Supreme Court Defamation Case

The following in press release from NSW Supreme Court:

Today the Supreme Court upheld a claim for defamation brought by the plaintiff, Ms Melinda Pedavoli, against the defendant, Fairfax Media Publications Pty Ltd for damages. In January 2014, the Sydney Morning Herald published an article titled “Female teacher quits top Catholic school after claim of sex with boys”; this was published in the print edition of the Sydney Morning Herald and made available for downloading on the newspaper’s tablet app and on its website, though under a different headline. Through the careless inclusion of incorrect information, the article wrongly identified Ms Pedavoli as the teacher concerned. Although Ms Pedavoli was not named in the article, her age and the subjects she taught were used as descriptors, effectively excluding identification of the correct teacher concerned and unequivocally identifying Ms Pedavoli.

Ms Pedavoli contended that the article conveyed the following defamatory imputations about her:

(a) that she is a sexual predator who used boys at the school at which she taught for her sexual gratification;
(b) that she is a paedophile;
(c) that she committed a criminal offence by having sex with at least two boys at the school at which she taught; or, in the alternative,
(c)(i) that she breached child protection laws by having sex with at least two boys at the school at which she taught;
(d) that she had so seriously misconducted herself as a teacher as to deserve to have her employment terminated by the school at which she taught.

The Court found that except for imputation (b), the imputations pleaded on behalf of Ms Pedavoli were conveyed by the matters complained of.

The only defence relied upon by the defendants was the statutory defence created by s 18 of the Defamation Act 2005 of failure to accept an offer to make amends. The Court rejected the defence.

In assessing damages, the Court considered s 34 of the Defamation Act 2005, the extent of publication and the plaintiff’s hurt to feelings. The Court also considered the matters in aggravation of the plaintiff’s damages.

The Court found that the defamation greatly damaged Ms Pedavoli’s impeccable reputation and caused her immense hurt. The Court assessed the damages recoverable by Ms Pedavoli in the sum of $350,000 and found an entitlement to an award of interest at 3 per cent. The Court is yet to decide the question of costs.

Opera Australia – Unfortunate Decision

Aida, now any student can stand on stage with professionals and be a professional without being paid like one. Or without being paid at all.
Aida, now any student can stand on stage with professionals and be a professional without being paid like one. Or, for that matter, without being paid at all. Image from the Opera Australia website, advertising their grand vision for opera in the open-air in 2015.

Opera Australia has done something thought-provoking – though not by what they put on stage – rather through how they put it on stage. It is a decision that should be reviewed urgently and the whole ill-advised undertaking withdrawn.

I write this as a lover of opera and of the Opera Australia who I have supported as a loyal member of the audience for now close to two decades. It’s a small measure of operatic fidelity compared to some of my audience colleagues, but occasionally, we the loyal opposition must speak up and I do so now.

Someone has had the idea that it would be smart to ask people to volunteer to provide professional performance work – that is – do it for free. But don’t worry, we’re only asking students to do it, students who are studying it in some way – so that gets us through the loop-hole of the Fair Work Act… or does it?

Students are annoying at the best of times, so who cares right? Maybe those persons who could be gainfully employed as performers. Those persons who were once students and are now looking to practice in the industry. Let’s look a little closer…

The well-known and up-to-date source of all operatic knowledge in this country (aside from fawning press-releases) Bel Canto last night published a call out for people looking to do a secondment with Opera Australia in their upcoming Opera on the Harbour project – a production of the Verdi stalwart “Aida”.

The “Call Out” says that the national Opera company is seeking “students currently undertaking a performance based degree to join the Aida cast” and notes that they will get a lot out of doing that including, “You will be in the cast of Handa Opera on Sydney Harbour, an Opera unlike any other Opera in the world!” and, “You will work under the direction of our internationally renowned creative team and amongst a cast and crew at the top of their games.” But that’s not all – with students being promised that they will have their name listed in the program “alongside our international cast members” and they will “get the experience of working on a production of international scale, from rehearsal room to stage.”

This would be, this morning at least, very exciting for any number of talented students looking for an entrée into the world of professional opera performance.

The deal requires that participating students will need to commit to rehearsals over a period of time and provides an “indicative” schedule and work that really totals to about two months solid full-time work. Importantly, the opera says that students will have to,

“Cover all their own expenses, including travel and food expenses. We unfortunately cannot provide any reimbursements or allowances to secondment positions.”

The roles will play the part of supernumeraries (non-speaking, non-singing actors on stage).

This is a questionable undertaking of the national lead opera company. If the national opera, well-sponsored by Handa, wish to stage a mammoth production of an opera for the whole world to come and watch, then they should do so properly. Getting students (or anyone) to stand on a stage and perform for free is unacceptable. There are any number of young performers in this country who are trying to make performance their craft and their profession and they are necessarily denied an opportunity every time someone takes their place for free.

