Zaia v Eshow

Publication and defamatory meaning

1. The original posts on Facebook are in Arabic. The statement of claim provides a translation of each post by an accredited translator.
2. At the time of the first post on 30 March 2015, the defendant had approximately 264 Facebook "friends". That number grew steadily over the period of the posts, reaching 332 at the time of the final post on 15 December 2015.
3. Further, the defendant's Facebook profile was "open", that is, it was available publicly during that period. Accordingly, the plaintiff asks the Court to infer that each matter complained of was downloaded and read by people outside that limited circle during the 12-month period prior to the commencement of the proceedings.

Second matter complained of

1. As already noted, the claims brought in respect of the first and fourth matters complained of are not pressed by the plaintiff.
2. The second matter complained of is a Facebook post addressed to "His Beatitude Mar Meelis Zaia, the Archbishop".
3. In summary, the post complains of the recent appointment of a priest of whom it is clear the defendant disapproves. The source of his disapproval is his understanding that the priest was defrocked by his previous church, the Chaldean Church, which the defendant considers to be a bar to his appointment to the clergy of the Assyrian Church of the East, according to that church's synodical laws. The post also discusses the behaviour of the priest since his appointment.
4. Seeking to clarify a previous post, the post names the "dismissed clergyman" brought to the Assyrian Church of the East by the plaintiff. The defendant writes "Remember that whenever he [the dismissed clergyman] provokes me I will lay the blame on you since you have brought this cancer to us". He then describes the behaviour of the dismissed clergyman as belonging in a "Mafia world" or "Texas".
5. The second part of the post refers to an appearance by the plaintiff on the Special Broadcasting Service's (SBS) 'Assyrian Program', stating that His Beatitude's declarations on the program that Assyrian Church of the East parishioners must not be "hypocrites" and that clergymen must not be "trouble-maker[s]" are at odds with the act of bringing the dismissed clergyman, who he alleges has both qualities, to the Church.
6. The imputations relied upon by the plaintiff are as follows: 1. 7(a) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is to blame for destroying the Church by appointing to its clergy a hypocrite and a liar, [the dismissed clergyman]. 2. 7(b) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, lied on National television.
7. The defendant denies that either of those imputations is conveyed by the matter complained of.
8. As to imputation 7(a), the defendant contends that the element of "destroying the Church" is not capable of being drawn from the Facebook post.
9. Mr Dawson submitted that the notion of destruction of the Church comes from the reference to a terminal illness (cancer) and the notion that the Church has "turned into a Mafia world and is no longer a place of worship and beauty". I do not accept that submission. I accept that the post is defamatory of the plaintiff but I do not think it conveys the high imputation of actual destruction of the Church pleaded by the plaintiff. I do not accept that the ordinary reasonable reader would understand the post in that way.
10. Mr Dawson submitted that imputation 7(b) is conveyed by the final paragraph of the matter complained of in the context of a post "so vividly critical of the plaintiff". That is the paragraph that contains the reference to the plaintiff's appearance on the SBS program in which, according to the defendant, the plaintiff's remarks are at odds with his actions in bringing the dismissed clergyman to the Church.
11. In my view, the meaning conveyed is rather one of hypocrisy than dishonesty. The post contains no explicit term synonymous with "liar". While I accept, as submitted by the plaintiff, that the derogatory language of the post must colour the specific meaning of the paragraph in question, I am not persuaded that the post goes so far as to accuse the plaintiff of lying.
12. It follows that the plaintiff's claim in respect of the second matter complained of must be dismissed.

