Tawhidi v Awad

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 00640

IMAM MOHAMMAD TAWHIDI	Plaintiff
v
MOUSTAFA AWAD	Defendant

S ECI 2020 03715

MOUSTAFA AWAD	Plaintiff
v
MOHAMMED TAWHIDI	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATES OF HEARING:	3–5, 8–10, 12 November 2021
DATE OF JUDGMENT:	4 November 2022
CASE MAY BE CITED AS:	Tawhidi v Awad
MEDIUM NEUTRAL CITATION:	[2022] VSC 669

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S ECI 2020 00640 Imam Mohammad Tawhidi v Moustafa Awad

DEFAMATION — Whether pleaded meanings conveyed by online publication — Scope of publication for the purposes of ascertaining the meaning of the matter complained of — Defences — Honest opinion — Whether opinion is based on proper material — Whether material appears or is apparent to reader — Credibility of defendant —Triviality — Republication by defendant — No obligation to republish defamatory publications — Defamation Act 2005 (Vic) ss 4, 31, 33 — Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 — Stocker v Stocker [2020] AC 593 — Channel Seven Adelaide v Manock (2007) 232 CLR 245 — Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 — Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231.

COMMON LAW ASSAULT — Whether words conveyed threat to inflict harmful or offensive contact — Whether subjective intention to create apprehension — Whether immediate or imminent violence apprehended — Reasonableness of apprehension — ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559 — Slaveski v State of Victoria [2010] VSC 441.

S ECI 2020 03715 Moustafa Awad v Mohammed Tawhidi

DEFAMATION — Whether pleaded meanings conveyed by online publication — Identification of plaintiff — Defences — Qualified privilege at common law — Reply to attack — Whether publication had sufficient connection to and commensurate with the privileged occasion — Statutory qualified privilege — Whether publication reasonable in circumstances — Relationship between defamatory information and interest of recipient — Malice — Dominant motivation of defendant — Contextual truth — Whether contextual imputations substantially true — Defamation Act 2005 (Vic) ss 26, 30 — Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 — Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 — Harbour Radio Pty Ltd v Trade (2012) 247 CLR 31 — Penton v Calwell (1945) 70 CLR 219 — Defteros v Google LLC [2021] VSCA 167 — Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 — Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33.

DAMAGES — Where plaintiff sought general damages for non-economic loss — Where plaintiff sought aggravated damages — Mitigation of damages — Evidence of reputation — Where circumstances of publication and conduct of defendant relied upon as aggravating conduct — Circumstances relating to publication warrant award of aggravated damages.

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Appearances:	Counsel	Solicitors
For Imam Mohammad Tawhidi	J Castelan	Corrs Chambers Westgarth
For Moustafa Awad	T Greenway with N Andreou	Ghothane Lawyers

TABLE OF CONTENTS

Introduction....................................................................................................... 1

The Awad publications................................................................................... 4

Did the Awad publications convey the defamatory meanings?............. 6

Submissions.................................................................................................. 6
Tawhidi................................................................................................ 6
First Awad publication........................................................ 6
Second Awad publication.................................................... 7

Awad.................................................................................................... 8
First Awad publication........................................................ 8
Second Awad publication.................................................... 9

Analysis....................................................................................................... 10
The composition of the Awad publications................................. 12
The first Awad publication’s defamatory imputations.............. 13
The second Awad publication’s defamatory imputations......... 16

Trial witnesses................................................................................................ 18

Circumstances of publication of the Awad publications and the alleged assaults........................................................................................................ 21

Common law assault...................................................................................... 36

Submissions................................................................................................ 36
Tawhidi.............................................................................................. 36
Awad.................................................................................................. 39

Analysis....................................................................................................... 39
Threat to inflict harmful or offensive contact on Tawhidi......... 42
Actions intended to cause an apprehension the threat will be carried out............................................................................. 42
Threat in fact created apprehension it would be carried out immediately or imminently................................................ 43
Apprehension objectively reasonable........................................... 44

The Awad publications – defences............................................................. 46

Honest opinion........................................................................................... 46
Submissions...................................................................................... 46
Awad..................................................................................... 46
Tawhidi................................................................................ 47

Analysis............................................................................................. 48

Triviality...................................................................................................... 53
Submissions...................................................................................... 53
Awad..................................................................................... 53
Tawhidi................................................................................ 54

Analysis............................................................................................. 54

Republication............................................................................................. 55
Submissions...................................................................................... 55
Awad..................................................................................... 55
Tawhidi................................................................................ 55

Analysis............................................................................................. 55

The Tawhidi publications............................................................................. 57

Did the Tawhidi publications convey the defamatory meanings?....... 66

Identification.............................................................................................. 66
Shaenice Moussa.............................................................................. 66
Dr Mahmoud Hegazi....................................................................... 67
Analysis............................................................................................. 68

Pleaded meanings...................................................................................... 68
Submissions...................................................................................... 68
Awad..................................................................................... 68
Tawhidi................................................................................ 69

Analysis............................................................................................. 70
First Tawhidi publication.................................................. 71
Second Tawhidi publication.............................................. 74

The Tawhidi publications – defences........................................................ 76

Qualified privilege at common law as a reply to attack...................... 76
Submissions...................................................................................... 76
Tawhidi................................................................................ 76
Awad..................................................................................... 77

Analysis............................................................................................. 78

Statutory qualified privilege.................................................................... 83
Submissions...................................................................................... 84
Tawhidi................................................................................ 84
Awad..................................................................................... 84

Analysis............................................................................................. 85

Malice.......................................................................................................... 89
Contextual truth......................................................................................... 91
Submissions...................................................................................... 92
Tawhidi................................................................................ 92
Awad..................................................................................... 93

Analysis............................................................................................. 93

Damages......................................................................................................... 108

Submissions.............................................................................................. 108
Awad................................................................................................ 108
Tawhidi............................................................................................ 108

Analysis..................................................................................................... 109

Injunction....................................................................................................... 113

Conclusion..................................................................................................... 114

Annexure A.................................................................................................... 115

HIS HONOUR:

Introduction

Imam Mohammad Tawhidi was born in Iran and migrated to Australia in 1996. Tawhidi alleges he is a Shia Imam and faith leader who advocates for peace within the Muslim community and within Australian society. In 2019 Tawhidi was an administrator of a Facebook page with approximately 250,000 followers, and a Twitter account with several hundred thousand followers.

Moustafa (Matt) Awad was born in Egypt and migrated to Australia in 2006. Awad alleges he is a legal practitioner and migration agent who advocates for Muslim rights and refugee rights and opposes racism and Islamophobia. In 2019 Awad had a Facebook page and Twitter account with a small number of friends and followers.

The conduct of both men that led to these proceedings has fallen well short of the laudable ideals they purport to espouse.

Tawhidi and Awad have never met.

By 2019 Tawhidi was a regular media commentator on issues concerning the Muslim community and Islam. He posted about these matters on Facebook and Twitter, and authored a book titled The Tragedy of Islam: Admissions of a Muslim Imam. Awad was aware of Tawhidi’s media commentary and had read his book. Awad strongly opposed the views and opinions expressed by Tawhidi. In response to reading the book, Awad uploaded an aggressive post about Tawhidi in January 2019.

In February 2019 Tawhidi gave evidence to the Legal and Constitutional Affairs Legislation Committee of the Australian Senate (‘Senate Committee’) at a hearing into the Australian Citizenship Legislation Amendment (Strengthening the Commitments for Australian Citizenship and Other Measures) Bill 2018 (Cth) (‘Senate hearing’). In his evidence Tawhidi advocated for extending the time required for Muslim migrants to acquire Australian citizenship to a minimum of five years, with a requirement to undergo annual tests in English language proficiency and the obligations of citizenship. He did so in the context of claims he made to the Senate Committee about the responsibility of Muslim migrants for terrorist attacks in Australia, and attitudes and practices in Australian Muslim communities relating to extremism, terrorism, domestic violence, polygamy, and voting. Tawhidi posted a video of his evidence to the Senate hearing on his Facebook page.

In the evening of the same day Awad saw Tawhidi’s Facebook post and watched the video of his evidence to the Senate hearing. Awad was incensed by Tawhidi’s evidence, which he regarded as anti-Muslim. He uploaded an aggressive and abusive post about Tawhidi to his Facebook page, that appeared in substantially the same form on his Twitter account. Tawhidi alleged he was defamed by Awad’s post and tweet.

The following morning Tawhidi posted on his Facebook page and Twitter account a screenshot of Awad’s first post and tweet and his response that included Awad’s mobile telephone number, email address and the online business profile of his legal firm. Within a short time Awad began to receive complaints about his post, which he discovered had been reposted by Tawhidi with a message to his followers. Awad responded by uploading a second Facebook post about Tawhidi, with an associated Twitter tweet that was more aggressive and abusive than the first. Tawhidi alleged he was defamed by the second Awad post and tweet.

Tawhidi alleged that by posting the first post and tweet, and/or the second post and tweet Awad assaulted him.

Awad denied the imputations pleaded by Tawhidi were conveyed by the matter he published. He relied on defences of triviality[1] and honest opinion.[2] Further, in relation to any award of damages, he argued that his posts and tweets were deleted quickly and while it was possible they were read by a small number of people, the scope of publication was extremely limited, and any damages heavily mitigated by Tawhidi’s conduct in republishing the posts. Awad denied that his conduct amounted to an assault of Tawhidi.
[1]Defamation Act 2005 (Vic) (‘Act’) s 33.
[2]Ibid s 31.

The Awad posts were deleted and his Twitter account was deactivated on the same day. That afternoon, in what was the start of an ongoing online campaign, Tawhidi uploaded four more posts about Awad, two of which included screenshots of Awad’s second post and tweet, and his further response.

Tawhidi continued to upload posts and tweets about Awad on his Facebook page and Twitter account. Later in February 2019, Awad applied for an intervention order under the Personal Safety Intervention Orders Act 2010 (Vic) (‘Intervention Orders Act’), alleging Tawhidi had invited his followers to call, harass and make complaints about Awad. Tawhidi opposed the intervention order application, and in that context uploaded to his Facebook page a video about an ‘extremist Muslim’ and his conduct bringing migrants to Australia. Awad alleged the video was about him and was defamatory.

