Takhar v Sroa - [2017] SADC 110

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TAKHAR v SROA
[2017] SADC 110
Judgment of His Honour Judge Stretton
29 September 2017
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL
This is an assessment of damages for defamation.
The plaintiff and defendant are both members of a Sikh religious community group based in Prospect. The plaintiff has been president since 1998. The defendant caused an article highly critical of the plaintiff to be placed on the noticeboard of the group’s Prospect meeting place during a three day religious festival in 2015. The article contained untrue and defamatory statements concerning the plaintiff. The plaintiff became aware of its presence and immediately took it down, such that it is likely that only a limited number of people may have seen and read it. The plaintiff has made significant contributions to the community group over the years, continues to actively participate and volunteer, and has an ongoing role in it, and as such has been genuinely hurt and upset by the defamation within the community group to which he has and does significantly contribute. The defendant has not apologised, retracted or in any other way mitigated the defamation.
Held:
General damages assessed at $10,000
Defamation Act (SA) 2005 s 32, s 33, s 34, s 35, s 36, referred to.
Cribb v Freyburger [1919] WN 22; Graham v Powell (No 3) [2014] NSWSC 185; Al Muderis v Duncan [2016] NSWSC 1726; Woolcott v Seeger [2010] WASC 19; Bickel v John Fairfax & Sons Ltd and Another [1981] 2 NSWLR 474; Scott v Sampson (1882) 8 QBD 491; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691; Dingle v Associated Newspapers Ltd [1961] 1 All ER 897; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; National Auto Glass Supplies (Australia) Pty Limited v Nielsen and Moller Autoglass (NSW) Pty Limited (No 8) [2007] FCA 1625; Judd v Sun Newspapers Ltd (1930) 30 SR (NSW) 294; Lang v Beardsmore [1968] 2 NSWR 673; Burstein v Times Newspapers Ltd [2001] 1 WLR 579; Plato Films Ltd v Speidel [1961] AC 1090; Carson v John Fairfax and Sons Limited (1993) 178 CLR 44; Duffy v Google (No2) [2015] SASC 206; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Herald & Weekly Times Ltd v McGregor [1928] HCA 36; Humphries v TWT Ltd (1993) 120 ALR 693; Jeffrey and Curnow v Giles [2013] VSCA 267; Giles v Jeffrey and Curnow [2015] VSCA 70; Machado & Anor v Underwood & Anor [2016] SASCFC 65; Stone v Moore [2016] SASCFC 50; Stevens v Boyle [2012] SASC 232; Stevens v Mayberry [2012] SASC 220; Maras v Lesses [2016] SADC 40; Lesses v Maras [2017] SASCFC 48; De Poi v Advertiser Newspaper [2016] SASCFC 25; Greek Orthodox Community v Pashalis [2015] SASC 122; Scali v Scali [2015] SADC 172, applied.

TAKHAR v SROA
[2017] SADC 110

This is an assessment of damages in an action for defamation by the plaintiff Bhupinder Takhar against the defendant Harminder Kaur Sroa.
Background
The plaintiff and defendant are both members of the Punjabi-speaking Sikh community in Adelaide, and are involved with an incorporated association by the name of Sabat Khalsa. The association operates a temple and meeting hall at King Street Prospect for members of the Sikh community. The temple is known as the Gurdwara.
The plaintiff has been president of the association since about 1998.
At some time the defendant wrote an article in Punjabi about the plaintiff and his role and activities as president of the association. The article was very critical of the plaintiff in a number of ways. She sent it to a newspaper who did not publish it. The plaintiff does not seek redress over that action.
On or about 5 June 2015, during a three day religious celebration, a version of the article was placed on the notice board at the Gurdwara. The article was brought to the attention of the plaintiff who took it down. That is the event which is the subject of this action.
Procedural steps
The plaintiff instituted proceedings for defamation by Summons and Statement of Claim dated 1 July 2016. He sought, and by order of the Court made 21 December 2016, obtained an extension of time nunc pro tunc in which to bring the action.
The defendant unsuccessfully sought summary judgment (on the basis that the action was out of time), but did not otherwise defend the action.
Consequently judgement in default of defence was entered on 10 March 2017 and the matter now proceeds to the assessment of damages. Directions were given on 19 May 2017 including that the parties’ evidence in chief on the assessment would be given by way of affidavit, with an opportunity for cross examination at the hearing. Each party filed a number of affidavits and several witnesses were cross examined at trial.
The defendant was unrepresented, although she had the assistance of a volunteer legal organisation throughout. Her filed documents, including affidavits relied on at trial, seem to have been prepared with some kind of legal assistance. Some inadmissible[1] or irrelevant[2] material was contained within those affidavits, all of which such inadmissible or irrelevant material the court has consequently disregarded.
[1] For example, references to settlement negotiations.
[2] For example, the impact of the litigation on the Defendant’s health.
I have regard to the plaintiff’s counsel’s objections to some of the contents of affidavits from Mr Thandi and Mr Bopari, and whilst I admit the evidence, the court limits the use of the affidavits strictly to the legitimate general reputational issue that the plaintiff’s evidence of his own good character and reputation put into issue, as discussed in more detail below.
The Issues at Trial
Although the author was not identified in the article, the plaintiff alleged that it was written by the defendant because it was virtually identical to an earlier article (of which the plaintiff was aware) she submitted to a Punjabi language newspaper in 2011, but which the editors declined to publish. In the plaintiff’s Statement of Claim the article submitted to the Newspaper is referred to as the First Article and the version published on the noticeboard is called the Second Article. The action for damages concerns the Second Article only. For convenience, the court will simply refer to it as ‘the article’.
The issue is the nature and extent of the damages, if any, the defendant is liable to pay to the plaintiff.
There is no claim for economic loss.
The plaintiff seeks general damages, and orders for interest and costs. Damages are sought to compensate for injury to his reputation, as a remedy for injured feelings and to vindicate the plaintiff for having been publicly defamed.
Damages for non-economic loss are limited by the Defamation Act (SA) 2005 (“the Act”). The maximum award of damages for non-economic loss pursuant to section 33 of the Act is currently $389,500.
The Act provides that damages must bear an appropriate and rational relationship to the harm sustained by the plaintiff, that exemplary and aggravated damages cannot be awarded, and that the state of mind of the defendant is irrelevant to the award of damages except to the extent that it affects the harm sustained by the plaintiff.[3]
[3] Defamation Act (SA) 2005, sections 32-35.
While a default judgement has been entered, and the defendant by her default admits the allegations in the summons,[4] in defamation proceedings although a plaintiff is entitled to judgment in default of the defence being filed, it is always a question of law (to be determined by the court) whether an imputation is reasonably capable of arising from the matter complained of, as if a defamatory implication plainly does not arise it is contrary to principle to determine a case in favour of a cause without merit on the face of the documents.[5]
[4] Cribb v Freyburger [1919] WN 22.
