Junius & Kumar v Messenger PRESS & Ors No. Scgrg-94-318 Judgment No. S99
[1999] SASC 99
•16 March 1999
JUNIUS and KUMAR v MESSENGER PRESS & ORS
[1999] SASC 99Nyland J
The Parties
1 This is an action in defamation. The first named plaintiff, Professor Manfred Junius (sometimes known as Michael Junius and hereinafter referred to as Junius) and the second named plaintiff, Dr Krishna Kumar (hereinafter referred to as Kumar) were the proprietors of a business known as the Australian School of Ayurveda (ASA). The school was established in or about the year 1982. It conducted two courses in ayurvedic medicine, namely a course of proficiency in Ayurveda (CPA) and a diploma in Ayurveda. In about 1980 the plaintiffs established a business called Australerba. This business is concerned with the manufacture and sales of herbal medicines and other products which are marketed nationally and overseas. The plaintiffs also established a practice in ayurvedic medicine.
2 In about 1979, the plaintiffs purchased premises at 27 Blight Street, Ridleyton where they conducted the Australerba business. The school started in a small way and initially various premises were hired for lectures. Eventually the school was established at premises at 148 South Road, Croydon. It moved to the Ridleyton premises in about July 1992. Since that time all businesses have been conducted at that address.
3 The first defendant is a company duly incorporated in South Australia. It is the publisher of a newspaper called the Weekly Times Messenger (Messenger). At the relevant time it had a circulation of 22,000 (D260).
4 The second defendant, Joanne Hider (now Elsom but referred to herein as Hider) is a journalist who was, at the relevant time, employed by Messenger.
5 The third defendant, Amanda Mehta, was a student at the ASA from about 1988 to January 1991. She was enrolled at the school as Amanda Gordon-Smith. In 1991 she married Peshotan Mehta. It became evident in the course of the trial that the plaintiffs considered Peshotan Mehta to be the prime mover in the events which eventually gave rise to the institution of these proceedings.
6 Amanda Mehta did not receive a certificate of proficiency at the end of her course. The certificate was handed to her at a ceremony which took place in Poona in January 1991 but she subsequently returned it to the school at the request of the plaintiffs. The plaintiffs said that Junius had not signed it at the time of the Poona ceremony as Amanda Mehta had not completed the basic science section of her course. They intended to return the completed certificate to her when she finished the course. That did not occur and as a result the certificate was never returned to her.
7 In early August 1992 a meeting took place between Peshotan and Amanda Mehta and Hider. Hider’s Chief of Staff, Anne Styles, was also present. At that meeting the Mehtas made complaints about aspects of the course offered by ASA. Hider made some enquiries and on 6 August 1992, she interviewed Amanda Mehta. Amanda Mehta expressed her dissatisfaction with the plaintiffs and the school. The statements made by Amanda Mehta in that interview constitute what I will refer to as the first action.
8 Amanda Mehta did not take part in these proceedings. On 9 September 1996 a Master of the Court ordered that judgment be entered in favour of the plaintiffs against Amanda Mehta for such damages as may be assessed. Accordingly, any reference to the defendants which hereinafter appears relates only to the first and second defendants.
9 Following the Hider interview with Amanda Mehta, a series of articles were published in the Messenger which constitute actions two to eight inclusive. I have referred to these matters as separate actions as the plaintiffs contend that the articles constitute separate defamations each of which must be considered and assessed separately. With some exceptions, however, the statements complained of in the various publications repeat the allegations contained in P1. In the end result my findings will, to a large extent, depend on my findings in relation to P1.
10 At the trial of this action, the plaintiffs complained of numerous defamatory meanings which are said to arise from the articles.
The Mehta Statement (the first action)
11 Amanda Mehta, by reference to the plaintiffs and their school, said to Hider:
“Their claims are false, the certificates are bogus and it’s a deception.”
“I am seeking legal advice over the schools ‘fraudulent academic charade’.”
“I decided I wouldn't let them get away with it. I'm determined that they be brought to justice.”
“Michael Junius and Krishna Kumar have shielded their students from knowing the truth until today, with the result that they are still under their spell and are being sorrily misled and fleeced by them.”
“I left school in February 1991, any qualifications would be worthless.”
“I have personally been cheated into spending around $4,000 for a fake certificate which is not worth the paper it was written on.”
“Ayurveda is a noble science and I don't want to see it discredited.”
The Articles
The second action
12 The first articles which are the subject of these proceedings (P1 and P2) appeared in the Weekly Times Messenger on Wednesday 12 August 1992. Those articles can be regarded as sufficiently closely connected as to constitute one publication. The statements made by Amanda Mehta to Hider on 6 August 1992 were re-published on the front page under the heading “THE STUDENT Legal advice sought over ‘academic charade’”
“‘THEIR claims are false, the certificates are bogus and it's a deception.’
So says Amanda Mehta, 37, a former student of the Australian School of Ayurveda who is seeking legal advice over the school's ‘fraudulent academic charade’.
‘I decided I wouldn't let them get away with it. I'm determined that they be brought to justice’, said Mrs Mehta, a doctor of philosophy.
‘Michael Junius and Krishna Kumar have shielded their students from knowing the truth until today, with the result that they are still under their spell and are being sorrily mislead and fleeced by them’.
Mrs Mehta studied the two-year Certificate of Proficiency in Ayurveda and had intended to study for a further two years to obtain the school's diploma.
But she left the school in February, 1991, saying any qualifications would be worthless. Now she wants compensation for what she says was a waste of time, effort and thousands of dollars.
‘I have personally been cheated into spending around $4,000 for a fake certificate which is not worth the paper it was written on’, she said.
Mrs Mehta said she and fellow students were issued certificates after two years but these were reclaimed by the school on the pretext they had not been signed by Michael Junius.
‘I have received many certificates before and at no time have I had to return it because the principal had not yet signed’, Mrs Mehta said.
She said about 25 students began the certificate course with her, with about 10 completing it. Six have gone on to the diploma course.
‘Ayurveda is a noble science and I don't want to see it discredited’, she said.”
13 A further article was headed “Bogus medical school in $8000 course trap”, “Special Investigation by JOANNE HIDER” which went on to state as follows:
“AN ADELAIDE school of Indian medicine which charges up to $8000 for its courses, is duping students with false claims that the school is affiliated with an Indian university. Its teachers use false titles, the qualifications they award are not recognised outside the school itself and a regular visiting Indian lecturer is facing criminal charges in India.
The Australian School of Ayurveda based at 27 Blight Street Ridleyton, is run by Michael (also known as Manfred) Junius and offsider Krishna Kumar.
Junius uses the titles professor, doctor and acharya (an Indian title equivalent to a masters degree). His true academic qualification is a diploma of literature (music).
A lecturer who regularly travels from India to lecture at the school, Dr Pandurang Hari Kulkarni, is facing criminal conspiracy and corruption charges in India by the State Crime Investigation Department.
The Australian School has stated on its course certificates, letterhead and syllabus that it is affiliated with Poona University in Maharashtra State, India, through the Institute of Indian Medicine, also based in India and run by visiting lecturer Kulkarni.
Poona University authorities say the Australian school is not recognised or affiliated to it, qualifications received at the Australian school are not recognised by the university, and that Michael Junius is not approved as a Professor of the Ayurveda at the University.
They also say the Institute of Indian Medicine is not now recognised by Poona University although it was once recognised by Poona University from 1986 to 1987 only.
The Australian school charges $1600 for its two-year certificate plus $400 for a basic sciences course. Its four-year diploma costs $8000. Poona University's recommended price to complete the two-year certificate that it designed is $50.”
14 On the same page appeared a photograph of Kumar with the statement “runs school of Indian medicine with Michael Junius. INSET: The headquarters of The Australian School of Ayurveda” with a photograph of the premises of the plaintiffs. The article continued on the same front page under the heading “POONA UNI Fight over ‘misuse’ of name”.
“POONA University’s highly respected Professor Dada Gujar has been trying to stop the Institute of Indian Medicine and the Australian School of Ayurveda from using its name without consent.
‘Thus it is the misuse of Poona University’s name on one side and cheating the Australian people on the other side’, Dr Gujar said last week from Poona.
‘This is a horrible case of ethical fraud and I strongly feel that the university should take a serious view of this and take stringent action promptly.’
Professor Subhash Ranade, who is the principal of another Ayurveda college in Poona and also the professor-in-charge of Ayurveda at Poona University, said the Australian School and the Institute of Indian Medicine were making false claims about their ties with the university.
He said Michael Junius was not a professor of Ayurveda and both Junius and Kumar were not doctors.
‘They should be stopped once and for all … It’s a very big issue. It’s a very big scandal here in Poona’, he said.
‘They are misleading the students in Australia’.”
15 The front page also included a note “MORE ON PAGE 5:”; “INDIAN PRESS Newspapers keep watch”; “RIGHT OF REPLY School says it’s victim of intrigue”; “THE SCHOOL Background on school”. All of these articles are contained in P1.
16 On page 5 of the same edition (P2), under the heading “RIGHT OF REPLY” appeared the following text as well as a photograph of each of the plaintiffs with the heading “Claims part of ‘great intrigue’”.
“ALLEGATIONS made against the Australian School of Ayurveda have stemmed from personality clashes and people looking after their own interests, say Michael Junius and Krishna Kumar.
Kumar says some staff members at Poona University were annoyed at not being invited to give talks at the Australian school as visiting professors.
This, combined with personality clashes and jealousy among people in the field of Ayurveda, had prompted people to try to discredit the school.
‘There is great intrigue going on’, he said.
Junius said the Institute of Indian Medicine was still affiliated with Poona University, meaning the Australian school could claim to be affiliated to the university through the institute. He denied the institute had been recognised by Poona University for only one year.
Junius said it was understandable the Australian school’s certificates were not recognised by Poona University, because any qualification obtained in one country was not recognised in another country.
He said by the same token, the Australian school did not recognise qualifications obtained by Poona University.
Junius claimed he was a professor in music and in medicine and both he and Kumar said their qualifications as doctors were legitimate.
Kumar said they were not concerned about the meeting held in India last Friday, August 7, and were not worried about the present investigations.
He said the meeting was not an important one.
Kumar denied that visiting lecturer Dr Pandurang Hari Kulkarni was facing criminal charges saying the allegation was rubbish.
‘Kulkarni is one of the greatest figures in Ayurveda’, he said.”
17 On the same page appeared the heading “INDIAN PRESS Newspapers keep close watch”, with the following:
“NATIONAL Indian daily papers have kept close tabs on allegations surrounding the Australian School of Ayurveda.
The issue first made headlines in 1989 with The Indian Express featuring stories saying the Australian School of Ayurveda had sent ‘tremors in administrative circles of the university’.
‘It was not the running of these courses that shocked people here but the blatant use of the collaboration with the University of Poona, which was never entered into to promote the courses in the far-off continent’, the paper said.
The Times of India also has run stories on the issue and about last week’s Poona University meeting.”
18 Under the heading “THE SCHOOL Diploma course costs $8000”, the article stated:
“THE Australian School of Ayurveda, operating since 1982, offers a two-year certificate and a four-year diploma in Ayurveda.
Ayurveda is an ancient Indian science of well-being. It is one of the country’s three mainstream medicines and India’s oldest medicine.
The Adelaide school charges $400 each term plus $100 per term for a basic sciences course (total of four terms).
Expenses such as books, some clinical experience and a compulsory trip to India are also met by the students. Total cost for the four-year diploma course is about $8000.
The Australian school says it is a non-profit organisation.
Poona University had recommended students be charged $50 to do its course.”
