporting Committee's Chairman was the article about Mrs Kim's donation (which appeared when the Olympics were over, see Exhibit 67), apart from the plaintiff's paid advertisement of 23 February 2001 (Exhibit 73) and the paid advertisement for the Resolutions of 18 March 2000. In addition, it was the evidence of the fourth defendant that the Supporting Committee was asked to pay rent to the Korean Society of $150 per week. This was beyond the resources of a Committee with no income, and they had to leave the premises. This occurred in August/September 1999, after the election of the second defendant as the new president of the Korean Society. It was the fourth defendant's evidence that when the Supporting Committee would not pay the sum of $150 per week rent (they had been paying $50 per week from April onwards), so "we said, 'leave'" (Daily Transcript 2745, 31 March 2009, Day 60). This may amount to evidence of prior ill-feeling, given the plaintiff was funding the Supporting Committee from his own company purse, and moving, renovation and rental expenses exceeded $20,000, according to the list of expenses in Exhibit A. The fourth defendant's explanation for asking the Supporting Committee to go was very different from that given by the second defendant in the witness box. The second defendant claims that he did not ask the Supporting Committee to leave. At Daily Transcript 2116 (16 June 2008, Day 52), the second defendant was asked: "Q. Doing as best you can, can you tell the court what your recollection is of how it came about that Mr Cha moved out of the offices of the Korean Society? A. INTERPRETER: We were asked to give a space for Sports Council office at the Korean Society office, so we did. However, I can't remember who went and sought a space at Canterbury Council. But there was a fairly large space next to council building, and they found this space, and they have moved out from Korean Society. That's, as far as I remember, how it happened. That's how it happened, but I have never asked them to leave. As far as I am aware, the chairman of the Korean Society is there to support all the joining, or joined, associations of the Korean community, and that's how we exist. And that's how I remember. So I did my best to do that. How could I ask them to leave the office? So if so, why would I have - if what they say is right, why would I have Olympic committee and went out to dinner and bought dinner for them? I think what they're trying to do in court is they're trying to make me as a bad person. And Mr Cha just went out and shaking his head and looking at me. I tried to be kind to him, but he refused." However, this is not the case, according to the contemporaneous documentation. The matter complained of published by the first defendant, dated 4 May 2001 (Exhibit V), records, at the end of its description of the stormy meeting of the Sports Council at which the plaintiff was forced to resign, that the new address for the Sports Council would be care of the Korean Society and gives the address "82 Brighton Ave, Croydon Park, NSW 2133 ( C/o Korean Society )" (emphasis added). I note this is the same address shown on Mr Dae Won Kang's business card (Exhibit BBB). This is a move which occurred in 2001, not 1999 when the Supporting Council had to leave. In addition, some of the Expenditure Resolutions (Exhibit 6) still have the Korean Sports Council letterhead on top (they were apparently copied from these as a pro forma) and the address given for the Sports Council is "69 Evaline Street, Campsie NSW 2194", not the Korean Society's Croydon Park address. These contemporaneous documents confirm that the Supporting Committee was not asked to move out so the Sports Council could move in, as the plaintiff (who was the president of both at the time) would know. In addition, I note the evidence of the fourth defendant that the second defendant actively sought details of the audit being conducted by the fourth and fifth defendants resulted in some or all of the relevant defamatory publications (Daily Transcript 2638, 30 March 2009, Day 59). [712] The second defendant told the court he had a poor memory. If he read a document, by the time he finished reading it he had forgotten the beginning (Daily Transcript 2088, 12 June 2008, Day 51; Mr Evatt reassured him that he had the same problem). When pressed, he could not remember when he had come to court for these proceedings or even what the date was (Daily Transcript 2123, 16 June 2008, Day 52). He could, however, remember that the fourth and fifth defendants had consulted an accountant when they prepared their audit reports (Daily Transcript 2089, 12 June 2008, Day 51). This was contrary to the fourth defendant's statement. However, when the fourth defendant later came to give evidence, he contradicted his own statement and gave evidence of consulting an accountant (Daily Transcript 2674, 31 March 2009, Day 60). Conclusions concerning the credit of the second defendant [713] Taking the above into account, I do not regard the second defendant as a witness of credit. [714] The findings of fact that I have made in relation to the credit of the second defendant are of some relevance to the issue of malice for the defence of qualified privilege at common law and pursuant to s 22 Defamation Act 1974, but must be carefully delineated from those findings. The fourth defendant [715] It is hard not to feel a degree of sympathy for the fourth defendant. He came across as a man completely out of his depth and anxious to please the second defendant (hence the reference to seeking the second defendant's help, at the end of the matter complained of dated 1 March 2001, and his evidence at Daily Transcript 2638 (30 March 2009, Day 59) about the second defendant asking him to obtain information). The fourth defendant was the administrative auditor, not the financial auditor, and the very limited nature of the administrative auditor's role can be seen from the entry in the Activities Diary concerning the documentation provided for him for the administrative audit on 21 August 2000, which consisted of looking at documents about arrangements with SOCOG, harmonious society issues and the like (see Exhibit 52, page 23, 18 and 21 August 2000 entries). [716] However, there was no mistaking the hostility and ill will of the fourth defendant towards the plaintiff from the moment he received the plaintiff's financial documents. I have indicated elsewhere I do not accept his evidence concerning the alleged theft of the publication of the interim report in Hojudonga and in this regard, I note the contents of his own letter to the plaintiff dated 5 February 2001 in which he specifically refers to having requested a meeting pursuant to the publication of this interim report. [717] Although the fourth defendant told me at Daily Transcript 1292 (17 October 2007, Day 29) that he was like an "expert doctor" concerning the Supporting Committee, and there was extensive cross-examination of the plaintiff about the fourth defendant's role in putting stamps and seals on the accounting records, it transpired that even this administrative task was performed by the fifth defendant. At Daily Transcript 2734-2735 (31 March 2009, Day 60) Mr Evatt asked: "Q. The main auditor was Mr Lee, not yourself. A. INTERPRETER: We did it together. Q. There's not one mark you've made on any of the expenditure resolutions, is there? A. INTERPRETER: First, I checked, and then second, Mr Lee checked, and he put the seal. Q. Can you show me any mark you've made on any of the expenditure resolutions? A. INTERPRETER: I never said I have written something down. Q. We only have your word for it that you even looked at them. A. INTERPRETER: There were two auditors and two of us had to check before anything was signed off. Q. But you signed - you made no mark on any expenditure resolution. A. INTERPRETER: There was no need to write anything. Q. Mr Lee not only put his initials - signature on each resolution, but put his seal on it is as well. A. INTERPRETER: Correct. Q. And wrote "evidence required" where necessary. A. INTERPRETER: Yes. Q. You did nothing. A. INTERPRETER: I checked, I verified." [718] Although he said he "checked" and "verified", the fourth defendant's role in this audit was considerably less than had been put to the court up to the moment he entered the witness box. [719] Mr Wheelhouse SC's claim that the evidence about the red seal and signature was a translation error that the fourth defendant had only just "picked up" is not an explanation that I accept. The fourth defendant used Mr Wheelhouse's Korean-speaking instructing solicitor, Mr Jeon, as his interpreter, according to Mr Seck (Daily Transcript 1399, 5 May 2008, Day 34), this was put to the plaintiff in cross-examination which was translated to and from Korean, and there was a Korean interpreter in court at all times. In addition, while mistakes about contents of statements are understandable in long court cases, to make a mistake about one's own signature and seal (this being a kind of Korean signature) is not the sort of mistake a person could easily make. [720] The fourth defendant's change in evidence coincided with the availability of the fifth defendant to give evidence. Prior to March 2009, when I asked about the fifth defendant, I was told he was in Korea and there were difficulties contacting him (Daily Transcript 26, 28 May 2007, Day 1; Daily Transcript 41, 4 June 2007, Day 4). I am troubled by this change of evidence, and in particular the attempt to blame the translator, but it is not a matter which is determinative on credit. [721] Despite his lack of qualifications and the many errors in the reports the fourth defendant considered he was an expert (Daily Transcript 1292, 17 October 2007, Day 29). He told the court he was aware of his duties as an auditor and said that "[t]he role of administrative audit is - have a proper keeping of documentations and papers and check whether they are proper documentations or not" (Daily Transcript 2673, 31 March 2009, Day 60). He considered he had obligation to report to the newspaper because he was elected by "ten hundred thousand people" (Daily Transcript 2654, 30 March 2009, Day 59). Clearly the fourth defendant thought his role was important because he made sure that members of the Korean media was present at several meetings (Daily Transcript 2654-2655, 30 March 2009, Day 59) and, as I have already indicated, I have found that he did in fact send the interim report to Hojudonga that was published on 22 December 2000 and I do not accept his denial to the contrary. [722] The fourth defendant was not seriously looking to investigate wrongdoing, but seeking media attention by publishing his report in Hojudonga, making sure members of the media attended meetings and finally publishing the "audit" in the second defendant's newspaper. This was despite being aware he was neither a registered auditor nor a qualified accountant (Daily Transcript 2658-2659, 30 March 2009, Day 59; Daily Transcript 2672, 31 March 2009, Day 60) and stating in his affidavit he needed no assistance from a professional auditor because he was an experienced businessman. The audit process was an occasion used by the fourth and fifth defendants (but particularly by the fourth defendant) to publish a denigrating, defamatory and false series of allegations against the plaintiff in circumstances which sensationalised the contents and trivialised the important achievements of the Supporting Committee. Instead of an objective and careful analysis of financial documents they preferred to use headlines such as "Inappropriate actions during the tenure of Mr Cha that had to be repaid" (Exhibit 70, Tab 7) or "Expenses suspected to be falsified" (Exhibit 71(2), Tab 13). The reports were full of errors. Mr Bonney Lee, who is an accountant, gave evidence that he considered the "audit" conducted by the fourth and fifth defendants "wasn't done in a manner that it should have been" (Daily Transcript 2143, 16 June 2008, Day 52) and that "the whole audit report was unreasonable" (Daily Transcript 2144, 16 June 2008, Day 52) and Mr Warwick Finney, the second defendant's expert witness, when I asked: "Q. … What I'm putting to you is that the documents you received via the auditors, were, on the face of it, hostile to Mr Cha, just by their very nature, the title and the selected entries? A. I suppose it's fair to draw that conclusion." (Daily Transcript 3153, 8 April 2009, Day 66) [723] Mr Finney considered that the documentation he was given was incomplete and he was not able to express an opinion. It must be remembered that Mr Finney was not simply talking about the financial documentation of the Supporting Committee that he received (and as I have indicated elsewhere he clearly did not receive a substantial number of documents) but he was also referring to the incompleteness of the audit. [724] What the fourth (and fifth) defendant did was to ignore his obligation to be a watchdog. In Re Kingston Cotton Mill Co (No 2) [1896] 2 Ch 288, Lopes LJ said in his much quoted dictum: "An auditor is not bound to be a detective, or, as was said, to approach his work with suspicion or with a foregone conclusion that there is something wrong. He is a watchdog, but not a bloodhound. He is justified in believing tried servants of the company in whom confidence is placed by the company. He is entitled to assume that they are honest, and to rely upon their representations, provided he takes reasonable care. If there is anything calculated to excite suspicion he should probe it to the bottom; but in the absence of anything of that kind he is only bound to be reasonably cautious and careful." [725] Indeed the fourth and fifth defendants went beyond being even a bloodhound to become attack dogs in their pursuit of the plaintiff and in this regard there is a foreign motive for publishing the matters complained of which is relevant to my findings of malice elsewhere in this judgment. [726] In particular, the fourth and fifth defendants consistently ignored evidence where it was clear that if anyone was misappropriating funds from the Supporting Committee, it was particularly likely to be another person. The first of these was the circumstances in which Mr Sung Joo Sung banked the loan monies from Vice-President Paek into his own account. The same kind of favouritism was shown to the seventh defendant. The seventh defendant's mobile telephone expenses were not questioned, whereas the plaintiff's telephone accounts were challenged. In particular, every single overseas Korean telephone call expense was listed by the fourth and fifth defendants as being "unjust" or "unfounded" in their list of unjustified expenses. This was a hopeless claim which was never pursued at trial. [727] While the matters the submissions raise are matters I may take into account, the best test of the fourth defendant's honesty and reliability as a witness lies in a close examination of what he wrote in the matters complained of. [728] The opening words of the matter complained of (1 March 2001), after the heading "Initiation and starting of Olympic Supporting Committee" are headed "Background of Presidential Election" and say: "There was an opinion that a person with a good nature and good capability should be elected as a president at Korean Society General Meeting or under the participation of many Aus-Koreans, because the Supporting Committee is Pan Australian-Korean organisation. But with the bad experience of '96 Atlanta Olympics, which had antagonism, division and disturbance between American-Koreans, it was agreed that current Sports Council president also hold [sic] presidentship of Supporting Committee. Therefore Mr Cha was appointed as president of Supporting Committee. President Cha's work performance process After Mr Cha was appointed as Supporting Committee president, he spent about 12 months doing nothing up to April '99. Mr Cha had an inaugural ceremony at Belmore RSL Club. Major Committee members who had attended the swearing-in ceremony refused to take up their positions because they felt that Mr Cha had performed his job as President with his self-righteous style and without appropriate knowledge…" [729] The fourth defendant, as administrative auditor, had access to the Committee's books and records, and he had attended this inaugural meeting, because that was when he was appointed. He would have known, therefore, that this account is entirely false from beginning to end. Mr Cha was not appointed without election for these reasons (which were not referred to by any witness during the trial). The plaintiff and the second defendant stood for election and the second defendant was defeated, something the fourth defendant withholds from the reader. Nor was it true that the plaintiff did nothing for twelve months, or that major committee members refused to take up their positions because of the plaintiff's self-righteous style. In addition, the Sports Council, not the Korean Society, was the moving force, and its role as set out in the Constitution was to act in concert with the Supporting Committee. Yet the Korean Society (by whom the fourth defendant was employed) ended up with the assets of the Supporting Committee when the audit was concluded (although the auditors suggested the Korean Society give the Supporting Committee's computer to the Sports Council). [730] I have set out, in the section of this judgment on comment, other statements in these publications that must have been untrue to the fourth defendant's knowledge, but I should note in addition the laudatory referrals to the second defendant, such as the closing words of the 1 March 2001 publication. [731] Contrary to the submissions of the plaintiff, I have been careful not just to judge the fourth defendant on his performance in the witness box, but to have regard to the contemporaneous documents he authored, in the manner advocated by Ipp JA in "Problems with Fact-finding". I have taken into account the fact that the fourth defendant has found this litigation stressful, and that his reaction to it, as well as cultural factors, are matters which should cause me to be slow to arrive at an adverse finding as to his credit. I have been especially careful not to be influenced by the circumstances in which the second defendant brought an application to the Court of Appeal concerning comments I made about the fourth defendant's conduct in court. If anything, I have been more than usually careful in coming to an adverse finding. Conclusions concerning the credit of the fourth defendant [732] I am satisfied that the fourth defendant is not a witness whose evidence should be accepted unless it is corroborated by contemporaneous documentation, or by a witness of credit in these proceedings. In practical terms, however, I have been careful to ensure that findings of credit concerning witnesses are at the bottom of the list when determining issues of fact. Where there is a contemporaneous document which is reliable, such as the Minutes or Activities Diary, or correspondence from a disinterested party such as the Korean Veterans Association, those contemporaneous documents will be more likely to be considered the most reliable evidence rather than witnesses struggling to remember events which occurred up to ten years ago. The fifth defendant [733] The fifth defendant was cross-examined in circumstances of real difficulty for Mr Evatt. While Mr Evatt was in the middle of cross-examining the fourth defendant on 2 April 2009, Mr Wheelhouse SC advised the court the fifth defendant had to return to Korea in two days as he had to return to work, and would have to be interposed. Mr Evatt had made it clear he needed to complete the cross-examination of the fourth defendant before cross-examining the fifth defendant. My offer to sit on the weekend to complete the evidence was rejected by Mr Wheelhouse SC on the basis that the fifth defendant had to leave on Saturday morning. [734] As the financial auditor, the fifth defendant was primarily responsible for collating the financial material. His credibility is a significant issue in this case. [735] The fifth defendant labours under two disabilities. First of all, he concedes he has not examined the documents and correspondence for "many years" and appears only to have familiarity with the three documents provided to him in the course of preparing his statement (Exhibit 71 paragraph 6). That statement was not prepared until 19 March 2009, eight years after the events in question, and the fifth defendant says it is "difficult to recall the chronology of events" (paragraph 6). [736] An example of how little he remembers can be seen from paragraph 15, where he says that he and the fourth defendant telephoned and wrote to the plaintiff between December 2000 and February 2001 requesting further meetings and the provision of documentation, but that after the meeting in late January 2000 "Mr Cha refused to meet with Mr Park and myself altogether". This is contrary not only to the correspondence he and the fourth defendant wrote, as well as the plaintiff's notice to the newspapers outlining the four meetings in February 2001, but it is contrary to the contents of the matters complained of, which refer to these meetings, notably the 23 February 2001 matter complained of. [737] Despite having a poor memory of most events, the fifth defendant did not simply say he did not remember what happened: (a) He categorically denied that at the meeting of 17 February 2001 the plaintiff discussed the amount of donations received. I note his admission about meeting the plaintiff on this date is contrary to paragraph 15, and it is also inconsistent with the plaintiff's notice published in TOP on 23 February 2001 (Exhibit 73). He claimed that at this meeting when he asked the plaintiff questions "he would not answer" (Daily Transcript 2857, 2 April 2009, Day 62). (b) He denied providing figures for the amounts of donations to TOP, and said he was "surprised" that they were published (Daily Transcript 2858, 2 April 2009, Day 62) and said the figure of $501,000 was "not true". I have set out elsewhere in this judgment the text of the notice of meeting he and the fourth defendant sent on 24 January 2001 referring to "the interim audit report that was published in Hojudonga Ilbo on 22 December 2000". (c) He categorically denied knowing who the Financial Director, Mr Joo Yong Jo, was (Daily Transcript 2897, 3 April 2009 Day 63) and claimed not to know who the other officials were, saying that "rumour" had it they changed every month or so. This is inconsistent with the Minutes and lists of officials. At Daily Transcript 2953-2955 (3 April 2009, Day 63), the following cross-examination occurred: "Q. In the end you say that before you completed your inquiries, Mr Cha stood up and walked out of the meeting. Is that what you say? A. INTERPRETER: Yes. Q. Then which other officers of the Supporting Committee did you interview after that? INTERPRETER: Sorry? Which-- EVATT Q. Which other people on the Supporting Committee did you go through the accounts with? A. INTERPRETER: The committee office was open; it wasn't closed. So, there would have been people who were passing by and look at stuff, and what was happening, but I did not reveal any of these things to anyone in particular. HER HONOUR Q. No, sir, you have not understood the question. You have been asked what other committee office holders you then interviewed or asked for information from, and what we were hoping for was a list of names. Can you possibly give us that? A. INTERPRETER: I had no reason to discuss with anybody else what came out of this meeting. Q. Did you go through the expenditure resolutions with any other officer of the Supporting Committee apart from Mr Cha? And if so, which ones? EVATT: And Mr Wheelhouse saying, "Don't answer it." A. INTERPRETER: Jo Hak Su, Yoon Hwa Lee. That's it. EVATT Q. That's it? A. INTERPRETER: That's about it. Q. Those two? HER HONOUR Q. Where's Yoon Hwa Lee? That's someone who's new. I don't even know how to spell it. How do you spell it? INTERPRETER: Y-O-O-N H-W-A L-E-E. Q. Sorry? INTERPRETER: L-E-E. Q. Yoon Hwa Lee. And what was Yoon Hwa Lee's position in the committee? A. INTERPRETER: That I can't recall. Q. You don't know what his position was? A. INTERPRETER: That's right, I don't. I don't think he had official title, your Honour. Q. Is it somewhere in your statement? Mr Wheelhouse, can you point to me-- EVATT: No, I don't think it's there. WHEELHOUSE: No, it's not, your Honour. EVATT: It's not there. They wouldn't put it in. Embarrassment. WITNESS (INTERPRETER): He didn't have the title. HER HONOUR Q. Didn't you say earlier that Mr Hak Soo Cho was helping you put this material together? A. INTERPRETER: Yes, that's right. That's why Mr Hak Soo Cho knew about expenditure resolution. EVATT: What's the other's name? HER HONOUR: The other man's name is Yoon Hwa Lee. I think. EVATT Q. Mr Yoon Hwa Lee wasn't even a member of the Supporting Committee. He was in The Korean Society. A. INTERPRETER: Mr Hak Soo Cho was sitting with us because he was assisting us sorting materials, whereas Yoon Hwa Lee was not sitting with us. He must have been passing and hopped in and looked at things and listened to things and we told him to go out. Q. I'm asking you about the people - you said you interviewed these two people about the accounts, the expenditure resolutions, one of them wasn't even a member of the committee? A. INTERPRETER: Now I remember. It wasn't Mr Lee. It was Sung Sung Joo who was the secretary-general and Mr Cho. Q. Did you interview the finance director of the Supporting Committee? INTERPRETER: Sorry? Q. The finance director. A. INTERPRETER: I don't think there was a financial director at the time. Q. I beg your pardon. A. INTERPRETER: I don't think there was a financial director at the time. Q. There was a financial director. Don't you know that? A. INTERPRETER: No, there wasn't. Q. Jiong Cho. A. INTERPRETER: Is someone I don't know." As Mr Evatt correctly pointed out, Mr Yoon Hwa Lee was not a member of the Supporting Committee. He is Mr Patrick Lee, the treasurer of the Korean Society, and he gave evidence in these proceedings concerning a donation he says he made to the Supporting Committee; his evidence on this issue is set out below. It is clear that Mr Lee played a greater role in the preparation of the audit reports than he revealed to the courts during this testimony. (d) The fifth defendant also denied that the Supporting Committee and Sports Council met regularly (Daily Transcript 2914, 3 April 2009, Day 63), although the Minutes and Activities Diary, which he was given, clearly and regularly refer to these meetings. [738] The fifth defendant did not understand what some of the accounting records were, such as the list of items upon which money should not have been spent, including items such as the purchase of tickets for North Korean athletes to attend Olympic events at which they were not competing. He said that the seventh defendant told him these athletes were given free tickets to all Olympic events, which I see as indicative of the significant role the seventh defendant played in the preparation of these documents (Daily Transcript 2862, 2 April 2009, Day 62). He also approved without question expenses for the Volleyball Team and for the seventh defendant's telephone account (Daily Transcript 2909, 3 April 2009, Day 63). [739] Some specific examples are (a) He could not explain why he had objected to the expenditure of money for the Olympic soccer team playing preliminary matches in South Australia. He thought the only purpose for which the Committee could spend money was to have a cheer squad and to buy meals and gifts for the Olympic athletes and their supervisors. (b) "Nothing should have been spent" by way of donations to Korean sporting bodies in Sydney (Daily Transcript 2869, 2 April 2009, Day 62). This included administrative expenses such as moving to the new office (Daily Transcript 2892, 3 April 2009, Day 63), even where those expenses had been signed as authorised by members of the Supporting Committee executive but, confusingly, not the cost of the meals the volunteers had while they were moving the office furniture and contents. He also considered the Supporting Committee had no need to advertise (Daily Transcript 3 April 2009) or to have an entry in the telephone book, even though he was aware these were advertisements about "accommodation" (i.e. homestay). (c) The fifth defendant was taken through a series of similar items where he had challenged expenditure. He clearly had no idea why he had challenged some items and not others. Viewing his evidence as a whole, this process of challenging Committee expenditure was not only misconceived but, in my view, mischievous. [740] The fifth defendant was the president of the Judo Association, and it was pointed out to him that this association had participated in a number of social functions including a purchase of gifts of honey (Expenditure Resolution 247). He denied that he had participated in these and said he "didn't have time to enquire" about whether the Judo Association's requests for funds for a number of items (including items after the Olympics) were matters which fell within the Supporting Committee's Constitution. [741] The second difficulty for the fifth defendant is that he has not defended these proceedings and the plaintiff has obtained judgment against him. The defendants submit that this is not a judgment on the merits, and that it is still open to me to find, for example, that he believed in the truth of the imputations, was not malicious and held the opinions conveyed in the imputations. [742] If defendants were able to avoid the inconvenience of discovery and interrogatories, or calling witnesses, by consenting to judgment and then arguing these matters in a Parthian manner, this would undermine the purposes of s 56 Civil Procedure Act. A defendant who fails to defend an action and has judgment entered against him should expect only one thing, namely that the next step is the assessment of damages. [743] Even allowing for his lapses of memory, the fifth defendant was not an impressive witness. However, I have doubts about his explanation of not seeing these documents for many years. According to the court file, his solicitors were still acting until the Notice of Ceasing to Act was filed on 17 January 2007, he came to court with the fourth defendant to hand over the audit documents to the court (in fact they went to the second defendant's solicitors) in February and in March 2007. [744] The fifth defendant's affidavit is presented in an orderly fashion and contains a great deal of information about the audit. The fifth defendant is, however, a witness who does not come up to proof of this statement. There is a significant difference between the written statement and annexures presented on his behalf and his confused and inconsistent answers about the way in which he organised the financial audit. [745] In addition, as I noted in relation to the fourth defendant, there are many statements in the matters complained of which would have been false to the knowledge of the fifth defendant. I am satisfied, from the testimony of the fifth defendant and from these publications, that the fifth defendant bore the plaintiff a significant degree of malice, and that he is not a witness of credit. The fifth defendant's role was to go along with the investigation of others and as the above passage concerning Mr Patrick Lee shows he could consult Mr Lee at the first sign of trouble. In this regard, using the analogy of Lopes LJ as extended by Hunt J in Mair v Public Accountants Registration Board (Supreme Court of NSW, Hunt J, 2 February 1989, unreported) he was more like the fourth defendant's and Mr Patrick Lee's "house pet" (as opposed to a "watchdog") in that he did not have "any real idea of what an auditor is supposed to do" and that "he has little appreciation of his own limitations". [746] So poor is the fifth defendant's ability to explain how he carried out the audit that I question whether he in fact was the person ultimately responsible for it. As he referred to having consulted the Korean Society treasurer Mr Lee, this is an appropriate opportunity to consider the evidence of this witness. Korean Society Treasurer Mr Patrick Lee [747] Mr Lee was the treasurer of the Korean Society. Given Mr Lee's background as treasurer (a role in which he followed Mr Sung Joo Sung, who was the treasurer for the Korean Society for three years) I anticipated some evidence as to how the accounting records presented by the plaintiff (which, it must be remembered, were prepared by Mr Sung Joo Sung and the seventh defendant) fell short of the standards adhered to by the Korean Society, or about his role in assisting the fourth and fifth defendants. [748] However, Mr Lee's evidence was limited to three issues. The first of these was the comparatively minor issue of whether there was a double entry for the Korean flags and whether the plaintiff could have got a cheaper price for these (Daily Transcript 2402, 25 March 2009, Day 57) Mr Lee was called to give other evidence, namely that he made a donation and that the plaintiff insulted staff. [749] Mr Lee's evidence was as follows: (a) he gave a donation of $500 to the plaintiff, in the presence of the fourth defendant, while the Supporting Committee had its offices in the Korean Society, the date given being September 1999. He did so because the telephone had been cut off and this would enable them to reconnect it (Mr Lee's evidence - Daily Transcript 2400, 25 March 2009 Day 57). The plaintiff gave evidence that he did not know Mr Lee personally and did not receive a donation from him; I have set out above the unsatisfactory way in which this allegation (which was not particularized until 27 September 2007) was put to him. The plaintiff asked "which office" and when Mr Wheelhouse said 189 Beamish St he pointed out that in September they were still in Evelyn Street. (Daily Transcript 909-910, 8 October 2007, Day 23). Mr Lee gave this evidence at Daily Transcript 2400 (25 March 2009, Day 57). It was put to him that he did not raise this claim for years after the plaintiff published the list of donors in November 2000. He agreed that he did not raise this with the plaintiff (Daily Transcript 2400, 25 March 2009, Day 57) and clearly he did not raise it at the time with the fourth and fifth defendants. There is no reference to it in the statements of the fourth defendant although he was allegedly there when the donation was made. If there was one missed donation the fourth defendant should have seized upon, this was it, because he was a witness. Mr Lee attended a meeting in February 2001 at which he put questions to the plaintiff about the invoices for the Korean flags. Why did he not raise the question of this omitted donation then, when it would have been fresh in his mind? Instead, it was not even particularised until 27 September 2007 (which was after all other particulars including the particulars of February, May, June and August 2007) in circumstances in which he was a witness who had been interviewed by the defendants about his claims that the plaintiff shouted at and abused female staff. Then there is the explanation about the telephone being cut off. If there was a reconnection fee, or a Telstra account requiring reimbursement for September 1999, this would be very persuasive. However, there is no notation in any of the Telstra accounts to show the Supporting Committee's telephone was ever cut off. As the treasurer of the Korean Society, Mr Lee would have been better placed than most to read and understand the plaintiff's accounts. His failure to explain either to the plaintiff or to the fourth and fifth defendant what had gone wrong is surprising, as is the fourth and fifth defendant's failure to consult Mr Lee when they realized there were missing records and thought that money had been misappropriated. Mr Lee's claim that he donated $500 is not only belated, but implausible. I do not accept it. (b) He said that during the period that the plaintiff's office was near his (he was the treasurer of the Korean Society) the plaintiff yelled at staff and humiliated staff by constantly raising his voice to them. This was put to the plaintiff at (Daily Transcript 908, 8 October 2007, Day 23). Mr Wheelhouse said that he did not have a specific example, but only "general material". Mr Lee said that the female staff "changed so often I can't remember the names". (Daily Transcript 2399, 25 March 2009, Day 57). This is not corroborated by the Expenditure Resolutions, which record Miss Chae as the paid bookkeeper in 1999. From the evidence of the witnesses and the lists of officials, she appears to have been the lone woman in the office, apart from the cheer squad subcommittee. Again, this is an allegation that was made very late. It was not particularised until many weeks into the trial. I do not accept Mr Lee's recollection of these events as being accurate and I reject his evidence that the plaintiff shouted at and humiliated any staff member, male or female, during this period. (c) Mr Lee gave some limited evidence about his own activities as the treasurer of the Korean society. He said that as he was the treasurer it was his role to use, not the Korean Society's money, but "my own money to offer)" to offer lunches or dinners to the volunteers who came to work without payment at the Korean Society, as they often were persons of limited financial means (Daily Transcript 2400, 25 March 2009, Day 57). Moreover, he extended this largesse to volunteers working for the Sports Council and the Supporting Committee, adding "I didn't distinguish between Sports Council and the committee" in this regard (Daily Transcript 2400, 25 March 2009, Day 57). However, while Mr Lee regarded it as perfectly acceptable for him to pay personally for many lunches and dinners for all these people, he said that it was not proper for the Supporting Committee to do so . He said that the Supporting Committee should spend its money only "for athletes from Korea and support of the Olympics" (Daily Transcript 2406, 25 March 2009, Day 57) This may be Mr Lee's opinion, but there is nothing in the Supporting Committee's Constitution to support such a claim, which was contrary to the wishes and needs of the Supporting Committee's executive and sub-committees. These were volunteers holding meetings late at night and on weekends, and in the case of the cheer squad (whose requests for meals after all that exercise are referred to in the chronology above) to send these energetic people home without a meal would be mean-spirited. [750] The evidence of the fifth defendant suggests Mr Patrick Lee played a far greater role in the preparation of the audit accounts than he is prepared to acknowledge. If so, that is not to his credit. [751] I do not accept Mr Lee's belated claim in 27 September 2007 that he made a donation to the Committee in 1999, given the circumstances in which he attended meetings and advised the fourth and fifth defendants concerning such matters as missing donations, without ever mentioning that his was one of them. Conclusions concerning the credit of the fourth and fifth defendants and Mr Lee [752] For the reasons set out above I do not accept that the fourth and fifth defendants and Mr Lee are witnesses of credit. Where their evidence conflicts with contemporaneous documents or with the plaintiff or witnesses of credit called by the plaintiff, I will accept the evidence of those contemporaneous documents or witnesses. In the case of the fourth and fifth defendants, I would not accept their evidence on issues unless it tells in favour of the plaintiff, or is corroborated. [753] Having concluded my outline of the disputed issues of fact, I now come to the third section of the judgment, a consideration of the defences of comment (including comment of a stranger) and qualified privilege at common law and pursuant to s 22 Defamation Act 1974 (which is pleaded by the defendants in relation to the publications of 1, 9 and 16 March 2001 only). PART 3 – THE DEFENCES OF COMMENT AND QUALIFIED PRIVILEGE [754] I have set out above a description of the parties and the activities of the Supporting Committee, and the events following the publication of the Supporting Committee's financial statement in the Korean newspapers on 24 November 2000. [755] I shall now consider the defences of comment and qualified privilege. These defences differ from the defence of justification in a number of respects, but one issue that needs to be explained for the benefit of lay persons reading this judgment is that the factual issues that are to be determined in relation to these issues relate essentially to the statements of fact in each of the publications, rather than to evidence either not known or not referred to. Comment [756] Each of the second and fourth defendant pleads a defence of comment. In the case of the second defendant, a defence of comment of a stranger is pleaded as an alternative. [757] The fourth defendant relies upon the defence of comment pleaded by the second defendant, adding only that the fourth defendant believed in the truth and intended to convey the imputations. [758] I have dealt first with the defence of comment for both these defendants and then, separately, dealt with the defence of comment of a stranger by the second defendant. I note the second and fourth defendants pleaded this defence to the publication and not to the imputation. This is an obvious error and I have disregarded it. They do not require leave to correct this error, in my view, because of the "fresh step" rule, but I note in any event that the plaintiff does not object to amendment of the comment defence, and I have granted leave to amend (see order in my judgment). I have also dealt with a submission by the second defendant that such a pleading is permissible because of Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9. Elements of the defence of comment [759] These publications were made in New South Wales. The defence of comment is codified in New South Wales. The relevant provisions are set out in Div 7 of Pt 3 of the Defamation Act. Sections 32, 33 and 34 of the Act each provide for defences of comment where the comment was that of the defendant; where the comment is that of a servant or agent of the defendant; and where the comment is not and did not purport to be the comment of the defendant or of any servant or agent of the defendant. [760] To establish the defence of comment the defendants must establish that the imputation was an expression of opinion and not a statement of fact and, further, that the imputation (comment) was based on proper material. The plaintiff concedes there is public interest (s 31). [761] As the NSW Court of Appeal explains in John Fairfax & Sons Pty Ltd v O'Shane [2005] NSWCA 164 at [15] ff, the Defamation Act takes up the common law as to the distinction between comment and statement of fact and what is a matter of public interest, although as will be seen the comment is to be found in the imputation rather than the words of the published matter. As I have noted elsewhere, the fact that the defendants have pleaded the defence to the publication rather than to the imputation is a pleading point, and it is an error made by the fifth defendant in his defence filed 6 April 2005 and by the fourth defendant in his Second Further Amended Defence filed 7 May 2008. The plaintiff in written submissions has noted but not taken the point (Plaintiff's Submissions, at 22.1.2). [762] I note the defendants' submissions (at p.326) that the decision of the NSW Court of Appeal in Aktas v Westpac Banking Corporation [2009] NSWCA 9 at [79] – [85], which held that the defence of qualified privilege goes to the publication rather than to the imputation, should be applied to the defence of comment. However, the very nature of comment is that the comment must be identifiable, and the purpose of pleading the imputation should be to identify the asserted comment. Although Aktas relates to the question of whether or not the defence goes to the imputation, that does not necessarily mean that this rule applies to all other defamation defences; for example, the defence of absolute privilege has always been a defence to the publication and not to imputations. [763] Whether the defence runs to the imputation or to the publication, the result in each of these publications is the same. Each of the imputations (save one) is a statement of fact rather than an opinion, and none of these imputations is based upon proper material. The difference between fact and comment [764] The defence applies where the words appear to be a conclusion, as opposed to a statement of fact: O'Shane at [25] – [26]. Giles JA goes on to note at [27] – [30]: "[27] There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important. [28] To illustrate the distinction, the bald statement "X murdered his father" is likely to be regarded as a statement of fact. The same words may be regarded as comment if facts are set out from which can come the inference that X murdered his father, the statement that X murdered his father being the author's conclusion from the facts. That X murdered his father is likely to be regarded as comment if facts are set out from which can come the inference that X murdered his father and the words are, "In my opinion, therefore, X murdered his father". When the words are less words of fact and more words of evaluation, for example "X is a disgrace to humankind", they are still likely to be regarded as a statement of fact if made as a bald statement, but more readily to be regarded as comment if made after and as a conclusion from a statement such as that that X murdered his father. [29] These are but illustrations, and the characterisation in each case depends on more than the mere words. In any given case, the question is whether the words would be regarded by the ordinary reasonable reader as comment or statement of fact, and the defendant must satisfy the tribunal of fact that they would be regarded as comment. All the circumstances are to be taken into account, and it must be remembered that the ordinary reasonable reader does not parse and pore over the published matter as the lawyers are inclined to do at trial (cf Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 40, speaking of the more ephemeral television broadcast). [30] As can be seen from the illustrations, it will be important to the response of the ordinary reasonable reader whether what is said to be comment is supported by facts presented or indicated in the published matter." [765] The reader must be able to judge for himself from the facts in the matter complained of whether the opinion is well-founded, and what is said to be comment must appear as comment, distinguishable from the facts. The mere fact that a statement appears to be a conclusion is not enough. The second defendant's particularisation of the defence of comment [766] I should briefly note that I received no help from the second defendant's particulars of 12 February 2007, which failed to provide particulars of the facts relied upon for each of the publications and instead relied upon a "rolled up" set of statements which are asserted to be true, without identifying the imputations to which these statements are relevant. [767] It is, perhaps, an indication of the lack of care with which this set of particulars is drawn that particular (xix) recites: "The Third [sic] Defendant also relies upon each of the particulars of justification in relation to comment". [768] These particulars are largely a "copy and paste" job from the third defendant's on all issues, and not even the names have been changed in this particular. This is relevant, because it cannot be said that the plaintiff was on notice as to what the particulars of truth should be because the third defendant had made a better job of setting them out. Examination of the third defendant's particulars of truth dated 7 February 2007 confirms this. I have accordingly analysed the facts in each article conformably (although not identically) with the analysis proposed by the second defendant's submissions. The requirement for the comment to be based on proper material [769] For the defence to succeed, if the imputation is a comment, the comment must be based on proper material. The position at common law is that if the defendant makes a misstatement of any of the facts upon which he comments, he at once negatives the possibility of his comment being fair" (Digby v Financial News Ltd [1907] 1 KB 502 at 508 per Collins MR). Omission can also make stated facts untrue: Gatley, at [12.17]: "Again, the defence of fair comment will fail if the defendant omits from the statement of facts on which the comment purports to be based some important fact which (had it been mentioned) would falsify or alter the complexion of the facts that are stated. For example, if A states that B was convicted by a jury of a serious crime and comments adversely on the fact, but omits to state that the conviction was quashed by the Court of Appeal, his words cannot be defended as fair comment. Comment on facts inaccurately reported cannot be fair comment. As Giles JA explains so clearly in O'Shane at [51], the Act, therefore, and subject to s 30(3)(b), a comment will not be based on proper material for comment if the material on which it is based is inaccurate, including because it is incomplete. In Sims v Wran [1984] 1 NSWLR 317 Hunt J said at 322 — Material is proper material for comment in accordance with the common law; this particular element of the defence is not codified: s 30(1). At common law, and thus under Div 7, a statement may be defended as comment only if the material upon which that comment is based was stated expressly or impliedly in the matter complained of or constituted a matter of contemporary history or general notoriety and thus, in one way or another, was made known to the person to whom the publication was made to enable those persons to judge for themselves whether they agree with the opinion published by the defendant and based upon that material … In the usual case, the comment is based upon factual material, either stated in the matter complained of or otherwise known to the reader. In such a case, the defendant must establish the truth of the facts so stated and the existence of the facts otherwise so known to the readers. Where the substratum of fact upon which the comment was based is itself a matter of notoriety, such as matter published in the plaintiff's own newspapers (as in Kemsley v Foot ), the defendant must produce those newspapers in evidence to enable the tribunal of fact to determine whether the defendant's comment was one which might honestly be based on that material. A comment may be made upon any such matters which are expressly or impliedly submitted to public criticism or attention." Comment of a stranger [770] The second defendant relies upon the defence of comment of a stranger for publications where the fourth and fifth defendants are the servant or agent. One of the problems for me has been to identify which of the publications is intended to be referred to as the proposed amended defence and written submissions do not make this clear, so in order to be safe, I have considered this defence to every publication. Since the plaintiff has judgment against the fifth defendant, and it is unclear where the fifth defendant's opinion would stop and the fourth defendant's opinion would start, this would creates a situation of considerable difficulty if it were not for the fact that I am satisfied, in relation to each of these publications, that even if the matters (or imputations) were matters of opinion, the second defendant cannot establish that the opinion is one which an honest person might have held on the material indicated as its basis. [771] In addition, although it is surplusage to these reasons, I would not be satisfied, from the evidence before me, that the second defendant was a "stranger". Either he is actually referred to in each of these publications as the chairman of meetings or the mediator to whom the fourth and fifth defendants appeal, or he was participating in the events described, both as a participant in the events and in his capacity as honorary chairman of the Supporting Committee. The defence of "comment of a stranger" is designed to provide publications which are made by persons with no personal knowledge of the actual events, who hold an opinion which an honest person might have held. The defence of comment in relation to the matters complained of [772] In the case of each imputation I have first determined whether that imputation is one of fact or of comment. I have held that only imputation 40(a) is capable of amounting to comment, but in the event that I have erred, in each case I have then gone on to determine whether the comment is based on facts truly stated. I have found that none of the imputations is based on facts truly stated. I have nevertheless, in the event that I have erred in those findings, considered issues in defeasance. [773] I have received no submissions from the fourth defendant concerning the defence of comment (fourth defendant's submissions 22 May 2009, paragraph 162) other than that he relies upon the second defendant's submissions. The first matter complained of (Exhibit B) – publication 26 January 2001: That the plaintiff managed the affairs of the Committee so incompetently that, while he was the Committee's President, $102,000 of the Committee's money was spent without proper documentation being kept. [774] The second defendant raises the defence of comment to this imputation and, it would appear (from the additional comments in paragraph 25 on p. 331 added in the revised submissions) comment of a stranger, namely the editor of the publication, as well as the fourth and fifth defendants. [775] The second defendant submits this imputation arises from lines 24 - 5, 28 and 59 – 62 of the publication. These lines refer to the findings of the fourth and fifth defendants that more than $102,000 had been spent without a payment resolution and a receipt. Lines 59 – 62 state that: "Mr Hak Joo Park [the fourth defendant] says that the problem originated from trying to do bookkeeping without a trained bookkeeper. The bookkeeping was done by Mr Cha from May 1998 to Jan 1999, a financial controller was doing it for a while between Jan and Nov 2000 and Mr Cha was doing it after then." Fact or comment? [776] Applying the principles discussed in O'Shane, supra, this imputation is clearly a statement of fact and not an opinion. It is an act of wrongdoing that the defendants say was committed by the plaintiff. I accept the submission of the plaintiff that this imputation falls at the first hurdle (submissions 22.2.3). [777] In the event that I have erred, I now consider, in relation to the defence of comment (as opposed to comment of a stranger) whether the imputation is based on facts truly stated. Is the imputation based on facts truly stated in the matter complained of? [778] The second defendant relies on the following: (a) $102,000 was spent without an Expenditure Resolution and a receipt; (b) the absence of a trained bookkeeper, and (c) the plaintiff's chairmanship and managerial role. (d) In addition, the accuracy of the earlier report in Hojudonga (which is the publication of 22 December 2000 referred to elsewhere in this judgment). That document was in turn based on the "interim report" which the fourth and fifth defendant have not produced in these proceedings. [779] As to (a), the fact that money is spent without both a receipt and Expenditure Resolution is not of itself evidence of failure to keep proper records, particularly in a voluntary organisation. Receipts are not required to comply with legal obligations such as payment of rent and wages, or payment of bank fees. Nor is it necessary for there to be both an Expenditure Resolution and a receipt. As is set out in more detail in the section of this judgment on justification below, the total amount spent without documentation is closer to $27,000. That sum is too far removed from the sum asserted by the defendants to be accurate. [780] As to (b), there is no evidence that the bookkeepers were untrained. [781] As to (c), the statement that a committee spent substantial sums of money without an Expenditure Resolution and a receipt is not enough, without more, to blame the chairman of the Committee (as opposed to, for example, the Financial Director, the bookkeeper or the person in charge of the bookkeeper). The key statements of fact are those set out at paragraphs 59 – 62, There is no statement of fact in the matter complained of to identify what it was the plaintiff did to make him responsible, other than this claim that the plaintiff was doing the bookkeeping himself rather than hiring trained bookkeepers. The plaintiff's role as manager and chairman needs to be seen in context of the Committee structure and activities. He delegated this task to persons he should have been able to trust to keep the records properly. [782] As to (d), the accuracy of the interim accountant's report cannot be tested because it is not tendered. [783] If this imputation (or article) were capable of being comment, it is not based on facts truly stated. Matters in defeasance [784] The second defendant submits there is no evidence of any matters in defeasance and that defeasance has not been pleaded formally in the Reply. [785] As is set out above, the defendants in these proceedings have themselves failed to plead or particularise this defence, and have added further complications by seeking leave to make further amendments to the defence of comment after the evidence is completed. In those circumstances, to be taking this point about the plaintiff's alleged defective pleading, when this could have been raised in interlocutory proceedings, is time-wasting. [786] Having regard to the provisions of s 56 Civil Procedure Act, I see no reason why I should not refer to the matters pleaded in the Reply concerning qualified privilege as being relevant also to the defence of comment, and in particular to the reliance by the plaintiff upon the falsity of these matters of fact to the knowledge of the second and fourth defendants. [787] In addition, the second defendant gave evidence he did not read the matters complained of prior to their being published (Daily Transcript 2086, 12 June 2008, Day 51): "Q. Did you read those before they were put in the newspaper or after they were put in the newspaper? A. INTERPRETER: I have. Much after they were published I've read that. Q. So not before they were published, you read them after they were published? A. INTERPRETER: Yes, correct." [788] Given his role as the Honorary Chairman of the Committee and former President of the Sports Council, not to read it would amount to wilful blindness. [789] The defence of comment fails in relation to this imputation on this basis as well. Comment of a stranger [790] The comment is not one which an honest person might have held on the material indicated as its basis because the reasons for the plaintiff, as opposed to the persons who were responsible for the bookkeeping, including the financial controller, are not explained. [791] Further, the publication was not in good faith for public information or the advancement of public education. The element of good faith, on the facts in this case, has not been made out. The second matter complained of (Schedule D to the Statement of Claim and Exhibit H) – publication 9 February 2001 [792] The second defendant pleads a defence of comment and of comment of a stranger to this imputation. Imputation 38(b): That the plaintiff managed the affairs of the Committee so incompetently that $120,000 of the Committee's money was spent on things on which it should not have been spent. [793] The second defendant's submissions assert that this imputation arises "predominantly" (paragraph 34) from lines 20 – 29 where there are seven expenditures listed and the words appear "Totals of the above mentioned expenditures were $120,000 which was not supposed to be spent from the Committee's fund." Fact or comment? [794] The second defendant submits that this imputation is an expression of opinion on the following bases: (a) it is "a conclusion on the fourth and fifth defendants' analysis" (paragraph 36); (b) "incompetently" is clearly a comment in that it does not appear in the matter complained of and therefore must be an "opinion relevant to the report of $120,000 of Supporting Committee money being spent." (paragraph 36); and (c) "being spent on things on which it should not have been spent" is also an expression of opinion . [795] The second defendant submits that read in context, this is the opinion of the newspaper, not the fourth and fifth defendants, and that the relevant defence is s.32. Alternatively, the defence is that of comment of a stranger. Is the imputation based on facts truly stated in the matter complained of? [796] The second defendant submits that all he needs to prove is that $120,000 was spent, and it is not necessary to establish that the money was not properly spent, because this is caught up in the opinion. For example, it is not necessary to establish the inappropriateness of the Sports Council expenditure; "the mere fact of the Sports Council expenditure itself is adequate". As to the plaintiff's chairmanship and managerial role, the second defendant refers to the matters set out at chapter 3 of the submissions. [797] The elements of the imputation are firstly that the plaintiff managed the affairs of the Committee incompetently and secondly that this incompetence led to the spending of $120,000 on things on which it should not have been spent. [798] The matter complained of gives no explanation as to what incompetence of the plaintiff led to these funds being spent on things on which it should not have been spent. The mere fact that he is the chairman of the Committee and is disputing the amounts calculated by the auditors is not sufficient. More importantly, however, no explanation is given as to why the expenditures which were support and donations to the Korean Sports Council are not expenditures which were not supposed to come from the Committee's fund. [799] The key statement of fact is the statement in the penultimate paragraph: "The auditor Hak Joo Park emphasised regards [sic] to this audit result "this audit is done by a professional person and there is no reason to add or omit out [sic] on Supporting Committee financial report." [800] The final paragraph of the article goes on to note there was a joint news conference at the Korean Sports Council to discuss these matters and this news conference ended without reconfirmation of each other's audit result. In other words, the claims made by the auditors were disputed by the Sports Council but the "clincher" was that the audit was done by a "professional person", which is why this point was "emphasised" by the fourth defendant. [801] This statement was false. The audit was not carried out by "a professional person". It was carried out by the fourth and fifth defendants, who had no expertise of any professional kind. The highest the fourth and fifth defendants could put their claim to seeking professional advice is that they gave $1,000 cash to an accountant whose name they had forgotten, and he told them some basic accounting principles. That is not the same as saying the audit was "done" by a professional person. [802] Accordingly, if I have erred in my conclusion that this imputation is a statement of fact and not comment, the statements of fact upon which the comment is based are not true. The principal statement is an outright lie. Matters in defeasance [803] The second defendant's knowledge of the falsity of these facts, and his reckless failure to read an article about a committee of which he was the honorary chairman, are matters in defeasance. Comment of a stranger [804] The second defendant cannot make out the element of good faith. Further, as indicated above, the matter complained of gives no indication of what incompetence of the plaintiff led to these amounts being spent. The third matter complained of (Schedule E to the statement of claim and Exhibit J) – publication 23 February 2001 [805] There are two imputations in this publication. I will consider each separately. The second defendant does not appear to have pleaded the defence of comment of a stranger to this imputation, but in case he intended to, I have considered that defence as well. Once again, the defence of comment fails at the first hurdle, namely that the imputation (or publication, if the Aktas argument is correct) is a statement of fact. Imputation 39(a): That the plaintiff failed to account for approximately $56,000 of money donated to the Committee [806] The second defendant submits that this imputation arises predominantly from lines 3 – 4 and 12 – 16 and asserts that the phrase "failed to account" is "properly construed as an opinion based on the numerical discrepancies outlined. [807] The heading of the article is "No clues found to save the situation of Olympic Supporting Committee – Differences reduced down to $56,000 but still objects [sic – should be "objections"] on audit by CPA" (lines 1 – 3). Lines 12 – 16 note that Mr Cha increased his estimate of receipts from $310,000 to $386,000 and that the difference between the two estimates is $56,000. The matter complained of goes on to note that the increase by Mr Cha relates to donations from his company but that Mr Cha would not produce his company bank statements unless the auditors agreed to get an audit done by a certified practising accountant. Fact or comment? [808] As lines 3 –4 and 12 – 16 clearly demonstrate, this imputation (or publication, noting the Aktas argument) sets out an allegation of failure to account, conduct which could be criminal in nature. The imputation finds the plaintiff guilty, rather than expressing an opinion, and cannot therefore be taken as a mere expression of opinion (see the plaintiff's written submissions at 22.2.2) Is the imputation based on facts truly stated in the matter complained of? [809] The second defendant submits that these were more or less the totals contended for by the plaintiff and fourth defendant, and relies on the plaintiff's managerial role. [810] This imputation does not refer to the plaintiff's managerial role nor do references to the factual matters concerning this role appears in the article. As is the case with the other publications, there is no mention of the plaintiff's stated reasons for having difficulties working out what the donations were, namely that Mr Sung Joo Sung had taken the financial records for the period up to March 2000. [811] The passages giving rise to the imputations are the references to the "no clues found" and the $56,000 difference and the statements about how some of the gap was being explained by the plaintiff as borrowed money showing up in his business account ($75,000) including his own donation of $23,000. In other words, the explanation for the gap is that the plaintiff has failed to account because he has made off with the money. The claim of 15 private loans is a serious misstatement suggesting the failing to account arises from intermingling private affairs with committee affairs. [812] What the plaintiff says is that he will only hand over his CFM accounting records if a certified practising accountant was appointed. The fourth and fifth defendants portray this as amounting to not trusting the audit team (line 36) and say that if this is the case they will resign. This is a misstatement of the facts. Matters in defeasance [813] The second defendant's knowledge of the falsity and wilful blindness in failing to read the publication before it went to press are matters in defeasance. Comment of a stranger? [814] The second defendant cannot make out the element of good faith. [815] If the second defendant relies upon this defence, I would note once again that an honest person would not have held the opinion because the reason for it being the plaintiff who is to blame (as opposed to the Committee or some other person) is not set out. Imputation 39(c): That the plaintiff failed in his duty as president to ensure the Committee kept proper accounts. [816] The second defendant submits that this imputation arises principally from lines 46 – 48 and that the concept of "failed in his duty" is a comment based on the fact of the plaintiff's position as manager and the absence of relevant data such as receipts relating to expenditure and bank details. Fact or comment? [817] This imputation sets out misconduct by the plaintiff in terms of findings of fact that the plaintiff is guilty, as opposed to an expression of opinion. Is the imputation based on facts truly stated in the matter complained of? [818] The matter complained of recites that the auditors had reduced the total receipts from $501,000 to $442,000 and that the plaintiff had increased receipts from $310,000 to $386,000 and the difference between the two sets of accounts was now $56,000. These additional amounts from Mr Cha came from his business accounts and included his donations, but he refused to present statements from his business accounts "unless the auditors agree to get audits done by a Certified Practising Accountant" (lines 32 – 33). The fourth and fifth defendants responded to this by saying they wanted another meeting to find out whether the fourth and fifth defendants were "distrusted or not", saying they were willing to resign their position if they are distrusted" (line 35 – 6). [819] The plaintiff "repeatedly" said the did not want to argue with the auditors, that it was best to have a CPA audit published in the newspapers, and that he was willing to pay for any differences (lines 39 – 42). This proposal was not agreed to and although the meeting went on for about six hours nothing came of it. However, despite the differences in total, everyone agreed that the plaintiff was "responsible for the circumstances" (line 49). Statements of fact to this effect by some of the persons attending the meeting are set out. [820] The vice in this article is the assertion that even if there is no money missing, the plaintiff is still "responsible for the circumstances". This is a misstatement of the facts. The problem was that the plaintiff did not know about a number of cash donations made during the period that Mr Sung Joo Sung was keeping the books because when he left the Committee he dishonestly took the books with him. Matters in defeasance [821] The second defendant's personal knowledge of these matters, as he was consulted by the fourth and fifth defendants, received correspondence from the plaintiff and published a letter from the plaintiff listing the names of these persons, is a matter in defeasance, as is the second defendant's wilful blindness in not reading the matter complained of before it went to press. Comment of a stranger? [822] I repeat the matters set out in relation to imputation 39(a) in the event that this defence is also pleaded. The fourth matter complained of (Schedule F) – publication 1 March 2001 [823] This publication contains a number of imputations, which I shall consider separately. Imputation 40(a): That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia. [824] This imputation is the only one to which I consider a defence of comment could run. [825] I note the fourth defendant also pleads a defence of comment to this publication as well as to the publications of 9 and 16 March 2001. All references to "defendant" or "second defendant" include the fourth defendant. Fact or comment? [826] The second defendant submits that this is "a classic expression of opinion" and I agree, although I do not consider that lines 146 – 9 are the only passages giving rise to this imputation. [827] The main passage of the matter complained of referring to "shame" in fact occur elsewhere, notably in lines 44 – 46, under the heading "Opinion of operations audit", and relate to the whole of the Committee's activities, not just the bouncing cheques referred to at lines 146 – 9. The whole of the section "Opinion of operations audit" (lines 44 – 62) is the factual basis for this, but since the "single word" for the Committee is "shameful", then all the allegations of fact in the publication are matters upon which the comment is based. The word "shameful" also occurs in line 162 concerning the plaintiff's arrogance and self-righteousness. Is the imputation based on facts truly stated in the article? [828] I shall first look at the three parts of the matter complained of where there is an allegation of shameful conduct, and then at the whole article. [829] First of all, lines 44 – 62 say that it is shameful to call the Committee a Pan-Aus Korean association when it was downgraded to the plaintiff's "own stage and own private company". It is asserted the plaintiff left the positions of Secretary-General and Treasurer vacant when this was against the "Articles of Association". This was incorrect to the knowledge of both the second and fourth defendant, who both also knew that the Committee was an unincorporated association. Nor was it true that the plaintiff controlled all of the receipts and expenses by himself and did not even have a book to keep the records in, or that he had the quarrels referred to or made any of the statements attributed to him. [830] The imputation refers to "the Korean community in Australia", which is a key phrase, because this is clearly a reference to the shame brought on the Korean community in Australia by the "Sydney Olympic Aus-Korean" Committee. [831] Secondly there is the reference to the dishonoured cheques, "especially between 14 June and 31 July" when 15 cheques were returned unpaid. In fact it was 8, and this was because the Finance Director, Joo Yong Jo, put the Joon Kim loan into the wrong account, according to the plaintiff. The plaintiff gave this explanation in the witness box and it is likely he gave it at the time. Whether he did or not, the degradation of the credit rating of Korean Society and subsequent disgrace to "our community" is not something that is known around Australia. [832] Thirdly there is the reference to the Committee staff who were heartbroken and shameful at the plaintiff's arrogance and self-righteousness. If the plaintiff, while in charge of an Olympic committee, behaved in such a way, that would be evidence that could bring shame on the Korean community in Australia because the Olympics (unlike the credit rating of Korean societies) would be something that would be known around Australia. [833] The statements of fact that are listed in this part of the matter complained of are all untrue. It was never put to the plaintiff that he said those things, nor did any witness come forward to corroborate them. In addition, as is set out above, I have found that the reason Mr Sung Joo Sung left his position is because the plaintiff objected to his pocketing $1,000 of the Paek loan, the reason Mr Won Kang left his position is because the plaintiff did not give him the allowance of $300 per week that he thought had been promised, and that the seventh defendant could not keep away from the Committee and was there from the commencement until the end. [834] Although not referred to in the matter complained of, one of the bases upon which shame was allegedly brought to the Korean community was that the plaintiff was absent from the opening ceremony for the Paralympics because he and several members of the Supporting Committee executive were attending the National Games in Korea (the plaintiff had attended these annual games in his capacity as president of the Sports Council since 1997). Would this bring shame on the Korean community in Australia, if it were a notorious fact? [835] The Committee's Constitution permits the Chairman to appoint other officials in his absence. As the Activities Diary shows, he arranged for other officials to take his place. The principal official who took the place of the plaintiff was the Supporting Committee's Honorary President, who performed several tasks on behalf of the Committee while the plaintiff was in Korea. What was it about appointing this person in the plaintiff's absence that could bring shame on the Korean community? [836] The Honorary President is the second defendant, who published this matter complained of. [837] The plaintiff's delegation of his duties to the second defendant, in circumstances where the plaintiff needed to be in Korea to represent the Supporting Committee as well as the Sports Council, does not amount to conduct which would bring shame on the Korean community in Australia. [838] As I have set out elsewhere in this judgment, this was a Committee which had helped to bring about an event of importance – North and South Korea marching into the Olympic arena under the one flag. This would have been a notorious fact known to persons reading the Korean newspapers. The omission of this fact from the publication is significant in relation to this imputation. Matters in defeasance [839] The knowledge of falsity by the second and fourth defendant and the willful blindness of the second defendant are matters in defeasance. [840] I do not accept the evidence of either the fourth or fifth defendants that they held this opinion. They well knew that, whatever the financial rights or wrongs of this Committee, and whatever the plaintiff's involvement, he had not brought shame on the Korean community in Australia, and their letter of 30 October 2000 congratulating the Committee on its success concerning the Olympics, the Paralympics and the National Games in Korea (Exhibit UU) is contemporaneous evidence of this. Comment of a stranger [841] The second defendant cannot make out the element of "good faith" required. [842] I note in general that the second defendant relies upon the statements of opinion by the fourth and fifth defendants. I have real difficulty accepting that a person can allow judgment to be entered against him and then raise a matter which amounts to a defence. [843] Further, if the material upon which the comment was based included the notorious facts of the conduct of the Supporting Committee during the Olympic Games, an honest person, knowing of this conduct, and whatever he might have thought of the plaintiff's honesty or financial management, could not possibly have held this opinion in the material which formed its basis. [844] I accordingly find that the imputation is not based on proper material for comment, and that the falsity of the facts, to the knowledge of the second, fourth and fifth defendants, is a matter in defeasance. As to the defence of comment of a stranger pleaded by the second defendant, the element of good faith is not made out, in that no one reading the article who knew the notorious fact of the Supporting Committee's success in all its public endeavours could hold the opinion expressed in the imputation. Imputation 40(d): That the plaintiff impeded the working of the Committee through his self-righteous behaviour. [845] The second defendant's submissions set out that this imputation arises from lines 46 – 62 but especially from lines 52 – 53. [846] It is submitted that the concept of "self-righteous behaviour" impeding the working of the Supporting Committee is an expression of opinion based on the various examples supplied at lines 46 – 62. Fact or comment? [847] A statement that a person impeded the working of the Committee is a statement of fact. [848] The attribution of "self-righteous" conduct is a description of the conduct that is no different from descriptions such as "dishonest" or "unlawful" or "violent". The gist of the imputation is impeding the working of the Committee. [849] This imputation is a statement of fact about conduct that the plaintiff is guilty of, rather than an expression of opinion. Is the imputation based on facts truly stated in the article? [850] The second defendant's submissions (at page 343) on this issue need to be set out in full: "The second defendant relies on the facts referred to at [51] and [52] above. Even if lines 46 – 62 contain a factual inaccuracy there is sufficient proper material to support the comment." [851] The paragraphs referred to as [51] and [52] are the text of imputation 40(a) (that the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia) and the factual material relied upon to support this, namely the statement in the matter complained of that 17 Committee cheques were dishonoured by the bank upon presentation. [852] This is one of several examples of the second defendant misrepresenting the facts and the evidence in this case. The word "self-righteous" in fact occurs five times: (a) The word first occurs at line 34 and the whole of lines 29 – 43 set out the factual basis upon which this assertion is made. No mention of this is made by the second defendant. (b) The second and third use occur at lines 53 and 60, and lines 44 – 62 set out the factual basis upon which the assertion is made. As noted above, the second defendant concedes there is "a factual inaccuracy", but without saying what it is, and asserting that despite this factual accuracy there is still sufficient material to support the comment. (c) The fourth and fifth use occur at lines 163 and 170 – 171, and lines 158 – 191 set out the factual basis upon which the assertion is made. No mention of this is made by the second defendant. [853] I shall now consider the factual statements set out in this publication. Lines 29 - 43 [854] The first statement made is that after Mr Cha was appointed he "spent about 12 months doing nothing". This allegation was never put to him. During this time the Supporting Committee was established, set up and furnished its office and established a series of six committees. They advertised to arrange home stays, started visiting homes to see if they were suitable, found and interviewed Korean-speaking volunteers for SOCOG and set up the cheer squad. The statement that Mr Cha did nothing until April 1999 is false. [855] The second allegation is that "major Committee members" (line 32) refused to attend an inaugural ceremony because Mr Cha was performing his duties with "self-righteous style and without appropriate knowledge". This allegation featured prominently in the particulars of truth of the second defendant prior to commencement of the trial but no witnesses were called and indeed no reference to this inauguration (which occurred some time in March 1999) appear in the transcript other than incidentally, concerning the expenses (which were not challenged). [856] The third allegation is that although there were a lot of donations the plaintiff "managed and completed until the Olympic Games were over, with no secretary-general or treasurer to manage and control the finance. Mr Cha managed receipts and expenses all by himself". [857] I have set out above each of the persons who occupied the role of secretary-general and treasurer and also the paid bookkeepers who kept the accounts and office records. I have also set out how, when they not did their job, Mr Cha quite tactfully asked new persons to take over these tasks. I have also set out how each of the persons he appointed had a long prior history of acting as a treasurer in other organisations connected with the Supporting Committee (such as the Korean Sports Council or the Korean Society); he was not appointing friends, or persons with as little experience at accounts as the fourth and fifth defendants had. This statement of fact must have been known to be false, both to the auditors and to the second defendant, who was the Honorary president of this committee. [858] The fourth allegation is that while the Paralympics were on, the plaintiff and "the rest of the Supporting Committee" were in Korea attending the Korean Nationwide Sports Festival and that the welcoming ceremony for the Para-Olympics was held "without any of the Supporting Committee members". [859] This is not correct. The second defendant, the honorary president, attended, as did other Supporting Committee members. The plaintiff was in Korea at the Sports Festival in his capacity as president of the Sports Council, and he returned after the opening ceremony for the rest of the Paralympics. He made arrangements for other members of the Supporting Committee to perform his duties in his absence (including the second defendant, who met the team in his capacity as Honorary president of the Committee), as he was entitled to do under the Constitution. It was untrue that the rest of the Supporting Committee were in Korea; all but two of them were in Sydney for the whole of the Paralympics. [860] Thus every statement in this portion is not only untrue but must have been known to be untrue both to the fourth and fifth defendants and to the second defendant in his capacity as honorary chairman of the Supporting Committee. Lines 44 – 62 [861] This is the portion of the matter complained of relied upon by the second defendant. The portion conceded to be inaccurate is not identified. I shall examine each allegation in this section of the matter complained of. [862] This paragraph sets out that the plaintiff downgraded the Supporting Committee from being a pan-Australia-Korean organisation to being his own private stage and company. Although the Articles of Association (actually the Constitution) was a clear guide to the directions and regulations of the Constitution, the plaintiff had left the positions for secretary-general and Treasurer vacant "even though it is against the Articles of Association". He controlled all the receipts and expenses "by himself" and "did not even have a book to keep the record of any receipts and expenses". [863] All of these statements are untrue. All of the Supporting Committee's records, and especially the Minutes of Meeting, show these positions were filled (and in fact the Constitution does not contain any stipulation about these positions). These persons did keep records, however inadequate. [864] The rest of this section refers to the plaintiff's arrogance and gives some specific examples which, if proved true, would go a long way to establishing not only the defence of comment to this imputation but also the defence of justification. I shall deal first with the following section: "He shouted, meaning how dare you, and quarrelled with people who suggested he stop his self-righteous behaviour and carry out his duties to manage the Committee properly and he consistently behaved as he pleased and arrogantly. "Democracy works depending on majority's opinion. Mr Cha even ignored that basic theory of democracy and ignored Committee's regulations. He decided independently and put into operation all by himself". [865] None of these allegations was put to the plaintiff. No witness was called to say that he or she had a conversation with the plaintiff of this or any kind. The Minutes of Meeting make it clear that there were regular monthly meetings where everything raised was discussed freely and votes were taken. Minutes of the previous meeting were approved at the next meeting, and sent to everyone entitled to receive them. In addition, the six sub-committees of the Supporting Committee met and made many decisions, apparently independently, and consulted the plaintiff if they could not agree (as occurred when there was a disagreement in the cheer squad on one occasion). There were also regular meetings with the Sports Council. The plaintiff and other Committee members also took advice from persons not on the Committee, notably the Korean Consul. Nobody who had read the Minutes (and the auditors were given the Minutes – (Paragraph 101 of Mr Park's statement, and see also the entries in the Activities Diary (Exhibit 51) concerning his receipt of Committee information in February and August 2000) could make such a statement truthfully. [866] The balance of this paragraph refers to a conversation which allegedly took place between the plaintiff and the fourth and fifth defendants: "When the auditors asked Mr Cha: "Why did you not have a treasurer?" Mr Cha replied immediately: "There was no one I could trust." It means that he could not trust anyone. Maybe his dictatorship and self-righteousness originate from this way of thinking. The auditors can only declare the opinion that the tragedy of the Supporting Committee originated from appointing such a person as a head of the organisation." [867] Although I reminded Mr Wheelhouse SC of his Browne v Dunn obligations, he never put to the plaintiff that he had this conversation with the fourth and fifth defendants. Nor did the fourth and fifth defendants give evidence that they had any such conversation with the plaintiff. Nor does any assertion to this effect appear anywhere in the particulars. The reason is that there were in fact persons appointed to the position of financial controller, or secretary-general, or both, for the whole of the life of the Committee. It was never the case that the plaintiff failed or refused to appoint a person treasurer. The problem the plaintiff had was that the persons he appointed to the role did not do their job. [868] The reference to it being a "tragedy" that the plaintiff was appointed the head of the organisation omits to refer to the election of the plaintiff as opposed to the other candidate for election, namely the second defendant, Mr J K Lee, who is the publisher of the matter complained of. It is a reminder to the persons reading the matter complained of that this would not have happened if Mr Cha had not been appointed the chairman. This is relevant on a number of issues, including malice. I should once again note that the opening description of the circumstances in which the plaintiff was appointed chairman are completely inaccurate. The fourth and fifth defendants have omitted the fact that the plaintiff defeated the second defendant in an election. It was not the case that people felt they had to choose the plaintiff because of prior bad experiences in the United States. No evidence was given of this at the trial. Lines 158 – 191 [869] This section, which also complains of the plaintiff's self-righteous behaviour (at 163 and 171), is not referred to in the second defendant's written submissions. [870] The opening sentence refers to how successful the operations of the Committee could have been but goes on to say it is "also true that a lot of Committee staff were heartbroken and shameful of [sic – should be "at"] Mr Cha's arrogance and self-righteousness". The details of this are: "Mr Cha used to say to the others when some tried to give him good advice, he used to shout and tell them off: I did not become president by playing a card game, 50,000 community members appointed me as a president. Who dares to nag the president for spending money. If we get caught by auditors, I will pay back the money later. Three of the vice-presidents had soft characters; they ignored him all along. Mr Cha made secretary-general and treasurer who looks after financial affairs leave their positions by picking a quarrel with them because they seemed obstacles to his self-righteous management. The Supporting Committee can [sic – should be "did"] not have anyone stops [sic – should be "who can stop"] any of his misbehaviour." [871] Despite my reminding Mr Wheelhouse of his Browne v Dunn obligations, the plaintiff was never cross-examined about making these statements, nor did the fourth and fifth defendant give evidence of who told them this, nor was any person called who said they had any such conversation with the plaintiff, nor was it particularised. [872] The Minutes of Meeting and Activities Diary and the whole history of the Committee as set out above contradict the claim that the Supporting Committee or the three vice-presidents weakly let the plaintiff do what he liked. No evidence was led about the plaintiff riding roughshod over the vice presidents. [873] The treasurer and secretary-general who look after financial affairs are not identified. I need not repeat the evidence concerning the tenure of office of Mr Joo Yong Jo, Mr Sung Joo Sung and the seventh defendant. These statements are, in addition, inconsistent with statements by the fourth and fifth defendants elsewhere that the plaintiff refused to appoint such persons and never had anyone else to look after financial affairs, preferring to do it himself. [874] The final section of this part of the matter complained of recited how the auditors "informed audit schedule to the Committee and requested for material for auditing. But the Committee did not respond to the auditors' request and did not hand in the materials. The Committee announced financial report in the newspapers without an audit. Also, they asked the readers to contact the auditors of Supporting Committee office. They probably thought that auditors are part of a Supporting Committee." (lines 173 – 178) [875] I have set out above my findings concerning the events in question and will not repeat them, save to say that this does not accurately reflect the plaintiff telling the auditors about the problems he had when Mr Sung Joo Sung took the Committee accounts book. [876] The rest of the matter complained of makes a curious claim, namely that after publication of the financial report in the newspaper, "due to the auditor's severe objection, they handed in their financial report. But when we looked at this report it was very much different in [sic – should be "to"] the newspapers". [877] No evidence was ever led of any difference between what the plaintiff published in the newspapers and any "report" he allegedly gave to the fourth and fifth defendants. [878] The matter complained of goes on to note that the records were in "utter disorder", giving as examples that there were 140 expenses without receipts and the accounts book was a school exercise book from which "most" receipts and expenses were omitted. The auditors complain they needed to cross-check what was published in the newspaper with the original document signed by Mr Cha, and asked him to meet them "to cross-check the result of the list". The auditors complain that the plaintiff "did not respond to the auditor's request" and that this was why they called on "the president of the Sydney Korean Society, who concurrently holds the title of honorary president of the Committee" seeking a mediation. [879] I note this unnamed person is the second defendant. I have set out elsewhere that the plaintiff gave evidence that he asked the second defendant to mediate the dispute, as did the cross-defendant. It would appear from this that the second defendant was indeed asked to mediate – by the fourth and fifth defendants. [880] There was no evidence led that the fourth and fifth defendant simply wanted to ensure that the figures published in the newspaper were the same as in the original report, or that they asked the plaintiff to help them check this. Nor was there any evidence of any differences. Nor is it true that Mr Cha did not respond to their requests. Mr Cha responded in letters and meetings, as the correspondence and Exhibit 73 demonstrate. He provided a revised list of donors and called upon the fourth and fifth defendants to nominate a Korean accountant of their choice, saying if there was a shortfall found he would pay it. Matters in defeasance [881] I have set out above the statements of fact that were untrue to the knowledge of the second and fourth defendants. I do not accept the evidence of the fourth and fifth defendants that they believed in the truth of this imputation. Whatever they may have thought of the plaintiff's responsibility for the financial mismanagement of the Committee, they knew, from the documentation before them, that this was a happy group of volunteers and that the plaintiff had never impeded the workings of the Committee. Comment of a stranger [882] Given the second defendant's personal knowledge of these events – and he is referred to directly in the closing sentence as the mediator – I cannot see that the "good faith" element could be made out. Imputation 40(e): That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs. [883] The second defendant no longer presses the defence of comment in relation to this imputation (written submissions, paragraph 63). I assume that applies to the fourth defendant as well. Imputation 40(h): That the plaintiff misused his position as president of the Committee to gain a directorship for himself. [884] The second defendant asserts that this arises from lines 96 – 98 and "is a clear comment" (paragraph 65). The words "misused his position as president of the Committee" is asserted to be an opinion based on the fact of the gift giving and the honorary directorship, because this is "a conclusion or deduction" (paragraph 65) Fact or comment? [885] This imputation sets out as a matter of fact the wrongdoing of which the plaintiff is guilty. It is not an expression of opinion or a conclusion of any kind. Is the imputation based on facts truly stated in the matter complained of? [886] Lines 96 – 98 assert that as a result of "all these activities", namely giving "Korean Olympic (North and South) $12,742.20 worth of gifts and giving SK Securities $13,822.50 worth of gifts, the plaintiff was appointed as an honorary director of SK Securities. These excessive gifts are compared to his stinginess in giving $21.50 to a voluntary worker. [887] The defendant's submissions (at paragraph 66) assert that this was an underestimate. [888] As I have set out elsewhere, I regard the SK Securities donation as a contract of a sports sponsorship nature. They wished to sponsor the Supporting Committee, but they drove a hard bargain with them about the terms, as the letter from SK Securities and the discussions referred to in the Minutes of Meeting show. Those terms did not include giving the plaintiff an honorary directorship. In fact, all he received was a plaque of gratitude calling him an honorary director, and it appears from the minutes that Supporting Committee plaques of a similar kind were given to the SK directors who came to Australia for the SK Night for which part of the sum donated was used. This was a function for about 400 members of the Korean community attended, among others, by the fourth defendant. [889] The complaint about giving gifts to the North and South Korean athletic team is curious. There were challenges to these gifts during the trial, notably to gifts given to the North Korean team, including the watches (which the fourth defendant cross-examined the plaintiff about) and the cash donation to the North Koreans. No evidence was led during the trial about the plaintiff's "stinginess" concerning $21.50 to a volunteer and there is no evidence to support this contention. (It has been a difficult matter for me here, as elsewhere, to work out what the facts truly stated are in the absence of proper particularisation of these by the defendant in the accepted way in answers to particulars). [890] The plaintiff was not in fact "appointed", nor was he really a director, even an honorary one, and certainly not as a "contra" for giving presents to the athletes or to SK Securities. He was only given a plaque of gratitude. These are not facts truly stated. Matters in defeasance and comment of a stranger [891] I repeat my earlier findings. The fourth and fifth defendant knew of the falsity, as did the second defendant (the second defendant appears, in fact, to have overlooked the defence of comment of a stranger to a number of these imputations). I find that good faith cannot be established having regard to his knowledge of the facts. Imputation 40(k): That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff. [892] Once again, the second defendant does not indicate if the defence is comment only, or comment of a stranger, so I will address both, as well as the defence of comment of the fourth defendant (which I note the fourth defendant has not addressed either). Fact or comment? [893] The defendant concedes that the sting of the imputation is that the plaintiff caused distress to the staff and that this is a statement of fact (written submissions paragraph 70 page 345) but submits that "arrogant and self-righteous is a comment". The fact that this behaviour is "arrogant", as opposed to, say, "violent", cannot render a statement of fact a comment. This imputation is a statement of fact. Is the imputation based on facts truly stated? [894] The second defendant submits that the plaintiff's "shouting and quarrelling" with Supporting Committee members and staff" would amount to evidence upon which the comment is based, and "it does not matter that there is no evidence of the specific comment by the plaintiff at lines 164 – 167" because it is sufficient to show that the plaintiff shouted at and quarrelled with Supporting Committee staff. [895] This is one of several examples of the second defendant not accurately stating the facts. There are a number of references to the plaintiff's arrogant and self-righteous behaviour causing distress to Committee's staff and members of the Supporting Committee. These include the Committee members who refused to take up their position because of his self-righteous behaviour (lines 34 – 35), his shouting at and quarrelling with people who suggested he stop his self-righteous behaviour and carry out his duties to manage the Committee properly and he consistently behaved as he pleased and arrogantly" (lines 52 – 4), the Committee staff being heart-broken and shameful at his arrogance and self-righteousness by saying he did not become president by playing a card game (lines 161 – 167) and the quarrels with the secretary-general and treasurer where he picked a quarrel to make them leave because they were obstacles to his self-righteous management; nobody on the Committee was able to stop his misbehaviour (lines 168 – 172). [896] The second defendant submits that "it is sufficient for the second defendant to establish that the plaintiff shouted at and quarrelled with Supporting Committee staff" (written submissions p. 345) and refers me to Chapter 11 [4] – [20] and 14 at [2]. [897] The conduct referred to in Chapter 11 [4] – [20] consists of: (a) the plaintiff's personal possession of the cheque books, presenting cheques with single signatures, writing cheques to cash, drawing cheques without an expenditure resolution and failure to keep adequate records; (b) his treatment of the seventh defendant, including throwing cheques in his face in 1998. Much is made of the fact that this was not challenged in cross-examination. I have indicated elsewhere that it was difficult to cross-examine the seventh defendant because, as the transcript shows, he kept getting out of the witness box and leaving, and given his poor state of health the cross-examination could not continue. In addition, the plaintiff denied the allegation (Daily Transcript 770 line 45 and 772 line 35, 4 October 2007, Day 21). Since the Committee did not have a cheque account in 1998, and received only two donations (in cash), and since I find the plaintiff's evidence preferable in all circumstances to that of the seventh defendant, I do not accept this evidence. (c) His treatment of Mr Sung Joo Sung, which I find was entirely reasonable given that Mr Sung Joo Sung put a loan from Vice-President Paek into his own account while the plaintiff was absent overseas. (d) Mr In Ki Kim, whose tenure is described as "brief". The seventh defendant says that Mr "Jang Ki Kim" asked him to take over his job (Daily transcript 2169, 17 June 2008, Day 53). The seventh defendant's evidence was that this gentleman urged him to help the plaintiff, not that he criticised him or resigned because of him. (e) His treatment of Mr Won Kang, which I find was reasonable. The evidence quoted by the second defendant in submissions comes from Mr Won Kang's statement. In his evidence in court he did not give this reason for the fight; it was because he said he had been promised a $300 a week allowance by the plaintiff. (f) His treatment of Mrs Park. This escalated from calling her "ya" (the familiar term for "you") to an incident where he shouted at her and pushed an ashtray towards the seventh defendant which, because of the seventh defendant's seniority, he considered insulting. Mrs Park did not give evidence and I prefer the plaintiff's version of this event. (g) Other persons who resigned, as set out in chapter 11 paragraph 20. These matters were not put to the plaintiff. [898] I do not accept the submission that the plaintiff was "prone to shouting at employees and Supporting Committee volunteers", or that there were "frequent changes of office holders" (chapter 11, page 7). There were only three bookkeepers for the whole of the Committee's life and the membership of this voluntary organisation was remarkably stable, given the hard work involved. Most of the senior officers, including all three Vice-Presidents, were unchanged. [899] There is no evidence any member of the office staff was distressed. I do not accept the seventh defendant's version of the Mrs Park incident. [900] I have set out the second defendant's submissions in full to demonstrate the vice – that the allegations in the matter complained of cannot be demonstrated. The matters that are relied upon for the defence of truth are entirely different to the contents of the matter complained of. [901] The imputation, if found to be comment, cannot be established to be true on the basis of the factual matters in the matter complained of because these statements are entirely without factual basis. Further, if the defendants were entitled to rely upon the factual material they seek to rely upon, which is not referred to in the matter complained of, that material is also not true and therefore not proper material for comment. Matters in defeasance and comment of a stranger [902] I repeat my earlier findings and, in relation to any defence of comment of a stranger by the second defendant, note that once again if this is pleaded, no submissions have been provided. The fifth matter complained of – publication 9 March 2001 [903] The second and fourth defendants plead a defence of comment. There are no submissions concerning any defence of comment of a stranger Imputation 41(b): That there were reasonable grounds for the auditors to suspect the plaintiff of making a false claim for business expenses of $9,121.40 [904] The second defendant states that this imputation arises from lines 17 – 26 and that it is "a classic expression of opinion" (paragraph 74, submissions). Fact or comment? [905] This imputation sets out as a matter of fact the wrongdoing of which the plaintiff is accused. It is not an expression or an opinion. [906] Once again, in the event that I have erred in this finding, I shall consider the question of whether the imputation is based on facts truly stated in the article. Is the imputation based on facts truly stated in the article? [907] The matter complained of asserts that the plaintiff withdrew $8,479.00 and $641.70, a total of $9,121.40, for a business trip to Seoul and goes on to say that in the case of an official business trip, the reason and purpose of the trip, evidence of trip expenses and receipts must be recorded and kept, but that among the documents kept by the Supporting Committee "there is no document that can support this official business trip". The matter complained of goes on to state: "It is inevitable to guess that Mr Cha's trip was not for business. We, as auditors, were shocked that Mr Cha did not care about his public responsibility for his abusing the supporting fund for his private expenses. The auditors could not find any evidence to support this expenditure. And they decided this expenditure was for Mr Cha's public use. Therefore we believe that Mr Cha must refund this money to the Committee." [908] As the second defendant notes at paragraph 75 of the submissions, the second defendant did take a business trip between 27 February and 8 March 2000 and he did make a claim for a business trip to Seoul. The second defendant asserts at paragraph 75(c) that in addition to these facts the second defendant relies upon: "The absence of evidence of trip expenses and receipts for the trip to Seoul and the absence of Supporting Committee documents that can support the trip" [909] The second defendant goes on to assert that there are "no proper records" to support this trip. [910] This assertion is false. There were many Supporting Committee documents recording this trip, including: (a) Expenditure Resolutions. (b) The Minutes of Meeting (Exhibit 51, p. 40 and 41) contain a report on the chairman's business trip to Seoul. He reported he met Mr Gi Sooi Kim, president of the Seoul Olympic International Volunteers Association, who promised to come to Australia visit the Committee rally to give advice and to explore how to provide support. (c) The Activities Diary confirms this, and records on 27 February that the plaintiff was visiting Seoul for 10 days. He telephoned from Seoul on 2 March to obtain prices on the promotional booklet and to ask the staff to send an invitation to the president of the Seoul Olympics International Service Society (the Mr Kim referred to above) for the Supporting Committee's function on 18 March. It should be noted that in addition to obtaining documents from the plaintiff in his capacity as auditor, the fourth defendant approached the Supporting Committee in his capacity as secretary-general of the Korean Society and on 6 March 2000 and again in August 2000, according to both the Minutes of Meeting and Activities Diary, was sent documentation which included Minutes and lists of office bearers (see, for example, Activities Diary entries for 26 February and 6 March and the confirmation of this in the Minutes of 9 March 2000). [911] The fourth defendant, in his capacity as secretary-general of the Korean Society, visited the office of the Supporting Committee on 25 February "to seek co-operation" and obtain promotional booklets (Exhibit 2). On 6 March he was sent not only 20 booklets but also a copy of committee business information, a copy of the list of committee officials and a copy of the list of planning officials. We know these references in the Activities Diary are to the fourth defendant, because they are also set out in the Minutes for the meeting of 6 March, where the fourth defendant is identified by name. This means he had information in his own possession at the relevant time. He was in fact in their office two days before the plaintiff left on this trip. [912] In addition, if the fourth and fifth defendants had any suspicions, they could have raised them with the plaintiff, who would have reminded them of what he had been doing in Korea at this time. Reasonableness connotes making an enquiry. A suspicion which is held without checking with the person about whom the suspicion is held is not reasonable. [913] Having regard to all of the above, if the imputation is one of comment, it is not based on facts truly stated in the article. Matters in defeasance and comment of a stranger [914] The fourth defendant, had actual knowledge from the Minutes that this was a business trip and that the plaintiff reported to the Committee on his activities. In relation to the defence of comment of a stranger, the second defendant has failed to establish that the publication was in good faith. [915] In relation to the assertion that the fourth and fifth defendants gave "unchallenged evidence that they held an opinion in line with this imputation" I again note the difficulty in relation to the fifth defendant of his being able to claim to hold such an opinion when judgment has been entered against him. Imputation 41(d): That the plaintiff misappropriated to his own use money belonging to the Committee [916] The second defendant states that this arises from lines 27 – 37 and is an expression of opinion in the sense that it is the auditor's conclusion or deduction from aspects of the result of the audit undertaken, pointing particularly to the question at lines 33 - 5 as follows: "Even though he spent so much money on entertainment, what is the reason why he took more money for expense account again? If he fails to offer evidence on how he spent this money, the money should also be paid back because public fund [sic] has been misused or misappropriated." Fact or comment? [917] This is not an opinion. It is a statement of fact finding the plaintiff guilty of a conduct of which he is charged. [918] Once again, in the event that I have erred, I will consider the question of whether, if the imputation amounts to comment, it is based on facts truly stated in the article. Is the imputation based on facts truly stated in the matter complained of? [919] The second defendant refers to the following: (a) The plaintiff withdrew $5,200 "over three times as an expense account" and the defendant refers me to Expenditure Resolutions 5, 16, 23, a-34, 62, 88, 114 and the other Expenditure Resolutions recorded at Exhibit 54, supplementary report, Appendix 8, as well as cheque number 114691 for $20,000. The total for these payments (not including other entries in Appendix 8) is $30,380. The second defendant submits that it "does not matter if [these expenses] did not occur on the three occasions in the amount nominated by the fourth and fifth defendants" because there were "substantial withdrawals by the plaintiff and this part of the matter actually understates them." (submissions paragraph 80(a)); (b) A total of $62,816.16 was spent on entertainment and $33,135.70 was spent on gifts and the second defendant refers to Appendixes 5 and 6 of Mr Finney's supplementary report recording gift expenditure. The second defendant says that while the fourth and fifth defendant's figures may not be precisely correct, the fact is that there was very substantial expenditure on entertainment and gifts is correct and any inaccuracy is not material enough to vitiate the defence; (c) The plaintiff made personal reimbursement claims while the Supporting Committee was spending "vast sums" on entertainment and gifts (for example the $20,000 payment pursuant to cheque number 114691 in August 2000) [920] The facts truly stated must be in the matter complained of. It is not enough to point to only some of these facts. [921] The matter complained of makes a series of allegations that the plaintiff has misappropriated or made improper use of funds. These are as follows: (a) lines 17 – 26 – This section is headed: "president Cha's business trip expenses – improper use or misappropriation?". This directly raised the allegation and is eye-catching because it is point number one in the report. As I have set out elsewhere in this judgment, the claim that the auditors could not find any evidence to support this expenditure was entirely false. Not only did the auditors have Expenditure Resolutions and receipts, but they had copies of the Minutes of meeting where the plaintiff gave a report about what he did on this trip. The fourth defendant obtained information, including Minutes of meeting, from personal requests and visits to the office in his capacity as an office bearer for the Korean Society. He actually visited the Committee's office two days before the plaintiff left on this trip. (b) Lines 27 – 37 – This section is headed "president's expense account – a large sum of $90,000 on entertainment and another $5,200 for personal expense account?". This is the section the second defendant asserts gives rise to the comment. What this section says is that the plaintiff spent "an enormous amount as his personal expense account: $62,818.16 for entertainment, $33,135.70 for gifts and total amount $95,953.86." However, the plaintiff did not have a personal expense account at all. These were committee expenses and they included expenses for committee functions, dinners after committee meetings, meals for visitors from Korea and the like. Nor is it true that "in addition to spending so much money on entertainment" (by inference, on entertainment for himself and his guests) he "took more money for expense account again", the inference being that he has claimed for his own personal expenses. Finally, the statement that if the plaintiff "fails to offer evidence on how he spent this money" it should be paid back because it is misappropriated is untrue. The ordinary reasonable reader, reading this information, would assume the plaintiff had provided no information at all. That is not the case. (c) These are the two sections which relate to this imputation. I should explain why I have not taken into account paragraphs 38 – 44 concerning 100 gift watches from LG Electronic. The heading asks "whose wrists are they on now?"; the reader is told that the plaintiff claimed he gave them to the North Korean team as gifts, but the Australian representative manager of the North Korean Olympic Team, Mr Lee, declared that they did not receive them. The fourth and fifth defendants ask (rhetorically, in my view): "Whereabouts are the watches? It is said that they were taken to the president's residence. Please explain where they are." [922] The s 7A trial jury considered this publication did not convey an imputation that the plaintiff had those watches. However, in light of the s 7A jury finding, it would appear that this portion of the matter complained of cannot be regarded as giving rise to any imputation. In the event that I have erred in failing to have regard to this paragraph as giving rise to this imputation, I should note that the assertions about the wrist watches were in fact withdrawn later by the fourth and fifth defendants, as it was confirmed that the plaintiff's statements about giving them to the athletes was correct (see annexure J to the statement of claim). [923] Taking all of the above into account, I am satisfied that if the imputation is comment, it is not based on matters truly stated. Matters in defeasance [924] Since the defendants in their submissions have reduced these submissions to saying firstly "see [77] above" (page 348), I propose to do the same. I note in this regard that if it is to be asserted that the second defendant relies upon the defence of comment of a stranger, it has not been dealt with in the submissions, but in the event that there was an intention to rely upon this defence, I am not satisfied that it was published in good faith. Imputation 41(f): That the plaintiff misused his position as president to favour an associate as a supplier of gifts to the Committee. [925] This imputation arises from lines 45 – 59 of the matter complained of. Fact or comment? [926] It is asserted that the allegation that the plaintiff "misused his position as president" is not language found in the article and is an expression of opinion based on the fact that most of the Supporting Committee's expenditure on gifts was at Mr Choi's place of business. It is asserted this is a conclusion or deduction by the fourth or fifth defendants on the basis of a discovery made in the course of the audit. [927] I do not accept this argument. A statement that a person has misused their position is a statement of fact. The basis for the statement is that he had "favour an associate as a supplier of gifts to the Committee". Accordingly I am satisfied that this imputation is a statement of fact and not a comment. [928] Once again, in the event that I have erred, I shall consider the question of whether the imputation is based on facts as truly stated in the matter complained of. Is the imputation based on facts truly stated in the matter complained of? [929] The matter complained of states that $33,135.70 was spent on gifts and that "most of the gifts were purchased from Belmore Health Food Shop, according to shop receipts". The matter complained of goes on to state that the proprietor was Supporting Committee vice-president and asks: "Why did the Committee, as a Pan-Australian Korean's organisation, purchase gifts exclusively from the vice-president of the Supporting Committee?" [930] The reader of the publication would see the words "most" and "exclusively", coupled with the reference to receipts, and assume that most if not all of the $33,135.70 worth of gifts referred to was purchased at the Belmore Health Food Shop. [931] The second defendant submits that "most" of the gifts were purchased from Belmore Health Food Shop and that as it was "by far the biggest supplier of gifts to the Supporting Committee" is sufficient to establish the accuracy of the facts. [932] The second defendant in his submissions refers to the reports of Mr Finney in support. Mr Finney's report of 2 May 2007 does not refer to this imputation at all. The second report dated 29 May sets out at appendix 6 a total of $23,490 paid for gifts. One of these sums is $1,364, where the payee is Mr Byung Doo Choi. I do not know why this has not been put into the schedule for Belmore Health Foods in Appendix 10 of this report. [933] Appendix 10 lists only one receipt for Belmore Health Food Shop ($3,005), one for Belmore Gifts ($1,890) and seven for Green Sea Food. The total for all of these is $13,381.00. [934] If I assume that all of the receipts in Appendix 10 are for Belmore Health Food Shop and add in the $1,364 for Mr Choi which the second defendant did not refer to, it comes to $14,745, which is more than a third of the $33,135.70 figure. [935] I should note, however, that there were other gifts that were purchased that Mr Finney has not put on this list. For example, on 8 April 2009 the plaintiff, under the name of the chairman of the Supporting Committee and Sports Council, sent a congratulatory garland to the second defendant's newspaper TOP on the occasion of its 8th anniversary. This was one of a number of floral tributes obtained from Searles (eg Expenditure Resolution 2-311). Nearly all of these came from Searles, although $280 for three garlands was paid to Strathfield Plaza on 2 June. There were significant sums spent on flowers, for families where there had been illness or death, for celebrations such as TOP's anniversary and for guests at their functions. These floral tributes were an important part of the way the Committee went about its business of reconciliation (about which more is set out below), as was the holding of social functions and the provision of meals for volunteers, cheer squad members, visitors from Korea and committee members after meetings. [936] Belmore Health Foods and Green Seafoods were paid more money than other stores where gifts were purchased, but this does not mean that statements that "most" gifts were bought there, or that gifts were bought "exclusively" there. [937] The evidence given by the plaintiff was that gifts were bought from these shops for convenience, due to the location of the shop and the fact that Mr Choi would let them have goods on credit and, in addition, without a profit margin, that is at cost price (Daily Transcript 360, 14 June 2007, Day 11). [938] The matter complained of also refers to a resolution asserted to have been passed by the Committee in March 2000 concerning preferential practices. The text of that resolution is as follows: Among the resolutions, "We as Sydney-Koreans value our reputation. Apart from voluntary services, the Supporting Committee will not be used for personal advantages and no intervene [sic] of interests." (lines 53 – 55) [939] No such resolution appears in the Minutes for March 2000 or at any other meeting. It was a public statement made at the rally held on 18 March 2000 and published in the Korean newspapers (Exhibit 70). The text is as follows: " Resolutions We, as Korean expatriates in Sydney, participate in today's rally to strengthen the unity, with enthusiasm to faithfully achieve the great missions entrusted to as officials of the Supporting Committee. We are to not only provide services for Korean athletes taking part in the Olympics, but also cooperate with and support North Korean Olympic team subject to isolation, on the basis of the engagement policy towards North Korea, part of Korea's peaceful unification policy, to show the unity of our race across the world and open a new horizon of brilliant Koreans. Therefore we, with the will and wisdom of the Korean community, make resolutions as follows, so as to effectively manage Olympics supporting affairs: - We serve both South and North Korean athletes, with pride of a single race with a long history and a glorious culture - We, Korean residents in Sydney, not to become engaged in any personal advancement or interests, with the Committee as a medium, except services - We, with systematic cooperation and mutual concession among officials, devote our body and soul to creating immortal achievements in the history of the Korean community in Sydney. 18 March 2000 chairman Jae Sang Cha and officials." [940] The matter complained of presented this resolution as if it was passed to put a stop to the practice of obtaining "preferential practices". This is not the case. The resolution in its context of "mutual concession" and support of both sides at the cost of personal concerns appears to suggest that the Committee is saying personal interests (presumably bitterness about the war) should be put aside in the interests of the "engagement policy" towards North Korea. [941] When considering factual issues in relation to comment, it is permissible to take into account notorious facts. There are no notorious facts here, and courts should only have regard to notorious facts in exceptional circumstances. However, the reference to "the engagement policy towards North Korea: and the "peaceful unification policy" clearly had a meaning for Korean expatriates in March 2000. In fact, that meaning would have been clear to most persons in the world in mid-2000, because it was in mid-2000 that the meeting between the North and South Korean government leaders occurred which resulted in the South Korean government leader being awarded the Nobel Peace Prize. The circumstances in which the North and South Korean teams were to march into the Olympic Stadium together was not something the Supporting Committee did by itself; it must have been some part of this policy. The Committee's three resolutions are to manage the Olympic Supporting Committee's affairs with this policy in mind. In those circumstances, the assertion by the fourth and fifth defendants that this resolution was for the purpose of preventing preferential treatment of the kind Mr Choi received is incorrect. [942] Finally, I note that this preferential practice is attributed to the plaintiff's "self-righteousness and his lack of knowledge as a president of a public organisation". If that is a reference to other conduct of the plaintiff as described in this matter complained of, then the falsity of those matters (and this would arguably include the wristwatch allegations) would mean it is not so. However, the real problem is that the basis for saying the plaintiff is "self-righteous" is not explained. [943] The reference to the plaintiff's "lack of knowledge as president of a public organisation" is also misconceived. There is no reason put forward in this publication, nor is there any reason in law, why an organisation cannot purchase goods from one supplier. There is no suggestion the goods were sold at an inflated price or that any other wrongdoing occurred; there is simply the assertion that it was somehow wrong for the Committee to purchase a significant percentage of gifts from a shop owned by one of the vice-presidents. It was no more improper for the Committee to buy many of the gifts at Belmore Health Foods than it was for them to buy many of their floral arrangements at Searles, or to advertise almost exclusively in three of the four main Korean newspapers and, for that matter, to exclude the Korean-Oceanic Review from their advertising revenue and their functions. [944] Accordingly even if the imputation amounted to comment, it is not based on facts truly stated. Matters in defeasance [945] The misstatements of fact are to the second and fourth defendants' own personal knowledge. For example, the fourth defendant had a copy of the resolution; it was amongst the papers that he attaches to his statement. He would have been aware that the most he could say was that Belmore Health Foods and Green Seafood were paid more money than other stores where gifts were purchased, but this did not entitle him to say that gifts were bought "exclusively" there. This deliberate exaggeration is a matter in defeasance because of the fourth defendant's knowledge of the falsity. [946] In the event that a defence of comment of a stranger is pleaded, once again I am of the view that the second defendant has failed to establish good faith. The sixth matter complained of (Schedule H) – publication 16 March 2001 Imputation 42(d): That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money himself. Fact or comment? [947] The second defendant submits that the last part of the imputation, "the plaintiff kept $700 of that money for himself" must be an opinion because "nowhere is the statement actually made." This imputation arises largely from lines 30-35 but needs to be seen in context, in that the whole of the matter complained of is a series of claims that the plaintiff has kept money for himself. [948] As the defendants are well aware, imputations generally do not use the "statement actually made" but endeavour to encapsulate the sting rather than use the literal words used in the matter complained of. [949] A statement that someone kept $700 for himself is a statement of fact, in that it is an accusation of guilt, not an expression of opinion. Is the comment based on facts truly stated in the matter complained of? [950] The second defendant says that the proper material for comment was that the plaintiff had published a claim that the Uniting Church had been paid $1,100 for use of their facilities, but the Uniting Church had said that it only received $400 and that the deacons of inspection of the Church "are in trouble". Reference is made to the affidavit of Mr Lim which is Exhibit 65. [951] The matter complained of says that "the deacons of inspection of the church are in trouble". Mr Lim's affidavit does not say so. He says that he was concerned that "it could have been said" that the money had been put into his own pocket because this was not the amount the Church had received. He does not say, however, that anyone did say this, and he does not say that he, or the deacons, or anyone, is "in trouble" or that the money must be paid to the church as soon as possible for this reason, as the matter complained of asserts. [952] In addition, the matter complained of states: "Mr Cha says he paid $1,100 to the Uniting Church". This is not what Mr Cha's reports says, nor is it what occurred, as Mr Lim's affidavit makes clear. The payments to the church related to cheer squad practice. The person who contacted him was Dae Won Kang, Mr Lim thought; one of the payments was made by Mr Byung Doo Choi and the other by a person whom he does not remember. [953] I note that Mr Lim's affidavit states that "Never at any time was there any written agreement between the Supporting Committee and the Church in relation to hiring the hall" (paragraph 7). This is but one more example of the Korean preference for financial transactions, including lease arrangements, to be done without any paperwork and in cash. As indicated elsewhere, in such a cultural climate of cash and no documentation, the plaintiff would never have been able to operate the Committee in the manner advocated by Mr Finney and by the second defendant in his submissions. Matters in defeasance and comment of a stranger [954] I make the same findings. The second and fourth defendants' knowledge of the falsity is a matter in defeasance. In addition, the fourth defendant showed wilful blindness in not reading this article before publication. The seventh matter complained of (Schedule I)– publication 30 March 2001 Imputation 43(a): That the plaintiff misappropriated public money. [955] This imputation (which the second defendant erroneously refers to as "imputation 41(f)" on page 351) arises from the whole of the matter complained of in that the allegation that he is suspected to have done wrong in relation to the use of the Supporting Committee's funds. It is asserted that "in context" this is a comment because the article refers "only to a suspicion that wrong has been done". [956] Imputations are often found to be conveyed in circumstances where there is reference to a suspicion but in the surrounding factual material it is clear that there is much more than a suspicion and that guilt is imputed. For example, the reference as to scandal, the plaintiff's resignation and Mr Dae Won Kang's assertion that he hopes the plaintiff can clear his name are all indications that the suspicion is so well-founded as to be more than mere suspicion. [957] Accordingly, I find that this is a statement of fact and not an expression of an opinion. Is the opinion based on facts truly stated in the matter complained of? [958] I set out the second defendant's submissions in full: "The second defendant submits the relevant fact is the suspicion the plaintiff has done wrong in relation to the use of the Supporting Committee money. That fact is obvious and is proved by amongst other maters [sic] all of the foregoing matters complained of. Although the article may not list again the particular grounds for suspicion, every reader must have been aware of the controversy by this point. Thus the reference to a suspicion is a sufficient indication of the factual substratum. Otherwise the relevant facts as recorded in the article are accurate. The plaintiff did resign from the chairmanship of the Sports Council on or about 25 March following a meeting at which his supporters and opponents clashed" [959] The public monies referred to in this article are not the Supporting Committee's funds. This is a meeting of the Sports Council, not the Supporting Committee, and the conduct that the plaintiff stands accused of relates to his presentation of the accounts for the Sports Council in circumstances in which there is no auditors' report, and where he is being asked to resign. "The relevant fact is the suspicion" [960] Facts amounting to suspicion of wrongdoing would not entitle a publisher to accuse a person of a serious criminal act such as misappropriation: John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706. [961] The allegation of misappropriation arises from the headline, that there was a scandal, which is explained by Mr Kang's reference to the scandal concerning the Supporting Committee, but then he goes on to ask (after the Articles of Association have been amended to ensure that former chairmen can only stay on the Council if they complete their term) if Mr Cha will resign from the Sports Council. Mr Cha then resigns and comments are made to the effect that this was a "kangaroo court". The newspaper notes that Mr Cha and the chairman of the Golf Association "copped it" for saying this and it was demanded that they take back what they said. Mr Lee said this was a group "trying to kill one person" and was ordered to apologise. The final paragraph describes how the fourth defendant "stopped and pestered" the cross-defendant and the editor of Dae Yang Chu News, Mr Jae Sung Hwang "by reason of that they were expelled members of the Korean Society. Even after they were seated they were engaged in a wordy battle with officers from the Korean Society". (This is the meeting described by Mr Choi in which the fourth defendant assaulted Mr Hwang and knocked Mr Hwang's spectacles to the ground). All of this creates the impression that there has been gross wrongdoing. [962] Against this background, we are told that Mr Cha distributed financial data for the Sports Council without the financial report from the auditors. It was not discussed because the auditors' report was left out. "According to Mr Cha", to quote the article (and it is clear that this version of events is not believed by those present), the reason for this is that one of the auditors was in New Zealand and the other had a "chronic disease". This is hailed with scepticism by the meeting, who immediately appoint two "temporary auditors", in case this financial report is not prepared by the real auditors in the next two weeks. The ordinary reasonable reader reading this would think "aha, he's done it again." [963] As to the accuracy of the facts, I note that the first of these is none other than Mr Hak Soo Jo, chairman of the Volleyball Association and the seventh defendant in these proceedings, whose contribution to the accounting problems for the Supporting Committee have been set out in more detail above. He gave no evidence about any monies misappropriated by the plaintiff from the Sports Council. The second temporary auditor, Mr Kyu Bum Choi, gave evidence in these proceedings for the plaintiff. He said he was indeed appointed, but that he was never asked to do anything, from which I infer that the auditors did in fact provide their audit as expected. [964] The plaintiff was not cross-examined about any of this. There is no particularisation of any claim that he misappropriated public monies in relation to the Sports Council. "That fact is obvious" [965] The word "obvious" appears fifteen times in the second defendant's submissions, generally as a form of shorthand for not providing submissions on a point, and this is a typical example. [966] As is the case with the other publications, this publication is replete with errors. The reference in the heading "Moral obligation regarding Supporting Committee scandal" and the statement attributed to the plaintiff "I will bear the moral responsibility and resign" and "I resign but I will clarify the financial affairs with the Supporting Committee without fail" are taken out of context. Reliance on "all" the other matters [967] The reference to "all" the other matters does not identify what these are. However, as will be clear from my previous findings, the facts for each of these other publications is so untrue that no defence of comment could be sustained by any reliance upon them. [968] Accordingly, in the event that this statement is comment, it is not based on facts truly stated. Matters in defeasance [969] I see from the amended submissions that there is a reference to s 32 Defamation Act in that the opinion in context is that of the newspaper. I also note the reliance on paragraphs 29 to 33 of the submissions. [970] The second defendant was actually present at this meeting. Mr Choi described the second defendant shouting at the plaintiff. He was not cross-examined upon this. The second defendant's personal malice is a significant factor and a matter which goes to the defeasance of this imputation. [971] In relation to the fourth defendant (and I note that I have no submissions concerning these matters from the fourth defendant) I make the same finding concerning malice. Conclusions concerning the defence of comment [972] While a defendant bringing a justification defence can rely upon factual material outside the matter complained of, the same is not the case for a defendant relying upon a defence of comment. The comment must be supported by facts truly stated in the matter complained of. [973] The plaintiff in written submissions asserts (paragraph 22.3) that the material relied upon as proper material is the material on which the second and fourth defendants rely to establish the truth of the imputations. [974] In fact this is not the case. Most of the material relied upon to support the truth of the imputations is material which is not contained in the matters complained of. The matters contained many errors of fact which are not relied upon by the second and fourth defendants. [975] I also disagree with the submission (paragraph 22.3) of the plaintiff that if a defence of truth fails, a defence of comment will also fail. The defence of comment fails in these circumstances principally because all of the imputations except imputation 40(a) are statements of fact and not comment. Quite independently of the truth or falsity of these imputations for the purpose of the defence of justification, there are so many false statement of fact in each of the publication that this defence could never succeed. In addition, many of these statement were false to the knowledge of the second and fourth defendant by reason of their on going association with the Supporting Committee, their personal knowledge, and their role in the enquiry process. THE DEFENCE OF TRIVIALITY AND UNLIKELIHOOD OF HARM [976] I note that the defence of triviality or unlikelihood of harm has been withdrawn. It would never have been applicable considering the seriousness of the imputations found by the jury and the extent of circulation of the publications. QUALIFIED PRIVILEGE [977] I briefly note that the second defendant's submissions on this issue consist solely of the contention that if the publication of the matters complained of on 1 March, 9 March and 16 March are protected by a defence of qualified privilege at common law or pursuant to s 22 Defamation Act, then the second defendant ought also to have the benefit of such a defence, referring to Gatley on Libel and Slander at [8.29]. [978] No submissions are made as to any facts or circumstances giving rise to the entitlement of such a defence, although the second defendant, as the publisher of a newspaper and as the honorary President of the Supporting Committee is not in the same factual circumstances as either the fourth or fifth defendants. [979] The entitlement of one publisher to a defence of qualified privilege at common law (or pursuant to s 22) does not automatically entitle all other publishers to have the benefit of such a defence. Accordingly, this submission must fail in limine. In the event that I have erred in this finding, I have dealt with the entitlement of the fourth defendant to rely upon both the common law and statutory defences in more detail below. Qualified privilege at common law [980] The plaintiff submits that the defence of qualified privilege at common law is rarely if ever available to mass media publications such as newspapers (submissions, 21.1.1). This is something of an overstatement. The defence has succeeded for some defendants in rare circumstances: Seary v Molomby (1999) Aust Torts Reports 81-536; [1999] NSWSC 981; Habib v Nationwide News Pty Ltd (2008) Aust Torts Reports ¶81-938; [2008] NSWSC 181. In addition, in Goyan v Motyka (2008) Aust Torts Reports ¶81-939; [2008] NSWCA 28. Handley JA expressly reserved the position where the mass media publication is a foreign language newspaper. None of the parties referred to this as an issue, and as there are other reasons why this defence cannot succeed, in my view it is inappropriate to do more than note the point. The requirements for the defence [981] The fourth defendant's submissions draw my attention to Bennette v Cohen [2009] NSWCA 60 at [206] where Ipp JA has set out guidelines. Determining whether those elements have been satisfied, or whether the warning in Ipp JA's final item (namely that "the interest should not give officious and interfering persons a wide licence to defame") is a question of fact in each case. [982] The fourth defendant has set out a list of circumstances relied upon to establish that the occasion is privileged (fourth defendant's submissions, page 5). These are as follows: (a) Items (a) – (c):The nature and purpose of the Committee and the duties and functions of the auditors: The auditors' function was an internal one, to report to the Supporting Committee. There is no provision for their payment, they were untrained and their administrative audit (which I find was carried out in August 2000) was to examine issues such as Korean community support and social harmony, according to the Activities Diary entries for August 2000 (see Exhibit 51 p. 23). The chief argument of the fourth defendant is that no meeting could have occurred at 10 pm, or before the Olympics. To submit that this means the audit (and the lunch they went out to in the middle) could not have occurred is hopeless. It is clear that the reference to 10 pm is a clerical error, because the entry above it records that the staff were in the office from 11 am to 5pm and goes on to note that the fourth and fifth defendants, the bookkeeper Migi Lee, the office manager Mrs Ok Ja Park, the seventh defendant, the plaintiff and others went to "lunch". As to the claim that this audit would not have commenced prior to the Olympics, this is understandable if the auditors were looking into issues such as Supports for the Korean Team, cooperation with SOCOG and "matters of harmony and unity of the Korean society". (b) Items (d) – (h): I do not accept the chronology of the defendants, which omits any dates which favour the plaintiff, such as the four meetings set out in his newspaper advertisement of 23 February 2001 (Exhibit 73) and the letters he sent, and gives times and dates inconsistent with the contemporaneous correspondence that I have set out above. Where there is any inconsistency between the contemporaneous documentation and the parties, I shall prefer the contemporaneous documentation, and where there is inconsistency between the plaintiff and the fourth defendant, I prefer the evidence of the plaintiff. This is because: (i) the fourth defendant's explanation about five major audit preparation issues (when the audit started, the giving of the interim report to Hojudonga, changes of evidence about what documents he had (notably Mr Sung Joo Sung's Green book and Miss Yoo's book), whether he consulted an accountant and if so whom, and whose seal and signature was affixed) is not accepted by me; (ii) my findings that the fourth defendant's evidence on these issues was also often inconsistent with contemporaneous documentation; (iii) the fourth defendant's failure to produce to the court the interim reports and documents he has referred to in the audit, notably the early minutes of meeting of the Supporting Committee, even though he has had the Committee's financial and other records in his possession since the audit in 2001; (iv) my findings concerning the fourth defendant's credit generally, and (v) the circumstances in which many of these matters were not particularised until after the plaintiff was well into cross-examination, which meant that he may not have had an opportunity to know and respond to the case he had to meet. [983] The fifth defendant's evidence is of no assistance as he has only the most general recollection of these events. I have not received submissions as to the impact of judgment in favour of the plaintiff, so I shall leave issue or action estoppel questions out of my reasons. However, if submissions had been made I would have held that judgment against the fifth defendant is conclusive on all liability issues relating to the fifth defendant. [984] Ultimately, the contemporaneous documents speak for themselves much more clearly than the evidence of what these witnesses remember more than six years (in the case of the plaintiff) or eight years (in the case of the fourth and fifth defendants) ago. [985] I note the fourth defendant now admits, contrary to his statement, that he was given Miss Yoo's Green Book which is Exhibit 8 (paragraph 42 of the Submissions). In his statement, the fourth defendant denied seeing either Mr Sung Joo Sung's Green Book or Exhibit 8, which was the list of expenses prepared by Miss Yoo. [986] I repeat the chronology of events that I have set out at the commencement of this judgment concerning the commencement of the audit in August and its continuation after the plaintiff published the Supporting Committee's financial report on 24 November 2000. (a) Item (i): I note that it has never been claimed that the fourth and fifth defendants offered to show, or did show, their final report to the plaintiff, or even told him that it was ready. I have found that the plaintiff was never shown the interim reports. In those circumstances, his reluctance to call a meeting is understandable. I reject the submission that the plaintiff's answers on this topic were deceitful (submissions page 28). (b) I do not accept that in refusing to call a general meeting the plaintiff deprived the fourth and fifth defendants of their only opportunity to present their report to the Supporting Committee. The fourth and fifth defendant's reports were grossly inaccurate. The amounts they asserted had been donated and wrongly spent varied widely in each version of the report. They had refused to show the plaintiff these interim reports so that he could meet them. The fourth and fifth defendants would not give the plaintiff Mr Sung Joo Sung's Green Book. (c) The fourth defendant makes the following submission at paragraph 79 of the written submissions: "The plaintiff's proposal that the audit be handed over to a Chartered Accountant was completely unsatisfactory and, in any case, beside the point because it ignored [sic] that the Fourth and Fifth Defendants had been elected as independent auditors who had a duty to report to the General Meeting under the Constitution (T 2685). Had the Plaintiff allowed the Fourth and Fifth Defendants to report to the General Meeting, he could have disputed the auditors' findings and present [sic] his own case (as the Fourth and Fifth Defendant [sic] told the Plaintiff – Exhibit 70, supplementary statement, para 31." (d) The plaintiff had already had four meetings with the fourth and fifth defendants. These meetings had achieved nothing. The fourth and fifth defendants were unskilled, untrained and intransigent. The only way out of this impasse was to have an audit prepared by a trained auditor. (e) I repeat my finding that the plaintiff was justified in refusing to call a meeting until such time as a report prepared by a certified practising accountant was prepared. The Supporting Committee had no interest in receiving false and irrelevant information, particularly material which might include (and in fact included) personal attacks on a number of office bearers other than the plaintiff. (f) I do not accept that "one can only infer" that the plaintiff did so because he knew the reports would reflect badly on his stewardship (written submissions paragraph 78, page 29). There had already been a series of articles attacking the plaintiff in the newspapers which had been read not only by the Committee but by everyone. What the plaintiff wanted to obtain was an accurate audit report. That was in everyone's interest, including the fourth and fifth defendants, whose position as voluntary internal auditors did not prevent the appointing of an external auditor. (g) Item (j): The fourth defendant's submissions attempt to "marry up" the schedules prepared by the fourth and fifth defendants with the contents of Mr Finney's report by use of the phrase "it is apparent" (this word "apparent" also appears on pages 53, 54 and 58, to bridge a gap in the evidence). This analysis was not done in the witness box, and it amounts to giving evidence in the submissions. These were matters that should have been contained in his affidavits. The content of the matters complained of [987] I have set out a summary of the content of the matters complained of giving rise to each of the imputations in the section of the judgment on the defence of comment. Having regard to the nature of the defence of qualified privilege as explained by the NSW Court of Appeal in Aktas v Westpac Banking Corporation [2009] NSWCA 9, I shall have regard to the whole of each publication. Was each of the matters published on an occasion protected by the privilege? [988] I shall deal first with the submission (at paragraph 120 of the fourth defendant's submissions) that all three matters were published pursuant to a kind of "right of reply". [989] The plaintiff had published the Supporting Committee's financial reports in the same newspapers as the fourth and fifth defendants published the audit. This report was not an attack in the generally accepted mode; it does not mention the second defendant at all and mentions the fifth defendant as the auditor to contact with any queries. Subsequently, the second defendant each published two articles critical of the financial statements published and making the allegations that the jury have found to be conveyed. A third publication on 23 February 2001 came out on the same day as the plaintiff's advertisement providing the revised list of donations, calling for an independent audit (although not naming the auditors, identification would not be a problem) and saying that anyone could see the revised financial figures of the auditors were "fakes at a glance." Is this an attack on the fourth and fifth defendants which gives them a right of reply? [990] Gleeson CJ explained the limitations on the principles of right of reply in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5 at [84]-[85] and more recently it was considered in Greig v WIN TV [2009] NSWSC 632. However, cases on whether a publication is a reply to an attack tend to turn on their own facts. [991] The first difficulty I have with the fourth defendant's submission is that the plaintiff was himself responding to two previous articles in TOP and two in Hojudonga. If his reply meant that subsequent publications were protected, then every publication after the original publication would be published on a protected occasion. That cannot be the case. If anyone is replying, it is probably the plaintiff. In addition, the third matter complained of, which appeared in the same newspaper, appears from its content to be replying to the plaintiff's advertisement, as I have noted in my discussion in the section on comment above. Just how many replies are defendants entitled to have? [992] Secondly, where there is a publication asserted to be a reply to an attack, this should be evident from the text of the publication. There is not a single reference to the 23 February 2001 publication of the plaintiff (Exhibit 73) to which the fourth and fifth defendants are allegedly replying. Their publications are responses to the 24 November 2000 publication, which did not attack them. [993] I am satisfied that these publications are not made as a "right of reply" to the publication of 23 February 2001 (Exhibit 73) or to the publication of the Supporting Committee financial statement on 24 November 2000 (Exhibit A). [994] The fourth defendant has also provided submissions concerning whether the occasion is protected. Was there a sufficient connection between the imputations and the protected occasion? [995] In Aktas v Westpac Banking Corporation [2009] NSWCA 9, McClellan CJ at CL explained the principles clearly: "[72] Before the occasion on which a defamatory imputation is published will be protected by qualified privilege there must be a sufficient connection between the imputation and the privileged occasion. Accordingly, as Gummow J pointed out in Bashford (at [135]) it is first necessary to identify the particular imputation before determining whether it was published on a privileged occasion. Only then can the issue of relevance be resolved. [73] Although the decided cases reflect decisions made after consideration of these two issues, the appropriate sequence in the reasoning process has not always been followed. In most cases this does not matter, although this is not true of all cases. Problems may arise when a publication makes a number of statements which give rise to a variety of imputations, some of which may be defamatory and others not. To speak of the publication being an occasion of qualified privilege without further refinement may be misleading. It is only matters in respect of which the publication is occasioned by the necessary reciprocity of interest and duty which the law describes as being published on an occasion of qualified privilege." [996] McClellan CJ at CL went on to explain at: "[75] The issue can be readily understood by a variant of the present case. If a bank returned a cheque to the payee having correctly determined that there were insufficient funds with two endorsements, one being "Refer to Drawer" and the other, the "drawer is a thief", the imputations arising from the publication of the first statement, made necessary by the bank's decision to refuse payment, will be an occasion of qualified privilege. The publication of the second will not, there being no interest or duty on the part of the bank to publish that the drawer is a thief, with whatever defamatory imputation may be found to arise from the publication of that statement. An occasion on which matter which gives rise to defamatory imputations is published may not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement: Roberts v Bass (at [62])." [997] This case is that "variant". The fourth and fifth defendants could have used the occasion to say "refer to drawer" and set out their audit information. However, they published imputations not dissimilar from the example given by McClellan CJ, namely "the plaintiff is a thief". [998] Each of the matters complained of suffers from the same fatal flaws as those identified by the Court of Appeal in Skalkos v Assaf [2002] NSWCA 14. The matter complained of was an open letter to the Prime Minister of Australia about a matter of considerable interest to anyone reading a foreign language newspaper in Australia, namely the translating of government information for migrants who needed to read this in their own language, whether this was being done adequately and whether "middlemen" fees were inflating the price. The matter complained of was found by the jury not to have been published maliciously, and the issue before the Court of Appeal was whether, by reason of the inclusion of a "splenetic" attack (to use the trial judge's words) the occasion of qualified privilege had been lost. [999] The Court of Appeal unanimously held that it had been lost. Mason P explained: "[28] It is well established that an occasion of privilege can be abused by the publication of additional matter that is "extraneous" ( Adam at 318 per Lord Finlay LC) or "beyond what was germane and reasonably appropriate to the occasion" ( ibid at 321 per Earl Loreburn). The defendants' bona fide belief as to relevance will not be sufficient ( ibid at 334 per Lord Atkinson). In Bellino , Dawson, McHugh and Gummow JJ said 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 the relevant part. See also per Brennan CJ at 201-204." [1000] Mason P went on to add: "[42] The grossness of the falsity of the publication is pertinent to this issue of relevance. The defendants' particulars asserted that "members of the public had an interest in knowing the facts and matters stated" in the letter. This alone makes the factual accuracy of the matters stated relevant to the issue of abuse of the occasion of privilege. And clearly established dishonesty is in turn capable of casting light on this inquiry. To describe an allegation as a "splenetic and false attack" (at [194]) is really just a colourful way of emphasising the extraneity of the particular defamatory imputations to the professed context of the letter. The jury's rejection of malice did not pre-empt the judge from concluding, in the particular case, that the privileged occasion was abused (see Guise v Kouveli s (1947) 74 CLR 102 at 117, Bellino at 200-1). [43] Carruthers AJ did not fall into the error of seeing every excessive statement as an abuse of the occasion of privilege (cf Adam at 328) nor did he regard the "splenetic" vigour of the imputations as sufficient in itself to forfeit the privilege. The statements at the commencement of par [194] were introductory yet pertinent to the conclusions stated in traditional terms at the conclusion of that paragraph of the judgment. Likewise par [202]. His Honour also recognised expressly that the untruthfulness of the imputations was not determinative (see at [184]) and that error in itself did not destroy the occasion of privilege (see at [202])." [1001] An interesting analogy to the present case was that one of the few issues on which the plaintiffs were successful was in challenging the findings of the trial judge that Mr Skalkos had special knowledge, which made his splenetic comments all the more unreasonable (at [44]). That was because there was no evidence of this special knowledge; Mr Skalkos had not given evidence. [1002] However, that is not the case here. The fourth defendant has told me he is an expert (Daily Transcript 1292, 17 October 2007, Day 29). The second defendant's role as honorary president and mediator of the crisis would mean that he would probably qualify as an "expert" in the affairs of the Committee and the subsequent disputes. Consequently, this additional factor is also made out. [1003] Each of the matters complained of contains personal statements about the plaintiff's conduct couched in inflammatory language. The plaintiffs particularly draw my attention to the headings in the second and third publications, which contain much of the sting. [1004] I shall briefly comment about the language and content of each publication. [1005] As to the matter complained of dated 1 March 2001, to say the single word for this very successful organisation was "shameful", when this is applied not only to the accounts but to the plaintiff's conduct throughout, is splenetic and unwarranted. Much of this publication (notably lines 22 to 62 and 158 – 191) is not an audit report, but a personal attack on the plaintiff. [1006] The second matter complained of dated 9 March 2001 is a personal attack on the plaintiff from beginning to end. [1007] The third matter complained of dated 16 March 2001 is similarly a personal attack from line 6 onwards. [1008] None of these documents bears any resemblance to an audit report. [1009] Accordingly it is my finding that none of these publications is published on an occasion protected by qualified privilege at common law. [1010] In the event that I have erred in this finding, I shall make findings as to malice. However, I shall first make findings concerning the section 22 defence that is pleaded by the second and fourth defendants. Qualified Privilege pursuant to section 22 Defamation Act 1974 The second defendant [1011] The second defendant said in his evidence he did not read any of the publications beforehand. He said that he went to the newspaper office less than once a year (Daily Transcript 2086, 12 June 2008, Day 51). This is not a newspaper with a system for reviewing articles prior to publication. [1012] The second defendant published a series of attacks on the plaintiff starting with the first matter complained of on 26 January. By the time the three audit reports were published, the second defendant had already published three previous attacks, and he did so knowing that the plaintiff had written to him challenging these allegations and, what was more, taking out an advertisement in TOP to put his side of the case to TOP readers. [1013] In the present case, unlike Skalkos v Assaf, the second defendant gave evidence (although, somewhat unusually, called by the plaintiff). In Assaf an employee gave evidence of Mr Skalkos's belief. This was not accepted by the trial judge as probative. [1014] Even if I were to accept the evidence of the second defendant that he believed in the truth (which I do not) the defence would fail for the other reasons explained by the Court of Appeal in Skalkos v Assaf at [53]. [1015] In addition, a newspaper owner who does not read his own newspaper even when it is writing about matters in which he is involved is wilfully blind: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57. [1016] Accordingly I find that the statutory defence of qualified privilege is not made out. Section 22 and the fourth defendant [1017] The fourth defendant pleads a defence of statutory qualified privilege (written submissions [131] and following) and refers to the necessary elements as set out in Morgan v John Fairfax Pty Ltd (1990) 23 NSWLR 374 at 387 – 8.. [1018] The fourth defendant's outline of the factual background at paragraph 137, which is relied upon to establish reasonableness, is inconsistent with the contemporaneous documentation, as the chronology of events I have set out at the commencement of this judgment shows. One of the reasons it was necessary to set out that chronology was that the little information given about these events in the fourth defendant's submissions is inconsistent with those events. [1019] For example, it is incorrect to say that the auditors set up a "transparent" audit process. They provided details of their first interim report to Hojudonga, as their own letter of 5 February 2001 demonstrates, but they refused to provide the plaintiff with this or other interim reports. The fourth defendant's attempts to blame the journalist as Hojudonga for stealing the documents in the 22 December publication and the journalist at TOP for eavesdropping as the source for the subsequent TOP publication are disingenuous. When they received information they did not like, they ignored it, such as the letter from the Korean Veterans Association saying it had received the Supporting Committee's June 1999 donation, and they published to the contrary in the first matter complained of. [1020] The second and third matters complained of are particularly weak claims in relation to this defence, as there is no evidence any of these matters was raised with the plaintiff prior to publication. [1021] As to the reasonable inquiries, Mrs Kim denied that the fourth defendant contacted her. She was sure the first she heard was when either the plaintiff or Mr Dae Won Kang (she was not sure which) contacted her, which was after this litigation started. Mr Kim of SK Securities wrote a stern letter telling them to stop making accusations. The Uniting Church did not provide a letter of information until after these proceedings started. The fourth defendant does not refer in this list to the one inquiry he did receive an answer to, namely the Korean Veterans Association, which confirmed receipt of the Supporting Committee's donation and his response was to publish an allegation to the contrary. [1022] There was no "delay", significant or otherwise, in the plaintiff's provision of cheque butts and other records. The chain of correspondence makes this clear. In addition, the defendants had enough information to come to interim figures in December, January and February. They knew the plaintiff's problem was that Mr Sung withheld the Green Book and he did not have a full list of donations or outgoings for this period as a result. [1023] The plaintiff provided information about his CFM records; he withheld the originals on the proviso that he would give them to a certified practising accountant. Given the contents of the allegations published in Hojudonga, this was reasonable. [1024] At paragraph 92 the fourth defendant's submissions assert that the fourth defendant paid for the audit out of his own pocket and that his evidence on this issue was not challenged. This is not correct. The fourth defendant was cross-examined about how he funded the audit and gave evidence that members of the Korean community whose names he could not remember gave him cash, saying "this is for encouragement": Daily Transcript 2678, 31 March 2009, Day 60. I have set out the relevant excerpt from the transcript at paragraph [478] above. The fourth defendant never produced any documentation such as receipts for the "advertisements" he said he placed in the Korean newspapers. Those documents, if produced, may have identified the name of the person paying these sums (if indeed any request for payment for "advertisements" was made by the first to third defendants; on the balance of probabilities I find that no request for payment was made). If there were audit expenses, these should be itemised, and could come out of the balance left over after the Committee's activities were wound up. Was there a balance left over, and what happened to it? [1025] The fourth and fifth defendants not only withheld the interim reports from the plaintiff and Committee, and failed to arrive at a final figure for the credit (or debit) remaining, but they appear to have taken over ownership of the Committee's funds, fittings and assets. According to the 1 March 2001 publication, they considered these should be passed on to the Korean Society (except for the computer, which they proposed to give to the Sports Council). I cannot see anything in the Constitution warranting such a step. Conclusions concerning section 22 – 1 March 2000 publication [1026] I reject the fourth (and fifth) defendants' submission that their conduct was reasonable, having regard to the facts as I have found them in my review of the circumstances leading up to the audit. I note the plaintiff has judgment against the fifth defendant. There is no delineation as to which part of the report he wrote. 9 March 2000 publication [1027] .I reject the fourth (and fifth) defendants' section 22 defence concerning this publication, noting in addition to other matters that there is no evidence any of these matters was put to the plaintiff prior to publication. 16 March 2000 publication [1028] I reject the fourth (and fifth) defendants' section 22 defence concerning this publication, noting in addition to other matters that there is no evidence any of these matters was put to the plaintiff prior to publication. Malice and credit [1029] Evidence of malice must not be conflated with evidence relevant to credit. A person may be malicious and yet be a witness of credit, and vice versa. [1030] There is an area of overlap in these proceedings, namely knowledge of falsity. If a person publishes statements knowing of their falsity, that may be an issue relevant to the credit of the witness as well as to malice. However, such evidence needs to be treated cautiously so as not to elide the two concepts. [1031] The plaintiff submits (written submissions [25.3.1]) that findings of malice should be made against the fourth defendant, or fourth and fifth defendants, for the following reasons: (a) They were not actuated by a desire to inform members of the Korean community but by malice, ill will, prejudice and hatred towards the plaintiff; (b) Their reports were slanted to denigrate the plaintiff, and (c) The so-called "audit" process was an exercise in publishing denigrating, defamatory and false allegations concerning the plaintiff. [1032] In addition, the plaintiff submits (at [25.3.9]) that the contents of each of the "audit" reports: (a) show the fourth, or fourth and fifth, defendants had an irrational prejudice and bore malice towards the plaintiff; (b) contain serious, denigrating, defamatory remarks for which they had no reasonable or sufficient grounds, and (c) were actuated by malice, which was the dominant reason for the publication. [1033] At [25.3.10] – [25.3.18] the plaintiff asserts: (a) the audit was a sham used as a platform to attack the plaintiff; (b) the provocative language especially of the headings (e.g. "Inappropriate actions during the tenure of Mr Cha that had to be repaid"; (c) the use of language that the expert witness agreed showed hostility to the plaintiff; (d) tithe lack of professional qualifications of the fourth and fifth defendants; (e) the assertion by the fifth defendant that he did not need professional help despite his lack of knowledge or training; (f) the refusal to take up the offer of Mr Bonney Lee, an accountant who volunteered, because the fourth defendant "wouldn't be able to trust him as an auditor" because of his friendship with the plaintiff (g) the evidence of Mr Bonney Lee that the audit was not performed properly and the whole report was "unreasonable"; (h) the decision of the fourth and fifth defendants to ignore evidence that if money was missing it was likely to be the conduct of persons other than the plaintiff. [1034] The fourth defendant's submissions do not deal with the evidence of malice but instead repeatedly assert that "there is no evidence" of malice (fourth defendant's written submissions paragraphs 142, 146(heading), 147, 151 (twice)), "no cogent evidence" (150), "nothing" (159 - 60) and that the plaintiff has not discharged the burden of proof. I have not received any submissions on malice from the second defendants, but I note, in relation to prior hostility and ill will, the assertions of assistance provided to the Supporting Committee by the second defendant. Malice of the second defendant: The 1 March publication [1035] The second defendant is not only the publisher of the matter complained of, he is also the person who can solve this impasse, according to the final paragraph: "The auditors asked Mr Cha to meet up with the auditors to cross-check the result of the list. But Mr Cha did not respond to the auditors' request, that's why the auditors visited the president of the Sydney Korean Society, who concurrently holds the title of an honorary president of the Committee, for a mediation." (lines 187 – 191). [1036] This is a recurrent theme throughout the publication; that a person with good nature and good capability (lines 22 – 23) needed to be elected; they had to elect the plaintiff because he was also the current Sports Council president (lines 27 – 8), that he did nothing for a year (lines 30 – 31), then performed his job self-righteously and without appropriate knowledge (lines 34 – 5); and in conclusion: "[t]he auditors can only declare the opinion that the tragedy of the Supporting Committee originated from appointing such a person as a head of the organisation." (lines 60 – 62); and this is why they visit the unnamed president of the Sydney Korean Society, who concurrently holds the title of "an" honorary president of the Committee. [1037] Who can this unnamed person be? It is the second defendant, who was the unsuccessful candidate for election when the plaintiff was elected. It is all because Mr Cha was elected, and not the second defendant, that this "tragedy" happened. However, what is striking about this publication is that the election is not referred to at all. The reader is told that the plaintiff was appointed to the position of chairman because of unfortunate prior experiences at the Atlanta Games. [1038] The second defendant had actual knowledge of the falsity of many of the statements of fact in this publication. In addition, he was wilfully blind, because he told the court he did not read this (or any other) articles before they were published. Given that they were about a committee of which he was Honorary President and referred to him, this amounts to wilful blindness. [1039] The second defendant has provided written submissions concerning malice in relation to all three publications. I have considered these in more detail in relation to the second publication. However, my findings in relation to that publication apply to all three publications. Malice of the fourth defendant [1040] The fourth defendant had actual knowledge of the falsity of a number of statements in the matters complained of. I have set these out in the section of this judgment dealing with proper material for comment. [1041] I will select one or two to illustrate my point: (a) First of all, the fourth defendant knew that Mr Sung Joo Sung and Mr Joo Yong Jo, at least, had been responsible for the financial accounts, because he had said so, and complained that the bookkeepers who kept the records for them were "untrained". (b) Secondly, he knew that the Korean Veterans Association did not claim never to have received the donation the plaintiff's accounts had listed as being sent to them. They said they had received it. They complained that nobody was there the following year. That is inconsistent with the assertion that these gifts were outside the purpose of the Supporting Committee and, by inference, known to be so. (c) Thirdly, he knew the statements he attributed to the plaintiff (which paint him in the poorest light) were untrue. (d) Fourthly, he made untrue statements about record-keeping, such as saying there were no minutes after the early period and that the office seal was not used. [1042] In addition, the use of the headings and intemperate language are in excess of what was appropriate for the publication. There are repeated allegations that the plaintiff is self-righteous. Defeasance of Malice [1043] The fourth defendant submits that his belief in the truth of the imputations is sufficient defeasance. [1044] The knowledge of falsity of many, indeed most of the statements of fact in the matter complained of are such that I find that the fourth defendant knew that his statements were false and therefore did not believe in the truth of any of the imputations. [1045] The parties have not addressed me on the issue of malice for individual publications, but I shall briefly note my findings. It is entirely possible, where there is a series of publications, that a defendant is malicious in relation to one but not others. [1046] I should also note that the judgment against the fifth defendant is a difficulty which I have referred to below in the section of malice and joint tortfeasors, and that my findings concerning malice on this publication relate to the publication of the same matter complained of in Hojudonga and the Korean Weekly. Malice in relation to the imputations in the matter complained of dated 9 March 2001 [1047] In the event that I have erred in holding that this publication was not made on an occasion of qualified privilege, I shall note the findings I make in relation to malice concerning this publication. [1048] The rationale for the "additional" audit report is that after the original report, new information is obtained by "tipoffs and review" (line 8). The defendants always had the information about the plaintiff's trip and Belmore Health Foods. The only new information is the claim about the wristwatches, which turns out to be false. [1049] Like the first article, this article calls on the plaintiff to pay money. This article calls on the plaintiff to pay sums of $9,121.40, $5,200 (three times) and $90,000 and to return 100 watches. The statements about the trip not being a business trip were false to the knowledge of the defendants because there was a signed Expenditure Resolution and references in the Minutes, and the claims about the Belmore Health Food Shop as the place "exclusively" used an exaggeration. [1050] No evidence was given at the trial about the 100 wrist watches. This was an unfortunate mistake because it dragged the North Korean Olympic Team manager into the dispute. [1051] In addition, the language is splenetic, especially in the use of dramatic headlines. This is not language appropriate for an audit report. [1052] I am satisfied that the fourth and fifth defendants were actuated by malice in that they knew of the falsity of these imputations. [1053] I have dealt with the malice of the second defendant in a separate section below. Publication dated 16 March 2001 [1054] "The Third Additional Report" provides "continued information". It is mostly inaccurate since these matters were not raised in submissions, although some of them were put to the plaintiff when the fourth defendant cross-examined him. [1055] The letter of thanks (which includes a receipt) from the Christian Review is attached to the Expenditure Resolution in Exhibit 56. It is a glowing letter of praise to the Committee and must have been seen by the fourth and fifth defendant. It was not true the Uniting Church "inspection deacons" were in trouble. No evidence was led about the wristwatches at the trial so I have no information about the fourth and fifth defendants' knowledge of the falsity. [1056] The third report is again written in splenetic language. It is the language of accusation, not investigation. [1057] I am satisfied the fourth and fifth defendants knew of the falsity of the imputation and were motivated by malice. Malice of the second defendant [1058] In relation to all three publications, the second defendant's written submissions consisted of one and a half pages (chapter 23) asserting that the plaintiff had "failed to establish a case of malice", listing assertions about malice which were "proved to be false" and asserting that it was not possible for the second defendant to produce further submissions on this topic as there "without any indication at this stage from the plaintiff as [sic] the basis of his allegation of malice". [1059] The plaintiff filed a Reply in these proceedings and also answered particulars (Daily Transcript 34-35, 4 June 2007, Day 4). [1060] The assertions the plaintiff made which were "proved to be false" were: (a) the second defendant did not donate money; (b) the second defendant's only contribution to the Supporting Committee was that the plaintiff bought some meals at the second defendant's restaurants for which the plaintiff paid. It is asserted that the second defendant hosted meals for which the second defendant paid and that this is recorded in Exhibit 52; (c) the second defendant did not participate in any activities, which is false in that the second defendant met the Korean Olympic Team, purchased meals for these persons at the airport and acted as Honorary chairman when the Paralympics team arrived; (d) the second defendant left the meeting looking angry after he was not elected, which the second defendant denied; and (e) the second defendant was in fact pleased that the plaintiff was elected chairman. [1061] The second defendant does not provide a single transcript reference for any of these assertions. The second defendant misstated the evidence and failed to deal with the matters of law raised by the plaintiff's submissions (such as knowledge of falsity, malice inferred from the language of the publication and joint tortfeasor issues). [1062] The matters set out in the Reply are as follows: (a) The second defendant was informed by the plaintiff both orally and in writing before the publication of the third of the matters (the 1 March publication) that he vigorously disputed the accuracy of the audit and the statements of the auditors, that they were not qualified and that an audit should be carried out. Notwithstanding this, the second defendant proceeded to publish the matters dated 1, 9, 16 and 30 March 2001. (b) The second defendant was personally acquainted with the fourth and fifth defendants and knew they had no qualifications as auditors. (c) The second defendant went ahead and published these matters as part of a campaign of denigration. (d) The second defendant was motivated by malice because he lost the elections; and (e) Malice may be inferred from the language used in the matters complained of. Knowledge of falsity [1063] Most media publications are made by journalists who obtain information by investigation. That is not the case here. The second defendant knew a great deal about this committee because: (a) He was the honorary president, and his address appeared on the executive lists that were used by the office staff to send out information; (b) Between May 1998 and August 1999 the Supporting Committee operated out of the offices of the Korean Society, of which the second defendant was president; (c) On at least two occasions the fourth defendant sought documents from the Supporting Committee for the purposes of the Korean Society, of which the second defendant was president; (d) He participated in a number of activities throughout the Committee's life, including meeting the teams at the airport, of his own volition, although Consul Moon expressed the opinion that only the plaintiff and Consul Moon should do so (Exhibit 51); (e) The plaintiff told him orally and wrote to him about the errors in the fourth and fifth defendant's report yet he went ahead and published four more matters while knowing the plaintiff said their contents were wrong and that the plaintiff wanted the accounts audited by a qualified auditor, and (f) The second defendant received a great deal of revenue from, and information about, the Committee's activities in the course of his activities as the editor of TOP. Malice and Joint Tortfeasors [1064] I note the principles concerning the problem of malice and joint tortfeasors as set out in Tobin & Sexton, Australian Defamation Law and Practice at [18,060] and have applied these principles accordingly. Vicarious liability for malice of the fourth defendant [1065] The second and fourth defendants submit that even if the fourth defendant is motivated by malice the second defendant cannot be vicariously liable (submissions page 349) relying on Egger v Viscount Chelmsford [1965] 1 QB 248. The plaintiff draws my attention to Webb v Bloch (1928) 41 CLR 331 at 363 per Isaacs J. The law relating to vicarious liability for the malice of a servant or agent is set helpfully summarised by Tobin & Sexton "Australian Defamation Law and Practice" at [18,045]. If the fourth defendant is a servant or agent of the second defendant, then malice may be imputed. Where are number of employees or agents have contributed in varying degrees to the publication and not all have been actuated by malice, there may be doubt as to whether the principle may be found to be malicious: Musgrave v Commonwealth (1937) 57 CLR 514 at 536 (an interesting question arises in the circumstances as to the impact of the judgment against the fifth defendant in this regard). Consequently, if I find that the fourth and fifth defendants were acting as the servants or agents of the second defendant, there may be vicarious responsibilities. [1066] However, while the fourth defendant certainly gave evidence that the second defendant actively sought details of the audit, and can be seen in the Activities Diary to be actively requesting information from the Supporting Committee on behalf of the Korean Society of which the second defendant was President, in my opinion, the relationship between them falls short of being that of servant or agent. [1067] The short answer to this question is that I am satisfied that the second defendant was malicious on his own account. Secondly, by reason of his acknowledging that he did not bother to read the matter complained of, notwithstanding his personal knowledge and the plaintiff's prior complaints that would amount to wilful blindness constituting malice: Roberts v Bass [2002] HCA 57 at [84]-[87]. [1068] Accordingly, I am satisfied that independent of the issues raised in Egger v Viscount Chelmsford (which I note relates only to the question of vicarious liability for qualified privilege and not comment, as Gatley on Libel & Slander 10th Ed points out) the second defendant was motivated by malice. [1069] Although issues of demeanour are of little assistance in this regard, the second defendant was not an impressive witness. [1070] By reason of this, I am not prepared to accept the second defendant's evidence that he did not leave the meeting of 1 May 1998 with an angry look on his face. He was keen to be elected. His anxiety to be elected to a position of importance in the Korean community at this time was considerable, as the evidence of Mr Won Kang demonstrates (Daily Transcript 2436, 25 March 2009, Day 57). Similarly, I regard the second defendant's evidence that he "welcomed" the 1 May 1998 election results (that is, the plaintiff being elected as Chairman of the Supporting Committee) (Daily Transcript 2079, 12 June 2008, Day 51) with a degree of suspicion given his lukewarm response to the good work that the Supporting Committee had done in relation to the athletics. In my view, it was revealing of the second defendant's true character when he told the court "I was grateful for the work they'd done" (emphasis added) (Daily Transcript 2080, 12 June 2008, Day 51). What impact does the judgment against the fifth defendant have? [1071] A judgment against a joint tortfeasor, even where it is not clear what part of the publication was written by each of the tortfeasors, makes no difference to the fourth defendant. The question is whether or not the fourth defendant has been malicious. [1072] In relation to the fifth defendant, I note the submissions of Mr Wheelhouse SC that this does not stop the fifth defendant (and therefore Mr Wheelhouse SC's client) looking behind the judgment because the judgment was not given on the merits of the claim. While I have real reservations as to the accuracy of this assertion, I note it receives some support from the NSW Court of Appeal's judgment in Trantum v McDowell [2007] NSWCA 138. The defendant in that case did not participate in the s 7A jury trial or in the subsequent hearing on liability and damages (although he provided written submissions). On appeal he was permitted to challenge issues of publication (which was a matter for a jury finding) and other issues of fact going to liability. Accordingly, I formally note my findings in relation to malice for the fifth defendant as well. Conclusions concerning malice [1073] In the event that I have erred in holding that each of the publications was not made on a protected occasion, I am satisfied each of the second, fourth and fifth defendants was motivated by malice in relation to each of the three publications and the defence of qualified privilege is accordingly defeated. PART 4 – DEFENCES OF JUSTIFICATION AND CONTEXTUAL TRUTH – SECTIONS 15 AND 16 DEFAMATION ACT 1974 (NSW) [1074] The onus of proof lies on the second and fourth defendants to prove the truth of imputations against the plaintiff. Five of these imputations (imputations 39(a), 41(b), 41(d), 42(d) and 43(a)) involve allegations of criminal conduct which requires proof to the level of satisfaction explained in Briginshaw v Briginshaw (1938) 60 CLR 336; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the nature of which was explained by Levin J in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 in relation to imputations of criminal conduct in defamation proceedings. [1075] I gratefully borrow the explanation given by Levine J in Marsden, noting that where imputations involve serious crime, the onus of proof must be at the high end of the scale and that where satisfaction of the civil standard of proof depends on inference, there must be more than mere conjecture, guess work or surmise. There must be more than conflicting inferences of equal degrees of probabilities. [1076] As to imputation 41(b), the law relating to imputations of reasonable suspicion has been helpfully summarised by McClelland CJ at CL in Greig v WIN TV [2009] NSWSC 632 at [79] – [81] where his Honour set out the principles enunciated by Brooke LJ in King v Telegraph Group [2004] EWCA Civ 613; [2005] 1 WLR 2282 and I have applied those principles. [1077] As to the other imputations, I note that the defendant did not plead any other imputation apart from those pleaded by the plaintiff and accordingly shoulders the burden of proving those imputations (Greig at [88]). As McClellan CJ at CL notes at [93] – [94], substantial justification of an imputation will satisfy the truth, and the defendant need only prove the gist or the sting of the imputation, and an inaccuracy in a mere detail will not prevent the defence of justification succeeding. However, where the inaccuracy is material and alters the character of the imputation, or adds to the sting, the imputation cannot be justified by evidence of a lesser kind. McClellan CJ at CL illustrated this point by referring to Weaver v Lloyd [1824] 2 B & C 678. The plaintiff in that case performed acts of cruelty to his horse. However, this did not justify the imputation that the plaintiff knocked out his horse's eye. The court in Weaver explained (at 679) the reason for this: "Here, the statement that he knocked out the horse's eye imputed a much greater degree of cruelty than a charge of beating him on other parts of the body. If we were to hold this a sufficient justification, exaggerated accounts of any transaction might always be given with impunity." [1078] In Greig, the defendant sought to avoid the essential elements of the imputation by what McClellan CJ at CL called "some generalised assertion" (at [95]) of a "suspicion of some generalised act of impropriety" when the imputations pleaded stated the plaintiff had been given particular responsibilities and on behalf of Council was in control of these events, in which position she abused her office by acting corruptly. [1079] The test for determining whether an imputation is substantially true was described in Cross v Queensland Newspapers Pty Ltd [2006] NSWCA 80 at [71] per Beazley JA as "well-established". Although that case turns on its facts, I have found the way in which the Court of Appeal approached the task of fact-finding in Cross to be of considerable assistance. [1080] In the course of this judgment, I note the manner in which the defendant in Cross went about establishing the defence of justification drew the following comment from the Court of Appeal at [143]: "[143] The case advanced by the respondent involved a vast quantity of material. It would not have been an easy task to organise, analyse and assess each category of evidence, or the manner in which each category of evidence related to, or was affected by, the other material upon which the respondent relied. It is possible that the omission to make clear findings in respect of the evidence of the expert valuers may have lead his Honour into error in placing reliance, as he did, on that other material, notwithstanding the inadequacies in that evidence to which I have referred." [1081] That is very much the case in these proceedings. The defendant has advanced its case by producing a vast quantity of material which has not been organized, analysed and assessed in relation to each category of evidence. This has been compounded not only by late amendments and late particularization but also by defects in an essential pre-requisite to procedural fairness, namely full and frank discovery. [1082] Before dealing with issues relevant to justification I should set out problems that arose during the trial as a result of problems concerning discovery and provision of particulars. Discovery problems [1083] Parties who hold discoverable documents are obliged not only to discover them but to make them available for inspection and, if they are in a foreign language, to translate them: Chinatown Enterprises Pty Ltd v Maxims Entertainment Pty Ltd (Supreme Court of NSW, Levine J, 13 December 1996). This did not occur in these proceedings. [1084] The fourth and fifth defendants gave the Supporting Committee equipment to the Korean Society (Exhibit M, 1 March 2001, lines 150 – 7) but kept financial records in their possession until the trial. Some of these documents to which they refer in the matters complained of (notably the "minutes recorded in the early stages" and other documents referred to at lines 64 – 74 of the 1 March 2001 publication) were not produced on subpoena or in answers to calls. The Korean Society did not produce any documents on subpoena: Daily