[5] Graham v Powell (No 3) [2014] NSWSC 185, Al Muderis v Duncan [2016] NSWSC 1726, Woolcott v Seeger [2010] WASC 19
Further, it is appropriate for the Court to consider the degree to which matters complained of convey the pleaded imputations, as the court must quantify damages with reference to the seriousness of the imputation and hence the defamation.
The plaintiff’s case was that he was of good reputation, that the defamation was serious and that accordingly substantial damages should be awarded.
The plaintiff gave evidence and called a witness concerning the parties, their relationship, the history of the association, the publication, the surrounding circumstances and sequelae.
The unrepresented defendant opened her defence by admitting the authorship of the article in question but denying that she had defamed the plaintiff. She said that while years earlier she had sent the article to a newspaper who did not publish it she had nothing to do with placing a copy or version of it on the noticeboard, and further that she had not intended to defame the plaintiff.[6] Much of her case was then directed to establish that the plaintiff had a bad reputation and had in fact done many of the things alleged in the article.
[6] T110-112.
The defendant gave evidence along those lines, as well as on similar topics as the plaintiff, and called several witnesses.
The primary focus of much of the evidence was how the plaintiff was in fact regarded, and the overall nature of his reputation.
Whilst in the absence of evidence on the topic the law presumes good reputation,[7] it is relatively settled that where the defence asserts that the plaintiff has a bad reputation to start with, and hence the damage to the plaintiff’s reputation by a defamation is less than it otherwise might be, the plaintiff may call evidence as to their good reputation and the plaintiff’s reputation will be in issue at the trial. Understandably the law has been careful to circumscribe the scope of such evidence, lest trials turn into global inquiries into the lifetime merit or otherwise of a person. Hence only evidence of the plaintiff's general standing and reputation in the community relevant to the defamatory remarks are admissible to prove reputation. The court should not limit the evidence too strictly to the exact matter and context of the litigation, but there must be some connection.[8]
[7] In Bickel v John Fairfax & Sons Ltd and Another [1981] 2 NSWLR 474
[8] Scott v Sampson (1882) 8 QBD 491, Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691, Dingle v Associated Newspapers Ltd [1961] 1 All ER 897, Bickel v John Fairfax & Sons Ltd and Another [1981] 2 NSWLR 474, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, National Auto Glass Supplies (Australia) Pty Limited v Nielsen and Moller Autoglass (NSW) Pty Limited (No 8) [2007] FCA 1625, Judd v Sun Newspapers Ltd (1930) 30 SR (NSW) 294; Lang v Beardsmore [1968] 2 NSWR 673, Burstein v Times Newspapers Ltd [2001] 1 WLR 579, Plato Films Ltd v Speidel [1961] AC 1090
By virtue of the default judgement, it is admitted and hence cannot be in issue for the purposes of this trial that:
-In or about May or June 2015 the defendant prepared the version of the article in question.
-The article is in terms of the English translation annexed to the Statement of Claim and set out below.
-On or about 5 June 2015 at a time unknown to the plaintiff the defendant or someone acting on her instructions placed the article on the noticeboard of the Gurdwara.
-The article was brought to the attention of the plaintiff late on the afternoon of Saturday 6 June at which time he removed it.
-The publication occurred at the time of a three day festival at the Gurdwara that was attended by numerous members of the Gurdwara.
The Defamatory Article
The article was written in Punjabi. A copy of the original and an English translation was tendered by the plaintiff.
The English translation of the article reads as follows;
Self Centredness
Respected readers, please forgive this writing which is not about any company, it is about an Australian Sikh temple (gurudwara sahib) the name of which was chosen with great devotion as Gurudwara Sarbhat Khalsa, Prospect, Adelaide, South Australia but it’s governing committee not recognising it as a house of worship has sought to see it as their own personal property. In other words it is bringing dishonour to it’s name. Here there is nothing pertaining to Sarbat (all inclusive) and nor to Khalsa either.
This self-proclaimed governing body is doing what it wills and the congregation is bearing up with their actions. There are reasons for this, one of which is that the president of this gurudwara sahib is a wealthy man and according to what those backing him say he has rendered great monetary help in the temple building itself and now also a lot of monetary help in obtaining the building which the residence of the priest (giani ji) which is the building adjoining the temple building itself. How this man became wealthy should not be of relevance to anyone, even if he has broken some laws by meting out great injustice to some chickens or by some other deeds, only God knows this. Alas, people can only perceive his wealth. People don’t stop to think that even the Dons (name of a famous smuggler in a Hindi movie of yester years), smugglers and the whores have a lot of wealth, a man needs to have respect.
It is a very good thing that if anyone has money and he is able to help in the purchase of the temple building but where’s the need for dominance and arrogance in this action. This sort of opportunity is only begotten by the blessed one. It is possible that the president of this temple has forgotten that in bringing this temple into existence, there were others besides him who though they may have not put forth as much money as him, but with their untiring and invaluable mental and personal endurance they have done immense service to get the temple going. Amongst them there are some of those foolish men too who bowed their heads in front of Guru Granth Sahib and made anonymous donations and did not even breathe a word about it to another. Amongst the Guru’s worshippers there need to be this class of wealthy. The president and his wife do not ever recall or remember all such humble servants. This equates to having got what one desired. Akin to an old Hindi song the desire is achieved and now she doesn’t even recognise me. And now – who are you and who am I? The temple is got off to a start, now what do we need those people for?
The president has never bothered to think that if those old temple helpers (sevadars) have stopped coming or only come sometimes, then at least due to their big contributions to this organisation they should be asked the reason for their resentment and he should try to allay their displeasure. Their returning to the temple again will be a great help in helping to keep the faith’s guidelines secure once more. But the president is not doing this because then what will happen to his leadership? This ego for the chair does not let a man rest.
The president and his wife think of themselves as dictators, contractors of religion, and thinking of the temple as their own personal property think of themselves as the do-all and the end all of the temple and this is one of the living examples of the self interest in the management of temples today.
These two have kept with them two others a brother and sister – real cronies, who forgetting their own existence go around these two like puppets and rubber stamps for the only reason that by mixing with these people their respect in the Sikh community grows because they are friends of a wealthy person. This brother and sister do not stop to think that if the president and his wife are wealthy, they are wealthy in their own home. Of what good is their being wealthy to these two cronies? This brother and sister continue being just cronies without mentioning or questioning anything the president or his wife are doing as if to say they are not humans but deities. Other than these two there are many other cronies who circle around their wealth and come and go like gusts of wind.