The intervention order application was dismissed in early 2020 after a contested hearing. Tawhidi continued to upload posts about Awad, one of which referred to Awad as an ‘ISIS promoter’ and discussed ‘investigating his actions as a migration agent’. Awad alleged the Tawhidi post was defamatory of him.

Tawhidi relied on defences of qualified privilege reply to attack, statutory qualified privilege[3] and contextual truth.[4] He relied in mitigation of damages on what he alleges was Awad’s bad reputation.
[3]Ibid s 30.
[4]Ibid s 26. Tawhidi also pleaded defences of truth and honest opinion under ss 25 and 32 of the Act respectively, but advanced no submissions in support of those pleaded defences in final address.

The Awad publications

On 11 February 2019 a tweet appeared on Awad’s Twitter page:

The hyperlink embedded in the tweet took the reader to the following, posted by Awad on his Facebook page:

(combined, ‘first Awad publication’).

The image at the bottom of the first Awad post on Facebook is a video thumbnail depicting Tawhidi giving evidence to the Senate hearing earlier that day. There is no evidence that the play icon superimposed on the image of Tawhidi was active, and allowed the reader of the first Awad publication to play the video of Tawhidi’s evidence to the Senate hearing. The caption on the video thumbnail reads, ‘Senate Legal and Constitutional Affairs Legislative Committee’.

Tawhidi alleged the first Awad publication meant:

(a) Tawhidi is such a contemptible person that he deserves to be poisoned;

(b) Tawhidi is a person who should not be treated seriously, in that his evidence before the Senate hearing was ridiculous;

(c) in giving evidence before the Senate hearing, Tawhidi acted as a traitor to all Muslims.

On 12 February 2019, a tweet appeared on Awad’s Twitter page:

The hyperlink in the tweet took the reader to the following Facebook post:

(combined, ‘second Awad publication’).

As with the first Awad publication, there is no evidence the play icon on the second Awad publication was active.

Tawhidi alleged the second Awad publication meant:

(a) Tawhidi is such a contemptible person that he deserves to be kidnapped by terrorists and murdered;

(b) Tawhidi is a person who should not be treated seriously, in that his evidence before the Senate hearing was ridiculous; and

(c) in giving evidence before the Senate hearing, Tawhidi has acted as a traitor to all Muslims.

Did the Awad publications convey the defamatory meanings?

Submissions

Tawhidi

First Awad publication

The language and tenor of the first Awad publication is extraordinarily harsh and violent. The use of the word ‘c**t’ shows the author is not joking. It is published in a derogatory, hateful and vicious manner.

The ordinary reasonable person is likely to have taken the contents of the first Awad publication very seriously. That is made clearer in the tweet by the fact that the statement appeared alongside a picture of Awad in barrister’s robes. The publication conveys the meaning that Tawhidi is a contemptible person who deserves to be poisoned. It is dripping with hatred and contempt. The defamatory condition exists because it is referrable to the evidence that Tawhidi gave at the Senate hearing. It is not merely abuse for the sake of it. It is ridicule with a premise. Accordingly imputation (a) is conveyed.

Alternatively, if the Court finds that the first Awad publication is a joke, then imputation (b) is conveyed.

Imputation (c) is a further inferential meaning conveyed regardless of whether or not the publication was a joke because:

(a) Tawhidi’s evidence to the Senate hearing is all about the Muslim community and how citizenship laws should be applied to those within the Muslim community;

(b) Tawhidi gives his evidence in the robes of a Muslim cleric; and

(c) the inferential meaning is that Awad’s criticism of Tawhidi is that he is a Muslim who is the perfect match of Senator Pauline Hanson, a politician who has notoriously made statements against the interests of the Muslim community.

Accordingly, the ordinary reasonable reader, reading between the lines in light of their general knowledge and experience of worldly affairs, and with knowledge of the evidence, would have understood that the first Awad publication conveyed imputation (c). Context provided by the avatar of Awad in barrister’s robes, and his name in Arabic text, reinforces that conclusion.

Second Awad publication

The second Awad publication is written in such derogatory terms, and in such an angry tone, that the ordinary reasonable person would understand that imputation (a) is conveyed by it. The context is that Tawhidi gave evidence at the Senate hearing. It is clear Awad is stating that Tawhidi ought to be kidnapped by terrorists and murdered as a result of giving evidence. The ordinary reasonable person knows that ISIS are terrorists, and that if they kidnap Tawhidi and make ‘fata’ out of his head then Tawhidi will have been murdered, even if the ordinary reasonable person does not know what ‘fata’ is.

In the event the Court finds the second Awad publication was a joke then imputation (b) would be conveyed by it.

Imputation (c) is conveyed by the second Awad publication for the same reasons that it is conveyed by the first Awad publication.

The imputations conveyed by the first and second Awad publications:

(a) would have a tendency to lower Tawhidi’s estimation in the eyes of right-thinking members of society generally;

(b) expose Tawhidi to hatred, ridicule and contempt; and

(c) accordingly, were clearly defamatory of him.

Awad

There is a distinction between insults and matters that are defamatory.[5] The question is whether the publications conveyed more than just insulting words. If no defamatory act or condition is capable of being conveyed, then the matter is more likely to amount to vulgar abuse.[6] In this case there was no act or condition attributed to Tawhidi to qualify the insulting words used. Accordingly the publications are not defamatory.

First Awad publication

[5]Berkoff v Burchill [1996] 4 All ER 1008, 1013, 1018 (Neill LJ) (‘Berkoff’).

[6]Ralston v Fomich (1992) 66 BCLR (2d) 166, 169.

Imputation (a) is expressed generically and as a cause and effect statement. An ordinary reasonable reader would understand the word ‘bill’ as suggesting a proposed law, but would have difficulty reconciling it with poisoning, because it does not logically follow. The reader would dismiss the possibility that the Australian Parliament would propose a law poisoning a citizen. Therefore the reader would not extrapolate that Tawhidi is such a contemptible person (cause) that he deserves to be poisoned (effect). There is no deserving quality in the post because no Australian government would propose such a bill.

The ordinary and natural meaning of the word ‘contempt’ is ‘a mental attitude of despising; condition of being despised’. ‘Contemptible’ is defined as deserving contempt, despicable. The term ‘LOL’ literally means laugh out loud, but would be understood as often relating to some form of cutting or abusive comment, and suggests exaggeration. The use of LOL is a poor attempt at sarcasm or exaggeration, that the views expressed in the bill are poisonous. The post would be understood as vulgar abuse.

The reader would understand that ‘Poison Hanson’ is a reference to Senator Hanson, but would not necessarily draw an adverse impression from the comparison.

The words used in imputation (b) are far removed from the words of the publication, and impute notions not found in the post. Likewise there is no reference in the publication to traitor or betrayal, let alone to all Muslims. Further, there is no homogenous Muslim community in Australia or Victoria. There is a diverse Muslim community across the Sunni and Shia denominations, parts of which do not recognise Tawhidi as speaking for them. Read in full, the ordinary reader would understand that the publication was hyperbole. For these reasons imputations (b) and (c) are not made out.

Second Awad publication

The second Awad publication does not state that Tawhidi is a contemptible person, or that he deserves to be kidnapped. The language of ‘wishing’ focuses attention on the wish maker and their state of mind. Usually the event or outcome wished for is in the future and speculative to some extent. The wish does not communicate any characteristic about the person who is the subject of it.

The publication does not suggest that a victim of ISIS kidnapping is contemptible because:

(a) ISIS would be regarded negatively by the ordinary reader;

(b) a kidnapping victim would usually be seen in a sympathetic light; and

(c) the ordinary reader would not assume an ISIS kidnapping victim had done anything negative or had a negative character.

Further, the ordinary reader would not readily accept that an Australian Muslim citizen deserved to be kidnapped by ISIS for any reason.

Use of the word ‘fata’ would give the reader the impression of an unintelligible metaphor. Reading between the lines the ordinary meaning of the phrase is that ISIS would ‘do something with your head LOL’, or potentially ‘do something generally bad with your head LOL’. In no way does that convey anything bad about the person who is the object of the phrase, and it certainly does not communicate the person is worthy of contempt. It follows that imputation (a) is not conveyed by the second Awad publication.

For the same reasons as with the first Awad publication, imputations (b) and (c) are not made out.

Analysis

The meaning of a publication is a matter of impression, rather than close scrutiny and analysis.[7]
[7]Lewis v Daily Telegraph Ltd [1964] AC 234, 260 (Lord Reid) (‘Lewis’); Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 572–3 [134] (Kirby J) (‘Chakravarti’).

Whether a meaning is conveyed by a publication is considered from the perspective of an ordinary reasonable reader, who is described as a person of fair, average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, is not unusually naive, engages in a degree of loose thinking and can and does read between the lines in light of their general knowledge and experience of worldly affairs.[8] The ordinary reasonable reader has a capacity for implication that is greater than that of a lawyer.[9]
[8]See, eg, Sali v Australian Broadcasting Corporation [2013] VSC 388, [18] (Beach J); Farquhar v Bottom [1980] 2 NSWLR 380, 386 [22] (Hunt J) (‘Farquhar’).
[9]Chakravarti (n 7) 573–4 [134] (Kirby J).

In Chakravarti v Advertiser Newspapers Ltd (‘Chakravarti’), Kirby J explained:

The point of these attempts to describe the notional recipient is to conjure up an idea of the kind of person who will receive the communication in question and in whose opinion the reputation of the person affected is said to be lowered. Special knowledge is excluded. So are extremes of suspicion and cynicism (on the one hand) or naivety and disbelief (on the other).[10]

[10]Ibid 573 [134] (Kirby J).

The form of the publication may be important to the understanding of it by the ordinary reasonable reader.[11] In Stocker v Stocker, Lord Kerr JSC considered how a Facebook post or tweet on Twitter would be interpreted by a reader, and said:
[11]Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165–6 (Hunt CJ at CL).

