Bishop Mar Meelis Zaia v David Tiglath Chibo [2005] NSWSC 917 | Case summary

The justice awaited by the Assyrian community will most likely never be achieved. The architects of the scheme appear to have orchestrated the perfect crime. These unscrupulous agents preyed on trusted relationships in social, ethnic and religious groups. And they got away with ripping the Assyrian people off because the victims are still unwilling to continue legal action. In the Assyrian community this mindset coupled with the fact that two of the alleged instigators are considered "sacred cows" explains why most of the victims continue to remain silent on this crime. The very same members of the Assyrian Church of the East who donated their time and money to build St. Hurmizd Assyrian Primary school … were swindled. The very same people who helped organise the Sydney Genocide conference in 2000 were deceived by Karl Suleman through Mar Meelis Zaia and Suzy David … … With Karl Suleman serving a 21 month prison sentence in Bathurst jail the onus remains upon the Assyrian community to continue through all legal avenues to ensure that all the architects and agents of this scheme are eventually brought to justice". 6 The second publication complained of is an e-mail of 15 January 2005 which is schedule B to the statement of claim and is included in Exhibit A. It refers the reader to the Zinda article as being a story of the plaintiff, Suzy David, and Mr Suleman, and proceeds to say: "Please distribute this link and article to all your family and friends so that our people are never fooled by such criminals again". 7 The plaintiff claims that this publication carries the imputation that he is a criminal. 8 On 14 June 2005 I entered default judgment. The assessment of damages proceeded upon the basis that the imputations claimed in fact arise, that they are defamatory, and that there is no defence. In any event, had there not been judgment in default, there is ample material to support the finding that each publication in fact conveys the relevant imputations as claimed, and that each is defamatory of the plaintiff. 9 The affidavit of Stephen John McNamee, solicitor, sworn 22 July 2005 was read as to steps taken to inform the defendant that on 14 June 2005 judgment was entered in accordance with Pt 17, r 5 for the plaintiff with damages to be assessed, and that the matter was listed in the Defamation Directions List, 9.30am 25 July 2005 for the purpose of fixing a date during that week for a hearing. The evidence enables me to find that reasonable efforts were made to inform the defendant of these matters. There was no appearance for the defendant when the matter was called outside the court before the commencement of the hearing before me. 10 The plaintiff claims compensatory damages including aggravated damages. There was oral evidence from the plaintiff himself, and Ms Ilbra Yaghoubpour. Their affidavits were also read. The plaintiff also relied upon the affidavit evidence of Father Genard Lazar, of Mr Robin Hermis, and of Mr McNamee. The plaintiff 11 The plaintiff is 49 years of age, and a native of Iraq. He was ordained a priest of the Church in 1982 in California, USA. He was appointed Bishop of the Church's diocese of Australia and New Zealand in 1984 and arrived to take up that position in March 1985 which he has held up until the present time. 12 He is the chairman of the Board of Trustees which controls the financial affairs of the Church. Since his arrival, as head of the Church he has steadily built up the diocese in Australia. His duties include fundraising, active pastoral work, and arranging for the purchase of property and the construction of buildings when required. In 1990 he played a central role in obtaining a donation of $1.1 million to build a cathedral in Greenfield, and in 1999 assisted in the raising of funds for the construction of a reception hall on the cathedral property. In recent times, he played an important part in raising funds from private and government sources for the construction of classrooms and an administration facility for a primary school. 13 In his affidavit of 3 August 2005 the plaintiff said that his diocese includes all of southeastern Australia, including Sydney and Melbourne, and New Zealand. He said that there are about 19,000 registered adult members who contribute financially to the Church, and about 4,500 registered non-paying members under the age of 18 years. Of the adult members there are approximately 13,000 in Sydney/New South Wales, 3,500 in Victoria, and 2,500 in New Zealand. He says that the Assyrian community includes about 6,000 people who are not members of the diocese. 14 The plaintiff regards his reputation to be of critical importance particularly so for honesty and integrity. 15 Father Genard Lazar is a parish priest of the Church, and for many years has been actively involved in all aspects of the activities of the Assyrian community in Sydney. He has known the plaintiff for about 20 years. He says that the plaintiff's reputation for honesty and integrity among members of the community is fundamentally important to his ability to carry out his duties in the diocese. 