Transcript p. 87, day 1). The plaintiff's solicitor, Mr Smith, requested the return of the financial records in 2001, but was given only the Expenditure Resolutions (Daily Transcript p. 219, Day 4), as the fourth and fifth defendants told the plaintiff they could not return these to him as he had resigned from the Sports Council. The plaintiff sought orders for discovery on 25 August 2006 and, when the fourth and fifth defendants did not discover documents, sought court orders on 8 February 2007. [1085] On 8 February 2007, I ordered the fourth and fifth defendant to attend court on 13 February and to bring such documentation as they were able to produce at such short notice. On 13 February 2007 the fourth and fifth defendants came in person to court to say "all accounting records" had been provided to their solicitor, Mr Geddes. By agreement between the parties, I noted on 13 February 2007 in my orders these were to be uplifted to be given to the second defendant's solicitors and made orders for inspection. The second defendant also asked to uplift the plaintiff's documents, with the result that those documents the plaintiff had discovered (including the Expenditure Resolutions) were also delivered to the second defendant (see Exhibit 76). [1086] The plaintiff had listed in Schedule 2 of his own List of Documents the documents he remembered he gave to the fourth and fifth defendants, but the solicitors for the second defendant acknowledge there were "many more documents" (Exhibit 76) and advised that these could be inspected "by appointment if you wish". They went on to state that they required immediate translations of all these documents because "in our view, it is your client's obligation" (Exhibit 76, letter dated 12 October 2006) and to request translations of all documents, including those produced by the fourth and fifth defendants, in fourteen days. [1087] On 15 March 2007, the solicitors for the plaintiff wrote to say the plaintiff requested that they be permitted to inspect the documents in the second defendant's possession produced by the fourth and fifth defendants and repeating that the plaintiff had provided all financial documents to the fourth and fifth defendants in December 2000 for the purpose of their audit. They suggested that the costs of translation be borne jointly. It would appear that this letter was never replied to. Up to and after the commencement of the trial, the plaintiff was not given access to the documents, although his translator was permitted to attend, and he had to bear the whole cost of translation, including translating all the fourth and fifth defendant's documents. [1088] The second defendant's List of Documents does not include any documents other than a statement by the printer. The fourth and fifth defendants have not, I understand, ever filed Lists of Documents, although they had solicitors acting for them at the time I made the discovery orders. [1089] On 28 March 2007, I granted leave to the second defendant (not the plaintiff, as the court order wrongly says) to transfer the original documents from their office to the office of the expert witness, Mr Finney. During this time, as I understand the explanations of Mr Dibb and Mr Evatt, the plaintiff continued to be denied access to the Korean originals. [1090] The trial commenced on 28 May 2007 but was adjourned for one week. One of the problems with readiness was the new particulars of truth, which were to be served the following day (although they are generally called the 30 May particulars) and with outstanding subpoenae to banks. The following week the plaintiff gave evidence in chief for two days and cross-examination commenced. On 7 June 2007 Mr Dibb complained that the plaintiff, although required by the defendants to translate these documents at his own expense, had still not been permitted to see the Korean originals, and that these records were still unavailable (Daily Transcript 151, 6 June 2007, Day 6). The plaintiff was concerned that he was seeing the Korean original of the Supporting Committee documents for "the first time in many years" (Daily Transcript 224, 8 June 2007, Day 8; Daily Transcript 276, 12 June 2007, Day 9; see also Daily Transcript 1352, 17 October 2007, Day 29). [1091] Mr Wheelhouse SC commenced to cross-examine about the Minutes of Meeting and Activities Diary (Exhibit 51 and 52 respectively, tendered only in Korean at Daily Transcript 521-522, 24 September 2007, Day 17). Both documents are on their face incomplete; the Minutes of November 1999, for example, refer to or follow on from minutes of previous meetings, and Expenditure Resolutions confirm the statement in the 1 March 2001 matter complained of (Exhibit M) that the Committee was meeting from an "early stage". There are no minutes for the special SK Securities meeting, referred to in the Activities Diary as having been prepared, as are any Sports Council/Supporting Committee meeting minutes. [1092] At Daily Transcript 304-305 (13 June 2007, Day 10) Mr Evatt objected to the plaintiff being cross-examined on the English translation of the Activities Diary (Exhibit 51) and called for the Korean to be produced. It was not in court. Mr Wheelhouse SC said he had never seen it and that "we only have the English translation" prepared by the plaintiff's translator (Daily Transcript 304, 13 June 2007, Day 10). Mr Evatt said: "Your Honour, I'm instructed that's not true. It was translated in their offices and they have the Korean [original]." (Daily Transcript 304, 13 June 2007, Day 10). [1093] I asked Mr Wheelhouse SC to make inquiries (Daily Transcript 304-306, 13 June 2007, Day 10). After a short adjournment, Mr Wheelhouse SC said that "I apologise unreservedly" for this analysis of the circumstances as to the whereabouts of the plaintiff's documents. He told the court that the documents were provided by the plaintiff's former solicitors, Strathfield Law, to Mr Nye for "the purpose of the documents being translated when the plaintiff had not translated the documents notwithstanding about ten or twelve requests over a period of about two months" (Daily Transcript 315, 13 June 2007, Day 10), but that Mr Nye had left the firm. Mr Wheelhouse SC went on to say that Mr Crumpton "came into the case completely ignorant of the fact that documents had been delivered. Searches have been made over lunch and we have now found the documents so I hand them to the court. I apologise to my learned friend Mr Dibb. I understood the letter from Strathfield Law to be that Strathfield Law acting for the plaintiff had translated the plaintiff's discovered documents and were providing us with translations and they were holding the originals and I apologise." (Daily Transcript 315, 13 June 2007, Day 10). [1094] It is apparent from Exhibit 6 that, following the audit, the fourth and fifth defendants had kept all financial and administrative audit records except the Expenditure Resolutions, which were given to Mr Smith of Strathfield Law on or before 11 April 2001(see also Daily Transcript 934, 9 October 2007, Day 24; Daily Transcript 1399, 5 May 2008, Day 34). This is confirmed by the solicitor's correspondence at Exhibit 76. [1095] When the plaintiff's translator, Mr Deok Kon Kim, went to the second defendant's office to prepare the translations, he dated them. For example, he first translated the fourth defendant's financial reports on 15 January 2007 (Exhibit 56). He translated the list of officials (Exhibit SS) on 4 April 2007. He translated all the cheque butts and financial records given by the plaintiff to the fourth and fifth defendants in December 2000. These were documents which they had refused to return, and upon which they and the second defendant proposed to rely. [1096] Despite this explanation being provided, and Mr Wheelhouse SC's apology to Mr Dibb, he repeated these statements on Day 23 (Daily Transcript 918, 8 October 2007). Mr Evatt again stated that the documents were kept by auditors after the audit, and repeated the circumstances in which the plaintiff had to pay a translator $15,000 to translate these documents as the other parties had not translated them. He added that the refusal to supply the originals of these documents included the translations prepared by the translator. Mr Wheelhouse SC did not challenge this. Mr Wheelhouse SC pointed out (Daily Transcript 918, 8 October 2007, Day 23) that the plaintiff's solicitor had sought the return of documents and said that documents had been returned in 2001. However, as I have noted above, it is clear from the transcript and Mr Smith's correspondence (Exhibit 6) that the documents returned to the plaintiff were the Expenditure Resolutions, not the Supporting Committee's other financial records. [1097] During the cross-examination of the fourth defendant Mr Evatt called for production of the Minutes prior to November 1999 and for any Activities Diary for 1998 – 9. Mr Wheelhouse SC claimed, for a third time (Daily Transcript 3034 (6 April 2009, Day 64), that the Minutes and Activities Book had been returned to the plaintiff, although had conceding that the fourth and fifth defendants kept the rest of the records. This is unlikely, given the text of Exhibit 6 and the fourth defendant's statement, which specifically refers to these documents having gone out of his possession in 2007 so that they could be translated by the plaintiff's translators. The call for production of further Minutes and an earlier Activities Diary was not answered. [1098] On 2 April 2009, during the fourth defendant's cross-examination, Mr Wheelhouse SC advised the court that the fifth defendant, who had flown in from Korea a few days before, had to return to Korea and would need to be interposed. Objections to his affidavit had to be dealt with in a rush, and Mr Evatt objected to a document that he said had not been discovered by the fourth and fifth defendants. Mr Wheelhouse SC assured me that it had. Having some recollection of there being discovery problems, I asked what the document number in the List of Documents was. Mr Wheelhouse SC replied "All the documents of the fourth and fifth defendant were available in a box, and they were inspected in March 2007, and that's amongst the material" (Daily Transcript 2841, 2 April 2009, Day 62). I accordingly rejected Mr Evatt's objections. However, there was no inspection of documents in March 2007; this was what the plaintiff's lawyers had been complaining about at the beginning of the trial, and Mr Wheelhouse's answer confirms, in my view, that the fourth and fifth defendants have never given formal discovery but simply produced a box of assorted records. [1099] This long recital of discovery problems is necessary because a substantial attack has been made on the plaintiff's credit by reason of his alleged evasive answering of questions about these documents. Challenges were made on three occasions to his claim in cross-examination that he was seeing them for the first time in many years. [1100] The plaintiff's own discovery was also inadequate. While some of the complaints of the second defendant in correspondence (Exhibit 76) are unmeritorious, given the lateness and inadequacy of their particulars of truth, the plaintiff's solicitors should have translated those documents they had, and discovered all the plaintiff's financial records. The plaintiff failed to discover the cheque books and bank statements for his business, CFM Engineering, from which he had used more than $71,000 of his own and his company's money to fund the Supporting Committee. He also failed to produce them for the audit. This was the subject of much criticism by the fourth and fifth defendants at the time and the subject of extensive cross-examination as well as complaint during the trial (Daily Transcript 159, 7 June 2007, Day 7). [1101] These discovery problems have been compounded by problems with particularisation of the defence. Late particularisation of the defence [1102] The first time the second defendant provided particulars was pursuant to my peremptory order to do so by 12 February 2007, three months before the trial date. Prior to this stage, the second and fourth defendants both pleaded truth only to imputations of incompetent bookkeeping. An application was made on 5 February 2007 by the second (but not the fourth) defendant to amend his defence. I made a peremptory order on 5 February 2007 for full particulars of truth to be delivered by 9:00am 13 February 2007 and for the second defendant's expert report to be served by 1 May 2007. [1103] Late amendments to plead justification are not uncommon in defamation actions. However, courts take a stern view of such late applications and the usual order that is made is either for a provision of particulars pursuant to a peremptory order, or statements by witnesses (Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994, unreported)) or both. [1104] The particulars of truth contained in the letter of 12 February 2007, which is exhibit 81, consist of: (a) identification of the parties (paragraphs A – D); (b) a description of the meetings between the auditors and the plaintiff (paragraphs E – K); (c) a summary of the auditor's report as disclosing $184,712.00 was misappropriated and $53,315.45 spent on Sports Council payments, SK entertaining costs and $1,890 taken by the plaintiff (paragraph L); and (d) a further three pages of particulars for 11 of the 14 imputations (truth was not pleaded to the remaining three). Some additional material set out on pages 18 – 21 for the comment defence is also asserted to be true. [1105] The particulars of the fourth and fifth defendants were three sentences long. They pleaded a defence of truth to two imputations only (namely imputations 39(c) and 40(e)). The first two sentences of the particulars say who the plaintiffs and the defendants are, and the third states the plaintiff failed to keep proper records. [1106] Accordingly, the trial was set down for hearing and commenced to run on the basis of these particulars. The plaintiff entered the witness box on 4 June 2007 and was examined in chief on the basis of these particulars. Cross-examination then commenced on 7 June 2007.In the course of the cross-examination it became apparent that the plaintiff was being cross-examined on matters which were not in the particulars. Further particulars totalling 36 pages of an omnibus nature were served on 27 or 30 June 2007 (I have called these the "30 June particulars". [1107] As the plaintiff had clearly been cross-examined about matters that were not in the particulars, I ordered the second defendant to provide further particulars. These were in excess of 140 pages in length and when the matter resumed on 24 September, Mr Evatt brought an application to strike out the defence of justification on the basis that the particulars were so prolix and incomprehensible that they amount to an abuse (Daily Transcript 476, 24 September 2007, Day 17). My judgment on that application is set out in [2009] NSWDC 300. With the benefit of hindsight, my decision was clearly wrong. [1108] Prior to my judgment, I asked Mr Wheelhouse SC how many incidents of misappropriation there were and how much had been stolen. At Daily Transcript 738 (3 October 2007, Day 20), he told me that he had never added these up, but eventually he said that he considered there to be about 60 incidents of misappropriation and totalling approximately $160,000. However, at Daily Transcript 740 (4 October 2007, Day 21) the following day he served further particulars asserting the plaintiff has misappropriated $504,634.71. He did not add up the number of transaction but I counted more than 240. [1109] At the time that I handed down my judgment of 4 October 2007, this was the state of the defence. However, I note that these figures have changed again in submissions as follows. Imputation 38(b) [1110] In written submissions, the second defendant now says that $203,607.00 was spent on purposes for which it should not have been spent. Imputation 39(a) [1111] Submissions relating to imputation 39(a), namely a failure to account for $56,000, now total claims of $303,687, together with three other sums that are asserted to be in excess of $56,000. This relates to thousands of transactions, a rough total for which appears to be $471,687 (the defendants have not added these sums up themselves). Imputation 41(d) [1112] Although the defendants have not added these claims up, there are 54 transactions totalling $107,545.83. However, there is no explanation as to any overlap with the $203,607 in imputation 38(b), or the $471,687 in imputation 39(a). Imputation 43(a) [1113] The matters particularised have, once again, not been added up, but I note that claims totalling $168,541.95 in four categories are set out on page 318 which, again, represent thousands of transactions, again with no indication of overlap. [1114] Some transcript references for the ongoing problems caused by the continued adding of matters in particulars are set out at Daily Transcript 1145, 12 October 2007, Day 26; Daily Transcript 1224, 16 October 2007, Day 28. [1115] This process has continued during the submissions stage, with the late addition of a claim that the plaintiff was guilty of a "straight theft" of the $20,000 loan repayment from the Sports Council (Paragraph 193 in the Amended Submissions). This claim is made for the first time in the revised submissions sent after 22 May 2009 which the plaintiff complains have not been served on his legal representatives electronically. [1116] It is necessary to understand this long history of repeated alteration to and enlargement of the particulars in order to see in context the second defendant's application to further amend his defence, and also to deal with the plaintiff's counsel's claim that the manner of presentation of the case (in particular cross-examination about matters which were not particularised) has led to unfairness for the plaintiff. A late application by the second defendant to amend the defence [1117] After the evidence in the trial had been completed and a timetable was put in place for written submissions, the second defendant sought to relist the matter on 1 May 2009. On that day a Notice of Motion supported by an affidavit of Mr Tim Crumpton was handed up in court (but never filed ) seeking leave to amend the defence. [1118] The amendments sought to be made, omitting inconsequential matters, are as follows: (a) Amendments concerning publication. The second defendant initially did not admit and then by Notice of Motion sought to deny publication on the basis that the second defendant had no records of publication for TOP, or copies of the matter complained of. My judgment on the second defendant's application on the first day of the s 7A trial is set out in [2009] NSWDC 300. As there has been a s 7A jury trial, I consider these amendments are no longer necessary. (b) Amendments to paragraph 9 to delete the plea of justification to imputations 39(c) and 40(e) only and to plead justification to imputations 36(d), 38(b), 39(a), 39(c), 40(a), 40(d), 40(e), 40(h), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(a). In fact, this is in error. The defence filed on 21 February 2007 pleaded the defence of justification to imputations 39(a), 39(c), 40(a), 40(d), 40(e), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(b) and omitted to plead truth to imputations 36(c), 39(b) and 40(h), and particulars of justification dealt only with these same imputations as well. The plaintiff does not object to these amendments. (c) To rely upon particulars of justification filed on 30 May 2007 and 15 August 2007 and to rely upon the particulars of public interest provided on 12 February 2007. The plaintiff brought an application to strike out the particulars of justification during the trial and was unsuccessful. The plaintiff in written submissions confirms that he does not bring any fresh application to do so. (d) To plead a defence of contextual truth in relation to each of these additional imputations. This is consented to. (e) To reinstate the defence of qualified privilege, which the second defendant abandoned on the last day of the hearing (Daily Transcript 3245, 1 May 2009, Day 68) except for imputations 36(d), 38(b), 39(a), 39(c) and 43(a). This is consented to. (f) To delete the defence of "Unlikely [sic] of Harm". This is consented to. (g) To extend the defence of comment of a stranger to imputations 36(d), 38(b), 40(h) and 43(a) of the Statement of Claim. This is consented to. However, I suspect the pleader has forgotten to make submissions about these, because no submissions about this defence were made. I have done my best to consider this defence without the benefit of submissions. (h) to add a plea of mitigation concerning the Third Defendant's settlement for $60,000 plus costs. This is consented to. [1119] Essentially what the second defendant says is that it always intended to plead truth to all of the imputations that it particularised the matters going to each of the imputations, and that it should be permitted to amend so that the pleadings are consistent with the evidence. This is a reasonable request, although made at a very late stage of the trial. I am more concerned by the failure to particularise than by the failure to plead, and this relates to all the imputations, and not just the three to which the defence was not pleaded. The second defendant's particulars were a "cut and paste" job from the third defendant's particulars (as I have noted elsewhere in this judgment) and this included the particulars of truth. [1120] The particulars served on 12 February, like the defence, only dealt with the justification of imputations 39(a), 39(c), 40(a), 40(d), 40(e), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(b). The plaintiff did not know until just before the trial that there would be a plea of justification to these other imputations and was preparing for trial on that basis until the discussion between counsel occurred and Mr Dibb prepared the document that has become Exhibit EE in these proceedings. The law relating to late amendments of justification [1121] In an Announcement circulated to practitioners dated 14 October 1988, Hunt J noted that there were two problems which commonly occurred prior to the date fixed for hearing: changes to the imputations and applications to amend the defence. Where a plaintiff could not meet these amendments at the trial on that date, leave to amend would not usually be granted. This was the practice in defamation actions for decades. [1122] Australian Defamation Law and Practice at [25,175] notes that late pleas of justification may be rejected where they cause the vacating of the hearing date (Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 at 456), as an order for costs may not adequately compensate a party for significant delay in the course of litigation (Ketteman v Hansel Properties Ltd [1987] AC 189 at 220). Where there is a late particularisation of justification, the success of the application usually requires not only an adequate explanation of the lateness and the provision of full particulars, but also either a broad outline of the evidence (Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of NSW, Hunt J, 20 October 1986)) or witness statements (Tedeschi v Franklins Ltd (Supreme Court of NSW, Levine J, 23 September 1994, unreported)). It was for this reason that I made peremptory orders for the provision of particulars of justification by the second defendant on 5 February 2007. The particulars provided in answer (Exhibit 81) do not tell the plaintiff the case he has to meet. In view of the second, fourth and fifth defendants' participation in the events of the time, they fill the "expert" role that Carruthers AJ referred to in Assaf v Skalkos [1999] NSWSC 1334 and this failure to particularise is particularly unacceptable as the fourth and fifth defendants retained the financial documents from 2001 onwards. [1123] The High Court's decision in The State of Queensland & Ors v J L Holdings (1997) 189 CLR 146 significantly shifted the balance in favour of allowing amendments. Dawson, Gaudron and McHugh JJ noted the relevant material was only "recently discovered" (at 152) and cited the passage from Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 701 that in the absence of error or mistake which was fraudulent or "intended to overreach" the Court should allow the amendment. Case management should only "in extreme circumstances" shut a party out from putting a matter that was "fairly arguable" (at 154). [1124] The question of what amounts to "extreme circumstances" was one of the issue in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619. [1125] During an application lasting 38 days, the plaintiff advanced 17 grounds in opposition. Levine J noted the defendant in Marsden had pleaded justification to all imputations from the first (at [25] and [30]), which is not the case here. In addition, the court [in Marsden] was in a position to give the plaintiff six months to meet these new claims, as the evidence had not yet started (at [87]). [1126] The attitude of the court began to change with the decision of the NSW Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. Although this decision dealt with multiple alterations of imputations rather than defences, it has been widely interpreted as a warning against late and repeated amendments: Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 501. [1127] However, the real change which has occurred in the law has come about as a result of the High Court's decision in AON Risk Services Australia Limited v Australian National University [2009] HCA 27. [1128] The majority of defamation cases where a court has permitted a late application to amend are cases involving media defendants who do not have personal knowledge of the events in question. That is not the case here. The second defendant was the Honorary Chairman of the Supporting Committee and the fourth and fifth defendants were the auditors who prepared the audit of the books. All of these events occurred in 2000. In addition, there has been significant delay, not only by the second, fourth and fifth defendants, but also by the third defendant, and this is the delay which has been full exploited by the defendants, who could have been getting on their case and obtaining all of these documents so that they were ready to plead and particularise their defence in August 2006 when the case was set down for hearing. The plaintiff's response to the request to amend [1129] The plaintiff, in written submissions (page 14) consents to the amendments of paragraph 9, 10, 11 and 13 of the amended defence, but asks the Court to refuse leave to make the balance of the proposed amendments which, it should be noted, include being granted leave to rely on particulars of justification filed on 30 May 2007 and 15 August 2007, as well as the particulars of public interest dated 12 February 2007. [1130] The plaintiff asks the Court to refuse leave to the second defendant to make the balance of the amendments and seeks leave to file a reply to the further amended defence, as well as seeking costs orders. [1131] The plaintiff outlines the substantial prejudice as follows: (a) The plaintiff ran his case and deduced evidence at trial relying upon the pleadings as they were. (b) The plaintiff has been deprived of the opportunity to adduce evidence on the new issues raised by the proposed amendments. (c) As amendments to pleadings have a retrospective effect, it would mean that the plaintiff had not answered certain particulars and a reply would be required (Pt 14 r 14.31(3) Uniform Civil Procedure Rules ). (d) The Plaintiff relies upon AON Risk Services Australia Limited v Australian National University [2009] HCA 27 concerning late applications to amend pleadings. [1132] At paragraph 2.5.10 of the amended defence, the plaintiff expresses concerns that in paragraph 6 of the further draft amended defence, seeks to withdraw an admission made in paragraph 6 of the amended defence. The plaintiff submits that withdrawal of admissions of fact, whether expressly made in pleadings or notices or deemed to have been made as a result of failure to adequately traverse the allegations, require the leave of the Court pursuant to Pt 17 r 17.2(2) Uniform Civil Procedure Rules. It is pointed out that leave has not been sought in express terms, nor have proper grounds, or indeed any grounds been proffered to support such application for leave. The High Court in AON made it clear that amendments require an explanation. [1133] The plaintiff goes on to point out, at page 19 of the written submissions: (a) No proper grounds for the withdrawal have been established or explained by the second defendant: SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816. (b) No explanation of the circumstances concerning the making of the admissions and the perceived need to correct them have been given by the second defendant: MindShare Communications Limited v Orleans Investments Pty Ltd (2007) NSWSC 637. (c) The admissions were made in an amended pleading, with legal advice and are deliberate and clear: Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738. (d) The amendment is sought at too late a stage of the proceedings for evidence to be led: Jeans v Commonwealth Bank of Australia (2003) 204 ALR 327; Celestino v Celestino [1990] FCA 299; MindShare Communications Limited v Orleans Investments Pty Ltd (supra) and Drabsch v Switzerland General Insurance Company Limited (Supreme Court of New South Wales, Santow J, 16 October 1996, unreported). (e) Since the jury has handed down its findings in relation to the imputations the second defendant has not established the utility of such a late withdrawal of an admission by him: Silver v Dome Resources NL (2005) NSWSC 265 at 10, per Hamilton J; Australia and New Zealand Banking Group Ltd v Bechely-Crundell (Supreme Court of NSW, Sperling J, 11 June 1996 unreported). (f) This may appear to be an unnecessarily suspicious approach to what appears to be a simple amendment. However, there is a long history in this litigation of conduct in this case which goes beyond trial tactics of a legitimate nature and falls within the parameters of trial by ambush. [1134] The admissions which the second defendant seeks leave to withdraw are "deliberate and formal admissions" (Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127). Where a court is satisfied that admissions have been made after consideration and advice, admissions of this kind would nor ordinarily be permitted to be withdraws: Coopers Brewery Ltd v Panfida Ltd (1992) 26 NSWLR 738 at 748. Any such application must be accompanied by an explanation or by providing some good reason why the judge should disturb what was previously common ground or conceded: IOL Petroleum Ltd v O'Neill (Supreme Court of NSW, Young J, 17 November 1995, unreported). No explanation is given so there is no information upon which I can exercise my discretion. Conclusions concerning application for leave to amend [1135] The plaintiff has sensibly agreed to the second defendant being granted leave to amend his defence in accordance with paragraphs 9, 10, 11 and 13 of the proposed further amended defence. I have, as order 1 in the orders I have made in these proceedings shows, granted this leave. [1136] However, the other applications brought by the second defendants are brought so late in the trial with such elements of prejudice for the plaintiff, and without any explanation of any kind in the affidavit of Mr Crumpton, that they should be rejected. [1137] Accordingly, the order I have made is to grant leave to the second defendant to amend the defence in accordance with paragraphs 9, 10, 11 and 13 of the proposed further amended defence. I have made the usual order that costs of amending should follow the event, but have granted liberty to apply. Request for a right of reply [1138] An additional problem with the defendants' submissions is that without seeking directions from me beforehand, they elected not to provide submissions on a number of issues such as "purpose", for imputation 38(b) on the basis that they did not know what the plaintiff's submissions would be, and on all issues on which the plaintiff bore the onus of proof. Instead, the defendants sought a right of reply, which would mean that the order of addresses would be Defendant-Plaintiff-Defendant. Should a defendant be entitled to an address in reply? [1139] The right of reply of a "beginning" party (i.e. the plaintiff) is clear: Ritchie, Uniform Civil Procedure Act, [29.6.30], but that is entirely different to a defendant seeking to require the plaintiff to provide a separate set of addresses, in reverse order, on the issues on which the plaintiff bears the onus of proof. [1140] The defendants in written submissions dated 14 May 2009, and again in further written submissions dated 7 August 2009 in relation to "purpose", as well as in court (on 24 August 2009) sought leave to serve and rely upon submissions in reply to the plaintiff's submissions. [1141] Chapter 25 of the second defendant's submissions seeks a right of reply for the second defendant on the basis that nothing on the face of r 29.6 Uniform Civil Procedure Rules prevents a defendant from making an address in reply. While r 29.6 Uniform Civil Procedure Rules appears to deal with situations where a defendant goes into evidence, and creates a rule of practice that a defendant in those circumstances should address first, the rule of silent [sic] as to a right of reply. The second defendant accepts that the matter is within the discretion of the court" (written submissions, p. 379). [1142] The second defendant relied on the following "strong discretionary factors": (a) a defendant should be allowed a right of reply on all matters on which a plaintiff bears the onus, which in these proceedings includes (but is not limited to) malice, defeasance in comment and aggravated damages. The defendants complain that the "difficulty" they otherwise face is "exacerbated by the florid, vague and rhetorical particulars of malice and aggravation" upon which the plaintiff relies. (I note that the particulars of malice and aggravation in these proceedings are similar to those generally pleaded in defamation proceedings). (b) A defendant should be allowed to make submissions in reply where "the defendant does not know the case the plaintiff will make. One example is the application to amend the defence and another is "the meaning or construction to be afforded to particular imputations when an ambiguity arises". (The second defendant does not mention the issue of "purpose" for imputation 38(b), although this is one of several issues of disputed fact on which the second defendant said submissions could not be made without knowing what the plaintiff would submit. This indicates the very broad nature of the right of reply sought). (c) A defendant should be allowed a right of reply in relation to any attack on the credit of witnesses when such submissions have "crystallised". (Again, if permitted in litigation, this would result in a right of reply being necessary for many if not most of the issues in the case). (d) A defendant should be entitled to reply if any objection is taken to the failure to particularise matters, or an objection to the sufficiency of the present particulars. Given the "large volume" of particulars and evidence" the second defendant ought to be "able to respond to any allegations of this kind". In addition, the second defendant ought to be able to respond to any Browne v Dunn point that is taken. (e) The court having indicated that it is "unlikely" the parties will be invited to make oral submissions, or if they are invited to do so, "the time permitted will be small" and this means the defendant "may have no opportunity to respond to any of the plaintiff's submissions". (This is incorrect. No such ruling has been made. I have invited the parties to tell me if they wish to make oral submissions and Mr Richardson, junior counsel for the second defendant, has assured me the second defendant does not wish to make oral submissions. My concern about oral submissions was because the oral submissions in the Marsden trial took seventeen days.) (f) The second defendant was given four weeks to prepare submissions and the plaintiff was given longer. In those circumstances extra time to reply is "in the interests of justice". (In fact the defendants had several extra weeks due to the matter being stood over generally over the Easter vacation, to give both parties time to ensure they had presented all their evidence, and had the benefit of unused trial time and of preparing their submissions immediately). (g) This has been a very long run and hard fought case, and the further delay of "two or three extra weeks" for the submissions in reply would not prejudice any party. [1143] It can be seen from the above that what is being sought is in fact a general right of reply before me on the directions return of 27 August that this right of reply should be an entitlement of the defendants only, and that the plaintiff should not be entitled to reply. His "retreat position" (Daily Transcript 4, 27 August 2009, Day 72) was on the issues of "[m]alice, defensive [sic] truth, comment, aggravated damages" and "[t]he application to amend the defence, credit" (Daily Transcript 4, 27 August 2009, Day 72). It was submitted to me that the plaintiff was not entitled to have a right of reply because they had already provided written submissions which were 400 pages long (Daily Transcript 4, 27 August 2009, Day 72). [1144] The reasons put forward by Mr Richardson included that it was "very difficult to glean what their case on malice is". [1145] Contrary to what the defendants submit, the effect of what they seek is to overturn the ordinary rule. McHugh J explained in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at 93: "[71] It is a fundamental rule of the common law jury trial of a civil cause that, if counsel for the defendant does not call evidence, he or she has the last address. Statutes or Rules of Court may, of course, alter that fundamental rule of the common law. In New South Wales, Pt 34 r 6 of the Supreme Court Rules (1970) gives effect to the common law rule but gives the judge a discretion to alter the order of addresses. It is a discretion, however, that must not be used to negate the general rule. It should be exercised only when the justice of the case requires it." [1146] When the proceedings were before me on 27 August, I drew what the High Court had said in Rivkin and also some similar comments by the Court of Appeal in Keramianakis (Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395; [2007] NSWCA 375; Keramianakis v Regional Publishers Pty Ltd (No 2) [2008] NSWCA 3) in relation to the granting of leave to appeal. What concerned me was that I was being asked to grant a discretion of the most general kind which would traverse the general rule, trespass upon the need for finality and undermine the case management issues explained so comprehensively and clearly by the High Court in AON Risk Services Australia Limited v Australian National University [2009] HCA 27. In addition to drawing the attention of Mr Richardson to these cases, I also drew his attention to Habib v Nationwide News Pty Ltd [2007] NSWCA 91 and to the passing reference to the fact that such a right was granted only in extraordinary circumstances referred to by the Court of Appeal in Lane v Reid [2005] NSWCA 198, where Mr Wheelhouse SC had submitted as much to the trial judge in those proceedings. [1147] Such a request was considered and rejected in Commonwealth of Australia v Davis Samuel Pty Ltd (No 6) [2009] ACTSC 12. Refshauge J, in litigation that sounds very similar to this (namely a very complex matter where there had been delay in submissions by a plaintiff who sought an extension of time), refused permission to defendants who wished to respond by way of a reply. Refshauge J noted at [19] that the effect of what the defendants sought was to overturn the ordinary rule. Although the proceedings before him were not a jury trial, Refshauge J considered that he should follow what was explained in Rivkin. [1148] An additional problem is that the request for a right of reply was raised for the first time in written submissions from the defendants. The precise issues to which the right of reply were not articulated until 3 September 2009. In The State of Western Australia v Colin Maxwell Watson (Supreme Court of Western Australia Full Court, Malcolm CJ, Brinsden & Seaman JJ, 4 November 1988, unreported), another case on the right of reply to which the defendants failed to refer, the Full Court of the Supreme Court of Western Australia rejected an application for a right of reply in personal injury proceedings where the trial had been expedited by reason of the plaintiff's life expectations being limited and his healthy vulnerable. The trial judge had refused the right of reply noting that it would delay publication of the reserved decision. [1149] When the matter came before me on 3 September 2009, Mr Wheelhouse SC pressed for leave in relation to the following: (a) Costs issues (paragraphs 1(a) to 1(b)); these issues can just as easily be dealt with in a separate judgment after the trial is over, but if the parties wish to deal with costs in the main judgment (subject to there being any subsequent evidence about offers of comprise), I do not have a problem with this being included; (b) Paragraphs 2.5.13-16 concerning comment of a stranger; (c) The rule in Browne v Dunn ; (d) Evidence concerning the witness Mr Dae Won Kang; (e) Paragraph 4.1 and the content of Appendix B, which it is asserted contains new evidence and contradicts the agreed position contained in exhibit 55; (f) The submissions on "charitable purpose". I note that it was only in submissions that the defendants raised the issue of the Charitable Fundraising Act 1991 (NSW); this was not a matter about which I had any evidence of any kind, including expert evidence, during the trial; (g) The "staples argument" where the plaintiff has referred in written submissions to Expenditure Resolutions having staple holes but no documents attached; (h) Paragraph 11.3.5 and "impeded"; (i) Paragraph 15.2 "to respond to the submissions on evidence"; (j) The whole of the submissions concerning imputation 41(d); (k) To respond to the submissions concerning misappropriation set out in paragraph 16.21 and 16.22; (l) To respond to evidentiary matters concerning expenditure items; (m) To respond to Table A at page 120; (n) To respond to paragraphs 16.4.6, 16.4.7, 16.4.8, 16.4.9, 16.4.10, 16.4.11 and 16.4.13 to "correct the plaintiff's misstatement of the evidence"; (o) The whole of Chapter 19 concerning imputation 43(a); (p) To clarify the defence (if necessary) concerning paragraph 20.3; (q) To comment upon the responsibility of the second defendant for the length of the trial. [1150] While Part 29 r 29.6 of the Uniform Civil Procedure Rules 2005 (NSW) gives the court a discretion in relation to address, this discretion must be exercised in accordance with longstanding principles of caution for the reasons explained by the High Court in Rivkin and by Refshauge J in Commonwealth of Australia v Davis Samuel Pty Ltd (No 6). The law on this matter has remained static for some time and the notes in Ritchies' practice dealing with reply at [29.6.30] are very similar if not identical to the notes in relation to Part 34 r 6.4 Supreme Court Rules. [1151] The remaining matters are all matters where the defendants are wanting to have what Mr Reynolds SC in Marsden called "another bite on the issues generally" (Marsden at [4]). Orders concerning a right of reply [1152] The second defendant's submissions having not dealt with a series of essential issues, I was effectively put into a position where I have had no alternative other than to give them a right of reply that they sought. I have imposed only two requirements: (a) first of all, I have granted a further right of reply by the plaintiff; and, (b) secondly, I asked Mr Wheelhouse SC to restrict the length of any submissions in reply and endeavour to ensure that there were restrictions placed by giving him a time limitation of 7 days. [1153] Even so, the difficulties caused by the failure of the fourth defendant to address a number of issues on damages (such as the six publications made by him upon which the first and third defendants were also joined as parties) meant that the submissions in this matter could not be completed until 6 November 2009 and it was not possible for me to reserve judgment until 12 November 2009. [1154] Having regard to the comments of the High Court in AON Risk Services Australia Limited v Australian National University, this is not a course to be encouraged. I have set out these issues in some detail because I am concerned that my having granted this right of reply will be seized upon by defendants in other proceedings. The need for finality in these proceedings was so great in my opinion as to override all other concerns and it is for that reason that I granted the second defendant's application, albeit with restrictions as to time for the provision of such a reply, and granting the leave to the plaintiff to reply in return. JUSTIFICATION – The imputations concerning the plaintiff's character (Imputations 40(a), 40(d), 40(h) and 40(k)) [1155] The imputations in these proceedings fall into two quite distinct categories. One group relates to the plaintiff's personality, while the other relates to the financial transactions and imputes conduct of incompetence, criminality or both. However, four imputations relate to his personal conduct and do not require a Briginshaw standard of proof, which is required only for those imputations which the parties agree in submissions convey an imputation of criminal conduct. These are: (a) imputation 40(a) – That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia. (b) imputation 40(d) - That the plaintiff impeded the working of the Committee through his self-righteous behaviour. (c) imputation 40(h) - That the plaintiff misused his position as President of the Committee to gain a directorship for himself. (d) imputation 40(k) - That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff. [1156] In relation to all of these imputations except imputation 40(h), an application was brought to lead, what was called "unspecified acts" of a general nature, and it is to this application I now turn. A preliminary point - evidence of unspecified acts [1157] In relation to the evidence going to the conduct specified in these four imputations, Mr Wheelhouse SC made a submission that he should not be required to lead evidence of actual occasions or specific conduct showing that the plaintiff was self-righteous or impeded the workings of the Committee. He submitted, relying upon Papakosmos v R (1990) 196 CLR 297 (Daily Transcript 2354, 24 March 2009, Day 56), that the defendants should be entitled to put it to the plaintiff in a general way that his conduct was, for example, self-righteous, rather than putting some specific act or statement and calling evidence to prove it occurred. He went on to explain: "Your Honour, the point of Papakosmas [sic] that I want to take you to, which has been followed up by Odgers , is the proposition that relevance is not discretionary - discretionary sections follow from relevance, which is s 135, obviously - and that there has to be powerful evidence to exclude 1321 evidence. But once the termination of relevance is made, that is to say the discretionary sections shouldn't be used to emasculate the primary scheme of the legislation which exists in ss 55 and 56… Papakosmas is, of course, in relation to out of court statements, but what that case is directed towards identifying the scheme of legislation that appears in ss 55, 56 and the other discretionary sections which relate to hearsay and other matters. It is directed to the proposition that the question of relevance is determined by looking at whether or not the evidence is probative, in the sense that it has a capacity to rationally affect the existence of a fact in issue. Here, as your Honour knows, we have a fact in issue by reason of two of the imputations - one is, the plaintiff impeded the work of the committee through his self-righteous behaviour, and the second is that the plaintiff's arrogant and self-righteous behaviour caused distress to committee staff…. That's to say, the plaintiff's arrogance and self-righteous behaviour causing distress to committee staff and the plaintiff impeded the work of the committee through his self-righteous behaviour. It's relevant to the nature of the conduct, so a fact in issue is the plaintiff's conduct and his conduct towards staff. We say, your Honour, it could rationally affect the assessment of the probability or the existence of a fact in issue, and we say this, your Honour - if one looks at Mr Lee's evidence, he says for a period of 12 months, which he identifies, he shared an office with the plaintiff. Over that period of 12 months, he observed him three or four times a week. In particular, he made observations about his demeanour, which is something different to words spoken. He observed conduct towards staff over that confined period. He says he sat in an office which was located near to where the plaintiff was. He says he doesn't know the names of the staff to whom the conversations were directed, which, your Honour, would not be an exclusionary matter. It would be better if he did know their names, but obviously people can observe - the ladies that stood and watched the beating at Sydney airport of bikie upon bikie didn't know the names of the bikies but they were able to identify an event." (Daily Transcript 2355-2357, 24 March 2009, Day 56) [1158] What was sought was to lead Mr Lee's opinion of the plaintiff's "demeanour" (as opposed to being able to repeat words spoken) in circumstances where he could not identify the staff members in question. The only regular paid female staff member between late 1998 and August 1999 (when they moved out of the premises) was Miss Chae, and as the members of the Committees were (except for the Cheer Squad members, who were out practising and alarming their neighbours) all male, Miss Chae's identity should not have been much of a secret. Mrs Park and the other women who worked in the office (Miss Lee and Miss Yoo) did not come until after this move to the new premises. [1159] The vice in such a submission is that material that is not even capable of amounting to hearsay, and which has not been put to the plaintiff, is asserted to be relevant and therefore cross the evidentiary threshold, leaving only section 135 to prevent it being allowed into evidence. [1160] The interaction between s 135 Evidence Act and Papakosmos was considered by the Court of Appeal in Ainsworth v Burden [2005] NSWCA 174, where the Court noted that a business record (otherwise admissible) should not have been excluded merely because it significantly impacted the opponent's case, and by Levine J in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1120 at [19] ff. The evidence in Marsden was evidence of information given to a doctor who was writing a medical report. The late Mr Marsden led evidence in his defamation trial about his medical and psychiatric problems; the psychiatrist was asked about Mr Marsden's mood. This kind of evidence is routinely admitted in this court (although often with the restriction that it is not proof of the truth of facts or events described to the doctor). [1161] However, in order to get to s 135, the evidence must be admissible in the first place. Mr Lee's opinions about the "demeanour" of the plaintiff over the period 1999 – 2000 would not be admissible because it constitutes both an opinion and conclusion and would be ruled inadmissible for these reasons. [1162] In the event that I have erred, and evidence of this kind is admissible, I would reject it pursuant to s 135 for the reasons so helpfully set out by Hamilton AJ in Mobileciti v Vodaphone Pty Ltd [2009] NSWSC 891 noting the generality of these allegations, their antiquity, the fact that (apart from the Mrs Park allegation) they were not put specifically to the plaintiff and that they were not specifically particularised. [1163] Given that there are very specific statements in the matters complained of, what is the reason why the defendants cannot lead evidence of the matters in the publication? It is not evidence that should have been hard for the defendants to lead; either these statements were made to the fourth and fifth defendants by persons at the time, or they are inventions. Each of the matters complained of sets out a series of statements made by the plaintiff which resulted in the imputation arising, These are referred to in detail in the section of this judgment on the defence of comment, where I have noted that these allegations are facts not truly stated because they were never put to the plaintiff, nor was any person called to say, for example, that the plaintiff shouted "I did not become a president by playing a card game", "who dares to nag the president for spending money", "if we get caught by auditors I will pay back the money later", "there was no one I could trust [ to appoint as treasurer]", or that he shouted, meaning 'how dare you", and quarrelled with people who suggested he stop his self-righteous behaviour (to quote some of the statements attributed to the plaintiff in the 1 March matter complained of which constitutes the first and major part of the fourth and fifth defendants' audit report). [1164] If even some of these statements were correct, they could have been proved by calling some of the persons concerned. However, not only were the statements and allegations in the matters complained of not put to the plaintiff, not even the fourth and fifth defendants gave evidence about the circumstances in which they received this information (which would have been possible in relation to the defence of qualified privilege). [1165] Why was this? A good example of the problems the defendants had once any attempt at particularity was made occurred at Daily Transcript 590 (25 September 2007, Day 18). Mr Wheelhouse put it to the plaintiff that he "shouted at and abused Mrs Park when she was the employee of the Committee" and that he did so in front of Mr Kang. Mr Wheelhouse said this incident occurred in July 2000. This was the one matter about which there was a degree of particularity (although it is not in any of the matters complained of). [1166] Since Mr Kang was introduced to the office staff on 11 August, went overseas on 28 August and effectively played no further part in the Committee thereafter, this puts a narrow time frame on the incident involving Mrs Park. However, Mr Kang was not asked any questions about this incident. The person who gave evidence about this incident was the seventh defendant (Daily Transcript 2170, 17 June 2008, Day 53). [1167] Mr Wheelhouse said that this incident occurred in July 2000 (Daily Transcript 777, 4 October 2008, Day 21). This is a date before either the seventh defendant or Mr Kang admit to involvement in the Committee, but this is a trifling matter. More importantly, the seventh defendant said that this incident occurred just after the plaintiff returned from Korea (i.e. 10 March 2000) when Mr Kang would not have been there. [1168] The allegation that was put to the plaintiff was that he used the word "ya" to Mrs Park. The translators explained that this was an informal way of saying "you', and was the equivalent of the French "tu" rather than the formal "vous". As insults go, this was a comparatively minor matter. [1169] The seventh defendant's version was different again, and centered on the plaintiff allegedly shoving an ashtray in his direction. [1170] Even if everything the seventh defendant says is true, this sounds like a trivial incident. However, there is good reason for not accepting it as being true. Mrs Park has not come forward to give evidence, there is considerable doubt about when and in front of whom this conversation occurred, there is no contemporaneous record (nor is it referred to in the matters complained of) and the seventh defendant's memory on this (and many other issues) is hazy. In addition, the plaintiff has provided a description of what occurred that I prefer. The plaintiff says, and I accept, that Mrs Park asked to be paid wages of $200 a week, which I note was the salary the bookkeepers were paid, and he had to explain that the Committee was in no position to pay volunteers. [1171] Having noted my reasons for rejection of the evidence of Mr Park and Mr Kang on this issue, I now consider the evidence led in relation to each of these imputations. Imputation 40(a) that the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia [1172] The elements the defendants must prove are: (a) the plaintiff managed the affairs of the Supporting Committee; (b) the manner in which he managed them brought shame; and (c) the shame was reflected on the Korean community throughout Australia. [1173] I note the evidence is that these publications were made in New South Wales only. The defendants have made no submissions as to the way that shame was brought on the Korean community of Australia, as the plaintiff's written submissions note at [10.1.4]. [1174] This imputation comes from the publication of 1 March 2001. What does the matter complained of say? [1175] The matter complained of uses words about shame as follows: (a) The word "shameful" occurs at line 45 where the matter complained of says "In a single word, 2000 Sydney Olympic Aus-Korean Supporting Committee is shameful to call [sic] a Pan-Aus-Korean Association". It goes on to assert that the plaintiff left positions for secretary-general and Treasurer vacant "even though it is against the Articles of Association", controlled all of the receipts and expenses by himself and did not even have a book to keep the records, and he shouted and quarrelled with people who suggested he should carry out his duties to manage the Committee properly. When the auditors asked the plaintiff "Why did you not have a treasurer?" he replied immediately "There was no one I could trust". The auditors concluded that the "tragedy of the Supporting Committee originated from appointing such a person as a head of the organisation". This is an oblique reference to the failure to elect the other candidate, namely the second defendant. (b) At lines 146 the matter complained of refers to 17 cheques not being met on presentation, saying the plaintiff "cannot get away from the moral responsibility of degradation [sic] of the credit rating of Korean Society, bringing disgrace to our community and ruining our dignity". (c) The word "shameful" also occurs at line 162 concerning the plaintiff's arrogance. In addition, it would be fair to say that most of the matter complained of referred to conduct by the plaintiff which could be characterised as shameful. [1176] The defendants are not limited to what appears in the matter complained of. They are entitled to, and did, particularise a number of other matters with greater specificity than the general matters the subject of the Papakosmos argument referred to above. However, as is noted below, the only issue in the matter complained of which was particularised as justification was the dishonouring of the cheques. The other matters, including the statements attributed to the plaintiff, were never put to him. [1177] The defendants provided only the scantiest of particulars prior to trial (see Exhibit 81). [1178] The defendants' final submissions on imputation 40(a) are: (a) The plaintiff was responsible for a large number of dishonoured cheques which brought shame on the Korean community in Australia; (b) The plaintiff's refusal to call a general meeting and co-operate with the auditors after the Olympic period also brought shame in the sense that it caused or at least encouraged a scandal within the community; (c) The plaintiff's failure to attend the opening of the Paralympics because he was in Korea attending the National Games; (d) The plaintiff wrote cash cheques, which he agreed was dishonourable, and he agreed that dishonourable behaviour by the chairman would bring shame on the Korean community; and (e) The truth of any other imputations would justify this imputation. Dishonoured cheques and cash cheques [1179] The evidence is clear that 22 cheques, all signed by the plaintiff, were dishonoured on a total of 25 occasions, for a figure of in excess of $16,000, and that most of these occurred over a short period in June 2000 at which time Mr Joo Yong Jo was the financial director. The plaintiff's explanation for eight of the dishonoured cheques in June 2000 was that the Committee was short of funds and borrowed $10,000 from Mr Joon Kim, but it was accidentally deposited into account 703860. By the time the money was transferred to the correct account, eight cheques had been dishonoured. The second defendant submits that the treasurer cannot be blamed because the plaintiff "still had an overall responsibility". Further, another 11 cheques were dishonoured over the next five months, the last being in November 2000. [1180] The second defendant points to "some external" evidence, in his submissions, of the shame caused, in that the Belmore RSL refused to accept Supporting Committee cheques after two cheques bounced, and this was the reason that cash cheques were drawn (Daily Transcript 281, 12 June 2001, Day 9). The second defendant submits that in drawing cash cheques, the plaintiff was behaving dishonourably. No-one from the Belmore RSL was called. [1181] The plaintiff said on a number of occasions that he could not work on the Committee full-time because he had a business to run (Daily Transcript 770, 4 October 2007, Day 21). He left the financial records and bookkeeping to the financial director Joo Yong Jo, the bookkeepers who were paid a salary, and to the persons appointed to supervise them, namely Mr Sung Joo Sung and the second defendant. [1182] The mere fact of the plaintiff's chairmanship, or that he signed the cheques returned "refer to drawer", does not establish what it was about his management that brought this about. It was not put to this plaintiff that he deliberately drew these cheques knowing there were insufficient funds. [1183] The fact that cheques for the Supporting Committee were dishonoured would, at best, cause the recipients to think less of the drawer of the cheque, namely the Supporting Committee, in that it was unable to pay its debts as and when they fell due, which the plaintiff points out was the factual situation in Aktas v Westpac Banking Corporation Ltd [2004] NSWSC 218. [1184] In Aktas, Levine J found imputations arising to this effect from the words "refer to drawer" and the fact of dishonour, but no imputation of shame or dishonesty by Mr Aktas or, for that matter, the ethnic community to which he belonged. [1185] As the plaintiff notes at paragraph 10.14, the defendants have not made any submission in relation to the third element of the imputation, namely that the shame was Australia-wide. There was no suggestion at the trial that the resultant damage was Australia-wide. There is no evidence that anyone outside Sydney, let alone New South Wales, ever knew about these matters; publication of the matters complained of occurred only in New South Wales, according to the submissions of both parties. [1186] As I have earlier found, the fact that the plaintiff considered it was inadvisable to draw cash cheques does not mean that it is so. The Supporting Committee was a voluntary organisation which was self-regulating in the sense that it was not set up to earn taxable income but to perform a channelling role for the Korean community. Its income consisted of cheques but many of its transactions (i.e. purchases from small businesses) were in cash. It did not have a bank card or an overdraft. It was necessary to have a petty cash system and to draw cheques in cash to carry out its functions. Refusal to call a meeting and co-operate with the fourth and fifth defendants [1187] The second basis for this claim is that the plaintiff's refusal to call a general meeting and co-operate with the auditors brought shame on the community. As to calling a meeting, not one member of the Committee was called to give evidence that they wanted, or expected, a meeting. The plaintiff held four meetings in February 2000 with the fourth and fifth defendants and put before them material which must have demonstrated many of the errors in their report, and he published a list of donors on 23 February 2001 which clearly contained all the names of donors discussed at those meetings. Until the fourth and fifth defendants accepted that the dispute could only be resolved by having a certified practising accountant audit the books, there was nothing more the plaintiff could do. [1188] The conduct of the plaintiff towards the fourth and fifth defendants cannot be described as dishonourable when the plaintiff reasonably perceived (especially after the 22 December article) that they were biased. The terms of Exhibit A specifically invite members of the Korean reading public to contact the auditors, which they did. Absence from the Paralympics opening ceremony [1189] A matter consistently relied upon for this and other imputations concerning the plaintiff's personal conduct is the absence of the plaintiff from the Paralympics opening ceremony. I also note my finding that the plaintiff's absence from the Paralympics opening ceremony so that he could attend the National Games in Korea was an essential part of his duties as Supporting Committee chairman as well as president of the Sports Council. He was entitled under the Constitution to make such plans and to appoint someone to carry out his duties during his absence, and I note the person who mainly performed these duties was the Honorary Chairman of the Committee. The Honorary Chairman was the second defendant. I see no reason for finding that the plaintiff asking the second defendant to perform tasks in his absence would bring shame on the Korean community in Australia, and I am surprised that the second defendant would make such a submission. Truth of other imputations [1190] Failure of the Supporting Committee, or of the plaintiff, to keep proper records, or to behave in an arrogant fashion, or to spend too much in restaurants, or to misappropriate public monies, even if true and known around Australia (which element the defendants cannot establish on the facts), would need to be seen in light of the whole of the plaintiff's conduct as chairman. This included being the person who chaired a committee which helped to arrange for North and South Korean teams to march together under the same peninsular flag, which organised home stay accommodation and transport for hundreds of Korean visitors and helped SOCOG by funding Korean-speaking volunteers. It also includes the indications from the Olympic teams and Korean government of their satisfaction with the Committee and his chairmanship. Whatever other findings there may be for other imputations, the one thing that cannot be said about the plaintiff is that the way he managed the affairs of the Supporting Committee brought shame on the Korean community in Australia. [1191] The seriousness of imputations is very much a matter of impression and a matter for the input of members of the community, which is one of the reasons why the consideration of these matters has been returned to the jury under the Defamation Act 2005. [1192] As I have indicated in the section of this judgment on damages, I regard this imputation as the most serious, given the context of the publication, namely the management of the affairs of a Committee which was seized with the task of ensuring the athletes from North and South Korea should march into the Olympics together. [1193] Which would members of the general public consider more important – the failure to keep accurate financial records and the financial honesty of the plaintiff, or managing the affairs of the Committee in such a way as to bring shame on the Korean community in Australia during the Olympics, and at a sensitive time in North/South Korean politics had reached the point where the two teams could march under the one flag? Having regard to evidence of witnesses in this trial (Daily Transcript 349, 14 June 2007, Day 11; Daily Transcript 966, 9 October 2007, Day 24; Daily Transcript 1790, 30 May 2008, Day 45; Daily Transcript 2146, 16 June 2008, Day 52) I am of the view that the sting of this imputation is so serious that it outweighs all the others. Conclusions concerning imputation 40(a) [1194] The defendants have not established the elements of this imputation. Even if the plaintiff mismanaged the accounts to the extent that they say he did, the unchallenged evidence is that the work of the Supporting Committee was viewed as a total success by the Korean Government and by many members of the Korean community. There is no evidence that the Korean community was shamed in Australia (or even, for that matter, in New South Wales or Sydney) by his conduct. Imputation 40(d) that the plaintiff impeded the working of the Committee through his self-righteous behaviour [1195] In order to establish the defence of justification, the defendant must establish: (a) the plaintiff's behaviour was self-righteous; (b) this self-righteous behaviour impeded; and (c) what it impeded was the working of the committee. [1196] The defendants submit that "self-righteous" is not capable of "rigid definition", and I shall first set out the particularization of this defence, to indicate the wide range of behaviour that has been put before me as constituting "self-righteous". [1197] The scanty nature of particulars prior to the trial is readily apparent from Exhibit 81. [1198] The evidence of how the plaintiff treated the many volunteers who participated in the Supporting Committee's activities is seen in the Minutes and Activities Diary. I particularly note the Supporting Committee press conferences, where the plaintiff played a low-key role and let people like the seventh defendant and Mr Won Kang speak, while not putting himself forward, and the social functions the Committee held, where other persons would make the speeches or perform the role of Master of Ceremonies. The plaintiff comes across, in all these contemporaneous records, as a hard working and sensible leader, one to whom disputes could be left by other committee members to resolve if they could not (such as the cheer squad problems, as the Minutes record). I now consider the matters raised by the defendants in submissions. Specific evidence: the plaintiff's conduct led to the resignation of three secretaries general [1199] While the defendants submit that the concept of "self-righteous" conduct is "not one capable of rigid definition", the expression "self-righteous" occurs five times in the matter complained of and copious examples of such conduct are given. The failure to be able to prove any of them, while not conclusive in any way (as other evidence may be led) is surprising. [1200] As the principal matter relied on is the resignation of these three staff it is necessary for me to repeat, although briefly, the factual circumstances concerning their tenure which is set out in my factual overview of the Committee. The resignation of staff – the seventh defendant [1201] The defendants submit that the plaintiff's conduct led to the resignation of the seventh defendant. [1202] Whatever complaint the plaintiff made to the seventh defendant in November 1998 was not sufficient to keep him away. He practically haunted the premises. He was still described as "Secretary General" on Expenditure Resolution 2-295 (30 March 1999) and Expenditure Resolution 298 (9 April) paying the personal phone bill of the "Secretary General" – Mr Cho's phone bill is attached) and a second phone bill was paid on 26 May 1999, reimbursing him for calls made in the course of his activities during this time. Mr Sung Joo Sung told the court the seventh defendant visited regularly during 1999. [1203] At the beginning of 2000 the seventh defendant was even more actively involved. On 17 January he was in the office sending documents to the Ministry for Culture and Tourism; on 8 February he was preparing documents for the Olympic Countdown (the Activities Diary describes him as a "Planning Official"). On 15 and 17 February he was in the office working on he Supporting Committee's rally for 18 March. On 29 February his office desk was being re-arranged for him – how can he have been staying away from the office if he had his own desk? On 16 March he was back in the office to check the preparation for the 18 March rally. He was back again on 29 March (to advise he could not attend a meeting) and 30 March. He was back again on 2 May. He was appointed Special Planning Committee Chairman in August and the Activities Diary refers to him on many occasions. He also attended press conferences and answered a question put to the Supporting Committee. [1204] The Second Defendant was a fixture in the Supporting Committee office, from the date of his appointment (8 May 1998) until his final request for payment in November 2000. Unlike the volunteers, he was paid not only for his phone bill and expenses but, on a regular basis, the sum of $200 per week, in cash. He gave very little assistance in terms of record-keeping in return. His failure to keep records and his refusal to help the plaintiff prepare the final accounts, about which he boasted on cross-examination, do not place him in a good light. If anything, the plaintiff was too deferential to him. I find he never accepted the plaintiff's attempts to replace him, and that he never really resigned at all. None of the plaintiff's behaviour towards him can constitute "self-righteous" conduct. Mr Sung Joo Sung [1205] Mr Sung Joo Sung was the deputy to the seventh defendant. He took over the role of Secretary General and started keeping accounts in February 1999; the first entry is 29 February. [1206] Mr Sung Joo Sung says he resigned as Secretary General at the end of 1999 and, in a rare reference to the Activities Diary, the second defendant in submissions notes Mr Sung Joo Sung is referred to as "Secretary General" after 6 January (submissions page 181 paragraph 8). His activities after that date are described in the Activities Diary on 14 February ("Vice Chairman Sung" is given $100 by Miss Chae as part of a sum of $200), 6 March ("Vice Chairman Sung Joo Sung"), 7 March ("Vice Chairman Sung Joo Sung") and 27 March ("Vice Chairman Sung Joo Sung"). He also comes in for a dinner. This is not a man who has resigned. He was replaced as Vice-Chairman and when he left he took the accounts book with him and refused to return it when asked. I do not find that the plaintiff's conduct towards him was self-righteous. Won Kang [1207] The circumstances in which Mr Kang resigned after a fight with the plaintiff because he believed he had been promised $300 a week are set out in more detail elsewhere in this judgment. I do not accept that the plaintiff's conduct was anything other than entirely reasonable. Conclusions concerning "self-righteous" conduct in relation to office bearers who were responsible for the finances [1208] The plaintiff (submissions, [11.2.9]) notes that the defendants, while insisting the plaintiff is responsible for financial affairs, even though "this function should have been delegated to the Secretary-General, Financial Director or Treasurer", at the same time characterise any attempt by him to supervise or control these activities as "self-righteous", and that these submissions are inconsistent with each other. [1209] In fact, even if the plaintiff did what the defendants claimed, he had done, he was entitled to be concerned about the way the persons to whom he had entrusted the financial affairs of the committee were going about their duties. [1210] The same is the case with Mr Dae Won Kang, who was responsible for the financial muddle concerning non-payment of the Uniting Church in relation to the cheerleading. [1211] In real terms, given that this was a committee of volunteers, there were very few changes of personnel. As the Minutes and Activities Diary reflect, it was a happy group of hardworking people, of whom the plaintiff was one. The seventh defendant's evidence about Mrs Park [1212] I have indicated, in relation to the previous imputation, that I reject the allegation that the plaintiff was rude to Mrs Park. It sounds a most trivial event. The fact that the defendants are driven to rely on such trivial events is indicative of the total lack of evidence to establish any element of this imputation. [1213] Mrs Park is recorded in the published accounts of the plaintiff as having received some payments. She is noted on the front cover of the Activities Diary as having been its keeper (although this note has clearly been added later, probably for the purpose of identification to the English-speaking lawyers preparing the case). She is referred to on a number of occasions for the duration of the Activities Diary, as late as October 2000. That would suggest that she was working for the Committee for a considerable period. This is inconsistent evidence with any claim of her being insulted by the plaintiff in a manner that impeded the Committee's work. Other staff resignations [1214] Claims that Miss Chae (bookkeeper from the beginning of the Committee until April 1999) and Miss Lee (her replacement until August) resigned because of the plaintiff's treatment were raised but never developed, as was a claim that Vice Chair Young Soo Song "expressed on the phone his desire to stop being involved with the Supporting Committee" in August 1999 (this is referred to at page 35 of the Activities Diary). If any of these persons resigned for that reason, it would be a simple matter to say what happened and when, and to call either the staff member or the persons in the office who observed what occurred. [1215] As I have noted elsewhere, the defendants have confused the name of Migi Lee because of misspelling, and seem to think she is several people, some of whom have resigned. A similar mistake is made in relation to Miss Chae. She is clearly the person Mr Sung Joo Sung refers to in his evidence as having resigned. [1216] The Minutes and Activities Diary give no indication of staff turnovers being anything other than what would be expected in a voluntary organisation where the hours are long and the work either unpaid or performed for a token allowance of around $200. Failure to hold meetings and keeping the cheque books [1217] I have set out in my findings of fact that the plaintiff held many meetings, distributed minutes and had a system to ensure all current members of the Committee received them. [1218] I do not accept that the plaintiff withheld the cheque books as alleged. At all times after the committee had an account, there were two cheque books, of which he had one. Further, while he was a director of CFM it would not have been appropriate for him to be giving a company cheque book to a person outside the corporate structure. Failure to attend the Paralympics Opening Ceremony [1219] It is not clear whether this claim is still pressed, but if so,I repeat my findings in relation to imputation 40(a) above. The plaintiff did not "impede" any Committee members or staff [1220] The defendants submit (written submissions paragraph 180) that the word "impede" raises a very low bar, and that it is only necessary to show "things would have worked better." [1221] To "impede" a person is to place an obstacle in their path to hinder them, or to block the progress or action of a person, according to the Macquarie Legal Dictionary (4th ed., 2005) and Concise Oxford Dictionary (11th ed., 2009). [1222] None of the facts set out in the matter complained of giving rise to this particular have been correctly stated, and many of the facts asserted in the publication have not been relied upon. That is not a bar to the leading of other evidence, but it is not impressive. [1223] There is no evidence from, for example, the Minutes or correspondence suggesting the Committee was deadlocked on any issue, or having disputes with SOCOG or Olympic bodies, or otherwise not able to carry out its job. To the contrary, as I set out in the opening paragraphs of this judgment, the uncontradicted evidence is that the Supporting Committee did a magnificent job to the satisfaction not only of the Korean community but the South Korean Government. [1224] The plaintiff's helpful written submissions point out that there is no evidence the Committee failed to discharged its functions, was deadlocked in decision-making or had arguments with the plaintiff and sought to replace him (written submissions [11.3.5]). In fact, the evidence in the Supporting Committee records is all to the contrary. An important part of this team of volunteers getting on well was, I find, the practice of having meals during or after committee meetings. Conclusions [1225] There is no evidence that the plaintiff impeded the working of the Supporting Committee by reason of any conduct. The defendants have failed to prove the truth of this imputation. Imputation 40(h): that the plaintiff misused his position as president of the Committee to gain a directorship for himself [1226] To establish the truth of this imputation, the defendants must establish that the plaintiff: (a) misused his position; (b) to gain a directorship for himself. [1227] The defendants, in their written submission, concede the case is "circumstantial" and assert that the simple expectation of reward, even if it did not involved financial remuneration, in circumstances where there was "excessive" expenditure for SK Securities personnel is enough (submissions, p.190). [1228] In order to establish the truth of this imputation the plaintiff must establish that he misused his position as president/chairman of the Supporting Committee, and that this misuse of his position caused him to obtain a directorship for himself. [1229] I should briefly note the history of the particularisation of this imputation. I should stress, as I have done elsewhere, that this is for historical purposes only, having regard to the specific case-management history of these proceedings and the problems caused by late particularisation of this defence. I repeat that the providing of particulars, and the changing of those particulars, is a procedural and not an evidentiary step. [1230] The second defendant's particulars of 12 February 2007 did not provide any particularisation in relation to this imputation, to which a defence of truth was not pleaded in its defence at that time. Nor did the fourth defendant. [1231] The further particulars of the second defendant provided on 30 May 2007 were a few lines long, and stated that the plaintiff: "caused excessive expenditure of the Committee's funds by entertaining SK Securities for the purpose of obtaining an appointment for himself as Honorary director of the [sic] that company. In total the plaintiff caused [sic] the sum of $27,400 to entertain the representatives of SK Securities". [1232] The $100,000 donation of SK was corporate sponsorship and they settled the terms on which they gave their sponsorship (which also included providing uniforms, cheersquad CDs and other items such as watches to give the North Korean team). The highlight was a gala dinner (called the SK Securities Night) which was to be given for between 600 - 700 members of the Korean community who had contributed to the Olympic effort. Although they later complained about the cost, the SK Securities Nights was considered so unexceptionable as committee expenditure at the time that even the defendants attended, as the fourth defendant admitted in his evidence (Daily Transcript 2573-2574, 26 March 2009, Day 58; Daily Transcript 2996, 6 April 2009, Day 64). [1233] I should first set out what the SK Securities corporate sponsorship entailed. The details are sketchy because the minutes of the meeting between SK and the Supporting Committee (which the Activities Diary author notes she spent four hours drawing up between 10.25 am and 2.45 pm on 17 July 2000 (Exhibit 52 p. 19) are missing, as are minutes of other meetings such as the minutes of the informal meeting between Samsung Electronics and the Supporting Committee which were received from Vice Chairman Jong Hyung Joo (Exhibit 52 p. 21). [1234] The plaintiff said in his evidence that SK wanted to donate $100,000 on the condition that $80,000 of it be given back to the company in tickets, gifts and the like. The Committee haggled with SK before coming down to the "agreed" expenses which are in ER 216. [1235] SK was in a superior bargaining position, and drove a hard bargain with the Supporting Committee, who were desperate for funds. [1236] I should first note the evidence in the Expenditure Resolutions for the SK payments. The SK Expenditure trail [1237] There are 27 Expenditure Resolutions for SK, two of which (Expenditure Resolutions 142/143 and 146/182) appear to be duplicates, and one (Expenditure Resolution 216 for $25,240) a summary, with a number of sums on the back. Expenditure Resolution 141 (for $25,479.05) contains a typographical error in the translation; the receipt from Burwood RSL gives the correct figure (see Expenditure Resolution 141 for $5,479.05). [1238] Of the remaining Expenditure Resolutions, the following have a note that no evidence is attached: Expenditure Resolution 88 Entertain SK $680 Expenditure Resolution 137 Press conference lunch $1,012 Expenditure Resolution 140 President Kim $2,353.50 Expenditure Resolution 150 Green Seafoods (cheer squad, SK) $2,177.50 Expenditure Resolution 176 Maponaru $665 Expenditure Resolution 207 Claim by third defendant (Korean Herald) for business cards cost $110 Expenditure Resolution 214 Olympic tickets purchased by seventh defendant $5,000 Expenditure Resolution 218 Byung Do Choi cheersquad, SK $485 [1239] In addition, a request for additional receipts for part of the sum is made concerning Expenditure Resolution 74 and Expenditure Resolution 231. These Expenditure Resolutions can be found in Exhibits 32, 33 and 34. [1240] Some of the Expenditure Resolutions for which "evidence required" is noted are included in a summary of the receipts in Expenditure Resolution 216, such as Expenditure Resolution 176 for Maponaru ($665) and Expenditure Resolution 137 for the press conference. There are also double entries for Expenditure Resolutions for which there is no "evidence required" noted, such as the payments of $600 and $661 to Vice President Kim (144,146 and 182). [1241] Two of the persons who have not provided a receipt are the third defendant, who claimed for the cost of business cards, and the seventh defendant, who bought Olympic tickets. [1242] Most of the Expenditure Resolutions have receipts attached, but more importantly, they show the involvement of the whole committee (and the third defendant) in the SK activities. This was not a "one man show", to use the description of the fourth and fifth defendants in the matter complained of 1 March 2001. [1243] The plaintiff was cross-examined at length about what turned out to be a typographical error by the translator in one Expenditure Resolution, as Mr Dibb pointed out at Daily Transcript 398 (15 June 2007, Day 12). The translation for ER 141 says $25,479.05 was spent at the Burwood RSL but the original receipt which is attached to ER 32 says $5479.05. This allegation was, however, raised again during the cross-examination (Daily Transcript 1192-1193, 15 October 2007, Day 27). [1244] The defendants submit that the plaintiff did this deal with SK to obtain a directorship for himself, and that this was a misuse of his position. [1245] The plaintiff submits (submissions, p.103) that misuse of the plaintiff's position must involve detriment to the Committee. I do not agree. It is possible to misuse one's position to obtain a personal benefit without damaging the organisation in which the position is held. [1246] The problem is that, if there is a detriment, it must be identified in order to be a "misuse". This has not occurred. The evidence in this case was that the donation of $100,000 from SK Securities was accompanied by a corresponding obligation on the part of the Supporting Committee to spend an agreed part of that sum on the directors who were visiting Australia at or about the time of the Olympics (Daily Transcript 119, 6 June 2007, Day 6; Daily Transcript 361, 14 June 2007, Day 11; Exhibit 70, Tab 27). [1247] What was agreed to in the meeting between SK Securities and members of the Supporting Committee that is referred to in the Activities Diary? The letter from SK Securities to the fourth and fifth defendants after the matters complained of were published (Exhibit 70) corroborates an agreement having been entered into for money to be spent in agreed ways, and makes it clear that the terms of the agreement were known "from the beginning" by other committee members. This is in turn corroborated by the Monthly Minutes of Meeting for August 2000, at which the SK Securities donation was also discussed. [1248] What was the money spent on? Mr Cha explained in cross-examination (Daily Transcript 366-367, 14 June 2007, Day 11) that there was a gala dinner for 600 to 700 Korean community members, and that since SK Securities was paying for this, it was called the SK Securities Night. Expenditure Resolution 141 authorized expenditure of $25,479. This sum was paid to a series of institutions including Burwood RSL, which was paid $5,479, and there were other items set out in the Expenditure Resolution which was signed by Committee members. [1249] What was wrong with having a gala dinner for members of the Korean community who had worked so hard to make the Olympics a success? The defendants' submissions appear to suggest that the beneficiary of the evening was SK Securities. All I know about this company is that it operates in Korea and has no place of business in Australia. [1250] It is common practice for businesses who give money to have events or dinners named after the company. I note from the Minutes that there were discussions between SOCOG and the Supporting Committee about Korean Olympic cheer squad being allowed to have the SK logo on their uniform (Exhibit 51 page 1). [1251] Many large companies who gave money to the Olympics had their name featured in Olympic advertising. Corporations such as McDonalds or Coca Cola did so. The fact that SK Securities was prepared to donate $100,000 on this condition, or in return for gifts, was not improper. [1252] ER 216 sets out $25,240 "SK Entertainment expenses settled in executives' meeting" with a list of items the Supporting Committee agreed to pay (I note this resolution does not have "evidence required" appended to it. [1253] The Supporting Committee were not in much of a bargaining position to be able to argue with any conditions imposed on this donation by SK Securities. At the time the donation was received, the Supporting Committee's financial position was poor. Apart from the funds received from SK Securities on 31 July 2000, it had about $10,000 in the bank, according to the financial information circulated at the August 2000 committee meeting, and had had to borrow money from Vice President Paek ($15,000). In addition the plaintiff had borrowed $10,000 through CFM to lend to the Supporting Committee only the month before, and so parlous was their financial position that when Finance Director Joo Yong Jo accidentally paid it into the wrong account, eight of the Supporting Committee cheques were not met on presentation, including several to the Belmore RSL. [1254] In addition, SK's donation was not limited to $100,000. The Activities Diary refers to the other gifts they provided; they also donated watches which were given to the North Korean teams, uniforms, CDs and promotional material. The Activities Diary notes there were discussions with SOCOG about having the SK logo on the athletes' uniforms. They were a substantial benefactor and they were entitled to dictate the terms on which they would donate this large sum. This is what sports sponsorship is about. The fourth and fifth defendant's surmise that most of the whole $100,000 should be donated without deductions or conditions to the Supporting Committee was naïve. [1255] SK was also entitled to assume that publicity would be given to this generous gesture and this included a function for the Korean press council in the form of a media conference and lunch to announce the gift, which cost $1,012 (cheque no. 111402). As the plaintiff pointed out at Daily Transcript 368-369 (14 June 2007, Day 11), this was a media conference attended by the Australian Korean press representatives, which I note would have included the four newspapers who went on to publish the matters complained of. Inconsistently the fourth and fifth defendants marked the Expenditure Resolution for this expense (ER 137) as "Evidence required" while not marking ER 216, which summarised many of the expenses, including this one, with the same note. [1256] The committee, in accordance with Expenditure Resolution 216, picked up the cost of a dinner for the SK directors with the Korean Consul's Security Division and the Sports Council (which, it must be remembered, is a body funded by the Korean Government) which occurred that evening (Daily Transcript 369 and 382, 14 June 2007, Day 11; Daily Transcript 1208-1209, 15 October 2007, Day 27). Again, it is asserted that this is excessive expenditure. Mr Cha was somewhat reticent about this dinner, which perhaps involved discussing matters of sensitivity, given the presence of the consulate security section. The fourth and fifth defendants did not raise this issue at the time, perhaps for the same reason. [1257] SK's directors asked for a number of gifts for themselves. This included a free trip to Brisbane. One of the Supporting Committee members drove the SK president to Brisbane in his car and then claimed the cost of the petrol. The plaintiff commented that he was able to arrange this cheaply because of this assistance (Daily Transcript 361, 14 June 2007, Day 11). In addition, the Supporting Committee obtained some gifts from Green Seafood, and as indicated elsewhere these were provided to the Supporting Committee at cost. There were no first-class flights, expensive hotels or other excesses. They were given $5,000 worth of Olympic tickets; the seventh defendant prepared Expenditure Resolution 214 for this gift. [1258] The defendants submit, however, that as this was "publicly donated money" (Daily Transcript 370, 14 June 2007, Day 11) it was wrong to spend it on the persons who donated it, even to the extent of permitting them to name an evening SK paid for, and that it was wrong to use this money to pay for items in cash. [1259] I do not accept this submission. This was not "publicly donated money". It was a corporate donation made by a foreign corporation, to the Supporting Committee, but on contractually agreed terms. It was more like a sponsorship deal than a donation. The Supporting Committee met and discussed those terms at length with each other, with the consul and with SK before accepting them. It was always a joint Supporting Committee project (as the participation of the other directors throughout showed, not to mention the third defendant, the Korean Herald), and not a frolic of the plaintiff's own. [1260] I do not propose to go through each and every item of expenditure in relation to SK Securities. This judgment is long enough as it is. I have dealt with the matters that the defendants thought compelling enough to put to the plaintiff in cross-examination. Most of the expenditure is supported by receipts and clearly relates to SK employees' gifts and outings. [1261] The plaintiff obtained gifts and a trip for SK employees at a discount by paying cash. He paid for meals in restaurants by cash. As I have noted elsewhere, the Supporting Committee did not have a credit card, and most restaurants will not take cheques, so he had no alternative but to pay cash for meals, so this repeated assertion that the Supporting Committee should have written cheques to restaurants for meals is misconceived. [1262] Finally, and most importantly, the plaintiff was not given any directorship, not even an honorary one. He was given a plaque as a gift at the big Korean community SK dinner, which described him as an honorary director. It was just a plaque to hang on the wall. No company searches were tendered to show the plaintiff was given any position of the kind, honorary or otherwise. The claims in the submissions that the plaintiff agreed he had received an honorary directorship at Daily Transcript 118 (6 June 2007, Day 6; see also Daily Transcript 377, 14 June 2007, Day 11) are misconceived. A person is not a company director, even in an honorary capacity, unless they are appointed by the company in accordance with the appropriate legislative regime. The plaque, Exhibit MM, is just a plaque of a congratulatory kind. [1263] The plaintiff said that two executives of SK Securities, Kim Yong So and Kim Yong Chee, were sacked because of their involvement with the Supporting Committee (Daily Transcript 378, 14 June 2007, Day 11; defendants' submissions p.191). The letter from SK Securities (Exhibit 70, Tab 27) makes no such statement. If it is critical of