Fong-Jones v Flow Chemical Pty Ltd
[2023] VSC 770
•18 October 2023
| 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 |
---
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 |
---
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).
---
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 figures typically followed by obscenity, abuse, defamation and harassment of the individual;
ii.styled by its founder Joshua Moon as a bastion of free speech; and
iii.styled by its critics and other independent observers as “somewhere that proudly fights for the label of ‘the worst place on the internet’” (the Guardian) and “…an Internet forum that facilitates the discussion and harassment of online figures and communities. Their targets are often subject to organized group trolling and stalking, as well as doxxing and real-life harassment” (Wikipedia);
(b) ultimately controlled and operated by Joshua Moon:
i.through a company called Lolcow LLC which owns the software and website; and
ii.a company called 1776 Solutions LLC originally incorporated in Wyoming in the United States as Final Solutions LLC (being a holocaust reference) but renamed 1776 Solutions LLC on 6 October 2017 which owns the hardware used to operate the website and which provides webhosting services marketed to websites where traditional web hosts have refused to be associated with the content published by those websites, such as what occurred with Kiwi Farms;
On 24 April 2023, the plaintiff sent the defendants a concerns notice in accordance with Division 1, Part 3 of the Defamation Act 2005 (Vic) (‘Defamation Act’).
On 29 May 2023, the plaintiff commenced this proceeding by filing a written statement of claim. The defendants attempted to avoid service but were served on 9 and 12 June 2023.
On 4 July 2023, interlocutory judgment was entered against each of the defendants with damages to be set. The task before the Court is to assess the damages.
On 28 August 2023, Baker JR made an order for substituted service on the second defendant who had attempted to avoid personal service of the documents necessary for the assessment of damages.
Legal principles
The principles bearing upon the assessment of damages for defamation were summarised by John Dixon J in Wilson v Bauer Media Pty Ltd,[2] as follows:
[2][2017] VSC 521.
It is convenient to commence by stating some well-established principles relevant to the assessment of general damages that were not in contest. In doing so, I will defer until later in these reasons a discussion of the principles in respect of the plaintiff’s claim to special damages.
(a)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. The assessment of general damages is necessarily imprecise and, accordingly, damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula.
(b)The sum awarded must demonstrate vindication of the plaintiff’s reputation. The level of damages ought to reflect ‘the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment’.
(c)The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge. At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.
(d)Section 34 of the Act requires that the court in determining the amount of damages to be awarded in any defamation proceedings is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
(e)The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
(f)In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material. This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach. The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.
(g)It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages. Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.
(h)Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant. An award of aggravated damages may be made if a defendant has acted in a manner which demonstrates a lack of bona fides or engaged in conduct which is otherwise improper or unjustifiable. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused to the plaintiff. A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.
(i)At common law, in awarding aggravated damages, the court compensated the plaintiff for the loss actually suffered as a result of the defamation. In doing so, the court could adopt the highest level of damages open as compensatory damages. The parties disagreed about whether this approach was now precluded by s 35 of the Act.[3]
(citations omitted)
[3]Ibid [59].
Since Wilson v Bauer Media Pty Ltd was decided, s 35 of the Defamation Act, which imposes a statutory cap has been amended. In Doak v Birks,[4] Gibson DCJ in relation to the corresponding provisions in the amended NSW Act, explained:
Section 35(1) now limits, by a “hard cap”, the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings. Currently, the maximum award is $443,000 from 1 July 2022 (Government Gazette No 250 of 10 June 2022). Section 35(2) of the Act provides that the maximum damages amount is to be awarded only in a most serious case. This provision reflects amendments made to the Act to clarify that the cap on damages for non-economic loss operates as a maximum amount in a scale of damages: Council of Attorney-General Review of the Model Defamation Provisions – Background paper at p 30.
