Kailash Center for Personal Development Inc v Yoga Magik Pty Limited
[2003] FCA 536
•30 MAY 2003
FEDERAL COURT OF AUSTRALIA
Kailash Center for Personal Development Inc v Yoga Magik Pty Limited [2003] FCA 536
TRADE PRACTICES – misleading or deceptive conduct – false association of an applicant with respondents’ business – injunctive relief – domain names deregistration – false or misleading – instruments of deception.
Trade Practices Act 1974 (Cth) s 52
Fair Trading Act 1987 (NSW) s 42Jones v Toben [2002] FCA 1150 applied
Henderson v Radio Corp Pty Ltd (1960) 60 SR (NSW) 576 referred to
Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 referred to
Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553 referred to
Twentieth Century Fox Film Corp v The South Australian Brewery Co Ltd (1996) 66 FCR 451 referred to
McIlhenny Co v Blue Yonder Holdings Pty Ltd (1997) 149 ALR 496 referred to
Britt Allcroft (Thomas) LLC v Miller (2000) 49 IPR 7 referred to
Miller v Britt Allcroft (Thomas) LLC (2000) 52 IPR 419 referred to
S & I Publishing Pty v Australian Surf Life Saver Pty Ltd (1998) 168 ALR 396 referred to
Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45 referred to
CSR Limited v Resource Capital Australia Pty Ltd [2003] FCA 279 followed
Glaxo Plc v Glaxowellcome Ltd [1996] FSR 388 followed
Direct Line Group Ltd v Direct Line Estate Agency [1997] FSR 374 followed
Marks and Spencer v One in a Million (1999) 42 IPR 309 followed
Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 3 IPR 619 referred toWadlow The Law of Passing Off (2nd Ed)
KAILASH CENTER FOR PERSONAL DEVELOPMENT INC & ANOR v YOGA MAGIK PTY LIMITED & ORS
N 20 of 2002ALLSOP J
30 MAY 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N20 of 2002
BETWEEN:
KAILASH CENTER FOR PERSONAL DEVELOPMENT INC
FIRST APPLICANTJONN MUMFORD
SECOND APPLICANTAND:
YOGA MAGIK PTY LIMITED
FIRST RESPONDENTMEGHAN STEVENS
SECOND RESPONDENTQUALITY TECH PTY LTD (ACN 002 700 521)
THIRD RESPONDENTJUDGE:
ALLSOP J
DATE OF ORDER:
30 MAY 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicants file and serve on the respondents, through the second respondent, on or before 4 pm Friday 6 June 2003, draft orders proposed by them conformable with the reasons herein.
2.The proceedings stand over to a date to be fixed for the making of orders and any argument in relation to the form thereof, including as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N20 of 2002
BETWEEN:
KAILASH CENTER FOR PERSONAL DEVELOPMENT INC
FIRST APPLICANTJONN MUMFORD
SECOND APPLICANTAND:
YOGA MAGIK PTY LIMITED
FIRST RESPONDENTMEGHAN STEVENS
SECOND RESPONDENTQUALITY TECH PTY LTD (ACN 002 700 521)
THIRD RESPONDENT
JUDGE:
ALLSOP J
DATE:
30 MAY 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicants seek to restrain the respondents from so carrying on and publicising the business as conducted by them under the name “Yoga Magik” as associates the second applicant with the respondents’ business.
The second applicant, Jonn Mumford, who refers to himself using “Western” appellation as Dr Jonn Mumford, has had a long career, from the late 1950s, as a student, author, lecturer and teacher in yoga and the traditional Hindu spiritual tradition. He is also known as Swami Anandakapila Saraswati. There appears to be no real dispute that the second applicant is a direct disciple of two well known and eminent Indian Swamis: Swami Gitananda Giri and Swami Satyananda Saraswati. The Giri and the Sarawati orders were two of the ten traditional Hindu monastic orders. Nor does there seem to be any dispute that the second applicant has published a number of books and has achieved a level of notoriety and esteem amongst people conversant in Australia and elsewhere with yoga and “Eastern” spiritual teaching. The respondents object to the second applicant using the honorific “Dr” for reasons which I need not consider or decide upon. It is sufficient to note that the second applicant has been called “Dr Mumford” publicly for some time including during his association with the respondents. I will refer to him, without the slightest disrespect intended, as Mumford.
On 9 November 2001, the first applicant and Mumford entered into an agreement by which the first applicant acquired the right to exploit the reputation of Mumford. The first applicant subsequently established an internet based business promoting Mumford and Mumford’s teachings. Each of Mumford and the first applicant has a real interest in the prevention of conduct, if it be misleading or deceptive or likely to mislead or deceive, which would associate Mumford with the business of the respondents that is also conducted on the internet.
background
In mid 1996 Mumford began to teach the second respondent (Ms Stevens) who had sought him out for this purpose. Ms Stevens had had an interest in yoga for some years, and had undergone some teaching by others in the past. Soon thereafter, Ms Stevens began to assist Mumford in various tasks including the organisational aspects of his activities, in particular the advertising and organisation of his seminars. Ms Stevens would have it that her role was wider than this, but in the early months, at least, it was likely to have been so limited, as long as “organisation” is taken to include a degree of writing and executive skill.
By the beginning of 1997, Mumford and Ms Stevens had embarked on a joint enterprise. It is unnecessary to be too precise as to its terms, since the parties themselves at the time were not. On 8 January 1997, they registered “Mind Magik 8”, through the entity Mind Magik 8 Pty Limited, which later changed its name to Yoga Magik Pty Limited (this being the first respondent). Mumford was issued with 49% of the shares. Ms Stevens effectively controlled the balance.
The enterprise was essentially the development and commercial distribution of courses prepared (at least in significant part) by Mumford, with (at least) the clerical, organisational and editing assistance of Ms Stevens. These courses, based on written lectures of Mumford, were offered on the internet on commercial terms, as distance or correspondence courses. I will come to the website in its various forms in due course, but it is fair to say that the marketing or promotion of the courses heavily emphasised the experience, learning and wisdom of Mumford as a Swami, not Ms Stevens. His repute and learning was, in significant respects, what was being exploited.
By mid 2001, the relationship between Mumford and Ms Stevens had broken down. At this time, Mumford made it plain that he no longer wished to be associated with Ms Stevens or Yoga Magik Pty Limited. It is fair to say that Mumford could not be described as a man of business. His interests and predilections were for the understanding and practice of yoga and spirituality. Whilst keeping on students who had enrolled with Yoga Magik in the second half of 2001, his parting simply involved leaving and disassociating himself from the Yoga Magik business. There was no attendance by him to any commercial detail of the separation, though in due course he transferred his 49% of the capital of the first respondent to Ms Stevens.
During the period of their co-operation, lectures of Mumford were published on the internet. Ms Stevens claims to be a “co-author”. Mumford would concede, at least, that she played an editorial role (which was how Ms Stevens’ role was described before the rupture of the relationship).
The resolution of the whole controversy does not require me to deal with any intricacies of contract, company or copyright law. Mumford does not seek to prevent Ms Stevens or the respondents conducting a yoga school, nor does he seek to prevent them publishing and selling his lectures, with due attribution. Rather, the issue before me is whether the respondents have, in the way their website has been and is displayed (a matter within the control of Ms Stevens alone, subject to the vagaries of the workings of the internet), engaged in conduct which was, is, and threatens to be, misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the TP Act) and s 42 of the Fair Trading Act 1987 (NSW) (the FT Act).
