Thunder Studios Inc (California) v Kazal (No 12)

[2022] FCA 110

FEDERAL COURT OF AUSTRALIA

Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110    

File number(s):

NSD 850 of 2014

Judgment of:

RARES J

Date of judgment:

18 February 2022

Catchwords:

 DEFAMATION – whether defamatory imputations conveyed – whether matters complained of identified unnamed corporate applicant – where applicant company was alter ego of individual applicant named in matters complained of – whether corporate applicant with less than 10 employees at time of publication of matter complained of able to commence proceedings in defamation under s 9 of Defamation Act 2005 (NSW)

DAMAGES – where respondents have no filed defence – where respondents can raise matters in mitigation of damages – where reputation particularly important in applicant’s industry – where industry practice is to google potential business associates – where defamatory publication and conduct occurred both in Australia and the United States and laws of each jurisdiction are not the same – whether defamatory publication and conduct in the United States protected by First Amendment to the Constitution of the United States able to be taken into account in assessment of damages – where United States Court found that respondents’ conduct was constitutionally protected free speech

PRACTICE AND PROCEDURE – where respondents did not have a defence – where at trial respondents can raise matters in mitigation of damages

EVIDENCE – whether evidence of foreign judgment admissible under s 91 of Evidence Act 1995 (Cth) – where foreign judgment not used to establish truth of facts in issue – whether foreign judgment relevant or admissible to prove what foreign Court said about factual dispute it resolved and reasoning process to arrive at findings

Legislation:

Australian Consumer Law s 18

Competition and Consumer Act 2010 (Cth) Sch 2

Australian Consumer Law (NSW) s 18

Evidence Act 1995 (Cth) ss 91, 136, 140 and 175

Defamation Act 2005 (NSW) ss 9, 25, 26, 29, 30, 34, 35, 36 and 38

Fair Trading Act 1987 (NSW) s 28

Independent Commission Against Corruption Act 1988 (NSW) ss 8 and 9

17 United States Code §504(c)(2)

California Civil Code §1708.7

Constitution of the United States First Amendment

Digital Millenium Copyright Act (US)

Securities Exchange Act of 1934 (US)

Cases cited:

ALDI Foods Pty Ltd v Transport Workers’ Union of Australia (2020) 282 FCR 174

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Ballina Shire Council v Ringland (1994) 33 NSWLR 680

Broome v Cassell & Co Ltd [1972] AC 1027

Chau v Australian Broadcasting Corporation (2021) 386 ALR 36

Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36

Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86

David Syme & Co v Canavan (1918) 25 CLR 234

Fairfax Media Publications Pty Ltd v Voller (2021) 392 ALR 540

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186

Google Inc v Duffy (2017) 129 SASR 304

Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31

Houghton v Arms (2006) 225 CLR 553

Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821

In the matter of Emergent Capital Limited 2011 (2) CILR 329

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346

Jones v Dunkel (1959) 101 CLR 298

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90

Kazal v Thunder Studios Inc (California) [2017] FCA 238

Kazal v Thunder Studios Inc (California) [2018] FCA 593

KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Loveday v Sun Newspapers Ltd (1938) 59 CLR 503

Madden v Seafolly Pty Ltd (2014) 313 ALR 1

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632

Nationwide News Pty Ltd v Rush (2020) 380 ALR 432

Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257

Praed v Graham (1889) 24 QBD 53

Ratcliffe v Evans [1892] 2 QB 524

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

Simon v Lyder [2020] AC 650

Stocker v Stocker [2020] AC 593

Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574

Thunder Studios Inc (California) v Kazal (No 10) [2020] FCA 1636

Thunder Studios Inc (California) v Kazal (No 11) [2020] FCA 1656

Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202

Thunder Studios Inc (California) v Kazal (No 3) [2017] FCA 1170

Thunder Studios Inc (California) v Kazal (No 4) [2017] FCA 1571

Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572

Thunder Studios Inc (California) v Kazal (No 6) (2017) 356 ALR 238

Thunder Studios Inc (California) v Kazal (No 6) [2017] FCA 1573

Thunder Studios Inc (California) v Kazal (No 7) [2018] FCA 996

Thunder Studios Inc (California) v Kazal (No 8) [2018] FCA 1995

Thunder Studios Inc (California) v Kazal (No 9) [2020] FCA 846

Thunder Studios Inc (California) v Kazal [2016] FCA 1598

Thunder Studios Inc v Kazal 13F. 4^th 736 (2021)

Triggell v Pheeney (1951) 82 CLR 497

Trkulja v Google LLC (2018) 263 CLR 149

Webb v Bloch (1928) 41 CLR 331

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

366

Date of hearing:

19 – 26 October 2020, 28 October 2020

Counsel for the Applicants:

Mr P Gray SC and Mr M Polden

Solicitor for the Applicants:

Russell Kennedy Lawyers

Counsel for the Respondents:

Ms G Schoff QC an Ms H Jager

Solicitor for the Respondents:

HWL Ebsworth Lawyers

ORDERS

NSD 850 of 2014

BETWEEN:

THUNDER STUDIOS INC (CALIFORNIA)

First Applicant

RODRIC MARC DAVID

Second Applicant

AND:

CHARIF KAZAL

First Respondent

ADAM KAZAL

Second Respondent

ORDER MADE BY:	RARES J
DATE OF ORDER:	18 FEBRUARY 2022

THE COURT ORDERS THAT:

1.On or before 25 February 2022 the parties agree and file the form of orders including injunctions necessary to give effect to the reasons for judgment delivered on 18 February 2022 and in the event of disagreement file such form of orders noting any disagreements in mark up together with written submissions limited to two pages each.

2.The proceeding be stood over to 28 February 2022 for the making of final orders.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE PROCEDURAL HISTORY	[6]
PRINCIPLES – DEFAMATORY PUBLICATIONS	[24]
THE MATTERS COMPLAINED OF	[27]
The landing page	[27]
The imputations that the landing page is alleged to convey	[48]
The parties’ submissions on imputations conveyed by the landing page	[51]
Identification – principles	[53]
The respondents’ submissions on identification	[55]
Identification – consideration	[56]
Consideration – were the disputed imputations conveyed?	[63]
Imputation 6(a): Mr David is a corporate criminal, who ran away to California after being convicted of breach of fiduciary duty.	[64]
Imputation 7(a): Thunder is run by a corporate criminal, who ran away to California after being convicted of breach of fiduciary duty.	[64]
Imputation 6(c): Mr David was convicted of breach of fiduciary duty as a result of not fulfilling his partnership obligations to the Kazal family.	[66]
Imputation 7(c): Thunder is run by Mr David, who was convicted of breach of fiduciary duty as a result of not fulfilling his partnership obligations to the Kazal family.	[66]
Imputation 6(d): Mr David is so lacking in integrity that he paid the journalist Linton Besser to publish deliberately invented lies in the Sydney Morning Herald about the Kazal family and their business dealings.	[67]
Imputation 7(d): Thunder is run by Mr David, who is so lacking in integrity that he paid the journalist Linton Besser to publish deliberately invented lies in the Sydney Morning Herald about the Kazal family and their business dealings.	[67]
Imputation 6(e): Anyone doing business with Mr David runs the risk of physical injury if they do not go along with him.	[70]
Imputation 7(e): Anyone doing business with Thunder runs the risk of physical injury.	[70]
Imputation 6(f): Mr David paid the journalist Linton Besser to smear the Kazal family in an attempt to cover up his own criminal theft.	[72]
Imputation 7(f): Thunder is run by a person who paid the journalist Linton Besser to smear the Kazal family in an attempt to cover up his own criminal theft.	[72]
THE SECOND MATTER COMPLAINED OF – THE INTRO ARTICLE	[73]
The imputations that the Intro article is alleged to convey	[79]
The parties’ submissions on whether the Intro article conveyed imputations 9(a)–(j) and 10(a)–(j)	[81]
Imputations 9(a) to (e) and 10(a) to (e)	[83]
Imputation 9(f): Mr David was responsible for the children of Charif Kazal and each of his brothers being bullied at school and at sporting activities, because he paid Linton Besser to publish unwarranted attacks upon members of the Kazal family for having sought justice against him through the courts.	[84]
Imputation 10(f): Thunder is run by a corporate criminal who was responsible for the children of Charif Kazal and each of his brothers being bullied targeted at school and at sporting activities, because he paid Linton Besser to publish unwarranted attacks upon members of the Kazal family for having sought justice against him through the courts.	[84]
Imputation 9(g): Mr David attempted to pervert the course of justice, by threatening Charif Kazal and each of his brothers and their business, because the Kazal family sought justice through the courts.	[86]
Imputation 10(g): Thunder is run by a corporate criminal who attempted to pervert the course of justice, by threatening Charif Kazal and each of his brothers and their business, because the Kazal family sought justice through the courts.	[86]
Imputation 9(i): Mr David paid the reporter Linton Besser to lie about the Kazal family and their business dealings.	[89]
Imputation 10(i): Thunder is run by a corporate criminal who paid the reporter Linton Besser to lie about the Kazal family and their business dealings.	[89]
Imputation 9(j): Mr David paid the journalist Linton Besser to smear the Kazal family, in an attempt to cover up his own corporate fraud and theft.	[91]
Imputation 10(j): Thunder is run by a corporate criminal, Rodric David, who paid the the reporter Linton Besser to smear the Kazal family in an attempt to cover up his own corporate fraud and theft.	[91]
THE TWEETS	[93]
How Charif and Adam used their Twitter accounts	[96]
Issues raised in respect of mitigation	[104]
BACKGROUND	[105]
Mr David	[105]
Thunder	[107]
The previous relationship between Mr David and the Kazals	[109]
Mr David’s detention in the UAE	[118]
The next stage in the Cayman Island proceeding	[124]
The ICAC proceeding	[127]
The decision of Jones J	[134]
Later events	[138]
The Bad company Article	[142]
The aftermath of the Bad company article	[151]
The impact of the publication of the matters complained of on Mr and Mrs David	[156]
The Westside dealing	[175]
The LA Biz and backstage posts	[179]
Commencement of this proceeding	[189]
The Steven Rockefeller encounter	[198]
The quiet before the storm	[199]
The 2016 activity on the Kazal website	[205]
Litigation in the United States	[210]
The events of late October and November 2016	[216]
THE REPUTATION WITNESSES	[253]
Mr Panos’ evidence	[253]
Mr Nami’s evidence	[260]
Mr Hammond’s evidence	[261]
REMEDIES	[273]
The United States District Court jury trial and Court of Appeals decision	[273]
The respondents’ submissions	[277]
The claim under s 18 of the ACL – consideration	[293]
The claim in injurious falsehood – consideration	[298]
Did Mr David and Thunder suffer “special damage”?	[310]
Assessment of damages – principles and consideration	[320]
Aggravated damages	[346]
Injunctions	[365]
CONCLUSION	[366]

REASONS FOR JUDGMENT

RARES J:

1. Rodric David, the second applicant, is an Australian businessman.  At some time before he and his family left Australia to live in Los Angeles and establish Thunder Studios Inc (California), the first applicant, he entered into a business relationship with members of the Kazal family that turned toxic. 