Third matter complained of

1. The third matter complained of is addressed to "Meelis Zaia" in response to the defendant's suspension from the Church six days earlier. The defendant complains, "If you were any good you would not have thrown me out of the Church" and asserts that the plaintiff should instead expel the terrorist group DAESH (the Arabic language acronym for the Islamic State of Iraq and the Levant or ISIL, also known as ISIS) and bring back abducted parishioners of the Church from Iraq and Syria. A comparison with Jesus Christ paints the plaintiff as a man who makes his parishioners "sin more" all the while "sleeping on silky beds".
2. The imputations relied upon by the plaintiff are as follows: 1. 9(a) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is failing the Church and its followers by spending his time throwing Australian parishioner, Sargon Eshow, out of his Church for no good reason instead of rescuing young female parishioners who have been abducted by ISIL, kept in cages and sold into slavery. 2. (b) Mar Meelis Zaia is a hypocrite in he [sic] has taken an oath to care for the followers of Christ but instead indulges in luxuries and encourages parishioners to sin.
3. The defendant denies that either of those imputations is conveyed by the matter complained of. It is necessary in that context to resolve a dispute as to the meaning of the sentence set out above, which (as pleaded) reads, "If you were any good you would not have thrown me out of the church". The contest relates to an ambiguity as to whether the first "you" is singular or plural. The defendant contends that it should be taken to mean "you (plural)". In my view, the translation as it stands is congruent with the preceding and subsequent passages, each of which addresses Mar Meelis Zaia in the singular. I am satisfied for that reason that the ordinary reasonable reader would comprehend the term "you" in the singular. In any event, even if the defendant's contention is right, I do not think it makes a difference as to whether the imputation is conveyed.
4. Imputation 9(a) draws a distinction between what the plaintiff does and what he should do, implying that these are mutually exclusive. The dichotomy drawn is between the suspension of the defendant from the Church and the asserted duty of the plaintiff to rescue parishioners taken by DAESH in Syria and Iraq. I am satisfied that the notion that the plaintiff has spent his time on the former "instead of" the latter is conveyed through the juxtaposition of those matters.
5. A further element of the imputation is that the plaintiff was suspended from the Church "for no good reason". In my view, that is the sense the ordinary reasonable reader would take from the claim that the plaintiff would not have thrown him out if the plaintiff "were any good". For those reasons, I am satisfied that imputation 9(a) is conveyed by the matter complained of.
6. Imputation 9(b) is drawn from a rhetorical question posed in the matter complained of, "Haven't you taken an oath to care for the follower of the Christ?" and the lines "Jesus Christ had no pillow to lean his head on… he just prayed for our sins, but you make us sin more and sleeping on silky beds [sic]". The matter complained of does not specify the further sins referred to but clearly accuses the plaintiff of leading parishioners to sin.
7. The reference to "silky beds" in contrast with the example of Jesus, who had no pillow, suggests that the plaintiff lives a life of luxury. In my view, the juxtaposition of the plaintiff's oath with his alleged encouragement of sin and indulgence in pleasure would convey to the ordinary reasonable reader that the plaintiff is a hypocrite for the reason specified in the imputation.
8. No further matter by way of defence having been pleaded to that publication, it follows that the plaintiff's claim in respect of the third matter complained of succeeds.

Fifth matter complained of

1. The fifth matter complained of is a Facebook post addressed to "Meelis Zaia", also published six days after the defendant received the letter of suspension. In it, the defendant questions whether he should continue to use the plaintiff's title "His Beatitude, Mar… the Archbishop", claiming that he (the defendant) has been treated unjustly by the plaintiff and other leaders of the Church.
2. The imputation relied upon by the plaintiff is as follows: 1. 13 Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is unfit for that position because he unjustifiably suspended a parishioner of that Church, Sargon Eshow.
3. The defendant denies that the imputation is conveyed, contending that "nowhere in the plaintiff's own translation did the defendant state that Mar Meelis is unfit" (defence filed 27 October 2016).
4. Presumably taking a cautious approach against an unrepresented litigant, Mr Dawson first addressed the form of the imputation (particularly, the appropriateness of including the term "unfit" in an imputation), drawing my attention to the decision of Simpson J (as her Honour then was) in Ainsworth v Burden [2000] NSWSC 105. In that case, an imputation that included the term "fit and proper person" was objected to by the defendant on the grounds of ambiguity, rhetoric, imprecision, or duplicity.
5. Justice Simpson allowed the imputation to stand. Her Honour did not consider the term "fit and proper person" to suffer from the kind of ambiguity entailed in an attribution of "breach of trust", a term considered by the Court of Appeal in Singleton v Ffrench (1986) 5 NSWLR 425 to be ambiguous. Her Honour was not persuaded that the term "fit and proper person" carries the same technical meaning able to be attributed to the term "breach of trust" and concluded that the scope for misunderstanding the imputation was limited, if not non-existent.
6. The attribution of unfitness in the present case comes from the suggestion that the plaintiff should no longer be addressed by his proper title: I want to ask you Meelis Zaia which is better to call you now Meelis Zaia or as I called you before His Beatitude Mar Meelis Zaia, the Archbishop?
7. The clear suggestion is that the plaintiff does not deserve his title or is not fit to hold the position which attracts it. In the context where the post claims the defendant has been "treated unjustly" by Mar Meelis Zaia and the leaders of the Church, I am satisfied that the imputation would be conveyed to the ordinary reasonable reader.
8. No further matter by way of defence having been pleaded to that publication, it follows that the plaintiff's claim in respect of the fifth matter complained of succeeds.