The other reason for the president doing as he pleases has to do with his wife’s beauty. In some people’s eyes she is very beautiful. Those who act as cronies or use flattery are able to have their say in the temple. Some such men and women have been seen in the temple who do not inquire about the welfare of their own families, who do not have any time for them, but these same people only come to the temple because of the immense wealth of the president to be his cronies and also to behold his wife’s beauty and these are their (the president and his wife’s) favoured ones. What can we say, though here those who serve the temple are selected after paying obeisance to the Guru Granth Sahib but this is all for the public to see. This temple was initiated with keeping great ideology in mind but now what is left is the idealism of the president’s wealth and his stylish wife’s flattery about whom it is commonly said that she is so stylish that even when she is driving a car she applies lipstick while stopping at a red trafficsignal. Which bastard will not be a cronie to such a woman. There are very few such simplistic people.
This temple was started a long time ago and the basis of the ideals to be followed were the Sikh religious codes. All those in the service of this temple at that time were truly committed to serving the temple and they worked tirelessly not caring whether it was day or night and gave their selfless service to this holy place which the Sarbat Gurudwara Sahib was brought to it’s goal but slowly due to the leadership, self centredness and ego of the president and his wife the growing numbers of their cronies got bigger and the numbers of those who did true service started to shrink. Amongst them those with dignity having become unhappy with the self-centred attitude of the president and his wife either stopped coming to the temple while some others though they were unhappy keep coming and put up with these people’s selfcentred attitude.
Some of the president’s other bigotries about which the newer congregation do not know, need mention here. Many years from today, many congregants were people belonging to the Hindu faith who began coming to this temple here in large numbers. The president said some hurtful things pertaining to their faith which forced them not to attend. One’s own religion and religious leaders are dear to everyone. Why and now should one have to hear insults meted out to one’s faith and beliefs?
Other than this the president resorted to criticizing a great leader and believer in God who was the religious head of a sect in a place named Beas in Punjab and he went to the extent of saying that when this leader utters a religious line in the ear of his devotees when giving them Naam Dann, he makes irritating sounds by blowing into the ears of his followers and also that he spits into the food before performing the ‘Bhog’ on the food (langgar). Hurt by these utterly foul words some of the followers of the religious leader who was slighted were hurt and they stopped coming to the Sarbat Khalsa gurudwara completely. They thought who would want to confront and argue with such a foolish man whose policy is akin to ‘I will not believe’. They started going to another temple where at least no one said such demeaning and hurtful things about their leader. However, some who are devoid of
any self respect and to whom being cronies of the president and to beholding the beauty of his wife seems better than the love of their own religious beliefs and so they continue to come here and do their crony activities. Utter shame to these people for their lack of self respect Someone should ask the president what proof he has that such things happen at the notable religious headquarters of this place in Punjab. Has he ever gone to visit that place or is he simply uttering some unintelligent things. We are aware that in the Sikh religion there is no place for the pretentious of so called living gurus but first of all someone should go to Beas and see for himself what is taking place there.
There is another example of the low mentality of the president. Once an elderly man came here from Punjab, during which time he also met the president and gave him a book to read which was against his religious leader. Look at the president’s mentality, when he returned the book to the elderly man, he wrote some demeaning and upsetting things against the religious leader who was the writer of the book. If a man believes in a religious leader, he is his ultimate guru and how wise is it to write about someone’s religious leader.
The president also needs to think deeply and wisely about this matter.
When Guru Gobind Singh ji established the Khalsa community, then the first good deed to come to a Singh was humility (Daya – which was also the name of the first of the Five Blessed Ones – Daya Singh) Forget about the other good deeds, one does not even see the first good deed in the president. There is a fresh example of this before us. A sick Australian woman residing besides the Sikh temple who has recently come home after a stay at the hospital occasionally comes to the temple to avail herself of some food from there hearing that no one goes empty form the guru’s abode but the poor lady gets less of the freshly cooked food but more of the stale food and telling off. On occasion, the president, his wife and their cronies have told her off quite badly. If someone does try to give her some food, the president says that first the congregation has to be fed and only afterwards will this lady be given any food.
Perhaps the president needs to understand the meaning of the word congregation, in addition he needs to read the story of Bhai Kanhaiya who without looking at any differences, served water to the enemy’s forces and also dressed the wounds of the enemy soldiers and he also needs to realise what the name of the temple of which he is president signifies? We want to remind him that the Sikh religion does not attempt to lower or criticize any other religion. It is always asking for benevolence for all.
Another example of the non-benevolence and heart wrenching attitude of the president goes thus. A young man’s father who was very ill was approaching the last minutes of his life. The president’s children had some sort of misunderstanding with that young man. The president, not giving any thought to what that young man was enduring at that time, threatened bodily harm to him in some way as a result of which his already poor troubled mother and his aged grandmother were close to death themselves with fear. On one hand there was no telling when his very ill father could breathe his last and on the other hand this president who considered himself very clever and smart threatened the young man with bodily harm and the resultant pain that he brought upon the near death father on his poor old grandmother’s mind whose son was on the verge of leaving this earth in front of her very eyes, on his mother who didn’t know when she would be rendered a widow, and that young man himself and his younger sister and he put great fear and terror on their already heavily burdened and hurt feelings. No matter how big the fight or argument may be, no wise or sane person considering the delicateness of situation into consideration will do this. All this is the symbol of the force of the money and ego on the president’s mind.
Listen to another incident relating to the president of this temple. Sometime ago, the president got a learned priest (giani) of another Sikh temple in Australia uprooted first with his family and had him moved to this Sarbhat Khalsa temple to serve as a priest. This priest and his entire family performed a great service for this temple. Then when the president in showing off his position as the president tried to order the priest to do some subservient jobs for him and the priest refused to do these, this was a great blow to the president’s ego. It is very difficult to hear the truth. For the president who was only used to people bowing to his influence and having his cronies attend to his every command, this was hard to bear. He using his dictatorial powers and laying totally false accusations on the priest, got rid of him from the temple. For this act which is against the ideals of Sikhism was also given firm backing by the brother and sister team of cronies who backed them for this act. There were many who stood up to this decision of theirs but who listens to those poor voices. May the youth who help uphold the Guru’s Sikh ideals be blessed for it is their action and that of Sardar Mahanbir Singh Grewai who recognising the truth took in Giana ji to their Sikh temple Nanak Darbar Allenby Gardens which has always been the upholder of the rights and the truth and appointed him as the priest therein.