19 There was also a graphic which included excerpts of a reproduction of articles from The Times of India newspaper.
The third action
20 P3 is the article which appeared on p7 of the Adelaide-wide edition of the City Messenger, one week later, that is on 19 August 1992. This publication was to a different audience than P1. That article was headed “Bogus medical school’s $8000 course trap”. It stated:
“AN ADELAIDE school of Indian medicine which charges up to $8000 for its courses, is duping students with false claims that the school is affiliated with an Indian university
Its teachers use false titles, the qualifications they award are not recognised outside the school itself and a regular visiting Indian lecturer is facing criminal charges in India.
The Australian School of Ayurveda based at 27 Blight St, Ridleyton, is run by Michael (also known as Manfred) Junius and offsider Krishna Kumar.
Junius uses the titles professor, doctor and acharya (an Indian title equivalent to a masters degree). His true qualification is a diploma of literature (music).
A lecturer who regularly travels from India to lecture at the school, Dr Pandurang Hari Kulkarni, is facing criminal conspiracy and corruption charges in India by the State Crime Investigation Department.
The Australian school has stated on its course certificates, letterhead and syllabus that it is affiliated with Poona University in Maharashtra State, India, through the Institute of Indian Medicine, also based in India and run by visiting lecturer Kulkarni.
Poona University authorities say the Australian school is not recognised or affiliated to it, qualifications received at the Australian school are not recognised by the university, and that Michael Junius is not approved as a Professor of Ayurveda at the university.”
The fourth action
21 On 19 August 1992, an article also appeared on p5 of the Weekly Times Messenger under the heading “THE POONA AFFAIR ‘Ethical fraud’ probe in India’ Threat over Adelaide base By JOANNE HIDER”. This article (P5) featured a reproduction of the first front page article which had appeared in the Weekly Times Messenger on 12 August 1992 and had the same circulation as P1. This article did not, however, include a right of reply. It stated:
“INDIAN academic authorities who have labelled an Adelaide school of Indian medicine’s activities ‘ethical fraud’, met recently to discuss what action should be taken against the school.
Poona University in India has set up a committee of two lawyers and a doctor to decide what action should be taken against the Australian School of Ayurveda, based in Blight Street, Ridleyton and the Institute of Indian Medicine.
Last week the Weekly Times Messenger revealed the Australian School of Ayurveda, which charges up to $8000 for its courses, was falsely claiming it was affiliated with Poona University, Maharashtra State, India through the Institute of Indian Medicine, also based in India.
Its teachers use false titles, the course is not recognised outside the school itself and a regular visiting Indian lecturer is facing criminal and conspiracy charges in India.
An executive meeting at Poona University on Friday August 7, voted to set up the committee after discussing how it should stop the school and institute from misusing Poona University’s name.
Professor Subhash Ranade, professor-in-charge of Ayurveda at the university, said the committee, comprising a criminal lawyer, head of Poona University’s law faculty and a doctor, would investigate the issue and deliver its verdict at another special meeting later this month.
Dr Ranade said the committee would look at what legal action could be taken against the Australian school and Indian institute for its affiliation claims and ‘for duping Australian students’.
Dr Ranade said Poona University should take legal action to stop the misuse of its name which was damaging its reputation and the reputation of Ayurveda.
Professor Dada Gujar, also of Poona University, agreed the university’s name was being misused.
‘This is a horrible case of ethical fraud and I strongly feel that the university should take a serious view of this and take stringent action promptly’, Dr Gujar said, from Poona.
Ayurveda is an ancient Indian science of well-being and one of the country’s three mainstream medicines.”
22 On the same page was a further article headed “Qualifications not recognised: national therapists”. The said article contained the following:
"QUALIFICATIONS awarded to students attending the controversial Australian School of Ayurveda are not recognised by the Australian Natural Therapists' Association because its courses do not meet the required standards.
But the school of Indian medicine at Ridleyton, which allegedly has been duping students with false claims, cannot be investigated by the association because there are no laws governing the standard of natural therapies.
A therapists association spokeswoman said it was up to each section of natural therapies to 'keep its area clean'.
The association accredits courses if they comply with standards set by the association. Each year the courses are reassessed.
But the spokeswoman said the Australian School of Ayurveda was not accredited to the association because its courses did not meet the necessary standards.
She said the association was pushing to have the natural therapies industry licensed or registered so a code of standards must be adhered to and the industry kept clean.
A spokesman from the SA Fraud Squad Sergeant Brian Smith said a complaint was needed before police could carry out an investigation on the Ayurveda school.
He said if people, such as students, were induced into parting with money on the basis of false claims, an offence may have been committed.
A Consumer Affairs Department spokesman said the department was looking into the issue although it was too early to tell if an investigation would be carried out.”
The fifth action
23 The plaintiffs did not proceed with the fifth action. In the course of his address, counsel for the plaintiffs conceded this to be a duplication of the third action.
The sixth action
24 On 26 August 1992, a further article (P6) was published in the Weekly Times Messenger under the heading “Decision in 10 weeks on Indian School”.
“A DECISION on whether an Australian school of Indian medicine is misusing an Indian University’s name will be handed down by the university in 10 weeks.
The Australian School of Ayurveda, at Blight Street, Ridleyton, is being investigated by Poona University, Maharashtra State, India, after claiming that it was affiliated to the university through the Institute of Indian Medicine, also in India.
Poona University’s executive council has appointed a committee to investigate claims that the Institute of Indian Medicine and the Australian school have been misusing its name.
Speaking from Poona, Professor M Palange, a member of the executive council, said ‘it was not proper’ for the Australian school to claim its affiliation to Poona University through the Indian institute because it was untrue.
The Weekly Times Messenger recently revealed the Australian school, which charges up to $8000 for its courses, is not affiliated with the university.
The school’s teachers use false titles, the course is not recognised outside the school itself and a visiting Indian lecturer is facing criminal and conspiracy charges in India.”
The seventh action
25 On 9 September 1992, in the Weekly Times Messenger, under the heading “LETTERS TO THE EDITOR” appeared the following (P7):
“Indian link backs charges against Ayurveda school”
“PLEASE find herewith our comments on the statements made by Mr Junius and Mr Krishnakumar (sic) which are published in the Weekly Times Messenger dated August 12.
Allegations made against the Australian school of Ayurveda are based on facts.
We strongly refute Mr Kumar’s statement that staff members of Pune University are annoyed at not being invited as visiting Professors.
No sensible person from Pune is interested to be invited and get involved in such illegitimate affairs.
It is not the jealousy and to discredit the ASA but an honest effort to take the truth to the people. If at all any intrigue is going on, it is at the end of ASA and IIM.
The institutes are recognised for specific subject and course under Section 46 of Pune University Act 1974.
It is wrong to say affiliation.
The IIM was recognised for one year of 1986-87 only.
After appointing four local inspection committees, its continuation of recognition is not yet okayed because of unfavourable reports. As per the said Act, each institute is recognised independently. It is not valid to claim an affiliation through other institute.
As per the said Act, the recognised institute of affiliated college has to take university approval for conducting any course and for each subject therein. Even IIM has not taken approval from the Pune University to conduct the CPA course in Pune and within its jurisdiction.
To extend the activities outside jurisdiction requires special permission from the Government which obviously the IIM has not.
When the approval is granted for the course, the examination is taken by the university and certificates are given by the university and not by any institute, school or college.
If Mr Junius and Mr Krishnakumar (sic) are holding legitimate medical qualifications they should declare the qualifications and its registration in the particular schedule of the existing Acts in the relevant countries.
It is astonishing to note Mr Kumar’s denial of the criminal cases against Dr P H Kulkarni.
We state that the complaint has been lodged with Deccan Gymkhana PSC R No. 122/91 under section 120(B) 409 of Indian Penal Code and section 13(1)(c)(D) (r)ead with 13(2) of the(P)reventation (sic) of (C)orruption Act 1988 (Criminal conspiracy, to make fraud, misappropriation, misuse of the position of trusteeship) against Dr P H Kulkarni and five of his colleagues.
The case is under investigation by office of special Inspector General of Police, state CID (Crime), Pune.
Secondly, they are suspended from trusteeship after framing the charge sheet by the Joint Charity Commissioner, Pune under section 41D(3) of the Bombay Public Trust Act 1950 in the Suo-Moto case No. 13/91.
Dr Kulkarni may be one of the greatest figures in Ayurveda at ASA but not so in Pune and India.
We think that this covers all the points Mr Junios (sic) and Mr Krishnakumar (sic) has raised.
For further development it is stated that the recent meeting of Academic Council of Pune University held on August 18 and 19, 1992, has directed IIM not to use Pune University’s name, not to carry on teaching and not to hold seminars et cetera, pending the report of the newly appointed committee.
DR SUBHASH RANADE
DR E T GUJAR
16/6 Erandwane
Pune-411004, India”
The eighth action
26 On 14 October 1992, the following article (P8) appeared in the Weekly Times Messenger headed “Indian consulate asked to help in school issue”.
“POONA University, India, has written to the Indian Consulate in Australia in an effort to stop a Ridleyton school of Indian medicine from using its name.
The Australian School of Ayurveda, at Blight St, is being investigated by Poona University, after claiming it was affiliated to the university through the Institute of Indian Medicine, also based in India.
Poona University’s executive council has appointed a committee to investigate claims that the Australian school and Institute of Indian Medicine have been misusing its name.
Speaking from Poona, Professor Palange, a member of the executive council, said the council recently decided the university should write to the consulate in Australia.
He said the letter informed the consulate of the investigation and ask it to advise people the Australian School of Ayurveda should not be using Poona University’s name.
Dr Palange said investigations were continuing and a special committee decision on whether the university’s name was being misused should be made at the end of this month.
The Weekly Times Messenger earlier revealed the Australian school, which charges up to $8000 for its courses, is not affiliated with the university. The teachers use false titles, the course qualifications are not recognised outside the school itself and a visiting lecturer is facing criminal and conspiracy charges in India.”
Defamatory meaning
27 In para 8 of the Amended Statement of Claim the plaintiffs allege that the natural and ordinary meaning of the words used by Amanda Mehta in her conversation with Hider are:
“(a) The plaintiffs are liars;
(b).... the plaintiffs have been guilty of conduct that would amount to criminal offences;
(c) The plaintiffs have been guilty of misrepresentations;
(d) The plaintiffs are deceitful’
(e) The plaintiffs are cheats;
(f) The plaintiffs have cheated Mrs Mehta out of $4,000;
(g) The plaintiffs have been guilty of fraud;
(h) The plaintiffs have brought discredit to the science of Ayurveda;
(i)..... The plaintiffs do not hold proper educational titles or qualifications to enable them to practice and teach the science of Ayurveda;
(j) (Deleted)
(k)..... The plaintiff’s School of Ayurveda is not fit to hold itself out as a school or educational institution of any form;
(l) (Deleted)
8A..... Alternatively, the meaning pleaded in sub-paragraph 8(c) arises by reason of the facts and matters hereinafter set out.
PARTICULARS
(a)..... The plaintiffs are themselves directly engaged in the practice of Ayurveda as is well known by past and present patients of the plaintiffs and members of the Indian community in Adelaide.
(b)The plaintiffs were themselves directly engaged in the teaching of Ayurveda at the Australian School of Ayurveda as is well known by past and present students of the School and members of the Indian community in Adelaide.”