41. The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.
42. In Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter:
“The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.”

43. I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on.[12]

[12][2020] AC 593, 605–6; see also Bazzi v Dutton (2022) 289 FCR 1, 13–14 [47] (Rares and Rangiah JJ), 16 [61] (Wigney J).

The natural and ordinary meaning of a publication may be the literal meaning of the words used, or an implied or inferred meaning supported by general knowledge. The latitude for the reader to draw an adverse imputation will be greater if the publication is sensational, or the words used are imprecise, ambiguous or loose.[13]
[13]Farquhar (n 8) 386 [23]; Chakravarti (n 7) 573 [134].

A publication that is humorous, insulting or mocking may still be defamatory if it exposes the subject to hatred, contempt or ridicule.[14] The question is not what the author intended, but what the ordinary reasonable reader would understand to be conveyed. The line between mere humour, insult or mockery and defamation may be difficult to draw.
[14]Berkoff (n 5) 1013 (Neill LJ); Radio 2UE Sydney Pty Ltd v Chesterton [2008] NSWCA 66 [89] (McColl JA).

The composition of the Awad publications

There was some confusion in final addresses about what constituted each publication.

The first Awad publication was pleaded by Tawhidi as being the first tweet and, through the hyperlink it contained, the first Facebook post. The following paragraph of the statement of claim relied only on the first tweet in relation to the pleaded defamatory meanings. The issue that arose in final addresses was whether Tawhidi was limited to alleging the defamatory meanings were conveyed by the tweet alone, or could rely on a composite of the tweet and the post. Read as a whole Tawhidi’s pleading should be understood as relying on both the first tweet and the first Facebook post as constituting the first publication and conveying the pleaded defamatory meanings. If there was any failure to refer to the post in the paragraph pleading the meanings, it was an oversight that caused no prejudice to Awad.

Tawhidi pleaded that each publication was in effect a composite comprised of the tweet and the linked Facebook post. That case was open to Tawhidi because of the hyperlink contained in each tweet which took the reader to the post. Awad did not object on the basis that the composite publications as pleaded were not open on the evidence, or that pleading in this fashion caused some unfairness to him amounting to an abuse of process.[15] This means that in the case of each pleaded publication the tweet and post should be read together to discern whether the pleaded defamatory meanings are conveyed.
[15]Cripps v Vakras [2014] VSC 110, [14]–[16].

The second issue arose because each Facebook post contained a video thumbnail of Tawhidi giving evidence to the Senate hearing (‘video thumbnail’). As noted in paragraph 16, the evidence did not establish that a reader of the post could click on the play icon to watch the video of Tawhidi giving evidence. There was no evidence that the Awad publications contained a hyperlink to the video of Tawhidi’s evidence. Tawhidi did not plead either publication as including the video of his evidence to the Senate hearing, or that the meaning of the publication was affected by the reader’s knowledge of extrinsic facts, namely, the content of the video or, separately, Tawhidi’s evidence. On the evidence such a pleading would not have been open. I conclude that the video of Tawhidi’s evidence is not part of either publication, and that the meaning of the publication is not to be assessed on the basis that the reader had knowledge of the content of the video or Tawhidi’s evidence.

The first Awad publication’s defamatory imputations

There are a number of features the reader would absorb, in a relatively fleeting way consistent with the nature of the publication.

First, the tweet and Facebook post begins with ‘Lolllll’, which the reader would understand as an exaggerated form of the electronic messaging abbreviation for ‘laughing out loud’. Depending on context, the reader may understand the publication was, or was intended to be, extremely funny, or to insult, mock or ridicule.

Second, in the context of the caption to the thumbnail referring to a Senate Committee, the reader would understand the reference to ‘Poison Hanson’ to be Senator Hanson. Awad’s dress in the tweet in barrister’s robes would be understood by the reader to add a legal context. Together those matters would result in an understanding of ‘that bill’ as meaning a legal or parliamentary bill.

Third, the reader would understand the post to include two elements of commentary. The first, directed solely to Tawhidi, is ‘should include poisoning that c**t called Tawhidi’. The second piece of commentary, on both Tawhidi and Senator Hanson, is ‘just perfect match with Poison Hanson!’.

Fourth, the reader would read together the word ‘poisoning’ in the first piece of commentary, and the word ‘Poison’ in the second, further linking those two matters.

The features to which I have referred would, in combination, lead the reader to understand that the publication was an insulting and derogatory commentary on Tawhidi and, by association, ‘Poison Hanson’, and their views or stance in relation to ‘that bill’.

I accept Tawhidi’s submission that reference to him as ‘that c**t called Tawhidi’ would be understood by the reader to mean he is a contemptible person.

The critical question is whether the reader would understand the publication to convey that Tawhidi deserved to be poisoned. I conclude that question should be answered no. ‘Poisoning’ would be understood by the reader to be part of the insulting and derogatory commentary that includes the alliterative reference to ‘Poison Hanson’. That word is conditioned by the preceding phrase ‘that bill should include’, a reference to a parliamentary bill. The publication does not refer to the act of poisoning Tawhidi, but states that it should be included in ‘that bill’. I accept Awad’s submission that the reader would dismiss as ridiculous the possibility that the Australian Parliament would propose a law poisoning a citizen. Together with the ‘Lolllll’, the ridiculous impossibility removes the suggestion from reality, and results in the quality of deserving not being conveyed. There is a leap between deserving insult and abuse and deserving to be seriously harmed or killed by being poisoned. The ordinary reasonable reader would not understand the publication to mean that Tawhidi was so contemptible that he actually deserved to have an act of violence done to him.

The first publication does not convey the meaning in imputation (a).

The video thumbnail on the Facebook post shows Tawhidi in a formal setting sitting at a table speaking into a microphone. The reader would infer from the caption on the video thumbnail, and from the reference to Poison Hanson, that Tawhidi was speaking to the Senate Committee, and that the subject matter was ‘that bill’. In that context, the reader would understand that Tawhidi was saying something in a formal setting to the Senate Committee about a parliamentary bill.

As I have already found, the reader would understand the publication as commentary that ridicules and is derogatory of Tawhidi. Given that Tawhidi is shown speaking to the Senate Committee the reader would understand that to be the subject of the author’s ridicule. The reader would understand the publication to mean that what Tawhidi said to the Senate Committee was ridiculous and deserving of mockery and derision, and that he is a person who should not be taken seriously.

The test for defamation is whether a publication, in its pleaded meaning, is likely to lead an ordinary reasonable person to think less of a plaintiff.[16] The first Awad publication is not mere abuse. It would be understood by the reader as commentary on Tawhidi and his views. The publication ridicules, derides and abuses Tawhidi.
[16]Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 467 [5] (French CJ, Gummow, Kiefel and Bell JJ).

A further feature of the pleaded meaning remains for consideration. Would the reader understand the publication to mean that Tawhidi had given evidence to a Senate hearing? Taking an impressionistic approach to the first Awad publication, the ordinary reasonable reader is unlikely to see a meaningful difference in quality between a person addressing a parliamentary body in a formal setting and a person giving evidence to a parliamentary body at a hearing. While the distinction is important to the defamation alleged, the ordinary reasonable reader would understand that a person speaking to a Senate Committee in a formal setting suggests they have been invited or required to attend in order to provide information or make submissions in relation to an issue important to the Senate Committee. It follows from the seriousness of the occasion that one would expect the person’s statements to be truthful and reliable. I conclude a reasonable reader would understand the first Awad publication to mean that Tawhidi gave evidence before a Senate hearing.

Imputation (b) is made out.

Through general knowledge and notoriety the reader would know Senator Hanson has expressed strong views on a range of topics, including views about sections of the Muslim community and aspects of Islam that may be considered to be negative.

The reader would not infer that the publication meant the subject matter of the bill concerned ‘all Muslims’, or that what Tawhidi had to say about it was antithetical to the entire Muslim community. The reader would understand from the word Imam and Tawhidi’s dress in the video thumbnail that he was Muslim. The subject matter of the bill was not stated in the first Awad publication. The reader would not expect Senator Hanson and an Imam to be a perfect match on the subject of Muslims, and would not infer that was what the bill was about.

As Awad submitted, there is no homogenous Muslim community in Australia or Victoria. Rather, there is a diverse community that includes people with a broad range of views on different topics. Given the uncertainty of the subject matter of the bill, and what Tawhidi had to say about it, the reader would not understand the publication to mean he acted as a traitor to ‘all Muslims’.

Imputation (c) is not made out.

The second Awad publication’s defamatory imputations

The reader of the second Awad publication would again readily observe a number of its features.

First, Awad states the publication has been uploaded again because it angered a lot of people. This is followed by ‘LOLLL..Tawhidi’. Depending on context the reader may understand what followed as a sneering, or mocking response to the people angered and Tawhidi.

Second, Awad refers to two personal wishes. Again, depending on context, the reader may understand Awad to genuinely want or desire the outcome expressed, that the outcome his dream or fantasy not based in reality, or that they are Awad’s gruesome response to something that has occurred.

Third, Tawhidi is the subject of both wishes.

Fourth, the wishes are related or responsive to the anger generated by the earlier post.

Fifth, if either wish occurred it would involve Tawhidi being harmed. In that respect the second wish would be understood as an escalation of the first. The violent and tragic outcome suffered by persons kidnapped by ISIS is notorious. While the word ‘fata’ is not explained I conclude the reader would understand that eventuation of the second risk would result in Tawhidi being murdered. However, there is nothing in the publication that grounds that wish in reality.

Finally, and importantly, the publication concluded with ‘LOLLL’.

Unlike the first publication, there is no term used in the second Awad publication that conveys to the reader that Tawhidi is a contemptible person.

The escalating harm that Awad said he wished for Tawhidi would be understood by the reader to be gruesome and offensively ridiculous. This understanding is consistent with and emphasised by the repeated use of ‘LOLLL’, and the way in which Awad has ‘upped the ante’ in his response to Tawhidi and the persons angered by his earlier post so as to further aggravate them. The reader would understand the gruesome wishes expressed by Awad were not based in reality.

