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".