Sixth matter complained of

1. The sixth matter complained of is a post addressed to Mr Korkis Slewa, the Patriarch of the Assyrian Church of the East, published on the defendant's Facebook page on 6 December 2016. The post recounts the saga of the defendant's suspension from the Church and the subsequent letters he has written to the clergy. He writes that he was barred from the Church on the orders of Meelis Zaia, according to information obtained from the parish priest, Reverend Father Korkis Toma. The post ends with a request to the addressee to "solve the problem and punish the irresponsible".
2. The imputations relied upon by the plaintiff are as follows: 1. 15(a) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, deserves to be punished by the Patriarch of that church for irresponsibly barring parishioner Sargon Eshow from the Church. 2. 15(b) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, has falsely accused parishioner Sargon Eshow of lying.
3. The defendant denies that either imputation is conveyed by the matter complained of. As to imputation 15(a), the defendant contends that the term "irresponsible" does not refer to the plaintiff, but rather to whomever the Patriarch determines (defence filed 27 October 2016).
4. It may be accepted that the post concerns dealings with persons other than the plaintiff. In particular, it refers to letters the defendant has sent to unnamed priests of the Church who might be taken to be included within the class of people it is suggested should be punished.
5. However, the plaintiff would plainly be understood to be in, and foremost within, that class. As noted by Mr Dawson, that is what would be understood by the ordinary reasonable reader to flow from the accusation that the plaintiff was the person who ordered Reverend Father Korkis Toma to bar the defendant from the Church. In that context, the reference to the "irresponsible" would be taken to include the plaintiff.
6. The whole of the second half of the post is directed specifically at the plaintiff. He is referred to by name twice; the second reference coming directly before the final paragraph from which the imputation is drawn (set out above). I am satisfied on that basis that the ordinary reasonable reader would draw imputation 15(a) from the matter complained of.
7. Imputation 15(b) is defended on substantially the same ground, relying on the fact that the post does not explicitly identify the plaintiff as the person accusing the defendant of telling lies. The defendant contends that the statement from which the imputation is drawn - "I was accused of fabricating lies" - instead refers to the church community as a whole, including priests and members of the church committee.
8. Mr Dawson submitted that the act of accusing the defendant of lying is clearly attributed to the plaintiff. There are two occasions on which the post refers to accusations of lying. The first (in the third paragraph) is a plea to the Patriarch not to accuse the defendant of fabricating lies, as it is implied the priests referred to in the same paragraph had done. The second (quoted above) appears between the two references to the plaintiff (it is possible, having regard to the near identical wording of the two claims, that the second is to be understood to be a mere rehashing of the first).
9. The post makes plain that the alleged accusations that the defendant lied were made after he sent a series of letters in response to the plaintiff's letter barring him from the Church. I am not satisfied that the matter complained of conveys more than that a precursory action of the plaintiff may have led to the defendant being accused of lying by other members of the church community. I am not satisfied that imputation 15(b) is conveyed by the matter complained of.
10. No further matter by way of defence having been pleaded to that publication, it follows that the plaintiff's claim in respect of the sixth matter complained of succeeds in respect of imputation 15(a) only.

Seventh matter complained of

1. The seventh matter complained of was posted on the defendant's Facebook page on 8 December 2015. The post takes the form of a poem figuratively comparing the plaintiff to DAESH. The post is addressed in the second person to Patriarch Korkis Slewa and calls upon him to take action against the plaintiff.
2. The imputations relied upon by the plaintiff are as follows: 1. 17(a) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is worse than ISIS. 2. 17(b) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is evil. 3. 17(c) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, expels parishioners from the Church because they tell the truth about him.
3. The defendant denies that any of those imputations is conveyed by the matter complained of.
4. Imputation 17(a) is drawn from the first six lines of the post, which are as follows: What is the difference between Daesh [ISIS] and Meelis Zaia Two faces of the same coin Daesh comes in a wolf's clothing And Meelis Zaia comes in an honest lamb's clothing Daesh displaces Christians from their homeland And Meelis Zaia displaces Christians from their churches in a free country
5. In his filed defence, the defendant contends that there was no reference to ISIS made by the defendant, even on the plaintiff's version of the translation. I do not accept that submission. The plaintiff's translation, set out above, clearly refers to ISIS on three occasions.
6. The written defence further contends that the post did not compare the plaintiff unfavourably to the named terrorist group, DAESH, but simply asked an open question about the difference between DAESH and the plaintiff. That contention ignores the rhetorical force of language and must be rejected. The plain implication of the post is that the plaintiff is to be regarded as comparable to DAESH, that is, comparably evil, but worse.
7. The poem would be understood to mean that, whereas DAESH is openly a "wolf" displacing Christians from their homeland, the plaintiff does something worse, which is to act in the same way in what is meant to be a free country and under the disguise of an innocent lamb. I am satisfied that imputation 17(a) is conveyed.
8. Imputation 17(b) is drawn directly from the lines "I remind you Misters (Korkis Slewa, honest priests and deacons) that he who is silent in the face of evil is a mute evil". Since most of the post refers directly to the plaintiff in pejorative terms, those words are clearly to be understood as a warning to good members of the clergy against ignoring the evil that is the plaintiff. I am satisfied that imputation 17(b) is conveyed.
9. Imputation 17(c) is drawn from the lines "Meelis Zaia displaces Christians from their churches in a free country" and "I have been expelled because I told the priest the church is not yours and neither is Meelis Zaia's [sic]". In my view, there is a difficulty with the form of the imputation. The defendant (who is not legally represented) has not taken that point but it remains my duty to ensure that the claim is properly established.
10. The difficulty with the imputation, in my view, is that its meaning is unclear. It appears to equate "the truth about" the plaintiff with the assertion that the Church does not belong to him. The notion of a Church belonging, or not belonging, to its religious leader is conceptually complex and not readily susceptible of proof as a fact. The precise attribution against the plaintiff sought to be captured in the imputation is, on that account, unclear. Being uncertain as to what the imputation means, I cannot be satisfied that it is conveyed.
11. No further matter by way of defence having been pleaded to that publication, it follows that the plaintiff's claim in respect of the seventh matter complained of succeeds in respect of imputations 17(a) and 17(b) only.