Thus, now that Mumford has entirely disavowed any continuing business relationship with any of the respondents, but accepting that no claim is made to restrain the dissemination of the lectures largely prepared by Mumford the issue, generally speaking, is whether or not any of the respondents has engaged in conduct in trade or commerce that has misled or deceived a relevant section of the public by causing people to think that Mumford is commercially associated with, or has given approval for, the Yoga Magik business, and whether or not they will be likely to engage in such conduct in the future.
With that explanation by way of background, it is now necessary to be somewhat more specific about the matter; though, before doing so, I should raise three further background matters. First, I rejected a large body of evidence that Ms Stevens sought to tender and lead about personal and sexual matters relating to her and Mumford. It is no part of the relevant issues on the pleadings to understand that the relationship between Mumford and Ms Stevens was more than based in business. The one exception to this proposition is that each gave evidence. Ms Stevens, appearing for herself, cross-examined Mumford. It is sufficient to say at this point that there was some bitterness and intensity in the evidence and that the manner in which some of it was given makes me very cautious about contested oral evidence from both Mumford and Ms Stevens. However, by and large, it is unnecessary for me to resolve any dispute about a matter resting only on oral evidence.
Secondly, it is also fair to say that there arose in the evidence, in particular through Ms Stevens (no doubt because of her unfamiliarity with the process of litigation), a great many factual matters which ultimately have no bearing on the outcome of the case. I do not propose to attempt to reconcile all the differences about factual matters. I propose to deal only with what is necessary to adjudicate on the relief claimed. I should add in this context that Mr Webb SC, who appeared for the applicants, at all times sought to limit the matters dealt with by him to essentials. I should also add that notwithstanding the putting forward by Ms Stevens of extraneous factual matters, she did attempt to be precise and focussed in her written submissions.
Thirdly, the extent of the factual matters raised and the falling away of some of the claims of the applicants may necessitate some further debate about costs.
the claims of the applicants
The claims, as ultimately formulated in the written submissions, were as follows. The first and principal claim was for an order that the respondents place on the Yoga Magik website (the identity of which I will deal with in due course) and at various places on the website a notice which is clearly legible and which is in the following terms:
Important Notice
1.Dr Jonn Mumford (Swami Anandakapila Saraswati) is not associated in any way whatsoever with Yoga Magik.
2.Dr Mumford has no control over the content of this website or the information contained in it.
3.Meghan Stevens (Gayanend) is not a lineage holder from Dr Jonn Mumford and is not authorised or empowered by him to teach the matters the subject of the (two courses).
4.Dr Mumford can be contacted at align="left">[emphasis in original]
The second claim was that the respondents take all necessary steps to cancel a domain name and a sub-domain name that contain the words “jonnmumford” and “mumford” and not re-register any such name.
The third claim was for a more general order that:
the respondents be restrained by themselves, their servants or agents from representing in trade or commerce that the second respondent has been given authority or permission to teach any of the correspondence courses referred to on the pages [of the website the subject of the principal claim.]
The applicants also seek damages.
the development of the dispute and the state of the website in 2002
The complaints of the applicants have always centred upon the content of the Yoga Magik website controlled by the respondents. This website has an “address” on the internet of
It is unnecessary to deal with the evidence about the nature of the internet. I propose to follow the course taken by Branson J in Jones v Toben [2002] FCA 1150 at [64] and [65] about the nature of the “internet” and the “world wide web”, where her Honour said:
[64]Section 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”), in my view, renders proof of the nature of the Internet and the World Wide Web unnecessary for the purposes of this case. The general nature of both the Internet and the World Wide Web is now well known. The Canadian Human Rights Tribunal in Citron v Zündel (No. 4) (2002), 41 C.H.R.R. D/274 (C.H.R.T.) at [60] described the Internet as follows:
“The Internet is a means of global communication that relies on a universal set of protocols or standards for the transmission of information. Two related sets of communication instructions, Transmission Control Protocol, (TCP) and Internet Protocol, (IP), govern how information will move through the system, defining addresses, routing systems, and all the regulation necessary to permit communication among users.”
[65]At [67] the Tribunal described the World Wide Web in the following way:
“The World Wide Web, (the "Web"), is a specific application that uses the Internet to send and display data, including text, graphics, audio and video. There are two active components on the Web: a server that stores and transmits information, and a client or browser that requests, receives and displays the information obtained from the server. A "web site" is a collection of computer files that are coded in a specific way … to allow information to be sent on request to a browser. The files are then displayed in a way consistent with the instructions provided by the creator of the web site. Every web site has a unique Uniform Resource Locator (URL), akin to their Internet address. Once connected to the Internet, the URL … is necessary to gain access to a given web site ….”
There was evidence, which I accept, that the website, at all material times, was largely available to the casual internet user. There was no real issue tendered before me about this question.
The evidence made clear that the website was conducted in trade or commerce. There was no issue about this.
There were some disputes about the detail of the operation of web-sites, about which Ms Stevens displayed a close familiarity. It is not necessary, however, to resolve these. One matter that was discussed should be raised. I accept what Ms Stevens said that changing the website at any particular time would not necessarily bring about an immediate and comprehensive change to the website, as it might appear throughout the internet. Past forms of the site may exist stored in caches in unknown places and may be accessible and accessed by some people in a way beyond the control of the person in charge of the website in Australia. That, it seems to me, is a very relevant factor in the form of any orders which I find should otherwise be made by me. It is important not to frame the orders in such terms as are impossible of compliance. At the same time, the possible continued existence of past forms of the website make it all the more important that such correction as can be ensured is done clearly and for a sufficient period of time to overcome this difficulty.
The three exhibits disclosing the website were Exhibits A, B and MM2A (1-103). Exhibit A was a paper printout of at least parts of the site as at May 2002. Exhibit B was a printout of at least parts of the site as at October 2002. Exhibit MM2A was a printout of at least parts of the site as at April 2002. There was other evidence of the site at different times, though not in this reasonably comprehensive format. I will refer to “pages” of the website. By the word “page” I am not referring to one sheet of paper reproduction; rather I am referring to sections or chapters of the site, separately appearing as a whole sub-unit on the website, which may be reproduced on a number of sheets. One moves from one page to another on the website by “clicking on” a picture or word that operates as a link or by merely moving back and forth between successive “pages”. The bulk of Exhibits A, B and MM2A (1-103) makes it impractical to reproduce them in full in these reasons.
After the applicants filed their submissions in reply Ms Stevens, without proper leave, filed further submissions and what purported to be an update of the website as at January 2003. I deal with this at [90] below.
I will first examine Exhibit A. The contents of Exhibit A (as at May 2002) give some emphasis to Mumford. On the “home page”, being the page to which one is first taken upon calling up the website address on the internet, there is a picture of Mumford in Indian robes. His picture can be “clicked on” to move to another page which has photographs of Mumford and Ms Stevens who are described as the “Authors of Yoga Magik courses.” The following appears adjacent to, and under, Mumford’s photograph:
Dr John Mumford
(Swami Anandakapila Saraswati)Dr Mumford is a direct disciple of Yogmaharishi Dr Swami Gitananda Giri Guru Maharaj (South India) and Paramhansa Swami Satyananda Saraswati, Bihar. He was initiated by Swami Satyananda in 1973, at BSY Monghyr, Bihar State, India.
Dr Mumford is respected across the world for his knowledge and scholarship. A born teacher Dr Mumford frequently gives lectures on relaxation techniques, Tantra, and other aspects human development and spirituality.