anyone, it is the fourth and fifth defendants for their conduct in making a fuss over matters which were considered to be of no concern by SK Securities. Nevertheless the defendants rely upon this as evidence of the wrongdoing of the plaintiff being recognized and accepted in Korea, perhaps in much the same way that the Korean Government responded by withdrawing the offer to provide funding of $100,000 to the Korean Sports Council, which the first matter complained of (22 January 2001) reports with such relish at lines 42-48 (noting it was "pretty tragic news" to the plaintiff). [1264] Neither of these events is proof of the plaintiff's wrongdoing. They are proof of the exceptionally severe consequences of this unfortunate series of publications, not only to the plaintiff, but to many other persons who by expressly or implication the defendants say participated in his wrongdoing. This is, however, irrelevant to the issues before me for determination. Conclusions [1265] The defendants have: (a) failed to establish that the plaintiff was given a directorship (even an honorary one), as opposed to a plaque of thanks; (b) failed to establish that this was obtained by the plaintiff misusing his position; (c) failed to establish that there was any expectation of reward on the part of the plaintiff personally, as opposed to the Supporting Committee, in that the donation was to the Supporting Committee; (d) failed to establish wrongdoing by the plaintiff in the manner in which the money provided by SK Securities was dispensed; and (e) the evidence is in fact that the Supporting Committee greatly benefited from this injection of funds at an important time of its life, just before the Olympic Games commenced. Imputation 40(k): that the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff [1266] The particulars for this imputation, and the defendants' submissions (chapter 14) have always been very scanty. The particulars of justification served before trial referred to 12 February 2007 refer to Won Kang's resignation; the particulars added after the trial commenced added Mr Sung Joo Sung, the plaintiff's "treatment" of the seventh defendant, Mrs Park and "various other Committee staff members to their observation". The defendants' written one-paragraph submissions (in chapter 14) simply repeat these names and say there is "sufficient evidence" to say that since all three secretaries general resigned, this is "evidence of distress". In addition, it is asserted that the one piece of evidence of the plaintiff "shouting" at Mrs Park is "sufficient to establish, as a matter of common sense, that distress was caused." None of the matters referred to in the matter complained of have been particularised. [1267] Who were the "staff" members? The defendants' dramatis personae (written submissions, chapter 1.4) wrongly splits Miss Migi Lee (who kept the Activities Diary with Miss Chae and Mrs Ok Ja Park) into three persons named "Mege Ei", "Mee Kee Lee" and "Jiong Lee". Miss Chae (called Huon Song Choi in the dramatis personae) and Miss Yoo were the other two paid bookkeepers. Miss Chae was with the Committee from the beginning until April 2000; her replacement, Migi Lee, left shortly after her graduation and she was replaced by Miss Sarah Yoo, who remained until the end. Mrs Park, who kept the Activities Diary, is referred to as remaining with the Committee as late as 5 October 2000, according to the Activities Diary (this was the last entry I could find for her). Considering the low pay and long hours, these are loyal employees, and there is nothing in the Activities Diary to suggest an unhappy office. [1268] Similarly, the executive of the Supporting Committee had very few changes throughout its lifetime. The defendants' dramatis personae does not list these people, but their names can readily be ascertained from the list of executive members which are set out in this judgment. Nor do the Minutes reflect Committee deadlocks, or disputes, or fights. On one occasion there is discussion about dismissing one of the volunteers; the Committee discusses it, and decides to refer the matter to the plaintiff for decision (there is a pattern of this conduct in the minutes, as on another occasion when the Cheer Squad could not resolve a problem they are recorded as announcing they will leave the matter to the plaintiff to decide, a sign that the plaintiff is a good leader and trusted by his fellow volunteers). [1269] To establish the truth of this imputation the defendants need to prove is that: (a) the plaintiff's behaviour was arrogant; (b) the plaintiff's behaviour was self-righteous, and (c) such behaviour caused distress to the staff of the Supporting Committee. [1270] The plaintiff in submissions draws my attention to the definition of "arrogant" in The Macquarie Dictionary (4th ed., 2005) as "making unwarrantable claims or pretensions to superior importance or rights; overbearingly assuming; insolently proud" and to the definition in the Concise Oxford English Dictionary (11th ed., 2009) as "having an exaggerated sense of one's own importance and abilities". [1271] I note the definition of "self-righteous" has been set out in relation to imputation 40(d). [1272] The mere fact that one or more persons have resigned does not establish that the plaintiff is either arrogant or self-righteous, or that the plaintiff's conduct caused the resignation. [1273] There was plenty of scope for a person elected to the position of chairman to be arrogant, to seize the microphone at public functions, or to be the centre of attention at social functions. All of the objective contemporaneous evidence goes against this. The few details we have of press conferences (see the notes provided in the Minutes in Exhibit 51) show the plaintiff taking a low profile, and it is Mr Won Kang and the seventh defendant who volunteer statements. The Activities Diary refers to other members of the Committee being the Master of Ceremonies at rallies and other functions. [1274] Against this there is the evidence of the seventh defendant, Mr Sung Joo Sung and Mr Won Kang, the first two of whom supervised the bookkeepers and are responsible for the inadequate recording of financial transactions. [1275] The seventh defendant considered the plaintiff was not entitled to be critical of him because of what he called "the respect difference in their ages (Daily Transcript 2199, 17 June 2008). He considered the plaintiff was "self-righteous" but did not say this caused him (or anyone else) was distressed by this, nor did he call him arrogant. [1276] Although the defendants assert the seventh defendant resigned from the Supporting Committee, all the evidence points to his determination to remain involved. He remained continuously involved with the Supporting Committee for the whole of its life, according not only to contemporaneous records but also to other witnesses called by the defendant, such as Mr Sung Joo Sung. [1277] The seventh defendant was angry with the plaintiff for challenging him about his performance as Secretary-General. Since this seems to have involved the seventh defendant keeping no financial records, the plaintiff's criticisms were justified. The seventh defendant was not entitled to take refuge behind his seniority. This dispute shows how difficult it was for the plaintiff to run a volunteer committee where persons such as the seventh defendant expected to be able to be above criticism. [1278] The circumstances in which the plaintiff spoke to Mr Sung Joo Sung about putting a loan from Vice President Paek into his own account, and then skimming off $1,000 for undisclosed "expenses", were entirely justified, as were the circumstances in which he was not prepared to pay Mr Won Kang an allowance of $300 per week. [1279] The evidence relied on by the defendants to establish the truth of this imputation are at odds with their submissions concerning justification of the imputations concerning the plaintiff's role in financial management. He was wrong for speaking to these Committee members for conduct of the kind for which the plaintiff is criticised, he is blamed for their poor record keeping and he was wrong to be critical of their conduct. [1280] Mrs Ok Ja Park seems, from the Activities Diary, to have been a hard-working, loyal, long-term volunteer. She was not called to give evidence. The inconsistent evidence about who was present when these events occurred is set out in my discussion of imputation 40(d). I am not satisfied the plaintiff did shout at or abuse her. He said they had a discussion about a weekly allowance of $200 that she wanted. I note from Exhibit A she was in fact paid a small sum for her volunteer work, and since she remained until the end, this must have been a matter the plaintiff was able to resolve with her. Conclusions concerning imputation 40(k) [1281] The second and fourth defendant have not established that the plaintiff's behaviour was arrogant and/or self-righteous, or that any such behaviour caused distress to the staff of the Supporting Committee. The second and fourth defendants have failed to establish the truth of this imputation. Conclusions concerning imputations relating to the plaintiff's character [1282] I have considered these imputations 40(a), 40(d), 40(h) and 40(k) first because these imputations each relate more to the plaintiff's character than to his ability to keep financial records, or to supervise those whom he has appointed to do so. [1283] In practical terms, no matter what the structure of the committee, if the plaintiff was the kind of self-righteous bully he is asserted to be, his leadership style could be blamed for record-keeping problems the committee had. [1284] The Activities Diary, Minutes and evidence of witnesses covering the committee's other (non-financial) matters are unanimous in the positive picture it paints of the plaintiff. He does not hog the camera at press conferences, or provoke fights during committee meetings. The defendants did not attempt to prove the actual truth of most, if not all, of the conduct referred to in the matters complained of. The persons who complain of his conduct are persons whose poor record-keeping is what got the committee into difficulties. [1285] Nor was the plaintiff's response to the fourth and fifth defendant unreasonable. He met them and gave them documents and little more than a week later a highly unflattering interim report was given, not to him but to the newspapers. The auditors continued to demand financial documents as opposed to identifying problem areas (such as the plaintiff's business trip expenses to Korea). They refused his requests to let him see the interim report and their response to his request for a CPA to be appointed was to threaten to resign. [1286] The plaintiff's personal conduct was in no way responsible for any difficulties in the keeping of accounts. This is a finding of fact which is relevant to the "financial" imputations, namely imputations concerning failure to keep prior records, failure to account and misappropriation. The financial imputations [1287] I now consider the remaining imputations, namely: · Imputation 36(d) – That the plaintiff managed the affairs of the Committee so incompetently that, while he was the Committee's president, $102,000 of the Committee's money was spent without proper documentation being kept. · Imputation 38(b) – That the plaintiff managed the affairs of the Committee so incompetently that $120,000 of the Committee's money was spent on things on which it should not have been spent. · Imputation 39(a) – That the plaintiff failed to account for approximately $56,000 of money donated to the Committee. · Imputation 39(c) – That the plaintiff failed in his duty as President to ensure the Committee kept proper accounts. · Imputation 40(e) – That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs. · Imputation 41(b) – That there were reasonable grounds for the auditors to suspect the plaintiff of making a false claim for business expenses of $9121.40. · Imputation 41(d) – That the plaintiff misappropriated to his own use money belonging to the Committee. · Imputation 42(d) – That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself. · Imputation 43(a) – That the plaintiff misappropriated public money. A preliminary issue: Mr Finney's reports [1288] The defendants relied upon three reports of Mr Finney, all of which were served after my peremptory order and, in the case of the second and third reports, after the trial commenced and after the date for provision of particulars by the second defendant (29 May 2007). [1289] The reports are deficient in a number of respects: (a) He was not given many relevant documents : Mr Finney was retained on 9 February 2007 and provided with four binders of documents, which are exhibited to his reports. Some of those documents were removed by the solicitors for the second defendant, according to their letter of 9 February 2007, on the basis that they would "not be of assistance" to Mr Finney. Examination of the four folders produced shows that Mr Finney was not given the lists of office bearers showing there was a financial controller, Minutes of Meeting, Activities Diary, CFM cheque butts and records, Mr Sung Joo Sung's workbook or the plaintiff's green book and only partial extracts of the matters complained of. Some of these (eg the Activities Book, which he lists as having) have been taken out, while the others were not given to him. He was given two folders of Expenditure Resolutions, one folder of bank statements and the auditors' translated documents. Not surprisingly, Mr Finney's reports, especially the two supplementary reports, contain many complaints that he does not have enough information. Where an expert has been misinformed, or relevant facts omitted, the value of his conclusions is diminished: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [68]. (b) His instructions were misconceived : The instructions to Mr Finney were not to carry out the audit of the accounts or to determine whether or not monies were misappropriated. He was instead asked to say whether seven of the imputations were "true". A number of these imputations were misstated eg "the plaintiff spent $120,000 improperly" (page 2 of Gray & Perkins' letter), or, worse, imaginary (e.g. "there were reasonable grounds for the auditors and delegates of the Committee to suspect the Plaintiff of having misappropriated public money", pages 2-3 of Gray & Perkins letter). The expert should not usurp the function of the trier of fact: Makita (Australia) Pty Ltd v Sprowles at [87]; Clark v Ryan (1960) 103 CLR 486 at 491 per Dixon J. Although Mr Finney attempted to say that there was insufficient documentation to enable him to carry out an audit, he conceded (Daily Transcript 3155, 8 April 2009, Day 66) that he had not done this because he had not been asked to do so. What he has done is to restate the lists of missing donations, expenses for which there are no cheque requisitions and the like. However, the role of forensic accountants is to assist the court to understand the financial information, using his skills to organise, display and communicate financial information: ASIC v Rich [2005] NSWSC 149 at [278] per Austin J. The obligation of an expert is to assist the court. (c) Lack of information about the committee set-up: Mr Finney readily acknowledged (Daily Transcript 3194, 8 April 2009, Day 66) he had little information or understanding of this. (d) Failure to pick up errors : Mr Finney failed to pick up a number of errors made by the auditors: (i) In particular, in relation to imputation 41(b), he failed to appreciate that the plaintiff had not, in fact, made two claims for his 15 February trip to Korea. The plaintiff had put in a cheque requisition, but there were insufficient funds, so the requisition was never processed. When there were further funds, he put in another cheque requisition, but he was only paid the sum he claimed. The reason Mr Finney did not pick this up is because he did not audit the accounts. Had he done so, he would have picked up immediately that in February 2000 there were insufficient funds to pay the plaintiff. The payment to the plaintiff was in instalments, paid when the Committee had funds to give him (Daily Transcript 3170ff, 8 April 2009, Day 66); (ii) The person who typed the figures made some transcription errors which Mr Finney did not pick up. For example, item 45 in the list of omitted donations is noted at $500 (Exhibit 70, Tab 8). However, comparison of these figures with the Korean original shows that the amount the Antioch Church donated was $100, not $500. Donation 41 for $1,105 has not been translated at all; (iii) Another, more serious error is that he failed to pick up a typographical error by the Korean Society secretary recording the $5,000 donated by the second defendant (who was his client) as $500. This meant that the claim that this $5,000 was unaccounted for was simply wrong (Daily Transcript 2782, 1 April 2009, Day 61). (e) Hasty preparation : Mr Finney's first report is very short and does not expose his reasoning. His second and third reports essentially state that he requires more information. He was retained on 7 February and not provided with many financial records, as they were still being translated. (f) Failure to appreciate the nature and purpose of the Committee : Mr Finney said very frankly in his evidence that he did not understand the structure of the Committee (Daily Transcript 3194, 8 April 2009, Day 66). In those circumstances, it was hard to see how it was that he blamed the plaintiff rather than the bookkeeper and financial controller. He appears not to have inquired about whether there was a bookkeeper or financial controller despite seeing payments being made to the bookkeeper and references to the financial controller in the documents. (g) Failure to appreciate cultural factors : Mr Finney did not understand the significance of the role of "custom" in the Constitution. He thought that it referred to Australian custom. He did not expose his reasoning for the assumption that this reference to "custom" meant imposing Australian accounting procedures to a Constitution which he considered contained minimal accounting procedures. Conclusions concerning Mr Finney's Report [1290] The fourth and fifth defendants prepared interim reports giving figures for receipts and outgoings, and the plaintiff published a revised list of donations on 23 February 2001 (Exhibit 73) or Mr Young Jin Min's report (Exhibit 59). Mr Finney's report does not refer to any of these. It is a report on an audit which does not refer to the competing claims of both sides as to income and outgoings. It is a report setting out the reasons for the seven imputations he refers to (which are not all the same as those in these proceedings) are true, which is impermissible for the reasons explained by Dixon CJ in Clark v Ryan at 491. It is of limited assistance to me. [1291] Having noted these preliminary matters, I now consider the defence of justification to imputation 36(d). Imputation 36(d): That the plaintiff managed the affairs of the Committee so incompetently that, while he was the Committee's president, $102,000 of the Committee's money was spent without proper documentation being kept. [1292] This imputation arises from the publication of 26 January 2001. [1293] To establish the truth of this imputation, the defendants must demonstrate that: (a) The plaintiff managed the affairs of the Supporting Committee; (b) so incompetently; (c) that $102,000 of the Committee funds were spent; (d) without proper documentation; (e) as a result. [1294] This is an imputation of incompetence and I have not had regard to the onus of proof at the Briginshaw standard. The ordinary civil onus of proof applies. [1295] To understand how the case had been presented, it is necessary to list the matters that were particularised prior to and during the trial. [1296] The second defendant did not provide any particulars for this imputation in the letter of particulars dated 12 February 2007, as it was not an imputation to which truth was pleaded. The particulars dated 30 May 2007 assert the plaintiff dominated and controlled the Committee and that no one was appointed to do the accounting. [1297] I briefly summarise the evidence of system. When the plaintiff gave evidence, he said that he had an overall supervising role (Daily Transcript 167-168, 7 June 2007, Day 7) in accordance with the Constitution (Exhibit JJ). He said that the role of the financial director was occupied by Mr Joo Yong Jo between December 1999 and the end of the Committee's life and that the books were kept by the seventh defendant (with Mr Sung Joo Sung as his assistant), Mr Sung Joo Sung and then the seventh defendant again (Daily Transcript 75, 4 June 2007, Day 4), with the assistance of paid bookkeepers (Miss Chae, Miss Migi Lee and Miss Yoo in succession – called "head official"). The plaintiff said he expected the "secretary-general" and "head official" to keep proper documentation for expenses (Daily Transcript 770, 4 October 2007, Day 21). Is proof of incompetence necessary? [1298] A preliminary matter I should deal with is the submission by the defendant that it is not necessary for the second defendant to establish that the plaintiff was incompetent (submissions, pp.74-75). [1299] The second defendant submits it is necessary only to establish that the plaintiff managed the Supporting Committee and that more than $102,000.00 were spent without both an expenditure resolution and a receipt. In this regard the defendants point to exhibit 54, 55 and 58 which establish that there was expenditure of $58,560.21 without an expenditure resolution and expenditure of $239,396.06 without a verifying receipt (written submissions, chapter 6, paragraphs 74-75). The second defendant submits that I should read this imputation in a "contextual" way to mean that the question of "proper documentation" should be defined in this way. [1300] For reasons I have set out in more detail below, I do not accept that "proper documentation" can be confined in this manner. [1301] The first issue is the plaintiff's management of the affairs of the Supporting Committee. [1302] I have set out in Parts 1 and 2 of this judgment my findings of fact concerning the plaintiff's arrangements for management of finance by the Committee. It was the plaintiff's job, as Supporting Committee chairman, to manage the Committee. The question is whether or not those arrangements were competent. It was the plaintiff's job as Supporting Committee chairman to manage the Committee by instituting and maintaining appropriate systems of record-keeping. Accordingly, I shall now examine what arrangements the plaintiff made to set up a system of record keeping. What arrangements did the plaintiff make? [1303] The following are relevant issues in relation to the plaintiff's management of the committee. (a) There was a bookkeeper and a financial director at all times, and the financial directors were replaced when they did not do their job [1304] I have found that at all times between May 1998 and November 2000, there were persons appointed to undertake the accounting and management of the Committee's finances. The plaintiff did not take control of these finances himself. As well as appointing volunteers to supervise the paid bookkeepers, he set up systems which were designed to ensure proper records were kept. (b) The Committee was regularly informed and consulted about significant donations and plans [1305] Those Minutes of Meeting, which have been produced (Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300) indicate that the Committee was informed and consulted about significant donations such as the SK Securities' donation. The defendants do not identify significant donations that should have been discussed by the Supporting Committee. [1306] Issues discussed at the regular monthly Committee meeting and meetings with the Sports Council included: (a) Business plans – although none of these has survived the audit, there were business plans drawn up and redrafted after Committee discussion. A Business Plan for the Paralympics was submitted to the Consulate. (b) Financial issues – fundraising and funds are regularly referred to in the Minutes and monthly reports for February to May 2000 were presented. There was provision for reporting by the financial director at monthly meetings throughout 2000 when nearly all of the money donated was raised. (c) He set up an Expenditure Resolution system similar to the system used in the Korean Sports Council [1307] Some of the Expenditure Resolutions actually say "Korean Sports Council" on the top, this was presumably the system in used for the Korean Sports Council. As the Korean Sports Council was an incorporated association, the methods it used to process payments would be acceptable for an unincorporated association which did not have the same reporting obligations as the Korean Sports Council. [1308] The second defendant in his submissions in reply (paragraph 45 page 12) submits that the evidence is "overwhelming" that the plaintiff did know or ought to have known about the lack of documentation because he signed the majority of the expenditure resolutions and the majority of cheques drawn, and in particular that much of the earlier expenditure was paid by cheque drawn on his company, CFM Engineering. [1309] This raises the question of what is "proper documentation". The phrase "without proper documentation" when used in criminal proceedings (Tasmania v Lee [2006] TASSC 58) or in civil proceedings (Urban Traders Pty Ltd v Proceris Pty Ltd [2005] NSWSC 1192) or in migration matters (e.g. Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; (1997) 151 ALR 505) generally means a transaction entered into where there is either no documentation at all or where the circumstances of the transaction give rise to suspicion. [1310] In the ordinary course of events, companies routinely authorise the payment of staff, pay overheads such as rent or items where the value of these documents is in itself a receipt, such as Olympic tickets or stamps. While the matter complained of asserted that "more than $102,000 had been spent without an expenditure resolution and a receipt" (line 28), this was itself a misconception. [1311] The first thing that is necessary is for the plaintiff to establish that notwithstanding there being a financial director, a person in charge of the bookkeeping and a bookkeeper, his management of the Supporting Committee was so incompetent that as a result $102,000 of the Committee's money was spent without proper documentation being kept. [1312] What the material establishes is that the plaintiff discharged his role as head official in relation to "taking charge of general office administration" (Exhibit JJ Article 7) by appointing these persons, who were by reason of their experience in other Korean community organisations reasonably able to be expected to possess the necessary skills to prepare financial records in accordance with the expectations of the Korean community. This was a voluntary organisation with no obligation to report its financial affairs other than to itself. It was an unincorporated body which was not earning money. [1313] I am satisfied that the plaintiff discharged his role as head official by appointing persons to these positions for the duration of the Committee's lifetime. [1314] The defendants in submissions in reply referred to K L Fletcher "The Law relating to Non-Profit Associations in Australia and New Zealand" (The Law Book Company Ltd, 1986) which Mr Wheelhouse SC add is "the classic text" (page 13). However, the portion from which Mr Wheelhouse SC quotes does not relate to unincorporated associations. Mr Wheelhouse SC goes on to assert that the plaintiff is in a position akin to a trustee of a trust with a charitable purpose, and to the Associations Incorporation Act, where all members of the management committee would be regarded as having contravened the provisions unless an officer could show that the contravention occurred without his knowledge or in a situation where the officer could not influence the conduct of the association (s 70(1)). Again, such analogies are inappropriate for an unincorporated association of persons which has specifically been set up to self-regulate rather than to pay tax or comply with requirements for fundraising organisations such as charities. [1315] There is nothing under any of these statutes or in any of the statements made in Australian Securities and Investments Commission (ASIC) v MacDonald (No 11) [2009] NSWSC 287 requiring any company, incorporated association or unincorporated association not to pay for outgoings unless those expenses are supported by both an expenditure resolution containing more than one signature and a receipt. This is a misconception of the fourth and fifth defendants, who were not trained auditors and who did not understand what amounted to proper documentation. I further note the plaintiff's submission in reply at [30.5.5] points out that in this decision, the Supreme Court held that s 189 Corporations Law (Cth) did not apply to the defendants and that the case is not authority for the application of s 189. [1316] The defendants have not established that the plaintiff's role as chairman was any different from the role of any other president or chief office holder of an organisation of this informal kind. In addition, the defendants' legal representatives have failed to allow for cultural factors in the Korean community, and for Korean "custom" of the kind referred to in the Constitution. It is clear from the absence of receipts for rent, leases and other documents from the Korean Society, from the absence of documentation during the fourth and fifth defendant's audit and from the general lack of interest of donors to the Committee in obtaining a receipt that "proper documentation", when construed in accordance with requirements of custom, should be construed flexibly. I note the evidence of the presidents of the Golf Association (Mr Bonney Lee) and the Tennis Association President supports this finding. When considering what amounts to "proper documentation" for an association that plays the Korea anthem at meetings, uses the Korean financial year and relies on "custom" to settle disputes, I should have regard to the discussion of cultural issues in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187. Accordingly I am not satisfied that the plaintiff's management of the Committee was incompetent. [1317] The second question is whether or not, if there was any incompetence proved, that as a result the sum of $102,000 was spent without proper documentation being kept. Was $102,000 spent without proper documentation being kept? [1318] In the matter complained of, the allegation was that more than $102,000 had been spent "without an Expenditure Resolution and a receipt", the inference being that this was the kind of documentation that was required for each and every entry. [1319] The second defendant's table include items for which receipts are not legally required as a prerequisite for payment, such as wages, rent and Olympic tickets. [1320] In addition, it is clear from Exhibit 56 that corroboration of the expenditure may be in a letter rather than a receipt. There was a correspondence register, and clearly this could have contained letters providing receipts. The donation to the "Christian Review" of $1,000 to purchase Korean flags for a rally in the Olympic Stadium on 10 June 2000 to pray for the success of the Olympics. Expenditure Resolution 103 resulted in a letter of thanks from the editor of the "Christian Review" (dated 14 June 2000) with a receipt included in its text. The editor says that the provision of the Olympic flags enabled the 2,500-strong Korean "united" choir, "unprecedented in Korean migration history: to "promote Korea and heighten national glory." Since the letter goes on to say "we hereby send a bill for the flags as follows" and a bill for 600,000 won is attached (with a note that this is $A1,000), why did the auditors write "Evidence required"? The auditors have clearly taken an overly literal approach that unless evidence to support the Expenditure Resolution is physically attached to the Resolution and a receipt, it is not "evidence". Similarly, in relation to Expenditure Resolution 148 for Seven Stars (for purchase of computer toner), there are several letters from them in Exhibit 56 which have referred to an "attached invoice" which is clearly no longer there. The author of Expenditure Resolution 241 for $1,234.88 notes that one receipt for $22.50 is missing but the fourth and fifth defendant note evidence is required for the whole amount of $1,234.88, which cannot be correct. [1321] In addition, a number of expenses for which the defendants say in Table A there was no Expenditure Resolution did in fact have an Expenditure Resolution, such as items 22, 23, 393, 396, A-34, 29, 30 and 31. Some of these also had receipts attached to them, such as Expenditure Resolution 30; others had staple marks where it looked as if something became detached at some later time, such as A-34, 393 and 396, and others, such as Expenditure Resolution 31, had in fact been paid by the Sports Council. [1322] The defendants complain that an allegation of taking these receipts was not put to the fourth and fifth defendants. However, these receipts may have become detached by accident prior to or during the time they were in their possession; a number of the receipts have been taken off the staple and glued onto the back of the resolutions, perhaps to prevent this occurring. In addition, it is clear that the state of these documents has been changed while they are in the defendants' possession; for instance, the letter from SK Securities to the fourth and fifth defendant dated 21 March 2001 in answer to their inquiries was wrongly placed in this file. [1323] The defendants rely upon Table A as set out in their submissions. [1324] Of the $214,879.69 in Table A, the plaintiff submits that $115,376.23 can be deducted as follows: (a) Expenses that are duplicated within table A. (b) The sum of $20,000 (see note (d) to Table B). (c) Expenses where documentary evidence was in fact attached to the relevant Expenditure Resolution or where it must have been at the time for the fourth and fifth defendants not to mark it as "evidence required". (d) Expenses paid for by CFM Engineering or the plaintiff personally. (e) Expenses for which some form of documentary evidence is unnecessary, such as wages and rent, or where there is an obvious error, such as Expenditure Resolution 107 to which the receipt for the Korean flags is in fact attached to a letter that has been put into the file as opposed to being stapled to the Expenditure Resolutions. In addition, there are two Expenditure Resolutions prepared for cheque 111412 for $200. The first of these is marked "evidence required" and this second is not. Clearly the first of these does not relate to an actual bookkeeping entry. (f) Expenses such as Olympic tickets, where the ticket purchased would constitute the receipt. (g) Expenses for which Expenditure Resolutions have been created but where there are staple holes, indicating that something has become detached total ($11,320.70). [1325] The amount in question would further be reduced, on the plaintiff's submissions, by $8,300 to $79,882.76, if the Expenditure Resolution refers to some form of documentary evidence held by a member of the Supporting Committee, this being acceptable as a form of documentation. Included in this would be expenses paid for regular or fixed amounts for expense accounts, allowances and the like. In order words, it is not necessary for the invoice to be actually stapled to the Expenditure Resolution if it is available in the office. [1326] If I were to find that the mere existence of an Expenditure Resolution was sufficient to amount to "proper documentation", the amount in question would be further reduced from $53,893.22 to $25,989.54. The question is whether I should do so. [1327] It should be evident to any sensible auditor looking at these Expenditure Resolutions that on their face they relate to committee activities. [1328] This brings me to Table B. Table B is in fact largely a subset of Table A. It contains entries for which there are no receipts or expenditure resolutions and constitutes the core of the second defendant's argument, so I set it out in full. [1329] Table B provides as follows: Table B Date Cheque # Amount Payee Description Expense Resolution N=No 12/11/1999 569291 180.00 Top Newspaper Advertising N 07/12/1999 565298 200.00 Jinmi Grocery Entertainment N 09/12/1999 643026 180.00 Syd Korean Newspaper Advertising N 15/12/1999 643028 203.75 Cash Advertising N 05/01/2000 2.80 Transaction fees Dec 99 N 28/01/2000 2.00 Shares N 18/02/2000 793179 1,300.03 Canterbury City Council Licence fee for Korean Sports Council N 21/02/2000 793182 600.00 Chae Wages N 03/03/2000 793181 254.00 Unknown Meals N 10/03/2000 793191 100.00 Strathfield Florist Flowers for event N 20/03/2000 793189 200.00 Cash Wages N 28/03/2000 793190 200.00 Cash Wages N 31/03/2000 793192 200.00 Cash Wages N 04/04/2000 793193 3,000.00 Cash Meals N 05/04/2000 793197 600.00 Cash Wages N 07/04/2000 793196 200.00 Cash Wages N 17/04/2000 819103 300.00 Cash Wages N 04/07/2000 819115 4,447.00 Cash Meals N 06/07/2000 819111 205.00 Cash Name Tags N 06/07/2000 819114 215.00 Silla Restaurant Meals N 25/07/2000 982439 20.00 Belmore RSL Entertainment N 03/08/2000 111404 1,200.00 Belmore RSL Entertainment N 03/08/2000 111405 1,526.00 Unknown Gifts N 03/08/2000 111407 576.00 Unknown Entertainment N 03/08/2000 819107 129.50 Sunbichon Meals N 04/09/2000 114691 20,000.00 Committee chairman - Cha Reimbursement N 06/09/2000 143131 300.00 Cho Reimbursement N 08/09/2000 143146 8,000.00 Unknown Missing cheque butt N 11/09/2000 143149 1,300.00 Committee chairman - Cha Entertainment N 12/09/2000 143148 641.70 Asian A Airline Travel N 13/09/2000 143138 400.00 Cash Reimbursement N 13/09/2000 143150 2,900.00 Kang Chon Rice Cakes Gifts N 22/09/2000 143133 200.00 Cash Olympic Ticket N 22/09/2000 143147 1,013.76 Cash Entertainment N 26/09/2000 165664 700.00 Cash Travel N 27/09/2000 165667 160.00 Hang Jung Lee Advertising N 28/09/2000 165668 1,000.00 llwon Park Donation N 04/10/2000 165672 588.30 Pal Freight Flags N 09/10/2000 179065 500.00 Cash Office supplies N 11/10/2000 179061 300.00 Cho Reimbursement N 24/10/2000 179071 2,200.00 Bumyang Flags N 27/10/2000 179066 800.00 Yoo Wages N 27/10/2000 179069 300.00 Cash Office supplies N 31/10/2000 9.00 For statement N Total $57,353.84 [1330] I analyse Table B as follows: (a) There is no need for an expenditure resolution to pay bank fees, wages or Council fees and I delete these items (including the $20 fee erroneously attributed to entertainment when it is a dishonour fee, and the dishonoured cheque to Belmore RSL for $1,200). (b) The Committee is likely to have kept copies of its advertisements, and the high number of missing invoices suggests these were placed in the file of advertisement copies. Proper documentation kept in a separate file would be sufficient. (c) Entries in this list for which there are in fact Expenditure Resolutions are: (i) $254 (Expenditure Resolution 37) (ii) $129.50 (Expenditure Resolution 47) (iii) $700 (Expenditure Resolution 121) (iv) $2,200 (Expenditure Resolution 273) (v) $4,447 (Expenditure Resolutions 44 and 87, see the note on page 58 of the plaintiff's submissions). (d) As the plaintiff's submissions point out at [6.4.10], the $20,000 loan the plaintiff repaid was not an expense of the Supporting Committee. (e) The $100 flowers was an expense incurred while the plaintiff was overseas, according to the Activities Diary, which records the flowers were for the funeral of Mr Dae Won Kang's mother-in-law. The plaintiff cannot be blamed if he was absent, and the expense is corroborated by the Activities Diary. (f) Apart from the entry on 7 December 1999 for $200 at Jinmi Groceries (which I consider is the same as the $213.20 Jinmi entry), the remaining items all relate to the period 6 July to 27 October 2000: (i) 6 July – Name Tags - $205 – this was for the Ki Yoon Kim function (Exhibit 7); (ii) 6 July – Silla Restaurant - $215 – this was meals for the cheer squad and dinner after the June monthly meeting (Exhibit 7); (iii) 3 August – Entertainment - $576 – this was for badminton, the Cheer Squad, KBS, flowers ($27), meals ($36) and a remittance fee of $25. There must have been receipts for these when Miss Yoo made the list in Exhibit 7. (iv) 12 September – Asiana Airlines - $641.70 – this was for the National Athletic meeting according to Exhibit 7 and the precise figure suggests an airline ticket was produced at the time; (v) 13 September – Kang Chon Rice Cakes - $2,900 – Miss Yoo refers to Kang Chon Rice Cakes ($2,100), flowers ($600) and petty cash, suggesting these receipts were available when she prepared this note. (vi) 4 October – Pal Freight - $588.30 (vii) 9 October – Office Supplies - $500 (viii) 27 October – Office Supplies - $300 Adding these sums up, and including the $200 for Jinmi Grocery, I have a total of $6,125.30. However, on checking Expenditure Resolution 2-399 for this item, paid by cheque 569298, I find that this is for $213.20, that it was checked by the auditors and there is a receipt from Jinmi attached. This would appear to be an error by the defendants in their submissions. (g) During this same period, the seventh defendant is signing cheque requisitions or noting he holds the receipts (e.g. Expenditure Resolution 246, 25 September; Expenditure Resolution 269, 6 October) and is paying himself "reimbursement" as follows: (i) 25 August – Expenditure Resolution 210 - $200 (ii) 6 September – No Expenditure Resolution - $300 (iii) 6 September – No Expenditure Resolution - $400 (iv) 20 September – Expenditure Resolution 240 - $400 (v) 30 September – Expenditure Resolution 254 - $200 (vi) 6 October - Expenditure Resolution 268 - $300 (vii) 11 October – No Expenditure Resolution - $300 (viii) 23 October - Expenditure Resolution 271 - $400 (ix) 11 November - Expenditure Resolution 168 - $200 [1331] The pattern in Table B shows that these transactions occurred over a short period of time when the Committee was preparing and taking part in Olympic celebrations and the seventh defendant was in charge of the accounts. [1332] I conclude that although the plaintiff set up an adequate system, the combination of the pressure of the Olympics and the seventh defendant's failure to keep proper records was responsible for proper records not being kept. For example, the entries in table B, when adjusted, are just over $6,000. [1333] Alternatively, the second defendant refers to expenses listed in ledger No. 1 to 48. The plaintiff denied that he was reimbursed by the Supporting Committee for expenses paid by the plaintiff or CFM Engineering (Daily Transcript 457 and 494-495, 20 June 2007, Day 14; Daily Transcript 592 and 602, 25 September 2007, Day 18), other than the $20,000 reimbursement he received (Daily Transcript 927, 8 October 2007, Day 23). There is no evidence to contradict this claim. [1334] On the figures put forward by the defendant, no allowance is made for many of the errors that were pointed out in cross-examination of Mr Finney. In particular, all the claims for wages and rent, as well as a number of items for which it was conceded there were Expenditure Resolutions, are still persisted with. [1335] The real question is whether I accept an Expenditure Resolution without supporting documentation as not being "proper documentation". As I have indicated, this is something that should be approached on a case by case basis. The funds in question are not significant, the explanation given for them is plausible and the defendants have failed to isolate particular expenses as being one for which there should be a receipt but there is none. Many of the expenses relate to meals in what appear to be small Korean restaurants where, if the payment is in cash, receipts may not have been provided. [1336] Finally, and most importantly, this was an unincorporated association of volunteers. It dependent upon a large number of people volunteering their services in their spare time. It was not an organisation which was a money-making concern or requiring to keep receipts for income tax purposes. The word "proper", in such circumstances, means sufficient to establish that the expense was bona fide. In those circumstances, I accept the plaintiff's contention and I find that the amount actually spent without documentation is $25,989.54. The submission concerning Exhibit 55 [1337] At paragraph 56 of the submissions in reply, Mr Wheelhouse SC asserts that exhibit 55 was "with the assistance of Mr Finney's expertise" to establish "an agreed position" between the parties relating to the "extensive documentary evidence evidencing the Supporting Committee's financial transactions" (paragraph 56, page 15). It is asserted that the purpose of Exhibit 55 was to avoid the conflict that now arises between table A on page 88 of the second defendant's submissions and table A on page 56 of the plaintiff's submissions. It is then asserted that a number of the plaintiff's submissions "do not bear scrutiny". [1338] Mr Finney's spreadsheet suffers from the same defects as Mr Finney's other reports do, namely that it is based on Mr Finney's report which were prepared without the benefit of Mr Finney's seeing the CFM financial records, Mr Sung Joo Sung's green book, the plaintiff's additional green book (which I know he cannot have seen because it was translated three days before his final report) and other financial material. [1339] The second defendant on pages 16-17 of this Chapter of their submissions asserts that two expenditure resolutions must be suspicious because they predates the expenses occurred. These are not matters put to the plaintiff and in both cases they relate to a practice that I observe elsewhere in the expenditure resolutions, namely putting the date of the first transaction as being the date of the expenditure resolution. The third relates to loan repayments to the Sports Council where it is asserted there is "no evidence of the terms of the loan agreement" (written submissions paragraph 16). The Sports Council is an incorporated association. Enquires of this nature should have been addressed to the Korean Sports Council, not to the Supporting Committee through which these funds were being channelled. [1340] Underlying all of the defendant's submissions is the extraordinary difficulty of reconstruction of the financial affairs of the Supporting Committee between 1 May 1998 to 24 November 2000 where all of these matters have been raised for the first time in August 2007 where the financial documentation has, between December 2000 and June 2007, remained in the possession of the fourth and fifth defendants and Mr Sung Joo Sung and where due to the effluxion of time, subpoenas to the Uniting Church and the Korean Society could not be answered. Conclusions concerning imputation 36(d) [1341] The defendants have failed to discharge the onus of proof (which I again note is the balance of probabilities, and not to the Briginshaw standard) that the plaintiff managed the affairs of the Supporting Committee incompetently, that $102,000 (or any amount similar therein) was spent without proper documentation, or that the spending of money without proper documentation had anything to do with any act or omission of the plaintiff, incompetent or otherwise. The defendants have not established that the relevant elements are true and the defence accordingly fails. Imputation 38(b) That the plaintiff managed the affairs of the Supporting Committee so incompetently that $120,000 of the Supporting Committee's money was spent on things on which it should not have been spent. [1342] This imputation arises from the publication dated 9 February 2001. [1343] The plaintiff's complains about the failure to particularise prior to the trial carry considerable weight concerning this imputation. As there was no plea of justification before the trial, the particulars of 12 February 2007 (Exhibit 81) made no reference to this imputation, and the particulars supplied after the trial commenced (supplied on 29 May, but referred to by me as the 30 May particulars) did not do so either. [1344] The second defendant in submissions breaks this imputation down into (a) managing (b) incompetently (c) on things on which the money should not have been spent. It is asserted that if money was wrongly spent in this way, this must be incompetent. [1345] It is asserted the money is spent on things on which it should not have been spent if: (a) it has not been applied for the "objects and purposes": represented in the newspaper advertisement. I assume this means for the purposes identified in the Constitution; (b) it is not supported by documentary evidence or is "otherwise verifiable"; (c) it was not properly authorised; (d) if the expense is authorised and relates to the purposes, it may still not be properly spent if it exceeds the "ratio" of what would be "reasonable in the circumstances"; (e) any money received by the Supporting Committee before the deduction of the expenses was not paid "immediately" into the accounts i.e. if the expense was entirely proper, authorised and did not exceed the ratio, if some unrelated sum or sums had not been paid into the Supporting Committee's account for some reason, then otherwise validly incurred expenses would all become fatally tainted. [1346] The plaintiff was responsible for this because: (a) his role as chairman of the Supporting Committee as outlined in Chapter 3 of the submissions meant that he was responsible for everything; (b) the plaintiff signed all but 90 of the Expenditure Resolutions, and he should have known that a number of these were not signed by other authorised persons and he should have refused to pay or reimburse these sums until that occurred; (c) the plaintiff signed most of the cheques; (d) the plaintiff was "likely to have attended" most of the meals or other forms of entertainment; and, (e) the plaintiff purchased all the gifts. [1347] Reliance was placed upon admissions by the plaintiff that he understood the Constitution and was bound by it (written submissions p. 11) and upon his conduct in relation to Mrs Kim, writing out cash cheques, using the money for Sports Council activities, and the like. Meals and gifts [1348] All of the witnesses in this case, including the second and fourth defendants, gave evidence to the effect that it was a Korean custom, and an important one, for there to be meals and gifts. Examples of this evidence were as follows: (a) Mr Patrick Lee (Daily Transcript 2400, 25 March 2009, Day 57) said that this was the case. (b) Mr Ho Kim made similar statements (Daily Transcript 2069, 12 June 2008, Day 51). (c) The fourth defendant said that while he was carrying out his audit, members of the Korean community, whose name he could not now recall, gave him money or took him out for meals, saying this is for "encouragement" (Daily Transcript 2678, 31 March 2009, Day 60). (d) There are references in the Minutes (Exhibit 51 p. 75 to "provision of meals for sub-committee meetings" and to the Cheer subcommittee asking for the provision of "vehicles and meals support"); there are a number of Expenditure Resolutions for meals for volunteers, committee members after a meeting and the like. There are also references in the Minutes to Consul Mr Moon (Exhibit 51, page 15) and the second defendant paying for meals. (e) These committee meetings often lasted for several hours and went past what must have been family mealtime for the persons attending, meetings often finishing at 8.30 or 9.30 at night. I have real difficulty accepting that it is inappropriate, in those circumstances, for persons who have spent several hours in a meeting to have an evening meal paid for at a local Korean restaurant. (f) The provision of a "meal allowance" is a familiar feature in industrial law legislation. The vast majority of the meals related to the provision of free meals to volunteers after meetings. [1349] Another source of contention has been the provision of free entertainment for visiting guests from Korea including, in particular, Korean officials. [1350] Some meals were not paid for by the Committee; they were paid for by individuals, including the second defendant. [1351] I consider the provision of meals after meetings, or cheer squad practice, or for volunteers working in the office, or visitors from Korea, or community functions and rallies, were an essential part of this Committee's activities. I reject this submission. SK Securities [1352] The contributions to be made by SK Securities were discussed at the 21 July meeting, where the Committee was told of the donation of $100,000 on 31 July and that there would be an "SK Sponsorship Night" and $20,000 of the $100,000 was to be expended on this night (Exhibit 51 page 10). [1353] According to the letter to the Committee from SK, when this night did not go ahead, the decision was to use the money for other activities for the SK personnel coming to Australia for the Games (Exhibit 70 Tab 27). [1354] According to the 21 July Minutes, there was a report on presentation of appreciation plaques to SK Securities director Young Sik Kim and Ji Young Kim, and there was an "enquiry about the donation of $100,000". The Minutes go on to note that chairman Dae Won Kang inquired about the "conditions" of the donation of the sum. The plaintiff said that he would discuss with SOCOG the question of attaching the SK logo to the cheer squad's outfits, and that other conditions included "footing the expenses of the event (expected to cost about $10,000) and golf fees" and also "great PR effects from the community media". It is not clear what this has to do with SK Securities, but the plaintiff went on to give a "supplementary explanation on installing as honorary chairman and presenting plaques of thanks" and a plan to launch the new cheer squad uniform at this event, to which chairman Duk Im Kim added the proposal that "all the cheer squad members" should be present in the SK Sponsorship night. [1355] The SK activities were further discussed at the 21 July and 17 August 2000 meeting, according to the Minutes, which refer to a telephone call to SK Securities director Young Sik Kim to discuss the attachment of the SK logo to the Korean cheer squad uniforms (Exhibit 51, pages 1 and 10). [1356] Young Sik Kim rang the office of the Committee on 7 September, according to the Activities Diary, concerning publicity he had arranged for the cheer leaders songs with Koyto Newspapers and confirming that he would deliver "on the team's flight" 500 music CDs, 1,000 items of clothing and "100 watches for North Korean athletes". [1357] The problem was, as the letter from SK Securities said, the SK Securities Night had to be cancelled. SK Securities then discussed other uses for the money in a lengthy meeting which Miss Migi Lee spent four hours summarising, according to the Activities Diary. [1358] The Committee could not afford to refuse this money, According to the August meeting they had only $110,000 in hand; $100,000 of this (less the bank fees) was the SK donation banked on 31 July 2000. [1359] The fourth defendant, in cross-examination, did not consider it was wrong to use some of the donation to entertain SK executives and others (in fact, he attended the dinner). He considered the amount spent was excessive. The plaintiff discussed the SK donation with the Committee, as the Minutes of Meeting show. [1360] One of the claimants for reimbursement was in fact the third defendant; the Sydney Korean Herald. They asked the Committee to reimburse them $110 for preparing visiting cards for the SK president (Expenditure Resolution 207, 25 August 2000). The seventh defendant put in a claim for $5,000 for 10% discount for Olympic tickets (Expenditure Resolution 214, 31 August 2000). Other SK claims were made by other Committee members, e.g. Byung Doo Choi (Expenditure Resolution 218 and 277). The fourth defendant came to the big dinner (Daily Transcript 2573-2574, 26 March 2009, Day 58; Daily Transcript 2996, 6 April 2009, Day 64). The whole Committee and Korean community was involved with and participated in these SK Activities, in accordance with SK's agreement, not just the plaintiff. Excessive amounts spent on gifts [1361] The defendants contend that an excessive amount of $20,554.00 was spent on gifts. Apart from SK Securities, a number of gifts were purchased to give to local businesses such as the second defendant's newspaper (to celebrate an 8th anniversary in business), athletes, volunteers and sporting organisations. The Sports Council [1362] The defendants submit that $34,512.31 spent in relation to Sports Council activities should not have been spent. [1363] The chronology of events shows that the Sports Council was involved not only in setting up the Sporting Committee, but helped to fund it, shared expenses for social functions (e.g. a number of meetings in April 1999), had regular meetings with the Supporting Committee, provided support for functions, and ensured its members attended them. When the Korean Government wanted to show its gratitude for the Supporting Committee's work, it did so by indicating it would give $100,000 to the Sports Council for its activities (Daily Transcript 385, 14 June 2007, Day 11). [1364] The Supporting Committee's relationship with the Sports Council was also close because the same person was the financial director of both (Exhibit 52 page 2). [1365] Expenditure for these functions is supported by Expenditure Resolutions of the Supporting Committee. [1366] I reject this submission. Telephone accounts for CFM Engineering [1367] The defendants submit that $20,349.63 was spent by CFM Engineering where there is no documentary evidence to verify the expenditure. [1368] In each of the items complained of there is a cheque butt; in most cases there is a resolution and the purpose of the cheque is a purpose associated with that of the Supporting Committee. [1369] These expenses were authorized by the Supporting Committee at the time. If the Supporting Committee was prepared to pay a telephone bill in full on the basis that, say, 90% of the calls related to the Supporting Committee, rather than require the plaintiff to go through every entry, that is an entirely proper procedure for a voluntary organisation and I reject this claim. Even in relation to corporations, the circumstances in which courts can review business decisions are limited: A Greenhow "The Statutory Business Judgment Rule: Putting the Wind into Director's Sails" [1999] BondLRev 3; (1999) 11(1) Bond Law Review 33. Other Sporting Organisations [1370] The second defendant claimed (written submissions paragraphs 109 – 113) that the categories of expenditure should be limited to the matters set out in paragraph 113 but otherwise said it could not deal with this issue until the plaintiff identified what the purpose was. The list set out by the second defendant includes items of expenditure claimed from the Committee for its own witnesses such as Won Kang's trip to Korea, Mr Cho's mobile phone bills and the rent claimed from the Committee by the second and fourth defendants during 1999 after the second defendant became the president of the Korean Society. Again, there is an assertion that the expenditure should bear a "reasonable relationship" to the income received from donations. [1371] The second defendant asserts, however, that at best only about $85,000 was properly spent on objects and purposes of the Supporting Committee. The rest of the Supporting Committee's funds, namely approximately $200,000 was applied to "things" outside those objects and purposes. [1372] As I have noted elsewhere, the second defendant fails to appreciate that the sporting committees who sought these sums from the Supporting Committee were often themselves members of the Aus-Kor Supporting Committee. Twelve of the representatives of these Sporting Committees not only were members of the Committee but were members of the special council of twelve sporting organisations. Many others held positions on the Executive. This was their Olympic organisation and if the Supporting Committee was satisfied with their request and paid the money sought, that is perfectly proper conduct for a voluntary organisation. [1373] Membership of the Supporting Committee was not limited to sporting groups. Many other organisations, as set out in the list of persons who participated and voted, were groups such as the Korean Veterans Association, a number of past presidents of the Korean Society and Korean Sports Council and other community groups. Conclusions concerning imputation 38(b) [1374] The second defendant has failed to establish the truth of imputation 38(b). Imputation 39(a) that the plaintiff failed to account for approximately $56,000 of money donated to the Committee [1375] In relation to the plaintiff's ongoing complaint about failure to particularise, I note the each of specific particulars to this imputation in the letter of 12 February 2007 (Exhibit 81). [1376] In order to establish the truth of this imputation, the defendants must prove that the plaintiff did not account for donations to the Supporting Committee totalling approximately $56,000. [1377] The $3,000 cash balance following the purchase of tickets by the seventh defendant is a matter dealt with elsewhere in this judgment and it is a matter where I have preferred the plaintiff's evidence over that of the seventh defendant. [1378] Nor is it sufficient to point to the fact that cash donations were not banked in the Supporting Committee's CFCU bank account (which was opened in August 1999 and used up until the end of December, following which a new Westpac account was opened in January 2000 with different signatories, namely the plaintiff and financial director Joo Yong Jo). This account had to be closed because after the argument he had with Mr Sung Joo Sung about banking the Paek loan into his own account, Mr Sung Joo Sung withheld the CFCU cheque book in his possession (Daily Transcript 323 - 4, 13 June 2007, Day 10). The plaintiff gave evidence that he had a practice of banking cash cheques in his own account and then writing out a cheque to the Supporting Committee which was banked, pointing to entries on 24 March ($1,000), 28 August ($600), 12 and 17 September ($3,000) and November ($3,000) (Daily Transcript 316, 13 June 2007, Day 10). He said it was because the committee had no money of its own at the time, so he borrowed $10,000 from Mr Paek in the first place (Daily Transcript 323). If the plaintiff had concerns that cash donations were not being recorded by Mr Sung Joo Sung, this was a diplomatic way of dealing with the problem. [1379] The defendants were not able to show that cash banked into the plaintiff's account was not accounted for, or to point to any specific sum that was given to the plaintiff personally during this time and then neither placed in the CFM account nor in the Supporting Committee account. The plaintiff needs to be shown to be directly and personally responsible for failing to account for each specific sum, with the precision of an indictment: Sims v Wran [1984] 1 NSWLR 317 at 328. [1380] I have rejected the evidence of the few cash donations that the defendants are able to point to. Apart from Mr Patrick Lee's donation (which I find was never made), I have found either that the money was not missing because it was recorded by Mr Sung Joo Sung (e.g. in the case of the second defendant and Mr Won Kang), or that the plaintiff was not given the money personally, or both. I have also found that the financial affairs of the Committee were at all times in the hands of bookkeepers and executive members of the Committee other than the plaintiff. [1381] These allegations need to be seen in context. There were many cash donations given to this voluntary organization. Despite the Committee's informal bookkeeping methods, all those donations ended up being recorded. (1) Failure to account by not publishing the names of donors [1382] The first submission by the defendants is that donations made to the Supporting Committee were not accounted for by the plaintiff in his published list of donations in November 2000 (pages 147-148). [1383] The plaintiff did not have this information because Mr Sung Joo Sung had taken the accounts records for the period February to December 1999. His conduct in publishing a list of donors, inviting anyone who had any queries to telephone the fourth and fifth defendants, or the Supporting Committee, and providing telephone numbers to assist them to do so, is not consistent with failure to account. In addition, the plaintiff published, in the second defendant's newspaper, the revised list of donors on 23 February 2001 (Exhibit 73), which included these missing donors. The defendants do not refer to any omissions in this revised list and I do not propose to speculate. Mr Patrick Lee's name is not on it, but I have indicated elsewhere in this judgment I do not accept his evidence. (2) Failure to account due to inadequate documentation [1384] The defendants have submitted that the recording of donations made by the plaintiff in Exhibit 10 are insufficient. Does that make it a failure to account? [1385] The question of adequacy of accounting records, and whether failure to keep adequate records amounts to a failure to account, was considered in McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759. However, the individual in that case was under a personal duty to make proper records for the purposes of an incorporated association and had in fact stolen money and the person whose inadequate record-keeping should be compared to that person is Mr Sung Joo Sung, not the plaintiff. [1386] As to cash donations made during 1999, I have a conflict of evidence between the plaintiff and Mr Sung Joo Sung. The plaintiff gave evidence that it was Mr Sung Joo Sung's responsibility to deposit all donations during his tenure as secretary-general (Daily Transcript 222-223, 8 June 2007, Day 8). That is borne out by the contents of his Green Book. [1387] The following list was prepared by the fourth and fifth defendants. No Donator Amount * 1 Ik Tae Eom, Tae Ho Choi $ 100 * 2 Jae Kyung Lee (the second defendant) 1,000 * 3 Hee Jung Sung 100 * 4 Sang Yun Lee 200 * 5 Sang In Han 100 * 6 Jong Jin Kim 100 * 7 Hyung Jae Lee, President of Boston Athletic Association 280 8 Nonghyup 2,000 9 Nak Yoon Paek 1,300 10 Young Man Kim 200 11 Duk Hwan Na 500 12 Tennis Assoc 200 13 Nak Yoon Paek 700 14 Sydney Korean Herald (the third defendant) 116 15 Sundo Motors 300 16 Volleyball Assoc 600 17 Casey's 300 18 Golden Ent 1,916 19 Yun Duk Yang 300 20 Young Sik Min 300 21 Ministry of Culture and Tourism 1,750 * 22 Korea Telecom 3,000 23 James Ahn Coaching College 2,000 24 Hanam Fellowship Assoc 650 25 Gye Hyung Kang 1,000 26 Consul Kwang Young Park 300 27 Man In Son 100 28 Eun Taek Chu 3,000 29 Young Chun Park 50 30 Myung Nam Kang 1,000 31 Accountant 300 32 Myung Woo Park 500 33 Young Woo Nam 300 34 Hae Young Jung 100 35 Evergreen 200 36 Rak Seo Jang 500 37 Gun Il Cha 100 * 38 President of Soonchun Kimchi 5,000 39 Byung Hee Won 300 * 40 Amount returned after tickets purchase 3,000 42 Jong Hyung Joo 250 43 Woong Ho Cho 5,500 $5,000 deposited out of $10,500 donated 44 Jae Sang Cha 23,074 The donation of the amount was made on Korean community newspapers 45 Antioch Church 500 * 46 Korean Veterans Association 500 (Refer to D10) Falsified to have been donated by CFM, though contributed by the assoc Total $64,291 [1388] I have marked with an asterisk the matters particularised by the defendants in written submissions at paragraph 49(a)-(m). Cash donations [1389] A list entitled "Earnings Omissions in Financial Report" was prepared by the fourth and fifth defendants (Exhibit 70 Tab 8). [1390] At paragraph 89 (p. 154) and 102 of the submissions the defendants submit that as the fourth and fifth defendants were not cross-examined on this list it "should be accepted by the court". This is wrong. The plaintiff denied in cross-examination that a number of these names had been omitted, and said that they were in the list of donations he published (Daily Transcript 331, 13 June 2007, Day 10; Daily Transcript 1336, 17 October 2007, Day 29) including the list he published after the four meetings with the auditors (Exhibit 73). The fact that a list of donations missing from the financial report is compiled does not mean that there has been a failure to account for these monies, especially in circumstances where the plaintiff (who was working from incomplete records) provided telephone numbers for people to contact the auditors, and then went on to publish a revised list of donations. [1391] A list of 46 names (which should be 47, as one of the names was left off the list by the translator) for persons who donated money but whose donations were omitted is a very serious matter. It raises a strong presumption of failure to account by the sheer number of overlooked names. However, when looked at in context, this intimidating list can be seen more clearly: (a) These persons were not called to give evidence: Apart from Mrs Kim (the donor whose company is number 38) and the second defendant himself (who was called by the plaintiff), the second defendant did not call any of these witnesses. Since two of the people on this list are the second and third defendant (numbers 2 and 14 on the list), this seems surprising. (b) A number of the entries on the list are in fact on the original list of donations published by the plaintiff: The donation from the Antioch Church, which is $100 in the original Korean but has somehow been wrongly typed in the list as being $500, was in fact in the list of donations received set out in Exhibit A (it is donation no. 18). No allegation of failure to account for a donation made by the Antioch Church was ever put to the plaintiff. Similarly, Evergreen's donation of $200 is probably the same $200 donated by Evergreen Star (item 26 in Exhibit A). Consul Park Kwang Yong is listed in Exhibit A as donating $300 and in D2 as donating $300; this must be the same donation. I do not know who the "Accountant" who donated $300 is, but the same figure appears at item 21 on Exhibit A and item 31 in D2. Managing Director Cho Yong Ho is listed as donating $10,500 in Exhibit A (item 10) ; item 43 in the list in D2 refers to Woong Ho Cho donating $5,500 with a note saying "$5,000 deposited out of $10,500 donated." Adviser CHA Kun Il who donated $100 (no. 29 on exhibit A) must be the Gun Il Cha whose donation of $100 is on the list of donations for which there is a failure to account (no. 37). I assume CHU Eun Taek who is recorded by the plaintiff as donating $3,000 (item 12) is the same as Eun Taek Chu who is recorded (item 28) as having made a donation of $3,000 for which there is a failure to account. Similarly, it seems likely, given the absence of standardization of phonetics in Korean translations, that the Rak Seo Jang at number 36 on the fourth and fifth defendants' list who donated $500 is the same JANG Lak Seo who is listed as donating $500 on the plaintiff's list. The "Tennis Association" is, however, on the fourth and fifth defendants' list as donating $200 for which there is a failure to account. There is no reference to the Tennis Association on the plaintiff's list although there are several donations by individuals of $200. However, the plaintiff called the president of the Tennis Association to give evidence. It was not put to him that his association had complained about failure to account for a $200 donation. The third defendant is listed as having an omitted donation of $116.00. There is a list of "Deposit omissions on newspaper ads and record" of the fourth and fifth defendant which contains the note "cash managed by Sung Joo Sung" for this sum of $116. This also applies to Sundo Motors ($300), Caseys ($300) and Golden Entertainment ($1,916): see page 10 of the documents faxed on 5 April 2001 by the plaintiff to Mr Kyung Ho Bae, one of the accountants he asked for assistance. The plaintiff provided these documents to the auditors and they appear in Folder 4 of the documents sent to Mr Finney, as Mr Finney acknowledges in the list of documents he is briefed with. These appear to be the documents sent to the defendants as an attachment to the requests for apology dated 18 May 2001. They were also attached to the requests for apology sent to the defendants (Exhibits NN, OO and PP) and sent to Mr Finney for him to review for the purpose of writing his report (which is why it appears in volume 4 of his documents) Mr Young Jin Min, the accountant who prepared these reports for the plaintiff, refused to answer a subpoena to attend court. Finally, I note that this information was published by the plaintiff in TOP on 23 February 2001 (Exhibit 71). I also note that the seventh defendant was the volleyball representative on the committee and paid a visit to the Supporting Offices to ask for a donation of $300 to the volleyball Team. He did not say anything about a failure to account for $600. I have not cross-checked every entry on the list; the 23 February list (Exhibit 73) contains further names, but because the Korean name spelling is not standardised I am reluctant to reconcile the different names. I note, however, that one of the donations listed is the second defendant's $1,000. It can be seen that D2 is a document containing many errors; more are set out below. In an ideal world, Mr Evatt could have spent many days cross-examining the fourth and fifth defendant about each and every entry, although since the fifth defendant (who was the financial accountant, and the person to whom these questions should have been directed) was only available for cross-examination for a few days, this would have been a logistical problem. The plaintiff has responded by noting two matters, namely the evidence about the plaintiff publishing telephone numbers for inquiries and publishing a revised list of donations (Exhibit 73), and the roles of the seventh defendant and Mr Sung Joo Sung. Finally, I note there is no challenge by the defendants to the accuracy of the revised list published by the plaintiff in the second defendant's own newspaper on 23 February 2001 (Exhibit 73). (c) The defendants in written submissions reduce from 46 to 11 the numbers of donations for which it is alleged there is failure to account: The defendants in their submissions reduce the list to assert that there was failure to account for the donations by the persons listed as numbers 1 – 7, 22, 38 and 46. The $3,000 left over from the purchase of tickets by the seventh defendant was also claimed. These sums total just under $14,000, a significant reduction from $64,291. (The defendants ask me to accept that there is failure to account for the balance essentially on the basis that the fourth and fifth defendants were not cross-examined on D2). However, there is no reference to the revised list the plaintiff published on 23 February after the four meetings with the auditor and the information provided during those meetings by Mr Sung Joo Sung. Nine entries on this list are identified as coming from Mr Sung Joo Sung. If that is correct, then there are only two missing donations. In addition, new claims of failure to account were brought by Mr Patrick Lee, who said he gave $500 in August or September 1999, and Mr Won Kang, who said he gave $1,000 in November 1999 (although the defendants appear to concede that the $1,000 donation by "Adviser Kang" in Mr Sung Joo Sung's Green Book is the recording for this sum). If I were to refuse to take into account the nine extra donations in the 23 February publication, even if I do not take out the claims for Mr Won Kang and Mr Patrick Lee, this is a claim for about $15,500 for which there is evidence as set out in the submissions that there is a failure to account, and this is without acknowledging the correctness of the plaintiff's revised list of 23 February 2001, which appears to contain all these names. Finally, the claim of $500 for the Korean Veterans Association donation is obviously wrong. Their cheque for $500 was banked in the Sports Council account on 7 October 1999 (Exhibit 77) while the plaintiff was in Korea. The fourth and fifth defendants must have discovered this early in the audit, because there is no reference in the matters complained of to the plaintiff stealing this donation. The Korean Veterans Association's letter of 9 December 2000 was the only letter of complaint they received prior to their reports and should have been referred to by them as a matter that had been looked into and resolved. Instead, they made the entirely false claim that the Korean Veterans Association "claim that they did not receive" the donation of $500 that the plaintiff said he had sent to them (1 March 2001 matter complained of, under the heading "General expenditure of donation"). Given the dishonest conduct of the fourth and fifth defendants concerning the Korean Veterans Association's claim, the total absence of documentary evidence to record the inquiries made by the fourth and fifth defendants at the time of the audit, and the length of time that has passed, making proper inquiry almost impossible, I am of the view that I should find that there was in fact no failure to account for any sums for which documentation cannot now be located. If the fourth and fifth defendants were prepared to lie and say that the Korean Veterans Association claimed not to have received a $500 donation when this Association had taken the trouble of writing to them (the letter is addressed to them as well as the plaintiff) on 9 December 2000 to say they had, why should the evidence of the fourth and fifth defendants on other matters they say they had investigated be accepted? (d) Some items on the list are clearly not a failure to account: Item 44, a claim that the plaintiff failed to account for $23,074, is misconceived and should not be on a list of donations for which there is a failure to account. This was a claim that the plaintiff had dishonestly claimed this sum by way of reimbursement. Similarly, the complaint about the use of the $3,000 cash after the ticket purchase is not a failure to account but a claim of larceny. (e) Was the person who took these donations and failed to account for them the plaintiff?: The timing of these donations falls into three easily identifiable categories. Apart from the dispute about the $3,000 left over from the purchase of tickets (which is really a dispute about who ended up with the cash) and the $5,000 from Mrs Kim, all of these donations were made in 1998 – 1999 when the seventh defendant and Mr Sung Joo Sung were supervising the financial records. The seventh defendant had a high opinion of his own bookkeeping skills, putting himself forward as the Sports Council temporary auditor at the March 2001 meeting, according to the 30 March 2001 matter complained of (Exhibit S). However, there were no financial records at all during the period May to December 1998, according to Mr Sung Joo Sung's statement (Exhibit 72). The seventh also made frequent claims for expenses and for salary. The likelihood is that what small sums were received in 1998 were received by him rather than the plaintiff. (f) 1999 donations: These donations were all made during the time that Mr Sung Joo Sung was keeping the books. The plaintiff's evidence was that donations were provided during meetings and rallies. He would be chairing the meeting and at the front of the room and donations given to Mr Sung Joo Sung at the back of the room. He would learn only when the meeting was over what donations had been given (Daily Transcript 914, 8 October 2007, Day 23). The donation procedure was described by Mr Jong Hyung Joo, a witness called by the plaintiff, who said he handed on a donation made to him personally by MBC Korean journalists. This was for $US750, which he handed to Mr Sung Joo Sung by Mr Joo (Daily Transcript 1968, 10 June 2008, Day 49). No receipt was given because "I handed over $750 to Mr Sun Soong Ju in front of many people at the time" (Daily Transcript 1968, 10 June 2008, Day 49). He handed the money to Mr Sung Joo Sung at the plaintiff's direction (Daily Transcript 1968, 10 June 2008, Day 49) and in front of everyone. He told the auditors about this donation at the February 2001 meeting (Daily Transcript 1969, 10 June 2008, Day 49). The fourth and fifth defendants were present at this meeting. (Daily Transcript 1969, 10 June 2008, Day 49) (g) 2000 donations : The three items in 2000 are not strictly speaking failures to account. The new claims of failure to account not listed in the report labelled "D2" by the fourth and fifth defendants are: (i) the claim by Patrick Lee, first made in a letter of particulars dated 7 September 2007, that he donated $500 to the Committee in August or September 1999 (defendant's submissions 49(i). I have not accepted this evidence. (ii) the claim by Won Kang that he donated $1,000 in November 1999. This was in fact recorded by Mr Sung Joo Sung. (iii) The Wang Dae Po donation of $200 – the only information about this is the entry in the Minutes that their $200 donation was handed to the plaintiff. I consider this is insufficient evidence to make any finding. Conclusions concerning the failure to account for $56,000 [1392] The list of items set out in D2 contains a number of errors; those errors are so grave that I would be in error in accepting it as an accurate summary of the amounts for which either the plaintiff or the committee has failed to account. These include failure to compare the list with the first and second lists published by the plaintiff (e.g. substantial donations such as the $10,500 donated by Woong Ho Cho and the $3,000 donated by Eun Taek Chu). [1393] In addition, the evidence points to these sums being received in 1998 by the seventh defendant and in 1999 by Mr Sung Joo Sung. [1394] Taking out the donations that were added in the 23 February list (such as the donation by the second defendant, which was in the plaintiff's revised list), the quantum for the failure to account thus becomes: (a) the very late claim by Won Kang (which turned out to be recorded in Mr Sung Joo Sung's green book) and Patrick Lee ($500 which I do not accept was donated) and the Wang Dae Po $200; (b) the claim about the use of the $3,000 left over from the tickets and the $5,000 donated by Mrs Kim. [1395] Even if I found in favour of the defendants on every one of these (which I have not), it would fall far short of $56,000. [1396] I am not satisfied that the plaintiff has failed to account for any of the sums on this list. If I have erred in my findings in relation to one or more of the items in this list, I note the discussion of the elements of the defence of truth in Greig v Win Television NSW Pty Ltd [2009] NSWSC 632. [1397] However, the defendants' claim of failure to account is not limited to the items in D2. I repeat my findings concerning the cash donations for Mr Patrick Lee, Wang Dae Po and others as set out in the consideration of justification for imputation 41(d) below. Conclusions concerning imputation 39(a) [1398] The second defendant has failed to establish the truth of this imputation. Imputation 39(c) that the plaintiff failed in his duty as president to ensure the Committee kept proper accounts [1399] In order to establish the defence of justification, the second defendant must establish: (a) the plaintiff had a duty to ensure the Supporting Committee kept proper accounts; (b) the plaintiff failed in that duty; and, (c) the Supporting Committee did not keep proper accounts. [1400] I accept that the plaintiff, in his capacity as chairman, has an ongoing duty to ensure that accounts for the Supporting Committee are kept. Do the fourth and fifth defendants owe any responsibilities of this kind? [1401] As paragraph 9.2.1 of the plaintiff's submissions, it is put that this is in fact the responsibility of the fourth defendant as administrative auditor. The plaintiff submits that the Constitution provides that auditing matters should be reported to the general meeting and that the role of the fourth defendant as administrative auditor to carry out audits. [1402] Effectively, what the plaintiff is submitting is that the fourth and fifth defendants are internal auditors, and that it is their role to review the efficiency of operations, the reliability of financial reporting, deterring and investigating fraud and compliance with the law. The role of the internal auditor is to advise management and the Board of Directors (or a similar oversight body) how to execute their responsibilities. Internal auditing is an unregulated profession, although international standard setting bodies exist. [1403] However, the fifth defendant is the financial auditor. What are his tasks? To whom does he report? Is he an internal or external auditor? [1404] I have no evidence, lay or expert on these matters. The only evidence available is that it was the understanding of the plaintiff and the fourth and fifth defendants that they would carry out their audit of this limited-life association once only, and that they would examine both administrative record keeping and financial matters. Accordingly, I cannot see that there was any duty on the fourth and fifth defendants to give advice or assistance prior to carrying out their audit. [1405] Was the plaintiff responsible for everything that the Committee did? The plaintiff's role as head official was, according to the Constitution, to take charge of general office administration of the Committee. This means setting up a system of the kind that is regarded as being suitable in an organisation of this type. [1406] I have set out in some detail in relation to imputation 36(d) that the plaintiff was careful to appoint not only officials but bookkeeping clerks and to ensure that the persons he appointed all were persons with adequate skills and prior background in doing this kind of work. [1407] The real difficulty that the plaintiff had was that his ability to ensure proper records were kept was limited to hiring and firing people to do the work in circumstances where not only were they performing the services voluntarily, but he had considerable constraints on his ability to criticise or instruct them because of Korean cultural difficulties. [1408] While Mr Sung Joo Sung was looking after the financial affairs, the plaintiff had the cheque book for CFM Engineering until August 1999, when he had one Supporting Committee cheque book and the plaintiff had the other. The same occurred throughout 2000 when the plaintiff had one cheque book and the seventh defendant (and occasionally the financial director Mr Joo Yong Jo) had the other. The plaintiff several times referred to the seventh defendant's handwriting on cheque butts (e.g. Daily Transcript 905-906, 8 October 2007, Day 23). Nearly all the donations and outgoings occur in the period from August 1999. The fact that prior to August 1999 the plaintiff had the cheque book does not amount to acting in a controlling fashion in relation to the finances. The Supporting Committee became financially active after March 1999, when it had its inauguration ceremony. The plaintiff was financially supporting the Committee personally at this time, and there were only a few small donations. Examination of the expenses over the period May 1998 to early 1999 show about two dozen claims, mostly for dinner expenses following committee meetings, office equipment, newspaper advertising and a garland tribute for the second defendant's newspaper, which had been in business for 8 years. [1409] What was the purpose of these accounts? There is no intention to prepare a tax return, or application for an Australian Business Number (this being introduced in July 2000); nor was there any attempt to incorporate the Supporting Committee under the Associations Incorporation Act. If anything, the purpose was to set up a separate committee to give organisations such as the Sports Council and Korean Society the opportunity to make donations and gifts outside the more strict parameters of their obligations under the Associations Incorporations Act, under which legislation documentation of this kind would have been required. This might explain why persons with no prior experience or knowledge were selected as auditors. [1410] In conclusion, the plaintiff's duty as Chairman was to set up systems and not to personally supervise the carrying out of his instructions by those he appointed. It was not reasonably a part of his role as Chairman as defined by the Constitution and there was no statutory or common law obligation upon him to do so. He was a voluntary officer of an unincorporated association, and he was bound by rules of Korean custom as well as common sense not to expect volunteers working long hours to attain standards of performance appropriate for businesses. [1411] As to the list of records Mr Finney opined should be kept, I accept the plaintiff's submissions at [9.3.3] that Mr Finney failed to appreciate that the large donations suddenly received two months before the Olympics were unexpected and to expect, retrospectively, levels of bookkeeping of a high standard is unfair and inappropriate. Mr Finney failed to understand that "custom" meant Korean custom, and to apply the standards appropriate for the other small unincorporated Korean sports association which were more realistic analogies than the rules of corporate governance Mr Finney referred to in his evidnce. Conclusion concerning imputation 39(c) [1412] The defendants have failed to establish the elements of this imputation. Imputation 40(e): that the plaintiff failed to ensure proper records were kept of the Committee's financial affairs. [1413] In order to establish justification of this imputation, the defendants must establish that the plaintiff had a duty to ensure that proper financial records were kept, and that he failed to fulfil this duty. [1414] The particulars provided for imputations should play no part in consideration of the merits of the case. However, I should note that the particulars provided before the trial (Exhibit 81), on the second day of the trial, and after the trial was adjourned in June 2007 (the 29 May and 30 June 2007 particulars, which are attached to the affidavit of Mr Crumpton) provide no particulars beyond a generic statement of reliance upon other particulars. The financial records of the Supporting Committee were all retained by the defendants until well into the plaintiff's cross-examination. [1415] The defendants' submissions concerning the justification for this imputation are one paragraph long. They consist of repeating reliance upon "the submissions in chapter 9 and asserting the threshold for the justification of this imputation is "lower" than that for 39(c) because "no requirement for a "duty" on the part of the plaintiff" had to be established". The "mere fact" of the plaintiff's "overall responsibility" is enough to establish a "failure to ensure". In other words, because the plaintiff was the Chairman, he had a duty to ensure the proper keeping of accounts. In the alternative, the defendants rely on "the other matters establishing a duty or obligation on the part of the plaintiff" set out at [2] – [3] of Chapter 9 of their submissions. [1416] The plaintiff has not provided submissions on this issue apart from a reliance upon paragraphs 9.1.1 – 9.3.3 of its submissions. [1417] I find this lack of submissions, particularly from the defendants (upon whom the onus lies), most unhelpful. [1418] This imputation relates only to the keeping of financial records. Assertions that the Committee spent too much on entertainment are irrelevant. The question is what records of the entertainment were kept. [1419] I shall deal with the question of requirement for a "duty" later, First, what needs to be looked at is what the plaintiff actually did to ensure records were kept, and whether the plaintiff, on the facts in this case, failed to ensure proper records of the Committee's financial records were kept. [1420] An important indication of what "proper records" consisted of can be gleaned from the complaints about failure to ensure proper records were kept in the matter complained of. While the defendants are not bound to rely upon what is asserted in the matter complained of, this publication makes a series of specific allegations about the plaintiff failing to ensure proper records were kept. What were those allegations, and are the statements of facts true? Allegations in the matter complained of concerning failure to ensure proper records were kept. [1421] These allegations include the matters set out under the heading "President Cha's work performance process" (lines 27 – 43) followed by "Opinion of operations audit" (lines 44 – 157). I have set out, in the section of this judgment on the defence of comment, the many false statements of fact concerning the record keeping process. I briefly summarise these: The Committee's first year of operation (May 1998 – April 1999) [1422] The matter complained of falsely asserts that after he was appointed, the plaintiff "spent about 12 months doing nothing up to April 1999" (lines 30 – 31). The chronology of the Supporting Committee shows that by April 1999 the Committee had an executive member (Mr Sung Joo Sung) in charge of finances and that he had a bookkeeper who kept the books under his supervision (see Exhibit 72, Mr Sung Joo Sung's statement), an expenditure resolution system, an office equipped with furniture and stationery and, importantly, a fully functioning Committee which had been in place from the "early stage of initiation" of the Committee. I have put that phrase in inverted commas because it is a quotation from line 71 - 4 of the matter complained of, where the defendants say: "There were some minutes recorded in the early stage of initiation of [sic] Supporting Committee but once they started to be more active, they did not leave any records. Specially, there are no records of discussion in relation to a private loan which took interest, to major changes in systems and to planning for major events." [1423] Mr Evatt called for production of these Minutes. They were not produced. The plaintiff gave the Committee's copies of minutes to the fourth and fifth defendants as part of the audit process; the copies of Minutes from November 1999 are his own copies, as the extract from his List of Documents (Exhibit 77) shows. The contents of these Minutes would have given a significant insight into whether what the defendants say is correct. Those Minutes produced by the plaintiff (which are an annexure to [2009] NSWDC 300) clearly show the Committee did discuss major changes in systems and planning for major events. The failure of the fourth and fifth defendants to produce these Minutes is a matter upon which I draw the Allen v Tobias inference. I cannot draw that inference in relation to the 1999 Activities Diary, as it is not referred to in the matter complained of and there is insufficient proof for me to be satisfied to the high standard required for Allen v Tobias unless there is clear evidence the document existed and was in the custody of the person who has destroyed or deliberately withheld it. [1424] The problem the Committee had during this time was that it had no income. There is no evidence that the provisions in the Constitution for the named bodies to provide funds were ever honoured. The plaintiff had to fund the Committee personally. This included payment of a bookkeeper, Miss Chae, who kept the books until April 2000. [1425] The matter complained of also refers to a registry of correspondence. There is a claim that there is no registry of official seals (lines 68 – 69). No correspondence has been tendered to prove this allegation. One of the few letters that have survived, the plaintiff's letter to the Korean Traditional Arts Research Institute (Exhibit 51, p. 25, bears the words "Official Seal Affixed" and also has a document number, indicating a correspondence system, which is an important part of good financial record-keeping, since many of these letters may contain documents such as invoices, receipts and the like. This correspondence, which was in the fourth and fifth defendants' possession for the audit, according to the matter complained of, has not been tendered in evidence. I find that the claim that there was no registry of office seal, clearly an important issue in Korean office procedure, is false. May 1999 – November 2000 [1426] By April 1999, the Committee had received less than $2,000 in donations, and its outgoings began to increase with the expectation of the Korean Society that it pay rent and install a separate telephone. Rental of $50 per week and telephone expenses were only the beginning. In or about April -June 1999 the fourth defendant, who was given paid employment in the Korean Society after the election of the second defendant, visited the office to seek an increase in rent to $150 per week and, when this was not agreed to, told the Supporting Committee to leave, according to the fourth defendant's evidence. [1427] During 1999 the Committee incurred significant overheads including rental of premises at a commercial rate, renovating those premises, telephone, fax, computer and office overheads (see the list in Exhibit A), without any significant donation income. There is no evidence that over this period the funding referred to in the Constitution was provided. The Committee was an unincorporated association with no assets. It was not an organization likely to be given overdraft facilities by a bank, so a cheque account during this period was not a sensible proposition. [1428] During 1999 and 2000, the plaintiff obtained a series of private loans from Mr Joon Kim (a loan of $10,000 to CFM, which was then loaned by the plaintiff to the Committee), from Vice-President Paek (who loaned a total of $15,000) and from a friend of the plaintiff who loaned him $20,000. Without these loans the Committee could not have carried on its affairs. Its outgoings exceeded its income. [1429] As the Olympics approached, a number of large Korean companies, such as SK Securities, suddenly offered to provide financial support in the form of $100,000 in return for sponsorship (the Committee discussed with SOCOG whether the SK logo could appear on the Korean team's uniforms, according to the July Minutes: Exhibit 51 p. 10). KBS made a similar offer, again with a condition, namely to donate 15m won which would include 10 airfares for KBS visitors and said they would provide 5m won of cheer squad clothing (Exhibit 51 p. 11). KBS had announced its plans to "support both South and North [Korean] athletes" according to the Minutes (page 11). These are big corporations in Korea, and they are lining up behind the reconciliation policy of the South Korean government. The claim in the matter complained of that the Committee was not minuting or discussing planning for major events is simply false. [1430] This was a sudden and significant change in the last few months of the Committee's life. Its systems had been set up to cope with receipt of small cash donations from Korean community members, not for large donations from Korean corporations. [1431] Prior to this development, the Committee was consistently spending more than it earned. In November 1999, the plaintiff found that while he was in Korea, Mr Sung Joo Sung had banked $10,000 the loan from Vice President Paek into his own bank account. There was a confrontation after the plaintiff's return on 23 October and on 15 November $9,000 of it was returned. Three weeks later the plaintiff appointed Mr Joo Yong Jo the financial director and he remained in this position for the duration of the Olympics. When Mr Sung Joo Sung refused to return the Committee cheque book he had in his possession, the plaintiff and Mr Joo Yong Jo opened another bank account of which they were the signatories. I have indicated elsewhere in this judgment that for a voluntary organization with no tax obligations, the requirement for two signatures on a cheque is unnecessary, and I note the bank was accepting cheques with one signature. [1432] I have set out in more detail, in relation to imputation 39(c), that the plaintiff set up a number of systems such as the keeping and signing of expenditure resolutions and for the entry of material from cheque butts into the accounts kept by the bookkeepers. Those systems, if adhered to, would, in my view, have constituted adequate records for income and outgoings. [1433] Should there have been a receipt book? The procedure that is revealed from the Activities Diary is that when people asked for receipts they were provided. These donations were not tax deductible. What was important was to keep an accurate record of the cash donations. Nor was it necessary to bank all these cash donations, as long as they were accurately recorded. [1434] What is surprising about the Supporting Committee's absence of records is that despite the amateur quality of Mr Sung Joo Sung's and the seventh defendant's bookkeeping, and the apparent inability of Mr Joo Yong Jo to supervise them (which I find was his role as financial director) so few cash donations are missing. Apart from Mr Patrick Lee (whose evidence I have not accepted) and the missing donation of $200 from Wangdaepo (about which there was no complaint at the time) everyone who gave a donation, cash or otherwise, was accounted for by the plaintiff in Exhibit 73 and by the fourth and fifth defendants in Schedule D. Mr Won Kang's donation of $1,000, partly accounted for in the plaintiff's original list, was accounted for in Mr Sung Joo Sung's green book. Whatever the inadequacy of the financial records for donations, all alleged missing donations can be accounted for. [1435] The next issue for determination is whether the plaintiff kept proper CFM records and in particular kept proper records for claiming a reimbursement from the Korean Sports Council. Those claims were prepared by the plaintiff's accountant, submitted to the Korean Sports Council in 2001, and paid. There is no complaint before this court from the Korean Sports Council concerning the adequacy of these records. [1436] This brings me to the question of what constitutes "proper" records. "Proper" records of account [1437] Mr Finney notes (Exhibit 54 page 8) that the Constitution provides for "budget approval and settlement" in article 12, subsidy and financial supports in article 14, a financial year from 1 January to 31 December in article 15 and a provision for matters not specified to conform to custom in article 16. He notes the absence of "any statutory" requirement in paragraph 20 and describes the requirements for record-keeping in the Constitution as "minimal". I agree. [1438] Mr Finney goes on to impose the requirements of "good governance", which he interprets into the Constitution because of the provision in article 16 of "custom". He then sets out the kind of "good governance" requirements he interprets into the Constitution because of "custom" [1439] I have noted elsewhere that Mr Finney was not provided with significant documentation to prepare his report. He was given an index from which unspecified items have been removed (" we have removed certain documents as indicated on the basis that those documents would not be of assistance or relevance in the undertaking of your instructions" – page 4 of Exhibit 54(1)). I was not able to work out what those documents were because the four folders tendered were in a hopeless state of disorder. In particular, concerning this imputation, he was not provided with any information concerning "custom". [1440] The fatal flaws in his argument that "custom" imposed good governance requirements of the kind he asserts are necessary are: (a) He does not expose his reasons for asserting that "custom" imposes good governance requirements on the plaintiff as opposed to the person charged with keeping the records. He appears not to have known that there were persons appointed to keep the records, a bookkeeper and a financial director, as he does not mention them. In addition, he does not expose his reasons for saying that this is the plaintiff's job. Indeed, his report states at paragraph 25 (page 15) that "the committee" did not keep proper records. He does not appear to have considered the issue of the plaintiff's responsibility for this. He sought to revise this in his evidence and say that he considered the plaintiff and not the Committee was responsible. Mr Evatt then asked how it was that, if the plaintiff was responsible, he had said in his report that the Committee was responsible: "Q. If that's so, how could you conclude the committee didn't keep proper records? How could you conclude that yet say the plaintiff failed to keep proper records? A. (No verbal reply) Q. If you look at pages 8, 9, and 10 of your report, there's no nexus between the committee and the plaintiff, Mr Cha. You blame him when the whole of your paragraphs - that's 17 through to 25 - relate to the committee. Why blame him? Why not blame the vice-president or the secretary of the committee? Why did you pick him out? A. As chairman of the committee and a person that appeared to be influential in the management of its affairs would have had a leading role in the function of the committee and the records that it kept. Q. Except this, Sir: All those things might have been true, but why do you assume that he had a functional duty to keep records, which is usually not the function of a chairman, is it, of a committee? It's usually the secretary or something. A. That may be the case, but it would normally be under the direction of the person who had a major role in the management of its affairs. Q. A chief executive officer of a public company is not expected to keep the records, is he? A. He would delegate that task to-- Q. The secretary. A. Or to other officers of the organisation. Q. Is that not the case here? A. Well, it may be the case here, but the chief executive would take responsibility for that delegation and the - whatever the delegated officers carried out. Q. That's just assumptions. A . I believe that's commercial practice .