Eighth matter complained of - imputations

1. The eighth matter complained of is a post addressed to Patriarch Gewargis Slewa published on the defendant's Facebook page on 15 December 2015. The lengthy post recounts the defendant's version of the events that led to his being barred from the Church. The post lists three priests of the Church in Melbourne and describes the alleged sins of each. The final paragraph prescribes the qualities that a bishop must and must not possess.
2. The imputations relied upon by the plaintiff are as follows: 19(a) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is a hypocrite in that he protects members of his clergy he knows to be liars, drinkers and adulterers in order to further his own ends. 19(b) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is not fit to be a bishop because he is corrupt. 19(c) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is not fit to be a bishop because he is violent. 19(d) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is not fit to be a bishop because he is a drunk. 19(e) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is not fit to be a bishop because he pursues dishonest gain. 19(f) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, is incompetent.
3. The defendant denies that imputations 19(b), (c), (d) and (e) are conveyed. As to imputations 19(a) and (f), he admits those imputations are conveyed but pleads the defence of honest opinion under s 31 of the Defamation Act 2005 (NSW).
4. Dealing first with the denied imputations, Mr Dawson submitted that each of those meanings is derived from the penultimate paragraph of the matter complained of, as follows: Since a bishop manages God's household, he must be blameless - not overbearing, not quick-tempered, not given to drunkenness, not violent, not pursuing dishonest gain. Rather, he must be hospitable, one who loves what is good, who is self-controlled, upright, holy and disciplined. Not one of these characters [sic] can be found in shameful Meelis Zaia and his priests in Melbourne.
5. As with several of the earlier posts, the post conveys its meaning through juxtaposition. The qualities a bishop must possess are listed; the plaintiff and his priests are said to lack them all. I am satisfied that the ordinary reasonable reader would take the reference to "a bishop" to refer by implication to the plaintiff. The implication of that segment of the post is coloured by the content of the post as a whole, which is directed at the shortcomings of the plaintiff.
6. Imputations 19(c), (d) and (e) are drawn in terms from the segment set out above. The clear implication, in listing the negative attributes a bishop must not possess, is that the plaintiff in fact possesses those attributes. As to the positive attributes a bishop must possess, the post expressly states that the plaintiff, who is described as "shameful and incompetent", lacks each of those attributes. The defendant then explicitly states that the plaintiff does not hold the positive characteristics essential to the role of bishop. That comes after the final line of the previous paragraph where the defendant refers to the plaintiff as "the shameful and incompetent Meelis Zaia". I am satisfied that each of imputations 19(c), (d) and (e) is conveyed.
7. Imputation 19(b) is an attribution of corruptness. It is not clear how that imputation differs from imputation 19(e), which accuses the plaintiff of the pursuit of dishonest gain. The distinction does not appear to be one drawn in the matter complained of. I do not think the plaintiff can properly succeed on both imputations: see UCPR r 14.30(3). The appropriate course is to strike out imputation 19(b).

