Wealthy businessman Atkinson Prakash Charan has been branded a person who lies and an “entirely unreliable witness” by a Supreme Court judge when handing down a decision in what is expected to be one of the most expensive defamation cases in Australian legal history.
The former manager of Australian Careers Network lost his lawsuit against the publisher of The Australian over a 2015 story detailing allegations of misleading or deceptive conduct at a business linked to the collapsed vocational education provider.
The 35-day defamation trial is believed to have cost both side mores than $3.5 million in legal fees.
Mr Charan was repeatedly rebuked by Justice Jack Forrest for his conduct during the proceedings, which included frequent claimed memory lapses and deliberately erasing text messages that were supposed to be tendered as evidence.
“Mr Charan’s lack of recollection of recent events, some of real significance in his commercial ventures (particularly given their success) was extraordinary and farfetched.”
In November 2015, The Australian published an article about Phoenix, a company owned by ACN, that described businessman Atkinson Prakash Charan and partner Ivan Brown as ‘heads’ of the network.
The article described activities of the company that were potentially misleading or deceptive, and noted that Mr Prakash had amassed a $35 million fortune according to the BRW 2015 Young Rich List.
Mr Charan launched proceedings against News Corp subsidiary Nationwide News, which publishes the national newspaper, seeking damages for defamation.
Phoenix was acquired by the careers business in January 2015. At this time Mr Charan was not a director.
He was also not involved in the management of the vocational training organisation, but was the managing director of predecessor company Community Trading Initiatives (CTI). He held four per cent of its issued capital in escrow.
Justice Forrest found the article had wrongly implicated him as being “associated with the activities of Phoenix” and was defamed in the article.
The article’s aspersions included that Mr Charan had managed an organisation that engaged in unscrupulous business practices and took advantage of vulnerable consumers that resulted in his financial gain and that he managed an organisation that was not compliant with quality standards.
Nationwide News amended the article online, with an apology printed in the newspaper and published on its website.
The apology said it had “inadvertently named Atkinson Prakash Charan as part of ACN’s current management” when he had, in fact, left the business previously in 2014.
The Australian publisher did not admit the imputations were made out, but said “if they were they were substantially true” and presented a defence under section 25 of the Defamation Act and at common law.
Section 25 provides a defence for publishers of defamatory material if it is “substantially true”.
Evidence from 30 witnesses and hundreds of tendered digital exhibits over 35 days of hearings left Justice Forrest “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 … false,” the judgment document says.
“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.”
He was also satisfied that Mr Charan was aware people engaged by CTI or associated companies had engaged in falsifying course enrolments and documents, and that he knew at least one CTI company offered incentives for students to enrol in courses contrary to the terms of contract with the Department of Education and Training. This is a breach of the VET funding contract.
Among the evidence was hundreds of emails authored or received by Mr Charan “many of which he professed no recollection” that showed his role extended beyond “marketing guru” and towards the day-to-day operations of the business.
Justice Forrest said Mr Charan’s “memory – or lack of it” had no medical explanation and was “hogwash designed to deflect an objective inquiry into Mr Charan’s role in the Brown/Charan CTI companies during 2013 and particularly during 2014”.
Mr Charan had been required to allow the Court to access his phone as part of his cross-examination.
Text messages between Mr Charan and Mr Brown had been deleted with only a small number available on the phone, despite Telstra records showing many were exchanged between their numbers in February 2017.
Justice Forrest said he was “satisfied that Mr Charan deliberately erased messages from Mr Brown during the course of this trial”.
In late-November 2015, the Australian Competition and Consumer Commission instituted proceedings in the Federal Court against the companies.
It alleged Phoenix represented to potential students that they would get a free laptop, and that the courses were free if they did not earn more than $50,000 a year, when the students actually had the laptop on loan and would have to pay VET FEE-HELP loans to the government.
A spokesman for the regulator confirmed the ACCC’s proceedings are still ongoing in the Federal Court.
News Corp has been contacted for comment.