| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 02348
BETWEEN:
| ZHEN ELIZABETH FONG-JONES | Plaintiff |
| v | |
| FLOW CHEMICAL PTY LTD & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Efthim AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 September 2023 |
DATE OF JUDGMENT: | 18 October 2023 |
CASE MAY BE CITED AS: | Fong-Jones v Flow Chemical Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 770 |
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DEFAMATION – Application for assessment of damages – Undefended – Interlocutory judgment entered for the defendants to pay the plaintiff damages to be assessed – Plaintiff sought damages including aggravated damages, interests and costs – Plaintiff alleges that defendants were instrumental to the publication and continuing publication of the defamatory thread – Consideration of factors relevant to assessment of damages – Defamation Act 2005 (Vic), ss 34 and 35 – Seriousness of the imputations and extent of publication – ‘Grapevine effect’ arising from the publication of the defamatory material – Vindication of plaintiff’s reputation – Plaintiff awarded $445,000 in damages inclusive of aggravated damages and interest – Indemnity costs awarded under s 40 of the Defamation Act 2005 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | T Mullen | Maloney Anderson Legal |
| For the Defendants |
TABLE OF CONTENTS
Legal principles.................................................................................................................................. 2
The plaintiff - Reputation................................................................................................................ 5
Seriousness of imputations.............................................................................................................. 7
Extent of publication......................................................................................................................... 7
Serious harm to reputation............................................................................................................... 9
The effect on the plaintiff.............................................................................................................. 10
Damages............................................................................................................................................. 11
The damages awarded to the plaintiff..................................................................................... 12
Aggravated damages.................................................................................................................. 12
Interest.......................................................................................................................................... 14
Costs.............................................................................................................................................. 15
Conclusion......................................................................................................................................... 16
HIS HONOUR:
The plaintiff, Zhen Elizabeth Fong-Jones, asserts that since 30 August 2022, she has been the target of a vile, abusive, transphobic, defamatory thread on the internet discussion forum called ‘Kiwi Farms’ (‘Defamatory Thread’).
The plaintiff filed and served a statement of claim against the first defendant, Flow Chemical Pty Ltd and the second defendant, Vincent Zhen, alleging that by reason of the Defamatory Thread she has been seriously injured in her reputation, suffered hurt, distress, embarrassment, and has thereby suffered and will continue to suffer loss and damage.
The plaintiff claims against the defendants damages, including aggravated damages.
The first defendant, Flow Chemical Pty Ltd, has since May 2018 been the registered owner of two APNIC (Asia Pacific Network Information Centre)[1] assigned IP blocks, a subset of one which allows 1776 Solutions LLC to host the Kiwi Farms website. The second defendant, Vincent Zhen, is the sole director, secretary and shareholder of the first defendant.
[1]The Asia Pacific Network Information Centre (APNIC) is a non-profit organisation whose primary role is to distribute and manage internet number resources (IP addresses and AS numbers) in the Asia-Pacific region.
The defendants were not the authors of the Defamatory Thread, however the statement of claim pleads that they were instrumental to its publication and continuing publication.
Kiwi Farms according to the statement of claim is and was at all material times:
(a) an internet discussion forum:
i.where users or hosts create discussion threads about public…
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- Case
- [2023] VSC 770
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the determination of the appropriate amount of damages to be awarded to the plaintiff. This included considering the extent of the defamation, the seriousness of the imputations, the effect of the publication, and the steps taken to mitigate the harm caused. The court also had to determine whether aggravated damages, interest, and costs were applicable in this case.
The court found that the defamatory comments were serious and had caused significant harm to the plaintiff's reputation. The court considered the 'grapevine effect' caused by the publication of the defamatory material, which had led to a wide dissemination of the comments. The court concluded that the plaintiff was entitled to aggravated damages, interest, and costs. The court awarded the plaintiff $445,000 in damages, which included aggravated damages, interest, and costs. The court also awarded indemnity costs to the plaintiff under section 40 of the Defamation Act 2005 (Vic). The court ordered that the defendant pay the full amount of damages to the plaintiff within 28 days of the judgment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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