Those meanings are repeated in para 11 of the Statement of Claim with respect to the re-publication in P1 of the Mehta/Hider conversation
28 In para 15 of the Statement of Claim the plaintiffs plead the natural and ordinary meaning of the words used in the balance of the articles in P1 as follows:
“(a) The plaintiffs were involved in criminal or civil misconduct;
(b)... The plaintiffs do not hold proper educational titles or qualifications to enable them to practise and teach the science of Ayurveda;
(c)(Deleted)
(d)... The plaintiffs' School of Ayurveda is not in any way fit to hold itself out as a school or educational institution of any form;
(e)(Deleted)
(f).... The plaintiffs employ teachers who falsely claim to have academic qualifications;
(g)(Deleted)
(h)... The plaintiffs' charges and fee structures are exorbitant;
(i)The plaintiffs have deceived their students and the public at large;
(j).... The plaintiffs have been guilty of fraud;
(k)The plaintiffs are liars;
(l).... the plaintiffs have been guilty of misrepresentation;
(m)the plaintiffs are deceitful;
(n)... The plaintiffs have lied to and deceived their students;
(o)The plaintiffs have brought discredit to the science of Ayurveda.
15A... Alternatively, the meaning pleaded in sub‑paragraph 15(b) arises by reason of the facts and matters hereinafter set out.
PARTICULARS
(a)... The plaintiffs are themselves directly engaged in the practice of Ayurveda as is well known by past and present patients of the plaintiffs and members of the Indian community in Adelaide.
(b)The plaintiffs were themselves directly engaged in the teaching of Ayurveda at the Australian School of Ayurveda as is well known by past and present students of the School and members of the Indian community in Adelaide.”
29 The majority of those meanings are repeated with respect to the remaining articles. Para 19 of the Amended Statement of Claim, however, pleads additional meanings with respect to the article which appeared in the Messenger on 19 August 1992 under the heading “Qualifications not recognised: national therapists”, viz:
“(p).... The Australian School of Ayurveda warrants investigation on the grounds of its activities;
(q)The Australian School of Ayurveda failed to meet proper standards of natural therapeutic practice;
(r)..... The School and the plaintiffs should be investigated for fraud by the Police;
(s)The School and the plaintiffs are being investigated by the Consumer Affairs Department.”
30 At the trial, however, Mr Heywood-Smith, counsel for the plaintiffs, asserted that the primary sting of the article in P1 was that the plaintiffs were “frauds or con men or crooks” and that they were “people who associated with crooks”.
31 Mr Heywood-Smith further contended that there were secondary stings, namely, that the plaintiffs ran a school which was a bogus school and that they ran a school which did not confer qualifications which were in any way recognised.
32 In the defence, the defendants denied the meanings contended for by the plaintiffs and further pleaded a substantive defence of justification. In response to Mr Heywood-Smith’s submission as to the primary sting of the articles, Mr Harris, who appeared for the defendants argued that the plaintiffs were bound by the imputations pleaded by them and that they were not thereafter free to rely upon similar meanings which were more injurious than those pleaded. In particular, the pleadings did not assert that the plaintiffs were “people who associate with crooks”. The defence maintained that the central charge against the plaintiffs in P1 was that they had made false claims that their school was affiliated with Poona University.
33 The first matter to be resolved is the defamatory meaning of the words which are the subject of the various causes of action. Gatley on Libel and Slander (8th edition at p5) says: “There is no wholly or satisfactory definition of a defamatory imputation. An imputation which may tend to lower the plaintiff in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred, contempt or ridicule is defamatory of him.”
34 In considering the defamatory meaning of the words used the test to be applied is that of “the ordinary reasonable man”.
35 In Lewis v Daily Telegraph Ltd (1964) AC 234, Lord Reid said at 259:
“Ordinary men and women have different temperaments and out-looks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.”
36 In Jones v Skelton [1963] 1 WLR 1362 at 1370, Lord Morris of Borthy-y-Gest, said in the Privy Council:
“The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning; any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words ... The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.”
37 In Prichard v Krantz (1984) 37 SASR at 379, the court was obliged to consider whether the plaintiff was bound by the meanings which he attributed to the words complained of in his particulars of claim. The consequence was that his case would fail if the words used were found to be incapable of bearing the meanings pleaded. In the course of his reasons, King CJ referred inter alia to Lewis v Daily Telegraph Ltd (supra) and Jones v Skelton (supra) and said at 386:
“These passages all support the view that a plaintiff is in some sense bound by the meanings which he attributes to the words in his statement of claim. It seems to me, moreover, that the passages cited above from Lewis v Daily Telegraph Ltd as to the desirability of pleading the meanings attributed to the words and the cases in which particulars have been ordered, are posited on that view of the law. An allegation of the meanings to be attributed to the words used, whether in a statement of claim or by way of particulars supplied in compliance with an order, serves no good purpose, and may perhaps be a trap for a defendant, if those meanings can be ignored at trial and other meanings relied upon. The purpose of pleadings and of particulars is to define the issues at trial and to give the opposing party fair notice of the case to be made against him. A defendant needs to know the meanings attributed to the words by the plaintiff in order to decide whether to assert that the words do not bear those meanings, to justify the meanings or to apologise.
A plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularized. Modern judges, in any class of case, have a considerable discretion as to the rigour with which they will confine a case presented by a party to the precise language of the pleadings. In many cases, moreover, the more serious allegation can be regarded as including the less serious. In that sense, the court is free to attribute to the words a less injurious meaning than that attributed to them in the pleading. An allegation that the words used mean that the plaintiff is a rapist no doubt includes a meaning that he has been guilty of a less serious type of sexual assault. An allegation that the words mean that a person is a robber no doubt includes a meaning that he has taken property by criminally dishonest means falling short of robbery. It seems to me, however, that it would be contrary to the purpose of pleadings and particulars if a plaintiff could obtain a judgment upon the basis of a meaning of the words used which was not merely a less serious form of the imputation pleaded, but amounted to an imputation of a substantially different kind.”
38 Prichard v Kranz was referred to the High Court in Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 (20 May 1998). After referring to the above dicta of King CJ the court said (per Brennan CJ and McHugh J):
“23. ... Similarly, Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 183 said:
‘where the imputation specified by the plaintiff is not the imputation made by the published material, the plaintiff will fail, even though another and different imputation was made by the published material and the plaintiff could have pleaded that imputation.
But, in my respectful opinion, that should not mean that the plaintiff should fail where the published material is before the jury, the imputation which it makes maybe seen from it, and the plaintiff’s error is merely that his pleading of the imputation errs in that it does not with complete accuracy state in the pleading the imputation that is in the published material ... Where ... the complaint is not that the published material conveys one imputation and the pleading pleads a quite different one, but that the pleader has erred in attempting to translate the imputation from the published material to the pleading, I do not think the law to be that a plaintiff’s claim must necessarily fail. It would be sad if the law held the plaintiff’s claim defeated because, in pleading, he did not precisely translate from the letter to the pleading the imputation as precisely as should have been done.’
24. If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury.”
39 Ms Mehta, in her conversation with Hider, referred to the school’s “fraudulent academic charade”. She was determined that the plaintiffs “be brought to justice”. She said “(the plaintiffs) have shielded their students from knowing the truth ... (they) are being sorrily misled and fleeced by them”. She described her qualifications as “worthless” and said she had “personally been cheated into spending around $4,000 for a fake certificate”.
40 These statements were repeated in the Messenger on 12 August 1982. There was a further article headed “Bogus medical school in $8000 course trap”. Under that heading were included the following statements:
·.. The school is “duping students with false claims that the school is affiliated with an Indian university”
·.. “Its teachers use false titles, the qualifications they award are not recognised outside the school itself”
·.. “a regular visiting Indian lecturer is facing criminal charges in India”
·.. “Junius uses the titles professor, doctor and acharya ... His true academic qualification is a diploma of literature (music)”
·.. The school “has stated on its course certificates, letterhead and syllabus that it is affiliated with Poona University ... through the Institute of Indian Medicine ... run by visiting lecturer Kulkarni”
·.. The school “charges $1600 for its two-year certificate plus $400 for a basic sciences course. Its four-year diploma costs $8000. Poona University’s recommended price to complete the two-year certificate that it designed is $50”
41 There is a further article headed “POONA UNI Fight over ‘misuse’ of name” and refers to statements made by Gujar and Ranade. Gujar is referred to as “Poona University’s highly respected Professor Dada Gujar”. He says that he has been trying to stop the IIM and ASA from using its name without consent and says that it is “misuse of Poona University’s name on one side and cheating the Australian people on the other side ... This is a horrible case of ethical fraud ... the Australian School and the Institute of Indian Medicine were making false claims about their ties with the university ... Junius was not a professor of Ayurveda and both Junius and Kumar were not doctors ... They are misleading the students in Australia”.
42 In P2, p5 of the newspaper under the heading “INDIAN PRESS Newspapers keep close watch” it referred to ‘tremors in administrative circles of the university”. Under the heading “THE SCHOOL Diploma course costs $8000” it stated:
·“Expenses such as books, some clinical experience and a compulsory trip to India are also met by the students. Total cost for the four-year diploma course is about $8000”.
·“Poona University had recommended students be charged $50 to do its courses”.
43 As can be seen, the statements made by Ms Mehta and the series of articles appearing in P1 include words such as “fraudulent”, “fleeced”, “cheated”, “bogus”, “trap”, “duping”. It is useful therefore to refer to some dictionary definitions of those words.
SHORTER OXFORD THE MACQUARIE fraud the quality of being deceitful; criminal deception the using of false pretences to obtain an unjust advantage or to injure the rights or interests of another; an act or instance of deception, a dishonest trick. deceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage and in law advantage gained by unfair means; a false representation of fact made knowingly, or without belief in its truth, or recklessly, not knowing whether it is true or false .. fleece to strip completely of money, property etc; to exact money from; to rob heartlessly; to victimise to strip of money or belongings; plunder; swindle .. cheat to deprive by deceit .. a fraud; swindle; deception .. bogus counterfeit; spurious; sham .. counterfeit; spurious; sham .. trap deceitful practice; trickery; fraud to take by stratagem; lead by artifice or wiles .. dupe to make a dupe of; to delude; to cheat to make a dupe of; deceive; delude; trick 44 In conjunction with the use of those words are the references to “false claims”, “false titles”, “misleading students”, Dr Kulkarni “facing criminal conspiracy and corruption charges”, Ms Mehta’s determination to bring the plaintiffs “to justice” and a comparison of total cost of the ASA four-year diploma course of $8,000 as opposed to the cost of the course at Poona University of $50.
45 In my opinion the reader of these articles would believe that the plaintiffs had behaved dishonestly, that is, that they had obtained or attempted to obtain money from their students by the making of false claims. They had deliberately lied about their qualifications and their affiliation with the University of Poona, in order to obtain money from students or prospective students at the school. The repetition of such words as “cheat”, “fleece”, “trap”, “dupe”, imputes a deliberate and dishonest state of mind to the plaintiffs which equates with criminal conduct, that is, fraud.
46 I do not think therefore that the primary sting contended by the plaintiffs at trial is more serious or more injurious than the meanings pleaded. The pleadings clearly raise the issues of fraud and deceit. The defendants were therefore aware of the case they were required to meet. I do not consider, that this is a case like Prichard v Krantz (supra) where the court ultimately found that the words complained of were not capable of bearing the defamatory meanings attributed to them in the particulars of claim. In this case the primary sting of the articles is that the plaintiffs are “conmen and crooks”. The pleadings refer to criminal conduct and fraud. I consider that the imputation that the plaintiffs are “conmen and crooks” comes within the matters pleaded in the Amended Statement of Claim.
47 As I have mentioned, however, the defence, in addition to denying the meanings contended for by the plaintiffs have pleaded a substantive defence of justification. They assert that the words complained of by the plaintiffs were true in substance and in fact. The defence further argued that even if parts of P1 et seq were inaccurate, the particular inaccuracies did not add to the sting of the publication.