Sections 35(2A) and (2B) were introduced as part of the amendments made to the Act by reason of the decision in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, to clarify that the cap is applicable regardless of whether aggravated damages are awarded or not. However, s 35(2A) of the Act provides that the maximum damages amount in s 35(1) of the Act does not limit the Court’s power to award aggravated damages if an award of aggravated damages is warranted in the circumstances.
Section 35(2B) of the Act provides that an award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies. This is a significant change, as previously only one sum was to be awarded without any breakdown.[5]
[4][2022] NSWDC 625.
[5]Ibid [116]-[118].
The plaintiff - Reputation
The statement of claim pleads that:
1. The plaintiff:
(a)is and was at all material times a prominent and well-known developer advocate, labour and ethics organiser and site reliability engineer (SRE);
(b)is currently the Field Chief Technology Officer at Honeycomb and was from 2008 till they publicly resigned in 2019, employed by Google LLC in various senior roles;
(c)is and was at all material times transgender and a prominent and well-known supporter of transgender support services and charities, including TransLifeline;
(d)is and was at all material times a citizen of the United States of America;
(e)and ordinarily resident in Canada for part of the year, but married to an Australian citizen and ordinarily resident in Australia for part of the year too; and
(f)is and has been since 1 January 2022 a permanent resident of Australia;
(g)from November 2022 to March 2023 present in Australia, during which period she participated in various public speaking engagements in including DDD Brisbane, SREcon Sydney, and YOW Brisbane, Melbourne, and Sydney;
(h)is and has been since in or around 2017, after acceptable use policy abuse reports she filed resulted in Joshua Moon being denied service from Cloudflare, Dreamhost, Zayo, Voxility and other upstream providers, been the subject of “doxxing”, defamation, abuse and/or harassment on various platforms run, used or hosted by Joshua Moon, including the Kiwi Farms web forum accessible at the website (Kiwi Farms).
In her affidavits in support of her claim, the plaintiff has deposed to and confirmed the matters referred to in the statement of claim. There has been no appearance by the defendants and therefore those matters are deemed admissions.
Two reputation witnesses have filed affidavits in relation to the reputation of the plaintiff. The first witness deposes that the plaintiff was well regarded in the field of site reliability engineering and her talks and media posts on the topic are well received. In 2019 at that year’s YOW Conference,[6] the plaintiff was allocated the largest room during her time slot. The plaintiff was a very in demand speaker and her talk was well attended and well received.
[6]Yow Conferences aim to bring together internationally recognised speakers and developers in the software industry.
The other reputation witness deposes that the plaintiff is recognised in the software industry as an expert on site reliability engineering, observability and software delivery. He says that the plaintiff’s social media and online content often include a focus on ethics and on high ethical standards in the industry. A big part of his respect for the plaintiff is that the plaintiff is an extremely knowledgeable and skilled site reliability engineer and able to do so while remaining scrupulously ethical.
The plaintiff deposes that she was regularly invited to be a keynote speaker in public events, was the author of leading publications and has held important positions. She also deposes that she has had a strong public profile based on her campaigns against sexual harassment, misconduct, and sex and gender (including transgender) discrimination at Google and in the tech industry more generally.
There is no contradictory evidence to indicate that the plaintiff does not have a very good reputation. The plaintiff submits and I accept that the reputation evidence that she filed demonstrates she:
(a)was a “very in-demand speaker” at technology conferences, an “international expert” in the field of Site Reliability Engineering, and widely regarded amongst the “‘who’s who’ of tech”;
(b)was “a highly-respected professional in the field of software delivery, who is regarded as an extremely knowledgeable and skilled Site Reliability Engineer”, “scrupulously ethical”, and someone with an “impeccable reputation for working towards improving ethical standards in the industry”
(c)was regularly invited to be a speaker and keynote speaker at public events, was the author of leading publications, held important positions, and was very well regarded by others particularly within the tech industry; and
(d)was, in addition to being known for her technical skills, a well-known developer advocate, whose advocacy for others and for causes had been reported on by the mainstream media (including Wired, Fortune and the New York Times), and who had a strong public profile based on her campaigns against sexual harassment, misconduct, and sex and gender (including transgender) discrimination at Google and in the tech industry more generally.