Eighth matter complained of - defence of honest opinion

1. It remains to consider the defence of honest opinion. As already noted, the defence as pleaded appears to invoke s 31(1) of the Defamation Act, which provides: 31 Defences of Honest Opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.
2. The pleading does not specify the basis on which it is asserted that the opinion is "based on proper material". Presumably it is that the opinion was based on material that is asserted to be substantially true: see s 31(5)(a) of the Act.
3. The defence is pleaded specifically in response to two imputations (imputations 19(a) and 19(f)). I had occasion to consider the significance of the plaintiff's imputations in the operation of the statutory defence in Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091. In that case, I noted that, unlike the defence of justification under s 25 of the Defamation Act, which is specifically directed to the imputations ("if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true"), the defence of honest opinion under s 31 of the Act is directed to "the [defamatory] matter" ("It is a defence to the publication of defamatory matter if the defendant proves that the matter was an expression of opinion of the defendant rather than a statement of fact").
4. The defence thus focusses on the matter complained of in its defamatory sense. The task is to determine whether the defamatory sense of the matter is to be understood as an expression of opinion of the defendant rather than a statement of fact: Carolan (No 6) at [100]. The formulation of the plaintiff's imputations will not necessarily be, and perhaps should not be, determinative in that context: Harbour Radio Pty Ltd v Ahmed [2011] NSWCA 290 at [44], cited in Carolan (No 6) at [101]. However, the formulation of the imputations may be expected to inform an understanding of the defamatory sense sought to be defended as opinion.
5. The matter sought to be defended as (merely) an expression of opinion must be able to be recognised as such. The importance of that requirement is nicely explained in the separate judgment of Gleeson CJ in the decision of the High Court in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at [4] (emphasis added): The defence is concerned with comment based on facts. The truth of those facts will affect the viability of the defence. The distinction between a comment (such as an expression of an opinion, or inference, or evaluation, or judgment) and the factual basis of the comment, blurred though it may be in many communications, affects the application of the defence in a number of ways. So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else's opinion (or inference, or evaluation, or judgment). The relationship between the two conditions mentioned in the previous sentence is that a statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable.
6. The requirement that the reader must be able to appreciate that "all that he or she has read…is someone else's opinion" will not be met where any comment is "inextricably intermingled in the publication with factual matter" such that the reader cannot tell which is which: Manock at [41] per Gummow, Hayne and Heydon JJ, considered in Carolan (No 6) at [103] to [104]. While the decision in Manock was concerned with the common law defence of fair comment on a matter of public interest, the same must hold true for the statutory defence.
7. Mr Eshow's defence falls to be considered by reference to those principles. Imputation 19(a) is that the plaintiff is a hypocrite in that he protects members of his clergy he knows to be liars, drinkers and adulterers in order to further his own ends.
8. The material from which that imputation is drawn includes the following lines concerning the plaintiff: I am willing to provide you with tens of witnesses, all are true witnesses, and TV interviews, he is a liar, a hypocrite and a double faced along with his priests in Melbourne…
9. That aspect of the post bears some similarity to the statements in Manock (a promise to reveal "new facts") which contributed to the conclusion that the matter was incapable of amounting to comment in that case (at [11] per Gleeson CJ; at [44] per Gummow, Hayne and Heydon JJ; Kirby J disagreeing at [132]).
10. The post then describes the alleged sins of three priests, which the defendant writes consist of lies, drink and adultery, before concluding, "All of them are still under the protection of the shameful and the incompetent Meelis Zaia". Imputation 19(f) (that the plaintiff is incompetent) is drawn from the last sentence.
11. In my view, the defence must fail on the first element. I do not think either sense of the matter complained of could conceivably be taken by the reader to be an expression of opinion rather than a statement of fact. To the extent that the post does include any opinion, it is indistinguishably mixed up with the (alleged) facts upon which it might be based. Shorn of any context, the description of a person as a hypocrite or an attribution of hypocrisy or incompetence could, in some circumstances, be presented as an expression of opinion but here those attributions are plainly asserted as facts. The defendant offers to provide evidence to demonstrate their truth.
12. For those reasons, I hold that the defence in respect of the eighth matter complained of is not made out.
13. It follows that the plaintiff's claim in respect of the eighth matter complained of succeeds in respect of imputations 19(a), (c), (d), (e) and (f) only.

Ninth matter complained of - imputations

1. The ninth matter complained of was published on the defendant's Facebook page on 10 December 2015. It is a post in two parts. The first is addressed to the plaintiff in these proceedings. In that part, the defendant accuses the plaintiff of expelling him and his family from the Church. He further accuses the plaintiff of accusing the defendant of "fabricating lies", "creating lots of problems among the believers", disappointing the believers and "rioting". The post claims that the plaintiff has not agreed to prove the allegations leading to the defendant's exclusion from the Church because those allegations are in fact lies. It ends with a demand for an apology and a threat that in the event of a failure to apologise the defendant will "come down to the same unethical level of yours, and will spread words you have never heard in your lives, even if I lose my afterlife".
2. The second part of the post is addressed to Mr Korkis Slewa and again takes issue with the defendant's expulsion from the Church. The defendant urges the addressee to speak to the plaintiff, who he states has overstepped the bounds of his power as Archbishop and broken the law of the Synod. He claims that the plaintiff must be expelled from the Church "because he broke the law and he is a liar and a hypocrite".
3. The plaintiff relies upon six imputations. The defendant denies that the first four of those imputations are conveyed. He admits that the fifth and sixth imputations are conveyed but pleads the defence of honest opinion to those imputations.
4. The first four imputations are as follows: 21(a) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, expelled parishioner Sargon Eshow, his wife and daughters from the Church without good reason. 21(b) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, has falsely accused parishioner Sargon Eshow of being a liar. 21(c) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, has falsely accused parishioner Sargon Eshow of creating discord amongst followers of the Church. 21(d) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, has falsely accused parishioner Sargon Eshow of rioting.
5. Imputation 21(a) is clearly conveyed. The first line of the post states "On 10/04/2015 you and your shameful priests in Melbourne insulted me, my wife, and my daughters, and expelled us out of the Church". As that part of the post is addressed directly to the plaintiff, the first element of the imputation (that the defendant and his family were expelled from the Church) is conveyed by those words alone.
6. The second element of the imputation is that they were expelled "without good reason". The plaintiff relies on the following lines of the post: More than seven months, I have been asking you to proof [sic] the contents of the exclusion letter, without any result. Do you know why you cannot proof [sic] it, because all of that is a lie, and you conduct yourself as if you own the church.
7. Following the claim that the reasons provided for his expulsion are lies, the post continues, "Therefore, you are required to apologise". I am satisfied that the ordinary reasonable reader would understand those words in the context of the post as a whole to mean that there was no good reason for expelling the defendant and his family from the Church.
8. The translation of the matter complained of indicates that the word "you" in the phrase "you are required to apologise" could refer to a singular or plural audience. However, that ambiguity is resolved by the fact that the portion of the post in which an apology is requested is addressed to the plaintiff personally. Further, the preceding line addresses the plaintiff - "you conduct yourself as if you own the church". Even if that is wrong and the correct interpretation is that an apology was requested from a plural "you", imputation 21(a) would still be conveyed by those words. Accordingly, I am satisfied that imputation 21(a) is conveyed.
9. As to imputations 21(b), (c) and (d), the second paragraph of the matter complained of plainly attributes the plaintiff with having made the several accusations referred to. The post expressly states that the plaintiff has accused the defendant of fabricating lies; creating lots of problems among the believers; disappointing the believers and rioting. While the post does not specifically say those accusations were made in the expulsion letter, I am satisfied that is what the ordinary reasonable reader would understand the post to mean.
10. The real question is whether the post conveys the notion that those accusations were made falsely. To support that element of the imputations, Mr Dawson relied on the subsequent paragraph, set out above, in which the defendant states in respect of the contents of the "exclusion letter" that, "all of that is a lie". As already indicated, I am satisfied that the reader would understand that letter to contain the accusations reproduced in imputations 21(b), (c) and (d). Accordingly, I am satisfied that those imputations are conveyed.