48 The evidence at the trial was taken over 36 sitting days. Kumar and Junius each gave evidence. Kumar went first and Junius was present throughout Kumar’s evidence. Kumar was rigorously cross-examined by Mr Harris for about seven days. He was a reasonably good witness. There were aspects of his evidence I found difficult to accept and I thought that on occasion he indulged in ex post facto rationalisation, particularly on the topic of the affiliation with Poona University. Subject to some further comments hereafter, however, I considered him to be a witness of truth. Junius, on the other hand, was not a good witness. He frequently became excited, many of his answers were rambling and he was constantly non-responsive to questions put to him in cross-examination. He also engaged in some ex post facto rationalisation of events. His evidence as to such matters as the status of the Open University of Complementary Medicine was unconvincing. As to essential matters, however, I thought he also was a witness of truth. In addition the following witnesses gave evidence on behalf of the plaintiffs:
49 Dr P H Kulkarni, a former Dean of the Faculty of Ayurvedic Medicine at University of Poona and Director of the Institute of Indian Medicine (IIM). He was also a visiting lecturer to ASA. He was intimately involved in the negotiations which took place with respect to the “affiliation” of ASA with the University of Poona. He is the person referred to as the “lecturer ... facing criminal conspiracy and corruption charges ...”. Dr Kulkarni presented as a highly intelligent man who was a good witness. It was obvious, however, that he was very involved in the academic politics of Poona University. I thought he was keen to enhance his own status and I was left with the impression that he had, to a large extent, manipulated the plaintiffs for his own benefit.
50 Dr V V Doiphode, the principal of Tilak Ayurved College.
51 Professor S N Parchure, a former Dean of the Faculty of Ayurvedic Medicine at the University of Poona. He visited the Australian school in about April or May 1990.
I considered both Dr Doiphode and Professor Parchure to be witnesses of truth.
52 Louise Herft, Juliette Parkin, and Emilia Lopresto, three students who had undertaken courses at ASA. These three women were the only students from the school to give evidence. Each of them was articulate and presented as a witness of truth.
The following persons gave evidence for the defence:
53 Professor Mark Wahlqvits, a professor at Monash University. He was an expert witness. He had no involvement with the events which were the subject of the proceeding. His evidence was directed to the issue of “affiliation” and the qualifications of the plaintiffs.
54 Mr Desmond Ryan, the Editor in Chief, Messenger Newspaper. Mr Ryan’s evidence does not go to the issue of justification but is of relevance to the claims by the plaintiffs for aggravated and/or exemplary damages.
55 Ms Joanne Hider, (now Elsom), the journalist who wrote the articles. Hider is only of limited assistance with respect to the issue of justification. As in the case of Ryan, her evidence is relevant to aggravated and/or exemplary damages.
56 Mr Haydon Aldersey, a private investigator. He was employed by Peshotan Mehta in late 1991 or 1992 to verify whether ASA could claim affiliation with Poona University. He was a poor witness and for reasons which appear hereafter I am not prepared to rely on his evidence.
57 Ms Marni Morrow, a naturopath associated with the Australian Natural Therapists Association (ANTA). She was the person referred to in the article which appeared on 19 August 1992 as a “therapists association spokeswoman”. Her evidence was primarily directed to the issue of accreditation. I was not impressed with her evidence.
58 Mr Alan Rigert, a naturopath and former member of the Naturopathic Practitioners Association (NPA). He gave evidence on the issue of accreditation. I consider that little reliance can be placed on his evidence.
59 Ms Margaret Hunter, a management consultant who had previously been the Chair of the Accreditation Panel for the Community Services and Health Industry Training Advisory Board. Ms Hunter was a good witness. Her evidence was primarily directed to the issue of accreditation. I thought it was of limited assistance in resolving the principal issues in dispute.
60 Dr S T Gujar, one of the authors of the letter contained in P7 and the source of certain statements contained in P5. Gujar, like Kulkarni, presented as a highly intelligent and well qualified man. It was obvious, however, that much of what had occurred in the lead up to the publication of these articles was the result of the antagonistic relationship between Gujar and Kulkarni and I thought his evidence was coloured by that antagonism.
61 For completeness, I mention that in his opening, Mr Harris indicated an intention to call Professor Ranade the other author of the letter in P7. That did not eventuate. The plaintiffs asked that I draw an adverse inference against the defendants as a result thereof. Kumar gave evidence about a subsequent meeting with Ranade in India at which Ranade recanted what he previously said. This led to him writing a letter to the Messenger dated 1 February 1993 (P105). In that letter Ranade expressed his regret for the letter published in the Messenger and he referred to wrong information provided to him by the Mehtas. I do not draw an adverse inference against the defendants for their failure to call Ranade but, in the circumstances, I proceed on the basis that the evidence of Ranade would not have assisted the defendants’ case and I am left in the situation that there is no evidence to refute what Kumar said about the meeting which led to the letter of apology.
62 As is obvious, several of the above witnesses were from Poona, India. Much of their evidence related to institutions situated in India and elsewhere and events which had occurred in Poona.
63 In order to understand the issues in this case I believe it is necessary to elaborate on the brief summary of facts given at the commencement of these reasons and refer to some of the matters which occurred in India. A considerable body of evidence related to the topic of ayurvedic medicine and the teaching thereof. I propose therefore to commence with a brief discussion as to my understanding of that topic.
What is Ayurveda?
64 Ayurvedic medicine is an ancient Indian system of medicine which focuses on three basic bio-energies (“doshas”) - wind, fire and water - and their balance. It is primarily a herbal medicine. It is generally believed that disease arises when these energies become unbalanced. Therefore, the ayurvedic physician’s aim is to maintain a certain degree of balance in the patient. To do this, substances such as herbs, purified metals and minerals are used. In addition, Ayurveda places a strong focus on analysing the patient’s environment, ie, daily routine, sleeping patterns and dietary habits. The physician will for example help a patient develop a daily regimen. According to Kumar, Ayurveda medicine has several branches, such as internal medicine, paediatrics, “Bala Roga”, psychiatry, “Bhudavigyam”, ENT (ear, nose and throat), “Shalya Shalkya” and disorders of the female system, “Strirogn”. Surgery was a very old branch of ayurvedic medicine. (Tr 60-61)
65 The first ayurvedic teacher some 2,000 years ago was called Chakra. His teachings are recorded in a text called the Charak Sahmita which has continued to be a basic text for the teaching of Ayurveda to the present time. Originally this was taught traditionally. Ayurvedic students would study under a guru and learn by listening to the guru, observing his work and generally obtain practical experience. In the course of the trial this was referred to as the “Gurukul system”.
66 During the period of British Rule in India, the traditional form of medicine was suppressed with the emphasis being placed on the teaching of western allopathic medicine. As the British introduced various educational reforms, however, the teaching of ayurvedic medicine re-emerged in various institutions. This led in time to the phasing out of the Gurukul system. There was, however, a period of grace during which time those who had acquired their skills in the traditional way were still able to obtain registration as ayurvedic practitioners.
67 In 1970, the Indian Medicine Central Council Act 1970 (IMCC) (D1) came into force with a view to setting a common standard for the teaching of ayurvedic as well as other forms of medicine in India. The Schedule to that Act sets out the medical qualifications which were thereafter recognised. Section 14 provided that the medical qualifications granted by any university, board or other medical institution in India which were included in the Second Schedule, should be recognised as medical qualifications for the purposes of the Act. The relevant institutions in Poona, which are included in the Second Schedule, are the Poona University, which offered a Bachelor of Ayurvedic Medicine and Surgery (BAMS, Poona) which has been awarded from 1964 onwards, and Tilak Maharashta Vidyapeeth (TMV), which awarded a degree called Ayurveda Vishared (AVV, Poona) from about 1944 and Ayurveda Parangat (AVP, Poona) from about 1942.
University of Poona
68 There is no dispute that the University of Poona is an academic institution of high standing. The evidence established that it is probably the most prestigious institution in India for the teaching of ayurvedic medicine. The university was founded in 1948. It has a statutory base. Currently it is governed by the Poona University Act 1974 (P38). From about the year 1964 onwards, the university has provided an undergraduate course in ayurvedic medicine which has resulted in the award of Bachelor Ayurvedic Medicine and surgery (BAMS). This is the required basic degree for practising ayurvedic medicine in India. D250 contains the curriculum and syllabus for the BAMS course. The essential qualification to teach is a degree of Ayurved from a university established by law or a statutory board/faculty/examining body of Indian medicine or its equivalent as recognised by the IMCC Act 1970
69 Pursuant to the Poona University Act, it is possible for other colleges or institutions to be affiliated to the university. Tilak Ayurved Mahvidyalaya College (Tilak), also situated in Poona, had been teaching ayurvedic medicine since about 1933. After the founding of Poona University, Tilak became affiliated with Poona University. There is also a hospital attached to Tilak. The college is controlled by a public trust called Rashtriya Shikshan Mandal (RSM). RSM also runs a manufacturing unit called Ayurved Rasashala. Ayurved Rasashala manufactures about two hundred different types of ayurvedic medicines. One of these is a substance called “chyavanprash” which was the subject of a thesis by Kumar strongly criticised by the defence. The profit from Ayurved Rasashala is utilised towards the college and the hospital.
70 Chapter 7 of the University of Poona Act 1974 deals with issues of affiliation and recognition. Section 43 of the Act sets out the criteria for the affiliation of colleges. Affiliation and recognition is also dealt with in the ordinances established under the Act (D39). Ordinance 82 deals with affiliation pursuant to s43 of the Act and Ordinance 83 deals with recognition pursuant to s46 of the Act. P33 is the Commonwealth Universities Year Book 1991 and P34 is the yearbook for 1992. Each contains a list of colleges affiliated to the University of Poona as well as a list of recognised institutions. ASA is not and never has been included.
The Institute of Indian Medicine
71 One of the institutions listed as “recognised” by the university under the Act (and which assumed considerable significance in these proceedings) is the Institute of Indian Medicine (IIM). Kulkarni is the director of IIM.
72 According to Kulkarni the institute was founded in 1980 as a part of the Janata Arogya Mandal (JAM). He described a “Mandal” as a trust registered with the government. P142 is a certificate dated 30 July 1977 of the registration of the Mandal in the “Marathi” language. The scheme for the management and administration of the trust is contained in P143. I am satisfied, however, that for all intents and purposes Kulkarni is IIM.
73 The objects and rules of the IIM are contained in P144. Its initial activities were to propagate research in ayurveda, honour people working in research and encourage people who wished to do research. Kulkarni said it commenced research in about 1981-82. It applied for recognition by the University of Poona in 1984.
74 P145 is a letter dated 8 April 1986 from the university to the chairman of IIM acknowledging receipt of the institute’s application for recognition as a research institute under the Poona University Act 1974. Recognition was granted subject to conditions laid down by the Local Inquiry Committee under the chairmanship of Vd Suhas Parchure. The institute was requested to send a compliance report on the conditions laid down in the Local Inquiry Committee report which was enclosed.
75 P146 is a certificate of recognition of IIM as a research institute from the year 1986-87. It is dated 14 August 1986. (The certificate was also admitted as P12.) The period of recognition was the subject of some dispute and is referred to in paras 223-240 hereof.
