On 20 November 2015 Nationwide, in The Australian newspaper, published both online and in its print edition an article concerning registered training organisations and, in particular, a company called Phoenix which was owned by Australian Careers Network (or ACN). The article described Mr Prakash Charan and Mr Ivan Brown as the ‘heads’ of ACN which had acquired Phoenix in January 2015.
Mr Charan, at the time of both the acquisition of Phoenix and the publication of the article, was not a director or involved in the management of ACN, although he had been intimately involved as the managing director of its predecessor, CTI. The article wrongly implicated Mr Charan as being associated with the activities of Phoenix. He was, in Justice J Forrest’s opinion, defamed in that article.
The sting of the imputations contained in the article was as follows:
(a )Mr Charan managed a vocational training organisation which engaged in unscrupulous business practices that took advantage of vulnerable consumers and resulted in him making a large amount of money; and
(b) Mr Charan managed a vocational training organisation which was significantly non-compliant with quality standards.
Nationwide subsequently apologised to Mr Charan in its print edition and amended its online article.
Notwithstanding the apology, Nationwide did not admit that these imputations were made out but said that if they were they were substantially true and thus sought to make out a defence under s 25 of the Defamation Act and at common law.
Over the course of some 35 days of hearing, evidence was heard from 30 witnesses and hundreds of digital exhibits were tendered by the parties.
His Honour was comfortably satisfied that Nationwide established that both imputations are substantially true and therefore succeeds on both the statutory and common law defence of justification.
The evidence given by Mr Charan in asserting that he had little to do with the operation of an RTO of which he was the managing director during 2014 was, in Justice J. Forrest’s opinion, false. Further, his Honour was satisfied that Mr Charan played a real part in organising mass enrolments of students who had little, if any, command of the English language and was also well aware of the falsification of documents which were submitted to the Department of Education and Training for payment under the Victorian Training Guarantee Scheme by CTI companies in 2014. His Honour was also satisfied that he was aware that scribes—that is, persons engaged by CTI or its associate companies—engaged in the falsification of course enrolments and documentation.
His Honour has held that Mr Charan was aware that at least one CTI company offered incentives to students to enrol in courses contrary to the terms of its contract with the Department of Education and Training and that this was a significant breach of the VET funding contract.
The end result is that subject to hearing from counsel there should be judgment for the defendant, Nationwide.