Dr John Mumford (Swami Anandakapila Saraswati) wrote his first book “Psychosomatic Yoga” in 1961 while completing an intensive period of study in India. His current books include “Ecstasy Through Tantra”, “A Chakra and Kundalini Workbook”, “Magical Tattwas Cards”, “Mind Magic Kit”, “Death: beginning or End?” and “Karma Manual” from Llewellyn, USA.
No mere theoretician, Dr Mumford has demonstrated his own self-mastery, in the 1970s, in cardiac cessation, obliteration of individual pulse beat at will, sensory withdrawal and voluntary breath retention over the 5 minute range, and start and stop bleeding on command.
His background combining Chiropractic, Psychology and many years practice as an Osteopathic physician coupled with extensive international experience in a wide range of Eastern disciplines makes Dr Jonn Mumford eminently well-suited to the task of disseminating the secrets of Tantra into the West. He currently divides his time between South India, the USA and Australia.
On the same page the following appears adjacent to and under Ms Stevens’ photograph:
Meghan Stevens (Gayenand)
Gayenand is an IYTA trained Yoga Teacher (1977), Author and Graphic Designer, the Yoga Magik Course Director, Webguru and Co-author of the Yoga Magik ICC courses, “Karma Manual” and “Death: Beginning or End?” Before starting Yoga Magik, she was a management consultant specializing in quality management and staff training.
Gayenand founded Yoga Magik and the ICC as a method of promoting Swamijii’s life work making it available everywhere, to anyone who is interested in Yoga. She was initiated into Tantric tradition by Swamijii using a traditional Tantric ritual.
On the home page in Exhibit A, if one “clicked-on” the first of the available distance learning courses, one would be taken to a page (tab 2 Exhibit A) that contains the following:
Join this distance learning program developed by Dr Jonn Mumford (Swami Anandakapila Saraswati) and Meghan Stevens (Gayenand) which includes the ancient Tantric science involving the rotation of consciousness through the magical pathways of the body to produce a profound, altered state of consciousness. Students work with and receive feedback from Gayenand.
The page of the website dealing with the second of the available distance learning courses (tab 3 Exhibit A) contained the following:
Join this distance learning program developed by Dr Jonn Mumford (Swami Ananadakapila Saraswati) and Meghan Stevens (Gayenand). Students work with and receive feedback from Gayenand.
The home page also allowed one to go to various other pages of the website. If one “clicked-on” the word books one would have been taken to a page (tab 4 Exhibit A) which provided the opportunity of buying books and kits on-line. It listed and advertised the books written by Mumford and contained the following:
All books are autographed by Dr Mumford.
Some books also have his personal seal as specified below.If one “clicked on” the word photographs on the home page one would have been taken to a page (tab 8 Exhibit A) containing photographs of, amongst other things and people, “Dr Jonn Mumford” and “Swami Anandakapila” at various times of his life, in various locations. Most, if not all of the photographs contained a depiction of Mumford or were in some way, read with the relevant caption, connected with him.
From the home page one could be taken to a page entitled “Seminars” (tab 17 of Exhibit A) that contains the following:
In the West this course is unique to Dr Jonn Mumford
…
Swami Anandakapila was initiated into this system by Yogamaharishi Dr Swami Gitananda Giri Guru Maharaj in the late 1950s. Jonn has only taught these once before to a select group of senior Australian Students.
…
Magic Movement Meditations
Magic Movement Meditations are Dr Jonn Mumford’s (Swami Anandakapila Saraswati) own unique system of “Kinaesthetic Yoga”. Kinaesthetic Yoga is an incredible blend of Gurdjieff, Alexander System, Thomas Hann’s “Somatic Yoga”, Feldenkreis technique and Dr Robert Master’s psychophysical movements from the USA, topped up with Dr Mumford’s own “Psychosomatic Yoga”.…
This is likely to be your ONLY opportunity to attend a Tantra Kriya Yoga course by a Master who was trained directly by Paramhansa Swami Satyananda Saraswati. Dr Mumford was personally invited by Swami Satyananda to attend several courses at the Bihar School and was one of only two disciples (from 2,000 students) initiated by Swami Satyananda in 1973.
…
Dr Jonn Mumford (Swami Anandakapila Saraswati) will present the secret of understanding yourself and others, enabling us to discover our own temperament types, in a magical journey towards self-realisation and self-actualisation.
[emphasis in original]There are references to Mumford throughout the website as reflected by Exhibit A. Viewing it, someone in Australia or elsewhere who was interested in yoga and “Eastern” spirituality and who was using the internet to satisfy and develop his or her interest in this subject matter could not help but think that Mumford was personally and commercially associated with and indeed was directly involved in, or part of, the enterprise putting out to the world the website, and that accordingly he had approved of, and had some control over, the contents of the website.
These clear impressions would only have been reinforced by three matters. The first is the fact that anyone who, before July 2001, had had dealings with Yoga Magik would have learned that Mumford was the course teacher. Secondly, the source code for the various pages of the website included what were referred to as “meta tags” using the word “Mumford”. Meta tags are words placed in the source code of the website and its pages by the person in charge of the website (such as Ms Stevens). When users of the internet with an interest in Mumford search the internet for that name the meta tags capture the search and throw up the website or the page in respect of which the meta tag has been placed as part of an answer to the search. Thirdly, the lectures made available are substantially expressed in the first person singular apparently by Mumford.
Whilst the applicants do not put their case on the basis of passing off: Henderson v Radio Corp Pty Ltd (1960) 60 SR (NSW) 576; Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, 445; Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553; Twentieth Century Fox Film Corp v The South Australian Brewery Co Ltd (1996) 66 FCR 451; McIlhenny Co v Blue Yonder Holdings Pty Ltd (1997) 149 ALR 496; Britt Allcroft (Thomas) LLC v Miller (2000) 49 IPR 7, and 52 IPR 419, they do put their case on a cognate basis – s 52 of the TP Act. It was put that the form of the website was such as to mislead or deceive people, who “visited” it, to believe that Mumford was associated with Yoga Magik in the respects referred to at [32] above.
the claims of the applicants in the pleadings
The amended application and amended statement of claim sought relief in a more comprehensive and detailed fashion than that described in the final submissions referred to at [14] to [17] above. First, the respondents were required to remove any and all meta tags which included “Jonn Mumford”, “Dr Jonn Mumford”, “Swami Anandakapila Saraswati”, “Swami Anandakapila” and “Anandakapila”. Secondly, the respondents were required to remove from the Yoga Magik website (and what was said to be its “mirror”) all photographs of Mumford, all references to Mumford on a particular page, all the photo gallery pages and various other parts of the website. Thirdly, the respondents were required to publish an unspecified corrective advertisement. Fourthly, Ms Stevens was required not to make or authorise any representation that she was studying with Mumford. Fifthly, the cancellation of the registration of two domain names “omkarakriya.com” and “jonnmumford.com” and one sub-domain name “members.ozemail.com.au/~mumford8” was called for. Sixthly, a restraint was requested upon any of the applicants publishing any document on the website including as a meta tag any of the words “Jonn Mumford", “Dr Jonn Mumford”, “Swami Anandakapila Saraswati”, “Swami Anandakapila” and “Anandakapila”. Seventhly, orders were sought restraining the respondents making representations that:
(a)the business currently carried on through the website at the domain yogamagik.com or any other business other than that of the applicants is a business of or associated with or approved or licensed by the second applicant;
(b)any correspondence course offered by any of the respondents through the internet or by other means is controlled by approved by or authorised by or licensed by the second applicant;
(c)the second applicant controls or approves the supervision by the second respondent of any correspondence course offered by any of the respondents through the internet or by other means.