The wishes are expressed as being personal to Awad and are his response to an interaction that generated anger. There is no sense of Tawhidi deserving the outcome conveyed by the publication. The reader would not understand the publication to mean that Tawhidi is such a contemptible person that he actually deserved to be kidnapped and murdered by ISIS.

Imputation (a) is not made out.

The second Awad publication refers to ‘posting it again’. The pleadings do not allege that the first publication is part of the second publication, or that it was available as context to the reader. The meanings in imputations (b) and (c) are more remote from the text of the second publication than the first publication. Two important pieces of context that were present in the first Awad publication are missing from the second, namely ‘that Bill’ and ‘Poison Hanson’. Although Awad makes reference to his previous wish to poison Tawhidi, absent the additional context of ‘that Bill’ the ordinary reasonable reader would not understand the wish to be related to the video thumbnail itself. The change in subject matter in the second Awad publication as compared to the first Awad publication is reinforced by Awad’s statement: ‘since this post has angered a lot of people, hence posting it again’. In this context, the video thumbnail would be viewed as secondary to the subject matter of the second Awad publication. It follows that the reader would not understand from the video thumbnail alone that the subject matter of the second Awad publication was evidence given by Tawhidi during a Senate hearing. While the ordinary reasonable reader may understand from the repeated use of ‘lolll’ that something is being ridiculed and mocked, the ordinary reasonable reader would understand the subject matter of the ridicule to be the people who were angered by ‘this post’ and the increasingly ridiculous wishes expressed by Awad himself. The reader would not understand the publication to mean Tawhidi had given evidence to a Senate hearing that was ridiculous, and should not be treated seriously. Imputation (b) is not made out.

There is nothing in the second Awad publication from which the reader would understand that Tawhidi was a traitor, in that he had betrayed all Muslims because of the evidence he gave to the Senate Committee. For similar reasons as with the first publication, imputation (c) is not made out.

Trial witnesses

It is convenient to identify the witnesses who gave evidence at trial before proceeding to consider the assault claim made by Tawhidi.

Evidence was of course given by Tawhidi and Awad. Both were challenged in cross-examination on various aspects of their evidence. There was a particular challenge to Awad’s credit that was largely based on what were said to be inconsistencies between evidence he gave in the Magistrates’ Court on the intervention order application hearing and his pleadings and evidence in these proceedings. Those challenges are dealt with later in these reasons.

Tawhidi called reputation evidence from a number of witnesses. Dr David Adler met Tawhidi a number of times through his role as president of the Australian Jewish Association (‘AJA’). He explained that the AJA is the largest Jewish organisation in Australia measured by the number of followers and activity on social media, and that it advocates for the Jewish community and for Israel, and in that regard deals with politicians, the media and businesses. Dr Adler also gave some evidence that Tawhidi argued was relevant to the assault claim.

Dhafir al-Shammery is a security consultant for counter-terrorism and national security, and a regular guest commentator discussing counter-terrorism, national security and police operations issues on SBS Arabic radio. He met Tawhidi about six years ago through a mutual friend, and speaks to him regularly. They have worked together on a number of projects.

Ensaf Haidar is a national of Saudi Arabia, now living in Canada, who describes herself as a human rights activist and author. Haidar’s husband has been detained in Saudi Arabia since 2012, and she began her human rights activism to defend him. Haidar said she has known Tawhidi for a long time through the internet, and first met him personally in 2017.

Mohammad al Baqir al Husayn al Budairi is an Imam living in Iraq and leader of the Global Imams Council (‘Council’). He explained the purpose of the Council was to establish groups to inform or preach the real Islam following Muhammad the Prophet, and to collaborate in attempts to put an end to terrorism based on Islamic religion. He said the Council opposes ISIS. He met Tawhidi in around 2011 or 2012 at a seminary in Iraq. Tawhidi joined the Council in 2018. Imam al Budairi identified a number of documents he signed as president of the Council that were about Tawhidi and his relationship with the Council. Imam al Budairi has not visited Australia.

Awad sought to challenge aspects of Tawhidi’s reputation by calling evidence from Akeel Al-Sherif, who is the president of the Islamic Shia Council of Victoria, representing the Shia community in Victoria. There was an objection to Al-Sherif’s evidence on grounds of relevance, and a challenge to his credibility in cross-examination.

I have set out from paragraph 229 to 232 below identification evidence called by Awad from Dr Mahmoud Hegazi and Shaenice Moussa.

Awad also called brief evidence from Ibrahim Sahba, an electrician who has known him socially for about 10 years. Sahba’s evidence was intended to go to reputation, but was of no particular relevance.

Both parties called experts to give evidence that was largely relevant to the Tawhidi defences to the Awad defamation claim, including reputation and damages. Tawhidi called Dr Ran Porat, who is a research associate for the Australian Israel and Jewish Affairs Commission and a university lecturer. Awad called Professor Mohamad Abdalla, professor of Islamic studies and director for the Centre of Islamic Thought and Education at the University of South Australia and Dr Peter Slezak, honorary associate professor in philosophy at the University of New South Wales and member of the Australia Palestine Advocacy Network.

At trial, Tawhidi gave evidence about a meeting he had had with Professor Abdalla and members of the Muslim community in Adelaide in 2017. He said the meeting was ‘unpleasant’ and ended in disagreement between Tawhidi and the community members. Tawhidi said he made a police report following the meeting which he later withdrew. Professor Abdalla did not disclose his prior dealings with Tawhidi in his expert report. In cross-examination, Professor Abdalla said he knew Tawhidi, had met him two or three times and exchanged a telephone call and text messages. He agreed the meeting referred to by Tawhidi occurred, that it ended acrimoniously, and that Tawhidi made a report to police that he was assaulted at the meeting. Professor Abdalla said he was embarrassed by Tawhidi’s conduct at the meeting and, like many other Muslims, had been hurt by the views Tawhidi publicly expressed. These were relevant and significant matters that should have been mentioned by Professor Abdalla in his report.[17] As a consequence of this omission and Professor Abdalla’s negative interaction with Tawhidi, I have placed little weight on his evidence.
[17]Supreme Court (General Civil Procedure) Rules 2015 (Vic), Form 44A item 3(i).

Circumstances of publication of the Awad publications and the alleged assaults

As I have already said, Tawhidi and Awad have never met. Before the incidents on which Tawhidi’s claim of assault is based, Awad was aware of Tawhidi through his media profile. Tawhidi was not aware of Awad. Tawhidi lived and worked in Adelaide, and visited Melbourne occasionally. Awad lived and worked in Melbourne.

Awad said he was aware of Tawhidi and his profile on social media from 2017. He said he knew Tawhidi was a public speaker who represented himself as a Shia Imam, but he believed as a result of information from the Islamic Shia Council of Victoria and the New South Wales equivalent, that Tawhidi was not an Imam and had no credentials or qualifications. Awad said he was aware of Tawhidi being condemned for making inflammatory comments in regards to the Muslim community. He said Tawhidi had never been accepted in the mainstream as a social advocate, and that Tawhidi’s statements were not accepted by the general mainstream Sunni and Shia communities in Australia.

On 1 January 2019, after he had purchased and read Tawhidi’s book, Awad posted on his Facebook page a screenshot of a post by Tawhidi about his book, with the message ‘I hope he saves a hero the hassle and kills himself!’ Awad disagreed that when he wrote his January post he had feelings of intense anger towards Tawhidi. He said he was shocked by what he had read in Tawhidi’s book, and was worried about what Tawhidi was saying, particularly about a Muslim ban and shutting down Muslim schools. He said he was not aware of the whole content of Tawhidi’s website, but he did know about Tawhidi’s inflammatory comments. He said his January post was said in a sarcastic way, and was sent to his 20 Facebook friends who knew about Tawhidi and would take it as an insult which they would laugh at. He agreed that sometimes ‘hero’ could refer to somebody who was a suicide bomber or murderer. However, Awad said the post was meant to mock what Tawhidi was saying and was not saying he should be killed. He said if the reader saw this post in the context of all of his other Facebook posts they would not interpret the January post as indicative of extremist views. He disagreed that by January 2019 he hated Tawhidi, and said he hated his views and his constant attacks on the Muslim community.

At 3:23pm on 11 February 2019, after giving evidence at the Senate hearing, Tawhidi posted on his Facebook page the following message, together with a link to a YouTube video of his evidence:

Terrorists are not mentally ill. That is insulting to both us and the jihadist. Muslim migrant children should also wait the five-year period before applying for citizenship. Here’s why:

Awad said he saw Tawhidi’s post, and watched the video, at around 9 or 10pm that night. He said Tawhidi’s evidence was outrageous and very negative about Muslim migrants and communities. He uploaded the first Awad publication a little after 10pm.

Awad said he was upset and angry about Tawhidi’s comments. Awad was asked:

Why did you write something like that?---His comments – these comments are outrageous and I apologised for them and given there’s no excuse for me that I was angry about Mr Tawhidi’s giving evidence - the way he confirmed Ms Pauline Hanson’s views about the Muslim community but I felt they were wrong and I apologised for them. And I said that in the heat of the moment in really, like, I was - I was upset and angry about the - about what occurred in the video or what I’ve listened to.

Awad said, in relation to the first publication:

And what was your - what were your thoughts on the video?---My initial thoughts was it was outrageous, what I've seen and what I've heard. It was very negative.
What was in - what in particular in the video?---I mean, apart - I remember, I remember Mr Tawhidi was making comments in regards to how the Bill should be widened to include Muslim migration and Muslim migrants should wait extra few years before they get their citizenship. I remember Mr Tawhidi making comments about Muslim women going to shop for a third or the fourth wives for their husbands. I remember comments and I believe those are the most egregious. He was confirming basically everything Senator Pauline Hanson was saying at that time about the Muslim communities, in particular polygamy, Muslims do you have - some Muslims do you have concubines and somehow they were checking the social welfare system in the country and also that comment about Muslim - Muslim - the Muslim community in New South Wales putting their votes in the vote bank and getting their community leaders to collect these votes as like Muslims, Abdul Salam or they don't have personality, these sorts of stuff.