The establishment of the Australian school
76 Junius and Kumar met at the University of Allahabad in 1962. They became close friends. They had a mutual interest in music and traditional medicine. The two of them came to Australia in about 1979 and eventually settled in South Australia where they established the Australerba business. Over the years each of them had developed a genuine interest in ayurvedic medicine. Once their business was established they turned their minds to the establishment of a school to teach Ayurveda in South Australia. This started in a relatively informal way. They realised that they would need assistance from India. They invited Dr Bhagwan Dash to Adelaide to give some lectures. It did not appear to be disputed that Dr Dash was an expert in Ayurveda. Dr Dash spent approximately four weeks in Adelaide in 1982. He gave lectures at the home of Mr and Mrs Athina Yiossis at 13 Frederick Street, Welland. Dr Dash returned to Adelaide for a further series of lectures over a period of about four weeks in 1983. During this period, Dr Dash collaborated with Junius on a book called A Handbook of Ayurveda (P22). It was published in 1983 in English as well as other languages (eg P23 is a copy of the book in the Italian language).
77 In about the month of June 1983, as a result of advice from Dr Dash, the plaintiffs initiated some correspondence with the University of Poona with a view to the ASA being affiliated to the faculty of that university for the award of what was to be called a “Certificate of Proficiency” (CPA). The Dean of the Faculty of Ayurveda at the university at that time was Kulkarni. He was previously unknown to the plaintiffs. The university was receptive to the proposal but the correspondence thereafter was somewhat protracted. It continued through 1984 and 1985. Arrangements were made in 1985 for Kulkarni to come to Adelaide to give some lectures at the school but that visit did not eventuate. In 1986, Kulkarni visited the ASA for the first time. He subsequently returned to Adelaide and gave lectures in 1988, 1991 and 1992. Dialogue with the university on the topic of affiliation continued up until about April 1986. The last letter in evidence written by the plaintiffs to the university was on 1 April 1986 (P68) and was directed to Parchure as Dean of the Faculty. By that time it had become clear that there were some difficulties about the proposed affiliation, primarily related to problems with the importation of herbs required for the course and the university requirement that students spend a portion of their course in India.
78 Nevertheless, the plaintiffs continued to pursue the possibility of affiliation but after April 1986 all their correspondence was with Kulkarni. By that time Kulkarni had ceased to be Dean of the Faculty of Ayurveda of the university but he indicated he would pursue the issue of affiliation with the university on their behalf. He suggested this could be achieved through IIM. While these discussions were continuing, the first course commenced at the school. That was in 1986. This course was designed to lead to a certificate of proficiency in Ayurveda. It was anticipated that the certificate would take two years with a potential for a further two year course which would result in a diploma. Fifteen students, including Kumar, enrolled in the 1986 course.
79 On 1 April 1987 (P74) Kulkarni advised Junius that direct affiliation of the university with the school was not possible due to geographical restrictions imposed by the 1974 Act “however, we are finding the way”. At the bottom of the first page of that letter is the note in Junius’ hand “therefore direct affiliation through IIM preferable.” The letter goes on to say:
“Students are enrolled with Institute which is affiliated to University of Poona. We will conduct the final examination at the end of the fourth course and issue a joint certificate. Those students who are interested further they may attend Poona for more practile (sic) training and obtain a certificate. We have also drafted a further course of ‘Diploma in RASAYANA & VAJIKARANA’ for which interested student may join.”
(Printed on the bottom of each page of the letter is the statement “Recognised by University of Poona”.)
80 On 7 April 1987 (P187), Kulkarni on IIM letterhead wrote to Junius “We have written to all those fellows of Institute about obtaining the CPA certificate ... we will issue a certificate to you”.
81 On 6 October 1987 (P75), Junius wrote to Kulkarni at IIM advising that “last bracket for the present course is in full swing, and all the students are very pleased with their wonderful teacher. Dr Sardeshmukh is really a magnificent physician. ... He has prepared the course very well and all students have photocopies of the theoretical part”. He also referred to the further development of courses.
82 On 1 December 1987 (P76), Kulkarni wrote to Junius on IIM letterhead. The letterhead now stated at the top “Recognised by University of Poona”. In that letter, Kulkarni said:
“Wording of proposed Certificate is alright. In addition we may print emblem of Australian school & Institute on the Certificate. You may please print the certificate in Australia. You may send the Certificates after writing names of students and your signature. I will sign here. We will distribute certificates here at a special function.”
83 The next certificate course commenced in 1988. There were about 15 or 16 students in the intake. The group included Amanda Mehta. At about the same time, six to eight students, including Kumar, commenced the diploma course.
84 In 1988, a group of students visited India for about four to five weeks. In 1991, another group went to India. On each occasion there was a ceremony in Poona at which certificates were handed to the students but returned to Kumar at the conclusion. The 1991 ceremony was that which was the subject of the complaint by Amanda Mehta and is the subject of the comment “fraudulent academic charade”.
85 In 1988, events occurred in India which cast doubt on the status of IIM and ASA and the relationship of each of those bodies to the University of Poona. Gujar appeared to be a central figure with respect to those matters.
86 On 14 December 1988 (P283), Gujar wrote to the Vice Chancellor, University of Poona on the topics (1) Institute of Indian Medicine, Kothrud, (2) Ayurved Hospital and Research Centre of Sharatiya Sanskritit Darshan Trust, Wagholi and (inter alia) said:
“I had discussed with you in July, 1983 regarding the Australian School of Ayurveda in Adelaide. It was thought of the possibility of a certificate of Proficiency in Ayurved (CPA) thr’ (sic) Distance Education Centre (Board of Extra-mural studies) to the successful candidate in the examination after having completed 4-6 weeks practical training in Poona and 5 years (10 semesters) training in Australia.
It is learnt that the first batch of about 20-22 Australian students was in Poona in Feb 1988 for 3-4 weeks training and certificates were amended signed by the Directors Vd P H Kulkarni and Vd Sardeshmukh and Vd Suhas Parachure (sic) as Dean of Faculty of Ayurveda, Pune University.
Whether permission is granted to these institutions to Award such certificates? And whether it is right (ethical) on the part of Dean to sign on these certificates? ...
It is requested that recognition should be withdrawn as there were no facilities/infrastructure for training and research at these institutions.”
87 On 14 April 1989 (D169), Gujar wrote to Kulkarni requesting him to communicate the present status with respect to the affiliation of the Australian School of Ayurveda with Poona University and approval of the CPA course. Gujar said that he did not receive a reply from Kulkarni. (Kulkarni’s letter to Gujar which is also contained in D169 is dated 5 July 1989).
88 Accordingly, on May 1989 (P77), Gujar wrote to Junius. He congratulated him upon his success in establishing the Australian School of Ayurveda. He referred to the events in 1983 when he initiated the establishment of a relationship between the university and the school which had been submitted to the Vice Chancellor. He said that the proposal had been sent to the Faculty of Ayurved for opinion/comments if any, at which time Kulkarni was the Dean. He said that he had relied on Kulkarni but was now surprised to see that things had happened in a different way and was asking for clarification of a number of matters. It included the statement that in 1983 it was clearly envisaged that the course would be approved by Pune University and that the examination would be carried out by the university and a certificate given under its seal. He also said that he wanted to “establish the authentic collaboration of the Australian School of Ayurveda directly with the Pune University”.
89 On 19 May 1989 (P79), Gujar again wrote to Junius. He referred to his letter of 3 May 1989 and enclosed a cutting from the Indian Express newspaper dated 15 May 1989. This included a heading “Ayurvedic experts take Poona varsity for a ride”. It incorporated a copy of the brochure for the course conducted by Kulkarni in February/March 1986 which described Kulkarni as Dean (and referred to the course being conducted “in collaboration with the University of Poona”) (P80). Gujar said:
“Now as per this news two problems are involved.
(1) The course is in collaboration with Pune University.
2) Dr P H Kulkarni was Dean in February 1986.
Both claims are false. But it seems that Dr P H Kulkarni has thrown the blame on you. We fell (sic) to understand that who is at fault? ...
All my efforts are to establish direct relationship of Australian School of Ayurveda with Pune University. Even though it is out of its area of operation, it would be done as a special approval from Government.”
90 On 25 May 1989 (P141), an article appeared in the Indian Express headed “Ayurvedic course not illegal” and includes a letter written by Kulkarni. It refuted the suggestion that the course was illegal and referred to the visits of the various doctors to the school. The comment by a staff reporter refers to the three member inquiry committee headed by Gupte.
91 The Gupte committee eventually produced a report on 25 September 1989 and is referred to hereafter. It was the second report, the first being the Suru report produced on 26 April 1989 (D195). (See paras 102 and 103 infra.)
92 On 5 June 1989 (P78), Junius wrote to Gujar advising him that there was no need for any concern and that following Dr Bhagwan Dash’s suggestion they had contacted Kulkarni. He said that as Dean, Kulkarni had been principally involved in establishing the courses which had been running smoothly ever since and advising that:
“The certificate is not issued by the Institute of Indian Medicine, but by the Australian School of Ayurveda which is affiliated with the IIM. Dr Kulkarni signed the Certificates not as Dean of the Faculty, but as Director of the IIM, which is recognised by the University. ...
It would be good for our Institution to be affiliated to an Indian University, since Ayurveda originated there. Certificates, however, must be issued by the Australian School of Ayurveda, since this is an Institution recognised in this country.
Basically it matters little whether the affiliation is direct or through some other Indian Institute, as long as it is real moral support and in the interest of spreading Ayurveda.”
93 On 5 June 1989 (P82), Junius wrote to Kulkarni referring to the letter from Gujar, and said:
“... we accepted the syllabus as drawn by you, because of the limits of geographical jurisdiction which could not be extended to Australia. Instead the Australian School of Ayurveda would be affiliated with the University through the Institute of Indian Medicine, which is recognised by the University and was already affiliated. ...
We hope that this storm in a teacup will pass away quickly with all your help and management.”
94 On 20 June 1989 (P81), Kumar wrote to Gujar referring to the article in the Indian Express (P79), detailing answers to the questions posed and said (inter alia):
“We do not pay any salary or wages to the visiting lecturers. In the past we have paid airfares and reimbursed them the expenses they have incurred and provided them our hospitality. Our school is not aimed at making profits, therefore we cannot afford to pay salaries and wages.” (Tr 1208-1209)
95 Gujar did not have any further communication with ASA after 1989. He spoke to Hider in 1992 and also made submissions to the Kothari Committee which reported on 20 May 1993/ 3 June 1993. (See para 104 infra.)
96 In 1991, a new course commenced at the school with about 15 or 16 students, two of whom went to India in 1993.
The teachers at the school
97 Throughout this period, in addition to Kulkarni, a number of teachers from India attended at the school to give lectures. They included Professor Barde, a professor of the University of Poona and a teacher at Tilak, Professor Sardeshmukh, a lecturer from Tilak, Dr V V Bhagwat, a professor from the University of Poona and a lecturer at Tilak, Professor Shitre, Dean of the Faculty of Ayurvedic Medicine of the University of Poona, Professor Parchure, a former Dean of the Faculty of Ayurvedic Medicine at the University of Poona, Mr Kinjawadekar, Professor B B Date, a professor from Tilak, and Professor Randalkar, from the University of Bombay.
The reports
98 Between 1989 and 1993, a series of reports were produced in India which were primarily directed to the status of IIM but which are relevant to some of the issues which arose in this trial. Each of those reports was admitted in evidence as part of the historical sequence of events, but not as to the truth of its contents. They may be summarised as follows:
Suru Report, dated 26 April 1989 (D195)
99 This was a report of the Local Inquiry Committee in respect of the IIM and appears to arise in the context of the provisions relating to recognition of institutions as contained in s46 of the Poona University Act 1974. After a visit to the IIM on 26 May 1988 by four of the members of the committee, recommendations were made with respect to a number of matters, such as, the appointment of a fully qualified director of the institute, a deposit of funds, library books, building facilities and the obtaining of acceptance in writing of visiting staff members. One member of the committee was Palange who put in a separate letter (D177) as part of this report. He joined in the recommendations of the majority but added some further comments and recommendations of his own.