Eighthly, damages or compensation were sought. In his written opening Mr Webb stated that the applicants no longer pursued pecuniary relief. On the first day of the hearing he indicated that his instructions had again changed and pecuniary relief was once again sought.
changes to the parties’ positions
During the period leading up to the hearing, and indeed, after the end of the hearing, the website was changed by Ms Stevens. Most, if not all, of those changes went some way towards accommodating the demands of the applicants. They were generally said by Ms Stevens to be made in a spirit of compromise. Importantly, Ms Stevens was prepared to remove “offending” meta tags.
Also, during the hearing there was some dialogue between Mr Webb and myself in which I expressed to him some hesitation as to some aspects of the relief claimed. For instance, there was no copyright claim over the lectures, nor any restraint sought on the sale of the lectures. In those circumstances, it could not necessarily be said to be inappropriate to use Mumford’s name or a photograph of him. Equally, if Mumford’s books are a saleable item there is no reason why use of his name and photograph might not be made to promote the sales of the books. The vice of the conduct if there be such, emerges when, in all the circumstances of the content of the website, members of the public will be, or will be likely to be, misled or deceived into thinking that Mumford is associated with the website in the way I have earlier described. Then, not only is there a public purpose in restraining conduct which is having that effect on a relevant section of the general public, but also the applicants may be suffering loss by the potential diversion of value of the commercial exploitation of the skill, esteem and learning of Mumford.
This issue of the extent to which the relief has become more focussed may become important in dealing with the questions of costs. It should be said, nevertheless, that these questions of meta tags, photographs etc are all part of appreciating the likely effect of the website in its context.
lineage and teaching
It is important to deal with one further aspect of the May 2002 website represented by Exhibit A – that concerned with the third matter addressed in the notice and the order sought set out at [14] and [16] above. It is a tolerably clear inference from the website (Exhibit A) as a whole that Mumford has authorised Ms Stevens to teach the subject matter of the courses, and so to teach his teachings, as reflected in his lectures, and perhaps, his books. This raises an issue which is important and the subject of some dispute, that is, the question of lineage, initiation, empowerment to teach and the passing on of knowledge.
The applicants say that lineage, full initiation and empowerment to teach are recognised as important to the passing on of knowledge. Mumford was taught by the two well known Indian Swamis Gitananda and Satyananda and under their teaching and tutelage he became a Swami himself. His renown and repute rests in significant respects on his ability to state accurately that heritage of teaching and learning. It is the extent to which the website leads a reader to believe that the association with Mumford is such as to carry with it his approval of Ms Stevens’ teaching that is said to be false. It may lead to the reaching of a conclusion by a reader or visitor to the website that Ms Stevens has received the same degree of teaching and instruction from Mumford as he received from the Indian Swamis, and that she can be seen as part of the lineage including Gitananda, Satyananda and Anandakapila (Mumford) or that she can be seen as the recognised and authorised recipient of that degree of knowledge of teaching authority, that is, to have Mumford’s imprimatur in teaching a course based on his lectures.
That Ms Stevens studied with Mumford for some years is common ground. That Ms Stevens received a degree of “initiation” from Mumford is accepted by the applicants. That Ms Stevens was not initiated by Mumford in the same way that he was initiated by the Indian Swamis was accepted in evidence by Ms Stevens.
I accept that it is a relevant fact for someone wishing to undertake study of Mumford’s teachings to know whether or not the teacher (here Ms Stevens) has his authority or permission so to do. That conclusion derives in part from the notion of knowledge and wisdom passed on from teacher to pupil and initiate and from a general notion of lineage. That conclusion also derives from the facts here. What Ms Stevens is teaching is not her version, if I may put it that way, of Mumford’s teachings, but rather she is selling his own expression of his beliefs and ideas and, to a significant degree, teaching that.
I do not propose to resolve all of the finer points of “lineage” raised by the parties. It is a task unnecessary to resolve the controversy and likely to be impossible to be satisfactorily undertaken without an immersion in the spiritual subject matter. The evidence does, however, enable me to recognise a distinction between initiation as a disciple (which I take Mumford to have done to Ms Stevens) and empowerment of a disciple to teach. An authority in the field, Georg Feuerstein said the following in his work Tantra: The Path of Ecstasy in a chapter on initiation which was placed in evidence:
The Tantric authorities stress the importance of acquiring a guru who is part of an established teaching lineage. “The deities,” states the Kula-Arnava –Tantra …, provide protection only to those teachers who preserve a lineage (paramparā). The Sanskrit word paramparā means literally “one after the other,” referring to the unbroken succession of teachers, all linked by the empowered teachings passed down the line from teacher to student. The same Tantra … advises seekers to look for a teacher who belongs to an unbroken transmission (avichinna-sampradāya) originating with the supreme Being – Parama-Shiva – itself.
…
The traditional emphasis on the importance of lineage is especially relevant in our modern Western context. As I have said before, Neo-Tantrism is by and large a homespun movement whose teachers have not received the teachings and the accompanying spiritual transmission within a recognized lineage. There is a great advantage in belonging to a well-established lineage, because it contains certain safeguards against corruption. A lineage is a chain of authentic teachers who pass on their wisdom and empowerment to qualified disciples (who become teachers in turn). The close bond between guru and disciple, which traditionally continues beyond the grave, remains intact only so long as the disciple (even if he or she has become a spiritual authority in his or her own right) preserves the integrity of the transmission, both in regard to the oral teachings and the spiritual transmission received. To affirm this continuity, the tāntrikas include in their daily practice the formal veneration not only of their immediate guru but also the parama-guru (teacher’s teacher), the parāpara-guru (teacher’s teacher’s teacher), other lineage teachers, and not least the root guru, or founder of the lineage.
Whenever a guru gives a disciple permission to teach, this means that he or she has been judged competent to teach and pass on the teachings to others. Each guru has a responsibility toward the lineage as a whole and is therefore eager to preserve its integrity, which is why permission to teach is never given lightly. The fate of those who break this rule is said to be not liberation but many years in the hell realms.
Ms Stevens conceded in evidence that Feuerstein was a respected author in the field and the book in question was a well known and respected text. No contrary authority or text was pointed to by Ms Stevens on the question of lineage and authority to teach. I accept Feuerstein’s views as evidence reflective of views to which a significant number of persons interested in yoga and Eastern spirituality are likely to adhere.
Whilst Ms Stevens was initiated as a disciple, I find that such teaching as Ms Stevens received from Mumford and the degree of initiation was, and were, not such as to empower or authorise her to teach in the way described by Feuerstein. It is unnecessary for me to express a view on precisely how much Mumford taught Ms Stevens or what the degree of her receptiveness to that teaching was, or what her skill as a teacher now is. It is sufficient for me to conclude that the teaching she received fell significantly short of that which would have led Mumford to empower her to carry on his teachings. Further, he did not so authorise or empower her.
I have already expressed my view at [32] above that the website in Exhibit A would lead a visitor to conclude that Mumford was associated with the website. I also think that Exhibit A would lead a visitor to believe that Mumford had authorised Ms Stevens to teach his beliefs and views. I will return in due course to the question of the misleading quality of this.