2. The respondents, Charif and Adam Kazal, are two of eight brothers in the Kazal family (I will refer to the various brothers by their first names in these reasons for simplicity of reference rather than writing their first and surnames).

3. Mr David and Thunder claim that Charif and Adam made two ongoing internet publications on a website called the Kazal Family Story located at (the Kazal website) from about June 2013 that defamed them, and also amounted to injurious falsehoods about them. They also claim that each of Charif and Adam engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law (ACL) in Sch 2 the Competition and Consumer Act 2010 (Cth) by publishing from about May 2013, thousands of tweets on his respective Twitter account that purport to be a newsfeed offering what appears to be a link to a headline and news story, but which takes anyone who clicks on the bitlink to the Kazal website instead.

4. Mr David and Thunder contend that the publications and tweets are false and that Charif and Adam have used them, and various other behaviours to make Mr David’s, his wife’s  and family’s lives a misery, driving them from their home in Sydney to seek, unsuccessfully, an escape and another life in Los Angeles.

5. Neither Charif nor Adam currently has any filed defence to the applicants’ claims because of the circumstances that I will describe below.  After summarising the procedural history, I will consider, first, whether the matters complained of conveyed the imputations and or representations that each of Mr David and Thunder alleged, secondly, the factual background and, thirdly, what relief, if any, should be awarded to Mr David and Thunder.

   THE PROCEDURAL HISTORY

6. On 15 August 2014, the applicants commenced this proceeding by filing an originating application and statement of claim.  On 13 May 2015, the applicants filed an amended statement of claim and, following an unsuccessful mediation, Charif filed his defence on 21 May 2015.  The applicants filed their reply to Charif’s defence on 7 August 2015.  On 17 December 2015, I granted leave to Charif to file an amended defence, which he did on 18 December 2015.  Adam never filed a defence.  The applicants and Charif each filed proposed statements of agreed facts on 21 December 2015 and 18 February 2016 respectively.   

7. On 4 November 2016, the applicants sought and obtained ex parte relief from the duty judge that enjoined the further publication of a variety of allegedly defamatory matters of and concerning Mr David.  The application for continuation of the injunctive relief granted on that day was listed for hearing before me, as the docket judge, on 11 November 2016.  However, on 11 November 2016 the parties agreed consent orders which specified that, should Adam refuse or neglect to do any act within the time specified in the orders I made that for doing the act, or disobeyed those orders by doing an act that the orders required him not to do, he would be liable to imprisonment and sequestration of property or other punishment (the 11 November 2016 orders). 

8. Adam immediately set about breaching the 11 November 2016 orders which are set out in Thunder Studios Inc (California) v Kazal [2016] FCA 1598 at [12] and in annexure A to those reasons. Those reasons contained my findings following the hearing on 9 and 21 December 2016 in respect of the statement of charge of contempt of court brought by the applicants that alleged that Adam had contravened the 11 November 2016 orders in multiple respects and had made two other publications in late October 2016 that were intended to influence Mr David and expose him to the risk of public prejudgment of the issues or merits of this proceeding.

9. I found Adam guilty of contempt of court in respect of 6 charges: Thunder [2016] FCA 1598; and, on 27 February 2017, I sentenced him to serve terms of imprisonment for those contempts totalling 18 months, and ordered that he pay the applicants’ costs of the contempt application on an indemnity basis (the 27 February 2017 orders): Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202. On 10 March 2017, Katzmann J rejected Adam’s application to stay the 27 February 2017 orders and to release him from gaol pending the determination of his appeal from the convictions and sentence that I had imposed. Her Honour expedited the hearing of the appeal: Kazal v Thunder Studios Inc (California) [2017] FCA 238.

10. On 6 April 2017, Besanko, Wigney and Bromwich JJ heard Adam’s appeal and reserved their decision.

11. On 25 May 2017, Charif filed a cross-claim against Mr David which sought, amongst other things, aggravated damages for the allegedly defamatory publication by Mr David of words and images on a website, called “Kazal Family Truth”, that Mr David allegedly operated and administered.

12. On 31 July 2017, Besanko, Wigney and Bromwich JJ decided Adam’s appeal, set aside two of Adam’s convictions and reduced the total term of imprisonment to 15 months.  The Full Court also ordered Adam to pay Mr David’s and Thunder’s costs on an indemnity basis: Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90. Relevantly, the Full Court upheld the following convictions (on charges 3, 5, 8 and 9), namely that Adam was guilty of:

    (a)breaching orders 1 and 3 of the orders made on 11 November 2016 (the 11 November orders) by republishing, after 11 November 2016, each of the 22 posts in exhibit WM2 that first appeared at or about the date and time that each post respectively records as that of its posting, between 11 and 21 November 2016 on the website at in that the second respondent caused to be displayed on one or more vans in O’Connell Street, Sydney on 18 and 22 November 2016 words and images that directed readers thereof to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

    (b)breaching orders 1 and 3 of the 11 November orders by republishing, after 11 November 2016, each of the 22 posts by including in the seven tweets that he published and displayed on 15, 16, 17, 18, 19, 20 and 21 November 2016 on his Twitter account containing copies of emails that he had addressed to Kate McClymont, words and images that directed readers of the seven tweets to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

    (c)making public statements between 28 October 2016 and 11 November 2016 in that he published on his Twitter account:

    (i)on 28 October 2016 a tweet that reproduced his email a copy of which was annexed and marked “D” to the 11 November 2016 orders (the 28 October publication);

    (ii)on 31 October 2016 a tweet that reproduced his email a copy of which was annexed and marked “B” to the 11 November 2016 orders (the 31 October publication);

    each being a statement that was intended and calculated to influence a party, being the second applicant, and to expose him to the risk of public prejudgment of the issues or merits of these proceeding;

    (d)      making public statements after 11 November 2016 being:

    (i)each of the 28 October and 31 October publications;

    (ii)the 22 posts;

    (iii)the seven tweets;

    (iv)the republication of one or more of the 22 posts by display and publication of the words and images that he caused to be made on one or more vans in O’Connell Street, Sydney on 18 and 22 November 2016 that directed readers thereof to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

    each being a statement that was intended and calculated to influence a party, being the second applicant, and to expose him to the risk of public prejudgment of the issues or merits of these proceedings.

1. On 18 August 2017, I heard Adam’s interlocutory applications filed on 16 June 2017 and 28 June 2017 respectively seeking, first, leave to file a defence out of time under r 1.39 of the Federal Court Rules 2011 (that time having elapsed well over two years previously) and, secondly, to set aside four subpoenas that the applicants had served on third persons.  Adam was then in prison and did not seek to purge his contempt, express any contrition, or explain his conduct.  I dismissed both applications: Thunder Studios Inc (California) v Kazal (No 3) [2017] FCA 1170. I also found (at [27]) that it was not:

   appropriate to permit him, as a contemnor, to engage further in this litigation and subject his adversaries, the applicants, to further expense in circumstances where it is apparent that he has carefully structured his affairs so that, although very well resourced to afford legal representation and a comfortable lifestyle for himself and his family, he has no apparent assets that he has been willing to disclose to his trustee in bankruptcy in his statement of affairs or to reveal where or how he will find the money to pay the already outstanding significant costs orders. He has demonstrated no respect for the orders of the Court or its authority.

2. On 7 September 2017, following Charif’s failure to comply with a second order that he provide verified, substantive answers to certain interrogatories, I ordered that he file and serve verified answers to those interrogatories on or before 4:00pm on 15 September 2017 and that, in default of compliance with that order, his defence be struck out (the 7 September 2017 orders).  As Charif did not file and serve his answers by the time and date specified, his defence was struck out by virtue of the self-executing 7 September 2017 order: see Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572 at [5].

3. On 9 October 2017, Mr David filed his defence to Charif’s cross-claim. He denied publishing the matter complained of in the cross-claim, and alternatively denied that it was capable of conveying or did convey any of the pleaded imputations, or of being defamatory of Charif. Mr David also raised defences of substantial truth, qualified privilege, contextual truth and fair report pursuant to the then form of ss 25, 26, 29 and 30 of the Defamation Act 2005 (NSW) and pleaded particulars in mitigation of damage.

4. On 4 and 8 December 2017, I heard an application dated 3 October 2017 filed by a journalist, Linton Besser, and his then employer, Fairfax Media Publications Pty Ltd, to set aside subpoenas for production that Charif had caused to be issued to each of them.  I found that to require Mr Besser and Fairfax to comply with the subpoenas would be oppressive, and for that reason set them aside: Thunder Studios Inc (California) v Kazal (No 4) [2017] FCA 1571.

5. On 8 December 2017, I heard and rejected an application that Charif had filed in Court on 4 December 2017 for an extension of time so as to rectify the effect of his default in complying with the 7 September 2017 orders which had caused the striking out of his defence (see [14] above): Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572. Bromwich J rejected Charif’s application for leave to appeal from Kazal (No 5) [2017] FCA 1572: Kazal v Thunder Studios Inc (California) [2018] FCA 593.

6. Thus, by December 2017 neither Charif nor Adam had, or could rely on, a defence to the statement of claim.

7. On 15 December 2017, I heard and rejected Adam’s application pursuant to r 42.22 that he be discharged from his term of imprisonment before its end: Thunder Studios Inc (California) v Kazal (No 6) (2017) 356 ALR 238.

