Supreme Court New South Wales

• Medium Neutral Citation: Daniels v State of New South Wales [2014] NSWSC 1256
• Hearing dates: 5 September 2014
• Decision date: 12 September 2014
• Before: McCallum J

Decision

Application to file amended statement of claim granted

• Catchwords: DEFAMATION - pleadings - application to amend statement of claim
• Cases Cited: Drummoyne v Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
• Category: Interlocutory applications
• Parties: Dr Christopher Sydney Daniels (plaintiff); State of New South Wales (defendant)
• Representation: Counsel: Plaintiff self-represented; S Chrysanthou (defendant); Solicitors: IV Knight; Crown Solicitor for NSW (defendant)
• File Number(s): 2014/145430
• Publication restriction: None

Judgment

1 HER HONOUR: These are proceedings for defamation commenced by a mathematics teacher, Dr Daniels, against the State of New South Wales arising out of the publication of a report assessing his teaching.

2 The proceedings were commenced by statement of claim filed on 14 May 2014. The defendant raised a number of objections to that pleading. Dr Daniels represents himself and appears to have prepared the pleading without the benefit of legal advice. On 12 June 2014, on Dr Daniel's application, Harrison J made an order referring him to the pro bono scheme for legal assistance limited to advice in relation to the proceedings and the drafting or settling of pleadings. Having obtained advice pursuant to that referral, Dr Daniels has now filed a notice of motion dated 21 August 2014 seeking leave to join two further defendants and leave to file an amended statement of claim in the form attached to the notice of motion.

3 The notice of motion also sought a further referral to the pro bono scheme for representation in the proceedings. That application was considered by Bellew J as duty judge, who made the order sought on 29 August 2014. However, I have ascertained that, owing to an administrative error, the further referral has not yet been effected. I have requested that omission to be rectified.

Nature of the publications

4 According to the proposed amended statement of claim, Dr Daniels was employed as a full time casual teacher at Mudgee High School for a period of one month in 2013. He subsequently wrote to the Teacher Recruitment Unit of the New South Wales Department of Education seeking to have his teaching approval updated to "suitable for permanent full time employment" based on his period of teaching at that school. It was in that context that the Principal of the school, the proposed second defendant, completed a pro forma report assessing Dr Daniel's teaching performance during his short time at the school.

5 The report specified that the relevant school was Mudgee High School, the name of the Principal was Louise Manwaring and the name of supervising teacher was David Tooney. The report was signed by Ms Manwaring and included a tick in the box against the following words "I have discussed this assessment with the supervising teacher".

6 The form of the report, which is presumably a standard department form, required the Principal to rank Dr Daniels in seven elements of the New South Wales Institute of Teachers Professional Teaching Standards at the level of graduate teacher. The Principal was required to use the following scale when completing the overall ranking in each element:

(1) Unsatisfactory

(2) Significant improvement needed

(3) Satisfactory

(4) Excellent

7 The Principal gave overall rankings of "unsatisfactory" in two of the elements and "significant improvement needed" in four of the elements. In the seventh element, he was ranked "satisfactory". In each case, the report provided comments in support of each ranking.

8 The pro forma report provided a choice of recommendations as follows:

• Unsatisfactory for casual approval
• Casual approval only
• Limited casual approval (6 or 12 months)
• Satisfactory for approval

9 The Principal ticked "limited casual approval (6 or 12 months) as her recommendation.

10 Briefly summarised, the proposed amended statement of claim relies upon publication by the supervising teacher to the Principal for the purpose of compiling the report; publication of the report by the Principal to Ms Karen Smith at the Teacher Recruitment Unit; republication of the report by Ms Smith to the Assistant Director of Staffing Services within the Department; publication by the Assistant Director to Ms Machtas in "Recruitment Programs" in the Department and publication by Ms Machtas or alternatively the Assistant Director to Mr Anderson, the Director of Staffing Services in the Department.

Joinder application

11 The proposed amended statement of claim seeks to join the Principal, Ms Manwaring, as second defendant and the supervising teacher, Mr Tooney, as third defendant. The proposed amended pleading also seeks to correct the name of the first defendant and that is not opposed.