16 Mr Robin Hermis is the information technology administrator at the St. Hurmizd Primary School at Greenfield, and was recently ordained a deacon of the Church by the plaintiff. He has been associated with the plaintiff for about two years, and has observed him to be happy when among the Assyrian community, and to be zealously interested in developing the Church and diocese. 17 In his affidavit of 8 July 2005 Mr McNamee gave evidence of information he had downloaded from the internet which included messages posted to the website "Assyrian Forum" by one using the name "Assyrian Utensil". His evidence established that this was a name used by the defendant, and supports the finding, which I make, that the defendant was the author and publisher of these messages which are included in Exhibit A. Relevantly the defendant posted some 16 messages between 17 January and 27 January 2005, each of which attack the plaintiff's reputation by reference to his involvement with Mr Suleman and his unlawful activities, apparently for the purpose of generating and maintaining interest in these matters. The plaintiff relies upon the defendant's conduct in publishing this material in support of the claim for aggravated damages. The impact of the publications 18 On about 15 or 16 January 2005 the plaintiff was told by Father Lazar of the Zinda article. He then downloaded it from the website and read it. In summary, he says that the statements which describe his approval of, or involvement in, the Ponzi scheme, which suggested he had been questioned in court about Mr Suleman or anything else, which suggested that he held in his account money received from the scheme and was questioned by the liquidator about it, and which suggested that he had personally benefited from Mr Suleman's illegal activities at the expense of the Assyrian community were all false. He believed that the article accused him of the conduct encapsulated in each of the imputations, and feared that other readers would come to the same conclusion. 19 The plaintiff swears that the imputations are false. He regards them as extremely serious and grossly defamatory of him, damaging to his reputation and destructive of the trust in him held by members of the Assyrian community and the Church. In his experience the Zinda Magazine is accessed and widely read by members of the Assyrian community. 20 The plaintiff evidences his concern that members of the Assyrian community and of the Church with whom he is associated would conclude that he was guilty of the conduct of which he was accused. 21 Upon reading the article he felt ill and was unable to sleep for several weeks afterwards. His distress was heightened by a feeling that he was defenceless to do anything about stopping future publication of the article or obtaining some correction of it, and as a result he felt a strong sense of hopelessness and despair. He believed that the publication would effectively so damage his reputation as to destroy the work that he had done over 20 years to build up the Church and to establish himself as its principal officer in Australia. He strongly feels that the loss of trust in him may jeopardise his ability to attract donations for the Church and its works, and that the harm to his reputation will adversely affect the reputation of the Church in Australia. He says that numerous people have spoken to him about the publication, including his brother, who caused him to feel despair and frustration. 22 On or about 15 January 2005 the plaintiff read the e-mail of 15 January 2005, the second publication sued upon. He understood it to accuse him of being a criminal. 23 The impact of this publication upon the plaintiff was similar to that of the Zinda article. A Mr Hurmiz Shahin suggested to the plaintiff that something should be done about it. The plaintiff feared that readers of the e-mail would refer to the Zinda article which, in turn, would generate its spread throughout the Assyrian community. As a consequence, he had sleepless nights and felt ill. 24 He says that he has read the messages posted on the Assyrian Forum website by the defendant under the pseudonym "Assyrian Utensil" which increased his distress. He remains upset and angry about the publications and about the fact that the defendant has not sought to defend the proceedings. He is puzzled that the defendant has attacked him in this way, particularly as he has never met him. 25 The plaintiff impressed me as a witness of truth and I accept his evidence. 26 In her affidavit of 8 July 2005, Ms Ilbra Yaghoubpour said she is a schoolteacher at St. Hurmizd Primary School, and as a parishioner has known the plaintiff for nearly 20 years. She says the Zinda Magazine is widely read and discussed amongst the Assyrian community. She was referred to the Zinda article by a friend, and from time to time members of the community have indicated to her their belief in the truth of the allegations against the plaintiff. She says that since its publication she has observed a change in the plaintiff's demeanour in that he now appears to be frustrated, angry, and reluctant to talk to people whereas before he was outgoing and positive. She has observed a fall in the attendance of Churchgoers when he is preaching, as well as some reduction in the flow of funds for the school. 