(Emphasis added) Q. There is a secretary-general who had a green book. Show him the green book. … Q. This is just a team of amateurs in their spare time; all of them without any remuneration. Every now and again, somebody got some money; a couple of hundred a week, but they're a team of amateurs; none of them with any experience in bookkeeping, and you're equating them to the management of the NAB or something. Is that fair to do that? A. I don't believe I'm doing that. Q. But you're attributing to that committee a knowledge and practice of a commercial organisation. A. I believe that I'm expecting a committee that is handling funds of a magnitude handled by this particular committee to have the sort of financial records that I have expressed in paragraph 17 of my report. Q. Yes, but the trouble is that you don't blame the committee, you blame the chairman, even though there is a committee of ten. How do you account for that? A. Well, as I said earlier, I believe the chairman had a very influential role in the committee's affairs and the way it was managed. Q. Did you assume that every member of the Committee had an influential role, or if you make that assumption. A. It was an assumption I made." (Daily Transcript 3159, 8 April 2009, Day 66) On examination of Mr Finney's material, it transpired he had not been given the Minutes, or the organizational charts prior to June 2000, or information about the accounts keeping and signing of Expenditure Resolutions by Mr Sung Joo Sung. He had been given the matters complained of which assert the bookkeeping was done by the plaintiff. (b) He was asked to ignore "statements made in an emotive and conclusory manner" by the fourth and fifth defendants (Exhibit 51A, p. 4). However, as an expert witness, he should have been alerted by such statements to the possibility that the contents of these documents were incorrect. In particular, he should not have accepted the statements in the matters complained of that the plaintiff performed the bookkeeping without assistance when this was not the case. (c) He shows no understanding of Korean cultural issues. For example he was unaware of the financial year being the Korean financial year and he assumed "custom" meant Australian custom: "Q. Because, when you look at article 16, which is on page 8, just above 18, it says, "Matters not specified in the constitution may conform to custom." A. Yes. Q. Did you take that to be Korean custom? A. No. I took it to be custom for committees in the Australian context. Q. Why? A. The Supporting Committee is a committee established in Australia. Its activities are in Australia. Its audit was carried out in Australia, and I believe it was appropriate that it apply to custom in Australia. Q. Something un-Australian is the financial year. Just article 15, 1 January to 31 December. It doesn't sound too Australian to me. Would you agree with that? A. Many organisations have a financial year ending in 31 December. Q. It's not customary, is it? A. Well, 30 June, if that's the inference is a customary end of year for taxation purposes. Q. And business. A. And many businesses. Q. I think the United States has the January to December. A. I understand so. Q. But would you be surprised to learn that the Korean financial year is 1 January to 31 December? A. That doesn't surprise me. Q. You're not being serious when you're not suggesting that the financial years in this country is usually, invariably 1 July to 30 June. A. No, I accept that." (Daily Transcript 3166, 8 April 2009, Day 66). [1441] The "proper records" for this unincorporated association to keep were the kinds of records that other unincorporated associations run largely out of the Chairman's personal finances kept, namely the informal records of the kind that Mr Bonney Lee kept for the Golf Association. The requirements for accounting records in this organization were minimal, to use Mr Finney's description. It was not intended to earn income or put in a tax return, despite the reference to "business profits" and "other earnings". Large Korean corporations suddenly gave the Committee money from 31 July onwards, and the plaintiff dealt with this by confirming the seventh defendant in his position, by appointing Mr Won Kang and by hiring Ms Sarah Yoo, all of which occurred after these funds became available. [1442] I find that the requirement of "Australian" custom, or "commercial practice" or "good governance" did not impose any obligation on the plaintiff to ensure that the persons he appointed to keep proper records did so, or that he was obliged to police the Committee members to ensure they obtained and submitted receipts. [1443] In relation to the claim the plaintiff made for reimbursement from the Sports Council, there is no evidence of complaint from the Sports Council that proper records were not kept. The requirement for a duty [1444] There is no provision in the Constitution for the plaintiff to oversee the accounts. To the contrary, the plaintiff is entitled to appoint a person to be in charge of keeping records, and he did so. A president or chairman of an organization who appoints a person to a position is entitled to assume that this person is carrying out his duties unless and until there is a problem. This is what the plaintiff did. [1445] However, if there was a duty, the plaintiff discharged it by replacing, in a tactful way, first the seventh defendant, and then Mr Sung Joo Sung, when problems arose. The problem he had was that Korean "custom" of "obedience to elder" prevented him from criticizing the seventh defendant. I have reviewed elsewhere in this judgment the extensive evidence that the seventh defendant would not stay away from the Supporting Committee offices. This is a common problem in voluntary organizations of all kinds. Even if the plaintiff had hired a professional accountant to keep or supervise the records, the Expenditure Resolutions make it clear that many Committee members (such as Me Dae Won Kang) did not hand over receipts. The plaintiff could not have done more than he did. Conclusions concerning imputation 41(e) [1446] The defendants have failed to establish that the plaintiff failed to ensure that proper records were kept by the Committee. Imputation 41(b): that there were reasonable grounds for the Auditors to suspect the plaintiff of making a false claim for business expenses of $9,121.40 [1447] The defendants in their particulars of justification provided after the trial commenced sought to rely to paragraphs 26 – 32 and 37 - 45 of Mr Finney's 2 May 2007 report in regard to these issues. [1448] Mr Finney conceded in his evidence he made an error in assuming, because there were two Expenditure Resolutions, that the plaintiff twice claimed for this trip (Daily Transcript 3171ff, 8 April 2009, Day 66). [1449] It would have been obvious to Mr Finney, as a trained accountant, that there simply was not enough money in the Supporting Committee account to pay this sum at the time that the first Expenditure Resolution was prepared. The second Expenditure Resolution is in existence because the first was not paid. What is "reasonable grounds"? [1450] Although a party is entitled to look at matters outside the matter complained of, a starting point when looking at reasonable grounds is to look at the matter complained of. [1451] The fourth and fifth defendants say that not only the expenses but the "reason and purpose" of the business trip must be recorded and kept and that amongst the documents kept by the Supporting Committee there were "no documents" to support this "official business trip". It was not just the expenses that were challenged, it was the claim that it was for business. Is this the case? [1452] The plaintiff in evidence said that the four persons who signed the receipt would not have done so if there had not been documents attached. He also referred to the staple mark. While he was being cross-examined the following occurred: "Q. Mr Cha, do you agree that if you fail to provide to the auditors any evidence to support the expenditure of $8,470 on a trip to Korea between 15 February and 21 March, it would be reasonable for the auditors to suspect that that claim was not a truthful claim. EVATT: I object to that, your Honour. HER HONOUR: Well, Mr Evatt, can I just hand you - why is this volume of material on my desk labelled, records in relation to Mr Cha's official trip to-- EVATT: Exactly. HER HONOUR: Well, it shouldn't be-- EVATT: I mean, this is ridiculous. HER HONOUR: Well, it shouldn't be on my bench. Can I hand it down, Mr Evatt. This looks like a document of yours. It's a bundle of original documents including, I might add, a receipt. EVATT: I mean, he gave Mr Park and all the others the full details of it. He'd better have a look at it, your Honour. My friend knows it's all false. HER HONOUR: I don't know what it's doing on my table. Somebody put that on my table. WHEELHOUSE: I've no idea what it is, your Honour. It's certainly not a document I ever-- HER HONOUR: Well, you're welcome to look at it. EVATT: Yes, well, give it to Mr-- WHEELHOUSE: Can I have my question answered? EVATT: No. Look, it's a disgrace. HER HONOUR: But Mr Evatt has objected. But the thing is this, that there is a bundle of documents there. Can I suggest-- WHEELHOUSE: Could I have a look at it, then, your Honour. HER HONOUR: Yes. Well, Mr Evatt, you show them to Mr Wheelhouse. EVATT: Yes, all right. WHEELHOUSE: While that's happening-- HER HONOUR: It's because what troubles me is that it looks like there's a statement from a witness of yours at the back who - about how it was an official trip. EVATT: That's their witness, your Honour. They've hidden these documents from us. HER HONOUR: Somebody Choi. I'm not very good on names. EVATT: This has sneaked out by mistake. HER HONOUR: Well, somebody has put it on my bench by mistake. EVATT: They know full well there's proper records of this. HER HONOUR: You can deal with that in reply, Mr Evatt. EVATT: That's a matter I wanted to speak to you on about that. WHEELHOUSE: These are not our documents, your Honour. They're from my friend's brief. EVATT: Not from my brief. HER HONOUR: How did it end up on my bench? WHEELHOUSE: I've no idea, your Honour. They're not documents I've had anything to do with. HER HONOUR: Well, I can tell you now that that's not the only document that I've had up here. I've had all those telephone records up here as well. I handed them back yesterday." [1453] After the documents were handed down by me, the cross-examination continued: "Q. Mr Cha, I put to you that when you provided the expenditure resolutions to Mr Park and Mr Lee on 10 December 2000, you provided no documents to support the claim of $8,470.70 for your trip to Korea from 15 February until 21 March 2000. EVATT: How can my friend ask that when he's got the documents in his hands? WHEELHOUSE: Your Honour, I do find this interruption-- EVATT: Well, your Honour, I think it's in fairness. HER HONOUR: Thank you, Mr Evatt. That's enough. Yes, Mr Wheelhouse, just ask that question again. WHEELHOUSE Q. My document says evidence required. A. I did. There are two staple holes. I must say they were attached with staples, and now there's a blank paper. I'd like to know why there's - this thing is out. Q. I put to you, Mr Cha, that when you supplied the documents to Mr Park on 10 December, there were no documents to support the claim of $8,470 for presents, A. That's not true, it's not possible. There'd be about four signatures on this resolution and why would have they signed that resolution if it was not right? Q. For whom did you buy presents in Korea? A. For example, I've given gifts to the Minister of Culture Promotion Department and Mr Kang Dae Wan, who was a member of Parliament who was also a member of the Veterans Association and Ms Chuk Jai Lee. She is from Korean Women's University in Seoul. She looks after the Olympic acrobatics. Q. What is the document that you have to prove that? A. Because of those people that I just mentioned they gave $100,000 of donation that was from SK Securities. Q. They're the SK Securities people you bought presents for? A. No, I didn't know about SK Securities at the time. Q. Is this additional expenditure on SK Securities? A. What happened is the Koreans in Sydney, they were rather poor to give donations of large amounts. So I used my money and gave money to the committee as donations, and I didn't have enough money, so eventually I went to Korea to ask for donations from people in Korean. Q. I put to you that ,in the absence of supporting documentation, the trip to Korea was for private business purposes and not for the committee. EVATT: I object to that, it's two questions in one. HER HONOUR: I'll allow it. WHEELHOUSE A. No, it's not, not at all." (Daily Transcript 1047-1048, 10 October 2007, Day 25) [1454] Whether these documents were in fact the travel documents is unknown, as after they were given to Mr Wheelhouse SC by me, they were never heard of again. Both parties throughout the trial were careless with documents. I have only set out this transcript extract in full to indicate the kind of problems that occur in lengthy trials run in a disorganized fashion and because the plaintiff's answers about this issue need to be read in context. [1455] However, both the Activities Diary and the Minutes refer to this trip, and there is a reference in the Minutes of 15 March 2000 to the plaintiff making a report "returning from his official trip to Seoul" (Exhibit 51 p. 47). The fourth defendant was actually visiting the Supporting Committee office two days before the plaintiff left, according to the Activities Diary. [1456] "Reasonable" conduct includes making inquiries. The defendants purport, in the matter complained of, to have made inquiries by searching the office where they can find "no document to support this official business trip" (line 21) from which they conclude that the trip was "not for business". [1457] This was untrue. There was an expenditure resolution signed by four members of the executive, and whether or not the staple holes mean anything, the signatures certainly do. Those persons could have been asked. In addition, the Minutes of Meeting refer to the official trip to Seoul. They could have asked the Committee. [1458] The defendants make much of the date for the Expenditure Resolution being the same as the day the plaintiff travelled. I have noted several Expenditure Resolutions put the date on the Expenditure Resolution as being the same date as the event in question rather than the later date when the reimbursement is sought. I decline to find that the Expenditure Resolution is falsified for this reason. [1459] I have referred elsewhere to the obligation of auditors to be watch dogs rather than bloodhounds. The obligation of the auditor is to make proper inquiries, not to leap to conclusions. They failed in this duty because they did not make reasonable (or indeed any) inquiries. I am concerned by the reference to "among the documents kept by the Supporting Committee" in lines 20 – 21 of the matter complained of. These documents have not been discovered by the fourth and fifth defendants. If they are important enough to refer to in the matter complained of, they are important enough to be discovered. [1460] Finally, concerning the quantum of the claim, given the blanket nature of the allegation (namely that the whole trip was "improper use or misappropriation", I reject the submission that some part of these expenses made the fourth and fifth defendants reasonably suspicious. An allegation of fraudulently altering the Expenditure Resolution [1461] The defendants submit at paragraph 7: "The fourth defendant was concerned that when he first saw Expenditure Resolution 40 it only contained an initialling by the plaintiff. Later, after the document had been in the plaintiff's possession he noticed it contained changes, including new signatures. The plaintiff actually admitted to the fourth defendant that he had altered the document by adding signatures. In these circumstances any auditor would have a reasonable suspicion." [1462] No transcript or document references are given for this claim. [1463] The plaintiff notes that this allegation was not put to the plaintiff in cross-examination, thus denying the plaintiff the opportunity to deal with the allegation and to "make any explanation open" to him as required in Browne v Dunn (1893) R 67; see also Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 per Hunt J. [1464] However, even if there had been no signatures on this Expenditure Resolution, the fact remains that there were not one but two Expenditure Resolutions, and these were supported by statements in the Minutes of Meeting confirming the plaintiff had been to Seoul on business. [1465] A second matter not put to the plaintiff is that he was in Korea for so long (i.e. from 27 February to 8 March, a total of ten days) he must have been doing other things, so "one would expect some kind of concomitant reduction in the total expenditure claim". One would expect such a matter to be put to the plaintiff, if that were to form part of the submissions. Conclusions concerning imputation 41(b) [1466] The defendants have failed to establish that there were reasonable grounds for suspecting the claim for business expenses of $9,121.40 was false. Imputation 41(d): that the plaintiff misappropriated to his own use, money belonging to the Committee [1467] To establish the defence of justification, the second and fourth defendants must prove that: (a) the money belonging to the Supporting Committee was misappropriated; (b) this misappropriation was done by the plaintiff, and, (c) it was misappropriated to his own use. [1468] The sting of this imputation is firstly that the plaintiff has misappropriated the Supporting Committee's money, and secondly that instead of using it for the Supporting Committee's purposes, he has misappropriated it for his own us. [1469] Particulars of justification provided before the trial should not be taken into account by the court when considering issues of liability and quantum. However, I note the application by the plaintiff to strike out the particulars of justification on 24 September 2007 (see Cha v Oh (No. 10 & No. 11) (District Court of NSW, Gibson DCJ, 4 October 2007, unreported) in Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300) arose from the increase in size of these particulars from three lines in the 12 February 2007 letter of particulars (which asserted the plaintiff spent "significant" sums without "adequate" explanation without providing further particulars – Exhibit 81) to seven pages in first week of the trial (Exhibit 78, TJC-1, Tab 2). Following the first adjournment of these proceedings, particulars were provided for an unspecified number of sum and during the second tranche of the trial, Mr Wheelhouse SC provided me with figures which varied between $160,000 and half a million dollars. The 3 October 2007 particulars, 160 pages long, contained 22 separate "chapters" totalling $504,634.71 (plus $US1,000). [1470] As I have indicated elsewhere in this judgment, allegations ranging from tax fraud to "a straight theft" have been added to or abandoned, resulting in a pile of allegations of increasing size. Matters I expected to be addressed on in the submissions (such as the allegation of tax fraud) have been dropped while new allegations (e.g. the claim of the "straight theft" of $20,000) have been added as late as the revised submissions provided to me on 22 May 2009 (which the plaintiff complains was not served upon them electronically). This has created many problems both for the plaintiff in meeting and answering these claims and for me in determining the nature and extent of the amounts the plaintiff is alleged to have misappropriated to his own use. [1471] One of the reasons for the confusion is that the defendants rely upon none of the specific allegations set out in the matter complained of. They are not obliged to, and they are entitled to rely on other materials, and I should briefly explain why, and the requirements for pleading when such matters are raised. Particular of justification based on acts of misappropriation other than those referred to in the matter complained of [1472] At pages 204 – 207 the defendants explain how they are entitled to lead evidence other than the allegations made in the matter complained of. This is because none of the factual material contained in the matter complained of which gives rise to the imputation is relied upon by the defendants. [1473] The portion of the matter complained of from which this imputation arises is set out in the section on comment. Essentially the claims in the matter complained of are: (a) The plaintiff made a claim for $9,121.40 for a business trip which was in fact for his private expenses (lines 17 – 26) which he must refund; (b) The plaintiff maintained a personal expense account and claimed $90,000 for entertainment (lines 27 – 37); (c) The plaintiff claimed another $5,200 for his personal expense account, withdrawing this sum "over three times" (lines 27, 29); (d) The plaintiff spent an enormous amount as his personal expense account: $62,818.16 for entertainment, $33,135.70 for gifts, totalling $95,953.86 (lines 31 – 33, and there is a further reference to the gifts being purchased "exclusively" from one place at line 50); (e) Even though he spent so much money on entertainment, he took "more money" for "expense account again" (lines 34 – 5) and all these funds had been misused or misappropriated; (f) LG Electronic donated 100 wristwatches which the plaintiff said he had given to the North Korean Olympic Team as gifts, but which they denied receiving, and they were last seen being taken to the plaintiff's residence (lines 38 – 44); (g) Lines 27 – 37 conclude by saying: "If he fails to offer evidence on how he spent this money, the money should also be paid back because public fund [sic] has been misused or misappropriated". [1474] The sums actually referred to in these paragraphs (if one assumes the reference to $5,200 is taken three times) total $210,675.26. (The inference that the plaintiff has also made off with 100 wristwatches, although particularised as late as 30 May 2007, is now asserted by the defendants not to be available because the jury did not find this imputation. However, if the defendant had led evidence that this occurred, it would have been hard for the plaintiff to object other than on some technicality such as that it was larceny by a bailee. [1475] The defendant submits (written submissions, paragraph 4, p. 198) that the context of the allegation is "essentially an allegation that on three occasions the plaintiff withdrew money from the Supporting Committee account for a personal expense, totalling $5,200, where the Supporting Committee had additionally spent significant sums on entertainment ($95, 953.86) and failed to offer evidence on how he spent the money applied to his personal expense account." [1476] That is a misstatement of what the matter complained of says. The matter complained of says, under the heading "improper use or misappropriation?", that there was no evidence in the documents kept by the Supporting Committee that this was a business trip (this is the business trip which is referred to in imputation 41(b)). The second claim for moneys which were misused or misappropriated was the claim that the plaintiff had a "personal expense account" and spent "an enormous amount" of more than $95,953.86, which he should repay. In fact there was evidence in the Activities Diary and Minutes that the plaintiff's trip was a business trip, and there was no evidence the plaintiff had a personal expense account. This is not a particular relied upon for justification of this imputation. [1477] The defendants are correct when they say (at paragraph [5] on p. 199 and on pp. 204 – 7) that a defence of justification under s 15 Defamation Act is not limited to the matters referred to in the matters complained of. However, a defendant who elects to ignore the allegations in the matter complained of where an allegation of criminal conduct is made, and who seeks to prove other matters, needs to do so with the degree of precision of pleading required for particulars of truth in defamation matters ("the precision of an indictment": Tobin & Sexton, Australian Defamation Law & Practice [25,180]; Sims v Wran [1984] 1 NSWLR 317 at 328 per Hunt J; Marsden v Amalgamated Television Services Pty Ltd (Supreme Court of NSW, Levine J, 17 December 1996, unreported) at p. 45) and to a level sufficient to satisfy the burden of proof necessary for s 140 Evidence Act 1995 (NSW) where the imputation connotes criminal conduct. This is because the plaintiff is entitled to know the case he has to meet. Where the facts are set out in the publication, this is unlikely to be a significant problem, for the reasons explained by Hunt J in Sims v Wran at 328. However, where a defendant relies upon facts and matters not contained in the matter complained of, these must be spelled out with the precision of an indictment. [1478] I have set out, in my judgment of 4 October 2007 (see [2009] NSWDC 300) the concerns I expressed during the lengthy cross-examination of the plaintiff about a vast range of matters which had not been particularised before (or, at times, even during) this questioning and noted the concerns in Cross on Evidence at [17,495] that cross-examination in modern times has developed a lengthy and repetitive character, resulting in what the learned author of Cross calls "undue strain on a witness". Young J, in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 went so far as to call it "torture". [1479] A significant source of proof of these allegations is alleged to come from admissions made by the plaintiff that, for example, writing cheques payable to cash was dishonourable or improper. [1480] The length and manner of cross-examination and its impact on the plaintiff is discussed in the section of this judgment on the plaintiff's credit. While I do not suggest that the level of questioning reaches the level envisaged by s 84 Evidence Act 1995 (NSW) (although Mr Evatt invoked it on one occasion), the degree of weight that I give to his admissions in such circumstances is an issue I must consider, and I indicated as much to Mr Wheelhouse SC (T 859, 863, 5 October 2007, T-1200, 15 October 2007). [1481] I have dealt with paragraph 18 of the defendants' submissions out of order. I now return to a consideration of the defendants' submissions, which I note are ninety pages in length, and include later amendments about which the plaintiff's legal advisers assert that have had no or no sufficient notification. [1482] I first consider the defendant's submission that misappropriation in the full sense of the word should be proved, or some lesser (and unparticularised) claim of "contextual misappropriation". A preliminary issue – a "contextual meaning" for misappropriation is relied upon by the defendants [1483] The first problem the defendants have is, as they acknowledge, that there is very little evidence that the plaintiff physically misappropriated sums in terms of actually receiving or collecting them (written submissions p. 199 paragraph 8). [1484] The defendants acknowledge that there are only "a limited number of instances where there is direct evidence establishing that the money received by, or entrusted to, the plaintiff was applied by the plaintiff for a purpose outside the purposes of the Supporting Committee and for his own use" (paragraph 8) and then propose to defend this imputation by a defence based on what is called "the contextual meaning of misappropriation". [1485] The defendants submit, in paragraphs 15ff, that there is a "contextual meaning" of misappropriation and that justification can be established on the basis of this meaning. [1486] This is contrary to the careful analysis of the obligations of defendants when pleading justification explained by McClellan CJ at CL in Greig v WIN TV [2009] NSWSC 632. It is also inconsistent with the elements of misappropriation which would be required to satisfy s 178A Crimes Act 1900 (NSW). [1487] The parties agree that the word "misappropriation" means misappropriation as defined in dictionaries such as Stroud's Judicial Dictionary of Words and Phrases (7th edition) 2009, which the plaintiff notes defines misappropriation as "wrongfully convert or deal with money by the person to whom it had been entrusted". The definition and the elements to be proved, namely that moneys were entrusted, then wrongfully converted, and for the plaintiff's own use, are accepted by the defendants (written submissions p.199) and the plaintiffs. How, then, does the defendant argue for some other meaning? [1488] Where a party seeks to plead a different meaning to that which is pleaded, a contextual imputation must be pleaded and, if no such contextual meaning is pleaded, the defence of justification must fail: Greig v WIN TV at [94] per McClellan CJ at CL. Further, a defendant should not be entitled to revise the meaning of an imputation to have a different legal meaning from that which was asserted before the trial: Singleton v Ffrench (1986) 5 NSWLR 425 at 435. Such a significant change should not be permitted without amendment of the pleadings and it would not be proper to allow an amendment at the close of the evidence which could radically change the case, for the reasons explained by the Court of Appeal in Ffrench at 435G. [1489] Accordingly, I accept the plaintiff's submissions at paragraphs 16.3-16.4.3 that I should not accept the submissions of the defendant as to "contextual meaning". This means that any claim put forward as evidence of misappropriation to the plaintiff's own use which cannot amount to evidence of misappropriation as defined by the defendants (paragraph 6, p. 199 of the submissions) and plaintiff (paragraph 16.2.1 of the submissions) cannot constitute evidence capable of proving the truth of this imputation. [1490] In practical terms, this means that, for any claim where there is no evidence that the plaintiff actually received the sum of money, the defendants have the difficulty to which they refer. In the event that I have erred in this finding, I have made findings in relation to each of the matters relied upon by the defendants in their submissions on this issue. [1491] As I have started this portion of the judgment with a consideration of matters which are referred to in the matter complained of, I shall first consider a matter which was asserted to be misappropriation in the matter complained of, namely claims for entertainment expenses that were in fact false. These claims are set out by the defendants in Table A. Table A – page 203 – claim that the plaintiff misappropriated moneys by making false claims for entertainment expenses [1492] As noted above, my finding that the defendants are not entitled to plead a contextual meaning means that I reject all of the claims by the defendants that the plaintiff had misappropriated moneys by drawing cheques made payable to "cash" in circumstances where the amounts were being expended on activities which would fall outside the ambit of the plaintiff's own use, or that the lack of supporting documentation meant that these moneys were misappropriated, or that allegedly excessive amounts of the funds were spent on purposes such as meals and entertainment. The material in Table A falls within this category. However, as I have set out below, even on the "contextual misappropriation" argument, these claims must fail. [1493] I first consider the expenses listed in table A on page 203 of the defendant's submissions. The first problem is that the defendants have failed to acknowledge that all of those items (except Expenditure Resolution 293) were approved by members of the Supporting Committee, that most had receipts or some other form of supporting documentation attached, that all indicate a proper and legitimate purpose relating to the activities of the Supporting Committee, and relate to functions that are referred to in the Minutes of meeting or Activities Diary. The second problem is that the defendants have not established the money was misappropriated to the plaintiff's "own" use in each (or indeed any) case. [1494] I set out Table A with some comments from the plaintiff's submissions and with my own comments: Description Date ER Payee Amount Supporting documentation Comment Expenses for Association Chief's meeting (Cheque No 000138) 13/3/1999 2-293 Head Official $288.00 No The ER was claimed for by Sung Joo Sung and was signed only by Mr Sung Joo Sung. It was for meeting expenses. It cannot be said that this expenditure was a claim by the plaintiff when Mr Sung Joo Sung is the only person who claimed and authorised it. There is no evidence it was put to the plaintiff's own use. This applies to each of the following entries as well. Event preparations 17/4/1999 310 No information $300.00 No The fifth defendant checked this ER and did not mark it "evidence required" and so there may have been supporting evidence elsewhere in the Supporting Committee's office. Entertainment, money borrowed from chairman Choi 13/7/1999 5 Plaintiff $1,500.00 No There was an ER approved and signed by a number of members of the Supporting Committee. No members of the Supporting Committee gave evidence this, or any other sum approved by them, was put to the plaintiff's own use, rather than Committee use. This applies to all other expenditure resolutions approved by Supporting Committee members on this list. Entertainment, chairman expense account 19/9/1999 16 Plaintiff $2,100.00 No There was an ER approved and signed by a number of members of the Supporting Committee. Receipts for $192 are attached. Meals for officials, money borrowed 16/11/1999 23 Plaintiff $1,300.00 No There was an ER approved and signed by a number of members of the Supporting Committee and a receipt is attached to the ER Badminton players and Sports Council Secretary- 20/12/1999 A-34 No Information $1,800.00 No The plaintiff's submissions note the Korean original of the ER states that it was for "expense and entertainment for badminton players and the secretary-general of the Sports Council from 20/12 to 25/01 with money borrowed" and something was clearly stapled to the ER that have become detached. The ER was approved and signed by a number of members of the Supporting Committee General Office supplies, (Cheque No 793183) 8/2/2000 35 Big W $166.00 No Receipts were attached to the relevant ER, which was approved and signed by a number of members of the Supporting Committee. This was a cheque payable to "Big W". How can this be money misappropriated to the plaintiff's own use? Committee entertainment and events 9 April to 20 May 9/4/2000 62 CFM Engineering $1,700.00 No There was an ER approved and signed by a number of members of the Supporting Committee. It is noted on the ER that it was paid for with a cheque from CFM Engineering SK Securities director Kim and fund-raising officials 22/6/2000 88 Plaintiff $680.00 No There was an ER approved and signed by a number of members of the Supporting Committee Purchase of presents, Green Seafoods 13/7/2000 114 Plaintiff $1,300.00 No There was an ER approved and signed by a number of members of the Supporting Committee and a receipt was attached to the ER N/K now missing 27/7/2000 134 Missing $750.00 No There was an ER approved and signed by a number of members of the Supporting Committee and a receipt was attached to the ER (Consolidated Transcript p.1181 (15/10/07)) 81st National Sports Carnival 3/11/2000 164 Plaintiff $2,000.00 No There was an ER approved and signed by a number of members of the Supporting Committee and it was paid for by a cheque from CFM Engineering. This cheque does not appear in the audit. [1495] Whatever the amount spent on meals, function costs and entertainment, these matters were the subject of agreement by the Supporting Committee. If the Supporting Committee members interpreted their "channelling role" for the difficult task of reconciling two nations long at war was best served by holding dinners and rallies, that is not evidence of misappropriation by the plaintiff. [1496] Essentially what the defendants submit is that the Supporting Committee simply spent too much money on entertainment, meeting expenses, gifts, telephone expenses and office overheads. The misappropriation is alleged in new paragraph 17A (which I note is one of the matters the plaintiff complains had not been served) that in addition to making specific claims for entertainment and gifts, the plaintiff made general claims without any specificity as to the events or amounts or precise dates with no supporting documentation on at least three occasions, namely those marked with an asterisks on Table A in paragraph 15. [1497] I reject the submission that the plaintiff has made "general claims without any specificity as to the events or amounts or precise dates with no supporting documentation" as alleged. First of all, there are seven asterisks, not three, and it should not be left to me to work out which of these three are the ones being referred to. For example, Expenditure Resolution 310 concerning "event preparations" was not marked "evidence required" by the fourth and fifth defendants. Presumably, they satisfied themselves at the time, perhaps from checking correspondence or a folder labeled "event preparations" or some other sources that this was a bona fide expense. Fundamental to the defendants' claims, as I have noted elsewhere, is the assertion that for an expense to be claimable receipt and invoices must be physically attached to the Expenditure Resolution. In a small office where the relevant documents (such as correspondence, leases and the like) would be in constant use, this is completely impractical. [1498] Accordingly, I reject the submissions concerning the matters listed in Table A. [1499] Finally, I should deal with the submission that these were matters that were raised in the matters complained of. While it is the case that the fourth and fifth defendants did refer in the matter complained of to excessive amounts spent on entertainment, meetings, gifts and the like, they did not raise any of these matters set out in Table A. The matters that the fourth and fifth defendants raise are those which are referred to in the matter complained of. The defendants are not entitled to rely upon the material in Exhibit 8, the cheque butts of the Community First Credit Union accounts, or the Expenditure Resolutions for the purpose of considering allegations other than the allegations which are raised in the matter complained of. Justification of acts not in the matter complained of [1500] The section on page 204 of the defendants' submissions commences with a heading "Justification based on acts of misappropriation independent of [sic] those referred to in the matter complained of". Most if not all of the matters referred to on pages 205 to 296 are matters which were not referred to in the matters complained of, and therefore are matters which should have been particularised prior to trial for the reasons explained by Hunt J in Sim v Wran, supra at 317-318. I shall first deal with the matters raised in paragraph 18 of the submissions. [1501] The evidence of the plaintiff personally receiving cash donations on a regular basis has been rejected by me. I accept the plaintiff's explanation on each occasion when it is asserted that he personally received cash donations. I am satisfied by the plaintiff's evidence that on the few occasions when money was handed to him he immediately passed it to Mr Sung Joo Sung or to the bookkeeping staff. In response to paragraph (a) it is not sufficient for the second and fourth defendants to assert that by reason of the fact that certain donations (unspecified - in paragraph 18) were made in cash or that money from the Supporting Committee was drawn in cash and the financial records of the Supporting Committee do not accurately reflect on what that cash was spent can substantiate allegations to the standard in Briginshaw that the plaintiff had converted these funds and applied them to his own use. I accept the submissions of the plaintiff that reliance upon "surrounding circumstances" that make it "more likely than not" that the plaintiff was misappropriating cash funds do not meet the level of satisfaction required by Briginshaw. [1502] In relation to the cash donations until February 2000, I have accepted the plaintiff's evidence that it was the responsibility of Mr Sung Joo Sung to bank cash receipts, that he spent this cash, and that when he left the Supporting Committee he took records with him and refused to provide them. (see paragraphs 13-25 of Mr Sung Joo Sung's statement, Exhibit 72). [1503] The plaintiff gave evidence of banking cash receipts in the CFM Engineering account prior to the Committee having enough money to open its own bank account in August 1999 and of writing a cheque which was banked. I see nothing in this process to indicate conversion and the second and fourth defendants do not draw to my attention any discrepancy between the sums paid into the Supporting Committee by the plaintiff. Nor is there any evidence that any shortfall in funds has been suffered by the Supporting Committee or Sports Council as a result of misappropriation, or evidence that cheques made out to cash were misappropriated by the plaintiff, or independent corroborative evidence that expenditure incurred by the Supporting Committee not supported by receipts has been misappropriated by the plaintiff, or used for purposes other than what is demonstrated in the receipt. [1504] Throughout the second and fourth defendants' submissions, there are assertions that no other person was involved in the use of the money than the plaintiff. [1505] I had indicated elsewhere that the practice of using cash cheques is understandable in a small voluntary unincorporated association which is not income producing, is run by volunteers, has a Constitution requiring minimal record-keeping and does not propose to file a tax return. I also note that the plaintiff gave evidence that the seventh defendant and the vice chairman were also able to, and did, write cheques payable to cash (Daily Transcript 290, 12 June 2007, Day 9). [1506] As to the list of cash donations at paragraph 22 (pages 208-209), I note the following: (a) $5,000 donated by "Mr Kim Young Hee" – this should be Mrs Kim. I have rejected the defendant's submissions concerning Mrs Kim in more detail elsewhere in this judgment; (b) $3,000 from Korean Telecom – this was disclosed by the plaintiff in the revised list of donations (Exhibit 73); (c) Wan Dae Po - $200 – I accept the plaintiff's evidence that this was a cheque and he cannot recall what happened to it; (d) $500 donated by Mr Dae Won Kang – I note this has been deleted, without any explanation; (e) $500 from Mr Patrick Lee – I have not accepted Mr Lee's claim that he donated this money, which was not made until September 2007 despite his active involvement during the audit process and his claim that the fourth defendant was present when he handed over the donation; (f) $1,000 donated by Won Kang in or about November 1999 – this sum has now been located in the green book as the defendants concede; (g) Korean Veteran Association of Australia – I have set out a lengthy discussion of this alleged misappropriation below. This is the only claim for which there is contemporaneous documentary evidence; (h) $100 donated by Mr Eom and Mr Choi in or about April 1999 – this sum was recorded in Mr Sung Joo Sung's cash book, which is why it was not disclosed in the list provided by the plaintiff. The plaintiff has added this item to the list of donations which he published on 23 February 2001(Exhibit 73); (i) $1,000 donated by the second defendant – again this was noted in Mr Sung Joo Sung's green book and was one of the donations listed by the plaintiff in his list of actual donations published on 23 February 2001(Exhibit 73); (j) $100 donated by Hee Jung Sung in April 1999 – again this was listed in Mr Sung Joo Sung's green book and is disclosed by the plaintiff in the 23 February 2001 list (under the name Sung Hwi Jung) (Exhibit 73); (k) $200 donated by Mr Sang Yun Lee – this is also set out in the list published by the plaintiff on 23 February 2001 (Exhibit 73) under the name Lee Sang Gyun is a reference to this person; (l) $100 donated by Sang In Han – this is also recorded in Exhibit 73 under the name "Han Sang In"; (m) Jong Jin Kim - $100 April 1999 – this sum was also recorded in Mr Sung Joo Sung's green book, which he withheld from the plaintiff; (n) Finally, $280 April 1999 – this is the donation by the Boston Sports Council and was recorded by the plaintiff in Exhibit 73. [1507] The central issue is whether the defendants can establish that the plaintiff received cash donations personally and misappropriated them. Allegations that the plaintiff received cash donations personally and misappropriated them [1508] These are as follows: (a) $200 donated by Wan Dae Po Restaurant in or about 28 July 2000; (b) $500 donated by Mr Patrick Lee in or about "November 1999"; (c) the $500 donation by the Korean Veteran Association "in or about June 1999"; (d) $1,000 donated by Mr Won Kang in or about November 1999; (e) $1,000 donated by Mr Jae Kyung Lee (the second defendant) "and other persons" in or about 17 April 1999. [1509] It can readily be seen that these are repetitions of matters previously raised. In relation to Mr Won Kang and Mr Jae Kyung Lee, these are amounts which were recorded by Mr Sung Joo Sung in the green book, in circumstances where no claim of misappropriation could be put, and the plaintiff in fact listed the second defendant's donation and the other donations in his 23 February 2001 list (Exhibit 73). [1510] I have indicated elsewhere the reasons why I do not accept the evidence of Mr Lee. I see from the written submissions it is now asserted that he made this donation in or about "November 1999" (page 226). He said that this occurred in the office of the Korean Society. However, as the Supporting Committee's own records clearly demonstrate, the Supporting Committee had moved to its new premises in late August so Mr Lee could not have made this donation to Mr Cha in the offices of the Supporting Committee in November. Mr Lee also said in his evidence that it occurred in August or September, and I have dealt with these dates as being the more likely ones, but if this allegation is now to be put forward on the basis that it was a donation made in November, then clearly the location is wrong, which confirms the correctness of my finding in relation to this donation if the date for it being given was August or September. [1511] Thus, the remaining matters are the $200 donated by Wan Dae Po Restaurant, which the plaintiff said in evidence was a cheque (Daily Transcript 544, 24 September 2007, Day 17) and the amount of $500 donated by the Korean Veterans Association "in or about June 1999". I shall deal with the Korean Veterans Association donation first. [1512] The allegations made concerning the misappropriation of money by the plaintiff from the Korean Veterans Association are, in my view, a key indication as to whose evidence should be accepted, and whose should be rejected, in this case. This is because the Korean Veterans Association wrote a letter in clear and unambiguous terms about the two financial transactions they had with the Supporting Committee. "$500 donated to the Supporting Committee by the Korean Veterans Association in or about June 1999" – pages 227 – 9 defendants' submissions [1513] Paragraphs 108 to 118 of the defendants' submissions deal with this allegation. It is the third claim to appear under the heading entitled "Misappropriation where there is evidence that the plaintiff personally received a donation, usually in cash, on behalf of the Supporting Committee and did not deposit the donation into the bank account of the Supporting Committee or otherwise account for the donation." (written submissions, page 221). The title given to this claim is "$500 donated to the Supporting Committee by the Korean Veterans Association in or about June 1999" (submissions, page 227). I have put this subheading at the top of this section, in quotation marks, for special reasons. I am dealing with this submission out of order, because the Korean Veterans Association of Australia was the only organization or person to notify the plaintiff and the auditors of a missing donation prior to the audit commencing, and because there is a significant document trail as a result. It is by analysis of the facts of this alleged misappropriation that one can arrive at a better understanding of allegations where there is less documentary evidence. [1514] I will commence this section by noting that there was in fact no donation to the Supporting Committee by the Korean Veterans Association "in or about June 1999" as asserted by the defendants. In fact, the Supporting Committee sent the Korean Veterans Association a donation for $500 in June 1999. There was a donation by the Korean Veterans Association in the form of a cheque dated 5 October 1999. Could there be a simple mistake in the date? The date was not something that Koreans would make a mistake about, because 27 June is Remembrance Day in Korea, to celebrate the armistice between North and South Korea, and the purpose of this donation from the Supporting Committee was for expenses related to commemorating this solemn occasion. [1515] I also note, by way of background, that the Korean Veterans Association was represented at the meeting to set up the Supporting Committee on 1 May 2008. The plaintiff, the second and seventh defendant and some of the Supporting Committee members had belonged to the Korean army and some of the older witnesses in this case (e.g. 77- year-old Mr Yong Kwang Kim, who was the plaintiff and second defendant's commanding officer: Daily Transcript 2258 23 March 2008) would have lived though the Korean War. [1516] When the plaintiff published the Supporting Committee report on 24 November 1999, he provided details for people to contact both the Supporting Committee and the auditors to raise any queries. The only letter received (and it was addressed both to the plaintiff and to the auditors) was a letter from the Korean Veterans Association dated 9 December 2000. The text of this letter, and its addressees, are important, so I have highlighted the relevant extracts. They are as follows: "9 December 2000 Veterans Australia No. 52 To: Chairman, Mr Jae Sang Cha of the Olympic Korea-Australia Support Committee cc.: Auditors of the Korea-Australia Support Committee From: The Korean Veterans Association of Australia Subject: Requesting correction of the account settlements of the Olympic Support Committee Thank you for your service to the Korean community. 1) We would like to confirm the supporting fund of $500 to the Korean Veterans Association of Australia relating to item number 14 of the event supporting fund in the Olympic support Committee's settlement of accounts, after receiving some requests from the elders of[sic] the veterans and executives . 2) This association confirms that we received $500 from the Chairman of the Olympic Support Committee on 27th June 1999 for the 1999 event of remembrance of the Korean War. However, in the year 2000, 50th Remembrance Day of the Korean War, no one from the Olympic Games [sic] or the Sports Council of Australia attended the event and no money has been donated. 3) We would like you to confirm that you received $500 from our association in response to the support fund from the chairman of the Olympic support committee on 27th June 1999 for the event of the Korean War Remembrance Day in the spirit of appreciation and support for the Olympics ( Refer: 5th October 1999 National Bank Cheque Number 000012). 4) We want you to refer to the above in your operation and would like to ask one question. In the list of supporting funds from Korean residents of the closing accounts of the Olympic Support Committee presented on 24th November 2000, the item of receiving the supporting fund of $500 (5th October 1999) from the Korean Veterans Association was missing but $500 from the Olympic Support Committee towards the event was listed. This caused some concern among the veterans and executives who said this Olympic Support Committee could be misunderstood for an immoral organization after they missed out an item of receiving funds for the organization despite their purpose of raising funds for the Olympics. 5) We want you to make the correction either by inserting the supporting fund of $500 from the Veterans Association or take out the item of the supporting fund towards the Korean Veterans Association in your expense list. Wishing your organization every success, The Korean Veterans Association of Australia Chairman of Australia Branch, Sin Young Lim/seal affixed." (Exhibit 70 tab 15; emphasis added) [1517] The Korean Veterans Association was pleased that the Supporting Committee provided a donation of $500 for the annual Remembrance Day on 27 June 1999. Their complaint was not that this sum was donated, but that in the year 2000, the 50th anniversary of the Korean War, no one from the "Olympic Games [sic] or the Sports Council of Australia attended the event and no money has been donated". (This reference to the "Olympic Games or the Sports Council" as the recipient is significant, for reasons I will set out further below). Most importantly, however, they wanted to know what had happened to the $500 Korean Veterans Association donation that was missing out of the list, especially as the donation to the Korean Veterans Association had been listed. [1518] To whom did this letter go? It is addressed to the plaintiff, with "cc" to the auditors, but he said he never received it. However, the fourth defendant did receive it. He says at paragraphs 46 – 48 of his statement: "46. In relation to some of the donations that were claimed to have been made but omitted from Mr Cha's accounts I did checks. For example, I obtained a statement from the chairman of the Korea War Veterans Association to verify [sic] that organization. 47. At exhibit HJP 1 tab 8 is a copy of the list I compiled of persons who had made donations but whose names were omitted or misstated in Mr Cha's list. 48. At exhibit HJP tab 9 is the certificate I obtained from the Chairman of the War Veterans Association" (Exhibit 70) [1519] At tab 8 there appears the note, at item 46: "Korean Veterans Association (Refer to D10) Falsified to have been donated by CFM, although contributed by the association." [1520] Thus the donation of the money to the Korean Veterans Association appears to have been conceded by the auditors; their concern is that the plaintiff falsified the identity of the donor, claiming it was from the plaintiff's company when it was actually a donation by the Supporting Committee. However, this is not what the first auditor's report which is the 1 March 2001 matter complained of says. It says clearly at lines 109 – 110 "$500 to Veterans Association (Veterans Association claims that they did not receive it)". [1521] I shall first deal with the 27 June 1999 donation to the Korean Veterans Association. I have highlighted the transcript reference pages to make the evidence easier to follow. The 27 June donation to the Korean Veterans Association [1522] The plaintiff was cross-examined about the 27 June 1999 donation to the Korean Veterans Association of $500. It was not put to him that the Korean Veterans Association did not receive the money. It was not put to him that he falsified this donation as being from his own company when it was actually contributed by the Supporting Committee. It was put to him in cross-examination that the donation of this sum was outside the purposes of the Supporting Committee: (a) Daily Transcript 926, 8 October 2007, Day 23 "Q. Mr Cha, if I could take you to paragraph 2. It's the statement that you gave to the Korean Veterans Association in your capacity as chairman of the Olympic supporting committee, on 27 June 1999, the sum of $500 for an event of remembrance of the Korean War. … Q. --this would be a payment from the supporting committee that had nothing to do with the activities of the supporting committee? A. I mean, in the Korean custom I was told that it's all committees and associations helping each other and it's the way it's done so I did so. I can find it, 27 June 99." (b) Daily Transcript 931, 9 October 2007, Day 24 "Q. Mr Cha, what I'm putting to you is that the resolution was passed by the supporting committee on 26 June 1999, number 4, to approve a paint of $500 for the Korean War Veterans Association has nothing to do with the purposes of the Korean War Veterans Association." It was put to the plaintiff that his real motive in doing this had nothing to do with the Supporting Committee and was simply to "impress" himself on the Korean Veterans Association. (c) Daily Transcript 927, 8 October 2007, Day 23 "Q. I put to you, Mr Cha, that the payment of $500 to the Korean Veterans Association by you was purely a payment to do with your attempting to impress yourself with the Korean Veterans Association and the payment had nothing to do with the activities of the supporting committee. A. Well, as I said earlier that it was the customs, the way it was done in the community and if you say that, what can I say?" [1523] It was put to the plaintiff that his real motive in doing this had nothing to do with the Supporting Committee and was simply to "impress" himself on the Korean Veterans Association. Mr Wheelhouse SC explained to me at Daily Transcript 941 (9 October 2007, Day 24) that this donation to the Korean Veterans Association Remembrance Day was an offence of misappropriation under the Crimes Act: "HER HONOUR: But you just told me that if they give money to the Korean Veterans Association that this is not permissible. WHEELHOUSE: But not to commemorate a war event. It's an entirely different thing. No, it's the old section from the Crimes Act. It's the old Act that corporations can only use money of corporations for the objects of the corporations. And when directed, for example, to use money of corporations for their own private purposes, that's an offence under the Crimes Act. That's the way it works. HER HONOUR: You're telling me that it would be an offence under the Crimes Act for this body, which is aimed at playing a channelling role for the unity of the Korean community to give a donation for a memorial day for the Korean War? WHEELHOUSE: Yes." [1524] Mr Wheelhouse repeated this submission (Daily Transcript 943, 9 October 2007, Day 24) and explained, when I inquired whether Korean veterans might have a special interest in the Olympics because of the teams marching together into the arena, that: "WHEELHOUSE: These are Korean-Vietnam veterans, your Honour. HER HONOUR: Are you saying because it's Korea and Vietnam veterans that-- WHEELHOUSE: No, I'm just explaining what - as we know - it's a Korean/Vietnam Veterans Association that received the donation on 29 June. HER HONOUR: Are you saying it's because it's Vietnam that this is in some way a misuse of the funds, because some of them are Vietnam veterans as well? WHEELHOUSE: Your Honour, there's a basic concept and it's particularised. The basic concept is that a corporation cannot use money provided to the corporation for purposes outside the objects of the corporation. When directors commit expenditure for purposes outside the object of a corporation they in effect misappropriate the money of the corporation. They misappropriate it because they use it for a purpose other than for a defined purpose of the corporation. Now the same thing applies when a director of a committee that obtains money by subscription to the public by accepting donations to the public when you are governed by a constitution that has in it an article that the reasons for the donations are to fulfil the objects of the association." [1525] Although the plaintiff was not cross-examined about the allegation that this donation was never made at all, the fourth defendant asserted during cross-examination that the plaintiff had only pretended to donate this money to the Korean Veterans Association, and had in fact put it in his own pocket. At Daily Transcript 3012 (6 April 2009, Day 64) I asked: "Yes, can you just help me out, just explain why it was wrong of the Olympic Committee to give money to the Korean War Veterans Association. WHEELHOUSE: The KVA. HER HONOUR Q. Yes, the KVA. Can you explain that to me? A. INTERPRETER: It's not wrong to give them some donations to that association but it was wrong to record as if something has been paid and in fact nothing was paid to an organisation. Q. Are you saying the money that was recorded as being paid to the Korean veterans was not paid; it was actually a fraudulent entry? A. INTERPRETER: Yes, because there is a letter from the chairman saying that in that, to that effect. HER HONOUR: I see. So in fact - am I right in assuming, Mr Wheelhouse, that that's part of your case, that the money that is supposed to have been paid to the Korean Veterans Association was in fact put in somebody's pocket and never paid to them? Is that right? WHEELHOUSE: Yes. HER HONOUR: You're nodding. I'm going to take that as a "yes". Thank you for explaining those things to me." [1526] In other words, the plaintiff was trebly guilty of misappropriation: (a) he should not have permitted a donation to the Korean Veterans Association for Remembrance Day on 27 June as it was outside the purposes of the Supporting Committee and thus misappropriation under the Crimes Act 1900 (NSW), according to Mr Wheelhouse SC. In seeking reimbursement from the Sports Council, the plaintiff was guilty of misappropriation. (b) Secondly, despite the letter from the Korean Veterans Association of 9 February 2000 confirming this donation had been received, the fourth defendant said (both in the matter complained of dated 1 March 2001 and in cross-examination) the plaintiff had never donated this sum, but put it in his pocket, and this was also misappropriation. (c) In addition, the auditors stated in the list of persons whose donations had been omitted that the plaintiff had "falsified" the $500 donation as being from his own company when it was in fact from the Supporting Committee (Exhibit 70 tab 8, page 2) The 5 October 1999 donation of $500 by the Korean Veterans Association [1527] However, what about the missing $500 donation the Korean Veterans Association was complaining was not noted? Where was this money? [1528] As the only person or organisation providing a written response confirming a missing donation, the Korean Veterans Association's letter of 9 December 2000 is raising a very important allegation. Why is this claim of a missing donation of $500 not referred to in the matters complained of? The other persons listed in the document at tab 10, as I have pointed out elsewhere in this judgment, consists of names of all the donors including those whose names the plaintiff published on 24 November 2000 and 23 February 2001. A claim of "Missing Donation of $500 dated 5 October 2000 from the Korean Veterans Association" would, however, be important evidence, especially since it was backed up by a letter from the Korean Veterans Association confirming the donation, the cheque number and other details. [1529] The plaintiff was cross-examined on 5 October 2000 about whether the Korean Veterans Association donation "was paid to the Supporting Committee". However, the thrust of this cross-examination was, surprisingly, not about whether this donation was missing: "Q. Mr Cha, do you recall that $500 was paid to the supporting committee by the Korean Veterans Association of Australia on or about 5 October 1999, by their cheque? A. Yes, it was while we had an event on at Burwood RSL. Q. Mr Cha, did the Korean Veterans Association write to you and ask for you to explain why their donation did not appear in the accounts that you published? A. Sorry, the money that was donated to the supporting committee, I didn't receive it and I wasn't aware of that and no-one has confronted me why that wasn't announced in the —" (Daily Transcript 925, 8 October 2007, Day 23) [1530] Although the plaintiff's answer was cut off, he went on to say he did not receive the Korean Veterans Association letter of 9 December 2000, and an issue is made of this denial in the defendants' written submissions, pointing out that the letter is addressed to him. [1531] First of all, did the plaintiff misappropriate this cheque for $500 dated 5 October 1999? The answer is no. The cheque in question is agreed by the defendants in submissions to have been banked in the Sports Council's bank account on 7 October (defendants' submissions, page 229, paragraphs 116 – 8). The defendants assert that the cheque must have been banked by the plaintiff on 6 October, but the cheque was clearly deposited on 7 October. There was no evidence the plaintiff did the banking for the Korean Sports Council, and in addition on 7 October the plaintiff flew to Korea. [1532] Why would the bank accept a cheque payable to the Supporting Committee as a deposit into the Korean Sports Council account? The most likely explanation, given the reference to the Korean Sports Council in the letter, is that the cheque, while intended for Olympic purposes, was written out to the Korean Sports Council or some variant of name. [1533] This would explain why the Korean Veterans Association donation was not credited to the Supporting Committee's account during the audit. [1534] Whether the plaintiff received this letter addressed to him or not (and I am of the opinion he did not), the fourth and fifth defendants clearly did, as the fourth defendant's statement, the audit documents (see Exhibit 70 tab 8) and the first matter complained of makes clear. [1535] The most likely explanation for this serious claim of a missing donation of $500 to the Supporting Committee is that this matter was looked into in December 2000, the money speedily located in the Sports Council account, and everyone realised the money was not missing at all. (I should add that the circumstances in which this money was donated to the Sports Council is indicative of an understanding by some persons in the Korean community that the Sports Council was involved in Olympic activities). [1536] If the 5 October 1999 donation to the Supporting Committee is not missing, and the June 1999 donation by the Supporting Committee to the Korean Veterans Association was received by them, which $500 donation do the defendants say was misappropriated, and why? Which $500 donation are the defendants talking about? [1537] The defendants still submit that even though the missing October 5 donation of $500 has been located, and the receipt of the 27 June donation of $500 is confirmed by the Korean Veterans Association letter of 9 December 2000, the plaintiff is guilty of misappropriation of $500. [1538] This submission is put on the following basis. When the plaintiff made the donation in June 1999, the Supporting Committee had no money, so he wrote out a CFM cheque. When the plaintiff later made a claim to the Korean Sports Council for reimbursement of money he paid on behalf of the Supporting Committee, one of the items for which he claimed reimbursement was the $500 he sent as a donation to the Korean Veterans Association on 27 June 2000. This was, the defendants submit, outside the purposes of the Supporting Committee, and the plaintiff's claim for reimbursement from the Sports Council should not have included this sum. Thus, the plaintiff is guilty of misappropriation for claiming (and receiving) a reimbursement of the $500 the Supporting Committee donated to the Korean Veterans Association. [1539] I have set out, in the sections of this judgment concerning the purpose of the Committee, my findings that the channelling role of this Committee related to all aspects of the Korean community. The involvement of those members of the Korean community who had fought for their side during this tragic war, or in the subsequent Vietnam War, would need particular community attention and support. I cannot imagine how they would have felt at the moment when the North and South Korean teams marched into the stadium together. I can, however, find that of all of the purposes of the Supporting Committee, this was one of the most sensitive, and the most important. The letter of 9 December 2000 from the Korean Veterans Association is strong evidence of this. They did not consider it was outside the purposes of the Supporting Committee, or the Korean Sports Council, or both; their concern was that it should have been done in 2000 as well. [1540] The donation to the Korean Veterans Association, like the other donations and supports provided by the Supporting Committee, was carried out by the Supporting Committee as a whole. The objections to the other donations referred to in this part of the 1 March 2001 matter complained of are similarly without merit. The objection to donation of $1,000 to the Korean Welfare Association (line 111 of the 1 March 2001 publication), $300 to the Ho Nam Homeland Association (line 109) and $1,000 for the Korean Cultural Festival (lines 110 – 111) were never put to the plaintiff as being matters outside the purpose of the Supporting Committee, although the fifth defendant (Daily Transcript 2869, 2 April 2009, Day 62) still insisted they were wrong, and the $1,000 for the 2 August 2000 cultural festival is one of the items on the defendants' list of "contextual misappropriation" items for imputation 43(a) (defendants' written submissions page 316, paragraph 18). [1541] I observed the plaintiff's demeanour in the witness box while he was being cross-examined about these matters. To my observation, the allegations that he misappropriated $500 from the Korean Veterans Association really hit him hard. It was put to him that he was expelled from the Korean Veterans Association as a result, but he replied that the reason he was expelled was because of the allegations in the matters complained of: "Q. I put to you that you were expelled from the ROKMC Veterans Associations, which is - we understand to be - the Korean Veterans Association of Australia. A. Not just the KOK Veterans Associations - but even the golf associations - all decided to take my own off or expel me from those associations because it was announced in the newspapers that I was an embezzler and I was a cheater and so on, so without my knowledge this was happening and that is why I'm here now in this position trying to justify what happened and what really went on. HER HONOUR: Mr Wheelhouse, look at the time, it's after 4.00." (Daily Transcript 929, 8 October 2007, Day 23) [1542] I reject the defendants' submissions that the plaintiff misappropriated "$500 donated to the Supporting Committee by the Korean Veterans Association in or about June 1999". [1543] This allegation, and the way it is presented, is a good example of what is wrong with the way that the defendants presented their case. I have set out the defendants' changing and inconsistent allegations in detail because this is one of the few allegations where there is contemporaneous documentation that can be checked against what the defendants allege. [1544] The defendants have put a "vast" (Cross v Queensland Newspapers at [123]) number of allegations before me for consideration, all of them particularised after the trial commenced and the majority of them put to the plaintiff in cross-examination without prior notice and supporting discovery documentation. The defendants' submissions consist of lists of these transactions, with only brief information which is often (as in the case of this alleged donation by the Korean Veterans Association of $500 "in or about June 1999") misleading and left the rest to me. If, in my attempts to work out what really happened, I make any errors, then this will be grounds for complaint to appellate courts in the hope of a successful appeal. Whether this is an acceptable way to conduct litigation is a matter for those courts to determine. Korean Telecommunications [1545] Korean Telecommunications made a donation of $3,000. The plaintiff said in cross-examination: "Q. Mr Cha, Mr Cho says that the donation of $3,000 made by Korean Telecom was a donation made in cash. Do you agree with that? A. Yes. Q. Do you recall that the cash was first given to Mr Cho? A. No. When I went to the office that morning Mr Cho called me aside and without any reason he asked me to come over to Silla Restaurant, and without knowing what it was all about I went. Went upstairs, knocked on the door and they said to come in so we went in. And he greeted me and said, "Yes, come"-- Q. Is this Mr Cho about whom you're speaking? A. No, Mr Cho accompanied me to the restaurant. And that 3,000 was given to me personally and Mr Cho asked me to use it for your own - money, as something that you keep as an extra, like keep it as that type of money on the side, and I said to him, "What are you talking about? What are you going on about?" Yes, and I said, "Don't talk nonsense; this $3,000 is not given - mean anything to me in my life and", you know, "you've got, you made wrong impression of a person." Q. Mr Cha, would you mind going to exhibit 5 for me, please, which is still in front of you, to the page written out in your handwriting. You'll see there's a reference to Korean Telecom $3,000. Do you see that in your handwriting? A. Yes, it is. Q. That's the $3,000 that we're talking about, isn't it? A. Yes. Q. Mr Cha, do you agree that that $3,000 was not paid into the account of the sports council? A. Yes, as I mentioned earlier, that it was used for the cheering squad's uniform, and that was given to use for that expense. When I wrote "sports council" next to that money as it's referred in paper, when I was doing my own records and my own recording it's just written there as the sports council. Q. Mr Cha, do you agree that the sum of $3,000 does not appear in exhibit A, which are the accounts you published on 24 November 2000? A. As I said, whether the paper got it wrong in not - or whether we did not get mention, but that wasn't the last of the announcements to the papers. After the auditing had ended we were going to do a proper announcement of the donations received." (Daily Transcript 889 – 890, 8 October 2007) [1546] The plaintiff was correct in drawing this to the court's attention, because he did in fact publish a revised list on 23 February 2001, and that did include this sum. It is not to my credit that I told him not to volunteer this information and was critical of him for going beyond answering the question. When the plaintiff prepared the financial statement he published on 24 November he was labouring under the double disadvantage of having to do it himself after the seventh defendant refused to help and without having the accounts records maintained by Mr Sung and Miss Chae for the period prior to Mr Sung's departure in late March 2000. [1547] The seventh defendant said that he was the person who took the donation of $3,000 in cash from Korean Telecom. The plaintiff submits that the version of events given by him is more probable. [1548] In addition to the memory problems that the seventh defendant had in 2004 concerning the Olympic tickets, he had health problems when he gave evidence, and his cross-examination was interrupted when an important exhibit (the Korean version of the minutes of meeting) was found to be missing from the Exhibits table. When he returned to complete his cross-examination six months later, he had recently been diagnosed with lung cancer, and told the court that he was tired, which was understandable. He repeatedly said that he could not remember what happened ten years ago. He did not answer some questions, and simply started to get out of the witness box to leave the court on several occasions. I had to ask him not to leave the witness box (Daily Transcript 30 March 2009) and I eventually let him go on the understanding that no Browne v Dunn points would be taken concerning the failure of Mr Evatt to put matters to him. [1549] There is no evidence the plaintiff kept this money for himself, or for his own use. The second defendant asks me to draw inferences that are not supported by any evidence. [1550] I accept the plaintiff's evidence concerning this money and the use to which it was put. The Olympic tickets money [1551] The reservations I have concerning the seventh defendant's evidence apply with even more force to the issue of whether the plaintiff asked for the balance of monies left over after the seventh defendant purchased Olympic tickets. He swore answers to interrogatories in 2004 evincing his inability to remember, which was confirmed by his statements in the witness box that he could not remember events ten years ago, and by the time he gave evidence in 2008 and 2009 he was unwell in addition to being forgetful. [1552] The plaintiff was cross-examined about statements he made to the cross-defendant that the sum he received was $1500 and not $800. He said this was an error in the cross-defendant's report and the cross-defendant also said this in evidence. [1553] The second defendant notes that "the plaintiff did not call the driver, Mr Lee, although during the course of the trial threatened to do so on many occasions" (written submissions page 290). However, the onus of proof lies on the defendant, not the plaintiff. [1554] There is no evidence that the plaintiff kept the money for himself or for his own use. If he says he gave the cash to the bus driver, this is not contradicted by the fact that the bus company sent an invoice that was paid. Other cash donations [1555] The donation made by Mr Won Kang was in fact recorded in November 1999 by Mr Sung Joo Sung. This sum of money is not missing. It was omitted from the list of donations because the plaintiff did not have the books of account Mr Sung Joo Sung and Miss Chae maintained for this period. [1556] I do not accept the evidence of Mr Patrick Lee that he donated $500 as alleged. [1557] In relation to a donation by "Wang Dae Po", the only information about this donation is the notation in the minutes that a donation from Wang Dae Po was handed to the plaintiff. The plaintiff thought it was a cheque but could remember nothing more. There is no evidence from Wang Dae Po (which is a restaurant name, not a person's name). This claim was not raised during the audit and was particularized some weeks into the plaintiff's cross-examination. [1558] There is no evidence to suggest that the plaintiff kept this donation and applied it to his own use. What the plaintiff did with this cheque (or cash) nine years ago is lost in the mists of time. The fact that he went to the bank the following Monday to deposit other funds does not mean that he put this sum into his pocket and it would be "conjecture" (Westbus Pty Ltd at [20]) to find that he did so. In circumstances such as this, the Briginshaw onus cannot be discharged. Payment of the plaintiff's personal telephone expenses – pages 234 - 241 [1559] Payment of these telephone accounts was approved by the Supporting Committee in accordance with Expenditure Resolutions. I accept the submissions of the plaintiff that the money cannot be said to have been wrongfully converted if the payment of the money was duly and properly authorized by members of the Supporting Committee (plaintiff's submissions [16.5]. [1560] It is no answer for the defendants to point to individual telephone calls that were calls to the plaintiff's company customers. The Supporting Committee paid other telephone accounts in the same way, namely payment of the whole account in circumstances where some of the items were unrelated to the activities of the Supporting Committee, notably the mobile phone bills of the seventh defendant. The requirement that each telephone bill be parsed and analysed to ensure that only Supporting Committee-related expenses should be reimbursed would be time-wasting and inappropriate for a voluntary association even with sophisticated accounting standards, as opposed to the much lower standards applicable to the Supporting Committee. [1561] I note that the few items that the defendants can point to on these telephone bills (see the two affidavits in Exhibit 77) form a very small proportion of the plaintiff's telephone bills. Cash cheques drawn by the plaintiff without supporting documentation and loans – pages 242 – 244, [1562] In relation to cash cheques, I repeat my finding that the drawing of cheques payable to cash, like the use of a card key to withdraw cash from a cheque account, is not a procedure capable of amounting to misappropriation. The Joon Kim loan – pages 244 - 254 [1563] The defendants assert there was a false representation by the plaintiff designed to hide the fact that he misappropriated at least $10,000 of the Supporting Committee's money in a series of transactions commencing with a loan of $10,000 from Mr Joon Kim. [1564] The circumstances of this loan really are quite simple. The Supporting Committee was in financial difficulties and needed money. However, who would lend money to an unincorporated association with no assets? The plaintiff asked Mr Joon Kim for a loan but while Mr Joon Kim was not prepared to loan $10,000 to an association that "didn't have anything" (Daily Transcript 415, 19 June 2007, Day 13), he was prepared to lend it to the plaintiff's company, CFM Engineering. The plaintiff accordingly accepted the cheque of Mr Joon Kim made out to CFM Engineering and put it in the CFM account. He then wrote out a CFM cheque for $10,000 to the Supporting Committee on 6 June 2000 and gave it to the Financial Director Joo Yong Jo to bank, which he did on 8 June (Exhibit 18). [1565] Unfortunately this was the wrong account, and as a result eight Supporting Committee cheques were not met on presentation. On 28 June the $10,000 was transferred from Supporting Committee account No 703860 to account no. 706295, the account the plaintiff and Joo Yong Jo had opened after problems with Mr Sung Joo Sung withholding one of the cheque books. [1566] Mr Joon Kim wanted interest on his loan, so as soon as the Supporting Committee was in a position to pay him out, namely 14 July 2000, they did so, in Expenditure Resolution 115, which paid $10,000 plus $300 interest. He provided a receipt for this, which is attached to the ER. However, in practical terms, Mr Joon Kim had lent the money to the plaintiff's company (and would have told a court this was the case if the loan had not been repaid) and the fact that the Supporting Committee repaid him cannot change the identify of the loan parties. [1567] It is not in dispute that the plaintiff financially underwrote the Supporting Committee for the entirety of its life and that the amounts he put in were substantial. He was in fact reimbursed about $60,000 of the $71,000 his accountant estimated he had paid. On 21 August 2000 he withdrew $20,000 from the Supporting Committee as "repayment to private borrowing". [1568] The defendants submit that there is a connection between these two events, and that the whole circumstances of the "series of transactions" (paragraph 195, p. 244) were designed to hide the fact that the plaintiff misappropriated $20,000. [1569] The Joon Kim loan was a perfectly straightforward transaction that had nothing to do with the plaintiff's seeking of a repayment of $20,000 of the money he had advanced to the Committee. [1570] The plaintiff's evidence was that some of the monies he had put into the Supporting Committee had come from another person, Mr In Gee Kim, and he wanted to pay him (Daily Transcript 348, 14 June 2007, Day 11). He said it was a "gentleman's agreement" (Daily Transcript 353, 14 June 2007, Day 11) and there was no document (there was no document in relation to Mr Joon Kim either). [1571] I accept the plaintiff's evidence on this issue, and I make similar findings in relation to the $5,000 loan (pages 254-256 of the submissions). New Allegations of theft arising in relation to Cheque No 116491 [1572] The first clear particular of any claim about cheque 116491 was made in August 2007, and following my request for clearer particulars it was listed in Allegation 1 of the particulars dated 3 October 2007 (summarized above) the defendants listed 13 cheques drawn by the plaintiff in August 2000 (totaling $40,526.50) which it was asserted he had converted to his own use and benefit by drawing cash cheques "contrary to the direction to the CFCU that each cheque drawn on the said accounts be signed by two authorized persons". [1573] Cheque no 116491 is referred to in the section on cash cheques as "perhaps the most egregious example" of the plaintiff writing cheques to cash without a second signature or documentation. [1574] I have set out above that I have accepted the plaintiff's submission that there is no connection between the repayment of the $20,000 loan (cheque 114691) the plaintiff made and the Joon Kim loan (submission 16.6.1), which is the allegedly suspicious series of transactions in which this cheque for $10,000 was paid into the CFCU account of the Supporting Committee. [1575] When comparing the submissions of the plaintiff and defendants I see that a new paragraph 193 has been added alleging the plaintiff misappropriated to his own use the whole of the proceeds of cheque 114691, the asserted evidence being that the money was not deposited into the CFM Bank account and the plaintiff did not acknowledge receipt "by any form or documentary acknowledgement" [sic]. This has not been answered by the plaintiff in submissions at 16.6.1. [1576] I granted leave to the defendants to provide revised submissions after my peremptory order, on the understanding that corrections and alterations would be made. This allegation that the drawing of this cash cheque is "straight theft" by the plaintiff of $20,000 is new. [1577] References to this cheque number occur at the following places in the submissions: (a) at 5(ix), to note it is in the plaintiff's handwriting; (b) at paragraph 27 – 28 to say it is one of the most egregious examples of writing cheques without documentation or a second signature (c) at paragraph 57 (p. 81), to note it is not in the Committee's red book (see the lists on pp. 85 and 87) (d) at paragraph 46 on p. 103 to note that Mr Finney omitted it from his schedule. Mr Finney gave no evidence about this cheque. (e) At paragraph 66 p. 149, to note there is no documentary verification (f) A new claim is then made, at the paragraph that now becomes paragraph 193 (page 244 of the hard copy), to say it is " a straight theft by the plaintiff of the sum of $20,000". (g) At paragraphs 197 and following, to assert it is connected to the Joon Kim loan, with a new claim at 197(b) that this sum was "likely to have been part of a deposit into the account of CFM Engineering on 6 June 2000" (page 245), followed by the plaintiff's cross-examination on 19 June 2007. (h) At paragraph 206 or 207 on page 256 (or 258, as the numbering on the hard copy changes because of these substantial additions), to assert that by drawing this cheque the plaintiff was "misappropriating $5,000 to his own use". (i) A further added reference to reply on this cheque has been added as paragraph (xv) on page 295 of Chapter 16. (j) There is a reference for imputation 43(a) relying on these submissions. [1578] The allegation raised in the paragraph newly numbered 193 were not put to the plaintiff and there is no expert evidence on this issue. [1579] The plaintiff in written submissions advises that they have not been served with the revised version of the second defendant's submissions, and in particular that despite "repeated written requests" (paragraph 34.1.6) they were not provided with an electronic version of the submissions. Consequently they prepared their submissions on the basis of the printed copy of 22 May only. Where a party is faced with "vast" numbers and documents (I gratefully borrow Beazley JA's description of the documentation in Cross v Queensland Newspapers, supra, at [143]), this is not procedural fairness. [1580] It is clear from the submissions of the plaintiff that they have not addressed the new paragraph, probably for these reasons. There is an enormous amount of documentation, and to read it without electronic assistance is very difficult. [1581] When I granted leave to the defendants to provide me with further submissions, it was on the understanding that these would be corrections, and that the plaintiff