Before moving on to examine the website in more detail and the later changes to the website, it is worthy of note, in the context of the issues just discussed, that in its original form, the correspondence courses gave attribution for Ms Steven’s role as follows:
Written by Jonn Mumford (Swami Anandakapila Saraswati)
Designed and edited by Meghan Stevens
4th Edition December 1998
© Copyright 1998 Yoga Magik Pty LtdOn the same page the following was stated about lineage:
To be faithful to the relevant aspects of the teachings of the two great Gurus, Yogamaharishi Dr Swami Gitananda Giri (South India) and Paramhansa Swami Satyananda Saraswati as communicated to Swami Anandakapila Saraswati.
The evidence discloses that late in May 2002 the website was modified by adding to the paragraph at [48] above after the word “Saraswati” where it second appears the words emboldened below:
and then to Gayanend.
This statement clearly sought to place Ms Stevens in the lineage from the two Indian Swamis through Mumford to her as part of an “established teaching lineage”, “linked by empowered teachers” in “an unbroken tradition” and as a disciple with “permission” as “judged competent” to teach, to use Feuerstein’s words.
the website in more detail and the changes to the website
Mr Michaels, the President of the first applicant, swore affidavits in which he, amongst other things, identified the changes made to the Yoga Magik website after January 2002. I do not propose to list of all these identified changes, but it is appropriate to identify some aspects of the website at different times to illuminate the nature of the complaints that the applicants make about the conduct and contents of the website.
the website as at late April 2002
The website between 23 and 27 April 2002 (see Exhibit MM2-A (1-103) to the affidavit of Mr Michaels of 28 May 2002) had 103 separate web pages, on 57 of which Mumford’s name or one of its variants appeared. There were 16 pages which bore his likeness in 38 images that depicted him. Mumford’s name was in the source code (as a meta tag) on 44 pages of the website. Only 9 pages of the website contained no material relating to Mumford, his books or articles.
Mr Michaels gave detailed evidence in Exhibit MM2 to his affidavit sworn 28 May 2002 of the contents of the Yoga Magik website in April 2002. I need not deal with all aspects of this treatment. Some aspects however, do illuminate the degree to which a viewer of the website would associate Mumford with the site and Ms Stevens. First, there is a multitude of written references to Mumford, in some form. Secondly, there are a number of references to co-authorship of written material by Mumford and Ms Stevens. Thirdly, the source codes often contain a meta tag using Mumford’s name in some form. Fourthly, passages appear in the first person singular which, from their context, appear to be Mumford saying something in writing to the reader. Fifthly, there is a multitude of photographs of Mumford in various places, evidently taken at various times in his life. Sixthly, there are references to what Mumford will do in the teaching of the courses. Seventhly, there are references to the uniqueness of the opportunity of dealing with Mumford through this course; and so, a representation that access to him cannot be obtained elsewhere.
changes to the website up to 24 April 2002
In early 2002 four new articles were placed on the website, three written by Ms Stevens, one by a student. The source code for each of these articles included meta tags “Dr Jonn Mumford”. This would, for someone searching “Jonn Mumford”, associate his name with Ms Stevens’ work and Yoga Magik, by directing “traffic” on the internet intended for an association with him to her.
Various changes took place in February 2002. There was, nevertheless, evidence that as late as 28 May 2002 there were pages of the Yoga Magik website that represented that personal assistance and supervision from Mumford was available on a page of the website dealing with registration of students.
In March 2002 some changes were made by students working with “Gayenand” (Ms Stevens).
There were further changes to the website in April 2002 and May 2002.
The impression created by the website as at April 2002 is substantially the same as created by the website in May 2002 in the terms to which I have referred at [32] and [46] above.
the website in October 2002
The website as in October 2002, at about the time of the hearing, was in evidence as Exhibit B. It is evident from a comparison with Exhibit A (the website in May 2002) that certain changes had been made. Whilst I will not try to analyse exhaustively the changes that were made in this period, it is appropriate and necessary to descend into some detail in order to assess the website and the likely impression upon viewers, at this time.
First, the photograph of Mumford on the home page which appeared in the May 2002 form had been removed. The source code for the home page lacked reference to Mumford in any form of his names. The home page did however have in the “Mission Statement” what is referred to at [48] and [49] above, that is:
To be faithful to the relevant aspects of the teachings of the two great Gurus, Yogamaharishi Dr Swami Gitananda Giri Guru Maharaj (South India) and Paramhansa Swami Satyananda Saraswati as communicated to Swamijii and then to Gayenand.
[emphasis added]The page dealing with the correspondence courses (tab 1 Exhibit B) which contains the extract set out at [27] above also contains the following:
Join this distance learning program developed by the Swamijii and Meghan Stevens (Gayenand) which includes the ancient Tantric science involving the rotation of consciousness through the magical pathways of the body to produce a profound, altered state of consciousness.
Swamijii is no longer working with Yoga Magik and students work with and receive feedback from Gayenand. Gayenand is not a guru but is yoga teacher [sic]. She has been initiated by Swamijii and provides assistance and feedback on experiments, exercises and assignments on these courses that she and Swamijii jointly developed. The Tantra Kriya course is designed for self initiation.
“Swamijii” is, on the evidence, a reference to Mumford. This form of name for Mumford appears to have been used in preference to those previously used. Its use does not ameliorate any vice otherwise found to exist in the form of the website.
The October website contains a page (tab 3 Exhibit B) setting out the “international teacher register” with two people in the United States mentioned and described.
The pages dealing with the correspondence courses have been rewritten. In the page dealing with the first year’s course (tab 5 Exhibit B) the following appears (the original exhibit was a photocopy of the site printout and sometimes lacked the extreme right side of the text causing the gaps in the following text):
The unique Kriya techniques taught by Swami Anandakapila Saraswati are not related to… linneages [sic] of either Shree Babaji nor Shree Yukteswar. The Yoga Magik approaches to Kriy… including OM-Kara Kriya, derive from the rich heritage of the late Dr Swami Maharishi G… (Tamil Nadu, South India) and Parahamsajii Satyananda, founder of the Bihar School of Y… (North-East India).
The text books required for the first year were two texts written by Mumford.
The parts of the page dealing with the second year’s course (tab 5 Exhibit B) does not refer to Mumford otherwise than by identifying the two required texts which were written by him.
From the pages of the site dealing with courses (tab 5 Exhibit B) I infer that the text of the lectures written by Mumford were still part of the course.
The page of the site dealing with text books (tab 6 of Exhibit B) identifies books written by Mumford. The page dealing with books and kits contains the following heading:
Books by Swamijii and Gayenand
This represents that Mumford and Ms Stevens are co-authors of two books: Karma Manual – 9 Days to change your Life! and Death: Beginning or End?.
The same page then has a heading:
Books by Swamijii
Thereafter various of Mumford’s books are listed. At the end of the list there appears the following:
All books are autographed by Swamijii.
Some books also have his personal seal as specified above.This availability of his signature helps to associate Mumford with the site in the manner that I have already described.
The page dealing with another course, “Yoga Magik Cyber Ashram” (tab 7 Exhibit B), contained the following:
Join this distance learning program developed by Swamijii and Meghan Stevens (Gayenand) Swamijii is no longer working with Yoga Magik and students work with and receive feedback from Gayenand.
The page dealing with another course, “Yoga Magik Magical Tattwas” (tab 8 Exhibit B) contains the following prominently displayed:
Register now to discover the secrets of the Tattwas.
…
Dr Mumford’s Yoga Magik Cyberspace Ashram.This plainly associates Mumford with the current operation of the website and the courses offered therein.
On the page that was entitled “Gurus” (tab 11 Exhibit B) Gitananda and Satyananda, amongst others, are mentioned. Mumford is not. The photo gallery pages (tab 12 Exhibit B) no longer have Mumford’s photographs.