27 In his affidavit of 8 July 2005 Father Lazar confirms that the Zinda Magazine is widely read and discussed in the Assyrian community. He has observed a significant change in the plaintiff's demeanour since publication of the Zinda article. He describes the plaintiff as a broken man who seems to have given up, and is depressed, disappointed, and given to outbursts of anger. He has observed the plaintiff to be less outgoing than before the publication and prefers to be left alone. Father Lazar says he has observed a lessening of the readiness of the Assyrian community to donate money and otherwise support the projects with which the plaintiff has been involved. 28 Mr Hermis, in his affidavit of 8 July 2005, describes the change in the plaintiff's demeanour since publication. His evidence corroborates the other deponents. The principles 29 Section 46(2) Defamation Act 1974 (the Act) provides that damages for defamation shall be the damages recoverable "in accordance with the common law, but limited to damages for relevant harm". "Relevant harm" is defined as "harm suffered by the person defamed" (s 46(1)(a)). 30 Section 46(3)(a) provides that damages for defamation shall not include exemplary damages, and sub-para (b) provides that such damages "shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm". 31 In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, Hayne, J para 60 observed that: "The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and (iii) the vindication of the appellant's reputation. As pointed out in Carson : the first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant; vindication looks to the attitudes of others". (Footnotes omitted). 32 His Honour went on to point out (para 67) that assigning a money sum as sufficient to remedy personal distress, hurt and harm to reputation and to vindicate a plaintiff's reputation translates losses which have no market value into amounts of money. He said: "… But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded "are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man"". 33 I must also have regard to the requirement of s 46A(1) of the Act which requires the court "… to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded".

Section 46A(2) requires the court to take into account "… the general range of damages for non-economic loss in personal injury awards in the State …". 34 No submissions were made as to the application of this section in this case. I respectfully agree with the view of Levine, J in Markovic v White [2004] NSWSC 37, para 35 that the real exercise is that provided for in s 46A(1), namely to ensure that there is an appropriate and rational relationship between the relevant harm as provided on the evidence and the amount of damages awarded. 35 In Rogers (para 73) Hayne, J held that s 46A should not be understood as prescribing a particular, let alone a mathematical, relationship between the damages to be awarded for defamation and the damages for non-economic loss in personal injury awards. He said that it is of the first importance to recall the fundamental principle that the damages to be awarded for defamation must compensate for the effect of the defamation on the particular plaintiff. 36 In the assessment of compensatory damages for harm to reputation in a case such as this it is important to take into account the observations of Mahoney, ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 p 193A that "… In some cases, a person's reputation is, in a relevant sense, his whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations of this … the trustworthiness, actual or reputed of a professional colleague is a matter of a legitimate and ongoing interest", and p 195D "In my opinion, the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment". In Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 p 507, Brennan, J held that account may be taken of an especially adverse impact of the defamatory imputation upon the plaintiff's reputation in the eyes of some group or class in the community". Matters for assessment 37 The plaintiff's claim is for compensatory damages for injury to feelings, harm to reputation, and for vindication. He claims aggravated compensatory damages for the publication of false imputations, the continuing attacks made on him by the defendant using the internet Assyrian Forum under a pseudonym, and the refusal of the defendant to appear to defend the publications. 38 At the outset I find that the plaintiff enjoyed a good settled reputation of a kind likely to be vulnerable to the impact of the publications of the imputations sued upon. I am satisfied that publications would be likely to have a special impact amongst the Assyrian Church and wider community in which he moved. 