Another example of the self-centredness and dogmatism of the working committee is put forth here. Some devotees who are unwell and have problems with their limbs cannot come to the temple and sit on the floor. As there are no chairs to sit on, these unfortunate ones do not come to the temple. In relation to this matter, some of these people also had insults thrown at them and if at times some of these devotees did come to the temple to attend a wedding or at the invitation of some member of the congregation and due to their bodily pain, they listened to the prayers, the singing of the hymns and the ardass while standing up for the duration of the religious proceedings, they had to face great anger and resentment. In reality this is a matter of equal opportunity for the provision of equal facilities for everyone. The argument put forth by these self-appointed religious contractors is that if they provide chairs, then the whole congregation including the youth will choose to sit on the chairs. No one’s conscience will allow that they come to the temple and seat themselves on the chairs. There are only the unfortunate ones who being plagued by ill health, ask for chairs to sit on. One only has to take a look at their poor bodies to know their of their plight. It does not give them any pleasure that they want to be seated on chairs. They are compelled to resort to this. We are very much aware of Guru ji’s concept of congregation and the necessity to be seated next to each other (sangat and nangat). These hardcore contractors of the religion have to find a way where the tenets of the Sikh religion are not broken and these unfortunate members of the congregation can also be accommodated so that they can come and listen and receive the Guru’s Blessings and not be left out. The managing committee should adhere to the religious maxim of ‘For the good of all’ (Sarbat).
As is often said that cleanliness is next to Godliness but listen to the latest news pertaining to this temple. Recently it was heard that due to some negligence pertaining to maintaining cleanliness, large numbers of rodents have been seen. So much so that even on the Dias where the Holy Guru Granth Sahib is placed daily, these rodents have been seen roaming around. It has come to be known that now due to the spreading of some poison these rodents have decreased in numbers. Dear members of the congregation, there is no need to say any more. You have to stop and think and gauge for yourself as to how indifferent and irresponsible the president and his committee have been about the cleanliness and care of the temple.
It is also important to mention that normally children walk and run around on the platform outside the temple with their shoes on where the flag bearing the Sikh insignia is hoisted. We beseech this organising committee to take measures to find a solution to stop this sacrilege. The committee has been notified orally about this situation many times previously.
We humbly ask that the president, his wife and their cronies to come to their senses and to get a firm hold of their wisdom. After reading the bitter truths written herein, instead of getting angry they should aim for the betterment of themselves. They should stop thinking of this, namely the Sarbat Khaisa religious institution as their personal property and private limited but as the common religious house of worship of everyone and should try to embrace some good deeds of the Khalsa. They should also learn that in the Sikh religion Guru ji has not allowed any misdeed or injustice on anyone as is happening during their time of rule. Guru ji has also said that if anyone does try to do injustice to you, you should not tolerate it. Do not mete out any injustice on anyone and do not tolerate any injustice on yourself.
The deeds and the words of the president, his wife and their cronies have hurt and are continuing to hurt a lot of people. This is an eternal truth that one who hurts any living being, hurts the Lord. There is a saying of wise men that if one who gets lost in the morning but does get home in the evening, he is not deemed lost. No human being is perfect. All humans make mistakes but courage and valour are recognised in the one who after making mistakes recognises them and endeavours to bring change within himself. He is the one who can be classed as a complete human being.

At trial, the defendant admitted that she had written the article, but she denied causing it to be placed on the noticeboard at the Gurdwara. However by reason of the default judgement, it is no longer open to the defendant to deny liability for publication of the article.
The imputations alleged by the plaintiff as being conveyed by the article were that:
8.1     the Plaintiff has become wealthy by engaging in illegal activities;
8.2     the Plaintiff has been involved in smuggling and prostitution;
8.3     the Plaintiff thinks of the Gurdwara as his own personal property;
8.4     as President the Plaintiff is:
8.4.1 self-centred,
8.4.2 egotistical,
8.4.3 bigoted,
8.4.4 dictatorial,
8.4.5 uncaring towards the sick, elderly and disabled;
8.4.6 indifferent and irresponsible.
8.5     the Plaintiff made a threat of bodily harm to a young man;
8.6     the Plaintiff cares only about money and himself;
8.7     the Plaintiff made false accusations against a priest in order to have him removed from the Gurdwara.
At trial the defendant disputed that the article was translated accurately, and maintained that some of these imputations were not conveyed (namely imputations 8.1 and 8.2).
The Evidence
On an initial assessment of the article, the following observations may be made.
The article is headed ‘Self centredness’(sic), then starts out with stating that the governing committee of the temple do not recognise it as a house of worship but see it as their own personal property, are doing what they want and are thereby bringing dishonour to its name. It says that a reason for this is the president is very wealthy and had significant financial input into the temple. Indeed, the whole article has this flavour.
There is therefore weight to pled imputation 8.3, in that the reader would have the initial impression that the plaintiff as president would be at the head of such governing committee and likely a part of or responsible for the attitudes asserted. That impression is accentuated and confirmed as the article proceeds.
The article then goes on to refer to possible sources of the plaintiff’s wealth. As the effect of what was said on this topic is in dispute, I will set it out the exact words used;
How this man became wealthy should not be of relevance to anyone, even if he has broken some laws by meting out great injustice to some chickens or by some other deeds, only God knows this. Alas, people can only perceive his wealth. People don’t stop to think that even the Dons (name of a famous smuggler in a Hindi movie of the yester years), smugglers and the whores have a lot of wealth, a man needs to have respect.
The plaintiff argues that particularly in context with other aspects of the article this passage conveys the imputation that he became wealthy by engaging in illegal activities and had been involved in smuggling and prostitution. The defendant submits that the article does not convey those things at all.
I do not think the words convey that the plaintiff specifically was a smuggler or a whore, however in using those professions as examples as to how others also have become wealthy, in the context of observations as to the plaintiff’s wealth, the words convey that the plaintiff may well have become wealthy in some unspecified but similarly illegal or amoral way.
There is therefore some weight to pled imputation 8.1, in that the reader would have the impression that the plaintiff may have become wealthy through illegal activities. There is little weight to pled imputation 8.2 that the plaintiff had become involved in smuggling and prostitution.
The article then says, in the context of discussing the plaintiff’s wealth, that while it’s good for people to have money, ‘where’s the need for dominance and arrogance.’ The article goes on to observe that many other had contributed to the temple, and that many have stopped attending, and that efforts should be made to address their displeasure and have them return … ‘But the president is not doing this because what will happen to his leadership? This ego for a chair does not let a man rest. The president and his wife think of themselves as dictators, contractors of religion, and thinking of the temple as their own personal property think of themselves as the do-all and end-all of the temple and this is one of the living examples of the self interest in the management of temples today.’
The article then says that the other reason for the president ‘doing as he pleases’ is related to his wife’s beauty, asserting that many attend the temple simply to behold that beauty rather than for the right reasons. Whilst this may well be defamatory of those who it asserts are attending for the wrong reasons, in its natural and ordinary meaning it does not convey a materially adverse connotation to the plaintiff’s motivations or actions beyond what is elsewhere asserted as to the plaintiff doing as he pleases in the role. The plaintiff has argued that in the way his wife is described there is some inference that she is a prostitute, however that is not immediately apparent from the wording.