Even though the plaintiff is not required to establish a good reputation,[7] the plaintiff submits that she had a very good reputation worthy of vindication by the Court.
[7]See Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735.
Seriousness of imputations
Paragraph 12 of the statement of claim pleads that the Defamatory Thread was defamatory of the plaintiff and carried the following defamatory imputations:
-the plaintiff is an admitted rapist, who blames her victims for her actions;
-the plaintiff is a nepotistic sex pest;
-the plaintiff is a paranoid and neurotic liar, who has made numerous manifestly false allegations including that others have raped and stalked her and that Kiwi Farms members have harassed her;
-the plaintiff has molested, threatened and discriminated against her subordinates and co-workers;
-the plaintiff is incompetent in her professional skills, in that despite working as a site reliability engineer and boasting immense technical skills, she does not actually understand the difference between hosting an email server and hosting a website; and
-the plaintiff misused her position at Google to threaten and bully smaller hosting services associated with the Kiwi Farms forum.
The plaintiff submits, and I agree, that each of the imputations is serious and strikes at the heart of the plaintiff’s representation. I note that some of these imputations amount to very serious criminal conduct (rape and molestation). There is no doubt that these imputations are very serious.
Extent of publication
The plaintiff submits that it is difficult to confirm the full extent of the publication of the Defamatory Thread, or the republication of the imputations of concern. However, the plaintiff says the Court should readily infer that the publication is extensive and there is an extensive ‘grapevine’ effect.
The plaintiff has produced to the Court a Telegram which has 15,616 subscribers from Joshua Moon, the owner of the Kiwi Farms website, which states:
There a million visitors to my website every month, and they will all know you soon.
I also note that in the statement of claim, the plaintiff gives particulars that there are over 8,000 replies to the Defamatory Thread.
The plaintiff asserts that this has been accessed more than 2,000,000 times and that there have been more than 120,000 occasions on which a user has read a post in the thread and pressed a ‘like’ or similar reaction emote.
The plaintiff submits that since the Defamatory Thread was published on 30 August 2022, the imputations of concern have spread far and wide and been repeatedly republished. For example:
-The defamatory imputations have been repeated and republished to her employer and colleagues;
-After Honeycomb.io’s YouTube channel was mentioned in the Defamatory Thread, replies appeared on the company’s YouTube videos reiterating the defamatory imputations about the plaintiff;
-After a video of the plaintiff speaking at SLOConf was posted in the Defamatory Thread, comments reiterating the defamatory imputations began to appear in response to that video;
-After it was reported in the Defamatory Thread that the plaintiff would attend an event at Hyde Park in Sydney the plaintiff was stalked at that event by someone who apparently read the Defamatory Thread;
-A little over a month after the Defamatory Thread was posted it was publicly reported that a bomb threat had been made in relation to an event the plaintiff attended in Sydney;
-On 17 December 2022 a user in the Defamatory Thread, in response to the defamatory imputations, suggested that to maximise harm to the plaintiff readers should contact tech industry events and try to have the plaintiff removed from speaking roles. Almost immediately a series of persons began to address tweets to DDD Brisbane, a conference which hosted the plaintiff, reiterating defamatory imputations; and
-Whenever the plaintiff, or anybody else within Honeycomb.io, publishes articles to raise their profile within the industry they are met with reiterations of the defamatory imputations critical of both the plaintiff and of Honeycomb.io for employing her.
On the evidence before me I accept that the publication is extensive and there is an extensive grapevine effect.
Serious harm to reputation
The statement of claim pleads that the publication of the Defamatory Thread has caused, or is likely to cause, serious harm to the reputation of the plaintiff. The following particulars have been provided:
(A)The plaintiff relies on the seriousness of the imputations, the wide extent of publication (as indicated by the number of replies on the thread) and the vile and derogatory nature of the replies thereon and thereto, to infer that the allegations have seriously damaged her reputation, wherever those readers/users are based.