39 It is plain that the plaintiff was deeply distressed by each publication. I am satisfied a significant contributing factor to his distress was his awareness that the Zinda article and the e-mail were published to members of the Assyrian community, many of whom were members of the Church which he leads. The fact that these publications, as well as the messages posted on Assyrian Forum, may remain in circulation for the indefinite future undoubtedly prolongs his concern. They are likely to revive his hurt and anger when he is reminded of them. 40 The evidence establishes that the publications have had an adverse effect upon the personality and demeanour of the plaintiff. I find that they have caused him to be less outgoing than before, doubtless because of a continuing apprehension that many of those with whom he works and lives believe that the allegations of criminality and of involvement in an illegal scheme which swindled them of their money are true. 41 I accept entirely that each of the publications allege serious criminal conduct of a kind which had the potential to inflict significant injury to the plaintiff's reputation. However, in assessing the component for damages under this head, it is to be kept in mind that there was no evidence of actual damage to reputation. Care must be taken not to over compensate by reason of the possibility of impact generally, or particularly upon members of the Assyrian community and where the extent of publication is left to inference upon little evidence. In my opinion the plaintiff's concern may be appropriately compensated with regard to the injury to his feelings and to the appropriate requirement for reasonable vindication. 42 In the circumstances of these publications it is important that the sum awarded be sufficient to enable the plaintiff to point to it as a vindication of his reputation and to mark the baselessness of the defamations. (Broome v Cassell [1972] AC 1027; Ley v Hamilton (1935) 153 LT 384). 43 Furthermore, it must be recognised that the publications occurred within a very short time of each other. According to the evidence the plaintiff became aware of, and then downloaded the Zinda article on 15 or 16 January 1995, and read the e-mail at about the same time. He is entitled to a compensatory award in respect of each publication, but in arriving at an amount which is just and reasonable in the circumstances of each case it cannot be overlooked that there was a clear and close relationship between them. Both were written by the same person and were defamatory of the plaintiff in respect of the same conduct, and were published to the same readership. Care must be taken to avoid double compensation, particularly in a case where a significant component of each award will be for subjective hurt and appropriate vindication. In my opinion it is appropriate to approach the task of assessment of damages for publication of the e-mail with regard to its effect as exacerbating the hurt to feelings and harm to reputation caused by the Zinda article. (Carson v John Fairfax & Sons Ltd (1992-1993) 178 CLR 44 pp 54-56, 99). 44 Relevant to the component for harm to reputation is the extent of publication in each case. Although there was a paucity of evidence of actual publication it is sufficient for me to find that the Zinda Magazine was widely read and discussed in the Assyrian community, and I infer that it is probable that many of its members would have read the Zinda article. It is difficult to judge the numbers of those likely to have downloaded the e-mail, but I infer that its readership was more than a few. It may be taken that, in each case, it was an important readership from the plaintiff's perspective given his prominence in the Church and the community. 45 With respect to each publication I am satisfied that the plaintiff's case on aggravated damages is made out. The falsity of the imputations is not in doubt; I find their publication was particularly hurtful to the plaintiff who was very much conscious of their falsity. Review of the Assyrian Utensil messages evidences conduct which I find to be unjustifiable, lacking in good faith, and improper in the sense considered in Triggell v Pheeney (1951) 82 CLR 497. These matters I find to have increased the hurt to the plaintiff from each publication and justify an increase in the amounts which would otherwise have been awarded. 46 There was no evidence of the circumstances in which the defendant failed to defend the proceedings or attend the hearing. Absent evidence, I make no finding that his failures amount to conduct of the kind which supports a claim for aggravated damages. 47 Taking into account the factors to which I have referred I propose to award the plaintiff damages including aggravated compensatory damages in respect of each publication. 48 In respect of the Zinda article I propose to award a single verdict in respect of the four false imputations conveyed. For this publication I award the plaintiff damages in the sum of $140,000.00. In respect of the e-mail of 15 January 2005 which carries the false imputation that he is a criminal, I award the plaintiff damages in the sum of $35,000.00. This represents a total of $175,000.00. 49 Interest should run from the date of the publications, namely 15 January 2005, at the rate of 2%. I have calculated interest on that basis, and have rounded it off to $2,300.00. Conclusion 50 The orders I make are:

Bishop Mar Meelis Zaia v David Tiglath Chibo

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