The article then says that after the temple had been started a long time ago with good ideals, slowly
… due to the leadership, self-centeredness and ego of the president and his wife the growing numbers of their cronies got bigger and the numbers of those who did true service started to shrink. Amongst them those with dignity having become unhappy with the self-centred attitude of the president and his wife either stopped coming to the temple while some others though they were unhappy keep coming and put up with these people’s self-centred attitude.[9]
[9] Typographical errors corrected.
These passages plainly convey pled imputations 8.4.1 and 8.4.2 that the plaintiff is self-centred and egotistical.
The article then continues ‘Some of the president’s other bigotries …. need mention here’ saying he had said demeaning and hurtful things about the Hindu faith, and a particular sect leader, and drove people away with these comments, and asked had he been to the places mentioned or was he ‘simply uttering some unintelligent things.’ The article then says ‘There is another example of the low mentality of the president….’ alleging that he wrote demeaning and upsetting things in a book he borrowed from a man about that man’s religious leader.
This passage plainly conveys pled imputation 8.4.3 that the plaintiff is bigoted.
The article then says that one does not even see humility in the president and cites alleged events whereby a sick woman came to the temple for food and ‘the president his wife and their cronies have told her off quite badly,’ also telling people the congregation must be fed first. The article goes on to say he does not understand the meaning of the word congregation.[10] It then proceeds to give ‘…another example of the non-benevolence and heart wrenching attitude of the president..’ asserting that the president threatened bodily harm to the son of a dying man, causing the man’s mother and grandmother and father to be ‘close to death themselves with fear.’ The article says that no wise or sane person would do that, concluding that ‘All this is the symbol of the force of the money and ego on the president’s mind.’[11]
[10] Lines 99-109.
[11] Lines 115-128.
The article then makes an allegation that the president had a priest transferred to the temple, forced him to perform subservient tasks which the priest refused to undertake and that this was a great blow to the president’s ego…(so) he using his dictatorial powers and laying totally false accusations on the priest, got rid of him from the temple….. this act which is against the ideals of Sikhism…”
This passage conveys pled imputation 8.4.2, 8.4.4 and 8.7 that the president was egotistical, dictatorial and made false accusations against a priest in order to have him removed from the temple.[12]
[12] Lines 129-142.
The article continues ‘Another example of the self-centredness and dogmatism of the working committee is put forth here’ then complaining that the unwell were not allowed to sit on chairs and insulted in the temple.
These various passages, in context, plainly convey pled imputations 8.4.4, 8.4.5, 8.5 and 8.6 to the effect that the president is dictatorial, uncaring towards the sick, made a threat of bodily harm towards a young man and only cared about money and himself.[13]
[13] Lines 144-162.
The article then complains that the temple is negligently not being kept clean to the extent that rodents abound, concluding ‘there is no need to hear or say anymore. You have to stop and think and gauge for yourself as to how indifferent and irresponsible the president and his committee have been about the cleanliness and care of the temple’ and that children are being allowed to sacrilegiously run around on the platform outside the temple where the Sikh insignia is hoisted.[14]
[14] Lines 163-174.
This passage conveys the pled imputation 8.4.6 that the president is irresponsible and indifferent.
The article ends with an exhortation for:
… the president, his wife and their cronies to come to their senses and to get a firm hold of their wisdom. After reading the bitter truths written herein, instead of getting angry that they should aim for the betterment of themselves. They should stop thinking of this, namely the Sarbat Khaisa religious institution as their personal property and private limited but as the common religious house of worship of everyone and should try to embrace some good deeds of the Khalsa. They should also learn that in the Sikh religion Guru ji has not allowed any misdeed or injustice on anyone as is happening during their time of rule. Guru ji has also said that if anyone does try to do injustice to you, you should not tolerate it. Do not mete out any injustice on anyone and do not tolerate any injustice on yourself.
The deeds and the words of the president, his wife and their cronies have hurt and are continuing to hurt a lot of people. This is an eternal truth that one who hurts any living being, hurts the Lord. There is a saying of wise men that if one who gets lost in the morning but does get home in the evening, he is not deemed lost. No human being is perfect. All humans make mistakes but courage and valour are recognised in the one who after making mistakes recognises them and endeavours to bring change within himself. He is the one who can be classed as a complete human being. (emphasis added)
This passage further conveys pled imputations that the president thinks of the temple as his personal property and has hurt members of the congregation.[15]
[15] Lines 175-189.
Evidence on oath
I will set out a brief summary of the evidence called. The court has considered the evidence in its entirety.
The plaintiff’s witness was Santokh Sandher Singh. His evidence, given primarily by affidavit, was that he moved to South Australia in 1979 at which time he met and became friends with the plaintiff. He said that he knows the plaintiff well and that the plaintiff is well known, regarded and respected as a leader of the Sikh community.
Mr Singh said that he did not see the article on the noticeboard, but that the plaintiff showed him the article concerned. He also heard that an article had been placed on the noticeboard of the Gurdwara. He said he had heard the article discussed by members of the community and believes that many have heard about the contents ‘even if they did not see it on the noticeboard’. He said that the plaintiff appeared very upset about the article and often makes reference to it.
In cross examination Mr Singh said that he heard about the article at a meeting of a couple of people that was held after the article had been removed, at which he was shown the article by the plaintiff.[16] Although Mr Singh said in his affidavit that the plaintiff was upset because he had helped the defendant and her family, he admitted in cross examination that by ‘helped’ he just meant that everyone was working together to help the community.[17]
[16] T54-55.
[17] T56.
The plaintiff’s evidence, again primarily given in affidavit form, was that he was born in Punjab, India in 1948 and migrated to Australia in 1965, marrying in 1977. He has three children.
He gave evidence that he obtained a number of qualifications in Queensland culminating in a masters degree in agricultural science, after which he moved to South Australia and worked in livestock and produce roles for several years. He received an MBA from Adelaide University in 1985, at which time he went into business for himself, setting up two chicken producing farms which he still operates today. Over time he has operated various other enterprises.
The plaintiff described his strong Sikh faith, and how over the years he has maintained his faith and supported it in a number of ways. In 1981 he contributed monies towards setting up a Sikh Gurdwara and meeting place, and over time in many ways contributed to the Sikh community, including when a local Sikh society was set up. Eventually in 2010 the society purchased a hall in King St, Prospect to use as a permanent Gurdwara. He significantly assisted with this purchase. the Gurdwara is also used as a Punjabi language school and a religious school for children akin to a ‘Sunday school’.