(B)Further, between 2 November 2022 and 1 March 2023, the plaintiff was in Australia and scheduled to speak at various events, including DDD Brisbane, SREcon Sydney, and YOW Brisbane, Melbourne, and Sydney. As a result of specific threats made against her speaking at these events, referencing the same defamatory claims that appear in the Defamatory Thread, Liz needed a bodyguard when speaking at those events. This has resulted in the harm to her reputation spreading beyond the direct readers of the thread. For example, the Defamatory Thread inspired a fake bomb threat relating to an event the plaintiff organised in Sydney. This likely diverted NSW Police and Australian Federal Police resources, and likely harmed her reputation with various persons who became aware of it.
(C)She also relies upon the fact that it is apparent from the Defamatory Thread itself that she has suffered serious harm to her reputation amongst the readers of the Defamatory Thread, including in Australia. Without being exhaustive (as there are over 8000 replies), and limiting herself to references to select posts which reference Australia:
i.a reader/user of the Defamatory Thread took an unwanted photograph of her in Sydney and shared it with Joshua Moon afterwards. That photograph was subsequently posted on the kiwi farms website;
ii.a reader/user of the Defamatory Thread said on the Defamatory Thread that they had attended a recent talk she gave in Melbourne and numerous other readers/users have indicated, after reading the Defamatory Thread, that they support the views expressed about the plaintiff therein, and live in or frequent Melbourne or Australia, for example, inter alia:
a.saying in response to another comment about nukes being dropped on certain areas that they are “fine with it as long as California is wiped from the face of the Earth, and by extension Elliot (and wierdly [sic] enough every troon featured in the Rat King board) Melbourne still gets two, though”’;
b.noting various of the conferences/events that the plaintiff was scheduled to speak at or attend in Australia and noting that, as a result of the Defamatory Thread, the plaintiff had changed their appearance from in person to remote; and
c.describing Melbourne as being “pants on head full of leftist retards”.
(D)Shortly after replies in the Defamatory Thread suggested bringing the Defamatory Thread to the attention of conferences at which she was scheduled to speak a number of unknown individuals tweeted at the official DDD Brisbane twitter account messages which were defamatory of the Plaintiff and echoed the imputations contained in the Defamatory Thread causing harm to her reputation with DDD Brisbane and followers of the DDD Brisbane twitter account.
The plaintiff has also deposed to many of these matters contained in the statement of claim and as this claim is undefended the harms are deemed admitted.
I also note that a freezing order was granted by Forbes J. The plaintiff submits, and I accept, that in all the circumstances, where there are deemed admissions and where there is clear evidence of actual harm to reputation that the plaintiff’s reputation has been seriously harmed by the publication of the Defamatory Thread.
On the evidence I accept that is serious harm to the reputation of the plaintiff.
The effect on the plaintiff
The plaintiff submits, and I accept, that the effect of Defamatory Thread on all aspects of the plaintiff’s life has been profound.
The plaintiff has given evidence as she has for over 12 months lived in fear, despondency and humiliation and this has manifested in many ways, including:
-curtailing her participation in her profession;
-modifying her work habits and reducing her availability;
-withdrawing from networking and social activities;
-implementing personal security in public places;
-requiring additional medication, counselling, treatment and health support.
Damages
The plaintiff submits that is a case “where it is imputed that the plaintiff has admitted to engaging in serious criminal acts, the need to award a sum which ‘nails the lie’ and convinces the bystander of the baselessness of the charges is a very important factor.” This factor is said to require the Court to award general damages at the upper end of the range.
The plaintiff also submits that the Court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material[8] and the award of damages must be sufficient to ensure that the damage having spread along the grapevine and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.[9]
[8]See Ley v Hamilton [1935] 153 LT 384 [386].
[9]Crampton v Nugawela [1996] 41 NSWLR 176 [194]-[195].