8. On 8 June 2018, I heard Charif and Adam’s application dated 5 June 2018 that I recuse myself from further hearing the proceeding on the basis of the procedural history detailed above, and in particular my findings in Thunder [2016] FCA 1598, Thunder (No 2) [2017] FCA 202, Thunder (No 3) [2017] FCA 1170, Thunder (No 5) [2017] FCA 1572 and Thunder (No 6) [2017] FCA 1573. I rejected that application: Thunder Studios Inc (California) v Kazal (No 7) [2018] FCA 996.

9. On 7 August 2018, I granted Charif leave to further amend his cross-claim by joining Thunder as the second cross-respondent, and heard yet another interlocutory application, brought this time by the applicants, who sought that, first, the issue of whether one or both of Charif and Adam was a publisher of the matter complained of in the cross-claim be heard separately and before all other issues in the cross-claim under r 30.01 and, secondly, Charif provide security for costs in respect of the cross-claim.  I rejected the applicants’ application for a separate trial, but ordered that Charif give security for the payment of costs that may be awarded against him in the cross-claim: Thunder Studios Inc (California) v Kazal (No 8) [2018] FCA 1995.

10. After nearly two years in which the parties appear to have let sleeping dogs lie, on 22 May 2020 I heard Charif and Adam’s application that the proceeding be stayed under r 30.11, pending the determination of two other proceedings docketed to Perram J or, alternatively, this proceeding be transferred to his Honour’s docket.  The other proceedings involved persons, including Mr David, who featured in the defunct business relationship between him and members of the Kazal family which are part of the background, but separate to the matters complained of here.  Those proceedings were, first, one brought by KTC, a Cayman Islands company controlled by Charif and other members of his family against Mr David and others, to which I will return, and, secondly, one brought by Re.Group Pty Limited and David Singh against Adam, Charif and Tawfik Elgazzarr.  I rejected that application: Thunder Studios Inc (California) v Kazal (No 9) [2020] FCA 846. I noted (at [2]–[3]) that the KTC proceeding raised:

    issues against solicitors who acted for Mr David and his company, RAAL Limited, in 2010 in relation to a commercial transaction that spawned a farrago of litigation across the world between Mr David, Mr Singh and companies that they control, on the one hand, and members of the Kazal family and companies that they control, on the other. The issues concerning the solicitors are unrelated to the present question before me.

    Subsequently to the events of 2010, Mr David incorporated [Thunder]. He and Thunder have been embroiled in litigation with various members of the Kazal family and KTC in Australia, the Cayman Islands, the United Arab Emirates, the United States of America and possibly elsewhere since at least 2010.

11. The final hearing of this proceeding commenced on 19 October 2020 and concluded on 28 October 2020.  In the course of the hearing, I delivered two ex tempore judgments.  The first related to the respondents’ proposed particulars relied on in mitigation dated 22 October 2020, that resulted in much of the first paragraph of those particulars being struck out: Thunder Studios Inc (California) v Kazal (No 10) [2020] FCA 1636. The second arose when Charif made an oral application on the sixth day of the trial that he be allowed to discontinue his cross-claim. I rejected that application and, when Charif elected to call no evidence, I entered a verdict and judgment for Mr David and Thunder on the cross-claim and dismissed it with costs on an indemnity basis: Thunder Studios Inc (California) v Kazal (No 11) [2020] FCA 1656.

    PRINCIPLES – DEFAMATORY PUBLICATIONS

12. I discussed the principles that apply in the determination of whether a publication conveys an imputation and, if it does, whether that imputation is defamatory in Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36 at 45–48 [31]–[38], albeit in the context of a television program.

13. Here, the ordinary reasonable reader of the two internet publications and tweets will be a person who uses the internet or social media as an ordinary member of the community now does.  This reader would have read and understood each of the matters complained of in the way that Gleeson CJ, McHugh, Gummow and Heydon JJ described in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at 190 [10]–[12], namely:

    In determining what reasonable persons could understand the words complained of to mean, the court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd:[[1964] AC 234 at 258]

    The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

    Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, [[1964]] AC at 277] that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said: [[1964] AC at 285]

    It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

    A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. [Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293] If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance.

    (emphasis added)

14. The ordinary reasonable reader would understand the matters complained of in the same way as Brennan J (with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed) explained in Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505–506. The reader would read each publication with the understanding that ordinary and reasonable members of society, using their social and moral perspective, would read a publication of that nature. The reader has a wide latitude to understand imprecise, ambiguous or loose language or expression in a publication (including through the visual presentation of matters) as imputing a meaning adverse to its subject: Trkulja v Google LLC (2018) 263 CLR 149 at 160–161 [32] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. Each matter complained of is in a permanent form so that the reader can reread or go back over it to check or revisit some part that he or she may not have absorbed or wishes to check, as with a physical document such as a print newspaper, pamphlet or book: see too Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165–167 per Hunt CJ at CL with whom Mason P and Handley JA agreed; Stocker v Stocker [2020] AC 593 at 605 [37]–[38] per Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin JJSC agreed).

    THE MATTERS COMPLAINED OF

    The landing page

15. The first matter complained of consists of screenshots of a webpage (which I infer is the landing page) from the Kazal website as set out below. 

16. I will consider whether the landing page conveyed any of the pleaded imputations about Mr David and Thunder before following the same process in respect of the second matter complained of (the Intro article).

17. The first screenshot (shot A1) has a banner “Kazal Family story”, which also appears in the next three screenshots and “Know the truth” (which is in the banner at the top, not clearly visible).  Unfortunately, the quality of the screenshots is far from perfect.  The parties agreed that the orange parts are in fact red in the internet version and online, I infer, the text is legible.  The handwritten numbers in circles are not part of the website but are reference numbers to which I will refer as “par x”.  Shot A1 is below:

18. The individual pictured in the three photographs in shot A1 is Mr David.  For some reason, possibly a mistake, the caption in par 2 “RipOff 101 with the Corporate Thief John David” (emphasis added) is a reference to Mr David’s father, John David.  The other caption in par 4 is “Rodric David Biography – ‘The Great Pretender’”, which is a hyperlink to par 11 in the landing page (see [36] below).

19. The second screenshot is set out below (shot A2).

20. The caption (par 6) below the street sign reads “In business with Rodric David, an Australian living in the USA?” and is a hyperlink to par 16 in the landing page.

21. The third screenshot below (shot A3) has a sinister looking image of a masked man whose hand is reaching out of the screen.

22. The caption (par 10) “Rodric David is a deft hand at character assassination, especially when he has so much corporate…”, which is a hyperlink to par 19.  The fourth screenshot below (shot A4) has a graphic device entitled “Failure Types”:

23. The caption (par 8) “Another hopeless act by the corporate thief Rodric David” is a hyperlink to par 22.  Mr David’s photograph appears at the high point of the Perm[anent] axis of the graph of arrows from ‘harmless’ to ‘catastrophic’ under the caption “Rodric David The Corporate Thief” next to his photograph.

24. The fifth screenshot (shot A5) contains pars 11, 16, 19 and 22 which are the landing pages for the hyperlinks to those paragraphs from shots A1 and A2:

25. On the right hand side of shot A5 are further hyperlinks (par 26 links to par 11, par 27 to par 16, par 28 to par 19).  Each of the passages of text below the hyperlinked headings in pars 11, 16, 19 and 22 is introductory to another, presumably longer, passage of text on a subsequent webpage not in evidence.  However, the passages have a common theme that disparages Mr David.  For example, par 15 begins by referring to Mr David’s biography on his blog and tells the reader that this glossed “adroitly… over the truth behind his alleged successes Con artists exist because the world is full of gullible people who believe everything they hear or read because it is very, very…” and is followed by a hyperlink box entitled “read more”. 

26. The heading of par 16 “In business with Rodric David, an Australian now living in the USA?” introduces par 18, which reads:

    If you are currently doing business with Rodric David, or even thinking about it, you need to visit our website – – to learn just how Mr David conducts business.  Our so-called partnership experience with Mr David ended in court proceedings that found him guilty of a Breach of Fiduciary Duty exposing his

    read more

27. Charif’s photo appears opposite at par 25.

28. The text of par 21 seeks to explain the reason why the publisher developed the Kazal website, namely “to provide the public with the other side of the story so that they can come to an understanding of what was actually behind the smear campaign conducted in The Sydney Morning Herald (SMH).  It explains how the journalist, Linton Besser, aided and abetted Rodric David in his mission to destroy the reputation…”.

29. The next screen shot is below (shot A6):

30. The person depicted between the thumb and index fingers of the hand in par 30 that is carrying a bag over his shoulder is Mr David.  The text refers to and provides a link to a letter that Mr David’s lawyer wrote seeking that the Kazal website’s publisher “Cease and Desist and to Retract Libel”.

31. Next, par 32 asserted that the SMH had promised to “correct the record” and par 34 sets out the opening part of an email that Charif had sent on 16 July 2013 complaining about Mr Besser allegedly having “written a complete fiction…”.  Underneath this are pars 35–37, which set out the opening part of an earlier email that Charif had sent to Mr Besser on 5 July 2013 against a caption “TRUTH OR DARE”.

32. The seventh and last screenshot (shot A7) comprising the first matter complained of is below (and, as I noted at [29] above, the orange in the reproduction below is in fact red in the on-screen original):

33. The first part of shot A7 is par 40, which is a red box that declares “WARNING” that contains a picture of Mr David with the caption “The Corporate Thief Rodric David”.  The text of par 41 reads:

    If you are currently involved in a business venture with Rodric David or are contemplating doing business with him, it can be injurious to your health.

    Based on Experience, our advice is to RUN the other way… and fast!

34. Next, par 42 links both to the narrative of pars 21, 32–34, 35–37 and to the Intro article, which consists of the full text of the hyperlink from the heading in par 42 of the landing page, “Intro – How the Mercenary Journalist Linton Besser Aided & Abetted the Corporate Thief Rodric David”.  The text in par 44 reads:

    The story you are about to read is one of deliberate character assassination and how members of my family were, and are currently, portrayed in the Sydney Morning Herald (SMH) newspaper and on its digital website.  Both the newspaper and digital website are owned by Fairfax Media Limited, the leading multi-platform media company in Australasia.  It…

    READ MORE

35. Finally, pars 45–47 comprise the beginning chapter of the Kazal Family Story, with a picture of Charif in par 46.

    The imputations that the landing page is alleged to convey

36. Mr David alleged in par 6 of the statement of claim that the landing page conveyed the following six representations or imputations, namely (those in pars 6(a), (c), d(ii), (f), (e) and (h) which I have renumbered below for ease of reference):

    6(a)Mr David is a corporate criminal who ran away to California after being convicted of breach of fiduciary duty,

    6(b)Mr David is a corporate thief,

    6(c)Mr David was convicted of breach of fiduciary duty as a result of not fulfilling his partnership obligations to the Kazal family,

    6(d)Mr David is so lacking in integrity that he paid the journalist Linton Besser to publish deliberately invented lies in the Sydney Morning Herald about the Kazal family and their business dealings,

    6(e)Anyone doing business with Mr David runs the risk of physical injury if they do not go along with him, and

    6(f)Mr David paid the journalist Linton Besser to smear the Kazal family in an attempt to cover up his own criminal theft.