Tawhidi said that evening he was very interested to see the public’s reaction to his evidence at the Senate hearing:

I received news, online notification that I was being mentioned. When you - when you are mentioned, you receive a notification. So I checked to see what the fuss was about and I saw that Awad had called for my poisoning.

Tawhidi said at the same time he received notification of people’s outrage in response to the first Awad publication.

Tawhidi was asked how he felt when he read the first Awad post:

I felt terrified, attacked. I felt, er, this time - because I had received threats before and I received such rhetoric directed at me before but the previous times it was people who were anonymous. When there was a man of the court and he had his lawyer’s uniform on and he is proposing that a Bill should be - should be set, right, for my poisoning and insulting me in this way, and I haven’t done anything to him, I don’t know who he is, I’ve never spoken to him or about him. When I saw such a reaction, I felt terrified, I felt hurt, I felt very sad, upset and I wanted to find out why this was happening.

Tawhidi said that evening he began to research Awad on social media to see what he had written in the past. He saw the January 2019 post, and said he then became really scared because he understood Awad was actually targeting him, and it was not just Awad reacting to his video. He said his online search of Awad revealed a lot of extremist content, violence, bigotry against minorities and people Awad disagreed with. Tawhidi said he was very worried and decided to expose Awad’s conduct on his social media pages by showing his followers what happened after he had given evidence to the Australian Senate hearing. He said his post was accompanied by a message to Awad that there would be consequences for wishing for Tawhidi’s death. He said he did not sleep that night, and was thinking about whether his reaction was enough, or whether he should get other people involved from the government. He said that night he reached out to his lawyer and to a few other people who were his advisers at the time, and contacted family and friends who were colleagues and Imams. He said some of these conversations occurred after the second Awad publication.

Tawhidi said that during his research on Awad he found out that Awad had contributed to a television program on Channel 7 and that ‘he also had a history with the local radio channel in Australia.’ From this Tawhidi concluded that Awad had ‘somewhat of a following online.’ He said: ‘So I was very worried and then I decided to make this known to people who should know about it, for my own protection as I have always been doing in the past.’

The tweet uploaded by Tawhidi on Twitter to notify his followers about the first Awad publication is reproduced below:

The tweet bears a time stamp of 11:37am on 12 February 2019. The Facebook post uploaded by Tawhidi to notify his followers is reproduced below:

It is evident that the bottom half of the above post is the original post uploaded by Tawhidi. That post was blocked by Facebook. A screenshot of the original post and the community standards notification was taken by Tawhidi and reposted with an additional message from him.

In evidence, Tawhidi was shown a series of tweets sent by different persons on 12 February, all bearing the following: ‘Replying to @mattawad5’. Tawhidi said these were responses from the public to the first Awad publication that occurred before he uploaded anything on Twitter or Facebook to notify his followers about the publication. In fact these tweets commence at 11:39am on 12 February, two minutes after the time stamp on Tawhidi’s tweet responding to the first Awad publication. Examples of the responses are:

Advocate of human rights? Yeah, sure you piece of pork shit
You’re a piece of garbage. You call your self a human rights activist?
This kind of public statements should be enough to get you disbarred..
Conpalined [sic] to you company lets see.
OK Mr. HUMAN RIGHTS activist!! How stupid are you.
Not quite what one expects from a human rights lawyer.

The language used in and the timing of these tweets support the conclusion that they were sent by persons who had read Tawhidi’s 11:37am tweet.

Tawhidi also relied on a screenshot attached to the following email (‘Cameron email’) as evidence that the first Awad publication was seen independently of him shortly after it was uploaded:

The screenshot attached to the Cameron email is reproduced:

The copy of the screenshot attached to the email bore a time stamp indicating it was taken at 1:23pm on 12 February. The email was sent at 1:39pm.

Tawhidi said the image attached to the Cameron email was a screenshot of a Facebook post to which was attached a screenshot of Awad’s Twitter profile and first tweet. He said the time stamp on the image attached to the email was the date and time the image was generated on a particular device, and that the ‘2m’ at the top right corner of the tweet showed the tweet screenshot was taken two minutes after the tweet was uploaded. I generally accept Tawhidi’s evidence about these matters.

The screenshot attached to the Cameron email appears in exactly the same form as an attachment to the Tawhidi post reproduced in paragraph 103 above, and in a truncated form in the Tawhidi tweet reproduced in the same paragraph. Tawhidi said that after he became aware of the first Awad publication he took screenshots of it. I conclude it is likely the screenshot that appears in the Tawhidi tweet and post, and as part of the attachment to the Cameron email, was taken by Tawhidi two minutes after the first Awad tweet was uploaded. It is likely the author of the email accessed the screenshot from a Tawhidi post or tweet. The content of the email also suggests it is responsive to the tweet or post uploaded by Tawhidi.

Awad said that from about 11:45am on 12 February he began receiving a lot of phone calls from people abusing him, calling him an extremist, and referring to Tawhidi. He said he did not know how anyone apart from his friends would have seen his Facebook post, but then he checked Tawhidi’s Twitter account and Facebook page, and saw that his post had been republished by Tawhidi. He said he reported Tawhidi’s post to Twitter and Facebook and got a notification that it was deleted. He said the phone calls continued, and he checked Tawhidi’s Facebook page again, and saw that the post was still there under the umbrella that said ‘I’m smarter than you Facebook, here is, everyone can see it’.

I do not accept Tawhidi’s evidence that when he initially saw the first Awad publication late on 11 February he also received notification of people’s outrage in response. There is no independent evidence of any online response to the first Awad publication until after it was republished by Tawhidi at 11:37am on 12 February. The reactions after that time were a response to Tawhidi’s republication rather than the original publication by Awad.

Awad said he was angry and frustrated at the comments he saw on Facebook and by offensive comments made to him on the phone. As a result, he uploaded the second Awad publication at 12:31pm on 12 February 2019.

Tawhidi said that in 2014, when he was living in Iraq, an uncle with whom he was very close, who was a general in the army and fought ISIS, went missing. He said about eight months later he discovered ISIS had killed his uncle by burning him. Tawhidi said this was a turning point in his career, and lead him to speak out against extremists. He said this was described in his book, and in his evidence to the Senate hearing, and would have been well known to Awad.

Awad accepted his second publication was about an incredibly sensitive issue and was aggressive. He said he was not in the right state of mind to have mentioned ISIS, and he knew that these words would hurt Tawhidi. He said the second publication was abusive and insulting, but not threatening. He disagreed that he was legitimising ISIS. He said Tawhidi had called him a Muslim extremist, and he felt like insulting him and using the term ‘ISIS’ to antagonise him. He said if any members of the public saw his second publication it was as a result of Tawhidi reposting it.

Awad was aware in 2017 that Tawhidi had repeatedly claimed that he was wanted by ISIS. Awad said there were no credible reports to this effect, and he believed it was a false claim by Tawhidi in order to generate public interest and followers on Facebook and in order to collect donations. He did not believe Tawhidi’s uncle had been kidnapped and burnt alive by ISIS.

Awad agreed that there would be members of the public who, if they saw him in his barrister’s robes, would expect him to speak from a position of authority. Awad was asked:

And its right to say that there would be members of the public who would see your barrister’s robes and expect that you’d speak from a position of authority, isn’t that correct? --- Correct. If Mr Tawhidi wishes that – and this is what Mr Tawhidi was trying to do, yes.
And you are aware that there are extremists in the community already hate Imam Tawhidi, is that correct? --- Mr Castelan, many extreme Muslim community, Sunnis and Shia dislike Mr Tawhidi.
But you would accept that there would be members of the community who would see this coming from you in a barrister’s robes as a person legitimising what you are suggesting what ought to be done, that’s correct, isn’t it?---If - no, no, because if this post would have survived yes, I would have that intention. Apart from this, I deactivated and Tawhidi insisted on republishing it again and again and again.

It was put to Awad that people were just as likely to be incited by seeing his post on his Facebook page as when it was reposted by Tawhidi:

… you were asked this, ‘A person who wishes poison someone and get kidnapped by ISIS. Isn’t that stirring up – stirring the pot and inciting people and encouraging [trolls]?’ And your response on oath is ‘Well if that person has, I don’t know, an agenda or soft skin or something like that, he might be incited yeah’. So you accept that people might be incited by what you posted, don’t you? --- No, I accept that people might be incited if they see my posts on Mr Tawhidi’s Facebook page and Twitter, not my post.
I put it to you that there’s absolutely no difference and that people – just as likely to be incited by seeing it, whether its on your own Facebook page or another Facebook page; that’s correct isn’t it?---Big difference because on my page I took it down. But yes, I accept in the – in the window of few minutes, no, no because my state of mind was being very angry at what I’ve seen.
And in that window where you say it was up, people might be incited if they’d read it; isn’t that correct?---That’s correct. No, no - not, no, no, no. At that window it would have been very - it wouldn’t be appropriate, it would be insulting. It would be dangerous, yes, just for people to see this post, yes, I accept that, yes. It’s a disgusting post, yes.
…
You had the intention to represent to members of the community that you were legitimising the actions that you say ought to be conducted by your post?---No, I took it [down] immediately, no.

Tawhidi said the second Awad publication made him feel horrible and hurt:

Horrible. It made me – it terrorised me to begin with. It made me feel horrible, let alone the belittling and the insult and the - and the attack, and all of that aside, this literally made me weak. Like, who do I speak to? Because what he is wishing upon me, publicly, is what happened to my family, so I’m very - I - I was very hurt, and I still am very hurt because of the all the aggravations that he has done since that post - since these posts. It hasn’t just stopped. So I did not in any way consider this to be funny, you know, and - and the ‘LOL’ there even makes it worse, because beheading me and turning my head into a meal is not a laughing matter. it’s not a laughing matter, because Moustafa Awad knows I’m Iraqi and he knows what ISIS did to Iraq…

Tawhidi was asked what he did after he saw the second Awad publication on 12 February:

Yes, I informed state intelligence, I informed my family, and I was considering on living in a remote area for a short period of time until things settled, until the water settles, because I was - because now I have a lawyer coming after me. Before it was anonymous people. You don’t know what to do. You sit and you - you let the police handle the matter, but now when you have a lawyer who, with his actions - I understood, from his actions, that he’s not afraid of the law. That’s what I understood. When we have a lawyer saying - and - and this is the issue. This is what really hurts me. He knows the public - public’s reaction. He sees because this angered a lot of people, so he doubles down, this time bringing in ISIS. So the poisoning wasn’t enough. He - look, if he doesn’t want me alive, apparently poisoning is not enough, me dying through poison is not enough. ISIS has to kidnap me and turn my head into a meal. That’s what he would like. That’s what he wishes for, in his own words.