Ninth matter complained of - defence of honest opinion

1. The two imputations in response to which the defendant pleads the defence of honest opinion are as follows: 21(e) Mar Meelis Zaia, the Metropolitan of the Assyrian Church of the East, deserves to be expelled by the Patriarch of that Church because he has broken Synod laws by forbidding parishioner Sargon Eshow from entering the Church. 21(f) Mar Meelis Zaia, Metropolitan of the Assyrian Church of the East, deserves to be expelled by the Patriarch of that Church because he is a liar and a hypocrite.
2. As already explained, the first element of the defence requires the defendant to establish that the matter complained of, in the defamatory sense captured in each of those imputations, was "an expression of opinion of the defendant rather than a statement of fact".
3. Imputations 21(e) and 21(f) are drawn from the second part of the post which is addressed to Mr Korkis Slewa, the Patriarch of the Church. The defendant urges Mr Slewa to speak to Mar Meelis Zaia and tell him that: The church has Synods [sic] laws, he has broken the laws and he has to be expelled because he broke the law and he is a liar and hypocrite…
4. In my view, those remarks are plainly presented as fact and would be understood as such by the ordinary reasonable reader. As submitted by Mr Dawson, in order for the assertion that the plaintiff has broken the Synod law to be understood as opinion rather than fact, it would be necessary to have presented a factual exploration of what Synod law says and what the plaintiff was said to have done so as to enable the reader to understand that the assertion of breach was only the author's opinion. The matter complained of does not identify or explain any particular law said to have been broken. The conduct said to have constituted the purported breach is the expulsion of the plaintiff from the Church. No factual basis is identified for asserting that to have been a breach of synod law.
5. The same analysis applies to imputation 21(f). The matter complained of presents no discrete specification of facts from which it can be understood that the assertion that the plaintiff is "a liar and a hypocrite" is just the author's opinion. The first part of the post (addressed to the plaintiff) identifies the lies the creation of which the defendant attributes to the plaintiff (the four accusations made of the defendant in the letter of exclusion) but what follows is bare assertion: "all of that is a lie". There is no exploration of any facts underlying that assertion. The assertion that the plaintiff is a hypocrite is also not based on any facts provided in the matter complained of. The result is that those assertions would be understood as assertions of fact, not opinion.
6. For those reasons, I am satisfied that the defence of honest opinion must fail in relation to the ninth matter complained of.
7. It follows that the plaintiff's claim in respect of the ninth matter complained of succeeds.