would receive a copy. If matters such as this new allegation were being raised, the plaintiff's lawyers should have been advised. [1582] There are other reasons, set out below, why I reject the defendants' submissions concerning this allegation of theft. However, there is an additional reason for my rejecting this claim, and that is the conduct of the second defendant in burying such a serious allegation in a mountain of documents to make it as difficult as possible for both the plaintiff and the court to answer it. "Misappropriation where there are cheques drawn on the Supporting Committee's account by the plaintiff, where the cheque butt contains detail of expenditure, the payee is "cash" and there is are no documents verifying the expenditure" (Defendant's written submissions at [213] ff) [1583] I note the defendants' statement that "prior to the trial" they subpoenaed copies of cheques and only 19 were produced, with the "majority" being cheques payable to cash, the inference being that the rest probably must be. The request for copies of cheques was made only a matter of months before the trial, and the effluxion of time and imminence of the trial meant that only selected cheques were sought and produced. [1584] I repeat my earlier finding that notwithstanding the plaintiff saying it was wrong conduct to draw cash cheques, it is not wrong where records are kept of the expenditure concerned. I also note the repeated reference of "single signatory contrary to authority" is not correct. The plaintiff gave evidence that the bank accepted cheques with only one signatory and given the nature of this Committee this is acceptable practice. [1585] I note the following concerning Table E. First of all, these expenses all relate to the month just before the Olympic Games started, when the Supporting Committee was at its busiest. Secondly, many of the expenses related to SK Securities. SK Securities sought no documentation or receipts concerning the sponsorship money they provided; their directors or employees were participating in many of these activities. Thirdly, all these expenses on their face appear to have a bona fide explanation. In particular, all but two of the cheques have a stated recipient who is a person or organization other than the plaintiff or an Expenditure Resolution. (a) Haesong $235 – this was for a dinner following donations from Jinrosoju and Euijeon according to Exhibit 7. (b) 111423 Korean Event Preparation $2,600 – this was for preparation of an event in Korea according to Exhibit 7. (c) 111403 Wang Dae Po $1,000 – this was for a "meeting" for the Korean Intelligence Service, as Exhibit 7 notes. It was attended by Secretary-General Kim of the Korean Sports Council (Korea) and there were a total of eight people. The presence of the Korean Intelligence Service in Australia and Korean sports officials for the Olympics is understandable. (d) 111404 Belmore RSL $1,200 – this cheque was dishonoured. (e) 111405 Gifts were purchased for the directors of the Sports Council and Korean Olympic Council and for Mr Kim, the secretary-general of the Korean Sports Council; see Exhibit 7. (f) 111406 Euijeon Furs was one of the SK Securities expenses, for golf and fishing expenses for the SK directors: see ER 143 (Other cheques in this list are also supported by Expenditure Resolutions, but I have not had time to list them all). (g) 111407 Mr Byung Doo Choi, according to ER 145, made a claim for $576 for badminton $268, cheer squad $120, KBS $100, flowers $27, meals $36 and a remittance fee of $25. None of this had anything to do with the plaintiff. (h) Mr In Kim made a claim for $600 reimbursement for petrol and other expenses for taking the SK Securities staff members on a tour. (i) 143145 North Korean Athletes Support Association. The plaintiff said in his evidence that he gave the North Korean Athletes $5,000 cash. This is one of three entries for cash for them and for tickets; the other two entries are 143146 and 143147. The allegation that the plaintiff did not give these monies to the North Korean team (I note that on this occasion the cheques for the tickets have been left out) is without merit. Leaving aside the contemporaneous records in Exhibit 7, it would have been common knowledge amongst the Supporting Committee members that the North Korean team were given financial assistance. (j) 165651 – this is the seventh defendant's $200 salary to himself for his bookkeeping and other activities. I cannot see how this can be claimed to be misappropriation by the plaintiff. (k) 165663 – this is for toner from Dick Smith, according to this list, although Exhibit 7 says it is a claim by the seventh defendant for the Korea Telecom team. Whatever it is, it is not monies misappropriated by the plaintiff. (l) 165664 – the plaintiff identified this in evidence as being a claim by the seventh defendant for car hire expenses. (m) 165666 – this is for petty cash, according to both Exhibit 5 and Exhibit 7. (n) 165669 – this is another claim by Byung Doo Choi. Exhibit 7 records the breakdown of the sum claimed as gifts for KT employees $170, meals for employees of the Ministry of Culture and Tourism $113, presents $550 and 8 Taekwondo tickets for VIPS totaling $640. (o) 179068 – this is the seventh defendant paying himself his allowance ($400). (p) 819107 – Sunbichon – this is for a meal for Committee volunteers on 14 June 2000 (see Exhibit 7). The 3 August 2000 date given by the defendants is wrong. (q) 182450 – as the plaintiff points out, this is one of the seventh defendant's salary payments (written submissions [16.6.5]). (r) 114676 – this is a bill for a meal in Samwon Gardens. There is an Expenditure Resolution and a receipt. There is no doubt this money was spent on the allotted purpose. (s) 114677 – Uniting Church "gifts" (according to the defendants' submissions) – this is the cheque which was intended for reimbursement of cheer squad practice of $200. and $450 was also intended for the Computing Team director. (t) 982450 – the authors of the submissions have forgotten to complete this entry. This cheque number was never put to the plaintiff as relating to a sum that he misappropriated. [1586] Looking at this list, with the abbreviated comments in the margin, this appears to be an extra table of material which has been added to the submissions in order to add to the confusion. (I am reminded, once again, of Beazley JA's reference in Cross v Queensland Newspapers to "vast" quantities of documents being tendered). [1587] None of these expenses relate to the plaintiff. I reject the submission that any of them represents money misappropriated by the plaintiff for his own (or any other) use. No supporting documentation and claims by the plaintiff and CFM for reimbursement – a repeated submission (defendants' submissions, pages 261 – 7) [1588] For each of the claims that the plaintiff has misappropriated funds of the Supporting Committee by submitting improper reimbursement claims, the defendants must establish that: (a) The expense was false, or otherwise did not exist; or (b) The creditor of the relevant expense remains a creditor of the Supporting Committee ad continued to seek payment of the debt or loan, despite being already purportedly paid by the plaintiff; and (c) The plaintiff made a claim for reimbursement in circumstances where he knew or ought to have known that doing so was wrongful or dishonest; (d) The plaintiff actually received the reimbursement money from the Supporting Committee; and (e) The Plaintiff applied the money to his own use. [1589] I am grateful to Mr Evatt, Ms Evans and Mr Lee for setting out, at [16.8.1], these essential requirements, and agree that the defendant cannot show all, or even most, or these elements, and therefore cannot demonstrate that the plaintiff had, in this manner, misappropriated funds of the Supporting Committee to his own use. [1590] I also note, and gratefully adopt, the plaintiff's reply to the supplementary submissions of the defendants at [16.9]. The loan by Mr Joon Kim – a repeated submission [1591] I repeat my earlier findings, and refer to the summary set out below. The $5,000 loan by Mr Paek – a repeated submission [1592] I repeat my earlier findings, and refer to the summary set out below. Other loans and interest payments – pp 269 - 272 [1593] I repeat my earlier findings, and refer to the summary set out below. Cash cheques – a repeated submission – pp 272 - 4 [1594] I repeat my earlier findings, and refer to the summary set out below. CFM engineering Telephone expenses – pp 274 – 6 [1595] I repeat my earlier findings, and see the summary set out below. Cheques drawn on CFM with no expenditure resolutions and/or no receipts pages 277 - 281 [1596] The defendants assert that there was no accounts book of any kind kept prior to Mr Sung's Green Book which commenced in February 1999. During this period of time the seventh defendant was in charge of bookkeeping records and Mr Sung Joo Sung was his deputy. What changed was that after the office had been set up, they had all the relevant information about the Olympics to start the homestay and volunteer programmes and they had their inaugural ceremony, they were ready for business. However, there was a clear committee structure and meetings during this period, and this is part of the "early" period for which I have made findings concerning the failure to produce these records by the fourth and fifth defendants. [1597] These minutes are the key for much of the expenditure during 1998, such as the meals after committee meetings. If those minutes were available, there may be references to the meals, as is often the case with the minutes that the plaintiff was able to produce in this litigation. [1598] As a result of these minutes being missing, I should exercise great caution before coming to any findings about whether there were indeed meals after meetings. [1599] Consequently, I do not accept that the "total absence of records for these transactions" and the addition of a notation is suspicious. February to December 1999 [1600] For this same period (up until November 1999) the minutes are also missing, and I am not prepared to draw assumptions against the plaintiff in those circumstances. [1601] The entries for 14, 20 and 23 December totaling $870 contain nothing on their face warranting suspicion that the plaintiff has made a false claim. [1602] An additional problem for this period is that I am comfortably satisfied that Mr Sung Joo Sung has destroyed records for the period February to December 1999 and I do not accept his explanation for the missing pages from the Green Book (which I total at nine pages) or that the Green Book accurately reflects the totality of the records. For example, the entries for November purport to reveal that he did return the other $1,000 that he skimmed from the loan of Vice President Paek. It took him until 15 November 1999, nearly a month, to return this money to the Supporting Committee. His entries over the period November – December must be viewed with caution. January to November 2000 [1603] I repeat my finding that I am not prepared to draw assumptions against the plaintiff when there was not only a committee member (first Mr Sung Joo Sung, then the seventh defendant) but also a Financial director in charge; and paid bookkeepers performed these tasks. [1604] Having regard to the above, I reject the submission that the mere absence of resolutions or receipts constitutes evidence of misappropriation. [1605] I have noted elsewhere that I am not prepared, in the absence of expert evidence, to inspect the cheque butts and come to a conclusion that "cheque butts have been altered". There are hundreds of them, they are in Korean, and the question of whether they have been altered is a matter for expert testimony. The defendants have elected not to serve the expert report they obtained concerning these cheques and should not be permitted to ask the trial judge to do so. [1606] Having said this, I should note that they look like normal cheque butts to me, and that additional writing on them is understandable, particularly if they were to be provided to the plaintiff's accountant to prepare a claim for reimbursement. Some of the different-looking writing may well be that of the accountant; I decline to speculate further. The claim for reimbursement of $71,423 [1607] The defendants submit that "a clear majority" of the claim by the plaintiff for reimbursement is for monies which were not for the benefit of the Supporting Committee. [1608] I repeat my findings that if the Supporting Committee authorised these and the Sports Council considered to the contrary, and authorised these reimbursements, in the absence of evidence from the Sports Council, I am not prepared to accept these sums were not for the benefit of the Supporting Committee. Cash handed to the seventh defendant – pp 282 - 288 [1609] I repeat my submissions that I accept the evidence of the plaintiff in preference to that of the seventh defendant. Other use of funds of the Supporting Committee by the plaintiff and for his personal activity as President of the Sports Council – pp 288 - 293 [1610] I repeat my findings that I accept these expenses are reasonable and that the Sports Council's role in the Olympics was so intertwined with the Supporting Committee that these submissions are unwarranted. Conclusions concerning imputation 41(d) [1611] Having regard to the list set out at paragraph 325 on pages 293 – 4, I should first note that the contents of this paragraph are entirely new, and that it has not been answered by the plaintiff, perhaps because it has not been served electronically on his legal advisers despite their requests. [1612] I make the following findings: (a) as to the seven items of "justification based on context" in paragraph 325(a), I accept the submissions of the plaintiff that "contextual misappropriation" cannot amount to evidence of misappropriation, and consistent with Greig v WIN TV [2009] NSWSC 632 at [94] I reject the defendants' submissions on the basis that "contextual misappropriation" falls short of constituting "misappropriation" as identified in the imputation. (b) In relation to each of the following cash donations: (i) Mrs Kim : I have accepted the plaintiff's contention that at the time of the donation Mrs Kim gave the money for general purposes in relation to Korean sporting activities (Daily Transcript 2530-2, 26 March 2009, Day 58); (ii) Korea Telecom : I accept the plaintiff's evidence concerning this gift of cash. I regard it as most likely that this money was given for general purposes in relation to Korean sporting activities (Daily Transcript 889-890, 8 October 2007, Day 23); (iii) Wang Dae Po: I accept the plaintiff's evidence that this donation was in the form of a cheque given to him by Byung Do Choi (Daily Transcript 544, 24 September 2007, Day 17). The fact that he was banking money the following Monday does not mean that his failure to bank this cheque amounted to misappropriation, or that the $200 was cash rather than a cheque. In the absence of evidence from Mr Choi or Wang Dae Po, there is no evidence to suggest the plaintiff kept this donation and applied it to his own use, or even that the cheque was presented. (iv) Patrick Lee : I have indicated elsewhere I do not accept the claim by Mr Lee that he gave $500 cash to the plaintiff in the presence of the fourth defendant to pay for the telephone being cut off, there being no corroborating evidence from the fourth defendant and no evidence the telephone was cut off. (v) Won Kang : I note this donation was recorded by Mr Sung Joo Sung in his Green Book. This sum was not misappropriated. The plaintiff's evidence was that he gave this sum to Mr Sung Joo Sung and the Green Book corroborates this. (vi) Korean Veterans Association of Australia : I view seriously this obviously untrue claim that the plaintiff misappropriated a donation by the Korean Veterans Association "in or about June 1999". (vii) Ik Tai Eum and Tai Ho Choi: These sums were recorded by Mr Sung Joo Sung in the green book and listed by the plaintiff in his revised list of donors (Exhibit 73). This sum was not misappropriated and neither were any other sums that the plaintiff could not include in the donations list because of Mr Sung Joo Sung's refusal to hand over the green book containing the Committee's 1999 financial records. (viii) The second defendant: This sum was recorded by Mr Sung Joo Sung in the green book and listed by the plaintiff in his revised list of donors (Exhibit 73). It was not misappropriated. It is not to the second defendant's credit that he waited until February 2007 to plead justification, in circumstances where he knew his own newspaper had published a revised list of donations which he knew was based on information from Mr Sung Joo Sung provided to the plaintiff after the financial statements published by the plaintiff on 24 November 2000. (ix) Hee Jung Sung: No allegation of any kind about Mr Hee Jung Sung was ever put to the plaintiff. I find he is the "Sung Hwi Jung" whose $100 donation is recorded in Exhibit 73 and I propose to assume that if this man's identity had been put to the plaintiff he would have told the court that this was the case. This sum has not been misappropriated. (x) Sang Yung Lee: This sum was recorded by Mr Sung Joo Sung in the green book and listed by the plaintiff in his revised list of donors (Exhibit 73). This sum has not been misappropriated. (xi) Sang In Han: This sum was recorded by Mr Sung Joo Sung in the green book and listed by the plaintiff in his revised list of donors (Exhibit 73). This sum has not been misappropriated. (xii) Jong Jin Kim: The plaintiff said in his evidence Mr Sung Joo Sung received this donation and I accept his evidence (Daily Transcript 919, 8 October 2007, Day 23). At Daily Transcript 3055-7 (7 April 2009, Day 65), I was told he was the planning director. He is the same as "Jeong Hae Myung Special Planning Director" and he is included in Exhibit 73. This sum has not been misappropriated. (xiii) Hyung Jae Lee: This is the Boston Sports Council donation and as Mr Evatt noted at Daily Transcript 929-930, it is contained in the plaintiff's list of donations (Exhibit 73). (xiv) CFM Telephone expenses: These accounts were approved by the Supporting Committee, which I find had a practice of approving whole accounts for the plaintiff and other persons (e.g. the seventh defendant) rather than going through telephone bills item by item. It cannot be said that such a procedure, particularly by a voluntary organization with no tax reporting obligations, means that the money was wrongfully converted if the Supporting Committee chose to adopt this method of approving telephone bills. (xv) The sum of $20,000 by cheque number 114691 drawn to cash: I reject this claim firstly on the basis that the defendants brought this claim by stealth by adding it to particulars not properly served on the plaintiff and secondly because I accept the plaintiff's explanation that when he advanced money to the Supporting Committee it had in fact been a personal loan to him in the first place rather than CFM money. (xvi) Cheques drawn to cash: I reject this submission, firstly on the basis that the mere fact that a cheque is drawn to cash cannot amount to misappropriation; secondly, on the basis that all but two of these cheques had a stated payee who was not the plaintiff or his company, or an Expenditure Resolution; and, thirdly, that as to the remaining two, one was for the seventh defendant's expenses and the other for payments to the South Korean president of the Korean Sports Association. (xvii) Expenditure on meals: I reject all these claims as being incapable of amounting to misappropriation for the plaintiff's own use. (xviii) Reimbursement for CFM claims of $14,136: I reject these claims on the basis that there is no evidence that these expenses were false or otherwise did not exist, and also on the basis that these claims have been considered and approved by the Korean Sports Council in 2001 (xix) Reimbursement for CFM claims of $2,525: I make the same findings. (xx) The sum handed by the seventh defendant to the plaintiff: I have accepted the plaintiff's version of these events. This sum was not misappropriated. (xxi) "Other funds paid by the Supporting Committee to the Sports Council as particularized in paragraph 324: Having regard to the purposes in the Constitution, I cannot regard payment of a sum by the Supporting Committee to the Sports Council as misappropriation in the absence of clear evidence of wrongful conversion to the plaintiff's own use. I have noted elsewhere that any surplus funds in the Supporting Committee after the Olympic Games should have been paid to the Sports Council. The whereabouts of any surplus (and the quantum) is unknown. Conclusions concerning imputation 41(d) [1613] The defendants have failed to establish to the requisite level of proof that the plaintiff: (a) converted funds (b) wrongfully or dishonestly (c) to his own use. [1614] I note the following as relevant to the conduct of the trial, and costs, but not to issues concerning my findings of fact: (a) The passages in the matter complained of giving rise to this imputation referred to the plaintiff's business trip being for private purposes, the plaintiff having an enormous personal expense account and queried the whereabouts of 100 wristwatches alleged to be from LG Electronic (in fact this was SK Securities). None of these allegations is now pursued in relation to this imputation; (b) In the particulars of 12 February 2007 not one transaction was identified. In the May 27 particulars 22 transactions were identified, of which two ((b) and (n) (plaintiff's phone bill) and (i) and (q) (Honam) are listed twice). Apart from these, only ((d), (e), (f), part of (l) and the very general claims of drawing "numerous" cheques to "cash" without a co-signatory still remain. Entire claims, notably the 90 wristwatches (u), the Korea trip claimed twice; see (o) and (u), and approving purchase of gifts from Belmore Health Foods have been dropped. These particulars were then expanded to a massive claim of over $500,000 in the "all in one" particulars of 3 October 2007. These particulars have now been scaled down to items totaling under $110,000, without any explanation as to which matters have been abandoned and why; (c) Problems with absence of particulars have been compounded by failure to give proper discovery (or, in the case of the fourth and fifth defendants, any discovery), delays in these proceedings, and multiple adjournments; and (d) All of these allegations relate to events which occurred between May 1998 and November 2000, a gap of seven to nine years between the events in question and their first particularization in these proceedings, even though the defendants are the auditors who carried out the audit and the honorary president of the voluntary association alleged to have been the victim of this massive misappropriation. [1615] This is an unsatisfactory history of the giving of particulars, particularly in circumstances in which the defendants went on adding to the particulars in written submissions that the plaintiffs complain they have not received in electronic form despite requests. The safeguards of the Civil Procedure Act 2005 (NSW) and the need for public concern about fairness in the judicial process are matters that may need to be considered by courts in such circumstances. It is my view that in these proceedings, the safety fences for fair litigation have all been breached. Imputation 41(f): that the plaintiff misused his position as president to favour an associate as a supplier of gifts to the Committee [1616] In order to prove the truth of this imputation, the defendants must establish: (a) the plaintiff misused his position as chairman of the Supporting Committee; (b) this misuse caused him to favour an "associate"; and (c) the associate was a supplier of gifts to the Supporting Committee. [1617] The associate in question is Mr Byung Doo Choi; although particulars served during the trial identified a large number of other persons, these claims now appear to have been dropped. Green Seafood / Belmore Health Foods [1618] It is not in dispute that Mr Byung Doo Choi was a Vice Chairman of the Supporting Committee for the whole of the Committee's life (Daily Transcript 543, 24 September 2007, Day 17) and that he was also the proprietor of Belmore Health Foods and Green Seafood (Daily Transcript 278, 12 June 2007, Day 9). Many of the gifts given to third parties were purchased from either of these places. [1619] The plaintiff's evidence was: "The reason I had to buy from the shop was that it's kind of a Korean way that there wasn't [sic] enough donations given to the Committee so the way to get some favour too was to buy things from the shop, because we had no money in the Committee and he was a Vice Chairman of the Committee … so the only way I could actually have some – buy gifts in advance without paying is through this kind of way because I knew him, but the auditors on the Committee they were jealous and envious of this, so it is really painful at the moment and this person, this guy, have [sic] done lots [on] the Committee and I'm very sorry about what happened to him. … Q. And there was no need, do you agree to ask any favours of Belmore Health Foods? A. Well, correct. When I gave this cheque there was no interest as such, special interest in there, I just paid it out. But what I meant by that was that when he gave me gifts, provided with gifts, he didn't put any profit on those items that he gave." (Daily Transcript 360, 14 June 2007, Day 11) [1620] The plaintiff's demeanour when he gave this evidence was one of great distress. Mr Byung Doo Choi did do a great deal for the Committee. He was the Vice Chairman for the duration and as the Minutes of Meeting show, he regularly attended meetings and participated in activities. [1621] The plaintiff's comments about how this is "really painful at the moment" and he is "very sorry about what happened to him" are revealing of the plaintiff's true character and personality. [1622] The plaintiff said here were practical reasons to obtain goods from Mr Byung Doo Choi: (a) there were only a few health food stores with Korean goods at the time, and as the office was in Canterbury, it was convenient for "a lot of people" at the Supporting Committee to go and buy gifts from Belmore (Daily Transcript 363, 14 June 2007, Day 11); (b) Mr Choi did not ask to be paid at the time, and supplied these goods on credit (Daily Transcript 364, 14 June 2007, Day 11); and (c) The plaintiff said Mr Choi supplied these goods at cost, which would be a substantial saving (Daily Transcript 360, 14 June 2007, Day 11; Exhibit A notes also the donation of goods by Mr Choi). [1623] Justification of this imputation should have been simple to prove, because of the special relationship the second defendant's newspaper has with Korean grocery stores. The second defendant told the court (Daily Transcript 2085, 12 June 2008, Day 51) his newspaper was distributed for free to Korean grocery stores around the Sydney metropolitan area. Many of the plaintiff's witnesses gave evidence that this was where they picked up the newspapers containing the matters complained of (Daily Transcript 1690, 28 May 2008, Day 43; Daily Transcript 1823, 30 May 2008, Day 45; Daily Transcript 1869; 2 June 2008, Day 46; Daily Transcript 1955, 10 June 2008, Day 49; Daily Transcript 2025, 11 June 2008, Day 50; Daily Transcript 2071 and 2085, 12 June 2008, Day 51; Daily Transcript 2226 and 2227, 19 June 2008, Day 54). All the defendants had to do was to produce evidence from their own records to contradict the plaintiff's claim that Mr Choi's shop was the most convenient. [1624] In addition, as an examination of the edition of "The Korean Herald" tendered in evidence shows, these newspapers were full of advertisements from these groceries with information about prices and special deals, which would have been of assistance in challenging the plaintiff's claim that these goods were supplied to the Committee at cost, but this was not done. [1625] With so much knowledge about Korean health food stores at their fingertips, the defendants' lawyers should have had no difficulty in establishing that this was the case. Yet there is not one piece of evidence to contradict the plaintiff's claim. In other words, not only is there no other business from which gifts may be purchased available, no other business which could match the discounts or credit terms, no information about how easy it was to find alternative suppliers, but there is no evidence that any of the goods purchased from these stores were purchased at an inflated price, or that interest was charged, or that the goods were of poor quality, or anything of that nature. [1626] It is common for businesses to shop at a preferred place; the Supporting Committee bought many floral tributes from Searles Flowers and placed all its advertisements for homestay and volunteers in the first, second and third defendant's newspapers. The second defendant was the honorary president of the Supporting Committee; does this mean that the plaintiff should not have permitted these advertisements to appear in the second defendant's newspaper? [1627] I have set out elsewhere the basis upon which I do not consider it was any more wrong of the plaintiff to have made a substantial number of purchases from Green Seafoods than it was for him to advertise the Committee's activities only in the newspapers run by the first, second and third defendants and to refuse to deal with the cross-defendant. Many businesses, for reason of convenience, geography or credit facility reasons, prefer to shop at only one store. Mr Choi was not related to the plaintiff, nor was he receiving a fee for his work on the Supporting Committee. In addition, the Supporting Committee did not buy exclusively from these stores. They also obtained gifts from other stores (see for example, Expenditure Resolutions 205, 213, 274). [1628] The defendants assert that the burden lay on the plaintiff to prove that there were no other businesses offering these products or such good credit terms, and that the plaintiff should have established what inquiries were made. In addition it is asserted that Mr Choi should have excluded himself from the decision-making of the Supporting Committee when such decisions were being made (Submissions p. 295). This is incorrect. The burden of proving these matters lies on the defendants. [1629] I do not accept that it was necessary, in circumstances where Mr Choi was supplying goods at cost and on credit for an organization in which everyone was a volunteer, for him to absent himself from Supporting Committee decisions to purchase gifts. Even if it was necessary, any alleged improper conduct on the part of Mr Choi does not mean that the plaintiff misused his position. [1630] The word "associate" infers that there is a personal or business link between the plaintiff and Mr Choi. There is no evidence that there was any relationship apart from the fact that they were both voluntary office bearers in the Supporting Committee. Mr Choi was no more an associate of the plaintiff than he was an associate with the other volunteer office bearers. There is no evidence of any personal pressure being brought to bear on anyone by the plaintiff. Other suppliers [1631] The imputation refers to "an associate". Particulars were supplied on 27 June 2007 identifying ten organizations where there were payments "for the benefit of other organizations." There is no evidence that any of the persons in the list set out in paragraphs (a) to (j) of the particulars of 27 June was "an associate" and I note these claims have not been pressed in relation to this (or for that matter any other) imputation. Conclusions [1632] The defendants have failed to establish that the circumstances in which the Supporting Committee made a substantial number of purchases from businesses owned by Mr Byung Doo Choi demonstrate that the plaintiff has misused his position. Nor is there any evidence that the plaintiff is an "associate" of the plaintiff or that he was "favoured" by the Supporting Committee to supply gifts because of the association he allegedly had with the plaintiff. Accordingly the defence of justification to this imputation fails. Imputation 42(d) that the plaintiff falsely claimed the Committee had provided support of $1,100 to the Uniting Church but really the Plaintiff kept $700 of that money for himself [1633] This imputation is contained in the publication of 16 March 2001. [1634] The particulars set out in the second defendant's letter of 12 February 2007 consist of one sentence: "The plaintiff claimed that expense of $1,100 for a donation to the Uniting Church for the use of grounds when the Uniting Church only received $400.00 of that alleged donation." [1635] The particulars of 30 May 2007 attach a report from Mr Finney stating the truth of this imputation cannot be established. It is not Mr Finney's role as expert to tell me whether the truth or falsity of the imputations can be established so I proposed to place no reliance upon this finding, or upon his subsequent revision of his position in his evidence. [1636] The particulars provided following the order on 27 June 2007 do not refer to this imputation at all. [1637] To establish this imputation is true, the defendants must establish that the plaintiff falsely claimed the Supporting Committee had provided support of $1,100 to the Uniting Church, that this claim was false to the knowledge of the plaintiff, that he retained $700 of that money, and that he retained it for himself (as opposed to, for example, use by the Committee). [1638] The plaintiff gave evidence that when he prepared the list of expenses he asked the seventh defendant for assistance (Daily Transcript 805 and 807, 5 October 2007, Day 22). Although the seventh defendant refused to assist him, he did give him a list of some expenses (Daily Transcript 1662-1663, 28 May 2008, Day 43) which included a claim for $1,100 to the Uniting Church for use of its premises for cheering squad practice. [1639] The difficulties the Cheer Squad had in finding premises to practice is described in some detail in the Minutes and Activities Diary. They had to find an appropriate location where practising their cheering did not set off burglar alarms. The Church asked for $1,100 cash for rent of its premises. A cheque for $1,100 payable to "cash" was drawn and given by the plaintiff to Mr Dae Won Kang (Daily Transcript 1671, 28 May 2008, Day 43) who, as the Minutes show, was in charge of these matters. [1640] Mr Dae Won Kang gave evidence. He agreed the cheque had been cashed and that $450 (not $400) was paid to the Uniting Church. However, his explanation of what happened was that the balance of $650 was given to the "team leader" and that a Mr Dung Soo Kim was the "team leader" because he was the "organising committee chairman". In his revised statement, Mr Dae Won Kang challenged the Minutes of Meeting describing him as holding this position. [1641] This explanation for Mr Dung Soo Kim being the organising committee chairman and the recipient of the money was not proffered in Mr Dae Won Kang's statement. Mr Dung Soo Kim has been accused for the first time, almost nine years later, without having the opportunity to defend himself. [1642] Given Mr Dae Won Kang's unsatisfactory evidence on other matters (notably the circumstances in which he denied he paid $2,000 to himself as a salary while holding his voluntary position, and when confronted with the Expenditure Resolution said it was a fraud), I would not accept his evidence on this issue unless it was corroborated. Accordingly I find that Mr Dae Won Kang gave $450 (or, more likely, $400) to the Church and kept the rest of the money. [1643] Whichever of these two men took the money, it was not the plaintiff. [1644] The matter complained of asserted that the publication of this donation of $1100 when only $400 had been received caused problems for the Uniting Church personnel involved. In fact this was not correct.. The evidence was that they noticed the difference and contacted the fourth and fifth defendants to say they did not receive this money. This part of the matter complained of is a misstatement in that it suggests the plaintiff's false claim had got the Church personnel into trouble when the money had gone into the plaintiff's pocket. In fact nobody was in trouble and the money was in someone else's pocket. [1645] There is no evidence that the plaintiff falsely claimed the sum of $1,100 to the Uniting Church. He made this claim believing it to be true. He relied upon the cheque butt, as he was entitled to do. [1646] The defendants have not established the truth of the imputation in that I reject the claim that the plaintiff falsely published that the church was paid $1,100, and I reject the claim that the plaintiff had in fact retained $700 (or any other sum) for himself. [1647] The defence of justification to this imputation, which is the only imputation for this publication, fails. Imputation 43(a) that the plaintiff misappropriated public money [1648] The elements are: (a) the plaintiff misappropriated; (b) public money. [1649] There are some preliminary matters to note: The source of the imputation in the matter complained of [1650] The defendants say in their written submission that it is "difficult to determine" which parts of the matter complained of carry this imputation. [1651] The answer is that the whole of the article does: (a) The headline sets the tone by quoting the plaintiff as recognizing his "moral obligation" regarding the Supporting Committee "scandal" to resign from the Sports Council presidency. (b) Lines 5 – 8 refer to the plaintiff being "suspected" of having done wrong concerning the use of the Supporting Committee's public fund, has declared he will "bear the moral responsibility and resign" as Sports Council chairman as well. He goes on to say he will clarify matters with the Supporting Committee without fail. (c) However, what gives the sting to the imputation is that the meeting goes on to discover that the plaintiff has been, in the vernacular, "at it again" – he has prepared a financial statement without an audit report, with feeble excuses for this, such as one auditor being ill and the other auditor overseas. The Committee immediately appoints two temporary auditors (these are the seventh defendant and Mr Daniel Choi, who was a witness in these proceedings and gave evidence concerning what happened at this meeting). (d) The reader is told that at the meeting, Mr Dae Won Kang said that the plaintiff had raised scandal from the moral point of view and asks whether he had decided to resign. The plaintiff and Mr Bonney Lee (also a witness in these proceedings) complain the articles of association were pushed aside, and they were rebuked by those present, including the seventh defendant, who said "Is this a Communist People's meeting?" (line 41). (e) The plaintiff then distributed the financial report but it is not discussed "because the auditors' report was left out". According to Mr Cha, one is on a business trip in New Zealand and the other has a chronic disease. (f) The Sports Council therefore appoints two temporary auditors (the seventh defendant and Mr Choi, who is noted as the Director of the International Sports Council), "just in case that financial report is not prepared within two weeks" (line 53 – 54). (g) The final paragraph describes how the cross-defendant the editor of the Oceanic Review, when they walked into the conference room, were "stopped and pestered" by the Secretary General of the Korean Society. This is the fourth defendant. The reason he did so, according to this publication, is "by reason of [sic] that they were expelled members of the Korean Society. Even after they were seated they were engaged in a wordy battle with officers from the Korean Society." [1652] The subject matter of this imputation describes events very different from the Supporting Committee activities. The matter complained of describes how the plaintiff is trying to have the Sports Council records accepted without an audit. The sting of the imputation comes from evidence of another attempt at financial trickery. The plaintiff's guilt arises from two key pieces of evidence. The first is that he made the admission referred to in the headline and line 11, and the second, and perhaps more persuasive, is his conduct in putting forward financial statements which have not been audited, just as he did with the Supporting Committee. Is new evidence put forward to support this imputation? [1653] None of this evidence was led during the trial. It was not put to the plaintiff that he made admissions, and no evidence was led of any wrongdoing in relation to the Sports Council. [1654] A defendant is entitled to rely upon facts and matters not particularized in the defence, but where matters are not referred to in the matter complained of, they should be particularized and, in particular where the allegations are of a criminal nature, particularized with the precision of an indictment. [1655] The second did not plead a defence of justification to this publication or provide particulars prior to or during trial. At the commencement of the trial, the parties agreed (Exhibit EE) that a plea of truth to this imputation would be permitted but in terms of particularization, the only matters relied upon were the particulars of truth for other imputations. At the conclusion of the trial, the second defendant formally sought leave to plead justification to this imputation, which is not opposed by the plaintiff, and I have granted leave to amend. [1656] The plaintiff has not provided submissions concerning this imputation but relied on other submissions concerning imputations of misappropriation. The defendant has provided 11 pages which essentially restate evidentiary matters referred to elsewhere. [1657] I have rejected the submissions of the defendant concerning misappropriation in imputation 41(d). I repeat my findings in relation to all those matters. [1658] The plaintiff and defendant have, however, raised some issues concerning this imputation that require determination. In addition, it is relevant to the issues of damages and malice for both defendants to note the circumstances in which the plaintiff was forced to resign from his position in the Sports Council, as they participated in this event, which occurred some days after publication of the three matters complained of for which a defence of qualified privilege is claimed.. A preliminary issue – the "public money" argument [1659] The plaintiff argues for a very technical interpretation of the phrase "public money", referring to s 5, Financial Management and Accountability Act 1997 (Cth), and s 4 of the Public Finance and Audit Act 1983 (NSW), submitting that the term "public money" would be given the same meaning by a lay person as the legal meaning contended for by the plaintiff. [1660] I would be falling into the same error as occurred in French v United Telecasters (1986) 5 NSWLR 425 at 435 - 7 (where the words in question were "failure to account") if I were to accept this very narrow definition. What happened at the Sports Council meeting? [1661] The matter complained of refers to Mr Daniel Choi being appointed as one of the two "temporary" auditors. He said he attended the meeting in the company of the Vice-President Yoon Chi Kwan, He described the atmosphere of the meeting and the assault on the editor of the Korean Oceanic Review: "I was attending that meeting. When I attend that meeting the meeting atmosphere is very hostile. I remember one of the previous witnesses, Mr Kim Chung-Yup, the publisher of the Dae Hang Chu news or Australian news, and he and his - one of the reporters, Mr Vine, I remember, was blocked the many members over the council, and I think it's not - I don't know if you can remember the physical involvement by some brawl with the high, you know, pitches of voices exchanging between his news team and council members, that blocking that meeting, and I remember Mr Cha as the president of the council, and frustrated "What's wrong with them? They are reporters to covering the news", and finally they sit at the end of the row, but one of the - the member is Mr Hwang, the reporter is - take off his spectacles because a physical involvement, that's why I remember." (Daily Transcript 1801, 30 May 2008, Day 45) [1662] He next described the process of how the plaintiff was forced to resign in a very hostile atmosphere (Daily Transcript 1802, 30 May 2008, Day 45) and how the second defendant (whose name is wrongly spelled in the transcript) attacked Mr Bonney Lee, who was also present, and demanded a statement he made be withdrawn. Mr Choi said he had previously respected the second defendant as a senior member of the community and that he was very taken aback by this conduct: "A. Jae Kun Lee, people that I have respected Mr Cha, I respect Mr Jae Kun Lee as a senior community leading man in the community. I have no exception with him. He said "Why is this people's court, you have to apologise now", and he shouting in very loudly shouting, and he's like a compliment, reprimanding. "You have to apologise now, you have to cancel what you say it is a people's court", like a kangaroo court. "That's not the proper term to say". I can't remember he apologise or not, maybe he didn't, and many people agree with Kae Kun Lee say. Mr Cha at the time I remember it's like powerless tiger surrounded by the hyenas in wildlife. He didn't say nothing, just keep quiet. I was sad to see that because I respected everyone. I respect not only Mr Jae Kun Lee, but also Mr Cha." (Daily Transcript 1803, 30 May 2008, Day 45) [1663] Mr Choi remembered Mr Dae Won Kang (wrongly spelled in the transcript as Kang Tae Wun) saying he hoped the plaintiff could restore his name. Mr Choi felt both sorry for the plaintiff and suspicious of him. He described the meeting atmosphere as "very hostile", "really hostile" and went on to say how he came to be nominated as one of the temporary auditors: "Mr Cha is very powerless, nobody help him, but I am sorry for him, but I suspicious about his wrong thing. Maybe he did the wrong thing, that's why people like this but there is no clear evidence of everything but by based on the media. I still want to know after this court cases, he is really done a wrong thing or not. That is my, the things that I want see in the future. But at the time, I was sorry for him and after that he stepped down and a new temporary president came up, Mr Ha, a former ex-president, reside that meeting and became a temporary president. And Mr Cha is nothing to say, just step down and sit down and they recommending, the one thing I remember, new auditor, internal auditor. Mr Cha, remember, he always arguing, we need the professional accountant auditor to further clear investigation rather than meeting, internal auditor should be appointed. Two persons, one for the council members, one for the, any person, Mr Cha designated. I remember one person, Mr Hak Chu Cho was president of a valuable association and a member of the council. He appointed as temporary auditor, new auditor at the time. And I, Mr Cha recommending as a new auditor, me. I was appointed as a new auditor." (Daily Transcript 1803, 30 May 2008, Day 45) [1664] After he was appointed as the temporary Sports Council auditor, he was introduced to the seventh defendant, who shook his hand, and that was the last he ever heard about being an auditor of the Sports Council: "That's right. I was appointed new auditor but I done anything for auditing job. I just say hello to Mr Cho, but I don't any, no further meeting and that's finished. No further election about auditing area. So I have no idea about the detailed financial statement, everything. Only that night it happens, very quickly is happened, something like that. And remember, and Mr Cha just powerlessly just stepped down over the step on the auditor, or something like that. It's like, it's very hard to explain but it is very sad to see that kind of situation. Very, very hostile, very, very not friendly sort of things that night. I still remember because of that one and after that I never involved in Sports Council Committee." (Daily Transcript 1804, 30 May 2008, Day 45) [1665] If Mr Choi never heard again about this position, the most likely explanation is that there was nothing wrong, and there was no requirement for an auditor. [1666] This was a meeting at which the plaintiff was forced out of office as President of the Sports Council because of the Supporting Committee allegations. Mr Choi placed both the second and fourth defendants at this meeting and it is clear they were active participants. Quite apart from being evidence of hostility and ill will capable of being relied upon by the plaintiff in relation to the three publications earlier that month (1, 9 and 16 March 2000), this is evidence of a contemporaneous nature giving a clear insight into what was really happening. The main protagonists were there – the second, fourth and seventh defendants, the plaintiff and Mr Dae Won Kang, who was subsequently appointed Sports Council President. [1667] Having noted that no new material arises from the contents of the matter complained of to support the claim of justification, I now consider the submissions the second defendant makes concerning this imputation. Justification is "less onerous" [1668] The second defendant submits (at paragraph 5, p. 307) that justification is "less onerous" because all that has to be proved is that the plaintiff used the money for a wrong or dishonest purpose, that is, for a purpose outside the purposes of the Supporting Committee as specified in its Constitution. It is asserted that it is not necessary to establish that the plaintiff misappropriated funds to his own use. [1669] I do not agree. The elements of misappropriation do not include a requirement that the plaintiff put the money to his own use. The language of s 178A Crimes Act 1900 refers to "his or her own use or the use of any other person". What the defendants must show is that the plaintiff misappropriated money (being public money) in the accepted sense of misappropriation. The difference with this imputation is that it is not necessary to establish, as it was with imputation 41(d), that the misappropriation was to the plaintiff's own use. [1670] The word "misappropriated" should be interpreted in accordance with its accepted dictionary meaning. I repeat my findings concerning the concept of "contextual misappropriation" relied upon by the defendants, of which this submission at p. 307 is simply another variant. [1671] The discussion of "breach of trust" in Singleton v Ffrench at 4353 – 437 is of assistance, but the word "misappropriated" is not a word with any ambiguous meaning. [1672] The matter complained of gives very clear hints that the plaintiff is up to his tricks again, in that he is presenting an unaudited financial report with some explanations that sound unconvincing. The matter complained of notes the plaintiff "claimed" to have explanations such as one being on a business trip to New Zealand and that the other was ill. The Sports Council was not ready to accept these excuses and appointed two new auditors "just in case that financial report is not prepared within two weeks", which I assume picks up, in translation, a degree of sarcasm in the Korean original. [1673] As to the matters in paragraphs 13 to 28, I repeat my findings concerning the assertion that the Supporting Committee was in some way bound to restrict its spending on meals for volunteers, Korean visitors and the like, to "between 10 and 15% of the gross income derived from donations". [1674] As to paragraphs 29 – 39, I repeat my findings that there was no provision in the Constitution requiring the Supporting Committee to make payments only to "the Korean Olympic Team". Many of the associations listed in paragraph 32 (such as tennis and golf) were in fact members of the Supporting Committee and the fifth defendant was the president of the Judo Association, which is one of the organizations listed as having been given funds in circumstances amounting to misappropriation.. Furthermore, the purpose of the Supporting Committee was to act in mutual assistance with the Sports Council in a channeling role for the Korean community. Conclusions concerning imputation 43(a) [1675] The second defendant has failed to establish the truth of this imputation which is the only imputation for this publication. CONTEXTUAL TRUTH [1676] Section 16 Defamation Act 1974 provides a defence as follows: "(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." [1677] The defence applies only in relation to three of the publications, namely the publications of 23 February, 1 March and 9 March, as the other four publications contain only one imputation. The 23 February publication [1678] The second defendant submits that these two imputations are of roughly equal seriousness and concern similar subject matter, and that if one were found to be substantially true then the publication of the other would not further damage the reputation of the plaintiff. [1679] Failure to account for a substantial sum of money is a matter of the utmost seriousness. Failure to keep proper records, especially in the context of a voluntary sport-related organisation, could not rationally be said to be in the same category. [1680] While it is true that the court in John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 at 543 said that the court must focus on the facts, matters and circumstances relied on to establish the truth of the contextual imputation rather than its terms, that does not mean that the terms of the imputation are irrelevant, or that the court should look at evidence which goes to establish the truth of imputations other than that to which the defence is pleaded. The 1 March publication [1681] The five imputations in this publication are of two different kinds. One relates to personal inadequacies of the plaintiff and the other relates to management of committee affairs i.e. failure to keep proper records and misusing his position to obtain a directorship for himself. Imputation 40(a) would also fall into this second category. [1682] I have indicated elsewhere in this judgment that I consider the most serious imputation to be the imputation that the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia. In the context of reconciliation of North and South Korea for the purpose of a sporting event, at a time when Australia and the Olympics were at the centre of world attention, this is an annihilating statement to make. [1683] It is important, when considering the imputations in this publication, to note that an imputation of misappropriation was not found by the jury. The imputation here is one of failure to keep proper records. This is the weakest imputation of the five, and could never outweigh the others. [1684] The imputations concerning the plaintiff's personal conduct are unlikely to swamp each other as they are of equal seriousness. The 9 March publication [1685] Imputation 41(d) is an imputation of misappropriation. That imputation is clearly far more serious than a suspicion of making a false claim for business expenses or favouring an associate. [1686] I have rejected the defence of justification to all imputations so it is not necessary for me to make further findings concerning this defence. Concluding remarks on the defence of justification [1687] I have rejected all of the defendants' submissions concerning justification of all of the imputations. The destruction and withholding of records by Mr Sung Joo Sung [1688] The Supporting Committee paid Miss Chae $200 per week for the duration of the time that Mr Sung Joo Sung was the Secretary General to attend to bookkeeping matters under his supervision. It is not in dispute that when he left he took the book of accounting records kept by Miss Chae with him (Daily Transcript 3031, 6 April 2009, Day 64). [1689] In taking these records, and refusing to return them when asked by the plaintiff, Mr Sung Joo Sung has acted dishonestly. [1690] Mr Sung Joo Sung produced records to the fourth and fifth defendant in early 2001 and to this court. The entries in it are out of date order. It may be the records he has produced are not the records Miss Chae kept. [1691] The financial records of any business are its lifeblood. The information contained in them is not only confidential, but essential to the ability of any organisation to comply with its financial obligations. If the Supporting Committee were a company, s 175 Crimes Act 1900 (NSW) (wilful destruction, alteration, mutilation or falsification of any book, entry, paper-writing or valuable security belonging to a body corporate or company) would be the applicable provision. Although the Supporting Committee is not a company, and not intended to be a tax-paying entity, its financial records were still a valuable asset. Like the rift within the lute, the withholding of those records created the difficulties which led to this litigation. Courts should not turn a blind eye to the conduct of persons who unlawfully take, alter or destroy financial records. [1692] The duty of a court when confronted with evidence of accountancy or tax fraud is discussed in a number of decisions set out in Page v Vanker [1990] NSWCA 142 at [29]. In Gli-Don Pty Ltd v Nominal Defendant [2002] NSWCA 308 the NSW Court of Appeal considered evidence of financial record-keeping which appeared to fall short of the standards of the appropriate authority and referred a copy of the judgment to the Tax Agents' Board. Mr Sung Joo Sung, however, is not a professional accountant. Moreover, his conduct in taking the bookkeeping records of the Supporting Committee, and refusing to return them when the plaintiff asked, is not a matter relevant to accounting standards; it is an act of dishonesty. [1693] In the circumstances I consider it appropriate to refer a copy of this judgment to the Director of Public Prosecutions for consideration as to whether criminal charges should be laid in relation to the dishonest taking of the Supporting Committee's bookkeeping records by Mr Sung Joo Sung. [1694] All defences have failed, and I now consider the issue of damages. PART 5 - DAMAGES [1695] I have set out below the issues I have considered in determination of the quantum of damages. I have received submissions from the second and fourth defendants on this issue. As I have set out below, I have not acceded to the plaintiff's request that I award damages only in relation to the second defendant. The second defendant's damages cannot be assessed fairly without some idea of the amount that would be awarded in relation to the fourth and fifth defendants. Whether or not the damages award is enforceable is a matter for the plaintiff. [1696] In assessing damages for which the fourth and fifth defendants are liable, I have taken into account the need to show some compassion to these two men who, as I have set out in my summary of the facts as I have found them, were essentially carrying out the wishes of the second defendant. An overview of the law relating to damages for defamation [1697] The parties agree that publication occurred in New South Wales only. Section 46A Defamation Act requires the court, when assessing damages, to have regard to personal injury awards in New South Wales. This includes not only damages for which the award is capped (Motor Accidents (Determination of Non-Economic Loss) Order 19, published 26 September 2008, provides that the maximum award for an award of non-economic loss is $390,000) but also for other personal injury awards where damages are not capped, such as false imprisonment or assault. [1698] In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Hayne J explained the relevant principles relating to the award of damages in New South Wales. The facts in Rogers are of some relevance to this case, because the extent of publication was limited, in the sense that the plaintiff was not named in the matter complained of, and some of the issues relevant to limited publication are discussed. The NSW Court of Appeal by majority had set aside the judgment in Rogers, but unanimously held that if damages were awarded for such a limited publication, the amount to be awarded was $75,000, not $250,000, which was the amount awarded by the trial judge. [1699] The High Court, in setting aside the Court of Appeal's finding on all issues, noted the role of judges in the District Court of NSW as assessors of damages in personal injuries and the degree of familiarity judges obtain, from this procedure, concerning this process. [1700] The plaintiff submits (at 26.2.3) that s 46A is something of a "dead letter" in that judges in the District Court rarely assess damages and that when they do, they generally do so according to statutory regimes which place emphasis on different issues, such as the statutory cap. [1701] I do not accept the plaintiff's submission, The procedure of assessment of damages for personal injury, including hearing evidence from a plaintiff and his family as to the impact of the injury on the plaintiff, provides a valuable checklist of information for trial judges, for the reasons explained by Callinan J in Rogers, supra. In addition, I have the benefit of a number of judgments concerning the correct approach to the assessment of damages from experienced judges in the Supreme Court such as the Supreme Court Defamation List Judge, Nicholas J, and the Chief Judge at Common Law, McClellan CJ at CL, including explanations of the principles in these judgments by the NSW Court of Appeal. When considering the submissions of the parties on defamation, I have had regard to these judgments concerning the principles of law of damages and their application to the facts of the case. [1702] The defendants' submissions make a number of submissions inconsistent with these principles and some issues relevant to damages have not been touched on. It has been necessary for me to set out this section of the judgment in accordance with the defendants' format in order to deal with these matters. This is a disadvantage for the reader of this judgment, but it is done to ensure all issues raised (or not raised) by the defendants are dealt with in a methodical way. [1703] The following matters were of concern to me concerning damages: (a) Assessment of damages for the fourth, fifth and sixth defendants: There are six publications for which the fourth and fifth defendants liable but the second defendant is not (and three of these relate to the proceedings settled with the third defendant). The plaintiff asks me not to assess or award damages for these publications as these defendants have no assets. This would be entirely unfair to the second defendant, and would create the impression that any award of damages for publications for which he was not responsible took those into account, so I propose to assess damages for the fourth and fifth defendants. If the plaintiff does not want damages from them, the plaintiff should have offered to drop the proceedings against them. The publication by the sixth defendant occurs at a later time and there is no evidence concerning it beyond publication so I have acceded to the plaintiff's request. (b) Treating the publications as one publication rather than seven (for the second defendant) and nine (for the fourth and fifth defendants): Each of the seven publications by the second defendant and the nine publications by the fourth and fifth defendant are separate publications, save for the three publications made jointly in TOP. However, the parties have not addressed me as to the law relating to multiple publications (apart from the submissions of the defendants that damages should be reduced) and have treated the imputations as if they were all made in one publication on issues such as mitigation of damages. (c) Overlap with other defendants: The second defendant refers to publications by the third and sixth defendant (written submissions p. 357). The publication by the third defendant is a settlement concerning the same publication in its newspaper. However the second defendant fails to refer to publications made by the fourth and fifth defendant, including the publications in the first and third defendant's newspaper. (d) The problem of the fifth defendant: Apart from the plaintiff's request for no damages, no submissions are made about the fifth defendant, although the claims in relation to all of the fourth defendant's publications and three of the second defendant's publications also refer to him. In addition, there are no submissions concerning the impact of the judgment against him on damages. For example, he did not arguably persist with his plea of truth. How am I to go about assessing damages in relation to the fifth defendant, and how should I deal with the plaintiff's submission that I should not award any damages in relation to his contribution as he resides overseas and is a man without assets? These are matters not addressed in submissions. (e) No delineation of aggravated damages issues for the second, fourth and fifth defendants: As was the case with malice, the defendants do not address the issue of what to do if I find, for example, that the fifth defendant but not the fourth defendant is malicious. [1704] Having noted these issues I now consider the matters that are raised by the second defendant in the submissions that are made on his behalf and adopted by the fourth defendant, as well as the fourth defendant's further submissions on damages. The defendants' submission that these imputations are "far from the strongest case" [1705] The second defendant submits that the imputations in this case are "far from the strongest case" (written submissions, Chapter 24, paragraph 3). How serious are imputations of criminal conduct such as misappropriation, incompetence such as failing to ensure proper accounting records are kept, and personal failings such as self-righteousness? [1706] Imputations of dishonesty concerning a professional person such as a solicitor or doctor have generally been viewed as matters of the utmost seriousness, as a reputation for honesty can sometimes be a professional person's whole life: Crampton v Nugawela (1996) 41 NSWLR 176. Similar comments were made by all members of the High Court in Rogers v Nationwide News Pty Ltd. [1707] In Rowan v Cornwall [2002] SASC 160 the plaintiff, the administrator of a women's shelter, was accused of financial mismanagement, arrogant mismanagement of staff, allegations of inadequate record-keeping and (by the ABC) of fraud in relation to "large amounts of public moneys". She was not named in the report (at [476] or in a subsequent ABC broadcast (at [572]). The trial judge noted, at [38], that the plaintiff had delegated the record keeping to a colleague, and had relied on her. There were a number of breaches of statutory requirements, and the plaintiff and her colleague were prosecuted for breaches of sections 35 and 57(1) of the Associations Incorporations Act. The magistrate found the offences so technical he did not enter a conviction, opining that the government would have been better off spending its money on help for women's shelters rather than on the prosecution of the staff (at [318]), a view endorsed by the trial judge. [1708] On appeal, the Full Court of the Supreme Court of South Australia held that one imputation (concerning sexual harassment) was not conveyed and reduced the damages, but otherwise upheld the decision of the trial judge. [1709] The pleas of justification by the department and the broadcasters failed, the trial judge noting that nothing exculpatory had been included in the report, that there were "reprehensible" misstatements of fact, that there were "extreme allegations" and that while the "litany of complaints" suggested the plaintiff and her colleagues were not fulfilling their duties at the shelter, this was simply not the case (at [358] - [495]). The trial judge awarded the plaintiff substantial general damages for a number of causes of action including defamation (an award of $225,000 for loss of reputation) as well as damages for negligence and special damages for loss of income. [1710] The similar nature of the allegations, the combative way in which a defence of truth was exhaustively canvassed but failed, the fact that the plaintiff was not named and the impact of multiple publications by different defendants make this award of damages one which may be of some assistance as a guide to an appropriate award. The Goyan v Motyka [2008] NSWCA 28, Bishop Mar Meelis Zaia v David Tiglath Chibo [2005] NSWSC 917 and Suzy David v David Tiglath Chibo [2006] NSWSC 1257 decisions discussed in more detail below, all concern multiple publications making a range of allegations of financial and moral turpitude as well as personal failings. [1711] When assessing the degree of seriousness of an imputation, the context of the imputation needs to be taken into account, and the way in which this issue was dealt with by the NSW Court of Appeal and by the Supreme Court Defamation List Judge demonstrates to me that, when seen in context of multiple publications, repetition and the range of allegations made, it would be an error of law for me to find that these imputations are "far from the strongest case". [1712] The second defendant's submissions have gone on to deal with issues concerning mitigation and aggravated damages (at paragraphs 6 – 12). I have dealt with these issues in separate sections at the end of the discussion of general damages. The defendants' "Key Submissions" [1713] The defendants make the following submissions which they say should result in the award of damages being at the lower range: (a) in addition to the seven publications of the second defendant (and, I should add, the six other publications of the fourth and fifth defendant, to which the second defendant's submissions on damages nowhere refer) there were "a vast number of similar publications in other Korean newspapers". Consequently all the witnesses called by the plaintiff could recall was the general controversy and "actual evidence of damage to reputation caused by the defendant's [sic] publication was very limited" (submissions, p. 355); (b) the plaintiff's settlement with the third defendant for the imputations it published traversed "much the same territory" and pursuant to s 48 Defamation Act the defendants are entitled to take this into account; (c) many of the imputations in the seven publications of the second defendant (and, I interpolate, for the other six for which the fourth and fifth defendant but not the second defendant are liable) are similar to each other and the plaintiff is not entitled to "double up" on his damages. (d) The plaintiff's hurt to feelings was essentially because he believed he was the victim of a campaign by the second defendant who was angry that the plaintiff (and not the second defendant) was elected the Supporting Committee Chairman (a) The need for "Actual evidence of damage to reputation" [1714] Of particular assistance is Goyan v Motyka [2007] NSWCA 28, where the Court of Appeal considered issues of damages arising from a series of letters to fellow members of the Ukrainian community concerning the fundraising structure of a Ukrainian community association. The matters complained of make similar allegations of financial dishonesty and selfishness. The trial judge was invited by the parties to assess damages in a single sum of damages for each of the plaintiff against both defendants without having to differentiate between them. That is not the case here, but otherwise the issues concerning damages are very similar. [1715] The damages awarded to each of the plaintiffs ($120,000 to Dr Motyka and $60,000 to Mrs Ostrowskyj) took into account that no witness had been called to give evidence that he or she thought less of the plaintiff and that the extremely limited publications had been read largely by friends and relatives who did not believe the imputations were true (at [57]). On appeal Mr Evatt for the appellants submitted that the absence of such evidence was a telling factor and the damages were excessive. [1716] Tobias JA rejected this contention (at [113] - [116]), noting the presumption of damage to reputation and that it was open to the trial judge to find some loss of reputation. [1717] In fact it is not uncommon for there to be no evidence that a person read the matter complained of and thought less of the plaintiff. In Crampton v Nugawela, where the plaintiff was awarded $600,000 damages for a publication made to 22 of his colleagues, none of those colleagues gave evidence of having read the matter complained of; the only recipient of the libel who was called was a witness called by the defendant who said she had not read it. In Bishop Mar Meelis Zaia v David Tiglath Chibo [2005] NSWSC 917 the plaintiff brought proceedings concerning a newspaper in the Assyrian community named "Zinda". and there was no evidence called that persons thought any the less of the serious allegations of financial dishonesty made concerning the plaintiff, but notwithstanding this NIcholas J awarded a total of $175,000 for the newspaper article and an email sent shortly afterwards. By comparison, in Suzy David v David Tiglath Chibo [2006] NSWSC 1257 the plaintiff, a solicitor suing over articles in the same online newspaper and two subsequent emails did call such evidence, including evidence that persons shunned her and clients withdrew their instructions. She was awarded $160,000 for the newspaper article and a total of $50,000 for the two emails, making a total of $210,000. These two judgments tend to suggest that the absence of persons giving evidence that they thought less of the plaintiff as a result of these articles is a factor to take into account when awarding damages, but that the absence of such evidence needs to be seen in context. [1718] The defendants' submission that the absence of this evidence should prevent anything other than a small verdict being awarded fails to take into account the factors explained by Tobias JA at [11] - [116]. Tobias JA held that awards of $120,000 and $60,000 for the publication of imputations very similar to the present was not outside the range even without this evidence. No proof of circulation or extent of publication [1719] The defendants' submissions assert: (a) There is no proof of circulation for any Korean language newspapers. This is factually incorrect; the second defendant gave evidence that the circulation was about the same for each newspaper: Daily Transcript 2083 (12 June 2008, Day 51). While the extent of a small publication (as opposed to a mass media publication) should be taken into account, courts do not require a plaintiff to call tens or hundreds of people to prove that someone read the publication. Proof of publication of these imputations even to one or to a handful of persons would be enough to warrant damages in the range of Goyan v Motyka [2007] NSWCA 28. In Bishop Mar Meelis Zaia v David Tiglath Chibo [2005] NSWSC 917 Nicholas J noted at [44] a "paucity of evidence" concerning the extent of publication of a newspaper in the Assyrian community but nevertheless awarded damages of $140,000 in relation to the publication. In Skalkos v Assaf [2002] NSWCA 14 the plaintiff called two witnesses to say they had read the matter complained of in the Macedonian language newspaper Novosti , and another publication (to the Australian Prime Minister) was not read by him because his secretary put the defendant's publication into the waste paper basket. The Court of Appeal declined to set aside the jury verdict for this limited publication. (b) Persons who read one Korean newspaper tended to read all of them, and damages should be reduced because persons read not only the defendants' publications but other newspaper articles This is also factually incorrect. The fourth defendant said it was necessary for him to publish the matters complained of in all three Korean newspapers in order to discharge his obligations to the whole Korean community (Daily Transcript 2636 and 2654, 30 March 2009, Day 59). It is also a misstatement of the law, because the fact that others have published the same defamatory material should not entitle the defendant who is sued to reduce the damages by even "one farthing", to quote the famous statement to this effect in McCombie v Bennett (1886) NSWR 151 at 171 per Martin CJ which has been repeatedly confirmed by the High Court and the Court of Appeal in the United Kingdom in the many cases discussed at (d) below. (c) There were many similar imputations in the defendants' publications and that the plaintiff should not be allowed to "double up" I do need to exercise caution not to award the plaintiff excessive damages by failing to take into account that many of the publications were made between January and March 2001 and, in the case of the fourth and fifth defendants, nine publications on three dates a total of three weeks apart). The reasons are explained by Nicholas J in Bishop Mar Meelis Zaia v Chibo at [43] citing Carson v John Fairfax & Sons Ltd (1992 - 3) 178 CLR 44 at 54 - 6, 99, Suzy David v Chibo at [43]. However, Nicholas J still awarded substantial verdicts, for similar imputations, despite a paucity of evidence of the extent of publication. However, that does not entitle a defendant who makes a defamatory publication to continue to publish the defamatory imputations without fear of paying damages. (d) The publication of 22 December 2000 in Hojudonga caused most damage The defendants submit that the principal damage to the plaintiff's reputation occurred because of the publication in Hojudonga, and refer to the evidence of witnesses that they saw this publication. The defendants submit that when damages are assessed this factor should be taken into account. The fact that the same statement has previously been published by another person is "no reason for cutting down the damages one farthing": McCombie v Bennett (1886) NSWR 151 at 171 per Martin CJ; see also Dingle v Associated Newspapers [1964] AC 371. A defendant cannot save himself from paying substantial damages because others have published the same libel and are therefore "guilty of similar wrongs": Bailey v Truth & Sportsman Ltd (1938) 60 CLR 700 at 710 - 711 per Latham CJ. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 99 McHugh J stated that "the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff"; see also Chakravarti v Advertiser (1998) 154 ALR 294 at 359 per Kirby P; TVNZ Ltd v Ah Koy [2002] 2 NZLR 616 at 626 per Tipping J; Galloway v Telegraph Group Ltd [2004] EWHC 2786 QB at [90] - [91] per Clarke MR, Chadwick and Laws LJJ, upholding the award of the trial judge (Eady J) of 150,000 pounds for four articles which constituted a "blizzard of comment"; Martin v Bruce [2007] NSWDC 264). The exception to this principle is the receipt by the plaintiff of damages awarded for another publication (for a recent example see Obeid v John Fairfax Group Pty Ltd [2006] NSWSC 1059 and Obeid v Australian Broadcasting Corporation [2007] NSWDC 26), which is discussed further below. (e) The publications were "free" giveaway newspapers obtained at grocery stores and other outlets and their contents would not be taken seriously A further basis upon which it was asserted that damages for this publication should be nominal or nonexistent is that these were "free" publications which were picked up at the grocery store and would not be taken seriously by readers. Suburban newspapers are given away free; they are thrown over the fence, and contain largely advertising material, but substantial verdicts have still been awarded. I note from the material tendered that: (i) like suburban newspapers, Korean newspapers are given away free in stores but sold to subscribers. The Supporting Committee subscribed to Hojudonga Ilbo, paying $50 for a two-month subscription on 11 July 2000 (Expenditure Resolution 108); (ii) the copy of the Korean Herald tendered (Exhibit A) shows that these are large newspapers, comparable to suburban newspapers in size, layout and style; (iii) the advertising rates paid by the Supporting Committee to the three newspapers which later published the matters complained of indicate these newspapers were charging advertisers commercial rates. (f) The settlement with the third defendant I accept the submissions of the second and fourth defendants that a very substantial reduction should be made in the award of damages to allow for this settlement. (g) The evidence of the plaintiff's witnesses The defendants make a number of submissions concerning the inadequacy of the evidence of witnesses as to publication and lack of damage to reputation. I have given weight to these submissions, and taken into account the vagueness of a number of the witnesses. However, the plaintiff called 18 reputation witnesses, and at least half of them were able to give clear evidence of which publications they read. (h) The witnesses simply remembered the general controversy, there is "simply no evidence" of many of the publications, and no witness identified the TOP publications of the auditors' reports (1, 9 and 16 March 2001) . The following should be noted about these witnesses: (a) The second defendant never answered a subpoena for the production of the three matters complained of dated1, 9 and 16 March as published in their newspapers. Publication was admitted in the s 7A defence. An application to withdraw this admission was foreshadowed but withdrawn, and then brought again. On the first day of the s 7A jury trial, a further application was made to withdraw the admission of publication, which I refused: see the judgment of 20 July 2004 set out in [2009] NSWDC 300. Throughout the s 7A trial and this trial, the parties relied upon the third defendant's publication as if it was the second defendant's, which is why Miss Evans showed it to the witnesses rather than any publication by the second defendant. Consequently, where witnesses say they read these three matters complained of in the second defendant's newspapers, the fact that they were shown the third defendant's newspapers is because the second defendant, in circumstances that do not reflect well on his record-keeping abilities, could not produce these documents to the court. By reason of the way that this case was conducted, I propose to disregard the complaint that the witnesses were shown the third defendant's newspaper (containing the identical article) and not the second defendant's newspaper. I note, however, that this objection only assists the second defendant, as the plaintiff claims damages from the fourth and fifth defendants as publishers of these three matters complained of in both the first and third defendants' newspapers. (b) Several of the plaintiff's witnesses were in their late seventies. Mr. Kim and Mr. Chong Tae Yi both told the court they were 77 (20 May 2008). Some allowance should be made for this as a simple matter of courtesy. They became tired very quickly as a result of the unfamiliarity of the situation and their age (e.g. Mr Yi on 20 May 2008). (c) Nearly all of these witnesses had not given evidence before. Some were clearly frightened. Mr Kim asked not to be cross-examined and Mr Yi explained on 20 May 2008 that he was nervous because he was giving evidence for the first time in his life. (d) All but two were giving evidence in Korean, and they were all giving evidence about having read these articles in January - March 2001, a gap of seven years at the time of giving evidence. [1720] Part of the problem was that the evidence was not properly presented was because of omissions by plaintiff's counsel, Miss Evans, who failed to ask necessary questions of the witnesses as to which publications they had read. She told the court she thought that she was "relying, I should say, on the fact that it was so long ago" and thought it was not necessary (Daily Transcript 1489, 20 May 2008, Day 39). [1721] Miss Evans came into a complex (18 April 2008, Day 33) part-heard trial on a few days' notice. The plaintiff had been under cross-examination for over a year (Daily Transcript 1405, 5 May 2008, Day 34), which she said had prevented her from taking instructions prior to coming into the case. The parties' legal representatives told me that, following the adjournment of the case while the matter was in the Court of Appeal, the plaintiff had experienced financial difficulties. His solicitors and counsel had ceased acting. Mr Wheelhouse SC and Miss Evans told me there were proceedings in the bankruptcy court (Daily Transcript 1431, 12 May 2008, Day 36), apparently in relation to outstanding legal fees for this case. [1722] There were other reasons why Miss Evans was struggling to deal with this evidence, which will be readily apparent from the transcript, and have nothing to do with the merits (or otherwise) of the evidence. She conscientiously persevered in difficult circumstances. The plaintiff's hurt to feelings [1723] The major component in general damages is hurt to feelings. The second defendant published seven publications, and the fourth and fifth nine (although in total these make thirteen publications) which effectively swamped the Korean media over the period January to March 2001. The evidence of injury to the feelings of the plaintiff is, the plaintiff's written submissions submit, unusually severe (at [23.3.16]. This is not contradicted by the defendants. [1724] Prior to the publication of the matter complained of, the plaintiff was known as a talented golfer (he had a handicap of 6) and held many voluntary positions in Korean sporting associations, notably the Korean Sports Council, and he attended the annual National Games in Korea in this capacity, which meant he helped to represent his new country. His interest in sport led to his volunteering to serve in the unpaid position of chairman of the Supporting Committee. The Minutes and Activities Diary show he was a good and popular leader who democratically included members of the Committee. [1725] The plaintiff was a person of stoic personality who did not reveal his feelings easily, perhaps for cultural reasons, but Mrs Cha spoke about the impact of the publication on her husband and gave a clear picture of the degree of hurt to feelings he suffered. [1726] Mrs Cha took her husband's lunch to his place of work and helped to do the cleaning there, so she saw her husband at work as well as at home. She also did the banking for the company, which means that her handwriting is on a number of the cheque butts in these proceedings. She is a witness of unquestioned honesty, and no allegation was put to her that she in any way participated in the misappropriations attributed to the plaintiff, and given her daily involvement in the banking and financial affairs of the household, this is another issue of difficulty for the defendants. [1727] Mrs Cha described the impact on her husband as follows: "INTERPRETER: Yes. As I recall, my reaction is something that I cannot compare even to the first article that came out. The words cannot describe. Even my mother-in-law said, "The son that I believed - totally believed has been called these names," and she was very in pain and it's an illness that comes from when someone is so angry. I don't know the English word for..(foreign language)..but it's an illness when someone suffers when they have like a shock kind of thing happening to them and they can't - anyway, so she suffered that illness and she continued to say that like, "I'm going to die, I want to die, I want to die," in the forms that she feels like wanting to die. Continued to saying that. My children also saw this article and was very damaged by it. My husband and I, and the whole family, our life - we put our life and everything in to get - to prove the innocence and to get rid of the robber bastard type of name from the husband, and that he didn't want to raise his children and then being called having a robber for a father. I, me - I'm the one that actually told him to fight this first to prove your innocence and then prove the truth, and that we wouldn't give up in our life if our life depended on it, improving. This was the only thing and the only thing that was in our lives, and that took over our lives. I mean, there were the amount of 500,000 and 45,000. I mean, money is not something like elastic band where it, you know, goes large and reduces, and these type or articles from the newspaper have terrible damage to, yes, lives. My husband always smoked, but he would have maybe ten a day. But after this, he would smoke up to two packets a day, and even my relationship with my husband-- INTERPRETER: That's where she got up to. HER HONOUR: Thank you very much. Would you please continue? Can you take some breaths for the interpreter. WITNESS: Yeah. HER HONOUR: Ms Cha, can you just stop there for a little minute? Thank you very much. Yes, please translate. INTERPRETER: Yes. As I mentioned, he started smoking two packets of cigarettes a day. He hasn't been able to sleep, he was having problems digesting, had problems. Could not sleep together because of the not being able to sleep at all, so he kept sighing and big breaths, and so from 2001 onwards we ended up not sleeping in the same bed together, no longer be able to sleep with him. Even his brothers and - this is in Korea - even though they don't believe the whole thing, they do believe that there must be something he's done wrong to be able to have been called these things, or these kind of articles. So there's no more contacts with the family any more, and also they blame him for the death of his mother from this illness that she got from this incident, and as a family and as a - in the community and as a husband in every other way, that this has resulted in a most terrible and negative way that, once we get the result from this litigation, I am definitely going to take that result and we win, we have a winning result and take that paper to the mother-in-law's cemetery. We're going to take it and we're going to prove it to her that my husband didn't take - eat the money, and we are definitely going to do that. HER HONOUR: I can't help noticing that Ms Cha is crying quite bitterly. I think we ought to have a break, don't you? I think she's had enough for the time being." (Daily Transcript 1869-1870, 2 June 2008, Day 46) [1728] Mrs Cha went on to explain: "Q. Ms Cha, we were talking about the effect of that second article on your family. Is there anything else you'd like to say on that topic or not? A. INTERPRETER: After this article went out on 9 February 2001, when would be 1.00 or 2.00 in the morning, at night, the phone would ring, and the contents of the conversation would be about that, "You ate the money and used it for your drinking purposes. Went to the drinking bars and drank," and that, "You're the same as the - living with that person." And they sweared, called him name..(foreign language)..which is like - I don't know how to say it. It's not even like a - you're not even like a dog, like, you're worse than a dog if you're a..(foreign language).. I can't say it. S-O-N B-I-T-C-H. HER HONOUR: It's all right, you can say those words, if it's "son of a bitch". It's worse than a dog, you say? INTERPRETER: Yeah, well - you're a baby dog, but in Korean that's a bad way of saying, yeah, son of a-- HER HONOUR: Yeah. "Son of a bitch" sounds like a good translation. INTERPRETER: I said, "If you're a man, say who you are and come out and identify yourself," and he wouldn't. He said to me that living with someone like him is - you are the same type of..