The plaintiff gave evidence that the society is managed by an elected committee which in turn elects officeholders including the president. The plaintiff was president from the time the association started, however recently stood down in light of these legal proceedings. The plaintiff said he was very hands on, devoting perhaps 15 hours a week in voluntary work. He says the association is very successful and that the Gurdwara is now very well attended and supported.
The plaintiff says he is proud of his work in the Sikh community and it is very important to him.
The plaintiff gave evidence that each year there is a three day religious celebration for the martyrdom of the 5^th Guru. In 2015 it was held over 5, 6 and 7 June. That year up to 1200 members of the community attended the Gurdwara for the celebration. The plaintiff said that he attended at about 7.30pm on the Saturday, 6 June. A young boy approached him saying something was on the noticeboard with the words ‘Uncle, your photo is there, what’s this about?’ At that the plaintiff looked at the noticeboard which contained a newspaper column concerning him (with photo)[18], and next to it was the article in question, typed in Punjabi. He read the article and removed it.
[18] On an unrelated topic.
The plaintiff indicated that the noticeboard is near a washbasin at the entrance. The washbasin is customarily used by all visitors to wash their hands and feet before they enter the Gurdwara, and so all would have passed by the noticeboard concerned. Photos of the noticeboard were tendered.[19]
[19] See tender book P1.
The plaintiff immediately suspected the defendant had written the article. One of the reasons for his suspicions was that he had recently refused a request by her husband to assist her brother to come to Australia, and the plaintiff had recently also raised the issue of the defendant inappropriately taking food from the kitchen for her own use.
The plaintiff then took steps to seek an admission and apology from the defendant, including seeking a meeting with the defendant and her husband to ask why she had done something so hurtful and to resolve the matter, but when that was unsuccessful he decided to commence these proceedings to repair his reputation.
The plaintiff described how the article upset, hurt and has affected him over time. He said that the way in which his wife is described, with the emphasis on her appearance, in Punjabi and Sikh culture can only be interpreted as alleging she is a prostitute.
The plaintiff dealt with matters raised in the defendant’s affidavits. He rejected suggestions that he was disrespectful and disparaging about other religions such as Hinduism.[20] He said that while he did ask a person, Amrik Thandi, to remove something Mr Thandi had put on Facebook, he had never threatened him or threatened to sue him. The plaintiff said he has never sued Mr Thandi, or anyone else, over anything.[21]
[20] T62-64.
[21] T65.
The plaintiff rejected suggestions by a person, Avtar Boparai, that he had extreme views on religion, or that he had a history of dominating and aggressive behaviour. In response he said he had once mediated a problem with Mr Boparai’s former wife and some property, and that Mr Boparai may have an attitude towards him on account of that.[22]
[22] T67-68.
The plaintiff was asked about an historical event concerning the defendant wherein she was alleged to have slapped a child, and he responded that at a community meeting at the time he had assisted by trying to calm the situation and not have those concerned take the matter to court.[23]
[23] T70.
The defendant then cross examined the plaintiff on a range of topics. Much of this was discursive and verged into matters that were not in issue in light of the default judgement. I disregard those matters, and have regard only to the relevant and admissible aspects. In relation to the disputed historical events that had been raised, the defendant in the course of her questioning the plaintiff appeared to accept some of the answers the plaintiff gave, as reminding her of what in fact happened.[24]
[24] For example at T80-83.
The plaintiff explained that he did visit the sick person alleged, but that it was a concerned visit and that he never threatened anyone there, and indeed had no reason to threaten anyone.[25] The plaintiff explained that he did have a priest removed but that was because the priest admitted stealing food from the temple.[26]
[25] T89-92.
[26] T92-94.
In re-examination the plaintiff further commented on some of the matters raised with him in cross examination.
The plaintiff gave evidence in a straightforward and rational manner. There was nothing immediately obvious in his demeanour and presentation of concern.
Then came the defence case. The defendant tendered her own affidavit and that of Amrik Singh Thandi, Avtar Singh Boparai, Chamkaur Singh Sroa, Mandeep Rikhi and Preet Kaur.
The defendant gave evidence that she was also born in Punjab, India. She was educated in India receiving a number of university degrees culminating in a Master of Arts in Political Science in 1978. She married in 1979 and has two children. The defendant worked as a teacher in India, and migrated to Australia in 1992. She then obtained qualifications in interpreting, teaching and training, and is an accredited interpreter and JP for the State of South Australia.
The defendant gave evidence that she was also actively involved in the Sikh community, and that she and her friends and family were actively involved in the Prospect Gurdwara. The defendant said that she would regularly help as a volunteer both in the kitchen, as a translator and in helping members of the community fill out forms. She said that since the present matter arose she has not attended the Gurdwara and she avoids events where the plaintiff will be present.[27]
[27] Affidavit of 23 June 2016.
The defendant gave evidence that she did not attend the 2015 celebrations in question, did not put the article up on the noticeboard and does not know who did. Apart from being told by a friend that that friend’s son saw the notice on the board, she has not heard of anyone else who has seen it. Further, no-one had mentioned to her that they thought any the less of the plaintiff on the basis of any material on the noticeboard.[28]
[28] Affidavit of 23 June 2016.
The defendant recounted that there was an incident at a school in or around 1994 whereby a complaint was made about her, but so far as she was concerned the plaintiff was not involved in any mediation or assistance to her. The defendant denied she had made the request alleged by the plaintiff to help her brother. She said that the plaintiff did raise a complaint about her taking vegetables from the kitchen, however it was untrue.[29]
[29] Affidavit of 23 June 2016.

The defendant said that she had a disagreement with the plaintiff sometime in 2015 relating to the giving of free food to visitors of the Gurdwara, as the plaintiff would not let her give out the food in the way that she was doing, and that there was a heated discussion about that. She concluded her affidavit saying that she did not enter a defence, but only because she was physically and mentally exhausted and financially drained from the proceedings.[30]
[30] Affidavit of 23 June 2016.
The defendant then gave evidence on oath, and in answer to questions from the bench said that everything she had said in opening and in propositions she had put to the plaintiff and his witnesses was true.[31]
[31] T117.
The defendant said that the plaintiff’s reputation had not been harmed because so far as she knew he was still the president of the association, people were still listening to him, and she had not heard of any change in people’s views about him, and if anything the article had ‘bounced back on me’ rather than affected the plaintiff’s reputation.[32]
[32] T119-120.
When questioned about some specific events, such as the supposed threat the defendant claimed that the plaintiff had made to a dying man or his family, the details became very vague and seemed to be based on a phone call from someone who had made a comment to the defendant that a threat of some unspecified type had been made.[33]
[33] T121-122.