12 Ms Chrysanthou, who appears for the first defendant, accepted that little could be said in opposition to the joinder of the Principal, Ms Manwaring, since she is the identified author of the report. As to Mr Tooney, however, Ms Chrysanthou submitted that the proposed pleading as against him does not adequately identify the publication complained of. Publication by Mr Tooney to Ms Manwaring is identified in the pleading as "the first publication" and is pleaded in the following terms:

The comments and overall rankings at lines 23-27, 38-46, 57-64, 72-76, 82-88, 95-98 and 103-107 of Annexure A (the Comments and Overall Rankings) were published by the Third Defendant to the Second Defendant (the First Publication), for the purpose of compiling a professional teaching report, at Mudgee High School in the period from 23 March 2014 to 4 April 2014, and were published:

(a) Orally by the Third Defendant speaking to the Second Defendant and making those Comments and Overall Rankings or words to the same effect as those Comments and Overall Rankings during a face to face meeting(s) at Mudgee High School; and/or

(b) By email and/or memorandum from the Third Defendant to the Second Defendant sent and received at Mudgee High School

13 It emerged during argument that the basis on which Dr Daniels contends that Mr Tooney make a publication in those terms to Ms Manwaring is confined to the content of the report itself which, as already noted, identifies Mr Tooney as the relevant supervising teacher and includes Mr Manwaring's confirmation (by ticking a box) that she had discussed the assessment with the supervising teacher. Dr Daniels has evidently made no inquiries of Mr Tooney as to the content of any such discussion but, rather, relies on an inference to be drawn from the fact that Ms Manwaring herself did not supervise Dr Daniels. On that basis, as I understand the argument, Dr Daniels contends that the conclusions expressed in the overall rankings and the supporting comments in the report must have been obtained by Ms Manwaring from Mr Tooney.

14 Ms Chrysanthou submitted that no such inference can safely be drawn so as to form a proper basis for the pleading. She submitted that it is unlikely that Mr Toomey spoke in the terms recorded in the report. However, in circumstances in which Ms Manwaring was required to complete a pro forma report and is alleged not to have directly supervised Dr Daniels herself, in my view there is a proper foundation for the inference that the comments and overall rankings recorded in the report are those of Mr Tooney, conveyed to Ms Manwaring, since she was required to complete the report in her role as Principal. Indeed, it is inherently probable, in my view, that Mr Toomey, in his role as Dr Daniels' supervising teacher, is the original author of both the comments and the overall rankings recorded in the report.

15 During the hearing of the application I articulated to Dr Daniels my concern at his seeking to join further parties to the action, with the additional complexity and cost that may bring to the proceedings. Dr Daniels stated that he had received advice about those issues and that they did not concern him. He stated that he was concerned more with "the justice of the situation". It is no part of the Court's role to seek to supervise or interfere with such a decision. There being an adequately pleaded claim against the two proposed additional defendants, and since the proceedings are at an early stage, in my view there is no proper basis for me to refuse the joinder application.

Pleading of publication

16 The balance of the first defendant's objections to the proposed amended pleading concerning the issue of publication may be summarised in the contention that the plaintiff is "guessing" as to the manner in which the report made its way through the Department of Education. In my view, that submission itself entails a degree of speculation.

17 For example, the first defendant's written submissions complain that the allegation in paragraph 6 of the proposed amended statement of claim (that the report was sent by facsimile and addressed to Ms Karen Smith) is not supported by the report itself. However, the fact that Dr Daniels is able to identify by name a person he alleges received the report suggests that he is in possession of some additional information.

18 It may be accepted that the pleading is not perfect in that respect. Paragraph 6 alleges that the fax was addressed to Ms Karen Smith, while paragraphs 7 and 8 allege in the alternative that it was addressed to another servant or employee of the Department or to the Teacher Recruitment Unit generally. That suggests that Dr Daniels does not hold a copy of the relevant facsimile. However, he appears to know that the report was received by Karen Smith. He may also be relying upon the fact that the pro forma report concludes with the following words: "please fax this Casual Teaching Report to the Teacher Recruitment Service Unit on [phone number included] or email to [email address included]".

19 In my view it would be a triumph of punctiliousness over efficiency to reject a pleading in that form and instead require the plaintiff to go through a process of ascertaining the precise manner in which the report found its way through the department before being allowed to prosecute his claim. I do not think the present form of the pleading is likely to cause any embarrassment to the first defendant on that account.

20 A separate complaint is that the plaintiff asserts, with no particulars, that the second and third defendants knew the report would be republished. Having regard to the inherent probability of republication within the Department of a report providing an assessment of a casual teacher's teaching performance, I would reject that complaint.