Why, you may ask, is this undertaking restricted to students only? Could it have anything to do with the recent rulings, reports, recommendations and reviews throughout Australian to the effect that unpaid work experience or secondments are only permissible if the work is in exchange for some form of course-specific credit? Otherwise, if someone is doing work that another person would usually be paid for, then they should be paid for it.

This isn’t a new issue. In 2011, the Fair Work Ombudsman identified unpaid work in Australia as a growing issue that needed their attention – they commissioned a report from Adelaide University Law School Professor Andrew Stewart and Rosemary Owens that looked at three types of unpaid work in Australia:

  • unpaid work experience
  • unpaid trial work
  • unpaid internships.

The report was delivered in 2013 and in the summary provides (among others) the following findings:

– The report concludes that there is reason to suspect that a growing number of businesses are choosing to engage unpaid interns to perform work that might otherwise be done by paid employees.

– The report recommends that FWO focus on those businesses that are systematically using unpaid
work arrangements to exploit workers, and gain competitive advantage over businesses complying
with workplace laws.

– On the other hand, there is no evidence to suggest that work experience conducted under the aegis of secondary school programs involves the exploitation of young people.

The consequences to business of the report, the Fair Work Ombudsman’s interest and the modern market-place practices are well-known. It is a shock to see that Opera Australia is suggesting students from courses who might have a relevant degree should be able to do the work of paid professionals. Or is it that there is little regard for the role of supernumeraries as legitimate professional work?

Opera Australia should urgently reconsider its position. A job is a paid job if it is work that would ordinarily be completed by a paid individual. This doesn’t seem to be a case of a traineeship – it is not an on-the-job lesson – it’s nothing more nor less complex than an actual job. Work experience should never supplant a paid position nor the word of someone who is a professional.

The summary of the report warns of misconceptions and questionable practices:

– There also seems to be a misconception that, if a worker is undertaking some form of work integrated learning, then the worker would be exempt from the Fair Work Act 2009 (the Act) and therefore can be unpaid.

– However, under provisions which were first introduced into federal law in 1996 through the Workplace Relations Act 1996, the only current exemption is for those who are engaged on a vocational placement which is a requirement of an education or training course and is authorised under a law or an administrative arrangement of the Commonwealth, a state or territory.

– If an unpaid work experience arrangement is not a formal vocational placement, and the person is actually an employee working under a contract of employment, then the person is entitled to the conditions and entitlements under the Act and Fair Work instruments – including a minimum wage.

The present “call out” from Opera Australia is disquieting for those who look to get into the industry. Little can be done by them who don’t want to cut their nose of in spite of their face. Speaking up, protesting the obvious, may lead to being in the cold for many years to come. It may not of course, and if you’re not being paid for your work, you really are still out in the cold. So not a great deal is lost by speaking up.

If these secondments are purely for students to observe, to study, to learn theatre and performance craft, then I applaud Opera Australia for their vision, their desire to educate and to provide mentoring opportunities for emerging artists. If it is to have them perform on stage as a performer voluntarily or for free (or however one might define those terms) – then I think it a shameful and entirely regrettable situation and one that ought be stopped by an employer so large and so important in Australia’s performing arts.

Aaron Kernaghan

This article represents the personal opinion of the author
and does not necessarily reflect the views of Kernaghan
& Associates Lawyers nor its staff.

Mangrove Yoga Ashram – Royal Commission Case Study Announced

Royal Commission into Institutional Responses to Child Abuse
Royal Commission into Institutional Responses to Child Abuse

Today the Royal Commission into Institutional Responses to Child Abuse announced that it is holding a public hearing in Sydney from 2 December 2014 at 10:00am.

The public hearing will inquire into the response of the Mangrove Yoga Ashram located at Mangrove Mountain, New South Wales, to allegations of child sexual abuse by the Ashram’s former spiritual leader in the 1970s and 1980s.

The scope and purpose of the public hearing is to inquire into:

  1. The response between 1974 and 2014 of the Satyananda Yoga Ashram at Mangrove Mountain, New South Wales, to allegations or reports of child sexual abuse made against Swami Akhandananda Saraswati.
  2. The operation of the Ashram between 1974 and 1989 in relation to matters of child sexual abuse.
  3. The systems, policies and procedures in place at the Ashram between 1974 and 1989, and currently, in relation to raising and responding to allegations of or concerns about child sexual abuse.
  4. Any related matters.

Kernaghan & Associates acts on behalf of the Mangrove Yoga Ashram and has this morning released the attached Press Release. In it, Aaron Kernaghan explains that his clients welcome the Case Study and intend to play an active role in ensuring that the transparency of the process and wisdom of the recommendations that may flow are instrumental in the future development of the organisation. For more details, please see the attached press release.

For any media inquiries please call (02)4244-0339 or fax: (02)4210-8668.