JUNIUS & KUMAR v MESSENGER PRESS & ORS No. SCGRG-94-318 Judgment No. S99 [1999] SASC 99

JUNIUS & KUMAR v MESSENGER PRESS & ORS No. SCGRG-94-318 Judgment No. S99 [1999] SASC 99 - SASC 1999 case summary — Zoe

[36]

"INDIAN academic authorities who have labelled an Adelaide school of Indian medicine's activities 'ethical fraud', met recently to discuss what action should be taken against the school. Poona University in India has set up a committee of two lawyers and a doctor to decide what action should be taken against the Australian School of Ayurveda, based in Blight Street, Ridleyton and the Institute of Indian Medicine. Last week the Weekly Times Messenger revealed the Australian School of Ayurveda, which charges up to $8000 for its courses, was falsely claiming it was affiliated with Poona University, Maharashtra State, India through the Institute of Indian Medicine, also based in India. Its teachers use false titles, the course is not recognised outside the school itself and a regular visiting Indian lecturer is facing criminal and conspiracy charges in India. An executive meeting at Poona University on Friday August 7, voted to set up the committee after discussing how it should stop the school and institute from misusing Poona University's name. Professor Subhash Ranade, professor-in-charge of Ayurveda at the university, said the committee, comprising a criminal lawyer, head of Poona University's law faculty and a doctor, would investigate the issue and deliver its verdict at another special meeting later this month. Dr Ranade said the committee would look at what legal action could be taken against the Australian school and Indian institute for its affiliation claims and 'for duping Australian students'. Dr Ranade said Poona University should take legal action to stop the misuse of its name which was damaging its reputation and the reputation of Ayurveda. Professor Dada Gujar, also of Poona University, agreed the university's name was being misused. 'This is a horrible case of ethical fraud and I strongly feel that the university should take a serious view of this and take stringent action promptly', Dr Gujar said, from Poona. Ayurveda is an ancient Indian science of well-being and one of the country's three mainstream medicines."

[43]

"Indian link backs charges against Ayurveda school" "PLEASE find herewith our comments on the statements made by Mr Junius and Mr Krishnakumar (sic) which are published in the Weekly Times Messenger dated August 12. Allegations made against the Australian school of Ayurveda are based on facts. We strongly refute Mr Kumar's statement that staff members of Pune University are annoyed at not being invited as visiting Professors. No sensible person from Pune is interested to be invited and get involved in such illegitimate affairs. It is not the jealousy and to discredit the ASA but an honest effort to take the truth to the people. If at all any intrigue is going on, it is at the end of ASA and IIM. The institutes are recognised for specific subject and course under Section 46 of Pune University Act 1974. It is wrong to say affiliation. The IIM was recognised for one year of 1986-87 only. After appointing four local inspection committees, its continuation of recognition is not yet okayed because of unfavourable reports. As per the said Act, each institute is recognised independently. It is not valid to claim an affiliation through other institute. As per the said Act, the recognised institute of affiliated college has to take university approval for conducting any course and for each subject therein. Even IIM has not taken approval from the Pune University to conduct the CPA course in Pune and within its jurisdiction. To extend the activities outside jurisdiction requires special permission from the Government which obviously the IIM has not. When the approval is granted for the course, the examination is taken by the university and certificates are given by the university and not by any institute, school or college. If Mr Junius and Mr Krishnakumar (sic) are holding legitimate medical qualifications they should declare the qualifications and its registration in the particular schedule of the existing Acts in the relevant countries. It is astonishing to note Mr Kumar's denial of the criminal cases against Dr P H Kulkarni. We state that the complaint has been lodged with Deccan Gymkhana PSC R No. 122/91 under section 120(B) 409 of Indian Penal Code and section 13(1)(c)(D) (r)ead with 13(2) of the(P)reventation (sic) of (C)orruption Act 1988 (Criminal conspiracy, to make fraud, misappropriation, misuse of the position of trusteeship) against Dr P H Kulkarni and five of his colleagues. The case is under investigation by office of special Inspector General of Police, state CID (Crime), Pune. Secondly, they are suspended from trusteeship after framing the charge sheet by the Joint Charity Commissioner, Pune under section 41D(3) of the Bombay Public Trust Act 1950 in the Suo-Moto case No. 13/91. Dr Kulkarni may be one of the greatest figures in Ayurveda at ASA but not so in Pune and India. We think that this covers all the points Mr Junios (sic) and Mr Krishnakumar (sic) has raised. For further development it is stated that the recent meeting of Academic Council of Pune University held on August 18 and 19, 1992, has directed IIM not to use Pune University's name, not to carry on teaching and not to hold seminars et cetera, pending the report of the newly appointed committee. DR SUBHASH RANADE DR E T GUJAR 16/6 Erandwane Pune-411004, India"

[62]

"These passages all support the view that a plaintiff is in some sense bound by the meanings which he attributes to the words in his statement of claim. It seems to me, moreover, that the passages cited above from Lewis v Daily Telegraph Ltd as to the desirability of pleading the meanings attributed to the words and the cases in which particulars have been ordered, are posited on that view of the law. An allegation of the meanings to be attributed to the words used, whether in a statement of claim or by way of particulars supplied in compliance with an order, serves no good purpose, and may perhaps be a trap for a defendant, if those meanings can be ignored at trial and other meanings relied upon. The purpose of pleadings and of particulars is to define the issues at trial and to give the opposing party fair notice of the case to be made against him. A defendant needs to know the meanings attributed to the words by the plaintiff in order to decide whether to assert that the words do not bear those meanings, to justify the meanings or to apologise. A plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularized. Modern judges, in any class of case, have a considerable discretion as to the rigour with which they will confine a case presented by a party to the precise language of the pleadings. In many cases, moreover, the more serious allegation can be regarded as including the less serious. In that sense, the court is free to attribute to the words a less injurious meaning than that attributed to them in the pleading. An allegation that the words used mean that the plaintiff is a rapist no doubt includes a meaning that he has been guilty of a less serious type of sexual assault. An allegation that the words mean that a person is a robber no doubt includes a meaning that he has taken property by criminally dishonest means falling short of robbery. It seems to me, however, that it would be contrary to the purpose of pleadings and particulars if a plaintiff could obtain a judgment upon the basis of a meaning of the words used which was not merely a less serious form of the imputation pleaded, but amounted to an imputation of a substantially different kind."