Tawhidi said he published the second Awad publication on his Facebook page for the following reasons:

The first to protect myself because in the past whenever I’ve been attacked by such a serious attack - so in 2017 my home was raided in Adelaide and people keyed the letters ISIS on my car, I couldn’t keep that matter private, so I posted it online and it was reported in the news and that is how I feel I protect myself. Because if I keep things under the table and quiet and something happens to me then the police are supposed to figure it out on themselves - by themselves. But if I inform the public then the one who wishes for ISIS to kill me will take measures, and - and it’s more of a deterrent. That was the first reason. The second reason was to expose this behaviour, to expose it. I was invited - officially invited - by the government of Australia, by the parliament, to speak in the senate, this is a democratic society, there is free speech, ah, I’m allowed to have opinions that other people do not like. But a lawyer who is supposed to know of the sanctity and seriousness of the legislature and how statutes are formed and how bills are discussed and argued, this individual wants ISIS to kill me, so this person should be exposed. This reality should be exposed, otherwise we allow the extremists to operate without criticism. It was my duty, it’s my purpose to expose people who sympathise with ISIS, who promote ISIS terrorism, and who would like to see ISIS undertake and carry out attacks, especially in Australia, because I was in Australia at the time, and ISIS are not in Australia.

Awad said on the afternoon of 12 February the phone calls continued, and at around 1 or 2pm he saw Tawhidi posting on his Facebook page. Tawhidi then uploaded the following post:

Awad said within the space of minutes rather than hours, when he realised his Twitter account was connected to his Facebook page, he deactivated his Twitter account and deleted the Facebook posts in relation to Tawhidi. Tawhidi said he ‘reported’ Awad’s posts to Facebook in order to have them removed from the website.

At 3:12pm on 12 February 2019 Tawhidi uploaded the following post:

The content of the above post is consistent with Awad’s evidence that the first and second Awad publications were deleted early in the afternoon of 12 February, and his Twitter account was deactivated.

At 4pm Tawhidi uploaded the following post:

At 4:52pm Tawhidi uploaded the following post:

Awad said for the remainder of the afternoon the abusive phone calls continued, and there was an attack on the company’s website and his email account so that he had to amend his business website and change all of the numbers and emails.

At around 9.30pm on 12 February 2019 Awad uploaded the following post:

Awad said that in this post he was not referring to the first and second Awad publications, but to mass reporting of many of the other posts that appeared on his Facebook page that had occurred by late evening on 12 February 2019. I accept Awad’s evidence on this point.

Tawhidi said he lost sleep and his appetite over the Awad publications, and that he spent stressful days and nights trying to figure out what his next step should be. He said the Awad publications made him feel terrorised and horrified, and that if a vulnerable person in the Muslim community saw the posts coming from Awad dressed in the garb of a barrister they might think what he said was legally allowed, and totally acceptable in Australia. Tawhidi said he felt threatened by the Awad publications, and thought harm might come to him.

Awad agreed that when he posted material online it was capable of being viewed by any person with access to the internet. He said, however, there are millions of Facebook and Twitter accounts, and unless you are a follower or friend of a person who uploaded a post, you would have to search that person in order to access their material. He agreed on Twitter you could set an option to be notified when another person uploaded material, and that if one of his Facebook friends commented on a post he uploaded, that post would become visible to that person’s friends on Facebook.

The screenshot of the @mattawad5 Twitter account taken by Tawhidi two minutes after the first Awad publication was uploaded establishes that at that time Awad had 137 Twitter followers. Awad said at the time he had 20 Facebook friends.

In relation to his claim for damages, Tawhidi said that before the Awad publications he travelled nationally and internationally on a weekly basis. Most of his Australian travel was focused around Melbourne because of the Muslim community there. Since the Awad publications he has not made any public appearances in Melbourne because he thought some vulnerable members of the Muslim community might agree with the publications and come after him. Tawhidi said in late 2020 he declined an invitation from Arrow Events to deliver a series of programs because of fear resulting from the Awad posts. He said he had declined eight roles at events in Sydney and Melbourne that had been assigned to him by the Council, and for which he would have been paid USD5,000 per event. Tawhidi said when he came to Melbourne on 30 January 2020 for a Magistrates’ Court hearing he hired five guards at a cost of $2,686 because he feared for his safety.[18]

Common law assault

Submissions

[18]The contested hearing of an application made by Awad under the Intervention Orders Act for an intervention order against Tawhidi.

Tawhidi

Each element of the tort of assault is satisfied by the Awad publications.[19]
[19]ACN 087 528 774 v Chetcuti (2008) 21 VR 559, 564-5 [16] (Hargrave AJA) (‘ACN 087 528 774’).

First, the content of the Awad publications threatened to inflict harmful or offensive contact on Tawhidi. The threats were given authority and legitimacy by Awad’s appearance wearing barrister’s robes in his Twitter avatar. Awad admitted as much in cross-examination:

Second, Awad showed by his conduct in uploading the second publication following the anger caused by the first publication that he subjectively intended his actions to cause an apprehension in Tawhidi’s mind that the threat would be carried out. By the time of the second publication, Awad knew that the material had been disseminated beyond his friends and had been posted to Twitter. Awad did not retreat and instead doubled down and made an even more offensive threat against Tawhidi. Awad’s intention is borne out by his tweet on 1 January 2019 (set out in paragraph 92 above) and the 12 February 2019 post (set out at paragraph 18 above).

Awad’s communications concerning Tawhidi were written at a time when he was filled with anger, hatred and a loss of control. Even if he did not intend to commit the violence himself, he appeared happy for Tawhidi to believe that it could happen at any time. He wanted Tawhidi to apprehend that he could be the subject of harm.

Third, the threat created an apprehension in Tawhidi’s mind that it would be carried out immediately or imminently. The tort does not require that the plaintiff apprehend that the violence be applied personally by the defendant. It is sufficient that the defendant cause the plaintiff to apprehend the infliction of offensive or harmful contact by a third party.[20] Even where the defendant had neither the intention nor ability to carry out the threat of violence, the element will be satisfied so long as the plaintiff apprehended that the contact could be inflicted.[21]
[20]Macpherson v Beath (1975) 12 SASR 174 (‘Macpherson’).
[21]Barton v Armstrong [1969] 2 NSWR 451 (‘Barton’); Macpherson v Brown (1975) 12 SASR 184; R v Gabriel (2004) 182 FLR 102 (‘R v Gabriel’).

Tawhidi gave evidence that:

(a) after seeing the first Awad publication, he searched on social media and discovered that Awad had been targeting him since January 2019;

(b) he became really scared, and decided to expose Awad’s conduct to his own social media followers to protect himself;

(c) after seeing the second Awad publication, he was fearful and considered living in a remote area until the situation settled;

(d) he felt the need to republish Awad’s publications not only as a deterrent and to expose Awad’s conduct, but also to alert the police in case anything happened to him;

(e) he felt that he, his family and his offices were threatened by the Awad Publications and faced a risk of harm;

(f) he was more worried about his safety than anything else and contacted South Australian state intelligence on multiple occasions;

(g) he cancelled at least eight opportunities to appear at public events, for which he would have been paid USD5,000 per appearance.

Fourth, it was objectively reasonable for Tawhidi to apprehend that the threat would be carried out immediately or imminently. The threat appeared online alongside pictures of Awad in barrister’s robes. The threat was real and incited elements within society that were objectively capable of carrying out such threats at short notice. Tawhidi’s personal experience that his uncle was murdered by ISIS is further evidence that Tawhidi’s apprehension of violence was objectively reasonable.

The expert evidence of Dr Porat and Dr Adler supports the conclusion that the Awad Publications would incite or inspire others to act. In his first report Dr Porat referred to a table of posts by Awad that included the first and second publications and said:

To most people, irrespective of their perception, the posts listed in the table may provoke an emotional response. Supporters of the pro-terror and violent views expressed in the posts by Mr. Awad may sympathise and be encouraged to take some action that is in line with Mr Awad’s views. People who disagree with Mr Awad may respond to these post with negative feelings, such as anger or fear – natural reactions to violent messages.

Referring to the Awad publications, Dr Adler said the experience in Israel was that the sort of words that are said by leaders of Hamas, Palestinian Islamic Jihad and Hezbollah do inspire others to do harm. He said his organisation monitors things internationally and these sorts of words can inspire radicals to act.

Fifth, Tawhidi suffered injury or damage as a result of the apprehension He was terrorised, terrified because his family had already been a victim of ISIS, horrified and has become alert at all times.

Awad

There was no act by Awad giving rise to an assault.

Awad’s statements were expressed as a ‘wish’ and do not constitute an offer of force or violence. An assault is generally an intentional act by a person which raises the apprehension of imminent harm or offensive contact. The key word is ‘imminent’. Both publications were expressed in terms of the wish for a future event to occur. There is no evidence ISIS has an operative presence in Australia. The publications could not convey a threat of immediate or imminent harmful contact.

There was no reasonable apprehension of harm.

Analysis

In ACN 087 528 774 Pty Ltd v Chetcuti, Hargrave AJA, with whom the other members of the court agreed, set out the elements of the common law tort of assault:

A plaintiff seeking to establish a cause of action for the tort of assault, in circumstances where no physical contact or battery in fact takes place, must prove the following elements:
(1) A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff’s consent or without any legal justification.
(2) A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat.
(3) The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.
(4) The apprehension in the mind of the plaintiff must be objectively reasonable.
(5) The plaintiff’s reasonable apprehension caused injury, loss or damage to the plaintiff. This requirement attracts the ordinary common law concept of causation by reference to commonsense and, where appropriate, consideration of normative factors such as value judgments and policy considerations. [22]

[22]ACN 087 528 774 (n 19) 564-5 [16] (citations omitted).