37. Thunder alleged that the landing page conveyed six similar imputations, namely (in pars 7(a), (c), (d)(ii), (e), (f) and (h) which I have also renumbered for ease of reference):

    7(a)Thunder is run by a corporate criminal, who ran away to California after being convicted of breach of fiduciary duty,

    7(b)Thunder is run by a corporate thief,

    7(c)Thunder is run by Mr David, who was convicted of breach of fiduciary duty as a result of not fulfilling his partnership obligations to the Kazal family,

    7(d)Thunder is run by Mr David, who is so lacking in integrity that he paid the journalist Linton Besser to publish deliberately invented lies in the Sydney Morning Herald about the Kazal family and their business dealings,

    7(e)Anyone doing business with Thunder runs the risk of physical injury, and

    7(f)Thunder is run by a person who paid the journalist Linton Besser to smear the Kazal family in an attempt to cover up his own criminal theft.

1. Thunder alleged that, although it was not named in the landing page or the Intro article, readers, who knew of Mr David’s association with it would identify it as, in effect, his company and thus as one of the subjects of the respective publication.  The persons whom the respondents had targeted as its audience were:

   (1)members of the business communities in New South Wales, Australia more generally, and the United States of America, including those with whom the applicants had done business or were presently engaged in negotiations,

   (2)readers of Charif’s posting on 30 May 2014 in backstage under an article published on 28 May 2014 entitled “Get $1 Million for Your LA Indie Film!” (the backstage post).

   (3)readers of Charif’s posting on 8 June 2014 in the Los Angeles Business Journal in its “LA Biz” section, under an article published on 6 June 2014 entitled “CEO Rodric David offering $1 million to indie film projects through Thunder Funder” (the LA Biz post),

   The parties’ submissions on imputations conveyed by the landing page

2. The applicants contended that the landing page conveyed imputations 6(a) and 7(a).  They argued that the image in par 30 of the outstretched hand with Mr David depicted as a thief dressed in black carrying a sack over his shoulder, in combination with the references to him being an Australian now living in California, conveyed that Mr David had “run away”.  They argued that the image depicted Mr David as an escaping thief carrying his loot.

3. The respondents argued that none of imputations 6 or 7 was conveyed, except for imputations 6(b) and 7(b).  They contended that the other sets of five imputations were strained, forced and “utterly unreasonable”, having no support or reference in the landing page.  They submitted that it contained no reference to any payment to Mr Besser or any other journalist and that the description of him as “mercenary” would be understood by the ordinary reasonable reader as the author’s perception of Mr Besser’s character, not that he was linked to Mr David.  They argued that there was no reference to physical injury, to anyone having “to go along” with Mr David, or to how or why Mr David came to live in California.  They contended that the red hand in par 43 and the warning of injury to health in pars 40 and 41 could not reasonably be understood to convey imputations 6(e) and 7(e).  Rather, the respondents submitted, the ordinary reasonable reader would understand from par 44 that the landing page was explaining how the Kazal family had been the victim of character assassination.

   Identification – principles

4. Where a person is not named in a publication that he, she or it alleges has defamed him, her or it, the plaintiff or applicant must prove that it was published to someone with knowledge of specific circumstances that would identify that person as its subject: Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86 at 89–91 per Jordan CJ, with whom Street J agreed (at 94), 92–93 per Davidson J. Jordan CJ applied what Isaacs J had held in David Syme & Co v Canavan (1918) 25 CLR 234 at 238 (Barton J at 237 used a similar test, while Rich J merely agreed). Isaacs J said that where the plaintiff is not specifically named in a publication, the test is whether it would lead persons acquainted with the plaintiff, reasonably in the circumstances, to believe that he, she or it was the person referred to in the publication.

5. In Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639–640, 642, Mason and Jacobs JJ (with whom Gibbs CJ and Stephen J agreed, as did Aickin J in obiter dicta at 645–646) held that a newspaper report that stated that a named individual had been made bankrupt and that he was the owner of a restaurant was capable of defaming, as insolvent, the unnamed company that owned the restaurant to persons who knew of the company’s ownership.  Mason and Jacobs JJ held that the publication could convey such an imputation in its natural and ordinary meaning to persons who knew that the company owned the restaurant, without the need to plead any innuendo.  They said that if the reader’s belief that a publication referred to a person, that it did not name, arose from, or was the product of, the natural and ordinary meaning of the matter complained of itself, then it was capable of being defamatory of that person.  They held that whether or not a publication does so is a question of fact: World Hosts 141 CLR at 642.

   The respondents’ submissions on identification

6. The respondents argued that the particulars of identification were incapable of enabling a reader of either the first or second matters complained of to identify Thunder as their subject.  They contended that this was not a case in which it could be inferred, or should be found, that the matters complained of were published to persons with knowledge of the extrinsic facts.  They submitted that the content of the matters complained of was personal to Mr David and concerned events that occurred before Thunder was incorporated or Mr David became involved with it.

   Identification – consideration

7. I reject the respondents’ argument that the landing page and the Intro article did not identify Thunder in its natural and ordinary meaning.  The landing page directed the reader’s attention expressly to the question posed in par 16, “In business with Rodric David, an Australian now living in the USA?”.  It made repeated references to Mr David’s alleged activities in business, including that he was “The Corporate Thief”.  The natural and ordinary meaning of the landing page included that what it conveyed about Mr David as an individual would also apply to any company in which he had a controlling or managing interest.  Thus, the formulation of imputations 7(b) to (f) that “Thunder is run by Mr David”, that substitute “Thunder” for him in the same sense as imputations 6(b) to (f) apply to Mr David personally, are meanings that the landing page would convey, in its natural and ordinary meaning, to a person who knew that Thunder was Mr David’s company or that he controlled it, even though Thunder was not named in that publication: World Hosts 141 CLR at 639–640, 642; see too Simon v Lyder [2020] AC 650 at 661–662 [25]–[27] per Lord Briggs JSC giving the opinion of the Judicial Committee (Lord Wilson, Lord Carnwath, Lady Black, Lady Arden JJSC and himself).

8. As I will elaborate below, I accept the evidence of Mike Hammond, a friend of Mr David, who read the first and second matters complained of.  I find that he understood each of them to refer to Thunder because he knew it was Mr David’s company.  He said that Thunder’s “reputation really was Rodric’s reputation” (see [271] below).  Indeed, Mr Hammond first drew Mr David’s attention to the Kazal website by sending him a text message or email with a link to it. 

9. Moreover, Charif’s posts, being the LA Biz post and the backstage post each appeared on the same webpage as the articles that named Mr David as owner of Thunder.  I describe Charif’s posts below at [181] and [183].  The headline of the LA Biz article was “CEO Rodric David offering $1 million to indie film projects through Thunder Funder”.  Mr David described LA Biz as “the number one business paper in Los Angeles”, with a status as a business newspaper similar to The Australian Financial Review in this country.

10. However, the respondents’ argument does not only fail on this level.  It is preposterous, given that Charif posted comments on 30 May 2014 and 8 June 2014 respectively on the Facebook walls of each of the LA Biz and backstage articles that were about Mr David’s project using his company, Thunder, that each began: “If you are currently doing business with Rodric David, or even thinking about it, you need to visit our website: [giving the hyperlink to the Kazal family story website] to learn just how Mr David conducts business”.

11. Charif’s comments in his posts advised the reader of the two business journal articles about Mr David and his company, Thunder, and implored the reader to visit the Kazal website where they could read the first and second matters complained of in the knowledge of the reader of the LA Biz and backstage articles that Thunder was Mr David’s company and that he ran it: see Simon [2020] AC at 661–662 [25]–[27].

12. Accordingly, the landing page, in its natural and ordinary meaning, and imputations 7(b), (c), (d), (e) and (f), were published of and concerning Thunder to readers who knew that Mr David owned or ran it, including Mr Hammond and readers of Charif’s posts on the Facebook pages of the LA Biz and backstage articles or who then either went to the Kazal website or, if he or she had visited it before, aggregated the two: cf Simon [2020] AC at 662 [26]–[27] per Lord Briggs JSC for Lord Wilson, Lord Carnwath, Lady Black, Lady Arden JJSC and himself. For the same reasons, such a reader of the Intro article would also have understood it to convey any imputations that it conveyed about Mr David, correspondingly about Thunder, namely imputations 10(f), (g), (h), (i) and (j).

13. Once an ordinary, reasonable reader knew that Mr David ran or owned Thunder, then the reader would have understood each of the landing page and the Intro article to have conveyed each of the corresponding imputations pleaded about Thunder that, below, I have found it to have conveyed about Mr David.

    Consideration – were the disputed imputations conveyed?

14. The landing page repeatedly describes Mr David as “the corporate thief” and takes the reader through a succession of vignettes that are incomplete but invite the reader to click on the link to the full version of that particular story.  The issue here, however, is whether the presentation of words and images in the first matter complained of conveys to the ordinary reasonable reader any of the meanings in the five sets of disputed imputations.

    Imputation 6(a): Mr David is a corporate criminal, who ran away to California after being convicted of breach of fiduciary duty.

    Imputation 7(a): Thunder is run by a corporate criminal, who ran away to California after being convicted of breach of fiduciary duty.

15. The first matter complained of relates that Mr David is “now living in California, USA” (pars 16, 24, 27 and 31) and suggests a connection between him and Sydney because of the references to him being an Australian now living in California (pars 16 and 27), articles in the SMH (pars 21, 32 and 44) and the Kazal family being successful in Sydney (par 47).  The reader is told in par 16 that Mr David is both “an Australian now living in the USA” and in par 18 that he was once in a partnership with the Sydney-based Kazal family that resulted in “court proceedings that found him guilty of breach of Fiduciary Duty exposing his…”.

16. In my opinion, the ordinary reasonable reader would not have understood the landing page to convey imputations 6(a) or 7(a).  That is because there is nothing in it to suggest that Mr David sought to escape or run away from either Sydney or the asserted conviction.  Rather, the thrust of the first matter complained of is that the reader should beware of Mr David, that he had “been found guilty of Breach of Fiduciary Duty” and that his present whereabouts are in California, where he is living openly and is ready to do business.  The reader would not be able, reasonably, to understand from the terms of the landing page why Mr David had moved to California.

    Imputation 6(c): Mr David was convicted of breach of fiduciary duty as a result of not fulfilling his partnership obligations to the Kazal family.

    Imputation 7(c): Thunder is run by Mr David, who was convicted of breach of fiduciary duty as a result of not fulfilling his partnership obligations to the Kazal family.

17. The ordinary reasonable reader would understand that imputation 6(c) was conveyed by par 18 of the landing page that stated that the Kazal family’s “so-called partnership with Mr David ended in court proceedings that found him guilty of a Breach of Fiduciary Duty”.  The reader would understand that the concept of “conviction” is a finding of criminal guilt in par 18.  The use of the word “guilty” in par 18 reinforced that meaning in the context of Mr David being named, repeatedly, as the “corporate thief” throughout the landing page.  The reader would understand theft is a criminal offence and, accordingly, that the statement in par 18 that Mr David had been “found guilty” meant that a court had convicted him of breach of fiduciary duty.

    Imputation 6(d): Mr David is so lacking in integrity that he paid the journalist Linton Besser to publish deliberately invented lies in the Sydney Morning Herald about the Kazal family and their business dealings.

    Imputation 7(d): Thunder is run by Mr David, who is so lacking in integrity that he paid the journalist Linton Besser to publish deliberately invented lies in the Sydney Morning Herald about the Kazal family and their business dealings.

18. The reader would understand, from pars 16 and 18, that Mr David had had business dealings with the Kazal family in their “so called partnership”, and that he lacked integrity because he had been “found guilty of a Breach of Fiduciary Duty”.  The ordinary reasonable reader would understand pars 19, 20, 21, 31(a), 42, 43 and 44 to convey that Mr Besser had “aided and abetted” Mr David in seeking to destroy the reputation of the Kazal family by “deliberate character assassination”.  The reader would understand pars 32, 33, 34, 35, 36 and 37 to convey that Mr Besser and the SMH published “a complete fiction” about the Kazal family in the context of the whole of the landing page.  The reader would be drawn to think that Mr David, the corporate thief, went about his character assassination of the Kazal family through enlisting Mr Besser and the SMH to publish what he (Mr David) must have known were fictions or falsehoods about them.  The reader would be led to think that Mr Besser and the SMH must also have known that those matters were untrue because, even after Charif had tried to inform them of his version of things, they lacked the integrity “to correct the record”.

19. Moreover, par 32 would suggest to the reader that the SMH had “promised to correct the record” by correcting Mr Besser’s “complete fiction”, that par 37 suggests he deliberately repeats.  The graphic image in par 43 is a red hand (in the online version) and accompanies the statement that Mr Besser is a “mercenary journalist”.  The natural and ordinary meaning of “mercenary” is of a person who works merely for money or other material reward (Oxford English Dictionary online; senses 1, 2(a) or “working or acting merely for gain” (Macquarie Dictionary online; sense 1).  These would suggest to the reader that Mr David orchestrated and paid for Mr Besser to engage in the deliberate character assassination of the Kazal family. 

20. The reader would apply the moral standards of the community in evaluating what the landing page was conveying about the type of person Mr David was in light of that conduct and conclude that, in so acting, he was lacking in integrity.  For these reasons, I am satisfied that imputation 6(d) was conveyed.

    Imputation 6(e): Anyone doing business with Mr David runs the risk of physical injury if they do not go along with him.

    Imputation 7(e): Anyone doing business with Thunder runs the risk of physical injury.

21. The ordinary reasonable reader would understand that the landing page was critical of Mr David as a person with whom to do business, not just because he was “the corporate thief”, but because of the matters that pars 11–18, 27, 39, 40 and 41 elaborate.  In particular, pars 40 and 41 are emphatic.  The reader is told that par 41 is a “WARNING” about Mr David, again characterised as “the corporate” thief.  The reader is told in terms that if he or she is, or is contemplating, doing business with Mr David, “[i]t can be injurious to your health.  Based on experience, our advice is to RUN the other way… and fast!”.  The reader would be drawn to understand that Mr David is not just a “corporate thief” but that he also can be a physical threat to persons with whom he is in business because of the potential injury to one’s health, based on the experience of the Kazal family.  That threat of physical injury, the reader would think, is additional to the financial risk to which he or she would be exposed in going into business with Mr David.  The reader would understand that he or she should “RUN the other way” because doing business with Mr David carried with it a danger to his or her physical safety, being an injury to the reader’s health or wellbeing.

22. Accordingly, I am satisfied that imputation 6(e) was conveyed.

    Imputation 6(f): Mr David paid the journalist Linton Besser to smear the Kazal family in an attempt to cover up his own criminal theft.

    Imputation 7(f): Thunder is run by a person who paid the journalist Linton Besser to smear the Kazal family in an attempt to cover up his own criminal theft.

23. The ordinary reasonable reader would be conscious of the matters that I discussed in considering whether imputation 6(d) was conveyed (see [67]–[68] above).  The reader would ask why was Mr David paying a mercenary journalist, namely, Mr Besser to engage in the character assassination of the Kazal Family in the SMH by publishing fictions.  The reader would reflect on the message in par 18 that, in fact, it was Mr David, not the Kazal family, whom a court “found” guilty of “Breach of Fiduciary Duty” and be drawn to the conclusion that the reason why Mr David paid Mr Besser for the character assassination was to cover up what Mr David had done as “the corporate thief”, namely, his “skulduggery” (as pars 19 and 31(a) describe).  Accordingly, the ordinary reasonable reader would understand the landing page to convey imputation 6(f).

    THE SECOND MATTER COMPLAINED OF – THE INTRO ARTICLE

24. The Intro article begins with the picture of the City of Los Angeles street sign on which the question “In business with Rodric David, an Australian now living in the USA?” is superimposed.  The headline presages “How the Mercenary Journalist Linton Besser Aided & Abetted the Corporate Thief Rodric David” against the caption “Charif Kazal” under par 1, and below his photo, brief biographical notes appear at par 24.

25. The opening paragraph (par 2) alerts the reader to what follows as being an account of “deliberate character assassination” in the portrayal of members of the Kazal family in The Sydney Morning Herald.  The reader is told that since 1 September 2010, the SMH and Fairfax’s website have published over 24 “well-constructed articles” that Mr Besser and Fairfax “carried out [as] this prolonged smear campaign… purely to assist Rodric David, the David family and their business interests” (par 3).  The reader “will finally discover the truth” on the Kazal website (par 4).  Charif tells the reader that Mr Besser initially set out to denigrate three members of his family, namely himself and his brothers, Tony and Karl, but the targets expanded to include his parents and, later, his pregnant wife (par 5).  The reader is given a definition of “defame” and then told that Mr Besser “clearly worked directly for and with Rodric David to frame the distorted content of his articles defaming my family to apply inordinate pressure on us during legal proceedings we had commenced” against Mr David in May 2010 in the United Arab Emirates (UAE) and later in the Cayman Islands.  The reader is told that the articles were planned to coincide with and influence steps in those two proceedings (par 7).  Mr Besser’s photograph is captioned with “The Mercenary Journalist” (par 8).  

26. The Intro article provides some biographical details about Mr David and his father, John (par 9).  It tells the reader that John David “openly advising us to drop our court cases against Rodric”, he (John David) would ensure that all the adverse media and attention towards the Kazal family would cease (par 10) and:

    We did not take up Mr David’s offer and the overall consequences of us seeking justice through the courts have been severe.  My brothers and I have been threatened, our business have been threatened, bullying of our children in school and sporting activities has occurred and continual stress is caused to all other family members awaiting the next unwarranted attack to be published in the Sydney Morning Herald against the family.

1. The Intro article described the UAE proceeding as being based on Mr David’s corporate fraud as well as his breach of fiduciary duty as a director of a company in which the Kazal family had a financial interest (par 12).  It tells the reader that Mr David “designed the media smear campaign” to destroy the Kazals’ credibility during critical stages of the two foreign legal proceedings.  It stated that he had annexed to his affidavit of 27 September 2010 in the Cayman Island proceeding nine articles published between 1 and 17 September 2010 and referred in the affidavit to negative publicity about the Kazals.  The article asserts that if that proceeding were dismissed swiftly, Mr David would benefit from “a much more rewarding business deal” of which the Kazal family was then ignorant.  It tells the reader that Mr David worked “closely” with Mr Besser to time the publications to “disguise secret financial deals of significant benefit to him”.  It also asserts that Mr David used his training as an actor, the media and other proceedings, including in the New South Wales Independent Commission Against Corruption (ICAC), to shift the focus away from his corporate fraud (par 15).

2. The Intro article informs the reader that the “deceptive attacking front page” publicity was “excruciating” and distracted the Kazal family’s focus from other important business matters (par 16).  Under the subheading “Power of the news media”, the reader is told about how news media can influence and manipulate public perception and how the adverse publicity affected the Kazals (pars 17 and 18).  The next subheading, “Truth will prevail”, introduces the reader to the purpose of the Kazal website, being to present “the other side of the story” so that the public will understand “what was actually behind the smear campaign conducted in the Sydney Morning Herald”.  The reader is told that the Kazal website would explain how Mr Besser aided and abetted Mr David “in his mission to destroy our family for financial gain” in the multi-million dollar range.  It asserts that Mr Besser only contacted the Kazal family for their responses as “impartiality pretences”, but, even then, nothing that they said was included in any of Mr Besser’s articles.  It tells the reader that every attempt that the Kazal family made to get The Sydney Morning Herald to report the story fairly “was summarily rebuffed” and:

   [t]hat is why my preference for a title for our heretofore unknown side of the story is “The Corporate Thief and The Mercenary Journalist” but then, that is just my opinion of a very appropriate headline.

3. The Intro article concludes with the promise that the Kazal family will continue to challenge openly “the abominable treatment” they had received from Mr David, Mr Besser, the newspaper and Fairfax “until we obtain justice” (pars 20–23).  The Intro article web page also contains links to other pages on the Kazal website (pars 23–25) like in the landing page.

   The imputations that the Intro article is alleged to convey

4. Mr David alleged that the Intro article, a copy of which is annexure B to these reasons, conveyed the following 10 representations or imputations, namely (those in pars 9(b)(i), (ii), (c), (d)(i), (ii), (f)–(j) of the statement of claim which I have renumbered below for ease of reference):

   9(a)anyone doing business with Mr David runs the risk of serious personal injury if they do not go along with him;

   9(b)anyone doing business with Mr David runs the risk of serious injury to their business if they do not go along with him;

   9(c)Mr David uses threats of violence to stand over business associates;

   9(d) Mr David threatened Charif and each of his brothers and their businesses with violence for seeking justice through the courts;

   9(e)alternatively to 9(d), Mr David threatened Charif and each of his brothers and their businesses with violence, if they continued to seek justice through the courts;

   9(f)Mr David was responsible for the children of Charif and each of his brothers being bullied at school and at sporting activities, because he paid Linton Besser to publish unwarranted attacks upon members of Kazal family for having sought justice against him through the courts;

   9(g)Mr David attempted to pervert the course of justice, by threatening Charif and each of his brothers and their business, because the Kazal family sought justice through the courts;

   9(h)Mr David committed corporate fraud in the United Arab Emirates;

   9(i)Mr David paid the reporter Linton Besser to lie about the Kazal family and their business dealings; and

   9(j)Mr David paid the journalist Linton Besser to smear the Kazal family, in an attempt to cover up his own corporate fraud and theft.

5. Thunder alleged that the Intro article conveyed 10 similar representations or imputations, namely (those in pars 10(b)(i), (ii), (c), (d)(i), (ii), (f)–(j) which I have renumbered below for ease of reference):

   10(a)anyone doing business with Thunder runs the risk of serious physical injury;

   10(b)anyone doing business with Thunder runs the risk of serious injury to their business;

   10(c) Thunder is run by a corporate criminal who uses threats of violence to stand over business associates;

   10(d) Thunder is run by a corporate criminal who threatened Charif and each of his brothers and their businesses with violence for seeking justice through the courts;

   10(e)alternatively to 10(d), Thunder is run by a corporate criminal who threatened Charif and each of his brothers and their businesses with violence if they continued to seek justice through the courts;

   10(f)Thunder is run by a corporate criminal who was responsible for the children of Charif and each of his brothers being bullied targeted at school and at sporting activities, because he paid Linton Besser to publish unwarranted attacks upon members of the Kazal family for having sought justice against him through the courts;

   10(g)Thunder is run by a corporate criminal who attempted to pervert the course of justice, by threatening Charif and each of his brothers and their business, because the Kazal family sought justice through the courts.

   10(h)Thunder is run by a person who committed corporate fraud in the United Arab Emirates;

   10(i)Thunder is run by a corporate criminal who paid the reporter Linton Besser to lie about the Kazal family and their business dealings; and

   10(j)Thunder is run by a corporate criminal, Rodric David, who paid the reporter Linton Besser to smear the Kazal family in an attempt to cover up his own corporate fraud and theft.

   The parties’ submissions on whether the Intro article conveyed imputations 9(a)–(j) and 10(a)–(j)

6. The applicants argued that the Intro article conveyed imputations 9(d) and (e) and 10(d) and (e) as alternatives.  They contended that imputations 9(a) to (e) and 10(a) to (e) were conveyed because pars 10 and 11 of the Intro article contained the suggestion of violence.  In particular, the applicants relied on par 11 which asserted that “My brothers and I have been threatened, our businesses have been threatened”.  They submitted that the ordinary reasonable reader would understand that those threats were of physical harm, particularly because of the asserted threat to Charif (as the apparent author) and his brothers.  They asked, rhetorically, what else could such a threat mean?  They argued that the balance of par 11 referred to separate threats to the Kazal family’s businesses and the bullying of their children at school so that the first “threatening” of Charif and his brothers must have been of a different character to the commercial effect of further newspaper articles on the Kazal family’s business and their stimulative effect as a source of bullying of the children.  The applicants contended that the Intro article created a tone and impression that Mr David was a dangerous enemy who had both power and influence, and whose threats had severe consequences beyond a mere smear campaign.

7. The respondents argued that none of imputations 9(f), (g), (i) or (j) and 10(f), (g), (i) or (j) was conveyed by the Intro article.  They contended that the Intro article made no reference to any payment being made to Mr Besser or any other journalist and could not be reasonably understood to convey an attempt to pervert the course of justice.  They accepted, however that imputation 9(h) was conveyed.

   Imputations 9(a) to (e) and 10(a) to (e)

8. I am of opinion that the ordinary reasonable reader of the Intro article would not have understood it to convey any of imputations 9(a) to (e) and 10(a) to (e) (the violence imputations).  That is because, read as a whole, the only threats that the Intro article suggests are ones that Mr David or his father, John David, made to continue the alleged “smear campaign” against the Kazal family and their business interests.  The reader would have understood that the adverse media articles had been the cause of the alleged bullying of the Kazal family’s children at school and that, likewise, the threats to Charif, his brothers and their business were that the media campaign would continue unless, as par 10 told the reader, the Kazal family dropped their court cases against Mr David.  This understanding would have been reinforced in the reader’s mind by what the last sentence of par 14 summed up as “typical of Rodric David’s modus operandi throughout our unfortunate business association”, namely, his alleged use of the media to smear the Kazal family and their businesses for his advantage.

   Imputation 9(f): Mr David was responsible for the children of Charif Kazal and each of his brothers being bullied at school and at sporting activities, because he paid Linton Besser to publish unwarranted attacks upon members of the Kazal family for having sought justice against him through the courts.

   Imputation 10(f): Thunder is run by a corporate criminal who was responsible for the children of Charif Kazal and each of his brothers being bullied targeted at school and at sporting activities, because he paid Linton Besser to publish unwarranted attacks upon members of the Kazal family for having sought justice against him through the courts.

9. I reject the respondents’ argument that nothing in the Intro article suggested that Mr David paid Mr Besser.  First, the headline (in par 1) describes Mr Besser as a “mercenary journalist”.  That was calculated to convey that Mr Besser was, in effect, a journalist who was not objective or impartial but one who would write a story to advance the side of the person, namely, Mr David, by whom he was paid to write it.  Secondly, the Intro article’s use of “aided and abetted” in linking Mr Besser to achieving Mr David’s ends conveyed that there was a nefarious association between what Mr Besser published and Mr David (pars 1 and 20).  Thirdly, the Intro article stated in terms that Mr Besser “clearly worked directly for and with” Mr David to benefit the latter’s cause in the UAE and Cayman Island proceedings (par 7).  It said that Mr David “designed the media smear campaign” (par 14) and that he and Mr Besser were “working closely” to time the attacks (par 15).  And it told the reader that the purpose of the campaign was “to bring inordinate pressure on the Kazal family” (par 7).  Fourthly, it stated that John David had advised the Kazal family to drop those proceedings so as to end the smear campaign.  That would suggest to the ordinary reasonable reader that Mr David and his father could control how Mr Besser “worked directly for and with” Mr David (pars 7 and 10).  Fifthly, pars 27 and 31 reinforced that Mr David was “a deft hand at character assassination, especially when he has so much corporate skulduggery to hide” and that the means of his character assassination was his employment of Mr Besser’s journalistic services.

10. The Intro article tells the reader that the consequence of Mr David’s mercenary, Mr Besser, writing the media smears of the Kazal family was that their children had been bullied at school.  That occurred after the Kazals did not capitulate to John David’s “advice” to drop their UAE and Cayman Island court proceedings (pars 10 and 11).  The reader would have concluded that the Intro article conveyed imputations 9(f) and 10(f).

    Imputation 9(g): Mr David attempted to pervert the course of justice, by threatening Charif Kazal and each of his brothers and their business, because the Kazal family sought justice through the courts.

    Imputation 10(g): Thunder is run by a corporate criminal who attempted to pervert the course of justice, by threatening Charif Kazal and each of his brothers and their business, because the Kazal family sought justice through the courts.

11. The Intro article told the reader that the purpose of the smear campaign was “to bring inordinate pressure on” the Kazal family during the UAE and Cayman Island proceedings (par 7) and that the campaign would stop if they dropped those proceedings (par 10).  It stated that each article “was carefully planned and published to coincide with and influence critical legal proceedings and court appearances” (par 7).  It told the readers that the Kazal family brought their proceedings because of Mr David’s corporate fraud and breach of fiduciary duty as a director of a company in which they both had a financial interest (par 12).  It stated that “another benefiting party also colluded with Mr David” (which the reader would have understood was someone working with Mr David) by annexing some of the articles in the smear campaign to an affidavit in the Cayman Island proceedings and that this “was obviously an attempt to influence the Judge’s decision on the case set before him” (par 14). 

12. The ordinary reasonable reader would have understood that such behaviour, embodied in John David’s “advice” to drop the two cases (par 10), was an attempt to pervert the course of justice by threatening the Kazal family that, unless they did so, Mr David would continue with the smear campaign and the damaging use of the published articles in the court proceedings.

13. I am satisfied that the Intro article conveyed imputations 9(g) and 10(g).

    Imputation 9(i): Mr David paid the reporter Linton Besser to lie about the Kazal family and their business dealings.

    Imputation 10(i): Thunder is run by a corporate criminal who paid the reporter Linton Besser to lie about the Kazal family and their business dealings.

14. The ordinary reasonable reader would have understood that the Intro article stated that its and the Kazal website’s purpose was to ensure that “truth will prevail” (pars 4 and 19) and to expose Mr David’s “deliberate character assassination” of the Kazal family through the use of his “mercenary” Mr Besser in the conduct of the smear campaign.  The reader would understand that Mr David had paid Mr Besser to write lies about the Kazal family and their business dealings in his articles.  That understanding was conveyed by the Intro article’s exposition of that “deliberate character assassination” (par 2), Mr David’s “design” of “the media smear campaign as a way to destroy our credibility” (par 14), together with Mr David’s and Mr Besser’s “manipulation” of information published and the Intro article’s suggestion that the Kazal website was going to bring out the “truth” about the Kazal family, in contrast to what the smear campaign had said about the Kazals.  This understanding would have been driven home to the reader by pars 19 to 23 which conveyed that Mr Besser was not prepared to write about the asserted “truth” that the Kazal website would ensure “will prevail” (pars 19 and 20). 

15. Accordingly, the reader would have understood the Intro article to convey imputations 9(i) and 10(i).

    Imputation 9(j): Mr David paid the journalist Linton Besser to smear the Kazal family, in an attempt to cover up his own corporate fraud and theft.

    Imputation 10(j): Thunder is run by a corporate criminal, Rodric David, who paid the the reporter Linton Besser to smear the Kazal family in an attempt to cover up his own corporate fraud and theft.

16. The ordinary reasonable reader would also have understood that the Intro article was saying that Mr David had paid Mr Besser to smear the Kazal family in articles that had the effect of “diverting attention away from his corporate fraud” (par 15).  The reader would be led to ask why Mr David was smearing the Kazal family if not to protect himself from the consequences if the truth prevailed, of what the UAE and Cayman island proceedings had concluded, namely that he was “the corporate thief” (pars 1, 21 and 32) and had engaged in “corporate fraud” (pars 12 and 15) “especially when he has so much corporate skulduggery to hide” (par 27).  I am satisfied the Intro article conveyed imputations 9(j) and 10(j).

17. Each imputation that I have found that the landing page and the Intro article conveyed was defamatory (which is not in issue) and also a representation that it conveyed for the purposes of the applicants’ claims under s 18 of the ACL.

    THE TWEETS

18. The Twitter accounts of Charif and Adam respectively have thousands of individual tweets.  Annexures C and D to these reasons comprise screen shot examples of the content of each Twitter account.  Each of Charif and Adam began publishing his Twitter account in about May 2013, however, the relevant activity on them occurred only after the Kazal website was first published in June 2013.  Some tweets in those accounts appear on their face to relate to Mr David, such as par 4 in annexure C, others are more cryptic such as pars 3 and 4 in annexure D.  The balance of the tweets in annexures C and D and the preponderance of tweets on each account appear to relate to current news, such as pars 2 and 5 of Charif’s account which reads, before the hyperlink, “Man drowns at Vivid opening night” and “Aust share market opens higher”.  However, if the visitor to each Twitter account clicks on the bitlink next to the text of those and many, but not all, similar tweets, he or she is taken to the Kazal website and not to the apparent news item.

19. The statement of claim pleaded that:

    ·each of the Twitter accounts conveyed, in trade or commerce, a representation that it was a news feed that reproduced headlines and or summaries of business related stories from mainstream media and that a viewer, who clicked on the text of an individual tweet, would be taken to the original item to which the text referred (the Twitter representation); and

    ·each Twitter representation was misleading or deceptive in contravention of s 18 of the ACL, as well as its analogue in s 18 of the Australian Consumer Law (NSW) as applied by s 28 of the Fair Trading Act 1987 (NSW). It is unnecessary to deal with the latter claim as it duplicates the claim under the ACL and, in any event, the absence of any defence entails that the allegations in the statement of claim are taken to be admitted.

20. As I explain below, the use of the bitlink in each Twitter feed concealed the fact that it was a device to redirect the reader to the Kazal website.

    How Charif and Adam used their Twitter accounts

21. Dr Bradley Schatz, a digital forensics consultant, prepared an expert report on 23 July 2018 for the applicants, that was tendered without objection or any requirement for him to be cross examined.  He explained that “bitlinks”, the proprietary name used by Bitly for short links, are shortened hyperlinks.  When a bitlink is created it operates, in effect, as a shortened, but no less effective, uniform resource locator or URL.  The publisher of a website on the internet usually creates a URL or a hyperlink to organise the content of the website.  When a person conducts an internet search in his or her web browser, by clicking on a hyperlink displayed as a search result, the browser uses the URL to navigate directly to the page on the creator’s website and download its contents that are then displayed on the screen of the user’s device.

1. Nonetheless, s 34 of the Defamation Act constrains the application of this principle as follows:

   34   Damages to bear rational relationship to harm

   In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

2. When assessing damages I have kept this constraint in mind along with the facts that, as Lord Esher MR explained, may be inextricable, in working out the role and responsibility of each of Charif and Adam to the extent that the conduct of each was separable from other causes of the damage that Mr David suffered (including the conduct of other Kazal brothers). 

3. The respondents sought to make a case in mitigation of damages that their conduct was provoked by or responsive to Mr David having procured the impugned allotment of shares in Emergent, provided material to the ICAC and the Fairfax journalists, particularly Mr Besser, as well as being responsible for the Kazal Family Truth website.  That argument had no proper basis.

4. While Jones J found that Mr David had acted in breach of his fiduciary duty as a director of Emergent, his Honour set the allotment aside and, in winding Emergent up, the Kazals got all the relief to which they appear to have been lawfully entitled, namely repayment of the small shareholders’ loans that they had made to Emergent and half of the net assets consequent on the sale of Global by the liquidators whom Jones J had appointed at the instance of the Kazals’.  It is incomprehensible how Adam (who had no apparent role, or investment, in Emergent) or Charif can have any cause for complaint about the fate of Emergent that Karl, Tony and Charif instigated by filing the petition for its winding up.  The more unintelligible is their supposed sense of grievance, given Jones J’s finding that the Kazal side of the joint venture had falsely denied its responsibility to finance Emergent jointly and had failed to do so, throwing the substantive burden of funding onto Mr David.  I have accepted Mr David’s evidence in this proceeding that KTC, RAAL and their controlling minds agreed to fund Emergent equally but the Kazal side, through KTC or otherwise, did not keep their side of that bargain (see [135]–[136] above).  The orders that Jones J made undid any apparent consequence of the impugned share allotment.  It follows that the respondents’ assertions that Mr David stole any money at all, let alone $180 million (or in one version $3 billion), were malicious, deliberate untruths.  Indeed, nothing in the plethora of material in evidence indicated any substance in the allegation that the Kazals were financially worse off after Emergent was wound up then they were before. 

5. I reject the respondents’ argument that the finding that Mr David breached his fiduciary duty as a director of Emergent was “extremely serious” and reflected on his honesty and integrity as a businessman.  A breach of a director’s fiduciary duty in making a share allotment requires no finding of dishonesty.  The law is that directors can misuse their power of allotment even though they have the bona fide belief that the allotment is in the best interests of the company, as Lord Wilberforce held giving the opinion of himself, Lords Diplock, Simon of Glaisdale, Cross of Chelsea and Kilbrandon in Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 at 834F-H. The highest that Jones J went in his reasons (to the extent that they may be relevant to Mr David’s reputation) was to find that Mr David was determined to protect his own position by eliminating the Kazal brothers’ equity and assuming 99.99% ownership and control of Emergent in circumstances where “the Kazal brothers would not honour their commitment to contribute capital”: Emergent 2011 (2) CILR 329 at [49], [51].

6. The respondents’ assertion, that the finding of Mr David’s breach of fiduciary duty would be highly relevant to persons considering entering into business with Mr David and reflected poorly on his character and reputation, cannot be accepted.  First, other than their misreporting of Jones J’s findings, there is no evidence that these were available on an internet search of Mr David or Thunder.  Secondly, any proper understanding of the commercial realities, that Jones J described in his reasons, would reveal that Mr David was unwilling to continue funding Emergent in the face of his joint venture partners’ dishonest denial that they were in very substantial default of contributing substantial funds to it.  The company, as appears from his Honour’s reasons, was deadlocked.  While Mr David acted in his self interest in procuring the allotment, most business people would have had some sympathy with his predicament in dealing with joint venture partners, such as Karl, Tony and Charif, who were not fulfilling their obligations and, on Jones J’s description, dishonestly seeking to have Mr David take all the funding burden and risk.  The respondents’ publications were distortions of the finding of Jones J in relation to Mr David’s breach of fiduciary duty owed, not to them, but to Emergent; their characterisation of that finding as one of “guilt” was knowingly false.

7. There is an air of unreality in seeking to separate out some of the conduct of Charif from that of Adam and vice versa and also of either of them from the conduct of other brothers.  The Kazals appear, on the evidence and as the respondents submitted, to be a close knit family who operated in their relations with Mr David as a unit.  Thus, Tony posted numerous emails on the Kazal website that he had also sent to Mr David and employees of Thunder.  Adam asserted in his 28 October 2016 email that he was acting to “expose all of the spineless thieves who thought they could help themselves to steal from my family” (see [223]) and repeated his threats to Mr MacCallum in his 31 October 2016 email (see [235]–[237]).  Charif accepted liability for the Kazal website and thus was a publisher of Tony’s posts to it.  Each of Charif and Adam sought to advance an argument that his individual liability was discrete from the other’s and that it somehow was hermitically sealed from both the responsibility of the other respondent and also from that of any other brother, such as Tony. 

8. Legal responsibility as a publisher of defamatory matter falls on every “person who has been instrumental in, or contributes to any extent to, the publication”: Fairfax Media Publications Pty Ltd v Voller (2021) 392 ALR 540 at 548 [32] per Kiefel CJ, Keane and Gleeson JJ, at 553–555 [62]–[69] per Gageler and Gordon JJ applying what Isaacs J held in Webb v Bloch (1928) 41 CLR 331 at 363–364. The decision in Duffy 129 SASR 304, on which the respondents relied, is inconsistent with the majority’s reasoning in Voller 392 ALR 540. Nonetheless, conduct of a person who is not joined as a party to the proceeding, that is extraneous to the publication itself, and is not joint conduct with that of a party, cannot be attributed to a party who was the publisher of the relevant defamatory matter. Accordingly, for example, the conduct of Tony and Karl before the publication of the matters complained of, or extraneous to the material either may have posted on the Kazal website, is irrelevant to the assessment of damages for which either Charif or Adam may be liable. However, a posting by anyone, including Tony, on the Kazal website is a publication by Charif because he operated, and was a publisher of, the website. And Adam’s conduct, to the extent that he drove traffic to the Kazal website by his use of the bitlink on his Twitter account and his conduct in October and November 2016 constituting his contempt on counts three and five (i.e. the breaches of orders one and three made on 11 November 2016 as found by the Full Court in pars (a) and (b) in the extract I have quoted at [12] above), including his antecedent cognate conduct that occurred before 11 November 2016, was a publication of the matters complained of and or the substance of the imputations that I have found.