Damages

1. The plaintiff has established an entitlement to damages in respect of six of the seven publications sued on and pressed at trial (the third, fifth, sixth, seventh, eighth and ninth matters complained of). Although there are multiple causes of action, I consider it appropriate to assess damages in a single sum, as allowed under s 39 of the Defamation Act.
2. The defamation is serious. The acts and conditions that have been attributed to the plaintiff in the publications on which he has succeeded are, broadly, that he has failed the Church, that he is a hypocrite, that he is unfit to hold the position he holds in the Church, that he deserves to be punished for expelling the defendant from the Church, that he is evil and worse than ISIS, that he is violent, drunk, dishonest and incompetent and that he has made false accusations against the defendant.
3. The general principles to be applied in assessing damages for defamation are well known. The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation and vindication of the plaintiff's reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61; [1993] HCA 31 at [32]. However, in the present case, Mr Dawson accepted that, as the plaintiff did not give evidence, he is not entitled to damages for hurt to feelings. In those circumstances, vindication of the plaintiff's reputation must be the primary consideration. In the absence of any evidence from the plaintiff, it is not appropriate to award aggravated damages, as claimed.
4. In John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 at 299D, Mahoney JA explained the considerations to which the Court should have regard in assessing damages for the purpose of vindication (his Honour was in dissent but his description of the factors which called for large verdicts in that case was expressly approved by the High Court: see Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 at [40]): … three matters may be taken into account by a tribunal in determining how large a sum is necessary for the purpose: the allegation made; the respective positions of the plaintiff and the defendant; and the availability of other remedies.
5. Whilst Mahoney JA was referring to factors that warranted a higher award in that case, two of those factors point in a different direction in the present case. The defendant in Carson was considered to have "great power" (at 300A per Mahoney JA). The respective positions of the plaintiff and the defendant in the present case are quite different. The plaintiff is an esteemed church leader; the defendant would be perceived by his readers as a disgruntled former parishioner. The overwhelming likelihood is that many readers would reject the extravagant claims made in the posts without hesitation.
6. Secondly, whereas in Carson Mahoney JA had regard to the absence of any alternative remedy, the availability of other remedies here (the injunctive relief sought) must be brought into account.
7. The task of assessing damages is also guided by several provisions of the Defamation Act. Section 34 of the Act requires the Court to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. That is an important consideration in a case where there is no evidence of hurt to feelings.
8. Section 35 imposes a limit on the amount of general damages that may be awarded. The present limit is $389,500 (Gazette No 56 of 26.5.2017, p 1782). Competing views have been expressed as to the proper approach to such limiting provisions. In Carolan (No 6) at [124]-[127], I considered that I should, for reasons of comity, follow the approach that has been taken in Victoria to the same section and on that basis applied the decision of Kyrou J in Cripps v Vakros [2014] VSC 279 at [599]-[609]. The approach adopted by his Honour is that the limit imposes a ceiling but does not operate so as to require the Court to scale lesser awards accordingly. On that approach, the Court should award the amount of damages to which the Court considers the plaintiff is entitled, without recalibrating that amount by reference to the statutory limit, provided that the limit is not exceeded.
9. There was evidence in the proceedings to establish that, prior to the publication of the matters complained of, the plaintiff enjoyed an excellent reputation. Damage is presumed to flow from the publication of defamatory matter. It must be acknowledged, however, that the evidence in this case suggests that those who previously held the plaintiff in high esteem continue to do so.
10. A number of witnesses gave evidence of the plaintiff's good reputation. The first was Mr Sargis Mako, a primary school principal and part of the Assyrian community in western Sydney. Mr Mako knew the plaintiff from their work establishing the school together. He gave evidence as to the large number of people who attended His Beatitude's ordination as Archbishop, including the Hon. Chris Bowen and then Prime Minister of Australia, Kevin Rudd. Mr Mako also noted the plaintiff's his appointment as a Member of the Order of Australia and his position as the Assyrian Church of the East's Metropolitan of Australia, New Zealand and Lebanon. It was clear from his evidence that the plaintiff is highly revered.
11. Mr Mako had not read the matters complained of in the original Arabic but only through translation. He said the posts had generated discussion amongst Mr Mako's colleagues and in the Assyrian community, with specific reference to what Mr Mako termed the disgust at the "abhorrent language… and disrespect" directed towards the plaintiff.
12. The second witness called by the plaintiff was Deacon Sami Sharlamal, who holds a position conducting the social media accounts including three Facebook pages of the Assyrian Church of the East. Deacon Sharlamal read each of the defendant's posts within a month of their appearance on Facebook. He said that four of the matters complained of were still on-line at the time of the trial. Deacon Sharlamal gave evidence that there are thousands of visits to his posts about His Beatitude on the Church's Facebook pages, which suggests that there is a high level of interest in the plaintiff on social media.
13. The third reputation witness called by the plaintiff was Ms Carmen Lazar, who has held many distinguished positions in the Assyrian community, including her former role as principal of the Assyrian language school in Sydney's west. Ms Lazar described the plaintiff in glowing terms, stating that he is a "wonderful" man, a "role model", and that she attends every one of his events. Ms Lazar cited the number of parishioners who attend her church - regularly around 500 - which grows to between 1500 and 2000 when the plaintiff makes an appearance.
14. In the course of her work, Ms Lazar's clients drew her attention to the defendant's Facebook posts. Being Iranian Assyrian, Ms Lazar was unable to read the posts in the original Arabic, but had her husband (who is Iraqi Assyrian) translate them for her. Subsequently, she was asked by further clients about the posts but swiftly terminated these conversations.
15. The fourth witness was Deacon Ramen Youkhinis, a director of the Assyrian Church of the East Youth Association (ACEYA) of which the plaintiff is the chairman. Deacon Youkhinis' youth group members were well aware of the defendant's Facebook posts. He said some, who knew Arabic, had been particularly "fired up" in respect of two posts in particular (the third and seventh matters complained of) on account of their references to the terrorist group DAESH. The Deacon did not consider those posts would ruin the reputation of His Beatitude but thought they would have some negative impact.
16. Each of the posts was potentially published to an audience of between 264 and 332 of the defendant's Facebook friends but there is no evidence as to how many people in fact read the posts. The plaintiff submitted that the fact of publication on social media to the world at large warranted a substantial award of damages. That assumes that a large number of people other than his Facebook friends would have found the defendant's Facebook page. Mr Dawson pointed to the evidence of Ms Lazar that discussion of the posts was not confined to the Assyrian community but had spread to the wider community with whom she deals. That evidence provides some support for the plaintiff's position but it remains largely a matter of speculation to know how widely the posts were read.
17. I accept, as submitted by Mr Dawson, that the evidence as to the position the plaintiff holds and the importance of his reputation to his role and to the Church is relevant in accordance with the principles accepted in Carson as to the assessment of an amount adequate to vindicate a strong reputation.
18. The defamation in the present case was serious and persistent. A substantial award is required to vindicate the plaintiff's reputation. However, that assessment must be tempered by the likelihood that many readers would have dismissed what was said as an irrational account and would continue to hold the plaintiff in the high esteem in which he is clearly held by many. I also have regard to the fact that I propose in this case to grant a permanent injunction restraining the defendant from repeating the defamation. The availability of that remedy serves to reduce the quantum of damages, albeit to a limited extent. It is relevant because it reduces the need to award an amount sufficient to vindicate the plaintiff's reputation in the relevant respect in the future: cf Carson v John Fairfax at [5].
19. In all the circumstances, I consider it appropriate to award damages in the sum of $150,000.

