On p 12, under the sub-heading "Justice?" the article includes the following:
"Unlike the architects of the scheme, who were sophisticated enough to cover most of their tracks, the agents left a paper trail that could connect them to the scheme and have been the main parties pursued by the liquidators.
….
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 email of 15 January 2005 which is Schedule B to the statement of claim and is exhibit E. It refers the reader to the Zinda article as being a story of the plaintiff, Bishop Mar Meelis Zaia 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 she is a criminal.
8 The third publication complained of is an email of 20 January 2005 which is Schedule C to the statement of claim and is exhibit F. It includes the following:
"Gaby, if the money that was stolen by Mar Meelis, his liar/lawyer cohort, Suzy David and their jailed friend Karl Suleman had been used in Atra we would've purchased dashta d'Ninweh by now.
Instead 2,000 Assyrian families lie financially crippled by who they thought was their spiritual leader.
Here's another Bible quote that Mar Meelis should be aware of.
Matthew 7:15 - Beware of false prophets, which come to you in sheep's clothing, but inwardly they are ravening wolves".
9 The plaintiff claims that this publication, which I shall refer to as the "Assyrian Utensil" email, carries the imputation that she stole money.
10 On 16 March 2006 default judgment was entered. The assessment of damages proceeded upon the basis that the defendant was the publisher of the matters complained of, 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.
11 The affidavits of Michael Jokovic, solicitor, of 18 July 2006 and Gregory John Richards, process server, of 29 September 2006 were read as to the steps taken to inform the defendant that the date set down for the hearing of the assessment of damages was 5 October 2006. The evidence enables me to find that reasonable efforts were made to inform the defendant of the date. There was no appearance for the defendant when the matter was called outside the court before the commencement of the hearing before me.
12 The plaintiff claims compensatory damages including aggravated damages. The plaintiff gave oral evidence, and also relied upon her affidavits. She also relied upon the affidavit evidence of Louren David, Marilyn Oshana, and Samir Yousif.
The plaintiff
13 The plaintiff is 45 years of age. She was born in Iran and moved to Australia in 1970. She completed bachelor degrees in economics and law and masters degree in law, and was admitted as a solicitor in 1985. She presently practices as the principal in the law firm David Legal, in Fairfield, New South Wales.
14 Since childhood the plaintiff has been actively involved in the affairs of the Assyrian community. From 1977 until about 1989 she was a part-time broadcaster on radio 2EA, now SBS radio. In 1993 she helped establish the Assyrian Australian National Federation which is an umbrella body for Assyrian organisations in New South Wales, and was its pro bono legal advisor until 2003. In 1995 she helped establish The Assyrian Australian Academic Society, and later became its president and was instrumental in obtaining donations and grants for its operations. Between 1984 and 2004 she represented Assyrians before members of Commonwealth and State parliaments, and in dealing with government officials.
15 The plaintiff believes she is the first Assyrian to become a lawyer in Australia. She has continuously practiced as a solicitor since about 1985, and has provided legal services pro bono and made other contributions to many Assyrian community, social, sporting, and religious organisations. On three occasions between 1995 and 2000 she represented Assyrians at the United Nations in Geneva in the Working Group on Minorities and the Working Group on Indigenous Peoples. She presented the United Nations with submissions relating to the then current situation of Assyrians in Iraq under the Saddam Hussein regime.
16 The plaintiff has also been prominent in local affairs. She was appointed a councillor of the Customer Council of the Ethnic Affairs Commission in 1995 and 1996. In 1998 she was appointed Fairfield City Citizen of the Year, and in 1999 was elected secretary to the Fairfield City Chamber of Commerce. In 2002 she was awarded the Australian Centenary of Federation medal for contributions made to Australian Society. Over the years she has raised funds for numerous Assyrian and non-Assyrian charities, including Westmead Children's Hospital, and has herself made substantial donations to them.
17 The plaintiff estimates that in Australia the Assyrian population is about 50,000, with about 40,000 living in the area of Fairfield.
18 She regards her reputation for honesty, trustworthiness, and integrity as paramount, and of critical importance for her work as a solicitor and as a community representative.
19 Louren David is a member of the Assyrian community and a cousin of the plaintiff. She gave evidence of the high reputation of the plaintiff in this community. Marilyn Oshana is a member of this community and is a librarian at the Fairfield City Library. Her evidence was that the plaintiff has a very high profile in, and is very highly regarded by, members of the Assyrian community in Australia. Samir Yousif is also a member of this community, and is a businessman in Fairfield. He has known the plaintiff for about 22 years and has continuously worked with her for various community and welfare programmes for Assyrians and Chaldeans. He has often referred friends and family to her, and to her legal firm, as he regards her as competent, trustworthy, and conscientious. He said that in the Assyrian community she has a reputation as a "role model".