In cross examination the defendant agreed that her husband and her sister in law had been on the committee and that if she had grievances with how the Gurdwara was being run she could have taken them up that way, but she said that the plaintiff wouldn’t have listened and in any event she regarded her husband and sister in law on the committee as little more than puppets in the plaintiff’s hands. The defendant agreed she was concerned or unhappy with the plaintiff over a number of incidents.[34]
[34] T127-130.
In cross examination the defendant agreed that some people would have read the article when it was up on the board and would be talking about it.[35]
[35] T131.
The evidence of Mr Thandi per his affidavit was that he had known the plaintiff as president of the Gurdwara for the past 23 years. Mr Thandi said that the plaintiff did dominate it and did as he wished, filing cases against people who tried to confront him. He said that the plaintiff disrespects other religions and has made disparaging comments about them, in particular the Hindu religion, and made an inflammatory comment over an incident in India, to the effect of ‘the time from ringing bells has gone, now you should pick up your swords.’ He said that Hindu devotees had stopped attending the Gurudwara because of the plaintiff’s speeches.
Mr Thandi said that because of the plaintiff’s speeches Mt Thandi did not believe that the plaintiff is held in high regard and that Mr Thandi did not believe that anyone who read the article would have thought any less of the plaintiff than they already did. Mr Thandi said that he did not see the article on the noticeboard on 5 June 2015 or at any other time.[36]
[36] Affidavit of 7 July 2017.
Mr Thandi gave evidence on oath, indicating that the plaintiff had now taken action through the committee to ban him from the Gurdwara, and indeed threatens people with court or the police if they go against him.[37]
[37] T134.
In cross examination Mr Thandi said he had been a committee member of the Glen Osmond temple for a long period of time, but said that despite that he would visit the Prospect temple, for example on about 20 occasions in 2016.[38] He maintained his evidence on the various topics raised in his affidavit. He was asked why, if people do not like or respect the plaintiff, the plaintiff is still in charge of the Gurdwara. Mr Thandi responded that the plaintiff had brought people in from the Riverland to support himself.[39]
[38] T136-137.
[39] T143.
The evidence of Mr Boparai per affidavit was that he had known the plaintiff for 25 years and that the plaintiff’s reputation has not been the most honourable or respectable in that time, and that the article has not changed people’s views about him. Mr Bopari cited an RSPCA animal cruelty investigation about the plaintiff which was broadcast on television in 2001 and states that the plaintiff has in Mr Boparai’s opinion a long history of dominating and aggressive behaviour and voices extreme views about Sikhism.[40]
[40] Affidavit of 7 July 2017.
In cross examination Mr Boparai agreed he lived in Swan Reach, did not regularly attend the Prospect Gurdwara, had met the plaintiff only about four or five times and did not know the plaintiff very well. Mr Boparai said he had heard from others about what he was like. He said that he had no recollection of the plaintiff ever being involved in the mediation or resolution of a family law dispute between his former wife and subsequent partner.[41]
[41] T146-147.
Chamkaur Singh Sroa is the defendant’s husband. He gave evidence per affidavit that he was the treasurer of the Gurdwara from 1995 to early 2016, and an active member of the Sikh community as well. He said that there was never a request made to the plaintiff (as alleged by the plaintiff in his affidavit) to assist to bring his brother in law to Australia, and that his brother in law visited Australia from 9 May 2015 to 27 October 2015. He also said he did not see the article pinned to the noticeboard on 5 June 2015. He was not cross examined.
Mandeep Rikhi is the assistant secretary of the Indian Australian Association of South Australia. He gave evidence per affidavit that he has known the plaintiff as a member of the Prospect Gurdwara for approximately five years. He said that during visits to the Gurdwara the plaintiff made hurtful and disparaging comments about other religions including the Hindu religion, in particular comments like ‘There is no such religion as the Hindu religion’, ‘the Hindu religion never existed,’ and ‘in the history it is mentioned that Hindu was the name used for ‘Chor’, which means thief.’ Mr Rikhi said that as a result of such comments he stopped going to the Gurdwara, and he had noticed others had similarly stopped attending. Mr Rikhi said that due to the plaintiff’s comments he does not believe that the article would have adversely affected the plaintiff’s reputation in any way. He was not cross-examined.
Preet Kaur is the defendant’s daughter. She gave evidence per affidavit that the witness’ connection to the plaintiff’s elder daughter (as referred to in the plaintiff’s affidavit at para 63) has not been affected by the article and she has had no contact with that person for over 10 years.[42] She was not cross examined.
[42] Affidavit of 23 June 2017.
Analysis of the evidence and factual findings
The court has carefully assessed each witness and reviewed all the evidence tendered. The court has had regard to each parties’ submissions as to the facts.
The court finds on the balance of probabilities that the article was accurately translated.
Insofar as it is necessary to do so notwithstanding the default judgement, the court finds that the article conveyed all the defamatory imputations pled, with the one exception of the imputation relating to the plaintiff’s wife, which even if it could be interpreted as critical of her would be taken to assert vanity rather than the more serious suggested imputation earlier referred to, and in any event asserting vanity on the part of the plaintiff’s wife is not defamatory of the plaintiff.
As such however, the imputations that are established that were made against the plaintiff are significant.
In light of the default judgement, the imputations are regarded by the law as untrue.
The imputations would likely and understandably have upset the plaintiff to exactly the degree he claimed. The court so finds.
The court turns to consider the extent to which they were disseminated, and the scale of the injury to the plaintiff’s reputation.
In general, I accept that all witnesses were by and large attempting to tell the truth.
I find that the plaintiff has contributed substantially to the Sikh community over the years, making all the contributions he says he made, and accordingly he has played a very substantial role in the creation and maintenance of the Prospect Gurdwara.
I find that the plaintiff is, however, to a considerable extent, a polarising figure. Some members of the Sikh community such as the plaintiff’s witness Mr Singh, hold him in high regard, whilst others like the defendant’s witnesses Mr Thandi, Mr Boparai and Mr Rikhi have a contrary view. Whilst I also have regard to the evidence of the defendant’s husband and daughter Mr Sroa and Ms Kaur, as relatives of the defendant they have less independence.
As a result therefore, members of the community are likely to hold strong existing views about the plaintiff, and accordingly the article in question, to the extent that members of the community have become aware of it, is likely to be discounted by the plaintiff’s supporters, but tend to reaffirm negative views held by his detractors.
The court finds that each witness held strong views about the plaintiff, and that these views to an extent coloured and informed their memory of events. So while each was by and large honestly trying to recall matters, memories were unconsciously selective to some extent as to how events were recalled, particularly in terms of characterising the portrayal of the plaintiff in those events.