It is not sufficient that the plaintiff immediately apprehended that force would be applied in the future.[23] The apprehension must be of immediate or imminent application of force.
[23]Slaveski v State of Victoria [2010] VSC 441, [231] (‘Slaveski’).

Words alone can constitute an assault.[24] However, the manner and circumstances of communication of the threatening words to the plaintiff may mean that apprehension of immediate or imminent harmful contact is not established. In Slaveski v State of Victoria Kyrou J said:

It follows from the above discussion that there is no rule preventing a threat of physical harm which is not accompanied by any physical contact – such as a threat made over the telephone or by email or other electronic means – from constituting an assault. Such a threat can constitute an assault provided that all the elements of the tort are established, including that the threat is to inflict immediate physical harm.[25]

The only evidence relied on by Tawhidi to establish that Awad encouraged ISIS to murder him was the second Awad publication. The difficulty faced by Tawhidi is the obvious and material difference in language between the contextual imputation and the text of the second Awad publication. In that publication Awad expressed a wish that ISIS kidnap and murder Tawhidi. Even if I were to accept, contrary to my earlier conclusion, that Awad was expressing a real desire that the event occur, there is nothing express or to be implied from the publication to support the conclusion that Awad had contacted ISIS or done anything to inspire, motivate, persuade or urge that organisation to murder Tawhidi. Wishing something to occur is materially different to encouraging someone to carry out an act. On this further basis I conclude Tawhidi has not established the substantial truth of the contextual meaning.

Had Tawhidi established the truth of the contextual imputation, I would have concluded that the defamatory imputations conveyed by the first Tawhidi publication did not further harm Awad’s reputation. The seriousness of the defamatory imputation that I have conclude are conveyed is at least matched by the seriousness of the contextual imputation.

While not strictly necessary, it is appropriate I consider the contextual truth defence to the second Tawhidi publication. The publication identifies Awad as an ‘ISIS promoter’, that is a supporter. The terrorist activities of the organisation known as ISIS are notorious. The statement in the publication ‘this is not only about him wanting me killed by ISIS’ further suggests Awad’s support of terrorist activity. I accept that the contextual meaning is conveyed by the second Tawhidi publication. However, for the same reasons expressed above, I conclude the Schedule A posts, together with the evidence of the experts and answers to some questions in cross-examination by Awad, do not establish the substantial truth of the imputation that he supports terrorism. Further, the defamatory imputations pleaded by Awad are more serious than the contextual imputation. The general support of terrorism is materially less serious than suspicion by an intelligence organisation that Awad has abused his position as a migration agent by helping terrorists come to Australia, or that he is involved with terrorism. Had I found that any of the defamatory imputations were conveyed by the second Tawhidi publication, I would have concluded the contextual truth defence was not established.

Damages

Submissions

Awad

The following three matters justify an award of aggravated damages. First, Tawhidi’s mocking response to the concerns notice sent by Awad. Second, Tawhidi continuing to post about Awad after the warning from the Magistrate following dismissal of the intervention order application. Third, Tawhidi’s failure to apologise and retract his statements, further aggravated by his continued mocking of Awad.

An appropriate award of damages would be in the range of $100,000 to $150,000.

Tawhidi

No amount of damages should be awarded to Awad because of his already bad reputation,[83] established by the following matters:
[83]Dank v Nationwide News Pty Ltd [2016] NSWSC 295, [75].

(a) the Awad publications;

(b) the Schedule A posts;

(c) the substantial truth of the contextual imputations;

(d) evidence by Awad in which he pressed a range of irrational and unsupported assertions against Tawhidi, including that:

(i) Tawhidi is not an Imam;

(ii) Tawhidi lied when he made the claim that his uncle was kidnapped and burnt alive by ISIS;

(iii) Tawhidi falsely claimed that he was wanted by ISIS to generate public interest and followers, and attract donations;

(e) an inference from Awad’s abandonment of the many other claims made against Tawhidi that those claims were brought in wilful disregard of clearly known facts and law.[84] It follows that Awad’s reputation was not going to be harmed by the 18 publications that were the subject of claims that were abandoned.

[84]Peet Ltd v Richmond [2010] VSCA 71, [35]–[37].

If any damages are awarded to Awad the amount should be nominal and less than $10,000.

Analysis

The defamatory imputations that I found to be conveyed by the first Tawhidi publication were serious, particularly for a person whose occupation was lawyer and migration agent.

The extent of publication was significant. Tawhidi had a high online media profile and over 250,000 Facebook followers. The evidence suggests other members of the public are likely to have searched Tawhidi’s Facebook page from time to time, with the result that some members of the public who are not his Facebook followers will have viewed the first publication.

Damages are awarded for the consequences suffered by a plaintiff as a result of the diminution of their reputation, the vindication of their reputation, as well as for ‘the plaintiff’s injured feelings, including the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff’.[85]
[85]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 71 (‘Carson’).

Damages for the loss of reputation must be ‘sufficient to convince a bystander of the baselessness of the charge’.[86] Factors relevant to assessment include ‘[t]he gravity of the libel, the social standing of the parties and the availability of alternative remedies’.[87]
[86]Broome v Cassell & Co Ltd [1972] AC 1027, 1071 (‘Broome’).
[87]Carson (n 85) 61.

Awad said he believed the publication was ‘quite offensive’ and that he felt ‘helpless’. He said:

Mr Tawhidi hardly - hardly knows anything about me. His followers hardly know anything about me and I still get associated with ISIS, get associated with bringing terrorists to the country, getting associated. I have worked hard during my life to do this this and I understand my mistake as I told you, it was my mistake but everything should be proportionate and I shouldn't be subject to stretch like this or to stuff like this over two years. It just - it's not fair. Mr Tawhidi has substantial media, social media presence and what he says has been offered to at least one million people or at least 200,000 people on his Facebook page. It's not fair. Everyone knows him. Everyone follows his Facebook so it's just like - honestly, I feel helpless, like, even - - -

I accept that the first Tawhidi publication caused Awad some distress and embarrassment, heightened by the publication being made for a large audience via Tawhidi’s Facebook page.

Awad’s conduct before the first Tawhidi publication is relevant to the mitigation of damages.[88]
[88]Burstein v Times Newspapers Ltd [2001] 1 WLR 579, 598 [41] (‘Burstein’).

I bear in mind my finding about Awad’s credit and acceptance of his evidence, and that his interactions with Tawhidi started with his ‘abusive’, ‘derogatory’, ‘offensive’ and ‘belittling’ posts about a sensitive subject matter. I have concluded that a motivation for the first Tawhidi publication was the desire to respond to the attack by Awad in the Awad publication. There was a causal connection between the Awad publications and Tawhidi’s defamatory response.[89]
[89]Coxon v Wilson [2016] WASCA 48, [26]–[27].

While Tawhidi’s online campaign against Awad was unreasonable, Awad chose to enter the fray with each publication. Awad was aware that Tawhidi was active on social media and had a large number of followers. While I accept Awad’s evidence that he intended for the first Awad publication to be viewed by his friends and family only, Awad took no steps to ensure that that would be the case, despite having had the opportunity to do so. In cross-examination, Awad said:

…the Facebook page, the entire Facebook page cannot be public or private. What can be public or private is the post, what you post. What you post you have three options or three choices, to make it public, to make it among your friends or to make it only seen by you.
And so let's say early 2019, in February 2019, you were aware of that ability to make your posts private and only viewable by your friends?---Yeah. Yes, I was aware of that, yes.

However, the same cannot be said of the second publication in which Awad ‘upped the ante’ in his response to further aggravate Tawhidi and the persons angered by the first publication.

Awad solely relied on the presumption that he had a good reputation. Damage to reputation is presumed and need not be specifically proved by the plaintiff.[90] However, matters adduced as to Awad’s bad reputation are relevant to mitigation of the damages to be awarded to him. In Belbin v Lower Murray Urban and Rural Water Corporation, Kaye J summarised leading Australian and English authorities relevant to this issue.[91] Kaye J applied May LJ’s findings in Burstein v Times Newspapers Ltd (‘Burstein’) that ‘in the absence of a plea of justification, it is permissible to adduce evidence directly relevant to the background context’ to mitigate damages.[92] May LJ in part relied on the following passage by Lord Denning in Plato Films Ltd v Speidel:

Seeing that the law does not permit a defendant, in mitigation of damages, to adduce evidence which tends to justification, it must permit him to adduce the self same evidence when pleaded in partial justification … If it were not so, the plaintiff would recover damages for a character which he did not possess or deserve; and this the law will not permit.[93]

[90]Bristow v Adams [2012] NSWCA 166, [20]–[31].

[91][2012] VSC 535, [302]–[313], affd Lower Murray Urban v Di Masi (2014) 43 VR 358, 390–2 [113]–[115] (‘Di Masi’).

[92][2012] VSC 535, [313].

[93]Burstein (n 88) [2001] 1 WLR 579, 595 citing [1961] AC 1090, 1142.

On appeal, in Lower Murray Urban and Rural Water Corporation v Di Masi, the Court said the mitigation evidence ‘must be sufficiently relevant to the sting so as to result in, or disclose, a proper basis for some moderation of the damage and consequential damages.’[94]
[94]Di Masi (n 91) 392 [115].

Tawhidi has not established the truth of the contextual imputations. Accordingly, those imputations have no ameliorating effect on the award of damages.

However, I accept that Awad’s reputation has been harmed in a relevant way by his own conduct, by the manner and content of his posts attacking Tawhidi and the content of other material he has posted on Twitter and Facebook. Awad accepted that his publications about Tawhidi were offensive, inappropriate and aggressive. While I have not found that the Schedule A posts establish the truth of the contextual imputations pleaded by Tawhidi, the content of a number of the posts was offensive and in one case misogynistic. Read together the Awad publications attacking Tawhidi and the Schedule A posts reveal a sometimes aggressively partisan attitude to the subject matter that underpins the first Tawhidi publication. That was reinforced by some aspects of Awad’s conduct of these proceedings, including pressing adverse beliefs about Tawhidi, his family background, qualifications and motivations in pleadings.