In Webster v Brewster (No 3),[10] Gleeson J considered that the seriousness of the defamatory sting in assessing damages and said:
Injury to feelings may constitute a significant part of the harm sustained by an applicant and for which they are to be compensated by damages: Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at [242] (Belbin). Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the applicant: Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 (Carson) at 71.
The extent of the publication and the seriousness of the defamatory sting are relevant considerations in assessing damages: Bauer Media Pty Ltd & Anor v Wilson (No 2) [2018] VSCA 154; 56 VR 674 (Wilson) at [165]. Allowance should be made for the “grapevine effect” (which recognises that the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published); the tendency of the poison in the defamatory publications to percolate through underground passages and contaminate hidden springs or to be driven underground only later to emerge from their lurking place: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush) at [786].[11]
[10][2020] FCA 1343.
[11]Ibid [43]-[44].
The damages awarded to the plaintiff
In assessing the damages, I have taken into account the vile and baseless nature of the allegations made against her. I also note that there has been a campaign against the plaintiff which has had an impact on her health, caused her harm and has had an effect on her reputation. Here, there is a strong need for vindication of the plaintiff. I have also taken into account the ‘grapevine’ effect arising from the publication of the defamatory material.
I accept that an assessment of damages, as was stated by John Dixon J in Wilson v Bauer Media Pty Ltd[12] is necessarily imprecise and, accordingly, damages are ‘at large’ in the sense that they cannot be derived through calculation or the application of a formula.
[12][2017] VSC 521.
In my view, the damages should be at the upper end and I will assess damages at $350,000.
Aggravated damages
The statement of claim filed by the plaintiff pleads: that the conduct of the defendants warrants an award of aggravated damages. The following particulars are provided:
The vile, hateful and defamatory nature of the Kiwi Farms website, including the serious effect on the mental health of the persons targeted thereon, ought to have been apparent to the defendants when they chose to support its continued publication.
The secrecy in their conduct and the fact they assisted in order to get around the reasonable and lawful restrictions that others tried to impose.
The failure of the defendants to cease providing any support to Joshua Moon, Lolcow LLC or 1776 Solutions LLC to enable any of them to continue to make, share, host, or make available defamatory imputations about the plaintiff, or to pay compensation, or to make a reasonable offer of amends including an apology, despite a request in the Concerns Notice.
Following the sending of the Concerns Notice and the granting of the freezing order, it may be inferred that the defendants passed on information and/or criticism of the plaintiff’s conduct in relation to this litigation to Joshua Moon, in circumstances where the natural and probable consequence of doing so was likely to be defamatory retribution from Mr Moon and/or his supporters, in the form of the repetition and republication of the defamatory imputations. This is what in fact occurred, with Kiwi Farms sending a message on Telegram to his 15,616 subscribers and publishing a further post about Fong-Jones on kiwifarms.net made accessible using the IP Blocks, each of which attacked and defamed Fong Jones, resulting in a new wave of defamatory attacks on FongJones from early May 2023 (see particularly the Tweets repeating the substance of imputation 12(a) from in on or around early May 2023, which are available at
type="1">
The plaintiff, has verified most of those matters pleaded in the statement of claim in the affidavits that she has filed with the Court. The other matters are deemed admitted.
The plaintiff has faced a campaign (which was caused and facilitated by both the defendants’ actions in supporting Kiwi Farms and their inaction in response to the concerns notice, as well their notification of Joshua Moon concerning this litigation,). It resulted in:
-The plaintiff receiving threats, transphobic rants, and harassing phone calls and communications;
-Unidentified individuals (who it may be inferred read the Defamatory Thread) encouraging the plaintiff to kill herself;
-An address purporting to be the plaintiff’s home address, and her future whereabouts, being posted in the Defamatory Thread with implicit threats against the plaintiff;
-The plaintiff being stalked and surreptitiously photographed at an event in Sydney after her whereabouts and the implicit threats were posted in the Defamatory Thread;
-The plaintiff learning, from media reports, of bomb threats originating from the website directed at events she attended;
-Details of the plaintiff’s work colleagues, family and friends being shared in the Defamatory Thread and the plaintiff being contacted with suggestions that “bad things could happen to them."