(foreign language)..which is, like, opposite of the bitch. Like, not son of bitch, but you're like daughter of bitch. Anyway, whenever the phone would ring, every night about that time, we weren't able to - yeah, we would be very nervous and agitated, and children were very young at that time. So, yes, it was a very terrible time of our lives. Also, something else, that I received letters in the contents of calling him same, son of a bitch. I believe it's someone that writes very well, and that person, if he's got any conscience, he would know who it is. That person has sent those letters and I've brought it with me as part of evidence." (Daily Transcript 1871, 2 June 2008, Day 46) [1729] Mrs Cha said the family received not only anonymous letters but anonymous telephone calls: "A. INTERPRETER: After receiving the phone calls, I was saying, "How could this be?" And my body would just shake and I was uncontrollable, that it's now eight years ago that I'm able to control this, but if - yeah, if I had to be here at that time, I wouldn't have been able to compose myself, my body. I screamed, looking at the sky, screaming, and - yes, I did. Q. Did you discuss these telephone calls with your husband? A. INTERPRETER: Yes I did. Q. Do you recall what his reaction was?" (Daily Transcript 1878, 3 June 2008, Day 47) [1730] An objection was taken on the basis that evidence had not been led from the plaintiff about these calls. I cannot therefore take this evidence into account. This illustrates the difficulty in running court proceedings seven or eight years after the events in question, and the need for courts to prevent delay from distorting the evidence in the case. [1731] Mrs Cha described the plaintiff's response at Daily Transcript 1888 (3 June 2008, Day 47): "Q. Do you recall or not your husband's reaction to this particular article? A. INTERPRETER: Where you're husband and wife, and you are that close, you don't even have to say it in words, what kind of effect that it had on my husband. If mine was what I've just described, it would probably be the hundred in one compared to what he was going through, the hurt. Q. Do you know if he read this article or not? A. INTERPRETER: Yes, he read it over. I only read it once and I got upset. I didn't read it, but he read it over and over again, and he was hurt, he was sad, he was in agony and - yes. Q. Did he tell you it was false or did he not? A. INTERPRETER: Yes, he said that it was false, not true. He actually basically laughed at it." [1732] This evidence is in my view not corroborative of the plaintiff taking the publications lightly, but of hiding his feelings, a feature of his presentation in the witness box. [1733] Mrs Cha said she and her husband ceased to be invited to Korean social occasions: "Q. Ms Cha, do you recall the reaction of other people to this particular article or not? A. INTERPRETER: The more and more the articles went out, and the more and more times have passed, more and more people have distanced themselves to us, and I myself received a lot of hurt because of this. Q. Is there any example you could tell the court of how someone distanced themselves from you after this particular article? A. INTERPRETER: There's lots to say, but because I'm told to shorten my answers, if there was a get-together or, say, meetings where my husband and myself should have been invited, we weren't invited. So there's many others, but-- HER HONOUR Q. Give us those examples, but just tell us who said what and what their name was. A. INTERPRETER: No, I cannot recall exactly what's been - what was said, but there was lots of, yes, outings or eatings where we should have been invited that we weren't invited." (Daily Transcript 1889-1890, 3 June 2008, Day 47) [1734] Objections were taken to many of these answers because of the lack of specificity about these social occasions and I have not been able to take much of this evidence into account. Again, this is an indication of the dangers of court cases being conducted so many years after the events occurred. [1735] Mrs Cha gave the following further evidence about the impact of the publications on her husband: "INTERPRETER: Yes. As I mentioned, he started smoking two packets of cigarettes a day. He hasn't been able to sleep, he was having problems digesting, had problems. Could not sleep together because of the not being able to sleep at all, so he kept sighing and big breaths, and so from 2001 onwards we ended up not sleeping in the same bed together, no longer be able to sleep with him. Even his brothers and - this is in Korea - even though they don't believe the whole thing, they do believe that there must be something he's done wrong to be able to have been called these things, or these kind of articles. So there's no more contacts with the family any more, and also they blame him for the death of his mother from this illness that she got from this incident, and as a family and as a - in the community and as a husband in every other way, that this has resulted in a most terrible and negative way that, once we get the result from this litigation, I am definitely going to take that result and we win, we have a winning result and take that paper to the mother-in-law's cemetery. We're going to take it and we're going to prove it to her that my husband didn't take - eat the money, and we are definitely going to do that." (Daily Transcript 1870, 2 June 2008, Day 46) [1736] While the plaintiff was restrained in his description of his own personal hurt, one matter the plaintiff did mention was his distress at the impact of these publications on his wife and his mother: "Q. What did your wife tell you? A. My wife said, "You spend so much of our money and then the result you are called a thief, why do you do such a stupid thing?" and she said, "I'm too embarrassed and too ashamed to go out". Q. Did she tell you whether anyone had spoken to her about you when she had gone out? A. Yes. Q. What did she tell you? A. That's why she couldn't go to Korean shops or Chinese shops. Q. What happened to her in the Korean shop, did she tell you? A. She said because when she enters the shop then people would look upwards like this or they would turn their head away, and as a result my mother left Australia and she went back to Korea. Q. Has she come back in? A. No, then she passed away in Korea. Q. Were you upset when your wife told you these things? A. It was so painful. Q. Were you upset when your mother left to go back? A. Yes, it was very painful. Q. How long had your mother been in this country before she left to go back to Korea? A. My mum arrived in Australia on 14 April 1998 and then she left Australia in February 2001 and then in April she passed away. Q. April 2001? A. Yes - sorry, that wasn't correct, my mum passed away 2003. Q. Did your mother tell you why she left Australia? A. She was too ashamed. Q. Of what? A. Of her alleged thief son." (Daily Transcript 131-132, 6 June 2007, Day 6) [1737] The plaintiff was visibly distressed when he gave this evidence. He said that his distress was such that he contacted the cross-defendant and gave him an interview: "A. At that time I did not have any space in my mind to worry about these things because there was a crisis at home and my mother was in such a state. My business was in a terrible state because they told me that I was a thief, so the only thought I had was maybe kill myself; so I really did not have any mental space in my head to do anything like that." (Daily Transcript 812, 5 October 2007, Day 22) [1738] Another blow to the plaintiff was that he was expelled from the Korean Veterans Association and other similar organisations. This is important evidence concerning his hurt to feelings. The plaintiff's expulsion from the Korean Veterans Association and other organisations [1739] The plaintiff had fought alongside Australian troops in Vietnam before coming to Australia, and for several decades he was a member of a number of Korean ex-servicemen's associations. He gave evidence that he was expelled from the Korean Veterans Association and other organisations as a result of the matters complained of: "Q. Mr Cha, the end result of your association with the Korean Veterans Association was that you were expelled from the organisation, weren't you? A. No, I've never been. Q. Were you not expelled from the Australian Korean Athletic Association? HER HONOUR: Is that a different organisation? INTERPRETER: I thought it was Korean Veterans. HER HONOUR: I thought you said it was Korean Veterans. Did you get the organisation wrong? WHEELHOUSE Q. I put to you that you were expelled from the ROKMC Veterans Associations, which is - we understand to be - the Korean Veterans Association of Australia. A. Not just the KOK Veterans Associations - but even the golf associations - all decided to take my own off or expel me from those associations because it was announced in the newspapers that I was an embezzler and I was a cheater and so on, so without my knowledge this was happening and that is why I'm here now in this position trying to justify what happened and what really went on." (Daily Transcript 929, 8 October 2007, Day 23) [1740] It was put to the plaintiff that he was expelled because of his conduct, namely the conduct towards the Korean Veterans Association as described in the matter complained of (the Korean Veterans Association are said to have "claimed not to have received" the $500 donation the plaintiff listed in the Supporting Committee accounts, according to the 1 March 2001 matter complained of). That is why he initially replied "no" to this question; he went on to explain that the reason he was expelled was because of the matters complained of. [1741] The Korean Veterans Association was the only organisation to write to the plaintiff and to the auditors following publication of the Supporting Committee's accounts on 24 November 2000. I have indicated elsewhere that while the letter is addressed to both the plaintiff and the auditors, the plaintiff says he never received a copy and I accept that explanation. The claim by the fourth and fifth defendants in the 1 March 2000 matter complained of that the Korean Veterans Association claimed not to have received the Supporting Committee donation was known by them to be false, having regard to the contents of this letter. [1742] Expulsion from a voluntary organisation related to one's occupation is a serious matter, even though such an organisation "does not carry or attract substantial economic benefits": Crampton v Nugawela (1994) 41 NSWLR 176 at 198 per Mahoney JA. Mahoney JA noted his researches had not uncovered any defamation case where a plaintiff had lost an unpaid but honourable or prestigious position, but considered it undoubted that "substantial damages can properly be awarded for such a loss" (at 198) and that disadvantages that do not cause pecuniary loss must be recoverable (at 199). [1743] In the plaintiff's case, the allegations by the defendants in the matters complained of were that the donation he claimed to have made to the Korean Veterans Association had not been received by them. In addition, they stated that he should not have made such a donation (1 March 2001 matter complained of). I have set out in some detail in this judgment my finding that the involvement of the Korean Veterans Association in the Olympics was an essential part of the success of the bold plan for the teams of these two warring nations to march into the Olympic arena together under one flag. [1744] While I have taken into account the plaintiff's evidence concerning the hurt to feelings occasioned by being expelled from these organisations, I have been careful to do so in the most moderate manner. [1745] This brings me to a consideration of the damage to the plaintiff's reputation in the Korean community. The plaintiff called a large number of witnesses who gave evidence of this kind. Damage to the plaintiff's reputation in the community [1746] The plaintiff called a number of reputation witnesses and I have selected a sample of their evidence rather than set out a detailed analysis of all of them. Mr Chong Tae Yi [1747] Mr Yi is a retired auto mechanic and crane driver aged 77 years. He gave evidence on 20 May 2008 (not 2007, as stated in the second defendant's submissions at p. 361). [1748] Mr Yi said he remembered reading all of the matters complained of, save the matter complained of which is Exhibit S (Daily Transcript 1477 and 1512, 20 May 2008, Day 39). He recalled their general contents and the discussions of these issues in the community at the time. [1749] Mr Yi said he saw Exhibit D "maybe it's after the Olympics" (Daily Transcript 1497, 20 May 2008, Day 39) but also said "maybe 2000". [1750] The second defendant submits that these articles were put to this witness in a leading fashion, and that his uncertainty about the date also deflects from his evidence. [1751] I do not accept this submission. Mr Yi was quite certain he had seen this document. He was certain the publication was after the Olympics, which is important. More importantly, when shown a publication he had not seen before the solicitor showed it to him (Exhibit S) he quite firmly stated he had not seen this publication before. [1752] In relation to Exhibit D, Mr Yi said that this was the first article about the plaintiff he had read: "A. INTERPRETER: I was totally surprised. Could this be happening; someone like Mr Cha? Yes, I was just overwhelmed by the article. Q. You say you were overwhelmed. Do you recall why you felt that way? A. INTERPRETER: Taken totally by surprise. I was very surprised. He's not this type of person and, yes, I was very surprised. Q. Did you think it was true; what it said about Mr Cha? A. INTERPRETER: I mean, it's like any public publications; you believe it or you don't. I really had to find out from the person himself, so I went to see Mr Cha. Q. You went to see him after that article? A. INTERPRETER: Yes. Q. How soon after that article did you see Mr Cha? A. INTERPRETER: I can't say exactly, I can't recall, but after these articles came out. And he's someone that I regard close [sic] and so I had every reason to go and see him." (Daily Transcript 1497, 20 May 2008, Day 39) [1753] Mr Yi went to see the plaintiffs "after these articles" came out. Bearing in mind that they were published during January - March, that would suggest that he did in about mid-March, as he was certain he did not see Exhibit S, and because Mr Cha asked him not to attend a meeting, which was most likely the Sports Council meeting. Mr Cha called him "ajeossi" (which is an honorary name, meaning "uncle") so there was a close relationship between them, and it was because there was a close relationship that Mr Yi went to see him. [1754] It was as a result of going to see Mr Cha that Mr Yi decided not to believe these stories: "A. INTERPRETER: As I said earlier, I'm a very honest person and I live my life very honestly. It's either right or it's not, and I visited Mr Cha many times and asked him the same old questions and after that I believed no. No, that's what I thought personally. Even now that's what I believe. EVANS Q. Would you say that that article raised or lowered your opinion of Mr Cha? A. INTERPRETER: No, I denied it, as I said. After meeting him a few times after that, yes, I did not believe it." (Daily Transcript 1501-1502, 20 May 2008, Day 39) [1755] The second defendant submits that the fact that the witness's opinion of the plaintiff is unchanged is relevant. However, this was a witness who went to the plaintiff to ask for an explanation, and it was because he believed the plaintiff that he accepted this. He described the plaintiff as sitting surrounded by accounting papers, saying he was determined to prove his innocence, and specifically noted that although the plaintiff normally managed his factory, he had put his factory work aside and appointed a manager to look after the factory. [1756] The second defendant submits that this witnesses' evidence is tainted because he also refers to the articles in the Korean Herald (Exhibits M, N and P). I reject that submission for the reasons I have set out above that I reject this claim because the second defendant failed to produce, either on discovery or subpoena, the matters complained of, and the parties have conducted this litigation by treating the third defendant's identical publication as a "template". However, the fourth and fifth defendant published these articles, and the plaintiff claims damages for these publications. The second defendant's criticism, even if accepted, is not applicable to the claim against the fourth and fifth defendants. [1757] Mr Yi identified seeing two articles in TOP, and three in the Korean Herald. He also gave evidence of the damage to the plaintiff's reputation in the Korean community. The second defendant submits that this is too general to be accepted. Mr Yi used the word "an ongoing saga" (Daily Transcript 1510, 20 May 2008, Day 39) concerning these publications. There is a degree of artificiality is submitting that the plaintiff must prove damage from each article separately while also submitting (written submissions, p. 355) that the defendant is entitled to a reduction in damages because of the similarity of the articles and the imputations arising therefrom. [1758] I have set out this evidence as being typical of the evidence other reputation witnesses gave. Mr Yi was not cross-examined by either Mr Wheelhouse or Mr Seck. [1759] Mr Do Kyeong An, a migration agent, gave the following evidence about the publications and response to them in the Korean community: "Q. Do you recall what publication the first article was written in? A. INTERPRETER: If my memory's correct, it was Top. Q. Do you remember about when the article was written? A. INTERPRETER: About the beginning of 2001." (Daily Transcript 1820, 30 May 2008, Day 45) [1760] Mr Kim, the second cross-defendant, not only read but collected all the newspaper articles, because the story was of interest to him because of his role as a newspaper publisher. He recalled reading each of the matters complained of by TOP, the second defendant's newspaper, and identified his handwriting on some of these exhibits (Daily Transcript 1776-1777, 30 May 2008, Day 45). In his capacity as a newspaper publisher, he received many telephone calls from members of the Korean community in response to these articles asking if, or asserting that, the plaintiff was a bad person because of what was published. However, he did not identify which of the articles these calls referred to. [1761] These witnesses' evidence establishes that many Korean community members read these papers. Another witness, a Mr Yong Kwang Kim, gave evidence that there were four main Korean language newspapers, and that every Friday when they were distributed to Korean shops he would read all of them and take them home for his family to read (Daily Transcript 1477, 20 May 2008, Day 39). He specifically referred to TOP and to the Korean Herald as "the main newspapers in [sic] Korean community" (Daily Transcript 1478, 20 May 2008, Day 39). [1762] Mr Kim initially said he could not remember evidence. Miss Evans asked if the second defendant could wait outside, and I refused (Daily Transcript 1479, 20 May 2008, Day 39). Mr Kim then volunteered he had come to court under subpoena (Daily Transcript 1479, 20 May 2008, Day 39), although this was not correct, according to counsel for the plaintiff. He was clearly reluctant to be there (Daily Transcript 1479ff, 20 May 2008, Day 39). [1763] He specifically recalled reading the matters complained of which referred to wristwatches and said that his recollection was as follows: "A. INTERPRETER: I was very surprised about the article. I mean, Cha had a public - he was a public figure. He took on this role of Olympic Games, which means he was a head of the organisations. And virtually it means he has taken money from other people. "Man [sic] is despicable", as described in the article, and I just wondered whether this could be true or not. And I was also thinking to myself, "What a bastard the person is." I mean, how can he be the head of Olympic Games? And there were things about watches and Olympic tickets, and I thought, "I never been given a Olympic watch or Olympic ticket from Cha." And I was feeling quite bad about that, actually. Q. When you read the article, would you say that you, at that stage at least, believed what it said? A. INTERPRETER: In every newspaper they talked about $100,000 misappropriation, Olympic Games and so on, and I just thought to myself, "This is not the Cha that I have known." I just could not make the tail or the head of the story. I just didn't know; I was at a loss." (Daily Transcript 1483, 20 May 2008, Day 39) [1764] Mr Choi, an office worker, gave his evidence in English, a language he spoke very fluently if occasionally ungrammatically. He told the court that from about August 1999 until the end of the Olympics, he was a member of the sub-committee which looked after external affairs and media liaison. This means he can give evidence from the point of view of a Supporting Committee volunteer. [1765] Mr Choi was put in charge of looking after the delegation of Korean journalists who came to Australia in November 1999. It was clearly a high-level delegation as they were taken to meet the Sports Minister in the Commonwealth Government, the Australian Sports Commission, the NSW Premier and the Manager of the Macquarie Bank. [1766] He told the court (Daily Transcript 1787, 30 May 2008, Day 45) that he put his own business to one side over this period, saying that this was "enormous for me" but that it was "no enormous – it depends on what you see as correct", by which he appears to have meant that he was not boasting of having done this, he had done what he thought was the right thing. [1767] Mr Choi came to do this work because he was recommended by one of the Vice-Presidents, Mr Jong Hyung Joo (who also gave evidence). He did not know the plaintiff and did not have much to do with him, but described the plaintiff's way of conducting meetings as "everything is friendly" (Daily Transcript 1788, 30 May 2008, Day 45). He particularly recalled the dinner to farewell the Korean Olympic athletes at which the athletes and the South Korean officials expressed their gratitude to the plaintiff and the statement that the South Korean government would be providing $100,000 funding to the Sports Council. Mr Choi had no association with the Sports Council prior to or at this time. [1768] He went on to say: "Q. After that Hoji Dong a, what you've said about Hoji Dong a, anything else? A. Well the - many media, Korean - lots of the - all Korean newspaper just follow that story because it's the topic. The big news actually, it's a small community, so many media is covering that story, so every community knows. Q. Do you recall which Korean media organisations? A. I can't mention because most everywhere - everything, every media. Q. What does that include? A. What did it include? Q. Yes. A. Well the chairman of the Olympic Committee embezzled 100 something dollars, $1,000 misused or embezzled the public money. Q. Anything else, or not? A. That's it, nothing else. There is no personal - personal story like a love affair or something like that, only that one. Q. Do you know over what period those stories were? A. It happened December, only January, February - I mean 2001, the first part of 2001 is very big news in all community, yes." (Daily Transcript 1793-1794, 30 May 2008, Day 45) [1769] Mr Choi said it was "front page news" in TOP, the Korean Herald and the Oceanic Review. However, he said that no one spoke to him about these articles because he was a "very secret man". [1770] The evidence shows that the matters complained of were front page news and discussed in the Korean community. However, because of the effluxion of time, many of the witnesses were vague about the publications that they read. I accordingly have factored this into my calculation of damages. Conclusions concerning evidence of persons who read the matters complained of [1771] I accept the defendants' submissions that the evidence of persons who read the matters complained of is scanty. However, that is not a reason for awarding nominal damages. It is, however, a factor to be taken into account, and I have done so. Settlement for third defendant [1772] Both parties agree that I should take into account the settlement of $60,000 for the third defendant, although they do not agree as to the way in which this settlement should be approached. [1773] There are two issues: (a) the degree to which this settlement should be taken into account in accordance with s 48 Defamation Act ; (b) whether damages can still be awarded against the fourth and fifth defendant for the publication they made to the third defendant's newspaper on the basis of a settlement with a joint tortfeasor, or whether their publication is a separate publication. (No submission was made to this effect, with the defendants conceding the plaintiff was still entitled to seek damages from the fourth and fifth defendants). Impact of settlement with the third defendant [1774] I accept the submissions of the defendants that this must significantly impact not only on awards for the other identical publications in Hojudonga and TOP, but in relation to imputations of a similar nature in the other publications. I have accordingly substantially reduced the damages that would otherwise be awarded for these very serious imputations. Specific issues of damages for the fourth and fifth defendants [1775] The fourth defendant made it clear in his evidence that the matters complained of are the joint enterprise of the fourth and fifth defendants. [1776] Accordingly I propose to assess damages on the basis that they are jointly liable. Submissions concerning "revenge" by the second defendant and hurt to feelings [1777] The defendants submit (written submissions pages 356, 372 – 3, 375 and 378) assert the plaintiff's hurt to feelings was essentially bound up with the view that he was the victim of a malicious campaign by the second defendant arising from a desire for revenge after having been defeated at the election. It is asserted first that there is no evidence of this and secondly that he is not entitled to compensation for injury to his feelings of this kind. [1778] No claim is made for damages of this kind. Nor was it the plaintiff's evidence that his hurt to feelings arose from this belief. I have set out above the evidence the plaintiff gave as to the reason for his hurt to feelings, and it is evidence I accept. Aggravated compensatory damages [1779] The plaintiff claims aggravated compensatory damages by reason of the knowledge of the falsity of the imputations and the conduct of the defendants which was improper, unjustifiable and lacking in bona fides (written submissions, [26.3.17]). In addition, the extravagant language alleged to feature in some of the publications is relied upon. [1780] I should note a preliminary submission by the second defendant (written submissions pages 373 – 4) that only allegations (ii) and (iii) of the particulars of malice relate to the second defendant, and that as neither of these matters was put to the second defendant, "the failure to put allegations to a witness accused of such a serious thing ought to be fatal to the claim". If that were the case, no claim for aggravated compensatory damages could ever be made unless the publisher was called and specifically cross-examined about the issues of disputed fact particularized, and it would be necessary for plaintiffs who feared the publisher would not be called not only to call that person but, in order to put these questions, have the publisher found to be an unfavourable witness. This would impose an intolerable burden on the trial process. In addition, it is not necessary, in my view, to put these matters formally to the publisher in order to establish conduct amounting to aggravation. The question is whether the evidence gives rise to such a finding. [1781] In the alternative, the second defendant relies on four matters particularized at paragraph 6. These are the publication of a statement by the plaintiff on 23 February 2001 (which I note would have come out on or about the same day as Exhibit J, probably in the same publication as TOP is published weekly, which would somewhat dilute its impact), the fact that the matter had been "brewing for two months" and that by the time the plaintiff complained in his letter of 8 February, the second defendant had already published the matter of 26 January 2001, and that "the plaintiff's own position in relation to the total donations…was demonstrably false… and had changed on a number of occasions" (written submissions page 374). [1782] These may be matters that can be taken into account, but they are hardly conclusive. At pages 375 – 377 the second defendant sets out answers to the plaintiff's particulars of malice and aggravated damages. A number of these particulars are asserted not to have been put to the second defendant and are therefore not permissible. Other claims are dismissed because the second defendant "does not know what the allegation is" or it is "hopeless" (pages 376, 377). [1783] In these circumstances, it is appropriate to set out what amounts to conduct resulting in aggravated compensatory damages. Conduct resulting in aggravated compensatory damages [1784] I should briefly note the matters generally put to the court in support of such a claim. Tobin & Sexton at [32,040] note the following: (a) Conduct of the defendant at the time of publication including malice; (b) Extent and mode of publication; (c) Conduct of the litigation by the defendant; (d) Failure to apologise and retract; (e) Falsity. (a) Conduct at the time of publication [1785] The tribunal may consider the defendant's conduct before and after publication and at the trial. If the defendant has behaved in a high-handed, malicious, insulting or oppressive manner, the plaintiff is entitled to higher damages. [1786] A defendant may aggravate the damages by the recklessness with which he published the defamatory matter. This includes ineffective editorial control: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161. In the present case, the second defendant submits in his client's favour the "unchallenged evidence" that the second defendant did not read those publications before he published (written submissions, p. 375). Such conduct is, however, conduct which is capable of aggravating the damages. In the present case, the second defendant had a number of reasons for reading these publications carefully. He was the honorary president of the Supporting Committee; the plaintiff wrote to him asserting the allegations were false; matters relating to his own conduct and role in the Korean community were referred to, and he had personal knowledge of many of the events, including the Sports Council meeting and other meetings, which he attended or chaired. [1787] Conduct amounting to high-handed or oppressive conduct would include publishing an account, in the seventh matter complained of, favourable to the fourth defendant's assault and "pestering" of the editor of the Korean Oceanic Review and of the cross-defendant, on the basis that they had been expelled from the Korean Society and were, by implication, not welcome at any Korean organization. This tone, language, content and presentation of this publication is offensive and contains no journalistic features whatsoever. [1788] It is important not to award damages under this heading if the damages fall within another heading. I have been careful not to take into account matters falling within the ambit of general damages. (b) Extent and mode of publication [1789] Most of the cases on extent and mode refer to the extent of a mass publication: Tobin & Sexton at [22,065]. The defendants submit that the extent of publication in these proceedings is very limited. [1790] The facts in this case are a little unusual, because there is such a large number of publications in a short period. The second defendant published seven publications over the period January to March 2001 and the fourth and fifth defendants published a total of nine. [1791] The plaintiff in written submissions points to the following: (a) the large number of publications ([26.13.14]) and the determined efforts of the fourth defendant to publish these allegations as advertisements in other Korean language newspapers despite saying he had no money of his own; (b) the prominence of these publications [20.13.15]), which were all over the Korean language press (and, according to one witness, on the front page (Daily Transcript 1794, 30 May 2008, Day 45)) of every Korean newspaper; (c) the mode of publication and the language, including the extreme language used for the headings in what were purported to be auditor's reports ([26.3.19]). [1792] The defendants have asserted that the Korean press was "deluged" with articles about the Supporting Committee. There were four additional articles by Hojudonga, but the deluge of articles in February - March 2001 was in fact the fourth and fifth defendants' six other publications in Hojudonga and the Korean Weekly, as well as the seven publications of the second defendant. The "deluge" was of the second, fourth and fifth defendants' making. [1793] I accept the plaintiff's submissions that the extent and mode of publication are such as to warrant an award of aggravated compensatory damages. (c) Conduct of the litigation by the defendant (other than a defence of justification being persisted with) and conduct which is improper and unjustifiable [1794] The court may take into account the whole of the conduct of the defendant up to the time of verdict: Tobin & Sexton at [22,070]. However, such conduct must be lacking in bona fides, or improper or unjustifiable. [1795] It is important not to take into account matters which might be relevant to an award of costs (especially indemnity costs) where there could be a corresponding "doubling up" of damages and costs. [1796] The plaintiff has helpfully foreshadowed a claim for indemnity costs based on s 48A Defamation Act. The defendants have declined to reply to this. In my view any claim for conduct of the litigation other than for the failed defence of justification should be dealt with in relation to the costs issue. (d) Failure to apologise [1797] The plaintiff gave the following evidence at Daily Transcript 134 (6 June 2007, Day 6): "Q. Has any of the defendant, Mr J K Lee or Mr Park and Co have they ever apologised to you? A. No, I have not received any apology but when Mr Park look at me outside of court and he has sarcastic smile. Q. Has Mr J K Lee, Mr Park, or the other defendant, have they ever apologised to you, yes or no? A. No." [1798] He went on to explain at Daily Transcript 135 (6 June 2007, Day 6): "Q. In the Korean culture is an apology important? A. Yes, the truthful apology can induce forgiveness. But lip service apology couldn't be accepted. Q. But what about a genuine apology, is that important? A. Yes, it is if they truthfully apologise I would have forgiven a long time ago. Q. Did you instruct your solicitors to ask for an apology? A. To whom? Q. Did you ask your solicitors to write to Mr J K Lee, Mr Park and the other auditor for an apology? A. At first a few letters went out as far as I know, make the truth to come out." [1799] It was the plaintiff's evidence that he asked the second defendant to mediate the problems that he and the fourth and fifth defendants were having, and that he was disappointed that this did not occur. The second defendant denied that he was asked to mediate. However, I note that in the first of the three auditors' reports, the fourth and fifth defendants state that they asked the second defendant to mediate. [1800] The importance of an apology in Korean culture can also be seen in the seventh matter complained of, which refers to the plaintiff and Mr Bonney Lee being forced to apologise for statements at the Sports Council meeting. [1801] Letters to each of the second, fourth and fifth defendants containing the text of an apology were sent on 18 May 2001 (Exhibits NN, OO and PP). These documents contained not only a request for an apology but a request to publish the report of a certified public accountant, Mr Min Yong Chin. The plaintiff was concerned that allegations had been made about his conduct as president of the Korean Sports Council (see the seventh matter complained of; I note that the Korean Sports Council is incorporated pursuant to the Associations Incorporation Act and allegations of misappropriation must be dealt with under the statutory regime of this Act). He sent a copy of this letter to the Minister of Culture and Tourism as well as to the Korean Sports Council (Daily Transcript 414, 19 June 2007, Day 13). It was put to the plaintiff that this set of accounts was false (Daily Transcript 414-415, 19 June 2007, Day 13). [1802] Although imputation 43(a) was defended in accordance with the principles in Maisel v Financial Times Ltd [1915] 3 KB 336, no particulars were provided to assert that the plaintiff misappropriated monies from the Sports Council. However, it was part of the defendants' case that the claim for reimbursement from the Sports Council, although processed by the Sports Council and paid (except for a sum of $10,000) was part of the plaintiff's misappropriation. [1803] The entitlement of a plaintiff to claim aggravated damages for failure to apologise depends upon the facts of the case. In Ali v Nationwide News Pty Ltd [2008] NSWCA 183 the Court of Appeal considered that a failure to apologise where no defence to the publication had been provided constituted grounds for awarding aggravated compensatory damages. However, where a defendant has brought a substantive defence (and in particular a defence of justification) to the imputations, should that defendant be penalised for a plea of justification by suffering an award of aggravated compensatory damages? [1804] In considering whether there has been a wrongful failure to apologise, the nature of the defences (or lack thereof, as was the case in Ali) is of assistance. Where a defendant has partially succeeded with a defence of justification, or qualified privilege, or comment, the entitlement of a plaintiff to aggravated compensatory damages for failure to apologise needs to be looked at very closely. [1805] The situation is not the same for the second, fourth and fifth defendants: (a) In the second defendant's case, the defence of comment was (except for one imputation) hopeless and the pleas of qualified privilege (for four of the publications) and triviality were withdrawn. In addition, the plea of justification until three months before the trial was restricted to the imputations of poor record-keeping. The request for an apology was made promptly and was unreasonably refused. (b) The fourth defendant also brought a plea of truth to only two imputations of poor record-keeping, and only amended his defence during the trial. This, however, was an understandable error by a litigant in person. His plea of truth to only two imputations was accompanied by a defence of qualified privilege to all imputations. I should add that the fourth defendant, who was acting for himself at the time, told the court he never received this request for an apology (Daily Transcript 136-137, 6 June 2007, Day 6). I told him it seemed to have been sent to the same address as was given for him in the statement of claim, and asked if he had received this document as well. I never heard any further claim that this letter was not received, and in the absence of evidence I accept that both the letter and the statement of claim were received by the fourth defendant. (c) The fifth defendant never defended the case and has had judgment entered against him, so he is in the same situation as the defendant in Ali . [1806] Although neither side refers to it in submissions, an apology was published by the third defendant as part of the settlement between the plaintiff and third defendant (T 144, 6 June 2007). That apology was published in late 2007. It should be taken into account in mitigation. [1807] As the defences of qualified privilege and comment for the second defendant were weak, the only defences available to be pleaded were the defences of justification and partial justification (sections 15 and 16 Defamation Act). However the second defendant pleaded justification only to imputations of poor record keeping in relation to two of the publications and has never provided any explanation for his delay in waiting until three months before the trial before amending his defence, serving expert evidence and providing particulars. This is five years after service of the statement of claim and six years after the request for apology. [1808] In these circumstances, the award against the second defendant should include an amount for aggravated compensatory damages for failure to apologise. [1809] However, in the case of the fourth and fifth defendant, their failure to apologise is understandable, partly because of their prosecution of a defence of qualified privilege and partly because of my findings concerning their relationship with the second defendant. (e) Falsity [1810] At [26.3.17] the plaintiffs claim aggravated compensatory damages by reason of the knowledge of the falsity of the imputations by the second and fourth defendants. [1811] I have set out, in the section of this judgment on comment, a list of the false statements in each of the matters complained of which give rise to the imputations. Most of these allegations (such as claims that there were no qualified bookkeepers, that the plaintiff kept the books, and a number of insulting remarks to staff attributed to the plaintiff) were never pressed at the trial. [1812] The second defendant submits that the plaintiff's evidence about belief in the falsity of the imputations is limited to imputations 38(c), 41(d) and 43(a) (T 98, 102) and there is no evidence of additional hurt arising from the plaintiff's belief that the other imputations are false. I do not accept this submission. The plaintiff stated that he suffered hurt to feelings about each of the imputations. [1813] The plaintiff submits that the sole aim was to injure the reputation of the plaintiff (at 26.3.18). I have found that these defendants were aware of the falsity (and that, if the second defendant did indeed fail to read the matters complained of, this was reckless falsity) and that their aim was to injure the reputation of the plaintiff. The effect of an unsuccessful plea of justification on damages [1814] The second defendant submits that insofar as the plaintiff claims aggravated compensatory damages, I should accept the warning of McHugh JA in Singleton & Anor v Ffrench [1986] 5 NSWLR 425 at 439 that "the vigorous persistence in a legitimate defence cannot be used to increase the damages." [1815] An unsuccessful plea of justification may be taken into account as an aggravating factor; the extend will depend upon whether it remained on the record and evidence was led; see the cases collected in Tobin & Sexton, Australian Defamation Law & Practice at [11,085]. [1816] It is certainly the case that vigorous persistence in a legitimate defence cannot be used to aggravate the damages, but conduct of the kind discussed by the Court of Appeal in Marsden or Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 243 (per Hutley JA "completely indefensible") is a basis for asserting the defendant has improperly aggravated the injury done to the plaintiff. Findings concerning aggravated compensatory damages [1817] Having regard to the circumstances in the case it is appropriate to award aggravated compensatory damages. [1818] In awarding aggravated compensatory damages for the failed plea of justification, I have been careful not to take into account matters that relate to costs issues, such as the lateness of the plea, the failure to particularize and the way in which the plaintiff was cross-examined for some weeks on allegations which were not particularized and where the Korean originals were withheld from him (I have noted Mr Wheelhouse SC's apology for claiming to the contrary elsewhere in this judgment). [1819] Accordingly I will award aggravated compensatory damages for the failed plea of justification against all defendants, but I have been careful not to take the costs issues identified by the plaintiffs in their written submissions into account. In addition, the degree of aggravation arising from the second defendant's conduct is significant, and I have found in favour of the fourth and fifth defendants concerning failure to apologise. These findings will be reflected in the assessment of damages. Other issues concerning mitigation of damages [1820] In addition, I note the second defendant at paragraph D of his defence filed on 6 December 2004 brought a claim for mitigation of damages arising from: (a) the circumstances in which it is proved by the plaintiff that the publication of the matters complained of were made; and (b) the substantial truth of such of the plaintiff's imputations 39(c) and 40(e) respectively as are proved to be true. The defence filed on 5 February 2007 never amended this. In the proposed new defence, the second defendant relies upon the truth of the imputations "referred to in paragraph 9 above" and also relies upon the damages awarded to the plaintiff in his settlement with the third defendant. [1821] I have not found that any of the imputations are true and there are no mitigating circumstances identified by the defendants warranting reduction of damages. Calculation of damages to be awarded [1822] Each of the matters complained of conveys serious imputations. Having regard to the exercise of assessing damages that I must undertake in accordance with the principles explained by Hayne J in Rogers, and having regard the approach to and quantum of damages in the Supreme Court decisions referred to above, I consider that each of these publications, if published singly, would result in damages within the range awarded by Nicholas J in the Chibo matters, although imputations 36(d), 38(b), 40(e), 41(b) and 41(f) (all of which, I repeat, are imputations not involving criminal conduct, and not requiring the Briginshaw standard on justification issues) are of lesser seriousness. [1823] However, these are seven publications, to a limited audience, in circumstances where there is a substantial settlement ($60,000) in relation to publication by another Korean language newspaper. Awards of the kind made by Nicholas J would need to be more than halved to have regard to all of these factors, and to allow for the overlap of these imputations. [1824] The plaintiff asks me not to assess damages for the fourth and fifth defendants as they have no assets. However, that would be unfair to the second defendant. The damages awarded to the second defendant should not include amounts for which only the fourth and fifth defendants should be liable. I propose to assess damages for these publications so as to ensure that the amount of damages assessed for the second defendant can be fair, and can be seen in context. [1825] I have not, however, assessed damages for the publication by the sixth defendant. That publication occurred at a later date, and I have no evidence about its impact on the Korean community, or of the plaintiff's hurt to feelings. [1826] Questions of seriousness of imputations and impact of publications are very much a matter of impression. [1827] In my opinion, three of the publications really stand out. These are the 1 and 9 March 2001 publications with their extraordinary attack on the plaintiff's personal character (especially the assertion that he brought shame onto the Korean community in Australia) and the publication of 30 March 2001 which imputes, in the context of an article about his resignation from the Sports Council, that the plaintiff misappropriated public money. The publications of 26 January and 9 February 2001 [1828] These publications impute incompetence. It is incompetence of a high order, given that the amounts alleged to have been misspent (in the case of imputation 38(b) or spent without proper records (in the case of imputation 36(c)) amount to more than $100,000 in each case. [1829] In my view, having regard to all of the matters set out above, and having special regard to the repetition factor both in these publications and also reflecting the similar nature of the imputations in the three publications the subject of the settlement, an appropriate award would be in the lower range, namely $30,000 for each publication. This figure also gives a very heavy discount for the limited nature of the publications, namely in the Korean community in New South Wales. [1830] Accordingly there will be a verdict for the plaintiff for $30,000 for each of the publications, namely Exhibit D (26 January 2001) and H (9 February 2001). The publication dated 23 February 2001 [1831] This publication, which appeared in the same issue of TOP as Exhibit 73 (in which the plaintiff published the revised list of donors and the revised total donation amount) raises a serious imputation of failure to account. The way in which comments are set out from persons with expertise is particularly striking. In fact, although two of these persons gave evidence in these proceedings (Mr Bonney Lee for the plaintiff and Mr Patrick Lee for the defendant), neither said they made these statements, although that is not relevant to the issues here. [1832] As indicated above, there are strong aggravating factors for this publication. The second defendant was well aware that the plaintiff challenged the auditors' findings, and that he was calling for a certified public accountant to audit the books. However, the second defendant's evidence was that he did not bother to read this article before it went to press, even though he was the honorary president and presided over meetings for discussion of these matters. [1833] Taking all of the above into account, and noting the need to have regard to repetition of allegations in other publications and the limited publication of this newspaper, I consider that damages should be in the same range, namely $30,000. The publications of 1, 9 and 16 March 2001 [1834] These are the three publications that also appeared in the third defendant's publication and in Hojudonga. Very substantial discounts must be made to take into account the settlement with the third defendant. I note that the imputations in the Korean Herald found by the second s 7A jury for these three publications were not the same; the jury in those proceedings found all the imputations pleaded by the plaintiff were conveyed. [1835] The first of these three articles contains a completely untruthful personal attack on the plaintiff. I have found that the motive for this attack is that the defendants have come to realise that there are no missing donations and that the plaintiff is calling for a certified public accountant to audit the books because he has nothing to hide, since the real reason for accounting problems is the dishonest taking of the books by Mr Sung Joo Sung and the inadequate record keeping of Mr Sung Joo Sung and the seventh defendant. Consequently the only way to blame the plaintiff is to pretend that his personal flaws included dictatorial and self-righteous characteristics that were the reasons for Mr Sung Joo Sung and the seventh defendant falling down on the job. [1836] The worst imputations published about the plaintiff are not, in my view, the allegations of misappropriation. The allegation that he shamed the Korean community is, in the context of the political history of North and South Korea, one of exceptional severity. Australians, including New Australians, are not an unforgiving people, and misappropriation of public monies, while considered deplorable, would not be regarded as being in the same class as bringing shame on the Korean community at a time when there was a chance for the North and South Koreans to march into the Olympics under one flag. The falsity of this imputation, given the outstanding work done by the plaintiff and the Supporting Committee, was never in doubt. [1837] However, by reason of the settlement of the third defendant's proceedings, and the fact that I propose to make damages awards in relation to the fourth and fifth defendants for the publications in Hojudonga and the Korean Herald, I consider the appropriate awards for the publications in TOP are $30,000, $20,000 and $10,000 each, reflecting the lesser nature of the second and third publications, the latter two of which are shorter, making a total of $60,000. [1838] Accordingly there will be judgment for the plaintiff against the second, fourth and fifth defendants in relation to each of these publications as follows: (a) Exhibit M (10 March 2001) $30,000 (b) Exhibit N (9 March 2001) $20,000 (c) Exhibit P (16 March 2001) $10,000 [1839] The fourth and fifth defendants also published these articles in Hojudonga and the Korean Herald. [1840] The Korean Herald is a substantial publication. It clearly publishes news of interest to Koreans generally, and would have a good reputation. Accordingly, a publication in this newspaper would carry the same kind of weight that publication would carry in TOP, which one of the plaintiff's witnesses said was the most widely read newspaper. Although publication outside New South Wales was not pleaded, one witness read the newspapers in Queensland, as he said they were available there and in fact the Korean herald has an address in Fortitude Valley, Queensland. [1841] In view of the settlement the damages should be very small, but not nominal. I propose to award $10,000 in total as damages for the three publications in the Korean Herald, on the same descending scale of seriousness, namely $5,000, $3,000 and $2,000. [1842] As to the three publications in Hojudonga, these also must be significantly discounted. Accordingly I propose to award the sum of $15,000, $10,000 and $5,000 for each of these publications. [1843] Accordingly there will be judgment for the plaintiff against the fourth and fifth defendant in the sum of $30,000 for the articles in Hojudonga. Exhibit S (30 March 2001) [1844] It is my view that this is a particularly serious publication because of the false allegations receiving corroboration from allegedly similar conduct at the Sports Council. The newspaper refers to the allegations about the Supporting Committee as being allegations, and to Mr Dae Won Kang as saying he hopes the plaintiff will clear his name, but then goes on to describe the plaintiff's presentation of the Sports Council accounts (again, without an audit, and with an explanation for this that is clearly not acceptable) in such terms that the inference leaps out: he's at it again, he really did misappropriate the Supporting Committee donation money. [1845] There was never any evidence that the plaintiff's conduct as president of the Sports Council was anything other than entirely proper. Mr Choi, one of the temporary auditors appointed at this meeting, gave unchallenged evidence he was never contacted to perform auditing work. These allegations about the need to appoint new auditors to ensure the accounts were audited were all a sham. [1846] While there is a degree of overlap with the third defendant's settlement in that there is some similarity with one of the imputations, the subject matter is very different. The third defendant's settlement would carry a lesser impact. [1847] In addition, the hurt to feelings is particularly high, because the plaintiff not only had the humiliation of being forced from office by the false allegations of the second and fourth defendants, but of having the second defendant writing a hurtful article about these proceedings, which included praise of the fourth defendant for "pestering" (i.e. assaulting) the editor of another newspaper who was attending the meeting. Like the first and second "audit" reports (1 and 9 March 2001), this is the kind of "splenetic" (Assaf v Skalkos at [42]; Goyan v Motyka at [79]) journalism that should be rewarded with damages proportionate to the harm. Costs and Interest [1848] Subject to any questions of offers of compromise or other matters relevant to costs, the plaintiff is entitled to seek an order that costs follow the event. I have made an order that costs thrown away by the late amendment application by the second defendant be borne by the second defendant. [1849] The plaintiffs in written submissions bring an application for indemnity costs pursuant to s 48A Defamation Act by reason of the way the defendants have conducted the trial. The defendants have not answered these submissions. [1850] I have set out directions below for the defendants to answer these submissions and for both parties to provide submissions and quantification of interest. Concluding remarks [1851] In Marsden the matter was remitted for a retrial on damages, with the Court of Appeal recommending (Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338; [2003] NSWCA 186 at [46]) that damages be re-assessed, either by the trial judge who had heard these very lengthy proceedings, or by another judge, depending on the listing problems in the court. It is likely a similar application would be made in this case if there is to be a retrial on damages. [1852] If appellate courts are of the view that my findings on quantum should be set aside, I respectfully invite them to consider the desirability of substituting their own findings on damages rather than remitting the matter to myself or (as the Court of Appeal suggested in Marsden) to another judge of this court. This was the course taken by the Full Court of the Supreme Court of South Australia in Cornwall & Ors v Rowan [2004] SASC 384 at [825], where damages were reduced in relation to one of the imputations which the Full Court found was not conveyed. Many of the witnesses who gave evidence for the plaintiff were elderly and were having difficulty recalling the evidence when they were called, and their memory is unlikely to be better if there is a retrial in 2011 or 2012. Finality in litigation is an important issue for the parties and their witnesses, and probably also for members of the Korean community, such as the members of the Supporting Committee who worked so hard for the 2000 Sydney Olympics to be a success. With great respect to the appellate courts, a fresh trial could add years, as well as costs, to this trial, as would have been the case in Marsden. [1853] Part way through this trial, the plaintiff's counsel's request that I strike out the defendants' particulars and defence of truth (see Cha v Oh (No. 10 & No. 11) (District Court of NSW, Gibson DCJ, 4 October 2007, unreported) in Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300). I dismissed that application and the resultant fairness of this trial will be a matter of concern for appellate courts, as I noted in my judgment at (Cha v Oh (No. 10 & No. 11) (District Court of NSW, 4 October 2007, unreported) at [69]). McClellan CJ at CL in Greig v WIN TV took from the jury a defence of justification which was adequately particularised before the trial but did not meet the evidentiary burden. The defence of justification in these proceedings, on my analysis of the evidence, similarly does not reach that standard of proof, and the circumstances in which it was provided late, and in vast quantities, led to procedural unfairness. My refusal to strike out the defence of justification in my decision of 4 October 2007 was wrong. [1854] As McClellan CJ at CL pointed out in his 4 November 2009 seminar paper on defamation law to members of the legal profession ("Eloquence and Reason – are juries appropriate for defamation trials?") the "erosion of faith" in the common law adversary system that so concerned Sir Anthony Mason in 1999 is of particular concern in defamation trials because of the complexities of the law. This is particularly the case where the provision of vast quantities of material during the trial, coupled with pre-trial delays (however caused) also occur. [1855] The events in this case occurred between 1998 and 2001. Proceedings were commenced on 20 June 2002 and have taken until 12 November 2009 to complete. I am handing down my judgment as quickly as I can, as the interests of justice will not be served by more delay. These proceedings, like the Marsden litigation, demonstrate that delay can render any judicial determination pyrrhic, not simply for the parties, but for the common law system.. PART 6 – ORDERS (1) Leave granted to the second defendant to amend his defence in accordance paragraphs 9, 10, 11 and 13 of the proposed Further Amended Defence. (2) Second defendant pay costs thrown away by reason of the amendment but with liberty to apply for any application to vary this order in accordance with the timetable set out in order 6 below. (3) Judgment for the plaintiff for a total of $240,000 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums: (a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000; (b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000; (c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000; (d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000; (e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000; (f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000; (g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000; (h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000 (i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000 (j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000 (k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, making a total of $10,000. (4) At the request of the plaintiff, no assessment made of damages for publication of Exhibit X (6 July 2001) by the sixth defendant. (5) The Registrar of this Court is directed to forward a copy of this judgment to the Director of Public Prosecutions, together with a copy of Exhibit 27, for consideration of the conduct of Mr Sung Joo Sung concerning the alteration and dishonest taking of the accounts book or books recording the Supporting Committee's financial history. (6) Second and fourth defendants pay plaintiff's costs with liberty to restore by any party for any applications for costs on any other basis including any application for indemnity costs pursuant to Part 47 Div 2 Uniform Civil Procedure Rules 2005 (NSW) or s 48A Defamation Act 1974, such application to be made no later than 9.00 a.m. 9 December 2009. (7) In the event of such application being made by the plaintiff, the second and fourth defendants provide written submissions in answer to the plaintiff's submissions on costs dated 27 August 2009 by 4.00 p.m. 10 December 2009. (8) Both parties are to serve outlines of interest calculations and any copies of offers relied upon pursuant to Part 47 Div 2 Uniform Civil Procedure Rules 2005 (NSW) or s 48A Defamation Act 1974 (NSW) by 4.00 p.m. 10 December 2009. (9) These proceedings stood over for further directions, or hearing, in relation to interest, costs and any application for a stay, to the Defamation List on Friday 11 December 2009 at 9.00 a.m. (10) Exhibits retained for 28 days, save for Exhibit 27, which will remain in the custody of the Registrar of the District Court until further order. PART 7 - ANNEXURES Annexure A Matters Complained of and s 7A Jury Answers to Questions Annexure B Matters Complained of in the Cross-Claim and s 7A Jury Answers to Questions Annexure A - Matters Complained of in the Statement of Claim Schedule A – First matter complained of Text of the publication: (Hoju Dong A Newspaper: 22 December 2000) Interim Audit results of the Aus-Kor Olympic Supporting Committee The auditors, Hakjoo Park and Hanyoung Lee of the Aus-Kor Olympic Supporting Committee (President Chaesang Cha) advised the interim audit results to Australian Korean Media Association (Association on 21st (Friday)). The Association has urged auditors to finish the audit as soon as possible and let the Korean community know all the details before the Christmas holidays start. In response to this, two auditors mentioned why they have not enough time to complete the audit and why it was not possible for them to thoroughly investigate all the account books that were not properly kept. Nevertheless, they said that they reported the interim results after comparing the general financial reports of Committee with the current source materials. The interim report is regarded as worthwhile because it has disposed to some extent, the facts that have caused the controversies within the Korean community about the release of the previous financial report of the Committee without any audit. According to this interim report, the fund supported by the Korean companies was disclosed as enormous, if we name a few, SK Securities - $99,997.80, Samsung Electronics - $30,000.00, Overseas Korean Foundation - $26,093.24, KBS - $22,854.00, Central Farmers' Association - $19,715.11, Jinro - $10,000.00, Kuncheon Kimchi - $5,000.00, Dept. of Culture & Tourism - $1,750.00, totaling $215,410.04 (amongst this the amount of $6,750.00 was not deposited). The amount which was made public in the newspaper, but not deposited in the Committee account was $52,874.00. On the other hand, the amount of he [sic] deposit which was confirmed, but omitted, in the newspaper advertizement [sic] was $4,032.00. The audit team also separately reported the contents of the fund, that cannot be used for the Committee, from the amounts spent by the Committee from 6/6/1999 to 21/11/2000. This amounts to $175,868.15. This includes $13,846.00 for organizations and persons, $50,981.00 for interest of private loans and the service of those loans and $43,866.75 for entertainment and presents. Besides, it reports that $175,868.00 has been wasted for expenses that have nothing to do with the Olympics. Amongst these, the amounts that do not have statements of expense requirements or receipts add up to $102,440.65. Even though such enormous amounts of money have been outlayed [sic] during the period of 9/9/99 to 31/7/2000, more than 15 cheques issued to Belmore RSL Club and other sections of Korean business community have been dishonoured, even 4 times in some cases. The audit will continue until all details are identified. It is expected that more time and manpower will be required. It is believed that, if necessary, a formal audit process should be performed in the future. Even if the huge amount of $450,000 has been donated to the Committee, the fact that some of the money has not been deposited to the account is an area which really requires careful auditing. For this, they say we need to investigate the personal account and company accounts of Mr Chaesang Cha, the president of the Committee. As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 35(a) That the plaintiff stole money donated to the Committee. 35(d) That the plaintiff so mismanaged the affairs of the Committee that, while he was its President, approximately $175,000 of the Committee's money was wasted by being spent on purposes other than those for which the Committee's money ought to have been spent. 35(e) That the plaintiff failed to ensure proper books of account were kept by the Committee. 35(f) That the plaintiff is a thief. As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff by way of innuendo: 35A(a) That the plaintiff stole money donated to the Committee. 35A(b) That the plaintiff is a thief. Schedule B – Second matter complained of Text of the publication: Conclusion of Audit of doubtable Olympic Supporting Committee In assertion of innocence from Mr Cha, hardship expected on final confirmation The audit result of the Sydney Olympic Australian Korean Supporting Committee (President Cha), which was questioned of various scandals since the end of last year, has been finalised. But some hardship is expected in final confirmation procedure of the last audit result. When Mr Hak Joo Park, the auditor of Olympic Supporting Committee, completed the audit on 200 1/01/23, he asked the president Cha to organise a conference to confirm the final audit report with all data under the participation of witness at Campsie office of the Australian-Korean Sports Council 4:00PM 2000/01/27. Mr Park also invited three vice presidents, Nak Yoon Paik, Byung Doo Choi, and Chong Hyung Joo. Mr Won Kang and Sung Joo Sung were invited as witnesses to the conference. But President Cha said that the conference schedule was decided without any consulting with him and asked auditors to reply to his letter, which requested the evidence of the interim audit result published on 22nd Dec 2000. He also added that he would decide whether he would participate in the conference depending on the auditor's reply. Before this, on 2001/01/22, Mr Cha broke the silence and requested to auditors for material of the interim audit result published in newspaper. He also asserted that it's only emotional calumniation. On that day in an official letter to Mr Hak Joo Park and Mr Han Yong Lee, auditors of the Supporting Committee, Mr Cha said that the Hoju DongA Ilbo's report of 22 December last year citing "the interim audit data" provided by the auditors was not true and demanded them to show the grounds by the 27th day. Citing the interim audit data submitted at the request of the Press Council, the DongA Ilbo then reported the following: · More than $52,000.00 had been included in the public notice (financial report) but had not been confirmed to have been deposited into the Supporting Committee's bank account; · More than $102,000.00 had been spent without a payment resolution and a receipt; · More than $175,000.00 had been spent on things the Supporting Committee's fund cannot be used on; · More than $50,000.00 had been spent on interest and repayment of private loans. And it is also reported: "A huge amount of $450,000.00 in total had been donated to the Supporting Committee." In response to this, Mr Cha requested to provide evidences and details of their calculation and details and calculation basis of the money spent on things not related to Olympic events, by 2001/01/27. If the relevant data is not provided by then lie would acknowledge that rumour "emotional calumniation" was circulated amongst Korean community. Also, if it is impossible to complete the audit by 2001/01/30, it was requested that the auditors return the data to be audited by a professional. (Such contents) was judged as a false accusation which would reduce the effect and pride of our Korean community who supported the Olympics by half. It was stated that they would get the facts cleared. The Secretary of the Department of Culture and Tourism in Korea visited Australia during the Olympic games and promised Mr Cha that Australian-Korean Sports Council would be rewarded with a considerable amount of money for development of the Sports Council. But Mr Cha was recently told again that decision was reversed because of the rumour that Mr Cha misappropriated donations by $100,000.00. It was pretty tragic news to him. At first, he was going to wait until the final audit result was completed; now it looks as if it is inevitable to confront officially. He declared background of public letters sent. On that day, Hak Joo Park seemed to be conscious of the trouble with the interim audit result. He acted pretty cautiously and he was not willing to announce the total amount of receipts of the final audit. He mentioned that there was not much difference between the interim result and the final result, he also mentioned that he has done his best to audit with the data provided. Mr Hak Joo Park suggested the possibilities of errors in the audit process. But he insisted that after confirmation of audit result, it is necessary to form an association to save the situation. In the meantime, President Cha says: "I worked hard within such a short time. I even put my own business aside for a while. It is a fact that there are mistakes but it is a little too rough to make a thief out of me without any evidence. I am willing to get my personal and my business account audited to clear the situation." Mr Hak Joo Park says the problem originated from trying to do bookkeeping without a trained bookkeeper. The bookkeeping was done by Mr Cha from May 98 to Jan 99, it was done by President Cha and Mr Sung Joo Sung between Feb 99 and Dec 99, a financial controller was doing it for a while between Jan and Nov 2000 and Mr Cha was doing it after then. How misappropriation of public fund get cleared President Cha's financial report published by newspaper showed total receipts of $348,000.00. On the other band, some newspapers published $450,000.00 of total receipts. Which gives $100,000.00 more than President Cha's report. This total amount of receipts seems to be the origin of the suspicion. As to the so-called $450,000 allegation, auditior Park said: "I have never said it." It has been known that more than $400,000 was totaled in the final audit. In relation to this, auditor Park said that $50,000.00 handled by secretary-general Sung between Feb 99 and Dec 99, but it was ignored in the financial report and it is already $400,000.00 just by adding this. But President Cha insisted that it has been taken into consideration already. This situation also needs to be cleared. If that money is not included in Mr Cha's report it is only natural that the report is pointed out to be wrong. But the reality of the difference between the receipt and expenditure could be less than it's already published in newspapers. Extracted As against the second defendant, this imputation was found to be conveyed and defamatory of the plaintiff: 36(c) That the plaintiff managed the affairs of the Committee so incompetently that, while he was the Committee's President, $102,000 of the Committee's money was spent without proper documentation being kept. Schedule C – Third matter complained of Text of the publication: The Settlement of Financial Audit of the Aus-Kor 2000 Sydney Olympic Supporting Committee The adverse criticism related to the Financial Report, which was announced Nov 2000 by Olympic Supporting Committee deepens day by day. It actually has spread out not only to our community in Sydney but to the Korea Amateur Sports Association in Korea, organisations related to Olympic, all organisations, enterprises & individuals who supported Olympic are concerned about the aspect of this situation. It's pointed out that all the responsibilities of this situation resulted from Chae Sang Cha's ignorance and his irresponsible attitude, is the President of Korean Sports Council of Australia & President of Aus-Kor Olympic Supporting Committee. At the same time, we can not deny that it is our Korean community's fault for letting such a person with no abilities to carry out responsible duties & elect him as President of committees for such a long period of time. The conference held on 27th January at Sports Council office in Campsie regarding the confirmation of Financial Audit of Aus-Kor Olympic Supporting Committee was the typical case to prove the facts. The persons who attended that conference, Jong Sang An (the first President), Jong Sang Ha (previous President), Eun Tak Shim (a Representative of Korean Community – Chairman), Sung Ju Sung (Supporting Committee's General Secretary) & Won Kang (?), they found it hard to believe about their non attendance at the conference of the President Cha & Vice Presidents of the Supporting Committee. They did not tried to hide their lack of confidence in President Cha. They criticised on fake Financial Report and falsehood this Financial Report which President Cha reported arbitrarily before it gets audited. At this conference, Financial Auditor Hak-Joo Park & Administrative Auditor Han-young Lee told other participants, "President Cha sent invitations to all chairman of organisations for the ceremony to disband of Aus-Kor Olympic Supporting Committee on 19th January 2000. It was the day they start the audit, I could not understand how that Committee could be disbanded if the audit has not been done. President Cha also asked them to help to have the audit finished as soon as possible. As the auditors explaining the progresses, President Cha ignored our requests for the formation of budget of Olympic Supporting Committee despite the numerous requests. Our request to President Cha of list of donors of organisations, enterprises and individuals to the Supporting Committee resulted that President Cha had the Financial Report published. The Financial Auditor Han Young Lee told participants and criticised President Cha, 'to impose on Korean community President Cha acted as if the audit has been completed and he told them "if further information is required contact Financial Auditor. They subsequently mentioned that "it was absolutely impossible to carry out the audit from the books President Cha provided us in the first place. Even if more papers were provided after our request for more information, it was still not enough. We searched for more information ourselves carried out the audit. As a result of that we found out the total amount donated to the Olympic Supporting Committee was $500,000.00 not $450,000.00 as reported in the Interim Audit Result. In the mean time, even though the audit was carried out based on that Financial Report he arbitrarily announced and papers provided by him which caused doubts on Olympic Supporting Committee. He did not bother to attend to the conference to confirm the audit result, he was busy ringing up interested persons to prove his fairness in a disgraceful manner. He colluded with Jung Yup Kim the publisher of Dae Yang Ju News, they tried to dispute about an article published on 2000/12/22 the article mentioned about the total amount of donations of $450,000.00. It was $350,000.00 in his Financial Report. He provoked our editors, auditors and persons involved by saying like "show me evidences" "I will not let this go". Why he did not attend to the conference if he disputes with the interim result so badly? Why did he get the Financial Report published and tried to have a ceremony to disband the Committee in a hurry even before the audit was completed? The suspicion is on the increase. He conducted himself in a big way, President of "Korean Sports Council of Australia", "Aus-Kor Olympic Supporting Committee", as if these committees represent whole Korean community in Sydney. He ran through with shameful conduct on administrative and financial affairs. Consequently, he made all of Koreans live in Australia a bunch of con man. The auditors & former officials of testified to the facts "he even sold the flags, the flags were donated from Enterprises in Korea, The Korea Amateur Sports Association & the Korean General Consulate. He manipulated as if he paid for the flags out of donations." In addition to this the former officials made it clear that those wrist watches President Cha presented to North Korean Athletes were donated by an enterprise in Korea. The watches were not paid out of donations, they accused on falsehood of his fake Financial Report. One of the ladies in volunteer cheering squad talked about President Cha very angrily. "He did not arrange tickets for the games for cheering squad properly and he promised us for uniforms but it turned to be a lie." "The cheering squad was made up of 16 persons and most are students from Korea but we spent our own money most of times. When we read his manipulated Financial Report as if he spent ten thousands of dollars for cheering squad we were shocked and furious." It is so embarrassing & disgraceful that it happened so close to us and related to Sydney Olympic. The festival of the World, an emblem of peace, we proclaimed to the world that our Korea is one nation Korea at Sydney Olympic. After all these, The Sydney Olympic is just about to leave an indelible stain due to President Cha and his irresponsible attitude and his stupid mistakes. We should not just close our eyes and ignore this disgraceful conduct. To regain our pride and fame we must clarify the suspicion with Year 2000 Aus-Kor Olympic Supporting Committee in black & white. We must bear in mind that if we let this matter escape our mind as the time passes like we have with a lot of other matter in the past, this mistake will last throughout our life as a consequence. At first, we all should very thoroughly analyse on comparisons and differences between the Financial Report announced by President Cha and the Audit Result to be reported by the auditors & make a judgment. Ultimately, the Korean Community Association represents the Sydney Korean Community might have to look for the solution for it. Maybe, it can be in respect of the present Chairman of Korean Community Association, also an Honorary Chairman of the Supporting Committee show his leadership to the maximum and bring the 22nd Korean Community Association to the crown of perfection. Published in Hoju Dong A 2001/02/02 As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 37(a) That the plaintiff took an irresponsible attitude to his role as President of the Committee. 37(c) That the plaintiff was incapable of performing a responsible job. 37(d) That the plaintiff knowingly published false financial reports relating to the Committee. 37(e) That the plaintiff's conduct as President of the Committee had brought shame on the Korean community in Australia. 37(g) That the plaintiff so conducted himself as to give reasonable grounds for the fourth and fifth defendants to suspect that the plaintiff stole between $100,000 and $150,000 of money donated to the Committee. 37(h) That the plaintiff attempted to cover up his misconduct by disbanding the Committee before the Committee's accounts had been properly audited. Schedule D – Fourth matter complained of Text of the publication: Public Notice of Audit Result for the Olympic Supporting Committee "TOTAL RECEIPTS Approximately $500,000.00" Report "No More than $340,000" stand against The auditors (Hak Joo Park, Han Yong Lee) of the Aus-Kor Olympic Supporting Committee (Committee) announced that they found that the Committee' total receipts $501,650.00, total expenses $373,876.00 and the balance is $127,000.00 in the Korean Community papers on 8th Feb 2001: (financial report page 56-57) According to the audit result, recepts received between May 1998 and September 2000 was $342,676.00, additional receipts of $17,680.00 was received between April 1998 and December 1998, when Sung Joo Sung was Secretary's General. The receipts of $22,811.00 was omitted from account book and receipts of $118,484.00 was published in newspaper but omitted from account book. Total receipts reached to $501,650.00 In relation to the interim audit result, this audit result is $50,000.00 larger than the amount in some Korean Community newspaper as they claimed it was $450,000.00. But President Chae Sanh Cha insisted that $160,000.00 out of total receipts was miscalculation, total receipt does not exceed $340,000.00. The dispute continues. According to the auditors' expenditure account $10,829.00 for '98, $78,874.00 for '99 $284,172.00 for 2000 and grand total is $373,876.00 The auditors also pointed out that there was $8,192.00 which could not be spent from the Committee' fund. That amount was spent to support and donations to associations of Korean Sports Council. There was $14,280.00 spent on entertainment and conference expenses which was not related to the Olympic Committee' activities at all. There was $3,700.00 to be reimbursed to the Sports Council, expenses of $15,092.00 should have been paid by Sports Council. There was an expenditure of $60,335,00 on entertainment, expenses of $18,552 for gifts, Sports Council and for others. An expenditure of $5,130.00 unspecified in the book. Total of above mentioned expenditures were $120,000.00 which was not supposed to be spent from Committee' fund. At the same time, it was indicated to be $175,000.00 in interim audit result. It is not clear that which item account could not be used from the Committee' fund but at least $20,000.00 was overlapped, because majority of subsiding fund paid by the committee for member association of Korean Sports Council is same amount as the amount paid by Korean Sports Council and most of conference and entertainment expenditure was nearly the same amount. In the meantime, President was unsatisfied with audit result and said that even if he deposit into Committee' bank account or Sports Council's bank account some of deposits are not entered in account book. At the same time, some of expenses paid by his cheques were not entered into the book, instead they were recognised as unknown receipt in account book. Mr Cha added that total receipts on financial report published in newspapers by him is right and definitely does not exceed $340,000.00 except just a few supporter's donations omitted. Mr Cha also declared that $160,000.00 out of $500,000.00 of this audit result by Mr Hak Joo Park and Han Yong Lee, may have been overlapped or groundless calculation. As the Committee's President, I will take full responsibility to find out about $160,000.00 and have an explanation by 5:00 PM on 14th Feb in order to restore our community's honour. The auditor Hak Joo Park emphasised regards to this audit result "this audit is done by a professional person and there is no reason to add or omit out on Supporting Committee' financial report. Meanwhile, there was a joint news conference at Korean Sports Council's office in Campsie in relation to suspension of the Committee' fund consumption at 4:00 PM on 7th Feb. First of all, the auditors decided that they would report the audit result in newspapers. The news conference ended without reconfirmation of each other's audit result. Published in Top 2001/02/09 Friday, February 09, 2001 <Daily> p. 17 THE REPORT ON THE FINANCIAL AUDIT FOR THE KOREA-AUSTRALIA OLYMPIC SUPPORTING COMMITTEE Han Yong LEE, the financial auditor, and Hak Joo PARK, the administrative auditor, audited the Korea-Australia Sydney Olympic Supporting Committee from May 08, 1998 to November 30, 2000. Although the data of the Committee was not enough, the audit was done based on the report on final accounts publicised in the Korean community papers by the president of the Committee and on the details of the financial statement of accounts submitted to the audit team. We request Mr Chae Sang CHA, the president of the Committee, to be present to check and confirm the audit result, but he refused to do so on purpose. So we cannot but report the audit result to you the people of the Korean community because we feel obliged to do so since the Committee is a pan-Korean community organization. INCOME Date Amount ($) Contents 05-98 2,585.70 C.F.M 06-98 855 C.F.M 07-98 1,917.00 C.F.M 08-98 2,266.20 C.F.M 09-98 930 C.F.M 11-98 1,765.75 C.F.M 12-98 510 C.F.M 02-99 970 C.F.M 03-99 2,0860.00 C.F.M 04-99 1,183.84 C.F.M 06-99 2,000.01 C.F.M 07-99 1,810.00 C.F.M 08-99 2,771.45 C.F.M 19-08-99 5,000.00 Source not identified 19-08-99 500 Source not identified 19-08-99 200 Source not identified 09-99 1,674.09 C.F.M 12-09-99 3,300.00 Loan repayment 10-99 1,323.66 C.F.M 07-10-99 2,000.00 Sports Association check convert 25-10-99 700 Advisor Mr Jung Hwan Jung 11-99 10,745.00 C.F.M 11-11-99 400 Source not identified 15-11-99 9,000.00 Private Loan, Mr Na Kyoon Baek (Secretary General) 25-11-99 5,000.00 Loan repayment 12-99 1,820.00 C.F.M 01-00 3,129.80 C.F.M 20-01-00 5,800.00 Loan repayment 02-00 3,732.37 C.F.M 12-02-00 5,000.00 Woong Ho Cho (C.F.M deputy -) 03-00 323.98 Loan repayment 28-03-00 6,000.00 Loan repayment 04-00 5,990.69 C.F.M 28-04-00 500 Source not identified 05-00 3,948.00 C.F.M 10-05-00 1,000.00 Source not identified 06-00 15,140.37 C.F.M 28-06-00 10,163.03 Loan repayment 30-06-00 19,715.11 National Agricultural Cooperative Federation 07-00 1,664.47 C.F.M 31-07-00 99,997.80 SK Securities Co. Ltd. 02-08-00 22,854.00 KBS 28-08-00 2,200.00 Guide Map Advertisment Support 28-08-00 600.00 Guide Map Advertisment Support 28-08-00 6.900.00 Guide Map Advertisment Support 28-08-00 30,000.00 Samsung Electronics 28-08-00 1,000.00 Korean Consulate 22-09-00 10,000.00 Jinro Soju 22-09-00 16,093.24 Korean Consulate (flags fee) 24-09-00 1,000.00 Korean Consulate 29-09-00 4,100.00 Guide Map Advertisment 29-09-00 2,510.00 Guide Map Advertisment TOTAL 342,676.56 Extra (Sung Joo Sung) 07-04-98 100 Ik Tae Um, Tae Ho Choi 17-04-98 1,400.00 Donation for the Games (Jae Kyung Lee 1,000 Hee Jung Sung 100 Sang Kyun 200, Sang In 100) 25-07-98 100 Jong Jin Kim 02-08-98 280 Hyung Jae Lee (President of Boston Sports) 25-08-98 2,000.00 National Agricultural Cooperative Federation 25-08-98 1,300.00 Mr Back (Vice president) 10-09-98 500 Advisor Jung Whan Jung 15-09-98 200 Young Man Kim 19-08-98 5,000.00 Business Headquarter 19-08-98 500 Duck Hwan Na (Managing Director) 19-08-98 200 Tennis association 25-10-98 700 Mr Back (Vice president) 28-11-98 400 Badminton advertisement fee 02-12-98 5,000.00 Jae Kvung Lee (President of the Korean Community) TOTAL 17,680.00 List deposited but not shown in the papers and the account book Number Amount ($) Name of the donators 1 300 Taekwondo 2 116 Hankook Newspaper 3 300 Sundo Motors 4 600 Volleyball Association 5 300 Cascy's 6 1,916.00 Golden Enterprises 7 300 Yoon Duk Yang 8 200 Haesong Restaurant 9 3,000.00 LG TOTAL 7,032.00 Others Number Amount ($) Name of the donators 1 10,479.33 KBS (Confirmed by General Manager Karg Won) 2 2,300.00 Support from Australian Government (Not confirmed) 3 3,000.00 Korean Telecommunication TOTAL 15,779.33 List omitted in the account book (Portion reported in the papers – Financial Report) Date Amount ($) Details 2,000.00 Academy Coaching College 650 Ho Nam Hometown Friends Association 1,000.00 Kye Hyung Kang Migration Agency 500 Boss of Monami Co. Ltd. 300 Kwan Yong Park Consul 500 Sangrok Golf Association 300 Tae Sun Min 200 Dae Won Kang 5,500.00 Woong Ho Cho (only 500 out of 10,500 recorded) 100 Arisan Restaurant 3,000 Eun Tack Choo (President) 50 Yong Choon Park (Boss) 23,074.00 Jae Sang Cha (President) 5,000.00 Nak Yoon Back (Vice President) 1,000.00 Myung Nam Kang (Advisor) 3,500.00 Jong Hyun Joo (Vice president) 100 Antioch Church 5,000.00 Head of business headquarters (part missed from 9,000.00 Korean Consulate Support (part missed from 10,000) 300 Accountant 1,000.00 Jong Moo Kim (President) 500 President of Business Immigration 300 Young Woo Nam (Sports Director) 100 Hae Moung Jung (Planning Committee) 200 Evergreen 500,00 Juna Raksur 100 Kun Il Cha (Advisor) 1,750.00 Deptment of Culture and Tourism 5,000.00 Young Hee Kim, President of Soonchun Kimchi 23-03-00 2,105.00 Income from gift vouchers 14-08-98 1,720.00 Loan repayment 09-08-99 500 Loan repayment 06-09-99 900 Loan repayment 12-11-99 1,365.00 Loan repayment 26-11-99 500 Loan repayment 28-11-99 760 Loan repayment 29-11-99 500-00 Loan repayment 09-02-00 1,500.00 Loan repayment 14-04-00 1,310.00 Loan repayment 13-06-00 500 Loan repayment 15-06-00 500 Loan repayment 08-08-00 15,800.00 Loan repayment 21-08-00 20,000.00 Loan repayment TOTAL 118,484.00 GRAND TOTAL - 501,651.89 EXPENDITURE DATE CONTENT AMOUNT ($) 08-05-98 Treatment to reporter Min Jae Kim from Dept of Culture & 115.3 18-05-98 Hankuk Daily Supporting Committee 360 18-05-98 Supporting Committee 1,000.00 19-05-98 Committee meeting (credit – Minsokchon) 520.4 25-05-98 Committee meeting – Mirak Restaurant 290 28-05-98 Office supplies 300 08-06-98 Donation to Judo Association 500 10-06-98 Committee meeting – Fisherman Restaurant 166 29-06-98 Committee meeting – Fisherman Restaurant 189 06-07-98 Staff of the president board 330 16-07-98 Support request from Tennis Association – Myungdong Restaurant 400 31-07-98 Cash expense – Vice president Choi 1,000.00 31-07-98 Meal serving – Australian Olympic Oraganisation Committee 187 06-08-98 Committee meeting – Fisherman Restaurant 170 07-08-98 Insurance for Worldcup Advertisement – GIO 110 10-08-98 Korea Times Advertisement 200 14-08-98 Loan repayment 1,720.00 28-08-98 Support for Korea Telecommunication 66.2 02-09-98 Support for Soccer Association 500 16-09-98 Private loan Interest 430 04-11-98 National Agricultural Cooperative Federation – Fisherman Restaurant 150 16-11-98 Support for Ho Nam Hometown Friends Association 300 17-11-98 Phone call to Korea 155.75 20-11-98 Committee meeting – Fisherman Restaurant 110 20-11-98 Support for Fencing Association 500 26-11-98 Australia Olympic Oraganisation Committee – Hotel Capital 400 30-11-98 President board meeting – Fisherman Restaurant 150 16-12-98 Committee meeting – Fisherman Restaurant 150 29-12-98 End of the year meeting – Fisherman Restaurant 360 TOTAL 10,829.65 13-02-99 Committee meeting – Anti Restaurant (credit included) 370 18-02-99 Support for table tennis Association 300 22-02-99 Cash Expense 300 29-02-99 Office supplies 65.3 01-03-99 Meals and credit – Anti Restaurant 500 05-03-99 Logo for the 80th National Sports Competition 680 11-03-99 President board temporary meeting 288 13-03-99 Private loan Interest 816 16-03-99 Advertisement (TOP paper) 350 30-03-99 Office supplies 98.18 31-03-99 Committee meeting – Fisherman Restaurant 90 01-04-99 Stamps 100 45 08-04-99 Flower for TOP paper anniversary 80 09-04-99 Committee meeting – Wondoomak 355 09-04-99 Expense 390.12 11-04-99 Cash Expense – for office supplies 250 14-04-99 Phone calls to Korea 218.84 14-04-99 Stamp for Invitation cards 27 17-04-99 Expense 2,477.15 19-04-99 Signboard, Telephone 389.75 20-04-99 Key cutting, etc. 30.6 21-04-99 Fax paper, notebooks 6.95 22-04-99 Notebooks 2.15 28-04-99 Meals (Vice president Sang Ha Park and committee 1,212.00 30-04-99 Meals for meeting – Sinchon, deposit into the Committee 360 16-05-99 Meeting fee 980.5 17-05-99 Meeting fee – Ministers association 390 18-05-99 Office rent – Korean Community 450 20-05-99 Office supplies 28 25-05-99 Telephone fee 182.83 28-05-99 Meals at Samwon Restaurant 500 01-61-99 Stamps (100) 45 02-06-99 Condolences fee for the deceased father of president Cha 100 06-06-99 Drinks – at the time of volunteer selection 21.4 10-06-99 Phone calls to Korea 82.8 15-06-99 Committee meeting 390 17-06-99 Meals 46 17-06-99 Post-it papers 62.7 21-06-99 Phone calls to Korea 227.21 25-06-99 Meeting fee – Business dept. Sinchon 124 26-06-99 Sinchon Restaurant 200 26-06-99 Support for Korea Veterans Association 500 30-06-99 Committee meeting – Sports committee 200 30-06-99 Advertisement (TOP paper) 400 06-07-99 President board temporary meeting – Sinchon Restaurant 270 12-07-99 Congratulations flower to Elder Jang Soo Lee 100 16-07-99 Meals for inauguration ceremony 1,080.00 16-07-99 Coffee and 3 other items 63.63 20-07-99 Fisherman Restaurant Meals – credit 640 22-07-99 TOP paper 400 22-07-99 Computer 680 23-07-99 Envelops and other 1 item 4.58 26-07-99 Serving president Lee of Cham Soju Daegu 500 28-07-99 Committee meeting – Haesong Restaurant 270 30-07-99 Office Band 2,421.00 30-07-99 Office Rent (2 weeks) 800 01-08-99 Support for Volleyball Association 300 01-08-99 Advertisement (Korea Times) 300 02-08-99 Stamps (100) and 5 other items 137.8 05-08-99 Serving president – Fisherman Restaurant 130 06-08-99 Notebooks and 4 other items 81.85 08-08-99 Office moving 1,029.00 09-08-99 Loan payment – cash 500 09-08-99 Wine – Volleyball team 313.2 12-08-99 Photocopy and other 4 items 112.35 15-08-99 Cash and checks 280 17-08-99 Drinks for temporary meeting and 5 other items 103.1 18-08-99 Serving Korea team leader – Mirak Restaurant 140 18-08-99 Meeting – Youngsinn Sinchon Restaurant 195 18-08-99 Meeting 140 20-08-99 Office Rent 800 21-08-99 Support for Baseball Association 300 23-08-99 Wages 218.75 24-08-99 Committee meeting – Sinchon Restaurant 129 25-08-99 Expense 3,961.18 26-08-99 Meals – advisors & directors conversation meeting 216 31-08-99 Phone calls to Korea 92.45 01-91-99 SOCOG Meeting – Sinchon Restaurant 368 02-09-99 Meeting (Agricultural Federation) – Sinchon Restaurant 199 03-09-99 Wages (replaced by rent) 150 03-09-99 Fax paper 14.5 04-09-99 Meals – Badminton team 293 06-09-99 Loan payment 900 06-09-99 Administrative chief weekly wage 800 06-09-99 Rent Fee 2.55 09-09-00 Battery and 3 others 152 09-09-99 Coffee 10.2 17-09-99 Wages (13/9 – 17/9) 200 20-09-99 Phone calls to Korea 154.84 22-09-99 Support for Soccer Association 150 22-09-99 Committee meeting – Mirak Restaurant 270 22-09-99 Phone calls – Sports Committee 199.25 24-09-99 Wages (20/9 – 24/9) 200 24-09-99 Office Rent (4 weeks, 4/9 – 2/10) 1,600.00 30-09-99 Wages (1/9 – 3/9, 27/9 – 30/9) 300 30-09-99 Wages 50 01-10-99 Committee Meeting – Sinchon Restaurant 101.5 02-10-99 Meeting – Ki Sung Nam, Sinchon Restaurant 100 07-10-99 Loan to Sports Association 3,700.00 08-10-99 Office supplies, wages and advertisement 540.6 12-10-99 Badminttern [sic] Advertisement (TOP, Korea Times) 360 14-10-99 Stamps and others 32.35 14-10-99 Electricity 374.22 15-10-99 Wages 200 18-10-99 Stamps 2 - Invitation cards to Senior Association 0.9 19-10-99 Wine – Bora Balling Team 200 20-10-99 Drinks 7.6 21-10-99 Mobile Phone 747.4 22-10-99 Wages (18/10 – 22/10) 200 25-10-99 Fax papers and others 18 25-10-99 Office Rent (16/10 – 29/10) 800 26-10-99 Office supplies 3 27-10-99 Wages (25/10 – 29/10) 200 27-10-99 Telephon [sic] 373.7 28-10-99 Phone calls to Korea 472.26 29-10-99 Telephone (sports council) 104 30-10-99 Congratulations fee on Senior Association – inauguration & [sic] 80 02-11-99 Photocopy and 3 others 17.05 05-11-99 Wages (01/11 – 05/11) 200 10-11-99 Credit – Sinchon Restaurant 1,500.00 12-11-99 Newspapers & Borrowed money 1,365.00 12-11-99 Invitation & business cards – Hana Printing 2,000.00 15-11-99 Loan to Mr Nak Yoon Baek 280.98 17-11-99 Laon [sic] to Sports Association 6,000.00 23-11-99 Private loan Interest 960 24-11-99 Deposit into the Committee's account 5,000.00 24-11-99 Drinks 14.05 25-11-99 Loan to Sports Association 5,074.31 26-11-99 Borrowed money – Office work 500 28-11-99 Borrowed money – Sports Village 760 29-11-99 Borrowed money 500 ? Photocopy – Hankook Printing (Business Plan) 20 ? Meals – Samwon Garden Restaurant (Planning Committee) 110 01-12-99 Korean Festival Day – Korean Community Association 2,000.00 01-12-99 Drinks – Lotte Grocery Shop 20.5 03-12-99 Telstra – Phone 446.1 04-12-99 Meals – JangTuh 58 06-12-99 Hansol Bookshop and others 24.6 07-12-99 General Manager Sung – office 2,421.00 07-12-99 Shilla Restaurant (General Manager Sung and 2 others) 26 08-12-99 Drinks and others – Modoowah Grocery Shop 20.6 08-12-99 Civic Video, Photo copy 7.5 09-12-99 Haesong Restaurant (General Manager Bae and 12 others [sic] 490 10-12-99 End of Year Meeting – Mirak Restaurant 450 14-12-99 Committee staff and president board meeting 250 15-12-99 Sangroksoo Computer 360 20-12-99 Office rent 120 21-12-99 Telephone 667.08 23-12-99 Cash 500 23-12-99 Sinchon Restaurant 500 1999 Total Outcome 78,874.21 Sung General Manager's Total: 53,684.73 03-01-00 Advertisement – Donga Ilbo 100 05-01-00 Private loan Interest 875 11-01-00 President board and mission organisation director 300 12-01-00 Vice President of Sports Association – Hotel 650 13-01-00 Golf treatment – Green, cash 550.8 26-01-00 Serving president – Aseowon Restaurant 360 29-01-00 Hotel – CAPITAL 684 31-01-00 Golf treatment – cash 360 03-02-00 Phone calls to Korea 203.62 04-02-00 Sports Association party 68.75 06-02-00 Private loan Interest 950 07-02-00 Credit payment & committee meeting 520 09-02-00 Newspaper & Loan payment 1,500.00 14-02-00 Birthday – Sinchon 490 10-03-00 Phone calls to Korea 323.98 03-04-00 Cash expense 300 05-04-00 Private loan interest and cash expense 550 06-04-00 Phone calls to Korea 320.35 06-04-00 Advertisement (Korea Times) 700 07-04-00 Support for Golf Association & business trip to Korea 2,080.00 07-04-00 Office telephone 242.5 08-04-00 Cash expense 390 10-04-00 Serving 88 Supporting Committee – Fisherman Restaurant 270 14-04-00 Cash loan payment 1,310.00 14-04-00 Administrative Chief weekly wage 300 27-04-00 Phone calls to Korea 270.34 28-04-00 Cash expense 500 03-05-00 Belmore health food 300.5 04-05-00 Serving 88 Supporting Committee and credit payment 386 12-05-00 Support for Mr Jae Ho Suh 600 14-05-00 Golf Treatment – Kogarah 60 18-05-00 Canterbury Council 1,299.99 22-05-00 Support for Taekwondo Association 360 25-05-00 Cash expense 300 26-05-00 Support for Judo Association 300 26-05-00 Administrative chief wages (3 weeks) 922 27-05-00 Integration of Taekwondo Association 250 30-05-00 Computer, printer cash 200 30-05-00 Hojuilbo 70 30-05-00 Serving the former presidents – cash 400 04-06-00 Credit payment (Sigoljib) & staff and president board 600 05-06-00 Phone calls to Korea 173.17 06-06-00 Committee account 10,000.00 13-06-00 Cash expense and borrowed money 500 13-06-00 Korean videoes [sic] 500 14-06-00 Credit payment to Samwon Garden Restaurant 704 14-06-00 Sunbichon Restaurant 129.5 14-06-00 Sinchon Restaurant 968 14-06-00 Administrative Chief wages/meals 1,080.00 14-06-00 Preparation for the Committee's rally to strengthen the unity 1,186.70 14-06-00 Name tags 205.5 14-06-00 Cheer team and staff members – Shilla Restaurant 354 14-06-00 Shilla Restaurant 215 15-06-00 Office telephone 995.95 15-06-00 Cash expense & borrowed money payment 500 15-06-00 Office telephone 1,131.25 15-06-00 SOCOG meals 460 16-06-00 Office rent 100 16-06-00 SK cash expense 350 19-06-00 Credit payment – Hasong Restaurant 4,447.00 24-06-00 Credit payment & committee members meal - Sigoljib 330 03-07-00 Administrative chief's wages 900 03-07-00 Canterbury Council 433.33 03-07-00 Canterbury Council 70 03-07-00 Credit payment to Monami 1,860.00 05-07-00 Olympic Choir support 1,000.00 05-07-00 Credit payment to Haesong Restaurant 877 08-07-00 Gifts to SK Securities Co. Ltd. 1,025.00 10-07-00 Advertisement for Korean Society Directory 890 11-07-00 Living water office 45.5 11-07-00 Strathfield Flowers Shop 238 11-07-00 Office key fix 110 11-07-00 Advertisement (Korea Times) 200 12-07-00 Myung Doo Choi – vice president 1,080.00 12-07-00 Belmore Club 1,186.70 12-07-00 Administrative chief wages 300 13-07-00 Haesong restaurant – meal 130 14-07-00 Fish 200 14-07-00 Subscription for Hojuilbo 50 14-07-00 Interest 10,300.00 14-07-00 Haesong restaurant – meal 130 17-07-00 Phone calls to Korea 309.47 17-07-00 Office rent 200 21-07-00 KBS Cheer team 700 21-07-00 Office telephone 199.75 21-07-00 Committee meeting – office 90 21-07-00 Dishonored cheque 20 23-07-00 Meal – office 20 25-07-00 Office rent 460.33 25-07-00 Seoul Bakery 450 26-07-00 Shilla Restaurant – Special planning 150 26-07-00 Administrative chief wages 600 27-07-00 Hwangtobang 160 28-07-00 Cheer team use of practice ground 200 29-07-00 Haesong support 235 30-07-00 Reporters meeting – Hwangkumiung restaurant 1,012.00 30-07-00 Committee members & staffs of Korea National Security 1,000.00 30-07-00 Belmore event – overdraft cash 1,200.00 30-07-00 Belmore gifts – Sports Association 1,526.00 31-07-00 Cash expense – vice president Choi 2,000.00 31-07-00 Serving Badmintern [sic] guests 576 02-08-00 Tour guide for SK General Manager 600 02-08-00 Korean Culture Festival 1,000.00 07-08-00 Han Video 515 07-08-00 Office rent 200 07-08-00 Sinchon Restaurant 2,486.00 07-08-00 SK staff accompaniment fee 661 07-08-00 