The source code for the page entitled “Yoga Magik Site Map” (tab 13 Exhibit B) contains meta tags which included “Dr Jonn Mumford”, “jonnmumford”. Thus, someone searching for Mumford’s name on the internet would be drawn to this site. This would create a degree of association between the site and Mumford. From the site map the person is then able to go anywhere on the website including the “Mission Statement” (see [60] above).
The source code for the page entitled “Yoga Magik Cyber Ashram” (tab 14 Exhibit B) includes meta tags using the words “Dr Jonn Mumford”.
The same page (one of the sheets behind tab 14 Exhibit B) also contains a depiction of a painting under which the following appears:
This painting was a gift from Swamijii to Gayenand and is by the notorious Rosaleen Norton was known as the “The Witch of the Cross” and swamijii states “in fact was one of the most benign people I have ever encountered.”
Swamijii, as the balance of the site makes clear, is Mumford. The statement of the gift to her of this painting, whilst perhaps inoffensive in itself, assists any other inference there may be that Mumford has authorised or empowered Ms Stevens to teach.
The page entitled “Yoga Magik Articles” that otherwise does not mention Mumford has a source code which includes meta tags using the words “Dr Jonn Mumford”.
The page entitled “Kriya Page” (tab 16 of Exhibit B) has a sub-heading immediately below this referring to Mumford.
Kriya: Internal Alchemy for the Soul by Swamijii.
The same page has a photograph of Mumford performing an exercise. The text on that same page is such as to directly connect Mumford to the teaching of the course being offered. It contains the following:
Kriya Yoga appears to have first emerged in the West through the teachings of Yogananda and transmitted from Babbaji’s lineage. A number of teachers now teach the methods which can involve up to 144 techniques.
The unique Kriya techniques we teach are not related to the lineages of either Shree Babaji or Shree Yukteswar. The Yoga Magik approaches to Kriya Yoga, including OM-Kara Kriya, de… from the rich heritage of the late Yogamaharishi Dr Swami Gitananda Giri Guru Maharaj (… Nadu, South India) and Parahamsajii Swami Satyananda Saraswati, founder of the Bihar School of Yoga (North-East India).
[emphasis added]In the 1950’s Yogamaharishi Dr Swami Gitananda Giri Guru Maharaj initiated me into the … for the OM-Kara Kriyas and their ultimate expansion into U3 or Universal, Ultimate, Unity states. Under personal direction these are safe and sure magical routes to an interior consciousness.
[emphasis added]The 1970’s he released another set of Kriya techniques involving very vigorous Hatha Yoga postures to pump the Ojas (psychic energy) up the spine. These are known as “Oli Mudras” (‘Shakti Mudras’) and they can only be taught personally to students with a good grounding in Hatha Yoga. Swami Gitananda described it as:.
[emphasis added]“A Classical Yoga Method of conserving Vital Shakti for Spiritual Development and Yoga Family Planning.” Yogamaharishi Dr Swami Gitananda Giri Guru Maharaj.
Below is a photographs [sic] of Swamijii performing a variation of the first of these Oli Mudras… entire set are still taught to advanced students at Ananda Ashram, Pondicherry, South India.
…
1973 Swamijii studied Kriya Yoga with Parahamsajii Swami Satyananda Saraswati, at his B Yoga school. His techniques are marvelous [sic] and also unique. They are taught at Satyananda Ashrams around the World and Swamijii had the privilege of teaching them in both the US and Australia.
We commence training in OM-Kara Kriya in the third semester of the first year and the stu… has an opportunity to build a “Jacobs Ladder” to heaven or the divine lokas. The passage w… within us and only we can open it. The door handle is on the inside!
[emphasis added]…
Swamijii was initiated into this system by Yogamaharishi Dr Swami Gitananda Giri Guru Maharaj in the late 1950s.
On a page entitled “Shat Kriyas & Yugala Neti” (tab 16 of Exhibit B) there appears a photograph of Mumford with the caption:
Young Swamijii (cc 1969) performing Sutra Neti (Literally Thread Probe).
This once again creates some impression of association between Mumford and a course referred to on the website.
On a page entitled “NDE & Survival Page” (tab 16 Exhibit B) there is a heading, “An Eastern View of Death by Swamijii” which has under it a number of paragraphs which appear to be written by Swamijii (Mumford). This creates the impression of an association between Mumford and the website. At the end of the same page is a reference to a book said to have been co-authored by Ms Stevens and Mumford. The source code for this page includes the words “Dr Jonn Mumford”.
A page entitled “Tantra Page” (tab 16 Exhibit B) appears to recite various extracts from Mumford’s book “Ecstasy through Tantra”. This creates some impression of an association between Mumford and the website.
A page entitled “Hatha Yoga Page” (tab 17 Exhibit B) has a picture of Mumford with the adjacent caption:
A young Swamijii practicing Yon Mudra. See Chapter Three of A Chakra & Kundalini Workbook detailed practice instructions.
The same code for this page contains meta tags including the words “Dr Jonn Mumford”.
On a page entitled “Emotional Damage Control” (tab 19 Exhibit B) there are a number of headings under which philosophical advice for life is given. After two and a half pages of this advice, the following appears:
The fallacies discussed by Dr Mumford above are quoted from “A New Guide to Rational Living’ by the American Psychologist, Dr Albert Ellis in his classic paperback (Wilshire Book Company, USA).
Again a clear association is made between Mumford and the courses on the website.
On a page, the title of which is not clear (tab 20 Exhibit B), the following appears:
What is Karma? by Swamijii
Karma is a psychic equivalent of Newton’s theory of action and reaction, the psychic equivalent of Newtonian physics, for as far as you push in one direction, the pendulum going to swing back an equal arc on the other side.
Karma in essence is a principle, that for every turn of the mind-body complex and e… action in the external world there must be an inevitable consequence.
Basis of Karma
I am not interested in altering your belief system. You may or may not agree with the co… of life after life, an endless cycle of birth and death and rebirth but it doesn’t matter whether you believe in it or not, that is of no consequence.
Half the world’s population believe in the doctrine of Samsara – the eternal bondage of re… – the cycle of life and death. Buddhists, Hindus and offshoots of Buddhism and Hinduism… Esoteric teachings in the West ALL AGREE UPON THIS and consequently reincarnation… become a formal doctrine with half the population of this planet.
I am going to suggest to you, which you do not have to believe, that the teaching of life… life may or may not be so, and I would suggest to you that the belief that it is so, is also Esoteric teaching. There is an outer teaching and by my understanding, as my Gurus taught me, there is also an inner or esoteric meaning to the concept of reincarnation.
Life after Life or Thought after Thought
I will share with you, one aspect of the esoteric or inner teaching about the doc… concerning ‘life after life’.
This appears to be Swamijii (Mumford) talking directly to the viewer of the page. The balance of the page uses the first person plural. The page creates the impression of a relationship between Mumford and the course. On another page behind tab 20 in Exhibit B entitled “The significance of Agami Karma”, Swamijii (Mumford) appears to personally respond to a question from a visitor to the site. Again this creates the impression of a relevant association.
On another page (tab 21 Exhibit B) it is stated in the present tense that Ms Stevens “Studies with Dr Jonn Mumford”. This was false as at October 2002. On the same page the following is stated:
Much of the Indian teaching that I base my work on, was transmitted directly to my teacher Dr Jonn Mumford (Swami Anandakapila) from his Guru the late Yogmaharishi Dr Swami Gitananda Gir G… Maharaj of Tamal, Nadu, South India.