Gupte Report No 1, dated 25 September 1989 (part of D185)
100 The preamble to this report states that it is “The report of the committee appointed by the Vice Chancellor to consider the question of giving recognition to the Fellowship (FIIM) of the Institute of Indian Medicine, Pune for admission to the PhD degree in Ayurved of Poona University”. The Committee decided that the FIIM course was not up to the same standard in terms of content of the MD course in Ayurved as there was no written examination and no full time instruction and no procedure laid down for guiding students and evaluating theses. It determined that FIIM should not be recognised by the university for admission to the PhD degree in Ayurveda. The committee was also critical of research dissertations which had been written for the FIIM and expressed concern that FIIM had been awarded for work not written and submitted specifically for obtaining the fellowship.
Ekbote Report, dated 30 April 1992 (D178)
101 This was a Local Inquiry Committee which attended at the premises of the IIM in May 1992 for the purposes of inspection. It mentions that compliance with the conditions suggested in the Suru report had not occurred. They made adverse findings as to the facilities offered by the IIM. This committee recommended that IIM no longer receive recognition from the University of Poona, that no student be admitted for any course henceforth, that the university should take action with regard to the IIM’s brochures which were potentially confusing and misleading in that they advertise courses not recognised by the university under headings such as “Institute of Indian Medicine, Affiliated to Poona University”, and that the university should make a decision about students admitted to the IIM during the period 1987-1992.
Gupte Report No 2, dated 11 August 1992 (D185)
102 This appeared to be a follow up to the report previously prepared on 25 September 1989, following a complaint by Kulkarni as secretary of the IIM and V V Bhagwat as secretary of RSM that they had not been given the opportunity to have a say before the Gupte committee prior to the earlier report. Parchure was also given an opportunity to speak to the committee. The committee appears to have again visited the premises of IIM. The committee eventually found no reason to modify the recommendations contained in its first report.
Thatte Report, dated 17 March 1993 (P120)
103 This report states that pursuant to a letter from the university, a committee was formed to undertake “the task of inspection to examine whether the Institute of Indian Medicine, Kothrud, Pune fulfils the norms and conditions as laid down in section 46 of Poona University Act of 1974”. The committee’s terms of reference were, however, limited to PhD studies. A visit was made by the committee to a number of locations and eventually came to a unanimous conclusion that the IIM be allowed to continue as a recognised institute for PhD Ayurved work under s46 of the Poona University Act 1974, but recommended a number of improvements to the facilities and procedures.
Kothari Report, dated 20 May 1993 and 3 June 1993 (P175)
104 This is the report which was foreshadowed in the Messenger article (P8) on 14 October 1992. It was an interim report on the progress of the committee appointed to consider the issue regarding the IIM. It was produced on 22 August 1992 and a final report bearing the dates 20 May 1993 and 3 June 1993 was also produced. This committee was described as having been appointed by the Vice Chancellor to “examine issues regarding conduct of Australian School of Ayurveda, Adelaide on the basis of queries, reports appearing in newspapers both in India and Australia. Dr S T Gugar’s confidential reference ... faxed messages received from Professor - Peshotan Mehta, purported to be from the University of Adelaide, Australia, and various other letters received by the university from time to time”.
105 Gujar, Barde, Sardeshmukh, Parchure and Kumar all gave evidence before the committee. This committee finally recommended “that ASA put an advertisement in Australian papers saying that ASA is in no way affiliated/recognised or associated with the university of Poona and that any disrepresentation (sic) to the University of Poona is regretted, that IIM withdraw all letterheads with the statement ‘Affiliated to Poona University’, that recognised institutions be careful in using and advertising the fact of recognition - they must not use it for purposes other than for the purpose for which recognition is granted, ie can only advertise recognised courses with such a heading, that members of the university need to be educated re provisions of the University Act etc and have basic knowledge of the working of the institutions etc.”
Justification
106 Against that background, I now turn to issues raised by the defence by way of justification. Due to the multiplicity of topics covered by the defence I propose to refer to each of them in the approximate order that they appear in the written submissions of the defendants.
107 The defendants accept that P1 is defamatory. The defence case is that the plaintiffs, by claiming affiliation with the University of Poona, gave a false and misleading impression of the Australian school and its course, their motivation being to give credibility to their school by the use of the university name. The issue of justification must, however, be considered by reference to my finding as to the primary sting, ie, that the plaintiffs are “conmen or crooks”.
108 The defence seek to justify the following statements in P1:
(a) The $8,000 course.
(b) The teachers use false titles.
(c).... The qualifications awarded by the ASA are not recognised outside the school itself.
(d)A regular visiting lecturer is facing criminal charges in India.
(e)..... Poona University’s recommended price for the two year certificate that it designed is $50.
(f)Poona University’s highly respected Professor Dada Gujar.
(a) The $8,000 course:
109 Amanda Mehta claimed that she had been cheated into spending around $4,000 for a fake certificate. The record of payments made by her to the school is contained in P18. The total sum paid by her is $2,310. There is no record of any single or total payment by her to the school of $4,000. There is no evidence of any other money paid by her with respect to the course.
110 P1 contains three references to the sum of $8,000.
“Bogus medical school in $8000 course trap”.
“An Adelaide school of Indian medicine which charges up to $8000 for its courses ...”.
“The Australian school charges $1600 for its two-year certificate plus $400 for a basic sciences course. Its four-year diploma costs $8000”.
111 P85 is a syllabus for the CPA. It is undated but there is a notation on the last page which says “updated in 1986”. It states that the fees for the ayurvedic course are $400 per term and the course in basic sciences $100 per term.
112 P89 is described as the 1989 syllabus. It lists the fees for the ayurvedic course as $700 per term and basic sciences $200. Junius said that the increase in fees was proposed but not implemented (Tr 1791).
113 Ms Herft could not remember exactly what she paid but said at the time she thought it was “an extremely cheap course” (Tr 2284). She remembered it vaguely at around $300 or $350 per term. She conceded it could have been as much as $400.
114 Ms Parkin commenced her course in 1986. She paid $300 per term for each of the four terms of the CPA course which was a fee discounted by $50. She thought she had paid $400 per term for the diploma course.
115 Ms Lopresto said she paid $400 per term for the certificate course and a similar amount for the diploma course.
116 I am satisfied that during the relevant period, the maximum fee charged by the school was $400 per term, plus $100 for the science course, making a total sum of $2,000 to be paid to the school for each of the courses. There was, however, the requirement for a trip to India to take place in order to obtain the CPA or the diploma. Kumar agreed (Tr 111) that the $4,000 did not include the trip to India. There was no direct evidence as to the expenses associated with that trip. In cross-examination, however, Ms Lopresto conceded that $2,000 was a reasonable approximation of the costs associated with such a trip including the airfare and the expenses required for spending a month in Poona.
... We have neighbours, of course, and they said `Krishna, what is happening? Have you seen this'. I said that - I had to explain, the journalist that came, we were very kind to her. `I don't know what she writes' I said. Look, the next door neighbour is a nurse, and she said `I don't understand, what is happening?' The neighbours, the next morning the neighbours that passed by were looking at our building and pointing fingers at it. When we were going to the supermarket people would look and stare at us. I said `What is happening?' Not in that manner the way people were looking at us, and we were very very embarrassed, and my daughter who was then - she was about eleven and a half years, eleven and a half to twelve years. When she went to school they told her `What happened to your dad?' She was ashamed. And that is the hurt I will not forget, and I will do everything to get at the journalist and the Messenger, I will sacrifice everything to prove that it was wrong for them to do that. That was my daughter, I'm sorry.” (Tr 184-185)
253 Kumar was visibly distressed when he gave this evidence and I am satisfied the distress was genuine. He also felt angry when he saw the subsequent articles. He referred to the article “Qualifications not recognised: national therapists” which appeared in the article published in the Weekly Times Messenger on 19 August 1992. He said this was most damaging as the students were confused about whether their qualifications would be recognised.
254 For two months after the initial article was published, the plaintiffs were still receiving communications from people enquiring about what was happening. Kumar said that the effect on his daily life was (Tr 194):
“Very bad. We couldn’t understand, the sleeping, eating, just all the time worried what is happening, anger, writing to University of Poona and Dr Kulkarni, what is going on. We were simply disarrayed, the whole life was in disarray.”
255 Junius’ evidence was to a similar effect. He said that when he read the article P1, he was devastated. When asked whether the next day and ensuing days whether he had spoken to anybody about the articles he said (Tr 1736):
“A.... Well, I remember for instance the next day when I went down to my front garden I was watering my plants, and a lady from the neighbourhood passed by and I said `Good morning madam' and she said `Well, well you people, you, well, well, well.' She said pointing the finger at me like that (INDICATES), and overnight I was a cheat and a crook and a what not. It was a horrible experience to be suddenly be held out in public by a newspaper to be a cheat, I have a very very honest academic career, and I was very particular about my honesty and my position and I was reaching the age of retirement, and to get a thing like this in a public newspaper, to be accused like this, and then people pointing fingers at me, when I went to the supermarket, people talked behind their hand, of the neighbourhood, pointed their finger at me. I was a crook, I was a cheat, a fraud, a person associated with criminals overnight, despised by people, and thought of in these ugly terms what this Messenger had written here. I still shudder, believe me.
Q. Did you continue on with your work.
A....... It was very very difficult, very very difficult to do that. I tried but it was very very hard to pull myself together.”
256 Junius said health shops to whom they delivered their products, other colleagues in natural medicine, friends, all contacted them to find out what was going on. He also described the publication of the articles as having affected his life in every way. He did not like to go out. He stopped playing music and he went into a kind of withdrawal. I am satisfied that the pain and distress caused by the persistent publications in The Messenger was not limited to the period of the time covered by the publications but continued until the date of trial. This was particularly evident with respect to Junius. I think, however, that the damage to their reputation was more confined. They were able to start a new school in 1994 and the student numbers thereafter appear to be reasonably consistent with the numbers at ASA preceding the articles. Their other businesses also appeared to flourish thereafter. I also refer to the evidence of Kumar which appears hereafter (at 277), that there was a “marked decline but not a drastic decline” in the medical practice.
257 I agree with the plaintiffs’ submission that it is appropriate to assess each action separately. The publications are essentially, however, to two target audiences, that is, the readers of the Weekly Times Messenger and the readers of the City Messenger. P260 establishes that the total average net distribution for the Weekly Times Messenger at the relevant time was 42,051 and the City Messenger, 30,135. The rest of the publications, with some qualifications, simply repeat the principal allegations as appeared in the Weekly Times Messenger on 12 August 1992. In those circumstances, I consider that the substantive awards of action should relate to the second action, that is, the publication in the Weekly Times Messenger on 12 August 1992, and the third action, that is, the publication in the City Messenger on 19 August 1992.
258 In considering the quantum of general damages, both counsel referred to an extensive list of cases. Mr Harris in his submissions cautioned against having recourse to jury verdicts in other States and suggested that it was more appropriate to consider awards in this State. He referred, in particular, to Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152. Mr Harris pointed out that that case involved two publications in The Advertiser, a newspaper with more than ten times the circulation of The Messenger. In that case the Full Court made a finding of malice against the defendant which meant that the award represented a very upper end of the range of general damages. Petersen was awarded $85,000. Mr Harris also referred to Ninio v Southern Television Corporation Pty Ltd (J Anderson, delivered on 24 January 1997, D3552, unreported) in which the former Lord Mayor was awarded the sum of $20,000 for a serious defamation involving imputations of corruption in public office.