Injunctions

1. In addition to claiming damages, the plaintiff seeks a perpetual prohibitory injunction restraining the repetition of the publication.
2. The principles to be applied in determining whether to such an injunction were considered recently by me in Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351.
3. For the reasons explained in my judgment in that case, it is not appropriate to approach the application on the basis that a perpetual injunction will be granted whenever a plaintiff's claim for defamation succeeds. Some additional factor is required. In Carolan (No 7), I held that the critical factor in determining whether to grant a final prohibitory injunction is the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings and that such an order should only be made where the court is satisfied that it is reasonably necessary to address that threat or risk.

Evidence of threat or risk in the present case

1. The plaintiff submits that the defendant "displays irrationality, defiance and disrespect for the Court such that he will continue to publish similar allegations unless otherwise restrained". In support of that submission, the plaintiff invites the Court to consider four features of the defendant's conduct.
2. First, the plaintiff points to the conduct of the defendant prior to the trial, specifically the defendant's refusal to apologise or give undertakings to remove the matter complained of from Facebook and not to publish further similar allegations. On 3 March 2016, the plaintiff sent a concerns notice to the defendant making those requests. Around 16 March 2016, the defendant appeared to remove the matters complained of from Facebook. However the undertakings sought were not provided.
3. Secondly, the plaintiff submits that the language of the matters complained of is "defiant and at times menacing in tone". To the extent that the publications can be described as defiant, I accept that that is a matter that may indicate a risk of repetition of the publication of the defamatory matter. The ninth matter complained of provides an example of such language: I swear by the blood of Jesus that I will come down to the same unethical level of yours, and spread words like you have never heard in your lives, even if I lose my afterlife.
4. Thirdly, the plaintiff points to the volume and content of publications published by the defendant since the commencement of proceedings against him as evidencing an intention to publish further material conveying the same or similar imputations to those conveyed by the matters complained of. There have been several such posts on Facebook. On 1 December 2016, the defendant posted the following: You are right, you Meelis the hypocrite, the liar… I promise to make you come out of the judges [sic] with your grey hair in the dust because it is my duty and the duty of each Christian who is fervent for the church to clear the House of God from you and from the likes of you.
5. On 12 December 2016, the defendant posted the following: Another scandal of Meelis Zaia… If there is anyone from the hypocrites [sic] lovers of Meelis Zaia who denies this, I am here to meet any journalist and any television to confirm this.
6. During the course of these proceedings, the defendant gave evidence on oath that he will "still, you know, post the truth in Facebook" (at T100.23), the so-called "truth" being a reference to his allegations concerning the plaintiff. As the commencement of legal proceedings has not stopped the defamation and where the defendant has explicitly asserted his intention at trial to repeat the defamation, I am satisfied that the risk of repetition of the defamation is high in the present case.
7. Fourthly, the plaintiff relies on the fact that the defendant evidently holds the view that this Court does not have jurisdiction to determine these proceedings because it is an internal Church matter to be dealt with in accordance with Synod laws. That appears to be the burden of par 9 of the defence filed 27 October 2016. That suggests that an award of damages alone will not dissuade the defendant from repeating the defamation.
8. The matters relied upon by the plaintiff make a cogent case for granting a permanent prohibitory injunction. I propose to make an order in the terms sought.
9. The plaintiff's written submissions also address the issue of "take-down" orders, although no such order is sought in the pleadings. The appropriate course is to reserve to the plaintiff an opportunity to provide evidence as to what remains on the internet within a week of the publication of this judgment and to seek an appropriately framed order at that point.

Orders

1. For those reasons, I propose to make the following orders: 1. That a verdict be entered for the plaintiff in the sum of $150,000. 2. That the defendant be permanently restrained by himself, his servants or agents from further publishing the third and fifth to ninth matters complained of in these proceedings or any other matter giving rise to the imputations found in this judgment to have been conveyed by those matters (or similar imputations not differing in substance from them).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2017