This creates the clear impression of a teaching linage to Ms Stevens from the Swami Gitananda, through Mumford.
On a page entitled “Power Sounds (Shakti Mantras) Page” (tab 22 Exhibit B) there is a picture of Mumford under the caption, “Effects of Power Sounds by Swamijii” and the following appears adjacent:
Yogamaharishi Dr Swami Gitananda Giri Guru Maharaj taught me the secret of the Shakti Mantras in the 1950s and I spent the next ten years experimenting with them.
By 1970 I developed the Mantra Anesthe… demonstration as an ultimate experience … audiences of just “how enchanting chant can be!”
The page then continues in the first person singular:
Just as Infrasound may be used to pulverise kidney and gall bladder stones and Ultrasound may be manipulated to increase circulation so these vowel energy packets will create special effects by turning the skeletal system into a tuning fork.
The physical effect gives each gland a vibro-massage while the associated chakra opens up reinforces a [sic] influx of pranic energy through the subtle bodies.
Thus this practice spiritualises both the gross and subtle bodies leading to heightened consciousness.
The power sounds (Shakti Mantras) may be applied at a practical level. We teach our students the secret using audible Sanskrit vowel sounds (Swara and Anuswara) to accelerate wellness and facilitate healing.
Power Mantras facilitate becoming “sound as a bell!” and encourage “sound decisions”
Similar passages appear elsewhere on the page. These evoke a clear impression of a relevant association by Mumford (Swamijii) speaking in the first person to the visitor to the page.
On a page entitled “Tantra for the West” (tab 23 Exhibit B) an interview between a Chris Burgess and Swamijii is conducted in the first person. Again it appears that Mumford is talking through the website.
Another page entitled, “Breatharian Articles” (tab 25 Exhibit B) contains what purports to be a brief article by Swamijii (Mumford). Again a clear association between Mumford and the website is created.
The source code to a page entitled “Kriyas: What are they?” (tab 29 Exhibit B), which page otherwise does not mention Mumford, contains the meta tags using the words “Dr Jonn Mumford”.
On a page entitled “About the Authors of the Yoga Magik Courses” (tab 35 Exhibit B) which could be accessed from the home page under that heading, there appears a photograph of Mumford and Ms Stevens. Mumford is here referred to as “Swami Anandakapila Saraswati” and “Swamijii”. The short biography is to a similar effect as that set out at [25] above. On the same page is the statement in the present tense (set out at [83] above) that Ms Stevens studies with Mumford. This page creates a clear association between Mumford and the website of the kind referred to at [32] above. Also, the source code for the page contains meta tags using the words “Dr John Mumford”.
Taken as a whole, there is a clear impression created in the reader of Exhibit B that Mumford has an association with the website and the courses in it of the kind referred to in [32] above. Also, it is a tolerably clear inference from the whole of the website that Ms Stevens was empowered and authorised by Mumford to teach the material referred to, much of which was apparently his work and teaching or derived therefrom.
the website in January 2003
On 3 January 2003, after Mr Webb had sent his submissions in reply to my chambers in accordance with leave given to him, I received in chambers a letter from Ms Stevens to my associate, a further reply and a document which purported to be the Yoga Magik website as at 2 January 2003. I had granted leave to file a two page submission, properly speaking, in reply. This material went beyond the leave granted. I do not know whether it was served on the applicants. The last document is not evidence. I will treat it however as a submission (though going beyond the leave granted) showing what the respondents propose to do with the website and mark it “MFI 3/1/03”, but not as an exhibit.
In MFI 3/1/03 it is said that Mumford is being “phased out” and new courses by other authors will be included. It is said that more changes will be made in the future. MFI 3.1.03 states:
· No pages in the General section of the web site will contain Mumford’s name except for
o the About Stevens page which states she studied and worked with him for 5 years and was initiated by him in the Tantric tradition.
o the books page where his name appears on the covers of his books.
· All pages which contain Mumford’s photos are within the subsection of either the Tantra Kriya Yoga Course or Tattwas Course which are themselves within the Ashram section.
· On every page where Mumford’s name or photo appears except for the About Stevens and the Book sale pages, a notice appears that states:
“Swami Ananadakapila no longer has any association whatsoever with Yoga Magik.”
Plainly the disavowal of association, if it be made bindingly, would be of some real significance in avoiding deception.
Before turning to the question of misleading or deceptive conduct, it is necessary to deal with some other internet sites.
At least at the time of the swearing by Mr Michaels of his affidavit of 28 May 2002 the respondents had control of the websites with the addresses “ com.au/~mumford8” and “ some pages of which were reproduced in Exhibit MM2B(1-2) exhibited to Mr Michaels’ affidavit.
The first site referred to at [94] above purported to be Mumford’s home page. It contained the following:
Visit Dr Mumford at Yoga Magik Mumford’s Yoga Magik
Cyberspace AshramTantra Kriya Yoga
International Correspondence Course.The source codes for these included meta tags using the words “Dr Jonn Mumford”.
The latter did not use Mumford’s name, though the source code contained meta tags which used his name.
As at late May 2002 the respondents also had control over a number of internet domains which included “ This site had references to Mumford and Yoga Magik.
misleading or deceptive conduct
The question whether there has been misleading or deceptive conduct depends on all the circumstances of the case. The relevant question is whether or not the totality of the conduct in the context in which it occurs is likely to have the effect in question: being misleading or deceptive or likely to mislead or deceive. It is unnecessary to set out all relevant statements of principle. It is sufficient if I refer to S & I Publishing Pty V Australian Surf Life Saver Pty Ltd (1998) 168 ALR 396, 402-403 and Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45, 83-88.
Here, with the website not aimed at specific individuals, it is necessary to identify the class of prospective viewers of the website who might be misled or deceived. Having thus identified a group of people, I must assess whether the content of the website leads, in all the circumstances, or would have been likely to lead, ordinarily people in the class to believe something about Mumford and the website which is false. The relief is directed to that falsity: see [14] to [16] above.
In his submission Mr Webb identified the relevant class as follows:
(a)people (generally from developed western countries, including in Australia) who are seeking or are interested in seeking, through the internet or their reading in the area, to achieve some personal fulfilment by obtaining guidance, instruction or knowledge from an authority with suitable qualifications in the eastern teachings in which Dr Mumford is steeped;
(b)people who are seeking, through the internet, to obtain guidance or instruction or knowledge from Dr Mumford.
The second of these two classes is a sub-set of the first but is not co-extensive with it.
Ms Stevens took some issue with this identification; in particular she said that there were other groups that could be identified, the members of which would be likely to visit the site. That can be accepted. It is sufficient, however, to identify one group or class who will access the site, the members of which might be misled.
From the evidence, I think that Mr Webb’s identification of two relevant classes is by and large legitimate and I accept that identification in assessing whether visitors to the website are or were misled or likely to be misled. I would only insert in paragraph (a) after the words “suitable qualifications in” the words “yoga and”.
I have already indicated in a number of places that visitors to the website, as it appeared from April 2002 through October 2002 would have been misled into the belief that to a real degree Mumford was associated with the website in the manner set out at [32] above and that Ms Stevens was authorised or empowered by Mumford to teach as set out at [46] above. I would infer that the website as it appeared from November 2001 would have had the same effects on visitors.