The defendant’s evidence was however unsatisfactory in some ways. Many of her answers, and indeed her questions in cross-examination were discursive, rambling and impressionistic. When pressed about the events she had critically and negatively ascribed to the plaintiff in the article, it often became very unclear how she knew about those claimed events, and more particularly how they could bear the negative connotation that she gave them in the article. For example, the accusations that the plaintiff had in some way attacked the family of a dying man eventually seemed to be an unlikely and illogical conclusion based on a non-specific hearsay conversation with a person over the phone many years ago.
It must be observed that the colour and phrasing of the article reveal a clear degree of negative animus by the defendant towards the plaintiff.
In the final analysis, the defendant’s actions on balance are likely to have been motivated by a mix of disagreement with the plaintiff’s methods and conduct, together with anger and resentment at the longstanding primacy of his role within the Gurdwara and his consequently strong influence over it.
As to the extent of the publication and dissemination of the defamatory material, it should first be observed that the publication was made in the Gurdwara during an annual three-day festival celebrating the martyrdom of the fifth Guru, hence at a time when a significant number of people would have visited.
The article itself is a densely typed single spaced 4 page document in Punjabi and in a relatively small font. The noticeboard in question was adjacent the handwashing basins and hence prominent to all who might enter the Gurdwara. It was next to a newspaper cutting containing a small photo of the plaintiff and mentioning him.
On the other hand, as indicated by the tendered photo of it, that noticeboard is a place for all manner of note, notice or random piece of paper. At the time the photo was taken of the noticeboard it contained a seemingly random assortment of about 20 pieces of paper of various descriptions. The placement of the basins means that would-be readers remain probably a metre from the noticeboard. The article would have been one of a number of apparently random and assorted pieces and bits of paper on the board.
On the evidence, it is not possible to definitively conclude how long the article was on the noticeboard concerned. Whilst counsel emphasised what were said to be the defendant’s concessions as to how long the article was there, in fact the defendant’s evidence was that she was not there on the day and did not see it, and had no way of knowing how long it was there. Whilst the court must find based on the default judgement that she was directly or indirectly responsible for it being put up, the evidence simply does not enable a finding that it was on the noticeboard for any particularly long period of time prior to it being brought to the attention of the plaintiff and he immediately taking it down.
Given how critical the article was of the plaintiff, it is likely that as soon as it was noticed by anyone who knew and liked the plaintiff and realised its contents, certainly if it had been seen by any of the committee who it is reasonable to conclude were aligned with and sympathetic to the plaintiff, it is likely that it would have been immediately brought to the attention of the plaintiff, whether he was physically at the Gurdwara at the time or not. It was not.
Only the plaintiff gave evidence as to finding out about the article from someone else who had actually seen it, and that was from a child who was observing that his photo was in a newspaper clipping next to it rather than who noted the contents of it. The plaintiff’s only witness only found out about the article by being told about it by the plaintiff at a small meeting called by the plaintiff about the article. That witness said that the plaintiff then constantly mentioned it and was very upset about it.
Hence on balance I conclude that the article had not been on the noticeboard for at all long, or if it had been, had gone relatively unnoticed for that time.
In the totality of the circumstances, it is likely that only a very small number of people read all or part of the article. In other words, the publication was very limited in its actual reach. Given the contents, it is likely that the article would have generated a reasonably foreseeable measure of secondary discussion by anyone who did read it. But that also would have been limited.
An indicator of the limited dissemination of the imputations overall is that there is no evidence that the publication stimulated any move to unseat or otherwise formally question or criticise the plaintiff’s continuing role as president of the Gurdwara.
Mitigation
Section 36 of the Act provides that certain matters may mitigate a claim of damages;
(1)     Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b)        the defendant has published a correction of the defamatory matter; or
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
(2)    Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.
The defendant has at no stage apologised to the plaintiff or published any correction or retraction, nor are there any other matters pursuant to section 36 which would mitigate the plaintiff’s claim.
The defendant led evidence as to her medical and psychological state, however such matters are not relevant to an assessment of general damages, as the quantum of general damages is assessed primarily with reference to the degree of harm to the plaintiff’s reputation.
Assessment of damages
Damages are payable to compensate for injury to the plaintiff’s reputation, as a remedy for his injured feelings and to vindicate the plaintiff for having been publicly defamed.[43] The law takes the plaintiff as it finds him.[44]
[43] Carson v John Fairfax and Sons Limited(1993) 178 CLR 44.
[44] Duffy v Google (No2) [2015] SASC 206, Ali v Nationwide News Pty Ltd [2008] NSWCA 183.
The court has regard to the provisions of the Act, and in particular that damages should bear an appropriate and rational relationship to the harm sustained by the plaintiff, that exemplary and aggravated damages are not claimed and cannot be awarded, and that the state of mind of the defendant is irrelevant to the award of damages except to the extent that it affects the harm sustained by the plaintiff, which latter factor is not relevant in this matter.
Damages are to be assessed under ordinary common law principles subject to any mitigation and the statutory cap.[45]
[45] Duffy v Google (No2) [2015] SASC 206.
The harm caused by the defamatory publication does not end at the time of publication but encompasses continuing harm including ongoing hurt feelings during and up to the conclusion of the litigation by the plaintiff seeking vindication.[46]
[46] Duffy v Google (No2) [2015] SASC 206, Herald & Weekly Times Ltd v McGregor; Humphries v TWT Ltd (1993) 120 ALR 693, Ali v Nationwide News Pty Ltd [2008] NSWCA 183, Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70
The court has regard to the submissions of both parties and all authorities cited, without repeating them here.
The imputations made were materially critical of the plaintiff both personally and as to how he conducted himself as president of the Gurdwara generally over time and in a number of alleged instances. They were made within the religious community to which the plaintiff has significantly contributed and places great importance.
The plaintiff has been genuinely hurt and upset by the defendant’s defamation of him.
The imputations were however only published for a short time and in such a manner that prior to their removal by the plaintiff they were likely read by a very, very limited number of people, although that would have generated reasonably foreseeable secondary discussion beyond those people to a wider but still limited number.
Whilst every case will be different and involve its own unique facts the court has had regard to other assessments in this jurisdiction in recent years.[47]
[47] Machado & Anor v Underwood & Anor [2016] SASCFC 65, Stone v Moore [2016] SASCFC 50, Stevens v Boyle [2012] SASC 232, Stevens v Mayberry [2012] SASC 220, Duffy v Google (No2) [2015] SASC 206, Maras v Lesses [2016] SADC 40, Lesses v Maras [2017] SASCFC 48, De Poi v Advertiser Newspaper [2016] SASCFC 25, Greek Orthodox Community v Pashalis [2015] SASC 122 (although the Plaintiffs limited their claims to the awarded sums), Scali v Scali [2015] SADC 172.
Having regard to the totality of the circumstances as found, the applicable statutory and common law principles, all cited authorities and the parties’ submissions, the court assesses the plaintiff’s general damages at $10,000.