Special Planning board members' meeting 665 07-08-00 Office telephone 127.3 08-08-00 Copy machine 440 08-08-00 Gift for Young Sik Kim – Director of Cheer team 2,177.50 08-08-00 Loan payment 15,800.00 08-08-00 Drive for SK members and general manager 1,900.00 12-08-00 Meal serving – office 38 14-08-00 Event for SK Support Night 5,479.05 14-08-00 Expense during SK Chairman's visit 2,300.00 14-08-00 SK director Kim (Brisbane) 2,400.00 14-08-00 Event preparation in Korea 2,600.00 14-08-00 Gift tor [sic] SK Chairman's wife 330 14-08-00 Cheer team leader 650 15-08-00 Present for SK (Uijun fur coat) 4,990.00 15-08-00 Meal – office 106.91 15-08-00 Staff members & KBS cheer team 268 18-08-00 Strathfield flower shop 180 18-08-00 Hana Printing 556 18-08-00 Serving for Monami (Credit) 1,500.00 18-08-00 Support for Min Sun Song 300 21-08-00 Publishing 'Guide" [sic] 1,500.00 21-08-00 Meal for cheer team 567 21-08-00 Cheer team 1,500.00 21-08-00 Promotion expense for Hak Soo Cho 800 21-08-00 Setup fee of Website 1,500.00 21-08-00 Private loan 20,000.00 22-08-00 Promotion expense for general manager Park 1,300.00 22-08-00 Office telephone 1,131.25 222-08-00 [sic] Missionary organization & ministers 270 25-08-00 Hana Printing SK 110,00 [sic] 25-08-00 Radio purchase 150 25-08-00 Preparation for a Committee's Night 60 25-08-00 Banner fee 800 25-08-00 Printing Guide Map 6,000.00 25-08-00 Business trip to Korea (Guide Map) 1,853.00 25-08-00 Promotion expense of Director Cho 800 28-08-00 Promotion expense of administrative chief 800 29-08-00 Guest from Incheon 176 31-08-00 Use cash 10% (Volleyball Association) 5,000.00 01-09-00 Support for Southern Australia 2,000.00 01-09-00 Promotion expense of Director Cho 300 01-09-00 Entry tickets – Korea total 5,100.00 01-09-00 Ticket prepayment 200 01-09-00 Sports Associations leaders' meeting (Hae Song) 1,886.00 04-09-00 Meal for cheer team 485 04-09-00 General manager Park 200 04-09-00 Administrative chief wages 400 05-09-00 Tickets purchase 7,000.00 05-09-00 Tickets purchase 7,265.50 07-09-00 Former presidents of Sports Association 990 07-09-00 Office telephone 407.75 07-09-00 Hana Printing 722.4 07-09-00 Hojuilbo 638 07-09-00 Korea Times 396 07-09-00 Promotion expense of Director Cho 400 07-09-00 Support for North Korean atheletes [sic] 5,000.00 08-09-00 Tickets for North Korean atheletes [sic] 8,600.00 09-09-00 Guest from Korea Security Agency – Wangdaepo Restaurant 1,300.00 11-09-09 Full Moon's Day Present – Kangchon Rice Cake Shop 2,900.00 19-09-09 Business trip to Korea 641.7 20-09-00 Tickets for North Korean atheletes [sic] 1,013.76 20-09-00 Promotion expense of Director Cho 400 20-09-00 Administrative chief wages 1,324.15 20-09-00 Promotion expense of general manager Park 300 20-09-00 Advertisement (Hojuilbo) 132 20-09-00 Advertisement (TOP Paper) 300 20-09-00 Bus for Welcome Event 880 20-09-00 KBS Cheer team 4,784.00 20-09-00 Copy machine 220 20-09-00 Meal for cheer team (Vice president Choi) 3,264.00 20-09-00 Presents and souverniors [sic] 2,850.00 20-09-00 Promotion expense of Organizing Director Kang 2'000.00 [sic] 20-09-00 Ticket purchase for cheer team 1,295.00 25-09-00 Fax Toner 570 00-09-25 [sic] Car Rent 700 25-09-00 Committee's flags 1,100.00 26-09-00 Office rent 300 26-09-00 Committee's Logo 160 26-09-00 Support for Korea Welfare Association 1,000.00 28-09-00 Ticket purchase for Taekwondo 1,743.00 29-09-00 Purchase of Korean peninsular flags 88 29-09-00 Printing Korean peninsular flags 176 29-09-00 Purchase of Korean flags 588.3 29-09-00 Administrative chief wages 400 29-09-00 Support for Missionary Association 600 29-09-00 Serving Korean Athletes 600 30-09-00 Plague of appreciation 240 30-09-00 Promotion expense of Committee director Cho 200 30-09-00 Promotion expense of Vice president Joo 2,000.00 01-10-00 Welcoming expence [sic] for Korean Athletes' Team 195 01-10-00 Gifts for South-North Korean Athletes 1,800.00 03-10-00 Welcome meals 1,500.00 03-10-00 Support for Soccer Association 3,000.00 03-10-00 Support for Tennis Association 800 05-10-00 Drinks 72 72 06-10-00 Banner printing – the disabled 240 06-10-00 Promotion expense of Committee Director Cho 300 06-10-00 Support for Christian Review 1,200.00 06-10-00 Uniform for National Sports Competition 3,180.90 06-10-00 Administrative chief wages 400 06-10-00 Office Use – administrative chief 500 09-10-00 Administrative chief wages 800 22-10-00 Ticket purchase for Paraolympic [sic] Games 5,000.00 23-10-00 Advertisement – Korea Times 220 23-10-00 Committee director Hak Soo Cho 400 23-10-00 Cash for office use 300 26-10-00 Purchase of Korean flags 2,200.00 27-10-00 Han Video 550 30-10-00 Office telephone 941 30-10-00 Production of Banner 220 30-10-00 Advertisement – Hojuilbo 275 30-10-00 Advertisement & entry tickets 165 30-10-00 Advertisement – Dongailbo 220 30-10-00 Traffic fine 66 30-10-00 Administrative chief wages 400 30-10-00 Presents for disabled atheletes [sic] 2,340.00 30-10-00 Staff members of K.O.C 1,010.00 30-10-00 Cheer team support 1,307.00 30-10-00 Gifts support to member organizations 975 30-10-00 Honey gifts to disabled atheletes [sic] 1,364.00 30-10-00 Presents to National Sports Competition 1,030.00 30-10-00 Rent of ground for Cheering practice 180 30-10-00 Meal serving (Shilla restaurant) 161.5 11-11-00 Hometown videoes [sic] – farewell 100 11-11-00 Administrative chief wages 400 11-11-00 Promotion expense of Committee director Hak Soo Cho 200 17-11-00 Office telephone 1,024.20 2002 [sic] Total Outcome 284,172.65 1998 Total Outcome 10,829.65 1999 Total Outcome 78,874.621 2000 Total Outcome 284,172.65 Grand Total Outcome 373,876.51 The Expenses that cannot be paid by the Committee's Fund Date Content Amount ($) 06-06-98 Support for Judo Association 500 16-07-98 Support for Tennis Association 400 31-07-98 Support for Judo Association 1,000 02-09-98 Support for Soccer Association 500 20-11-98 Support for Fensing [sic] Association 500 18-02-99 Support for table tennis Association 300 05-03-99 Logo for the 80th National Sports Compitition [sic] 680 30-06-99 Sports Association staff meeting 200 01-08-99 Support for Vollyball [sic] Association 300 21-08-99 Support for Baseball Association 300 22-09-99 Support for Soccer Association 150 22-09-99 Phone calls – Sports Committee 199.25 29-10-99 Phone calls – Sports Committee 104 04-02-00 Sports Association party 68.75 07-04-00 Support for Golf Association & business trip to Korea 2,080.00 22-05-00 Support for Taekwondo Association 360 24-05-00 Support for Judo Association 300 27-05-00 Integration of Taekwondo Association 250 Total 8,192.00 08-05-98 Treatment to reporter Min Jae Kim from Dept of Culture & [sic] 115.3 08-05-98 Credit to Minsokchon (for Committee meeting) 520.4 25-05-98 Committee meeting (Sports Association) – Mirak Restaurant 290 10-06-98 Committee staff – Fisherman Restaurant 166 29-06-98 Committee staff – Fisherman Restaurant 189 06-07-98 Staff of the president board 330 31-07-98 Meal treatment – Australia Olympic Oraganisation [sic] Committee 187 06-08-98 Committee meeting – Fisherman Restaurant 170 04-11-98 National Agricultural Cooperative Federation – Fisherman Restaurant 150 20-11-98 Committee staff – Fisherman Restaurant 110 26-11-98 Australia Olympic Oraganisation [sic] Committee – Hotel Capital 400 30-11-98 President board – Fisherman Restaurant 150 16-12-98 Committee staff – Fisherman Restaurant 150 09-12-98 [sic] Committee staff – Fisherman Restaurant 360 13-02-99 Committee staff – Anti's Restaurant 370 01-03-99 Meal credit – Anti Restaurant 500 31-03-99 Committee meeting – Fisherman Restaurant 90 09-04-99 Committee meeting – Wondoomak 355 30-04-99 Sinchon Restaurant 360 26-06-99 Meal – Sinchon Restaurant 200 20-07-99 Fisherman Restaurant Meals – credit 640 26-07-99 Serving president Lee of Cham Soju 500 28-07-99 Committee staff 270 05-08-99 Serving president – Fisherman Restaurant 130 18-08-99 Serving Korea team leader – Mirak Restaurant 140 22-09-99 Committee staff – Mirak Restaurant 270 10-11-99 Credit – Sinchon Restaurant 1,500.00 23-12-99 Sinchon Restaurant 500 11-01-00 President board and mission organisation director 300 13-01-00 Golf treatment – Green Fee 550 26-01-00 Serving president – Aseowon Restaurant 360 29-01-00 Hotel – CAPITAL 684 31-01-00 Golf treatment 360 07-02-00 Credit payment & committee meeting 520 14-02-00 Birthday – Sinchon 490 10-04-00 Serving 88 Supporting Committee – Fisherman Restaurant 270 04-05-00 Serving 88 Supporting Committee – Fisherman Restaurant 386 30-05-00 Serving the former presidents 400 04-06-00 Credit payment (Sigoljib) & staff and president board 600 16-06-00 Claimed to use SK cash but In reality a check [sic] #403.328 350 24-06-00 Credit payment 330 08-07-00 Gifts to SK Securities Co. Ltd. 1,025.00 13-07-00 Haesong restaurant – meal 130 14-07-00 Fish 200 Total 16,067.70 Treatment fee related to the Committee 06-07-98 Serving the former presidents for their advice for the Olymp [sic] Supporting Committee 360+400 760 31-07-98 Meal serving – Australia Olympic Oraganisation [sic] Committee 187 26-11-98 Serving Australia Olympic Oraganisation [sic] Committee 400 18-08-98 [sic] Serving for Korean athletes' field traning [sic] 140 [sic] 11-01-2000 Serving Olympic mission organisation 300 Total 1,787 Amount that should be returned to the Sports Association 06-06-99 Check [sic] deposit – Sports Association 2,000 25-10-99 Advisor Jung Whan Jung – support for National Sports Competiti [sic] 700 24-09-00 Support for National Sports Competition 1,000 Total 3,700 Amount that should be paid by the Committee among outcome 06-06-98 Support for Judo Association 500 16-07-98 Support for Tennis Association 400 07-08-98 Insurance for Worldcup [sic] Advertisement 110 02-09-98 Support for Soccer Association 500 20-11-98 Support for Fensing [sic] Association 500 18-02-99 Support for table tennis Association 300 05-03-99 Logo for the 80th National Sports Competition 680 30-06-99 Sports Association staff meeting 200 01-08-99 Support for Volleyball Association 300 12-08-99 Support for Baseball Association 300 22-09-99 Support for Soccer Association 150 22-09-99 Phone calls – Sports Committee 199.25 29-10-99 Phone calls – Sports Committee 104 12-01-00 Vice President of Sports Association – Hotel 650 04-02-00 Sports Association party 68.75 07-04-00 Support for Golf Association & business trip to Korea 2,080.00 22-05-00 Support for Taekwondo Association 360 26-05-00 Support for Judo Association 300 27-05-00 Integration of Taekwondo Association 250 26-09-00 Production of Sports Association Logo 160 03-10-00 Support for Soccer Association 3,000.00 03-10-00 Support for Tennis Association 800 06-10-00 Korean traditional clothes fee for National Sports Competition 3,180.90 Total 15,092.90 Treatment Fee (serving with meals, etc.) Amount ($) 1 115.30 22 20.00 43 4,447.00 64 2,300.00 2 150.00 23 704.00 44 270.00 65 2,400.00 3 1,000.00 24 110.00 45 270.00 66 2,600.00 4 1,300.00 25 150.00 46 38.00 67 130.00 5 187.00 26 150.00 47 330.00 68 360.00 6 460.00 27 150.00 48 1,500.00 69 270.00 7 500.00 28 129.50 49 450.00 70 386.00 8 354.00 29 360.00 50 250.00 71 400.00 9 567.00 30 370.00 51 106.91 72 160.00 10 3,264.00 31 500.00 52 1,860.00 73 176.00 11 1,500.00 32 160.00 53 500.00 74 161.50 12 485.00 33 968.00 54 520.00 75 1,012.00 13 1,307.00 34 90.00 55 490.00 76 140.00 14 520.40 35 355.00 56 1,500.00 77 600.00 15 290.00 36 360.00 57 877.00 78 576.00 16 330.00 37 235.00 58 130.00 79 1,500.00 17 90.00 38 215.00 59 200.00 80 1,886.00 18 600.00 39 390.00 60 130.00 81 990.00 19 166.00 40 200.00 61 600.00 82 1,186.76 20 189.00 41 640.00 62 661.00 83 205.50 21 170.00 42 2,486.00 63 5,479.05 Total 60,335.92 FRIDAY, FEB 09, 2001 AUDIT REPORT Presents, Sports Association, and others Presents SK 1,025 Director Young Sik Kim 2,177.50 Driving for general director 1,900 Present for his wife 330 Presents (Uijun fur coat) 4,990 General manager Kim 1,526 Others Cake for Full Moon's Day 2,900 For disabled people 2,340 For disabled people 1,364 Total 18,552.50 Payment detail or payee not specified 5,130 Ticket purchase 3,639.10 As against the second defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 38(b) That the plaintiff managed the affairs of the Committee so incompetently that $120,000 of the Committee's money was spent on things on which it should not have been spent. Schedule E – Fifth matter complained of Text of the publication: NO CLUES FOUND TO RESOLVE THE PROBLEM RELATED TO THE OLYMPIC SUPPORTING COMMITTEE Difference narrowed to $56,000.00, but controversy over whether they will commit the matter to CPA or not. As there is suspicion regarding the donations to the Korea-Australia Olympic Supporting Committee (President Chae Sang CHA), both President Cha and the audit team (Hak Joo PARK, Han Yong LEE) had meetings on the 16th and 17th to check the result of the audit. Subsequently a special meeting was held on 21st , where 27 representatives from various circles attended. However, they found no clue to resolve the situation due to controversy over the method for inquiring into the truth of the matter, in the midst of the lack of a basis for the total income of the Committee and relevant data. Meanwhile, regarding the total income of the Committee, while the audit team changed the total from $501,000, which they had announced publicly in Kyo Min Korean Magazine, to around $442,000 through a mutual checking process, President Cha stated that $310000 was purely from donations and the total amount was $386,000, if the borrowed money was included. So the difference between the two parties has narrowed to about $56,000. According to the data presented by the audit team to the meeting, the income total was: Donations - $307,000; additional amount (Sung Joo SUNG) - $30,000; amount omitted from the account book - $12,000; amount omitted from the income records - $91,000; others- $1,000, giving a total of $442,000. On the other hand, President Cha announced that the total of donations was $311,000 and $75,000 was borrowed, amounting to a total of $386,000. President Cha is claiming that his personal donation of $23,000 had already been included in $72,000 or so which was borrowed from his own company (CFM), and that about $35,000 of the rest had also already been included in the donations and the borrowed money. However, he is refusing to submit CFM's accounting records, which the audit team demands. So his claim has not been confirmed yet. The special meeting, held in the Hall of the Korean Community, was presided over by Jae Kyung LEE, the honorary president of the Committee. Many of those attending agreed that the audit would be virtually impossible without CFM's accounting records. But President Cha maintained his position that he would not submit these accounts to the present audit team because it was his private company business account. He said that he would submit them, if the audit team would appoint a Certified Practising Accountant and entrust him or her with the matter. In response, the audit team argued that according to the regulations of the Committee they needed to hold a special session of the General Assembly; if that assembly signified that it did not trust the audit team, they would resign from the position, and then it would be right to entrust the matter to a CPA. And they called for a special session of the General Assembly. President Cha, however, repeated his position that he did not want to argue with the audit team any more, he would first entrust a CPA with the matter and get an audit done, report the result to the General Assembly and then he would pay all the deficit, if any was found, as a result of the audit by a CPA. So they did not come to an agreement. The 27 people at the special meeting included four former presidents of the Korean Society, three former presidents of the Korean Sports Association, advisers from the Sports Association, leaders of the Game Organisations and representatives from the Korean community. The meeting lasted six hours but ended up with no resolution. Those in attendance presented opinions condemning President Cha for the lack of relevant data, such as receipts related to expenditure, bank details, etc. and for his failure to deal with financial matters properly. Also they shared their opinion that President Cha did wrong anyway, regardless of the discrepancy between income and expenditure. In relation to complaints about the expenditures, Mr Cha agreed that a lot of money had been spent on dinners and drinks. But he said that had happened only because he had been trying to attract more people to donate while he had also been busy with his own business as well. But he said he would clear the matter up even if he had to resign as the president of the Sports Association. He hinted he would not be able to avoid taking legal action unless the matter was entrusted to a CPA. Mr Young Kil CHOI, the former president of the Korean Society, who attended the meeting, said, "The data presented to the meeting is a mess. According to this data for audit, the $36,335 was borrowed through 15 private loans, and repayment of the loans was recorded in the income column." He pointed out, "It is impossible to check with these data because of the unclear details of income and expenditure". Also, Mr Ki Duk CHOI, former president of the Korean Society, said, "It is a principle that the executives of the Committee should make balance sheets and report them after they got them audited. This time, the executives and the auditors produced two different financial reports. We will have to re-examine the data to see whose numbers are correct, and whether there have been administrative mistakes. Mr Hwe Jung LEE (CPA), the president of the Golf Association, said, "Speaking as a professional, the Committee used three different accounts – the Committee's account, the Sports Association's account and President Cha's private company (CFM) account. It was wrong from the start." He said, "We cannot proceed with an audit with these numbers, since there is no clear detail about CFM, private loans, etc. in the income column." Meanwhile, with regard to the activity of the Olympic Supporting Committee, Mr Sang Chan LEE, a former president of the Korean Society, said, "After the Olympic Games, Koreans in Korea had a good impression of the Korean Community in Australia. This sort of trouble would not have happened if a thorough financial audit had been performed." He suggested, "It would be good if we formed a new Mediation Committee and solved the problem." Mr Jong Sang HA, the former president of the Sports Association, said, "I feel ashamed as one of the old members of the Sports Association." He asked, "How much from the donations was given to the Korean players?" He added, "All details must be disclosed crystal clearly." Following him, Mr Yoon Hwa LEE, the treasurer of the Korean Society, said, "I would like to argue about the appropriateness of the Committee's business," He criticised, saying, "The expenditure details of the Committee violate its founding purposes." He stressed, "All audits must be done on the basis of relevant data." Mr Seung Sam KANG, a former auditor of the Korean Society, said, "The date requested by the auditors should be presented by the executives. It will never end until all details related to income and expenditure are delivered." Mr Hak Soo CHO, the chairman of the Special Planning division of the Committee, said, "I feel I have not fulfilled my responsibilities." He added, "The audit team should have examined closely the data given by the Committee, bank details, documents on income and expenditure, made a balance sheet on each item, reviewed them, and let the members of the General Assembly ask questions on them." Also, Mr Jung Wan JUNG, adviser to the Sports Association, asked, "Why didn't President Cha submit the relevant data?" He stressed, "The biggest question is whether or not the donations were spent property." As against the second defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 39(a) That the plaintiff failed to account for approximately $56,000 of money donated to the Committee. 39(c) That the plaintiff failed in his duty as President to ensure the Committee kept proper accounts. Schedule F – Sixth matter complained of Text of the publication: YEAR 2000 SYDNEY OLYMPIC AUSTRALIAN-KOREAN SUPPORTING COMMITTEE AUDIT RESULT PUBLIC ANNOUNCEMENT This Korean-Australian Olympic Supporting Committee's Auditors are obligated to report the audit result to the General Meeting by the Supporting Committee's regulation clause 7. The auditors had to get the audit result published in community newspapers because of the President of Supporting Committee Mr Cha refused to hold an open General Meeting requested by the auditors (2001/02/27)???. Should anyone have questions regarding the audit result call auditors on 041403110868 or 0411 456 460. 1. Summary · Initiation and starting of Olympic Supporting Committee 2000 Sydney Olympic Aus-Kor Supporting Committee (Supporting Committee) had an inaugural meeting at the Sydney Korean Society hall on 1st May 1998. It passed Committee's regulation and started under the participation of 3 Korean Society Officials, 7 other association presidents and 4 of their staff, 4 university and overseas student delegates, 9 Sports Council advisers including it's president and 11 staff and president of member association, total of 34 persons. · Background of President Election There was an opinion that a person with good nature and good capability should be elected as a president at Korean Society General Meeting or under the participation of many Aus-Koreans, because the Supporting Committee is Pan Australian-Korean organisation. But with the bad experience of '96 Atlanta Olympics, which had antagonism, division and disturbance between American-Koreans, it was agreed that current Sports Council president also hold presidentship of Supporting Committee. Therefore Mr Cha was appointed as president of Supporting Committee. · President Cha's work performance process After Mr Cha was appointed as Supporting Committee president, he spent about 12 months doing nothing up to April 99. Mr Cha had an inaugural ceremony at Belmore RSL club. Major Committee members who had attended the swearing-in ceremony refused to take up their positions because they felt that Mr Cha had performed his job as President with his self-righteous style and without appropriate knowledge. Since then, once it came to year 2000, the Olympic atmosphere was growing. There were a lot of donations to Supporting Committee from Korean community and the significant companies in Korea. But Mr Cha managed and completed until the Olympic games were over, with no secretary-general or treasurer to manage and control the finance. Mr Cha managed receipts and expenses all by himself. Specially, when Para-Olympic games were on, president Cha and the rest of the Supporting Committee were in Korea attending Korean Nationwide Sports Festival. The welcoming ceremony for the Para-Olympic players was held without any of the Supporting Committee members. 2. Opinion of operations audit In a single word, 2000 Sydney Olympic Aus-Korean Supporting Committee is shameful to call a Pan-Aus-Korean Organisation. It was degraded down to Mr Cha's own stage and his own private company. The Articles of Association is a compass to guide the directions, discipline, and regulations of an organisation. Nevertheless, Mr Cha left positions for Secretary-General and treasurer vacant even though it is against the Articles of Association. Mr Cha controlled all of the receipts and expenses by himself, he did not even have a book to keep the record of any receipts and expenses. He shouted, meaning how dare you, and quarreled with people who suggested he stop his self-righteous behaviour and carry out his duties to manage the Committee properly and he consistently behaved as he pleased and arrogantly. "Democracy works depending on majority's opinion." Mr Cha even ignored that basic theory of democracy and ignored Committee's regulations. He decided independently and put into operation all by himself. When the auditors asked Mr Cha: "Why did you not have a treasurer?" Mr Cha replied immediately "There was no one I could trust." It means that he could not trust anyone. Maybe his dictatorship and self-righteousness originate from this way of thinking. The auditors can only declare the opinion that the tragedy of the Supporting Committee originated from appointing such a person as a head of the organisation. 3. Opinion of Administration audit · Correspondence registry There is a registry of correspondence, but archives contents are equipped. It was very hard to find one document. Some documents are not filed in correct places and some were in various drawers. · Registry of official seal use Out going letters must have official seals on but there is not a registry of official seal. · The Minutes There were some minutes recorded in the early stage of initiation of Supporting Committee but once they started to be more active, they did not leave any records. Specially there are no records of discussions in relation to a private loan which took interest, to major changes in systems and to planning for major events. 4. Financial affairs audit · Conference and Entertainment Expenses The Supporting Committee spent $62,818.16 for this item, this amounts to about 20% of the total expenses. It is understandable to entertain prospective sponsors but immoderate entertaining makes the guest feel uncomfortable. The cost of entertainment for SK Securities was $8,211.00. It included costs for dinners, drinks, golf games and a trip to Brisbane. The auditors were informed about it through a telephone call by a director from SK securities, Kim. The director Kim said: "The cost of the trip to Brisbane on 14th August 2000 was not paid by the Supporting Committee, it was paid out of his business trip cost not even $1. When Mr Cha entertained SK staff, they offered to pay for the bill but Mr Cha said that he was paying for it, not the Committee. So they let Mr Cha pay." If what director Kim said was true, the expenses of $2,400.00 is misappropriated so that it has to be reimbursed by Mr Cha. Also, an expenditure of $3,616.80 was made to entertain vice president Sang Ha Park of Korean Sports Council in Korea. He lives in Dae Gu, Korea, which means that he has nothing to do with the Olympics. The Supporting Committee spent $3,699.00 to entertain the Korean Olympic Team, which is just about the same amount they spent for such a person. It is very hard to say that his behaviour is reasonable. · Expenditure on Gifts The Supporting Committee gave away to Korean Olympic (South & North) $12,742.20 worth gifts. They gave away $13,822.50 worth of gifts to SK Securities. As a result of all these activities, Mr Cha was appointed as an Hon Director of SK Securities. As auditors, we do not have a clue what to think and how to take it. Mr Cha showed stinginess with an entertainment expenditure of $21.50 for a voluntary worker. There is expenditure for gifts of $3,050.00 yet to be confirmed and another expenditure of $1,030.00 for the Korean Nationwide Sports Festival. They both have nothing to do with the Sydney Olympics, which means that Mr Cha has to pay back the money. · General expenditure of donations Mr Cha sent $2,000.00 to the Korean Society of South Australia to support an Olympic soccer preliminary match in South Australia. Under the circumstances, anyone from Supporting Committee could not attend games in South Australia. It was a good achievement. But other expenditures, such as donations to organisations like $300.00 to Ho Nam Homeland Association, $500.00 to Veterans Association (Veterans Association claims that they did not receive it), $1,000.00 to a private enterprise cultural festival and $1,000 to the Korean Welfare Association, these are not related to the purpose of the Supporting Committee and (we) cannot help regarding these expenditures as unreasonable. The supporting Committee spent $13,600.90 to assist member associations of Korean Sports Council and uniforms for Korean Nationwide Sports Festival. Even though Mr Cha holds an additional post as a president of Sports Council, they are two independent associations. They have different formation purposes & different characters. Therefore all the expenses for the Sports Council must be reimbursed. 5. Event expenditure According to material the Committee provided to the auditors, the Committee spent $1,0880.00 for an inauguration and hanging board ceremony. Regardless of that incident, they paid out $1,080.00, $1,200.00 twice over or triply paid bills. The Committee paid for outings of the Committee $1,876.70, $205.50 and $1,187.70. The payment overlapped must be reimbursed. 6. Repayment of private loan and its interest Mr Cha paid $56,135.98 to pay back his private loan and $4,881.00 for its interest. But there are no details and proof of from whom and when he got the loan and what the conditions of the loan were. But all we found out was, private loan from Nak Yoon Paik was $15,800.00 and Joon Kim $10,000.00 total $25,800.00. When we look at this, it is hard to tell whether Mr Paik and Joon Kim ran a usury business to the Committee. The amount of $13,074.31 paid back to Sports Council. Obviously we take it that it was deposited into the Sports Council's account but it is necessary to confirm whether it has or not been deposited into the Sports Council's account. 7. Telephone bill Apart from the phone notice for Committee $8,260.41, phone bill to Sports Council $303.25, Mr Cha's personal mobile phone bill of $747.40 and Mr Cha's factory phone bill of $2,852.44 are not to be paid by the Committee's fund. If an organisation pays private phone bills for the head of the organisation because phone calls were made for the organisation, this means that the organisation has to pay the directors for their phone bills as well. To get rid of the contradictory thought that only the head of the organisation gets the benefit, it is necessary to classify that strictly. So that whatever has been already paid, has to be paid back to the Committee. 8. Dishonoured Cheque 17 of the cheques President Cha issued were dishonoured, especially between 14/6/2000 and 31/7/2000 15 cheques were returned unpaid. He can not get away from the moral responsibility of degradation of the credit rating of Korean Society, bringing disgrace on to our community and ruining our dignity. 9. Equipment expenses The Supporting Committee purchased one set of computer, a copier, a radio and a Supporting Committee flag. The Supporting Committee is an organisation formed for one special occasion, which will be dissolved once the Olympic games are over. Particularly, all of the used equipment and materials and utensils should be transferred to the Korean Society by principle. However, I would like to suggest that the Korean Society take over Supporting Committee's paper work and utensils and donates the computer and copier to the Sports Council, which is short of equipment. AUDIT EPILOGUE Year 2000 Sydney Olympic Supporting Committee could have finalised their operations successfully under the support of enterprises from Korea with good will, sincere community and flaming patriotism from our community. But it is also true that a lot of Committee staff were heart broken and shameful of Mr Cha's arrogance and self-righteousness. Mr Cha used to say to the others when some tried to give him good advice, he used to shout and tell them off: "I did not become a president by playing a card game. 50,000 community members appointed me as a president. Who dares to nag the president for spending money, If we get caught by auditors, I will pay back the money later." Three of the vice-presidents had soft characters; they ignored him all along. Mr Cha made secretary-general and treasurer who looks after financial affairs leave their positions by picking a quarrel with them because they seemed obstacles to his self-righteous management. The Supporting Committee can not have anyone stops any of his misbehaviour. The auditors informed audit schedule to the Committee and requested for material for auditing. But the Committee did not respond to the auditors' request and did not hand in the materials. The Committee announced financial report in newspapers without an audit. Also, they asked the readers to contact the auditors or Supporting Committee office. They probably thought that auditors are a part of Supporting Committee. Due to auditors' severe objection, they handed in their financial report. But when we look at this report it was very much different to what they announced in the newspapers. The evidence of documents or account books of receipts and expenses were in utter disorder. There were 140 expenses without receipts and they amounted to $150,000.00. What the Committee called an account book was a school exercise book and they scribbled in these books and most of the receipts and expenses were omitted. The auditors were obliged to compare the financial report the Committee announced in newspapers and the financial report the Committee handed in to the auditors (Signed by Mr Cha to certify that this is same as the original copy) and made up a list of receipts and expenditure. The auditors asked Mr Cha to meet up with the auditors to cross-check the result of the list. But Mr Cha did not respond to the auditors' request, that's why the auditors visited the President of the Sydney Korean Society, who concurrently holds the title of an honorary president of the Committee for a mediation. 2001.3.1 Signature of Han Yong Lee - Auditor in finance affairs of the Committee Signature of Hak Joo Park - Auditor in administrative affairs of the Committee As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff: The action against the first defendant has since abated. As against the second defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 40(a) That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia. 40(d) That the plaintiff impeded the working of the Committee through his self-righteous behaviour. 40(e) That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs. 40(h) That the plaintiff misused his position as President of the Committee to gain a directorship for himself. 40(k) That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff. As against the third defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 40(a) That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia. 40(b) That the plaintiff failed to appoint persons that he was under a duty to appoint pursuant to the Committee's Article of Association. 40(c) That the plaintiff is a self-righteous person. 40(d) That the plaintiff impeded the working of the Committee through his self-righteous behaviour. 40(e) That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs. 40(f) That the plaintiff misappropriated $2400 of the Committee's money. 40(g) That the plaintiff spent the Committee's money on purposes that he knew were purposes on which the Committee's money ought not to have been spent. 40(h) That the plaintiff misused his position as President of the Committee to gain a directorship for himself. 40(i) That the plaintiff wasted the Committee's money by borrowing money on the Committee's behalf at very high rates of interest. 40(k) That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff. As against the fourth defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 40(a) That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia. 40(d) That the plaintiff impeded the working of the Committee through his self-righteous behaviour. 40(e) That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs. 40(h) That the plaintiff misused his position as President of the Committee to gain a directorship for himself. 40(k) That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff. As against the fifth defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 40(a) That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia. 40(d) That the plaintiff impeded the working of the Committee through his self-righteous behaviour. 40(e) That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs. 40(h) That the plaintiff misused his position as President of the Committee to gain a directorship for himself. 40(k) That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff. Schedule G – Seventh matter complained of Text of the publication: 2000 Sydney Olympic Aus-Kor Supporting Committee additional Audit result 1. The reason why public announcement published in newspaper: It was to be reported in the General Meeting. But it is reported to our community directly because the executives refused to convene a General Meeting. 2. Contents of additional report: After last week's report, based on data prepared by President Cha, the additional report is done because omitted items are found continuously by tip-offs and review. Supplementary public announcements will be continued, if more omitted items are found. 3. The auditors involved in this audit declared that all of the audit procedure was carried out without auditors' personal interests whatsoever. It was carried out based on documents kept at the Supporting Committee's office, financial reports submitted to the auditors by Mr Cha, statement of accounts published by President Cha without audit and on information given by persons involved. We would like to stress again the audit will continue until it is finalised. The contents of Auditors' Additional Report 1. President Cha's business trip expenses – Improper use or misappropriation? President Cha withdrew $8,479.00 and $641.70, total amount of $9,121.40, for a business trip to Seoul. In case of an official business trip, the reason and purpose of the trip, evidence of trip expenses and receipts must be recorded and kept. Among the documents kept by the Supporting Committee, there is no document that can support this official business trip. It is inevitable to guess that Mr Cha's trip was not for business. We, as auditors, were shocked that Mr Cha did not care about his public responsibility for his abusing the supporting fund for his private expenses. The auditors could not find any evidence to support this expenditure. And they decided that this expenditure was for Mr Cha's private use. Therefore we believe that Mr Cha must refund this money to the Committee. 2. President's expense account – a large sum of $90,000.00 on entertainment, and another $5,200.00 for personal expense account? According to the expenditure account, Mr Cha withdrew $5,200.00 over three times as expense account. The Committee is a non-profit organisation supporting Olympians. There is a problem if the president of such kind of organisation took and spent an enormous amount as his personal expense account: $62,818.16 for entertainment, $33,135.70 for gifts and total amount of $95,953.86. Even though he spent so much money on entertainment, what is the reason why he took more money for expense account again? If he fails to offer evidence on how he spent this money, the money also should be paid back because public fund has been misused or misappropriated. 3. 100 gift watches from LG – Whose wrist are they on now? During the Olympic season, LG Electronic donated 100 wristwatches to the Committee. Mr Cha cleared that he gave those watches to North Korean Olympic team as gifts. But Mr Lee, Australian representative manager of the North Korean Olympic team declared that they did not receive any watches. Whereabouts are the watches? It is said that they were taken to the President's residence. Please explain where they are. 4. The Committee's purchasing gifts – private enterprise fed by Supporting fund? A total of $33,135.70 was spent on gifts. Most of the gifts were purchased from Belmore Health Food shop, according to the shop receipts. The proprietor of this shop is Byung Doo Choi, vice president of the Committee. Why did the Committee, as a Pan-Australian Koreans' organisation, purchase gifts exclusively from the vice-president of the Supporting Committee? The Committee announced the following resolution on March 2000. Among the resolutions, "We as Sydney-Koreans, value our reputation. Apart from voluntary services, the Supporting Committee will not be used for personal advantages and no intervene of interests." It is questionable whether the vice-president's case falls into this category or not. We judge that such a preferential practice cannot only be attributed to Mr Cha's self-righteousness and his lack of knowledge as president of a public organisation, and the three vice-presidents can hardly deny their responsibility for seemingly having assisted or having acted in concert with Mr Cha. 2001.3 2000 Sydney Olympic Aus-Kor Supporting Committee Signed by Financial auditor, Han Yong Lee Signed by Administrative Auditor Hak Joo Park As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff: The action against the first defendant has since abated. As against the second defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 41(b) That there were reasonable grounds for the auditors to suspect the plaintiff of making a false claim for business expenses of $9121.40. 41(d) That the plaintiff misappropriated to his own use money belonging to the Committee. 41(f) That the plaintiff misused his position as President to favour an associate as a supplier of gifts to the Committee. As against the third defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 41(a) That the plaintiff falsely maintained that a personal trip was a business trip for the Committee and thereby stole $9121.40 of the Committee's money. 41(c) That the plaintiff wasted large amounts of the Committee's money. 41(d) That the plaintiff misappropriated to his own use money belonging to the Committee. 41(e) That the plaintiff kept for himself 100 wristwatches that had been donated to the Committee. 41(f) That the plaintiff misused his position as President to favour an associate as a supplier of gifts to the Committee. As against the fourth defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 41(b) That there were reasonable grounds for the auditors to suspect the plaintiff of making a false claim for business expenses of $9121.40. 41(d) That the plaintiff misappropriated to his own use money belonging to the Committee. 41(f) That the plaintiff misused his position as President to favour an associate as a supplier of gifts to the Committee. As against the fifth defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 41(b) That there were reasonable grounds for the auditors to suspect the plaintiff of making a false claim for business expenses of $9121.40. 41(d) That the plaintiff misappropriated to his own use money belonging to the Committee. 41(f) That the plaintiff misused his position as President to favour an associate as a supplier of gifts to the Committee. Schedule H – Eighth matter complained of Text of the publication: THE THIRD ADDITIONAL REPORT ON THE AUDIT OF KOREA-AUSTRALIA OLYMPIC SUPPORTING COMMITTEE We give you the third report since there was continued information received since last week. The following is the information reported by readers after the audit report was publicised in papers. Korea-Australia Olympic Supporting Committee was established by the pan-Korean community through its donation. However, unfortunately, the Committee lost its meaning and defamed the image of the entire Korean community in Australia because of one person's ignorance and self-righteousness. Nevertheless, he doesn't reflect on his behaviour, ignores the just audit of the Committee, and is absorbed in excusing himself, which is preventing the normal dismissal of the Committee. Therefore we will continue to announce additional audit reports with a view to revealing the justification of the Korean community and preventing the same events that might happen in the future. We look forward to receiving your information 1. Donation omitted: Might he have forgotten while spending the money donated? (1) Se Jong Restaurant: $300 (2) Kangwon: $200 2. False account book on donation outcome (It is beyond comprehension why only Ho Nam Hometown Friends Association was supported despite there are many Hometown Friends Associations in Korean community.) - The record shows that it gave $300 to Ho Nam Hometown Friends Association, but the Association denied it. We wonder if he spent that money following his logic, "Who can raise objection to the president's spending the money?" because President Cha is a member of this Hometown Friends Association. 3. Korean National Flags (We wonder why he withdrew money twice for the flags actually given once but by making it twice). - Paid 'Christian Review' $1,000 for 3000 Korean national flags on June 05, 2000. Recorded falsely that $1,000 was aid to the same company on July 05 without a receipt. Then where is $1000 gone? 4. Again double payments for flags - After sending $2,200 to Bumyang Industry Co. Ltd for flags through the Exchange Bank of Korea, he made a false receipt and withdrew $2,788.30 for flags. Where is the money now? 5. Fee for the Uniting Church Cheer Group's use of the ground. - President Cha claimed that he paid $1,100 for it, but the Church confirmed that it received only $400. It is reported that the inspection deacons of the Church are in trouble now. The money must be paid to the Church as soon as possible (?). 6. Again wristwatches - Following the previous incident about 110 missing wristwatches donated by LG, this time again 90 wristwatches donated by SK are missing. There are only people who claimed to have donated so many wristwatches but there is nobody who has received them …. Please report immediately if anyone has ever seen them. March 15, 2001 Han Yang LEE Finance Auditor Hak Joo PARK Administration Auditor Kor-Aus Olympic Supporting Committee As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff: The action against the first defendant has since abated. As against the second defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 42(d) That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself. As against the third defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 42(a) That the plaintiff stole money donated to the Committee. 42(b) That the plaintiff made false entries in the Committee's financial records in order to divert the Committee's money to himself. 42(c) That the plaintiff stole 190 wristwatches that had been donated to the Committee. 42(d) That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself. As against the fourth defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 42(d) That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself. As against the fifth defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 42(d) That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself. Schedule I – Ninth matter complained of Text of the publication: "Moral obligation regarding Supporting Committee scandal" President of Sports Council resigns. President's resignation was passed by 12 votes against 5 at Sports Council's Extra session of General meeting Mr Cha, president of the Supporting Committee, who has been suspected to have done wrong in relation to the use of the Sydney Olympic Supporting Committee's public find, resigned on the last 25th day from the position of chairman of the Korea Sports Council in Australia, which he had held concorruntly [sic]. According to the request of delegates of the Council, an extra session of General Meeting was held on 25th March at the Korean Society Hall in Croydon Park. At the meeting the President declared: "I will bear the moral responsibility and resign" and "I resign but I will clarify the financial affairs with Supporting Committee without fail." A total of 22 people attended this meeting, 4 counsellors and 18 delegates attended, they appointed a counsellor, Jong Sang Ha, for provisional chairman to lead the Sports Council for the remainder of the term. As Counsellor Dae Won Kang suggested: "Let's appoint a chairman to progress the meeting impartially." Counsellor Jong Sang Ha was appointed to provisional Chairman by 13 votes. Also a suggestion by a delegate, Jin Min Jang, to amend and supplement the Articles of Association before pursuit the meeting was passed by 12 votes. Following are details of amendments to the Articles of Association. · Association member joining fee is reduced from $1,000.00 to $500.00 · Automatic entitlement to a counsellor changed from former chairman to former chairman who completed his term of office. · An entitlement to be a delegate to counsellor. · Quorum to be able to amend Articles of Association, minimum votes required is from 2/3 of delegates' approval attended to the General Meeting to 2/3 of delegates' approval enrolled & attended to General Meeting. (??????) · Quorum to dismiss officers is changed from 2/3 of delegates' approval to 2/3 of delegates' approval attended to General Meeting. One of the delegates, Dae Won Kang, gave his opinion: "President Cha raised scandal from the moral point of view but I hope that he restores his honour in relation to the Olympic Supporting Committee's financial affairs. He also asked Mr Cha whether he had decided to resign from the Council. After a short discussion with his party, President Cha expressed his intention to resign. President Cha's resignation was passed by 12 votes against 5 votes. At this meeting, President Cha & Hwe Jung Lee (Chairman of Golf Association) said some or other, "A people's court" "even amend the Articles of Association to push all to a side", they copped it and they were demanded to take back what they said. They were even rebuked by Hak Soo Jo, Chairman of Volleyball Association, saying: "Is this a Communist People's meeting?" Also, Hwe Jung Lee added that "under the name of decision by majority and it is a group trying to kill one person." It gave rise to public criticism. Later, Mr Lee received a strong demand from a counsellor, Byung Sik Kim, to rectify what he said. Mr Lee ended up making an apology. Mr Cha distributed financial data without financial report from auditors (Byung Joo Chun – financial auditor, Jin Yul Kim – administrative). It was not discussed because the auditors' report was left out. According to Mr Cha, Byung Joo Chun (financial auditor) was on a business trip in New Zealand, Jin Yul Kim (administrative auditor) was suffering from a chronic disease and it is not possible for him to carry out his duties as an auditor. At this meeting, the Sports Council appointed temporary auditors Hak Soo Jo, Chairman of the Volleyball Association and Kyu Bum Choi, Director of the International Sports Council, just in case that financial report is not prepared within 2 weeks. At this extra session of General Meeting, as Jung Yup Kim (publisher of Dae Yang Chu News) and Jae Sung Hwang, its editor, were walking into the conference room they were stopped & pestered by the Secretary General of the Korean Society by reason of that they were expelled members of the Korean Society. Even after they were seated they were engaged in a wordy battle with officers from the Korean Society. "Extra session of General Meeting is ineffective" against this claim "it does not deserve even a passing consideration" Contradiction Former chairman of Sports Council, Mr Cha, who resigned at an extra session of General Meeting on 25th, claimed that the extra session of General Meeting was ineffective. Against this claim, the newly appointed Chairman turned this down by saying that "it does not deserve even a passing contradiction". Through the Fax Mr Cha sent to the press in the name of "All of Sports Council Staff" Mr Cha claimed that decisions of the meeting were absolutely ineffective. In that fax, former Chairman Mr Cha mentioned that extra session of General Meeting was enforced under pressure like they appointed provisional chairman, also they amended the Articles of Association to lighten the condition on dismissal of officers and a vice chairman is supposed to work as an acting chairman in the chairman's absence but they appointed Mr Ha as a provisional chairman instantly. In regards to this, new Chairman Ha commented following to make his position clear. · The General Meeting is the highest resolution authority any agenda can be discussed and resolved in the General Meeting within the range of the Articles of Association. · Even if the Chairman has authority of the presidency of the General Meeting, it is only a general knowledge if Chairman is regarded as self-righteous that presidency can be changed over by a delegate's vote. · In that General Meeting, everyone had an opportunity to express their views freely and the resolutions were agreed to the views of the majority. The Chairman Mr Ha added, particularly, Chairman Cha's resignation was decided on his own and it was passed by delegates' vote. The new chairman was appointed to take remainder of the term legitimately. Also regards to vice chairman's acting in absence of the chairman, Mr Ha pointed out that "if the officers has not gained confidence of new chairman whom has the appointing authority, the officers are automatically dismissed. It applies to a vice-chairman the same. So that, vice-chairman's working as acting chairman in absence of the chairman is someone's speech and behaviour of without knowing the Articles of Association. In the meantime, in relation to claims in question of Mr Cha "extra session of General Meeting ineffective", Mr Cha declared that he is not denying the fact that he resigned, he just can not accept a delegate Mr Ha as a chairman. As against the second defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 43(a) That the plaintiff misappropriated public money. Schedule J – Tenth matter complained of Text of the publication: "OUTRAGEOUS CLAIM IN RELATION TO COST TO PURCHASE THE TICKETS" Hak Soo Cho contradicts on details of interview of President Cha Mr Hak Soo Cho (Chairman of Volleyball Association), the Special Planning of the Aus-Kor Olympic Supporting Committee, refuted Mr Cha's claim in relation to Mr Cho purchasing tickets to Olympic events which was published in March issue of Dae Yan Chu News is groundless assertion. At the interview with Dae Yang Chu News, President Cha said that he allowed the expenditure of $27,000.00 for purchasing tickets by himself. But he did not receive receipts for them from Mr Cho so that he does not know whereabouts of the money. In response to this claim, Mr Cho showed receipts for the tickets and purchase order for the tickets signed by Mr Cha and Mr Byung Doo Choi on 2nd April. Mr Cho criticised Mr Cha's irrelevant comments not remembering that he signed purchase order and giving it to the auditors. According to notes of money received from Mr Cha attached to the purchase order, $5,000.00 on 2000/08/31, $7,000.00 and $7,200.00 on 2000/09/05, $7,800.00 on 2000/09/07. He received total amount of $27,000.00 over 4 times, he spent $24,000.00 to purchase tickets. The reason why there is a difference of $3,000.00 is that Mr Cha took $1,500.00 after Korean team arrived at Sydney airport on 2000/09/12, $500.00 in front of the office after he returned from the airport and another $1,000.00 in front of the office when reporters from the Ministry of Culture and Tourism visited on 2000/09/14. According to the document, it is eventually estimated that out of $27,000, which has been publicly announced by Mr Cha to have been used for the purchase of tickets, Mr Cha has diverted $3000 for "entertainment" or other uses, which raises another problem. In relation to the whereabouts of the 100 LG wristwatches and 90 SK wristwatches, which was pointed out in the auditors' additional financial report. It was confirmed b the Korean Welfare Association for the handicapped and Soon Hyung Kwon, publisher of Christian Review, that 35 LG watches and 40 SK watches were given to the handicapped Olympic Team on 2000/10/27 and an unknown number of watches were given to the North Korean Olympic team. As against the second defendant and seventh defendant, no imputations were found to be conveyed and defamatory of the plaintiff: Schedule K – Eleventh matter complained of Text of the publication: Announcement of new executives of Sports Council ... We will do our best to clear up Chae Sang Cha' party. Mr Jong Sang Ha of Sports Council of Australia called for an extra session of General Meeting at 6:00 pm on 2001/04/28 selected and appointed new executives by a unanimous vote. While 19 of delegates attended to this meeting, they selected and appointed Hyung Man Kim for a financial auditor (Master of Hwa-rang Tae Kwon Do) Han Yong Lee for operations auditor (Asahi P/L), Yoon Hwa Lee (Noxan P/L) and Choong Sup Kim (Scorpio P/L) for vice chairman, also Joon Gu Im (the director of Aus-Kor diving school) for secretary general, Tae Yul Kang (Crystal P/L) for general business director, Bong Gu Kim (director, Dong Yang Jang furniture) for financial affairs director and Suk Woo Ko (chairman, Aus-Kor welfare association) for event director. New address of Sports Council: 82 Brighton Ave, Croydon Park NSW 2133 (C/o Korean Society) Phone: (02) 9716-0622 Fax: (02) 9798-0011 Meanwhile, Mr Chae Sang Cha made lightning announcement of the ineffectiveness of the extra session of general meeting. Mr Cha expressed to resign from Sports Council at extra session of general meeting of Sports Council held on 2001/03/25 due to the involvement of irrationality of misappropriate of public fund of year 2000 Sydney Olympic Aus-Kor Supporting Committee. Mr Cha had a conference with a few of his followers on 2001/04/29. New delegates of Sports Council know that some of the Mr Cha' party consists with persons with ambitions to take possessions of Sports Council to bury the irrationality of misappropriate of public fund of Supporting Committee. The new delegates, executive and members must be prepared to enhance Sports Council' forfeited dignity, from now on. Also they looked more united than ever with a good will to do their best to clear up Mr Cha' party. Published in The Hoju Dong A 2001/05/04 As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 45(a) That the plaintiff misappropriated money belonging to the Committee. 45(b) That the plaintiff was party to a conspiracy to gain control of the Sports Association in order to cover up his misappropriation of money belonging to the Committee. Schedule L – Twelfth matter complained of Text of the publication: Readers column Supporting Committee's matter should not end in smoke. - Nam Joo Kim in Belmore Many people from all over the world believed to come to Sydney to live because of good natural environment and good – hearted people. Koreans are not exceptions. From about 30 years ago and up to now around 40,000 Koreans believed to be in Sydney, it is not a small population. Majority of Koreans live here, in the city that provides good social welfare and good security, work extremely hard to raise their children well and provide good education. It is known that a lot of Koreans arrived here earlier days are successful in many different fields such as some people became a member of municipal assembly, some others are working in law, medicine, academic and some are successful in business. However, here, where everyone is so enthusiastically making their lives, rumours start spread amongst at the end of last year. So to speak, it was a bit about Supporting Committee's appropriate public money for its own use. Then Olympic Supporting Committee reported financial report and audit result in newspapers. It was reported that donations were approximately $300,000.00 and expenses were approximately $300,000.00 and the balance was $ 400.00. Also it was reported that the audit was carried out by Administration auditor Hak Joo Park and Financial auditor Han Yong Lee and completed without fail. They even left their contact number for further information. Many people praised and appreciated their job well done which was different from the rumours of misappropriate of public money. But very next week, there was an article in newspapers. It was said that auditors denied that they carried out the audit and they have not received any paper work for audit. Why did Supporting Committee announce that the audit has been done accordingly where as it has not been done at all? As questions start to arise, misappropriate of public money was found out, it was also disclosed that President Cha and vice presidents, Nak Yoon Baek and Byung Du Choi from Supporting Committee were collaborated to misappropriate public money. President and his party asserted that there are differences between their report and auditor's report, for that reason, are driving our community into chaotic and distrust atmosphere. In order to cover up their misbehaviour they tried to make up as if some of former staff was involved in their misbehaviour as well. They also incorporated with some newspapers backing them up (may be bribed), trying to induce the situation to grudge against auditors and them. Followings are integrate of articles reported in newspapers on their misappropriate public money 1. When donation's received, the fund was not deposited into a bank account. About the fact that they spent the money like their own apart from some exceptions. Also some of the donation was deposited into account called (CFM – Mr Cha's business account name). 2. The total amount of donation varied three times, at first, second (financial report & audit result announcement) & third report. The names & amount of supporting business, organisations & individuals were omitted (eg. Mr Bum Soo Kim from, a member of cheering squad from Eung Am Dong, Eun Pyung – Gu, Seoul donated $500.00 and a few more members of cheering squad gave envelops to President Cha in front of many other members as well). 3. About 200 odd wrist watches were donated from LG & SK but it is not known how he consumed them and no one has received them. 4. It was said that they borrowed from vice president Nak Yoon Paik as personal debt (Maybe a loan would have been better way of putting it rather than debt), the period of loan was not specified but the amount of interest Mr Paik received was 60% of the loan. Mr Paik is a vice president of the committee enriched his pocket with principal and the interest because they raised abundant donation. 5. A vice president Mr Byung Du Choi, proprietor of Belmore Gift Shop, it is not known whether they made prearrangement together or not but he made up purchase orders & invoices as if so much money was paid for gifts. It looks maybe he misappropriate public money (donation) together with Mr Cha. 6. In regards to expenditure of donation ... out of hundreds of receipts and expenses there are paying out & receiving slips not in place. Such doings owe to supporting Committee staff's incapability including president Cha on administrative & accountancy. They tried put things in order based on that they have no capability. It looks like that they have done it very carelessly. (eg. The financial report they had published was not audited by auditors but they said it was audited). 7. There are receipts for small expenses like $30.00 - $70.00 but a lot of receipts are missing for large amounts (hundreds & thousands of dollars). The purchase orders were approved and signed by president Cha, vice president Nak Yoon Paik & Byung Du Choi but purchase orders do not have names of person issued them. 8. I do not know what to think about the fact that 145 receipts are missing on expenses of $150,000.00. I would like to ask Mr Hye Jung Lee an accountant & President of Golf Association, as an accountant he must have given some advises to Mr Chae Sang Cha (Head of Sports Council). Another incident you misappropriate public money is that to buy 5,000 flags $2,200.00 was paid based on the remittance receipt to Bum Yang Sang Sa and paid another $2,700.00 (W1,670,000.00) on arrival of the goods with interim receipt came with the goods. It is hard to put things on the newspaper. Let's not become like Mr Chae Sang Cha, Nak Yoon Paik & Byung Du Choi, shelter other's misbehaviour close their eyes because of personal relationship. It is very wrong trying to cover the sky with palm of your hand. I just wish that they stop trying to cheat and make fool out of our community people with that kind of irrationality. I would like you to know that everyone knows about your misbehaviour you had a terrific time during Olympic period but only reason why they are willing to wait is they appreciate your effort you have contributed for the Olympic. A director from SK (Kim) worked for that company for last 20 years and had a good future ahead of him but his job is on the line just because all of you. I just wonder if you the feeling of being falsely accused and being indignant. All of our community living under this beautiful & peaceful environment, our 2nd generation and 3rd generation have been damaged more than the amount of money you have misappropriated. It is fortunate to know that you (Mr Cha) resigned from Sports Council, but we hear that you, your brothers, sisters and your close acquaintance are taking some action to back you up. Let's not do anything to divide & play sides in our community. You are only making more mistakes to your parents, brothers & sisters & even to your own children. Why don't you apologise to our community for your misbehaviour with your purist heart and pay back some money. I wish all the best to new directors & delegates of Sports Council. Please do not make same mistakes like Mr Cha and his party. Published by Hoju Dong A 2001/05/04 As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 46(a) That the plaintiff lied about the financial audit of the Committee. 46(b) That the plaintiff misappropriated public money. 46(c) That the plaintiff conspired with other people to misappropriate public money. 46(d) That the plaintiff attempted to lay on other people the blame for his own misconduct. 46(f) That there are reasonable grounds for members of the Korean community to suspect the plaintiff of bribing newspapers to support him against the auditors of the Committee's accounts. 46(g) That the plaintiff failed to deposit some donations to the Committee into the Committee's bank account but instead deposited the money into the bank account of a company under his control. 46(i) That the plaintiff had failed to account for 200 wristwatches that had been donated to the Committee. 46(j) That the plaintiff had been incompetent in his administration of the Committee. 46(l) That the plaintiff had sought to cover up the misbehaviour of certain persons because of his personal relationship with them. 46(m) That the plaintiff's behaviour as Present of the Committee had brought shame on the Korean community in Australia. 46(n) That the plaintiff was a disgrace to his family. Schedule M – Thirteenth matter complained of Text of the publication: A fragmentary thoughts If one can be a little people, Like same as every year, this year seems to have passed very quickly. New Year's Resolutions are different from one person to the other, we know very well that it is wise to appreciate little things rather than big wishes. When we look back at the end of the year, chances are more memories would be left than these wishes come true. It is hard to accomplish wishes like, worldly greed, to become a rich man or get promotion etc, but also, to become a helpful person, to be a forgiving person rather than hating others, it can not be gained easily. What if our wishes were little. The people who do not have big ambitions are not greedy in their day to day lives. They appreciate on little things and content with their present lives. Because they know the joy of enjoying their lives within themselves they have no reason to hate or envy others. If one move from a single storey house to a double storey house, the one could not ask for more. But, if one has a double storey house then the one wants to have a three storey house and wants a big building. They will never be able to fulfil their greed. The little people's wishes are simple and humble like a clay pot. Because their wishes are only little they appreciate little things. They never desire for unattainable wishes. They serve and respect the others and they don't show off their power. However, those people who do not appreciate little things are not like them at all. Like current mixed up Korean political circle and Korean community's scandalous incidents are result of ugly greed for big ambitions. The Korean politicians clinging to presidency and news on irrationality of head of some organisations taking advantage of organisations for their personal interests were all originated from that greed wanting to be a big man. These people cause disadvantages to good hearted little people. The report on donations for Korean Olympic team without knowing whereabouts of the money and misused by Olympic Supporting Committee is humiliating and such a thing should never happened at all. The supporting donations were made in good faith but if it has been spent to maintain his dignity to become a gimcrack it must be clarified very clearly not buried in oblivion. When these greedy people take advantage of Korean community disappear our community will be a bright and honest society. I hope that our Australian – Korean Community becomes a place full of people with big ambitions but accomplish from little wishes and faithful people to their present not lost in wild fancies. It reminds me of a biblical expression, serve other before to be served. Byung Tae Qark (free lancer) Published by Kyo Min Jap Ji 2001/07/06 As against the sixth defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 47(a) That the plaintiff had misused money donated to the Committee. Schedule N – Fourteenth matter complained of Text of the publication: A Letter to our Community After reading about Audit Result of Aus-Kor Olympic Supporting committee Hoon Soo Lee from Belmore I am writing this to all of you to share the pains of 30 years of Korean migration history in Australia. It has been 6 months since Sydney Olympic Games has ended. It was the celebration of everyone in the whole world, the most organised and most systematic Olympic ever held so far. To keep upon this, Aus-Kor Olympic Supporting Committee (Committee) was formed. Who was the Committee for? Lies, dissolute life and arrogant behaviours. As I read the newspaper, it gave me a heartache and made a so furious. What a disgraceful behaviour it is. Without having to check items one by one. There is so obvious difference in cash expenses, cost of gifts specially cost of food (karaoke & alcohol). Specially, when we look at details of cash expenses with no particulars of expenses, it looks as if it is a personal business activity statement. But I guess you all know that it is mischief of the Committee. It is pretty much right that they ran the Committee to benefit for their own and attain distinction for themselves. I would like to ask them is it right to sneer our community like that. If feels like some politicians, back in Korea who used to be so corrupt and injustice to take the governing power, are here to live. Our Korean community people work so hard day or night they live very hard life. The donation was raised by those hard working people with their best wishes and it was wasted extravagantly by one particular person. I would like to tell everyone in this column in the name of our community. This particular issue on committee must be cleared through responsible discussions of the heads of various organisations like Korean Society, General Consulate & etc. Get to the bottom of the faults the relevant person must be punished & prosecute criminally if applicable. Try to recover the wasted fund at the same time. I wish that a systematic and responsible person would take over Sports Council to represent our community so that we do not repeat ourselves with such a drama. Specially, why is our current President of Korean Society taking a wait and see attitude, even if he starts being in charge of it now and start to get towards the solution of the problem. I feel so for the committee members worked so hard but they lost their dignity because of insincere organisation. I hope that this issue gets settled as soon as possible and our community get over the heartache soon as well. If this issue cannot be settled by community organisations, all of us can participate positively. We could form some kind of civil society, let Korean Government and Australian Government and devote ourselves to work to take care of this matter. Dear fellows! I expect to have a lot of people's attention to settle this matter as soon as possible. Finally, I would like to wish all of our community health & plentiful always. Published by Hoju Dong A As against the first defendant, these imputations were found to be conveyed and defamatory of the plaintiff: 48(a) That the plaintiff misused his position with the Committee for his own benefit. 48(b) That the plaintiff spent on himself money that had been donated to the Committee. 48(c) That the plaintiff wasted money that had been donated to the Committee. 48(d) That the plaintiff deserved punishment for his actions while President of the Committee. Annexure B - Matters Complained of in the Cross-Claim Schedule A – First matter complained of in the Cross-Claim Text of the publication: March 2001 The Korea-Oceania Business Review Page 10 & 11 Interview This Paper: On the 16th March, 'Hoju Dongah', 'Hankuk Newspaper' and 'Top' have published 'The 3rd Additional Audit Report of the Australia Korea Support Committee for Olympic Games' with the signature of Han Yong Lee, financial auditor and Hak Ju Park, administrative auditor. First, the auditors, Han Yong Lee and Hak Ju Park claim that $300 from Sejong Hoekwan and $200 from Won Kang have been missing from the list of support funds. Chairman Cha: Donation of $200 from Mr Won Kang to the support committee is a total lie. (Showing the advertisement paper of Hoju Dongah.) $300 from Sejong Hoekwan was presented in the list of Guide Map Advertisement Supporters for Aus-Kor Support Committee for 2000 Olympic Games, which was published in Hoju Dongah on 10th November last year. This paper: In the interview with this paper, Sejong Heokwan has not mentioned anything about the contents published in the Hoju Dongah as you have just mentioned. It said it gave $300 to Mr Won Kang and did not know whether the money was for the Map Advertisement or for the Olympic Support fund. It also stated that it did not want to mention anything further since this was a matter between the chairman, Cha and Mr Won Kang. Chairman Cha: Sejong Hoekwan and Mr Won Kang are in close relation with each other and it is true that the money has been passed to Mr Won Kang. As mentioned earlier, it was advertised to the Korean community that the money was spent for the Map cost. Despite this, the auditors and Mr Won Kang talked about the innocent Sejong Hoekwan in Korean community papers causing them problems in their business. They are really doing wrong things. Again, the claim that $200 was donated by Mr Won Kang and was missed in the list of supporters is a complete lie. The allegation by Mr Won Kang of donating $200 is like accusing an innocent virgin of being pregnant. This paper: Second, the Honam Friendship Association claims that they have not received $300 from the support committee saying "these are false documents of expenditure of the support fund". Chairman Cha: On 16th November 1998, a Westpac cheque (cheque number 403108) of $300 was given to Mr Won Kang, the chairman of the Honam Friendship Association. After seeing the article that said the money was not received from the support committee, I took the time to find the cheque butt. I would like to ask you to include this in your paper if you have room. In order to prevent such an unfortunate incident like the Support Committee for the Olympics reoccurring in the Korean community in Sydney, the whole Korean community should be aware of how much these two auditors have been lying. This paper: What's the story with the Korean flag incident? Chairman Cha: Well, please read this letter from Soon Hyung Kwon, the publisher of the Christian Review. You can have a copy as evidence. On 10th June 2000, at Homebush Olympic Stadium, there was the Global Jesus March 2000 by Australian Christians who were wishing for a successful Olympic Games. The Korean Uniting Choir of 2,500 people took part. They needed 5000 Korean flags and two comma-patterned fans urgently. The publisher, Soon Hyung Kwon of the Christian Review asked the Consulate and Embassy for support but he was refused because of their short budget. As a last resort, he asked the support committee. Therefore, $1,000 for the purchase of 3000 Korean flags was given. How silly would we be if we could not give $1,000 for the public promotion of our country in the precious 2000 Olympic festival? This paper: According to the auditors report, it is alleged that apart from $1,000 to the Christian Review for the purchase of the Korean flags, a record has been falsely made up that $1,000 was paid to the same place for the same purpose without any receipt. Chairman Cha: Well, I am not clear on this since the auditors still hold all the materials. However, as far as I remember, there was no such thing. I want the Dae Yang Chu News (The Korea-Oceania Business Review) to ask the auditors to submit the evidence. This paper: It is alleged that you withdrew $2,788 with a fake receipt after you sent $2,200 for the Korean flags to Bumyang Industries through the Foreign Exchange Bank. Chairman Cha: This also can be explained after looking at the books that are kept by the auditors. Tell them to show the evidence rather than placing advertisements saying this and that. This paper: It is alleged that $1,100 was paid by you to the Korean Uniting Church for usage of their church for cheer practice and only $400 was claimed to be received by the church. Chairman Cha: I knew that $50 a week for 3 months was to be paid for the use of the church. By this calculation, it is only $600. I do not know how I made the mistake of publishing that $1,100 was paid for that. When I look at the books and documents that the auditors are holding, I will be in a better position to explain. This paper: What is the story about the LG, SK wrist watches? Chairman Cha: They were given to the North Korean athletes for the Olympic Games and all the Korean athletes at the Sydney Paralympic Games. I am told that no one has seen these watches being given to them but this is not true. (Showing two letters) There are two witnesses, the publisher, Soon Hyung Kwon of the Christian Review (phone 9457 0055) and Mr Jae Jin Park (phone 0011 822 4162596, fax 412 0463) of the Korean Disabled Persons Welfare Association sports promotion team. There are letters which have been written by them that are reliable evidence and they can be contacted if anyone does not believe these letters. What happened to the total amount of $38,000 operated by Sung Ju Sung, Hak Su Cho, Dae Hun Kang? Even before I say this, I thought that the auditors, Hak Ju Park, Han Yong Lee would point this out. However, they have not done so. I would like to say more in the ope that they themselves make it clear. First, as I published in the newspaper, the Secretary General, Sung Ju Sung spent $10,000 of the support fund received in cash and has not submitted a receipt regarding where and how the money was spent. The Korean community as well as I have to know where the money has spent. Second, it was published that the total of $27,702 was spent for the 10% support of Olympic event tickets for Korean residents. The person who was in charge of the ticket purchase was Mr Hak Su Cho. He said that he put $5,000 of this money towards the Volleyball account which was used whenever he purchased the tickets. Dae Il Kang, the System chief was told to give tickets to the organisation leaders and elders of the Korean community to ask Korean athletes to inform the Korean community. However, Mr Hak Su Cho and Dae Won Kang have not brought any receipts relating to $27,702 and I have not touched a single ticket. In other words, this money has been paid to Mr Hak Su Cho by the Support committee's cheque, however, as there is no receipt there is no way of knowing where the money has gone. In fact, the problem of receipts and ticket distribution was expected to be sorted out by the auditors during the auditing process and I also thought they would do that. On the contrary, they were in the lead to denounce me in this unlawful temporary general meeting. I urge them to reveal about how the $40,000 that was spent by them and the distribution of the tickets. This paper: Then, do you think that the execution of the support fund has been carried out justifiably without any shame? Chairman Cha: Of course, I am the head of a family with children. Even for the honour of my family, how could I embezzle public money? I acknowledge that we spent excessive amounts of money for entertainment because we had to collect support funds at an early stage. But in dealing with Koreans, is it possible to do anything at first sight without getting to know each other? To some extent, it is the same with Australians. In order to do anything, it is important to get to know each other. It is obvious there is no receipt for the fabricated amount of approximately $100,000. The auditors said that there was much expenditure without receipts but that is not true. Everyone knows that it is not easy to collect receipts all the time. Often we forget to obtain receipts. Moreover, at the time of meeting important guests who could be very helpful, we often forget to obtain receipts because we get so involved in entertaining them. I am just giving this as an example… Mr Min Gu Cho, the former Korean Society Chairman also said once that it was no big deal if one did not have some receipts. However, because two auditors published the fabrication that the support fund was $450,000 or rather $500,000 it is obvious that there cannot be any receipts for the approximate $100,000 or $200,000 being the difference from the actual collected funds of approx. $300,000 to the Olympic Committee. The auditors, Hak Ju Park and Han Yong Lee claim that the collection for the support fund was $500,000 and $127,000 out of this had no receipts. They ask me to make up for it. The $127,000 was either fabricated by the auditors that I embezzled this money. Otherwise it had no basis or it could be a double calculation. Therefore, how could I possibly have the receipts? In fact, I donated approximately $23,000 to the Support Committee. I was, of course, the chairman of the Support Committee but this big amount could not be compared with any donations from a Korean resident although I do not wish to show off. Now, as a result of calculation, I rather have to receive approximately $20,000 from the Support committee. But they ask me to return approximate $40,000 to the Korean Society and accuse me of being a swindler who has embezzled public money. It is so unfair that I am accused of being a swindler after sacrificing the last 2 years or so of my life for the Support Committee, leaving aside my own business. My family cannot even sleep because they feel mortified. As against the cross-defendants, these imputations were found to be conveyed and defamatory of the cross-claimant: 5(a) That the cross-claimants lied in the course of their conduct of an audit into the Committee. Schedule B – Second matter complained of in the Cross-Claim Text of the publication: March 2001 The Korea-Oceania Business Review News Confusion instigated by elastic audit Irresponsible auditors, Hak Ju Park, Han Yong Lee of the Olympic Support Committee For the matter involving the collection of funds by the Aus-Kor Support Committee for 2000 Sydney Olympic Games, Hoju Dongah (publisher, Jik Il Oh), Hankuk Newspaper (publisher, Yoon Sin Lee) and Top Newspaper (publisher, Jae Kyung Lee) have continuously published articles for the last 3 months as if there are big secrets behind them. Leaving aside what exactly happened, the honour of chairman Jae Sang Cha as well as his family and the Korean community of Australia have been constantly defamed. In the most extreme cases, this paper has heard that the Sydney Korean residents who visit Korea are ashamed to say that they came from Australia and often hide their identities. The reason is that the Sydney Korean community is known to people in Korea for occupying the Korean society building by force and rejecting police orders, and the chairman of the Korean Society paying members fees by proxy without shame. Whenever there was an election for the chairman of the Sports Council or Korean Society, someone's nose or ribs were broken. Despite this, they walk the street without shame. It is well known for being an insensible society which cannot be found anywhere in the world. For example, people talk… "In Sydney, although a person becomes a chairman by proxy-paying members' fees, a Consul General comes to the inauguration ceremony and offers congratulatory words without any condition. Although a person took away the Miss Korea beauty contest which has been raised by someone else who invested everything over the past 10 years, he lives without feeling any shame." If one wants to solve these kinds of unfair matters by law, one faces the problems of English and the enormous costs for lawyers. Therefore, the Sydney Korean society has become really unfair for the victims. This paper has already reported that the collection amount for the Olympic Support committee published in January, the February issue of Hoju Dongah, Hankuk Newspaper and Top by the auditors Hak Ju Park and Han Yong Lee, was false. This is possible only in the Sydney Korean community where sham, plagiarising newspapers and people like rag pickers run about wildly. However, although the Korea-Oceania Business Review reports the true state of things, these plagiarising newspapers have constantly reported as if there was a big secret in the support fund. Again the following letter was sent to the auditors Hak Ju Park and Han Yong Lee on 11th March asking them to reply by 15th March 2001. To: Auditors, Hak Ju Park and Han Yong Lee of the Sydney Olympic Support Committee 1. After seeing the article in Hoju Dongah on 22nd December last year that the income amount of the support fund of the Sydney Olympic Support Committee (chairman, Jae Sang Cha, hereafter called 'Support Committee') amounted to $450,000, this paper has pointed out that there was $100,000 approx. difference with $350,000 approx. that was reported by Chairman Cha in November last year. Also on 16th January, this paper sent you, Hak Ju Park and Han Yong Lee a fax to ask you to inform us of the contents of the difference. On 8th December, before this paper reported the matter involving the Support Committee, the editorial of Hoju Dongah published the support fund amount being $400,000. 2. In relation to the enquiring fax by this paper, the auditor Hak Ju Park phoned this paper on 17th January and said that he never gave any information regarding $450,000 to the publisher, Jik Il Oh of Hoju Dongah. 3. Thereafter, on 17th January, this paper sent a fax to the publisher, Jil Il Oh of Hoju Dongah, asking him to report the basis of $450,000 to the Korean Society. But there was no reply until the present time. 4. However, on 9th February, the auditors, Hak Ju Park and Han Yong Lee again reported in Hoju Dongah, Hankuk Newspaper and Top that the collection of the support fund was approx. $500,000. 5. They again published that it was approx. $310,000, a reduced amount which appeared to be the same as what Chairman Cha reported on 2nd March. 6. The auditors, Hak Ju Park and Han Yong Lee said they always did their auditing based on the document they received from the operation section of Chairman Cha. An explanation is then required for the Korean community as to why the support fund has such a big difference every time there is a report, like how it was reduced from $500,000 approx. to $300,000 approx. even with the same materials. 7. On 9th March, all of sudden you published in Hoju Dongah, Hankuk Newspaper and Top, "Although the result of the audit of the Support committee has to be reported by the General Meeting, because the operation section refused to convene the General Meeting we had to report directly to the community." Doesn't this mean that you have realised your advertisements regarding the suspicions of the support fund several times were illegal and accept this by yourself? According to the Constitution, "Article 7 Member's Responsibility", it clearly states that, "The auditors shall audit the accounts and business affairs of the committee and report to the General Meeting." Don't you think that your actions of advertising the committee's notched audit result relating to the collection amount of the committee are in breach of the Constitution? 8. Reply to the above questions in requested by 15th March 2001. If there is no reply, it will be regarded that you have abused the power of an auditor of the Support Committee and are selling the operation section of the committee as well as Chairman Cha and the Korean community in Australia to the whole world as well as to Korea as fraudulent organisations that have embezzled public money. The auditors, Hak Ju Park and Han Yong Lee have not answered to the above questions until the last moment of editing of this paper. As against the cross-defendants, these imputations were found to be conveyed and defamatory of the cross-claimant: 7(a) That the cross-claimants in breach of their duty caused to be published false details of their audit of the Committee. 7(c) That the cross-claimants abused their position as auditors of the Committee by portraying its Chairman as fraudulent. Schedule C – Third matter complained of in the Cross-Claim Text of the publication: July 2001 (The Korea Oceania Business Review) page 19 Olympic Support Committee incident interspersed as a witch hunt (6) This paper: On 7th June, in the article, "To the Korean Residents" advertised by the Counter Measure Committee in regards to the incident of the Aus-Kor Support Committee for the Olympic Games, Chairman Cha expressed that a re-audit by a public accountant be carried out as he insisted from December. After that, has there been any progress in the past month? Chairman Cha: Nothing has progressed. As they cajoled the Korean residents with false figures that the Olympic Support Committee's collection was $450,000 or $500,000, the last advertisement saying that they would leave the audit to a public accountant was also a mere cajolement of the Korean residents. Why would chairman, Jong Gap Kim and secretary, Yong Jae Lee have said in the phone interview with the Korea-Oceania Business Review that they did not know who placed the advertisement! As far as the incident involving the Support Committee, Hoju Donga, Hankuk Newspaper, Top Newspaper who have reported the lies by the auditor Hak Ju Park and others, have continuously cajoled the Korean community in Australia. The relevant newspapers are also responsible for their advertisements. This paper: Then, how are you going to solve this matter involving the Olympic Support Committee? Chairman Cha: As I mentioned in the last interview, my solicitor has written letters to the relevant parties asking for an apology and went to obtain the cheque books and deposit books but they only handed in the falsely made materials. I have already spent approximately $200,000 on the matter without any result. I have waited with all my patience but I cannot endure any longer as they are doing things like placing false advertisements. Therefore, all the articles which have falsely reported the matter involving the Support Committee have been collected and are being translated according to my barrister's instruction. Because there are so many articles plotting against me without any reliable evidence that I have embezzled the public fund saying the Support Committee's fund was $450,000 or $500,000, it will take about 2-3 weeks to translate them. This paper: I understand that many people wonder whether you, Chairman Cha will really take a defamation action against Hoju Dongah, Hankuk Newspaper and Top since it has been awhile after the Olympic Games. Chairman Cha: I also have hard that a lot. In particular, some leaders of the Sports Council urge me to pursue this soon. Haven't I suggested for audit by the public accountant appointed by Hak Ju Park and Han Yong Lee from the last December or January because I did not want to go ahead with the legal action for the sake of the unity of the Korean community in the meantime? But I cannot wait any longer or trust them. Judgment was entered for the cross-defendants as per the orders made on 4 August 2004. Schedule D – Fourth matter complained of in the Cross-Claim Text of the publication: June 2002 The Korea-Oceania Business Review, page 15 Appealing to the law for defamation…. Honourable Korean residents of Australia! I have been feeling very sorry for troubling the Korean community due to the fabrication by the auditors of the Aus-Kor Support Committee for Olympic Games, which is still unresolved even after almost 2 years from the 2000 Sydney Olympic Games. The auditors, Hak Ju Park and Han Yong Lee have calculated the Support Committee's income as approximately $500,000 and expenditure as $350,000 approx. Accordingly, they published that I took $150,000 approx. and other Korean community newspapers have continuously published this. The auditors, Hak Ju Park and Han Yong Lee published the items of entertainment for the Korean Government Officials. This caused some concern among the Korean community in Australia as well as the relevant authority. In particular, I published the entertainment for the Government officials as other costs bearing in mind the characteristics of such an organisation. However, some Korean residents said they were aware of the Government officials after the Kim Dae-jung Government did not want to cause a public nuisance by being entertained, therefore, it could be that Chairman Cha embezzled the public money while giving the excuse of entertainment for Korean Government officials. This news has started to spread in the Korean community. At the time, the Consul, Kwang Yong Park who was the residing consul in the Sydney Consulate advised us that it would be helpful to obtain Olympic entry tickets for the cheer squad if we entertained the Government officials from Seoul who were in Sydney for the preparation of the Sydney 2000 Olympic Games. After discussions with Nak Yoon Paek, Byung Doo Choi (two vice chairmen), Hak Su Cho the planning chief, and Dae Won Kang the organisation chief, I entertained the Korean Government officials with the Support Committee's executives present at a restaurant in Epping at the Support Committee's expense. Therefore, in order to clear the false accusation that I embezzled the meal money, I sent a letter to the Consul General, Young Hyun Lee in January and the Chief of the Government office, Kun Shin on 12th February asking them to confirm whether the despatch officer from the Korean Government at the Sydney Consulate, Mr Kwang Yong Park had paid the meal money or whether the Support Committee had paid. I have been waiting patiently for the publisher of Top Newspaper, Jae Kyung Lee and other Korean community papers that have published the fabricated auditing incidents of the support fund for the Aus-Kor Support Committee for 2000 Sydney Olympic and the auditors, Hak Ju Park, Han Yong Lee and other related people to ask for my forgiveness after their repentance. However, Kun Shin the chief of Government office, Young Hyun Lee the Consul General and the auditors Hak Ju Park, Han Yong Lee have not said anything to this day, and the Korean Press Association (Chairman Jik Il Oh, Secretary General Yang Jung Joo) and their companies who have struck off my honour and human rights by supporting and publishing the fabricated story of the support fund by the auditors Hak Ju Park and Han Yong Lee without showing any repentance. Also, on 21st June, Mr Jong Sang Ha, the self-claimed chairman of the Korean Sports Council in Australia invited the Consul General, Young Hyun Lee to a function centre in Lakemba inaugurating Mr Jin Min Chang as chairman and again caused a lot of confusion in the Korean community with the matter involving the Korean Sports Council. In other words, the current Korean community in Australia is no different from the 1980s Korean culture when Chun Doo-hwan unlawfully overthrew the government calling it Samchung Training Army while brandishing swords and spears and living in splendour of wealth. I could no longer just watch the Korean community in Australia become a lawless world. In order to restore the Korean community in Sydney to one where people abide by laws, and respect and cooperate with each other. For the honour of my family and relatives I have taken a legal action against the Top Newspaper, its publisher, Jae Kyung Lee, other papers who are members of the Korean Press Association and the two auditors although it went against my heart to do so. From Jae Sang Cha July 2002 As against the cross-defendants, these imputations were found to be conveyed and defamatory of the cross-claimant: 11(a) The cross-claimants fabricated the findings of their audit of the Committee. I certify the above 1855 paragraphs and 10 orders to be a true copy of her Honour Judge J C Gibson's reasons for decision dated 8 December 2009 ………………………………………………………. Associate to her Honour Judge J C Gibson ****** 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.