Ms Stevens submitted in a number of places in evidence and submissions that Mumford said that she could take over and teach the Yoga Magik courses. She referred to a will made by Mumford in this regard. She also refers to conversations with Mumford that occurred when their relationship was mutually satisfactory. The will does not support the authorisation or empowerment to teach in circumstances where, by mid 2001, Mumford no longer wished to associate with her, and had the view that she was not someone to whom he would give authority or permission to pass on his teaching. The evidence of Dr Mumford was that he was unable to teach Ms Stevens or that she was unable to learn and that he made no “transmission” of his teaching to her to enable her to hold herself out as authorised by him to teach in the manner discussed by Feuerstein. Whether or not this was an overly harsh judgment of her, I accept that Mumford made it, and that he did not authorise or give permission for Ms Stevens to teach his course in the sense that I have discussed.
I am satisfied that the websites in evidence which I find were under the control of Ms Stevens were all in a form which could well cause the ordinary member of the classes of viewer identified by Mr Webb to think that Mumford was associated in the way described at [32] above with the website and that Ms Stevens had the authorisation or empowerment of Mumford to teach as referred to at [46] above. Both impressions were and are false. As I have said, the conduct took place in trade or commerce. There was thus a contravention of ss 52 and 42 of the TP Act and FT Act, respectively.
relief
In the light of my conclusions, it is necessary to ascertain what relief is appropriate in order to compensate for the effect of the conduct and to ensure, as far as possible, the cessation and remediation of any misleading character of the websites.
Some steps have been taken as was made clear by MFI 3/01/03. At no time, however, has Ms Stevens unequivocally undertaken to take steps necessary to ensure that the viewers of the website would not be misled in the ways I have identified. There was a gradual and sometimes grudging acceptance that some changes had to be made. Certainly, by October 2002, Ms Stevens must have understood the thrust of the legitimate complaints about the association created by the website. She tended to emphasise the legitimacy of the original form of the website, accurate as it was while Mumford did participate in the Yoga Magik business.
With some modifications I think the applicants are entitled to the relief ultimately asked for.
Before going to the form of the relief I need to say something of the respondent parties. Ms Stevens controls the business of the first and third respondents. There is evidence that the first and third respondents are the registered operators of various domain names. It is unnecessary to be overly precise about which company owns what. Ms Stevens is the controller of both. The website was owned by the first respondent. Actions in relation to it were taken, and the form of the website was formulated, by Ms Stevens who, on the evidence, was the controlling mind and owner of the first respondent. The first respondent was responsible for her actions. She took steps in the control of the website in the trade or commerce being carried on by the first respondent. In these circumstances I am persuaded that there has been a contravention of ss 52 and 42 of the TP Act and the FT Act, respectively. The third respondent was the registered operator of the sub-domain name “>
The relief which I propose would be directed to the respondents in an undifferentiated fashion, except for the damages which will be directed to the first respondent. That (non pecuniary) relief is appropriate to ensure that Ms Stevens through the other respondents or herself does not engage in conduct in the future of the type hitherto engaged in by her and her companies and that the effect of the conduct that has already occurred is, as far as is possible, remedied.
The orders which I propose (leaving aside the question of pecuniary relief) are as follows:
1.That, subject to orders 2 and 3 below, the respondents include a notice in the form set out below on (1) each page of the website at (the Yoga Magik website); and (2) on each page of any website they or any of them control or controls now or in the future which deals with yoga or eastern spirituality in which any reference is made to Jonn Mumford, by that name or by any other name, including but not limited to “Dr Jonn Mumford”, “Jonn Mumford”, “Mumford”, “Swami Anandakapila Saraswati”, “Anandakapila” or “Samijii”.
NOTICE
(a)Jonn Mumford (Swami Anandakapila Saraswati) is no longer associated in any way whatsoever with the business Yoga Magik or this website.
(b)Jonn Mumford has no control over the content of this website or the information contained in it.
(c)Meghan Stevens (Gayenand) though initiated as a disciple by Jonn Mumford (Swami Anandakapila Saraswati) is not authorised or empowered by him to teach any courses
2.The notice is to be clearly legible and in a typeface the size of which is the same as the other standard text on the page.
3.The notice is to be so placed on the pages of such website for a period being the later to expire of two years from the date of this order or the cessation by the respondents or any of them of the sale or dissemination of any courses which, to any substantial degree, were written by the said Mumford.
4.That the respondents be restrained by themselves, their servants or agents or otherwise from representing in trade or commerce that the second respondent (by any appellation) has been given authority or permission or has been empowered by the second applicant to teach any course of yoga or eastern spirituality of the nature referred to on the Yoga Magik website in 2002.
5.That the respondents take all necessary steps to deregister or cancel the domain name “ and the sub-domain name “ ozemail.com.au/~mumford8”.
6.That the respondents be restrained from re-registering without the prior consent of the second applicant either of the domain name and the sub-domain name referred to in order 5 or registering any other domain name which includes any of the names Jonn Mumford, Dr Jonn Mumford, Swami Anandakapila Saraswati, Swami Anandakapila, Anandakapila or Swamijii.
The above is commensurate with, and conducive to remedying the misleading character of what has occurred. Orders 5 and 6 are legitimately founded in the fact that Mumford’s name and reputation have been appropriated by the respondents in the manner that I have described. For a time (prior to mid 2001) they were entitled to do so. Since then they were and are not. No legitimate purpose can be served by their retention of the names. In circumstances where there has been a misleading of the public it is appropriate to ensure that this misleading not continue by allowing the respondents to retain what now could only be, if used, instruments of deception, the retention or use of which would involve a representation of entitlement and affiliation which would be false: see generally Wadlow The Law of Passing Off (2nd Ed) pp 233 ff; CSR Limited v Resource Capital Australia Pty Ltd [2003] FCA 279 at [38] ff; Glaxo Plc v Glaxowellcome Ltd [1996] FSR 388; Direct Line Group Ltd v Direct Line Estate Agency [1997] FSR 374; and Marks and Spencer v One in a Million (1999) 42 IPR 309. Further, the use of these domain names is not in the realm of hypothesis: see [95] ff above. Thus, it is within the legitimate scope of s 87 of the TP Act and s 79 of the FT Act to prevent these sites remaining in the respondents’ hands as instruments of deception.
damages
Damages are sought only against the first respondent as the entity which carried and carries on the Yoga Magik business.
The evidence of what the first applicant, since November 2001, lost by the conduct to which I have referred is difficult to quantify. From about June 2001 to about October 2002 the first respondent sold about 20 courses at about $500 each. From mid 1998 to June 2001 about 70 courses were sold. Thus, the first respondent sold about 20 courses a year.
The courses were largely written by Mumford. His reputation was and continued to be a central factor in the sale of the courses.
I am prepared to accept that, had the misleading and deceptive conduct not occurred, some of the twenty or more (up to and past October 2002) persons who bought courses would or might well have gone to the first applicant’s site had they understood his lack of association with the site.
In these circumstances I am prepared to conclude that something in the order of 8 to 10 of these people would have preferred to find a course which Mumford was conducting and would have arranged that. In these circumstances, doing my best with the material (Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 3 IPR 619, 636-7), I am prepared to award the first applicant $4,000 calculated as the proceeds of eight courses at $500 each.
I will hear the parties on the form of the proposed orders, including as to costs.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.
Associate:
Dated: 30 May 2003
Counsel for the Applicants:
R J Webb SC
Solicitor for the Applicant:
Webster O’Halloran
The second respondent appeared in person and, with leave,
on behalf of the first and third respondents.
Dates of hearing:
21-24 October 2002, 28 November 2002
Date of last submissions:
3 January 2003
Date of judgment:
30 May 2003
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