In Tribe v Simmons (No 2),[13] Lee J said:
As is well known, an award of aggravated compensatory damages may be made where the conduct of the respondent towards the applicant is found to have been improper, unjustifiable or lacking in bona fides. The circumstances that justify an award of aggravated damages are sufficiently broad to include where the Court may be hesitant in making a definitive finding about the good faith or otherwise of a respondent, but nevertheless is persuaded that the respondent’s conduct connected to the publication or in the conduct of the litigation can objectively be described as improper or unjustifiable.[14]
[13][2021] FCA 1164.
[14]Ibid [40].
Here, I am of the view that there should be aggravated damages because the conduct of the defendants in publishing the Defamatory Thread is improper or unjustifiable and lacking in bona fides. I also note that the second defendant attempted to avoid personal service of the writ. I accept the plaintiff’s submission that this caused further harm to the plaintiff as it required her to jump through numerous hoops to affect and prove service and thereby delayed the progress of the case, thus increasing the harm she suffered.[15]
[15]See Rayney v Reynolds (No 4) [2022] WASC 360 [259].
In my view, a fair award for the aggravated damages would be $75,000. In coming to this figure, I have considered comparable cases.
In my view, a total award of damages including aggravated damages of $425,000 ($350,000 and $75,000) is appropriate.
Interest
The plaintiff submits that most defamation awards include an additional component of interest, and that traditionally, interest is applied from the date of publication to the date of judgment, between 3% and 4%, sometimes with calculations, sometimes adopting a broad-brush approach.[16]
[16]See Barilaro v Google LLC [2022] FCA 650.
Here, the plaintiff states that given the recent inflation rate, increases in interest rates and the recent date of first publication, an interest rate of 4% would be conservative and 4.5% would appropriate. The interest will be applied from 30 August 2022 to late September 2023.
I will allow interest of around 4% on the damages of $425,000 and a fair sum for interest would be $20,000.
Costs
The plaintiff seeks its costs on an indemnity basis under s 40 of the Defamation Act. Section 40 of the Defamation Act provides
Costs in defamation proceedings
(1)In awarding costs in defamation proceedings, the court may have regard to—
(a)the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
(b) any other matters that the court considers relevant.
(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—
(a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
(b)if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
(3)In this section—
“settlement offer” means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.
White J, when considering an equivalent to s 40 of the Defamation Act in Hockey v Fairfax Media Publications Pty Ltd (No 2),[17] said the following:
The effect of subs (1) is that, when determining both where the burden of costs should lie and the scale on which they be paid, the Court may have regard to the way in which the parties to the proceedings conducted their respective cases as well as to any other relevant matter. Subsection (2) specifies that the Court must make orders for indemnity costs in two circumstances, unless the interests of justice require otherwise. Subparagraph (a) relates to proceedings in which a plaintiff is successful, and subpara (b) to proceedings in which a plaintiff is unsuccessful. In each case, the Court must be satisfied that the specified conditions exist before making an order for indemnity costs.[18]
[17][2015] FCA 750.
[18]Ibid [39].
I will order indemnity costs against the defendants because the plaintiff, on 24 April 2023, served a concerns notice which offered to resolve the proceedings if the defendants undertook to cease providing any support for Joshua Moon, Lolcow LLC or 1776 Solutions to enable them to publish defamatory imputations about the plaintiff and pay the plaintiff the sums of $250,000. That was a reasonable settlement offer which was not accepted particularly after a freezing order was made on 28 April 2023. I am also of the view that given the nature of the Defamatory Thread, that the interests of justice would support indemnity costs.
Conclusion
The defendants will be ordered to pay the plaintiff damages of $445,000, plus costs.
SCHEDULE OF PARTIES
S ECI 2023 02348 BETWEEN: ZHEN ELIZABETH FONG-JONES Plaintiff - v - FLOW CHEMICAL PTY LTD First Defendant VINCENT ZHEN Second Defendant
4
0