[337]

"On Thursday we started receiving telephone calls from all quarters, because in Adelaide we are not obscure people. People know us, a lot of articles about myself and Professor Junius have come in the newspapers. We have been on the television. When we came to Australia in 79, 81, 82, several times at the time; The News, the Sunday Mail, The Advertiser, they wrote who we were. We started our business. We were highly respected in this beautiful city of Adelaide, and telephone calls started coming from health food shops, from our friends, ´What is happening? What is going on?' We felt ashamed. We felt as if the earth should break and we should go down there. For what? We hadn't done anything to these people, and why should they write? Why did they not come to us first and investigate? And they go and believe somebody who is in the other continent who says something like ´Dr Ranade and so-called Professor Dada Gujar.' Why didn't they come when they had any information, to come and verify it before they wrote anything? But they wouldn't come to us to verify what was written there, and investigate, but then they would believe someone overseas. And we got telephone calls. People came just to see how we were. It was a horrible experience. ... We have neighbours, of course, and they said ´Krishna, what is happening? Have you seen this'. I said that - I had to explain, the journalist that came, we were very kind to her. ´I don't know what she writes' I said. Look, the next door neighbour is a nurse, and she said ´I don't understand, what is happening?' The neighbours, the next morning the neighbours that passed by were looking at our building and pointing fingers at it. When we were going to the supermarket people would look and stare at us. I said ´What is happening?' Not in that manner the way people were looking at us, and we were very very embarrassed, and my daughter who was then - she was about eleven and a half years, eleven and a half to twelve years. When she went to school they told her ´What happened to your dad?' She was ashamed. And that is the hurt I will not forget, and I will do everything to get at the journalist and the Messenger, I will sacrifice everything to prove that it was wrong for them to do that. That was my daughter, I'm sorry." (Tr 184-185)

[350]

"In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 the High Court upheld a decision of the Court of Appeal of New South Wales setting aside as excessive damages awarded by a jury. In the course of considering whether the verdict was excessive, Mason CJ and Deane, Dawson and Gaudron JJ referred to the purposes to be served by damages awarded for defamation in a case in which no claim is made for particular economic loss. We treat what they say as applicable to the aspect of damages now under consideration. They said (at 60-61): 'Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations". The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant'. (Footnotes omitted.) The submissions by the parties in this case canvassed the relevance of awards of damages in person injury actions. In Carson the same members of the High Court dealt also with this issue. Their Honours held that it is permissible, and indeed appropriate, for an appellate court considering an award of damages to bear in mind the scale of awards in cases of serious personal injury. Their Honours said (at 57-58):

[360]

But he went on to say that jury awards were relatively rare in Western Australia, and that being so a Full Court should be 'slow to condemn' a jury verdict as unreasonable. Counsel for the defendant provided the Court with a schedule of awards of damages made for defamation in the States and Territories of Australia. We must say that we find the process of comparison extremely difficult, when allowance is made for the different circumstances of each case, and the limited number of cases that are available to be surveyed. Our impression, and it really is no more than that, is that awards in this State have been relatively modest. We refer to Petersen v Advertiser [1995] SASC 5018; (1995) 64 SASR 152 where an award of $85,000 was made. My belief is that that was regarded as a substantial award. It pales into insignificance when compared with jury awards in particular, made in other States, but we are by no means sure that much can be made of that sort of comparison. We have considered the decision of the Court of Appeal of New South Wales in Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176. There the Court of Appeal declined to set aside, as excessive, an award of $600,000 made by a jury in favour of a medical practitioner. By reason of the jury's verdict the defendant, another medical practitioner, was to be taken to have accused the plaintiff of lying in respect of a matter going to the plaintiff's professional conduct, and to have persisted in that accusation of a long period and without any justification, for purposes which involved his own self-advancement. It was a case in which it was open to the jury to have included a substantial sum in respect of economic loss. It is this in particular which makes the process of comparison so difficult. However, we do note that Handley JA (at 197) and Giles A-JA at 202 were of the opinion that the jury might have awarded about $278,000 for economic loss, and therefore proceeded on the basis that the award for non-economic loss might have been of the order of $300,000. As well as bearing this figure in mind, we have given careful consideration to the observations made by the members of the Court of Appeal, in particular Mahoney ACJ, in relation to the assessment of damages in such cases We are cautious about putting too much weight upon a jury verdict as setting a standard for the assessment of damages by a judge sitting alone. Defamation cases are tried by judge alone in this State. We are also inclined to the view that, to the extent that Crampton v Nugawela sets standards, it sets a standard which has not prevailed in this State. We are nevertheless influenced by that decision, and by a more general consideration of damages awarded in other cases, to come to the conclusion that it would be appropriate to increase the level of damages awarded in this State for defamation."

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