The impact of the publications
20 On about 13 January 2005 the plaintiff was in her office when she was handed a copy of the Zinda article by her sister-in-law, Sabrina Jajoo. As she read it she began to feel numb, nauseous, upset and depressed. It caused her to vomit. She left the office and spent a few hours by herself crying. She went home, and to bed, but was unable to sleep that night.
21 The plaintiff felt helpless and frustrated that she could not compel the publisher to remove the publication from the internet or to publish a retraction or apology, and that there was nothing she could do to stop the damage to her reputation. During the next few weeks she had feelings of anxiety, distress, and despair. Her concern was that all her efforts in building up a legal practice, and her commitment to the Assyrian community over many years had been destroyed. She became withdrawn, did not wish to speak to people, was unable to concentrate on work, and had difficulty sleeping and eating.
22 She says that since publication the sense of hurt recurs. Her sleep pattern has been disturbed. She has lost interest in leisure and sporting activities, and has put on weight. She feels uncomfortable in her neighbourhood, which is predominantly Assyrian. Her involvement in community affairs has substantially lessened, as has her social life. She no longer attends Assyrian functions, and has perceived that she is not as welcome as she had been prior to publication.
23 The plaintiff gave evidence of a number of clients who withdrew instructions from her firm, referring to examples in about April and May 2005, and subsequently. She referred to occasions where clients, or those associated with them, came into the office and shouted that she was not to be trusted as she was a thief, or that those in the firm were crooks. She says that during 2006 there has been a general downturn in her work in the office, and that there has been a necessity to reduce staff numbers. She attributes this situation to the impression conveyed by the publication to its readers that she is the holder of Mr Suleman's money and has transferred it to Israel for the benefit of herself and her family, and that she was the architect of the scheme which caused such financial devastation in the Assyrian community.
24 The plaintiff remains aware that the article continues to be published online, despite requests that it be removed.
25 The plaintiff gave evidence of her concern at the reaction of a long time friend and associate, Mr Hermiz Shahen. He told her that he knew there was no truth in the Zinda article but that it would be very damaging to her and to the Assyrian Universal Alliance. She felt he was avoiding her, and his reaction made her uncomfortable.
26 Ms Oshana described Zinda as an online magazine which is published weekly and is widely read by, and influential among, the Assyrian community. She said that the article raised doubts in her mind about the plaintiff, and that several people expressed to her their doubts after reading it.
27 Mr Yousif stated that he heard people talking about the article, and making comments to the effect of the imputations. He said that many of his clients whom he referred to the plaintiff's firm refused to go to it, and made similar comments.
28 Louren David observed that since publication of the Zinda article the plaintiff has been very reserved and depressed. She heard people discussing the article in terms adverse to the plaintiff, which indicated to her that they accepted that its allegations about her were true.
29 On or about 15 January 2005 the plaintiff read the email of that date, the second publication sued upon. It was sent to her by Mr Shahen. Upon reading it she felt nervous and upset. She feared that by sending it the defendant was ensuring that the Zinda article would be widely read by members of the Assyrian community. She felt it was grossly defamatory of her to say she was a criminal, which was false.
30 On about 20 January 2005 the plaintiff was referred to the "Assyrian Utensil" email by Mr Rameil Jajoo. Upon reading it, she felt extremely distressed, frustrated, and that the defendant's defamatory attacks could not be stopped. She knew that many Assyrians were likely to read it, and it was likely to promote readership of the Zinda article. She believed it was fundamentally defamatory to state that she stole money, which was false.
31 By letter of 21 January 2005 the plaintiff's solicitors wrote to the defendant in respect of the Zinda article. They pointed out that the allegations in it were false, and demanded its removal from the internet, and the publication of a retraction and apology by 24 January 2005. By letter of 28 January 2005 the plaintiff's solicitors wrote to the defendant in respect of the email of 15 January 2005. They asserted that the publication was false, defamatory and highly damaging, demanded publication of a retraction and apology and a list of recipients by 2 February 2005. There has been no reply to these letters.
32 In her affidavit of 20 September 2006 the plaintiff gave evidence of publications by the defendant, under the name "Tiglath", on the internet website www.insideassyria.com.
33 The evidence shows that 15 publications (the "Tiglath" items) were made on different dates between 15 January 2005 and 9 July 2006. I find that the contents of each publication directly or indirectly referred to the plaintiff and to the Zinda article, and the allegations made in it. The following extracts from a sample of these publications provide a sufficient indication of the flavour and content of them all: