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.......................................................................................................…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Tawhidi v Awad [2022] VSC 669
Case: [2022] VSC 669
Decision Date: 4 November 2022

CaseChat Overview and Summary

The case of Tawhidi v Awad involved a dispute between Mohammed Tawhidi and Moustafa Awad, with the primary issues being defamation and assault. The matter was heard in the Supreme Court of Victoria. Tawhidi alleged that Awad had defamed him through various online publications, including posts on social media platforms and a blog. Tawhidi further asserted that the words used by Awad conveyed a threat of harmful or offensive contact, constituting common law assault. Awad defended the actions by claiming that his statements were based on honest opinion, were of trivial nature, and fell within the ambit of qualified privilege.

The court was tasked with determining whether the pleaded meanings conveyed by Awad's online publications were defamatory and whether the words used conveyed a threat of harmful or offensive contact. The court had to ascertain whether Awad's opinion was based on proper material and whether the material appeared or was apparent to the readers. Additionally, the court examined the credibility of Awad and whether the publications were trivial. For the assault claim, the court needed to evaluate if the words used conveyed a threat that created an apprehension of immediate or imminent harmful or offensive contact, and whether such apprehension was reasonable.

In its judgment, the court found that the defamatory meanings pleaded by Tawhidi were indeed conveyed by Awad's online publications. The court determined that Awad's defence of honest opinion was not valid as it was not based on proper material. The court also found that the material was not trivial and did not qualify for the defence of triviality. Regarding the assault claim, the court held that the words used by Awad did not convey a threat that created an apprehension of immediate or imminent harmful or offensive contact. The court dismissed both the defamation and assault claims. The court awarded Tawhidi nominal damages for the defamation claim and dismissed the claim for aggravated damages and any other relief sought.

Orders