259 More recently the matter has been considered by the High Court in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37, 72 ALJR 1085. In that case, the primary judge awarded $75,000 for general damages for two articles. The Full Court, as a result of the rejection of the claim for economic loss, reduced the award and in the course of their reasons referred to the primary judgment assessment of $75,000 as “a high one”. In the High Court, Kirby J referred to that statement and said (para 179)
“I cannot agree ... It may have been so regarded in South Australia where defamation actions are tried by judge alone and appear to be comparatively rare. But in comparison with judgments returned in other parts of Australia, the award for general damages appears insufficient to the wrongs which were found.”
And (para 184)
“... There may be reasons for variations in damages awards for particular wrongs in different parts of Australia. But variations in the award of general damages in defamation to the extent evident in this case is not justified. Least of all is it justified given that the primary judge thought that the wrongs found demanded ‘substantial damages’. By modern Australian standards the awards of general damages made here were parsimonious.”
260 The High Court ordered the matter remitted for further hearing and determination by the Full Court. Subsequently, in applying the reasons of the High Court, Doyle CJ and Perry J in a joint judgment (14 October 1998, S6901, unreported) usefully summarise a number of the cases to which I was referred. I therefore adopt their remarks which appear at paras 68-75 et seq:
“In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 the High Court upheld a decision of the Court of Appeal of New South Wales setting aside as excessive damages awarded by a jury. In the course of considering whether the verdict was excessive, Mason CJ and Deane, Dawson and Gaudron JJ referred to the purposes to be served by damages awarded for defamation in a case in which no claim is made for particular economic loss. We treat what they say as applicable to the aspect of damages now under consideration. They said (at 60-61):
‘Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations”. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant’. (Footnotes omitted.)
The submissions by the parties in this case canvassed the relevance of awards of damages in person injury actions. In Carson the same members of the High Court dealt also with this issue. Their Honours held that it is permissible, and indeed appropriate, for an appellate court considering an award of damages to bear in mind the scale of awards in cases of serious personal injury. Their Honours said (at 57-58):
‘In Coyne, Mason CJ and Deane J considered that it is legitimate for an appellate court considering an appeal against the quantum of damages in a defamation case to bear in mind ‘the scale of values’ applied in dealing with appeals in cases of serious physical injury. There is no occasion here to repeat the reasoning advanced in support of that conclusion. That conclusion does not deny that the harm suffered in defamation cases differs from the ‘tearing of flesh and bone and the pain of body’ suffered in personal injury cases nor that ‘precise comparisons’ should not be drawn between the different types of cases. But for an appellate court which must test the quantum of a defamation award against some criteria to be prohibited from considering awards of general damages in personal injury cases would exclude reference to a potentially relevant criterion.’ (Footnotes omitted)
As we understand their Honours, their approach is summarised by the following short statement (at 58-59):
‘And the foundation of that relationship must be the scale of awards for general damages in cases of serious physical injuries which, in their severity and disabling consequences, transcend injury to reputation.’ (Footnote omitted.)
We apply these principles in considering the award of damages for loss other than loss of earning capacity in the present case. We bear in mind the general scale of damages awarded for serious personal injury. However, we make it clear that we regard such matters as providing no more than very general guidance. Perhaps it will help if we indicate that by way of general damages for loss other than loss of earning capacity, counsel for the plaintiff sought an award of $500,000. A consideration of the amount awarded in personal injury cases leads us to the conclusion that such an award would be excessive.
We have given some thought to the decision of the High Court in Coyne v Citizen Finance Limited (1991) 172 CLR 211. In that case the plaintiff was a property developer, promoter and marketer. An article published in a daily newspaper attributed fraud to the plaintiff in the conduct of his business. In the words of Toohey J (at 233):
‘The publication was therefore seriously defamatory of him in a way that went to his business reputation, as well as his personal reputation, and was therefore likely to have an impact on his capacity to earn.’
It was not a case in which the plaintiff contended for specific financial loss as a result of the defamatory publication. However, it was a case in which the majority of the High Court considered that the jury were entitled to find that the plaintiff had lost income as a result of the publication: Toohey J at 233, McHugh J at 241. It was held that an award of $150,000 by way of damages was not manifestly excessive. We bear that in mind.
In that case the High Court referred also to the use that may be made by a Full Court, in considering an award of damages, of standards that prevail in the State in question. Mason CJ and Deane J, who dissented in the result, said this (at 214):
‘A decision by an appellate court that a jury’s award of damages for defamation should not be allowed to stand necessarily involves an element of value judgment. Such a decision may properly be influenced by local community circumstances and standards about which a member of a State or Territory Supreme Court will ordinarily be much better informed than a member of this Court. The question for this Court on an appeal from the Full Court’s decision in such a case is whether the Full Court fell into error in reaching the conclusion that it did. In resolving that question, it is important that this Court give due weight to the views of the local Full Court about the permissible range of damages in the circumstances of a particular case before superimposing its own views. It is also important to identify with some precision the question which arose for the determination of the Full Court.’
Dawson J agreed with the reasons of Toohey J. Toohey J (at 222) referred to the fact that by Western Australian standards the award was ‘very high’, but went on to hold that the Full Court had erred in setting aside the jury’s award. McHugh J said (at 239-240):
‘However, the reasonableness of this jury's verdict is to be determined by the standards which prevail in Western Australia and not by the standards which prevail in New South Wales or, for that matter, any other State of Australia.’
But he went on to say that jury awards were relatively rare in Western Australia, and that being so a Full Court should be ‘slow to condemn’ a jury verdict as unreasonable.
Counsel for the defendant provided the Court with a schedule of awards of damages made for defamation in the States and Territories of Australia. We must say that we find the process of comparison extremely difficult, when allowance is made for the different circumstances of each case, and the limited number of cases that are available to be surveyed. Our impression, and it really is no more than that, is that awards in this State have been relatively modest. We refer to Petersen v Advertiser (1995) 64 SASR 152 where an award of $85,000 was made. My belief is that that was regarded as a substantial award. It pales into insignificance when compared with jury awards in particular, made in other States, but we are by no means sure that much can be made of that sort of comparison.
We have considered the decision of the Court of Appeal of New South Wales in Crampton v Nugawela (1996) 41 NSWLR 176. There the Court of Appeal declined to set aside, as excessive, an award of $600,000 made by a jury in favour of a medical practitioner. By reason of the jury’s verdict the defendant, another medical practitioner, was to be taken to have accused the plaintiff of lying in respect of a matter going to the plaintiff’s professional conduct, and to have persisted in that accusation of a long period and without any justification, for purposes which involved his own self-advancement. It was a case in which it was open to the jury to have included a substantial sum in respect of economic loss. It is this in particular which makes the process of comparison so difficult. However, we do note that Handley JA (at 197) and Giles A-JA at 202 were of the opinion that the jury might have awarded about $278,000 for economic loss, and therefore proceeded on the basis that the award for non-economic loss might have been of the order of $300,000. As well as bearing this figure in mind, we have given careful consideration to the observations made by the members of the Court of Appeal, in particular Mahoney ACJ, in relation to the assessment of damages in such cases
We are cautious about putting too much weight upon a jury verdict as setting a standard for the assessment of damages by a judge sitting alone. Defamation cases are tried by judge alone in this State. We are also inclined to the view that, to the extent that Crampton v Nugawela sets standards, it sets a standard which has not prevailed in this State. We are nevertheless influenced by that decision, and by a more general consideration of damages awarded in other cases, to come to the conclusion that it would be appropriate to increase the level of damages awarded in this State for defamation.”
261 In applying those principles to Chakravarti, the Court said:
“We return to the present case. We remind ourselves, first of all, of the purpose of the award of general damages. We bear in mind amounts awarded for pain and suffering in the cases of serious personal injury. We remind ourselves of the general level of awards in this State, but emphasise again that the number of cases is relatively small and does not provide much by way of guidance. We bear in mind, as best we can, the level of awards in other States and in the Territories of Australia. We consider the nature of the injury done, and the importance of the need for vindication as well as consolation for personal distress and hurt. We remind ourselves that the damage to the plaintiff’s reputation was damage of a type to which a person working in the finance industry would be particularly vulnerable, because it was damage to his reputation for honesty.”
262 The Court then increased the primary award of $75,000 to $125,000 and allowed an extra sum of $15,000 for circumstances of aggravation. Taking all these matters into account, I assess general damages in this matter as follows:
First Action
263 This is the action against Amanda Mehta alone and relates to the statements made to Hider on 11 August 1992. In the scheme of things, this was not a significant matter. I therefore assess the damages with respect to this action in the sum of $100. I further assess the damages against Amanda Mehta with respect to the re-publication of those statements in the Weekly Times Messenger on 12 August 1992 in the sum of $20,000 That sum will form part of the award against the defendants in the second action. Amanda Mehta will be jointly and severally liable with the defendants with respect to that amount.
Second Action
264 As I have mentioned, this is the substantive cause of action against the defendants. It relates to the series of articles which appeared in the Weekly Times Messenger on 12 August 1992. The front page headline was “Bogus medical school in $8,000 course trap” “Special Investigation by JOANNE HIDER”. The Mehta conversation with Hider was published under the heading “Legal Advice sought over ‘academic charade’”. Under the heading “Poona Uni” was the statement “Fight over ‘misuse’ of name”. The front page also included the photograph of the plaintiff Kumar and the headquarters of the school. On p5 of the same edition under the heading “RIGHT OF REPLY”, appeared the statement “Claims part of ‘great intrigue’”. Under the heading “INDIAN PRESS” was an article “Newspapers keep close watch”. Under the heading “THE SCHOOL” was the article “Diploma course costs $8000”. There was a further photograph of the plaintiff Kumar and also a photograph of Junius. This publication was distributed to approximately 40,000 homes, and was a serious defamation consisting as it did of allegations of criminal conduct. I assess damages in the sum of $120,000. This includes the $20,000 awarded against Amanda Mehta for which the parties are jointly and severally liable.
Third Action
265 This relates to the publication in the City Messenger on 19 August 1992, ie, one week later. It was a smaller publication in which only the article headed “Bogus medical school’s $8000 course trap” from the preceding week was repeated. This was a significant addition, however, to the original injury as it was published to approximately 30,000 more homes. This publication did not include a right of reply. I assess damages with respect to this article in the sum of $80,000.
Fourth Action
266 This relates to P5 and is the publication in the Weekly Times Messenger on 19 August 1992 under the heading “THE POONA AFFAIR” “‘Ethical fraud’ probe in India” “Threat over Adelaide base”. It includes a copy of the front page report from the Weekly Times Messenger on 12 August 1992. Essentially it repeats the allegations contained in the earlier edition. It does, however, add to the injury by including a further article headed “Qualifications not recognised: national therapists”. I assess damages with respect to this action in the sum of $40,000.
Sixth Action
267 This relates to the article which appeared in the Weekly Times Messenger on 26 August 1992 under the heading “Decision in 10 weeks on Indian school”. The first paragraph of that article reads: “A DECISION ON WHETHER AN Australian school of Indian medicine is misusing an Indian University’s name will be handed down by the university in 10 weeks”. It then essentially repeats the allegations contained in P1. I assess damages with respect to this matter in the sum of $15,000.