Imputations

21 The first defendant's remaining objections relate to the manner in which the defamatory imputations relied upon by Dr Daniels are pleaded. Some explanation is required. Paragraphs 23 and 24 of the proposed amended statement of claim state:

23 In the context of any professional teaching report, and even more strongly in the further context of the NSW Institute of Teachers Professional Teaching Standards, the words "classroom observation" have a standard meaning to professional teachers in the service of the First Defendant and to teacher recruitment officials in the service of the First Defendant (together as a class, "Teaching Professionals"). To "Teaching Professionals", the words "classroom observation" mean the standard teacher assessment procedure whereby an assessing teacher attends classroom lessons of the teacher under assessment and evaluates that teacher's teaching performance throughout each lesson, keeping written notes of good teaching practice and written notes of any teaching practice that requires improvement.

24 The matters pleaded at paragraph 23 above are relied on to establish true innuendo in relation to each of the imputations pleaded below.

22 Dr Daniels has then pleaded six imputations reflecting each of the six assessments in respect of which the report concluded that his overall ranking was either "unsatisfactory" or "significant improvement needed". The form of pleading of the imputations is in each case the same. Taking the first imputation as an example, paragraphs 25 and 26 state:

25 The comments at lines 23-26 of Annexure A and the circling of the overall ranking "2" at line 27 of Annexure A convey the imputation to Teaching Professionals that the Plaintiff's professional teaching standard was "Significant improvement needed" in relation to "Element 1 of the NSW Institute of Teachers Professional Teaching Standards: Teachers know their subject content and know how to teach that content to their students" and that this assessment was well founded by written evidence obtained by the Third Defendant by attending a representative selection of classroom lessons of the Plaintiff for the purpose of assessment by "classroom observation", as pleaded at paragraph 23 above.

26 The First Imputation, which alleges a well-founded and properly documented assessment of significant lack of professional competence concerning "Element 1 of the NSW Institute of Teachers Professional Teaching Standards", is plainly very seriously disparaging of the Plaintiff's professional teaching competence and as such is defamatory per se of the Plaintiff.

23 The defendant makes two principal complaints in respect of that form of pleading. First, as to the framing of the case as one of true innuendo, the first defendant submits that this is not a case of particular readers being aware of facts which lent to the report a meaning different from that conveyed to the ordinary reasonable reader. In my view there is force in that contention. The case is not in truth one of true innuendo. The knowledge held by teachers of the manner in which teaching performance is assessed within the Department would mean that the greatest damage to reputation would be done within that sector of the community. However, I do not think that knowledge would be such as to alter the ordinary meaning of the words of the report. The report is capable of being understood in its natural and ordinary meaning in the same defamatory sense as relied upon by the plaintiff by way of true innuendo. All that follows from that conclusion is that paragraphs 23 and 24 of the proposed amended statement of claim should be removed, together with the additional words in each imputation paragraph: "and that this assessment was well founded by written evidence obtained by the Third Defendant by attending a representative selection of classroom lessons of the Plaintiff for the purpose of assessment by "classroom observation", as pleaded at paragraph 23 above".

24 The first defendant's second complaint is that the imputations are bad in form because they merely repeat parts of the report rather than attempting to capture the precise defamatory stings complained of. The guiding principle is that the plaintiff has an obligation to specify with precision the defamatory imputation relied upon: Drummoyne v Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.

25 The decision in Drummoyne recognises that the content of that obligation will vary from case to case and will necessarily be informed by the language of the matter complained of. The submission that an imputation "merely repeats" words used in the matter complained of is rhetorical in that it appeals to an assumption that those words lack the required degree of precision. In the present case, the terms of the report are deliberately precise. The form of the report requires the author to rank a teacher by reference to a scale specified in the report and by reference to seven required elements of teaching performance also specifically articulated in the report. It is difficult to conceive of a more precise articulation of the meaning of the report than the repetition of its conclusions. In my view, the imputations are, in the context of the particular matter complained of, sufficiently precise and therefore not bad in form.

26 Separately, Ms Chrysanthou submitted that the allegations of "general misconduct" sought to be captured by the imputations are not capable of being carried by the matter complained of. She submitted that the report is limited by its description and by its terms to the conduct of the plaintiff at Mudgee High School. Whilst that may be an argument to be put to the jury, I am not persuaded that the imputations are incapable of being conveyed.

27 Finally, Ms Chrysanthou submitted that each of the paragraphs in the form of paragraph 26 set out above contains commentary by the plaintiff which is irrelevant to the cause of action. I would accept that submission. Those paragraphs should be removed from the proposed amended statement of claim. It will be necessary for the plaintiff to add, in their place, an assertion that the imputations complained of were defamatory of him.

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Decision last updated: 15 September 2014