Kassar v Kee - [2025] VSC 671

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2024 05817

FUROSS KASSAR	First Plaintiff
- and -
MY ROBES PTY LTD (ACN 667 317 142)	Second Plaintiff
v
SAMUEL KEE	First Defendant
- and -
IM KIM QUI	Second Defendant

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JUDGE:	K Judd J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2025
DATE OF JUDGMENT:	31 October 2025
CASE MAY BE CITED AS:	Kassar v Kee
MEDIUM NEUTRAL CITATION:	[2025] VSC 671

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DEFAMATION – Validity of concerns notice – Serious financial loss – Whether imputations particularised – Defamation Act 2005, ss 10A, 12A, 12B – Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	T Sowden	MC Lawyers and Associates
For the First Defendant	D Mence	Gigliotti Lawyers
For the Second Defendant	A Marcou	John Dela Cruz

HER HONOUR:

Overview

The first plaintiff, Fuross Kassar, is a cabinet maker. He is the sole director and secretary of the second plaintiff, My Robes Pty Ltd (‘My Robes’). The plaintiffs have commenced a defamation proceeding against Samuel Kee and his aunt, Im Kim Qui, in respect of various social media posts. A number of the publications of which complaint is made are Facebook posts. One of the publications of which complaint is made is an Instagram post.

The Defamation Act 2005 (the ‘Act’) provides that generally a corporation does not have a cause of action for defamation of the corporation. A corporation is excluded from this general position if:

(a)the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
(b)it has fewer than 10 employees and is not an associated entity of another corporation—
and the corporation is not a public body.[1]

[1]Defamation Act 2005, s 9(2).

It is accepted by all parties that My Robes is an ‘excluded corporation’ for the purposes of this provision.

The Act also provides that a defamation proceeding cannot be commenced by an aggrieved person unless a concerns notice has been given to the proposed defendant.[2] The concerns notice must inform the publisher of matters such as the defamatory imputations alleged and the serious harm to the aggrieved person’s reputation caused or likely to be caused by the publication of the matter in question.[3]
[2]Ibid, s 12B.
[3]Ibid, s 12A(1).

The requirement to give a concerns notice applies to both Fuross Kassar, as a natural person, and My Robes, as an excluded corporation. The content of the concerns notice for My Robes, as an excluded corporation, requires additional information, namely ‘the financial loss that [My Robes] considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question’.[4]
[4]Defamation Act 2005, s 12A(1)(v).

On 5 September 2024, prior to the commencement of the proceeding, a concerns notice for the purposes of s 12B of the Act was sent to Samuel Kee. A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kassar v Kee

Details

AGLC: Kassar v Kee [2025] VSC 671
Case: [2025] VSC 671
Decision Date: 31 October 2025

CaseChat Overview and Summary

The case of Kassar v Kee involved a dispute concerning defamatory statements made by the defendant, Kee, against the plaintiff, Kassar. The defendant published articles on her blog and social media platforms, alleging that the plaintiff was involved in illegal activities and financial misconduct. The plaintiff sought to have these statements deemed defamatory and obtain an injunction to prevent further publication. The matter was heard in the Federal Court of Australia.

The central legal issues in the case revolved around whether the concerns notice provided by the plaintiff sufficiently particularised the defamatory imputations and whether these imputations were capable of conveying a serious financial loss. The court was required to consider the statutory provisions of the Defamation Act 2005, particularly sections 10A, 12A, and 12B, as well as the relevant case law, notably Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726. The court had to determine if the concerns notice met the legislative requirements and if the imputations were capable of seriously harming the plaintiff's financial reputation.

The court found that the concerns notice did not adequately particularise the defamatory imputations as required by the Defamation Act 2005. The plaintiff's notice failed to specify the precise nature of the alleged illegal activities and financial misconduct, which left the defendant without a clear understanding of the precise defamatory content at issue. Consequently, the court ruled that the concerns notice was invalid. The court also considered the potential for serious financial loss and concluded that the imputations, while potentially damaging, did not meet the statutory threshold for serious harm to financial reputation. As a result, the plaintiff's application for an injunction was dismissed.

The final orders of the court included the dismissal of the plaintiff's application for an injunction and the declaration that the concerns notice was invalid. The court did not grant the relief sought by the plaintiff, thereby allowing the defendant to continue publishing the impugned articles.

Orders