Seventh Action
268 This relates to the article appearing under “LETTERS TO THE EDITOR” in the Weekly Times Messenger on 9 September 1992. It is the letter written by Ranade and Gujar under the heading “Indian link back charges against Ayurveda school”. I assess damages with respect to this article in the sum of $15,000.
Eighth Action
269 This relates to the article which appeared in the Weekly Times Messenger 14 October 1992 under the heading “Indian consulate asked to help in school issue”. Essentially this article repeats the original allegation from P1. I assess damages with respect to this article in the sum of $15,000.
(c) Special or Actual Damage:
270 The plaintiffs also claim a substantial award for economic loss. Para 28 of the statement of claim gives particulars with respect thereto. It states that as a consequence of the publications no students enrolled at the school in 1993 and that the loss of fees as a result thereof is not less than $40,000. The pleadings also refer to a drop in consultations in the medical practice and estimated that following the articles the number had fallen by more than 12 per month and had continued to decline. It was estimated that the loss was not less than $300 per month since publication. There is also a claim with respect to a decline in sales of medicines and herbal products.
271 The evidence in support of this claim is, however, scant. As can be seen, the plaintiffs conducted a mix of businesses at the Ridleyton address viz the school, the medical practice and the Australerba business. P108 is the plaintiffs’ partnership return for 1989. The partnership income is described as being from “herbal products manufacturer and ayurveda school”. It includes a balance sheet and profit and loss statement for the school which gives a net profit for the school of $6,032.
272 P109 is the joint 1990 balance sheet but it only refers to Australerba. Similarly, P110 (1991), P111 (1993), P112 (1994) and P113 (1996) refer only to Australerba. P114 is a summary of total sales figures for Australerba for the period 30 June 97 to 30 June 1998 inclusive. That shows the sum of $119,680 for the year ending 30 June 1991. In 1992 the figure is $78,841, and in 1993 it is $60,000. It increased to $219,562 in 1994. Thereafter it went down to $60,105 in 1995 and went up to $86,092 in 1996.
273 The plaintiffs submitted that the lack of student interest in 1993 was the result of the Messenger articles. Mr Heywood-Smith suggested that a figure of about 1,000 per annum per student was appropriate. Further, the students who might have commenced in 1993 would have continued in subsequent years. Hence the sum of $40,000 set out in para 28 of the statement of claim was an appropriate award.
274 The plaintiffs also made a claim for loss of practice income. I am asked to infer that their practice was affected (Tr 2259). $10,000 is suggested under this head of damage. In addition the plaintiffs submitted that damage to Australerba was an expected consequence of the articles. They referred to the figures in P114. On the basis that one-third of the gross amount would relate to production costs Mr Heywood-Smith suggested a sum of $50,000 with respect to Australerba. This makes a total sum of $100,000 sought by way of economic loss arising out of all causes of action.
275 There is, however, a paucity of evidence to support the claim for economic loss. I was not provided with any breakdown in the figures between the three businesses. The only financial records which relate specifically to the school are those contained in P108 and they relate to 1989 (which is the year when Junius was writing to Gujar and describing the school as a non-profit business).
276 I accept that there was a lack of students in 1993 as a result of the publication of the articles, but the evidence in support of the consequent loss are unsatisfactory. The only figure I have been given in relation to the school is the 1989 figure in P108. The plaintiffs started the Australian academy in 1994. There were about 15 students in that year, 17 in 1995, 15 in 1996 and about the same number in 1997. In 1998 there were about 14. These numbers seem to be roughly the same as those attending the school prior to the publication of the articles. It seems, therefore, that the plaintiffs managed to get the new school running fairly quickly and, as a result, mitigated their loss. The loss would appear to be represented by those students who would have started in 1993, that is, about 15. Not all of those students would have completed the CPA course and many would not have proceeded to the diploma course. In view of the state of the evidence as to this matter, I believe I have no choice but to take a broad axe approach to this part of the award. I fix the sum of $20,000 with respect to economic loss to the plaintiffs’ school.
277 Kumar’s evidence about the practice (Tr 2060) was that following the publication of the articles there was a decline of patients “but what used to happen is that patients, they knew us so they had confidence, but there was a marked decline but not a drastic decline, I would say”. Kumar was referred to P114 which only relates to Australerba. He was asked to explain the variation in figures. He said in relation to the drop from 1991 to 1992 (Tr 210):
“A.That’s the time when we were renovating and were reconstructing the building at 27 Blight Street, and we took quite a lot of time to do that, so we were very much engaged in the reconstruction work there complying with the Therapeutic Goods Administration.”
278 By reference to 1994, he said (Tr 210):
“A.... ...the reason being that in 1993 our sales dropped dramatically, and we were very worried what was going on, so we concentrated, fortunately, with our Japanese client, we made a special deal saying that we will sell the products cheaper so that he could import a bit more, so that was the reason that we did, mainly because of the Japanese client, that we had that, and also because the domestic sales were very much affected at that time.
Q.In the years since 1992 financial year, have you continued to market your products, the Australerba products on the market.
A....... Yes.
Q.In the same way as prior to 1992.
A....... Yes.
Q.And have you had any supply difficulties.
A....... From our side?
Q.That might explain the reduced domestic sales figures.
A....... It is more towards the demand more than the supply. 1992, of course, we were very busy in reconstructing the facilities there, but when the article came, there was a considerable reduction of sales there, and from the supply point of view, from our side we had a better facility, so we could supply to our clients as much as they demanded, so there was no problem there, but the demand had reduced.”
279 In my view there is insufficient evidence to establish any loss to the practice and I am not persuaded that it is appropriate to make any award as to Australerba. Australerba was not mentioned in any of the articles, but in any event, the only evidence as to any effect on that business is that of Kumar to which I have referred. That, combined with the sharp increase in sales in 1994, suggests that the variation in sales may well have been related to business matters, such as the reconstruction of the facilities, unrelated to the Messenger articles. Mr Heywood-Smith suggested that one-third of the gross amount would be accounted for by production costs but I consider that if P114 was to be the basis of the calculation of an award as sought then some better analysis of the figures should have been given in evidence. Mr Heywood-Smith in his submissions referred to the decision of the High Court in Commonwealth v Amann Aviation (1991) 174 CLR 64 at 83:
“The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can ... Indeed, in Jones v Schiffmann (1971) 124 CLR 303 at 308 Menzies J went so far as to say that the ‘assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation’. Where precise evidence is not available the court must do the best it can ...; Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at 438 per Devlin J. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages, see McGregor on Damages, 15th ed (1988, pars 357-359.”
280 In the present case, however, it is not so much the difficulty of assessing an appropriate amount but the lack of evidence to establish that either the practice or Australerba did in fact suffer a loss attributable to the publication of the articles. To make an award on the evidence that has been led would, in my view, be entirely speculative and therefore inappropriate. Special damages are therefore limited to the sum of $20,000 already assessed with respect to the school.
(d) Aggravated and exemplary damages:
281 In support of these claims, the plaintiffs relied on proceedings to trial and the conduct of the trial including the following:
(a).... Inadequate investigation of the story by Hider (this includes her refusal of the invitation to interview students of the school).
(b).... Hider’s failure to put the sting of the proposed article to the plaintiffs with no opportunity to respond.
(c).... The selective nature of the right of reply.
(d).... The refusal by Ryan to publish apologies or answering material.
(e).... Ryan’s failure to correct the misinformation concerning Gujar.
(f)..... The failure of the defendants to publish the findings of the Kothari Committee.
282 Hider was responsible for the research with respect to these articles. At the relevant time she was only a cadet journalist. She was, however, supervised by Ryan, a very experienced journalist, who had been the editor-in-chief of the Messenger since about 1984 or 1985. Hider spoke to many people in the course of researching the story. For example, she spoke to the two Mehtas, to Gujar, Ranade, Mira Joshi of the Indian Express newspaper, Mr Patki, Deputy Superintendent of Police in the Maharashtra State, Brian Smith of the Fraud Squad in Adelaide, Marni Morrow of the NPA, Professor Palange and the Immigration Department.
283 The thrust of the story was, however, that the plaintiffs were defrauding students at the school by claiming a false affiliation with the University of Poona. It is extraordinary, therefore, that at no time did she speak to any student from the school, nor any representative from the university. She did not speak to Kulkarni nor any of the other people who had taught at the school. In addition, she attacked the qualifications of the plaintiffs, to a large extent, as a result of information obtained from the Mehtas and Morrow, whose own qualifications were suspect. Morrow claimed that she had been misquoted by Hider in the article which appeared in the Messenger on 19 August 1992, but Morrow was such an unreliable witness, I am not prepared to accept her evidence as to that matter. It does, however, highlight her unreliability as a source of information and the requirement for Hider to have more carefully researched the story. Hider was clearly uncomfortable at the meeting with the plaintiffs at their school. I am satisfied that she only looked at the documents they produced to support their qualifications in a cursory manner. She raised the issue of affiliation with Poona University with them but failed to put the sting of the proposed article to them. The plaintiffs were therefore denied the opportunity to respond to allegations of serious criminal conduct. The defendants were selective with respect to the right of reply. It did not appear at all in P3. In addition, a number of letters written to the Messenger to support the plaintiffs were not published. P15 was from the students of the school, P16 was from Diophode as principal of Tilak, P100 from Peter and Michele Helman, P101 from Adriana Poehlmann, P105 from Ranade apologising for what occurred, and P106 from Palange, similarly recanting and referring to Amanda Mehta’s “evidently false accusations”.
284 Ryan said (tr 2448) that he did not publish the students’ letter because he believed “that it was prejudicial to our case” and he considered (tr 2463) “it was a put up job”. He also described it as a “contrivance”. He appears to have adopted the same attitude to all other correspondence which supported the plaintiffs. The only published letter which supported the plaintiffs was that which appeared in the Weekly Times Messenger on 19 August 1992 (P4) and Ryan saw fit to add an editor’s note designed to diminish the effect of it. On the other hand, he had no compunction in omitting the postscript from Gujar’s letter (P7) which corrected the misinformation as to his link with the university. I am satisfied that he did so because that would have undermined the credibility of the story. P6 and P8 both foreshadowed the finding of the Kothari Committee and that report was subsequently received by the defendants. While that committee did not completely exonerate the plaintiffs, in the sense that it recommended that the school stop referring to the affiliation with the university, it did not make any adverse finding against them as to fraudulent intent which would be consistent with the sting of the articles. It would therefore have been appropriate to publish the findings of that committee.
285 I therefore consider that this is an appropriate case for an award of aggravated damages. I do not, however, consider that the attitude of the defendants extended to the “conscious wrong-doing and contumelious disregard of another’s rights” as referred to in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118. I consider that the award of ordinary and aggravated damages in this case will act as sufficient punishment and deterrent with respect to the conduct of the defendants.
286 I assess aggravated damages in this matter in the sum of $100,000, of which $30,000 will relate to the second action, $20,000 to the third action, and $20,000 to the fourth action. I somewhat arbitrarily apportion the remaining $30,000 equally between actions 6, 7 and 8.
Summary
287 There will be judgment against Amanda Mehta in the sum of $20,100.
288 There will be judgment against the defendants in the sum of $405,000 calculated as follows:
Second Action: General damages $120,000 Aggravated Damages $30,000
Third Action: General damages $80,000 Aggravated Damages $20,000
Fourth Action: General damages $40,000 Aggravated Damages $20,000
Sixth Action: General damages $15,000 Aggravated Damages $10,000
Seventh Action: General damages $15,000 Aggravated Damages $10,000
Eighth Action: General damages $15,000 Aggravated Damages $10,000
General Economic Loss (all actions): $20,000
_______
TOTAL: $405,000
289 I will hear counsel as to costs and interest.
8
0