While I accept that Awad did not have an unblemished reputation and his offensive behaviour was not insignificant, the unsubstantiated defamatory allegations published by Tawhidi are likely to have had a more serious impact on Awad’s reputation than his own conduct.

I reject Tawhidi’s submissions that I should infer Awad brought the claims he abandoned at trial in wilful disregard of clearly known facts and law. There was no evidence about the basis for bringing the claims, or the reason for abandoning them. In cross-examination Awad was asked:

MR CASTELAN: Now Mr Awad, in closing submissions I'm going to ask the court to make an inference that arising from your abandonment of all 18 of the 20 publications in your statement of claim, I'm going to ask the court to make an inference that those claims were brought with a ulterior purpose or because of wilful disregard of known facts or clearly established laws; what do you say to that?---No, I disagree with that.

Abandonment of the claims may well have been a forensic decision based on advice and considerations such as the relative strength of Awad’s case on the numerous Tawhidi publications he sought to impugn, the seriousness of imputations said to be conveyed by those publications, the inability to recover twice for the same damage, and the cost and complexity of the proceeding if the claims were pursued at trial. Nor is there any basis for me to conclude that abandonment, in effect, represented an acknowledgement by Awad that his reputation was not going to be harmed by the imputations that he pleaded were conveyed by the impugned publications that were not ultimately pressed.

Aggravated damages are compensatory, and may be awarded if the defendant’s conduct, from publication to the day of judgment, [95] demonstrates a lack of bona fides or was otherwise improper or unjustifiable.[96] I accept that Tawhidi’s continuing online campaign against Awad, particularly in the context of the terms of the interim intervention order, the Magistrate’s warning and Tawhidi’s mocking refusal to apologise or cease his campaign of posts about Awad, are aggravating factors.
[95]Broome (n 86) 1071.
[96]Di Masi (n 91) 392 [118].

Taking all these matters into account, I assess general damages at $20,000.

No claim for special damages was made by Awad at the conclusion of the trial.

Injunction

A permanent injunction may be appropriate where:

(a) There is an apprehension that the defendant may, by reason of irrationality, defiance, disrespect of the Court’s judgment or otherwise, publish allegations similar to those found to be defamatory;[97]

(b) The defendant’s persistence in making repeated defamatory publications had the flavour of a vendetta against the plaintiff.[98]

[97]Polias v Ryall [2014] NSWSC 1692, [99]; Sierocki v Klerck (No 2) [2015] QSC 92, [52]–[53].

[98]Graham v Powell (No 4) [2014] NSWSC 1319, [45], [48].

I consider it is appropriate in this case to order that Tawhidi be restrained from continuing to publish imputations of the kind that were the subject of the successful claim by Awad.

During final address there was some discussion about the appropriateness of mutual injunctions. The substantive Tawhidi claims against Awad have failed. I will hear from the parties as to whether in those circumstances there is any basis for an order restraining Awad, and as to the terms of any order to be made against either party.

Conclusion

Subject to the issue of injunctive relief, the Tawhidi proceeding will be dismissed.

There will be judgment entered in the Awad proceeding for damages of $20,000.

I will hear from the parties in relation to the form of orders, and as to costs.

Annexure A
Transcript of Video 9/04/2019
Min 1: Good evening Guys, tomorrow this time, I will be coming out live for another update and it will either be really good news or bad news. Quick just a brief of everything. For those who are new to this page. On the 11 February 2019, I gave evidence before the parliament committee in the senate.
Min 2: An extremist Muslim invited ISIS to come to Australia and basically chop my head off and turn it into a meal and ever since I have been under serious Gag orders I can not speak about details of what it has been happening. Tomorrow I go to Court, tomorrow morning I will be in the magistrates Court to fight this extremist however, there are certain [battles] will be fought regarding this case. So we going after him legally, we going after him through the legal service commissioner in Melbourne, we going after him through other government departments which I do not wish to disclose right now.
Min 3: because if I do so, he might be on the run, he will take off in my opinion, so we will keep those under the sleeve for now, but I do intent on tackling his legal credentials, to make sure he is being disbarred. You know if I am an Australian citizen and you want ISIS to kidnap me and behead me because I gave evidence in front of group of elected senators in the Government Parliament Building. That is contempt! And this is how serious this is. The extremist Muslim lawyers are now silencing Muslims who give evidence against them in Parliament.
Min 4: And they do that by inciting violence, by trying to scare them, by doing things like this getting gag orders, intervention orders, filing law suits against them calling for ISIS to come behead them, turn theirs heads into a meals, all these issues, so tomorrow is the day and I want to be able to come out of that court room tomorrow with a decision, if the case gets adjourned for few weeks or months down the track I do not know, but if it does delayed then we need to take other legal issues on the side so we need to be following up with the commissioner. We need to speak to the migration agency that deals with migration association and gives him the right to bring in migrants. We need to examine which migrants this guy is bringing to the country, because this is his attitude.
Min 5: the other issue is he wishes for ISIS to chop my head off, is he doing this to promote?, is he doing this to speak to certain audience?, is his attitude part of his marketing strategy as to who he wants to bring to this country, we want to examine all of this and also the people who brought to this country and also through other government departments which will be concerned about contempt of senate hearings. My statements are protected by the Government when I am inside Government building. When you wish for ISIS to come and chop my head off because I have been giving evidence to the government, that is contempt, and this is a very serious crime. Before taking this issues to many and many fronts, I am not going to stop with a Court case and then Goodbye I won’t, No..no..no. I am going to destroy this extremist by the law. He needs to taste the full force of the law. It is going to be the law that backs us up.
Min 6: if he thinks he is a lawyer, because he is a lawyer, he can do what he is doing to me and may be other people. No..No the law will destroy you legally, we will come after you legally. I am going to go to the Court room tomorrow with full force making sure to defend the Australian constitution. We defend the judicial system in this country and what allow Muslim extremists to graduate in legal [robes] presenting themselves as man of the Court and doing what they doing to people who give evidence to the government. So, I will continue exposing the extremists, I will continue banning them, I will continue shutting down their centres. I will continue brining down their possessions around the world. I will ban Hizbullah in this country. We ganna come after Hizb Al Tahrir, every Hamas linked organisation, every corrupt Imam in this Country and I am going to do so.
Min 7: And if any extremist lawyer wants to say ISIS should behead me, or it should be a law to poison me, we will come after you [through] the Court, [through] the legal service commissioner, through every filed we can legally. Now, tomorrow I want to be able to come out live and congratulate you and the whole country on this win. These extremists are setting a precedent to come after everyone that gives evidence against them in the government buildings in the senate in the Parliament house, so we need to stop this. Those of you who contributed to the case previously, please I invite you to donate and contribute again.
Min 8: After Tomorrow, we ganna be making serious decision on how we are going to take this on and he is a principal lawyer in a law firm, I am just Imam Tawhidi, the media is against me, half the people in power are against me, the other half are cowered, they do not want anything to do with me, and I just got myself, my faith and my believes in this Country and also in the law and you people. Back me up and I will bring this guy into his knees, to taste the full force of the law. Tomorrow we are going in, we might head up high, I am innocent, I gave evidence against a group of extremists around the world and I will keep doing that in Australia and this lawyer, dear honourable judge wanted ISIS to chop my head off, he wanted ISIS to kidnap me and turn my head into a meal. What is your opinion? Do I have the right to release all documents or no? why there is a Gag orders, why there is a suppression order against me? I want to release all documents, I want to release the correspondence between extremist lawyer in Australia and the police. What they have been telling the police about me, and how they abused the law, how they tried to abuse the law ….right lets stay within the law. I want to release those documents, I need your help.

Min 9: seriously, legal cases isn’t cheap, you guys have been helping me to cover the lawyers, extra costs. Now all the way to the magistrates’ court. I am in Adelaide; the guy is in Melbourne and then you know and then case will carry out and on I have to go after him in Melbourne. If this does not get resolved interstate, I am going after him in Melbourne. We going to have a serious case. This is going to be a victory like no other. They tried to set a precedent, that whoever gives evidence against them in the Court or in the Parliament or in front of any committee, they want to come and threaten them, they want to ruin their lives, no way, I am going after you legally. So I invite you my dear friends brothers and sisters, you contributed before, do so again. We need to go tomorrow with full force and destroy this extremist lawyer that wanted ISIS to come to Australia and chop my head off and turn it into a meal only because I gave evidence in the Parliament. We need Muslims to give evidence into the parliament, otherwise you can not go after the extremist without being called an Islamophobe, you can not do this. Why because this is the sad state of our country and the west today. A Jew wants to fight for his right then he is anti-Muslim. If a regular Australian white wants to go out and say what I have rights I want to protect my country then he is a racist islamophobe. That is the disgusting world we live in today.
Min 10: we need Muslims like myself who go into the parliament and say what this is the problem with my community I am victim, here is the evidence and I testify against them without any lawyers coming after them from the outside. We need to protect this part of our democracy, where people who are belonging of minority community coming to the parliament and testifying against the extremists. We need Muslims to come from their mosques and testify against their own imams. To give evidence against the corruption of their own communities, they do not do that and the government does not take any action against them. I was trying to do that from my community in Adelaide, actually I am the first Imam who testified before an Australian senate against the corruption that is taking place within the voting system. the voting banks, the voters are being sold to whoever pays more. So, they coming after me and I need your help.
Mins 11: that is basically for this evening I really hope the sound is good. I hope to come out live on facebook and just laugh and laughing and say what this issue is on and the judge is on our side and we talking this matter right till the end and we going to be victorious, that is what I want to say tomorrow. I do not want to come and say guys I am sorry because of the legal fees we could not do that, that guy has a law firm, I got the country with me lets do this ... God bless you all I will keep you updated.

[2022] VSC 669

4 November 2022