9. I reject as baseless the respondents’ submission, based on Broome [1972] AC at 1063E, that damages as against both Charif and Adam are limited to a sum representing the lowest amount for which either of them is liable. Since 1985, in Australia, a plaintiff or applicant has a separate cause of action against each joint tortfeasor and that each is severably liable for damages based on his, her or its conduct: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 459–460 per Gibbs CJ, 466 per Brennan J and Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 584 per Brennan CJ, Dawson and Toohey JJ, 591 per Gaudron J agreeing with Gummow J, 612–613 per Gummow J. Thus one joint tortfeasor can be liable for an award of aggravated or exemplary damages when another joint tortfeasor is not so liable.

10. The conduct of Charif began with his initial publication online of the matters complained of in June 2013 and those publications have continued to the present time.  The misleading and deceptive use of the bitlink in the Twitter accounts of Charif and Adam has caused traffic to be driven to the Kazal website and persons then downloading one or both of the matters complained of.  Adam’s conduct, as found in the contempt proceeding, caused significant republications of the Kazal website and both matters complained of until he desisted during the pendency of the contempt proceeding.

11. The conduct of both Adam and Charif since 2013 up to the trial has resembled a concerted, continuous campaign by both of them to vilify and denigrate Mr David and Thunder.  The campaign was conducted as a vendetta.  I reject the respondents’ submission that Mr David provoked their conduct, in particular, the publication of the matters complained of, by feeding Mr Besser false information about them, such as that Mr David had lied to Mr Besser about being imprisoned in the UAE.  The ordinary reasonable person, including Mr Besser, would understand that being detained in a jail cell, as Mr David actually was, is in a practical sense the same as being imprisoned.  There was no evidence that Mr David used the word “imprisoned” when he spoke to Mr Besser.  Mr David made his affidavit in the Cayman Island proceeding, on which he was cross-examined, to answer an allegation that Charif had made, falsely, there that he (Mr David) “had been imprisoned in the UAE because of offences connected with dubious or false accounting”.  As Mr David said “I was never imprisoned.  As I said in this affidavit, I was detained… There’s a big difference between being detained and being imprisoned”.

12. While Mr Besser may have used the word “imprisoned” in the Bad company article to convey that Mr David had been detained involuntarily at Port Zayed and transferred, handcuffed and in leg chains to Shahama, I accept Mr David’s evidence that he did not convey to Mr Besser that he had been “imprisoned as punishment” for a crime, as opposed to involuntarily held, or detained, in a cell by police.

13. The Bad company article painted a substantially accurate picture so far as it suggested that Charif and Tony caused Mr David to be thrown into prison in Abu Dhabi and unjustifiably subjected to indignities there because of the Kazals’ unfounded allegations (as established in the decisions of the UAE courts) (see [139] above).  Indeed, Charif now seeks to say that Mr David had described his detention in the UAE to Mr Besser as “imprisonment” to cast the Kazals in a bad light in a way that justified the publication of the matters complained of.  As I have found, Mr David said that he had been detained.  Yet “imprisonment” was Charif’s own deliberately false assertion to the Grand Court about Mr David’s detention in the UAE.  Charif’s argument is meretricious.

14. In my opinion, rather than undermining Mr David’s credit, the episode reveals how Charif knowingly distorted the truth of what had occurred in the Cayman Island proceeding to advance his own position both in the Grand Court and in this proceeding as it suited his objectives.  That capacity to distort the true position ran riot in the matters complained of and the respondents’ relentless campaign to denigrate Mr David and Thunder that I have found above.

15. I accept Mr David’s evidence that he felt terrorised by the October and November 2016 conduct.  I also accept his evidence generally as to his hurt to feelings, fear and sense of helplessness at the incessant and intensifying impact of the online and physical behaviours of Charif, Adam and other members of their family on the Kazal website in evidence.  Of course, the only respondents are Charif and Adam and damages can only be awarded against each of them for conduct for which he is responsible, including jointly with one or more others.

16. The respondents have no defence in this proceeding.  In particular they cannot rely on a defence of qualified privilege to reply to an attack: Loveday v Sun Newspapers Ltd (1938) 59 CLR 503; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31. Yet, it appeared to be Charif’s and Adam’s submission that, in effect, Mr David brought their conduct complained of on himself so as to reduce any damages to which he might otherwise be entitled. On the evidence before me, that proposition is baseless. I reject the respondents’ argument that somehow Mr David’s entitlement to damages is affected by his having participated as a source in the publication of the Bad company article on 16 March 2013.  He is responsible for republication of what he told Mr Besser in preparation of that article because such republication was intended by him and or was the natural and probable result of his provision of that material to Mr Besser: John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 350 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ. There is no evidence that Mr David gave any incorrect information to Mr Besser and the respondents’ allegation in the matter complained of that he paid Mr Besser was without foundation. And as I have explained, Jones J’s finding that Mr David had breached his fiduciary duty as a director of Emergent by causing the allotment to dilute the shareholding of KTC did not entitle the respondents to publish their false distortion of it.

17. Rather, Charif and Adam chose, in publishing the matters complained of and their subsequent vindictive conduct including in this trial, to characterise his Honour’s finding as having a significance out of all proportion to the joint venture dispute.  On the evidence before me, rather, the lack of commercial morality and integrity of KTC and its principals, Karl, Tony and Charif, was patent.  What made their behaviour worse was Tony’s false allegation against Mr David that resulted in his detention, Charif’s conduct in bringing the baseless criminal charges and civil complaint in the UAE and Karl, Tony and Charif’s false assertion in the Grand Court that Mr David had been imprisoned in the UAE.  However, the first of two instances of that behaviour are not relevant to the assessment of damages in this proceeding.  The Bad company article did not provide any intelligible basis to support or justify the publication of the matters complained of, the Kazal website or the splenetic vendetta that Charif and Adam have pursued against Mr David and Thunder that has involved the unjustified intimidation of his family, including his young children.

18. In assessing damages, in respect of damage to Mr David as a businessman (and Thunder as his corporate vehicle), I have considered taking into account that his reputation could possibly have been affected, to a minor extent, in the eyes of any person who had knowledge (or a fair report of) Jones J’s finding that Mr David breached his fiduciary duty to Emergent in effecting the impugned allotment.  There is no evidence of that anyone to whom the matters complained of were published knew of the actual findings of Jones J or had read a fair report of them.  Nor was there evidence of any effect of the findings on Mr David’s reputation.  Because of the absence of evidence that any person to whom the matters complained of were published was aware of Jones J’s findings or a fair report of them, I am not satisfied that they had any effect on Mr David’s reputation.  Moreover, the matters complained of and the subsequent conduct by Charif and Adam knowingly distorted and perverted Jones J’s finding into a deliberately false accusation that Mr David had committed and been convicted of a crime when they both knew that nothing of the sort had occurred.  Indeed, they knew that Charif’s criminal allegations against Mr David had been rejected by the UAE trial and appeal courts.  Those distortions can only be relevant to increasing the damages.

19. I have also excluded from the award of damages the damage to the reputations of Mr David and Thunder from publications of the matters complained of in the United States of America. That is because the evidence, being the CA9 decision, is that the law of that country as to damage to reputation by a defamatory publication is substantively different to the law of Australia: see s 175(1) of the Evidence Act.  Accordingly, Mr David and Thunder cannot rely on the presumption that the law of the United States is the same as that of Australia as the lex fori: Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 343 [16] per Gleeson CJ, 370 [115], 372 [125] per Gummow and Hayne JJ, 411 [249] per Callinan J and 420 [275] per Heydon J.

20. I reject the respondents’ submission that Mr David had had a number of most serious allegations and findings against him in the conduct of his business, and had chosen to associate with others, such as Mr Panos, of the same ilk.  In my opinion that submission was unjustifiable and aggravated the damages.  First, the proposition that Mr David had made such a conscious choice was not put to him.  I doubt that the respondents intended the submission to include his unfortunate business association with Charif, Tony and other members of the Kazal family.  And, had Mr David had any inkling of how they behaved in business and elsewhere, it is unlikely that he would never be where he is now.  Secondly, the respondents referred in cross examining Mr David to a jury finding in a proceeding that Carey Martell brought.  Thunder had employed him as a vice president from January 2015 to late 2016.  Mr David and Mr Martell had a falling out and Mr Martell took proceedings that Mr David “didn’t attend”.  The jury made a finding of fraud, but the judgment was vacated by agreement.  The circumstances of that proceeding and the settlement are not in evidence.  The jury’s findings were vacated by consent.  There is no sufficient basis on which to make any findings about Mr David’s conduct in relation to his dealings with Mr Martell, who agreed to the jury’s findings being vacated.  Nor is there any evidence of the effect, if any, of the jury’s finding on Mr David’s reputation. 

21. The matters complained of were calculated to attract readers who googled Mr David, being persons who were likely to be interested in doing business with him or Thunder, as his corporate vehicle, or having social interactions with him and his family.  Moreover, Charif targeted business publications, such as LA Biz, backstage and LinkedIn’s The Australian Property Institute page or section (see [179]–[183] and [186]).

22. The Google Analytics evidence showed that the publication in Australia comprised the bulk of the downloads of the matters complained of.  I appreciate that a not insignificant number of downloads occurred in the United States and a substantial number of incidents of conduct, such as those involving the entertainment lawyer, Mr Nami, Westside Group, the LA Biz and backstage posts, Steven Rockefeller and the 2016 conduct in Los Angeles occurred in the United States.  Disaggregating the effects of tortious conduct that occurred wholly in the United States is a somewhat artificial, but necessary, task in assessing damages in this proceeding.  However, I have had regard to the fact that, as a matter of common sense, the conduct of Charif and Adam that caused all of the damage to the reputations of Mr David and Thunder flowed from the publications of the landing page and the Intro article that originated in Australia.  The subsequent actions and damage that appear to have occurred wholly or principally in the United States, including the downloads there of the matters complained of and Charif’s postings on the La Biz and backstage, comprise conduct of each respondent that is relevant to the damages that can be awarded for Mr David’s hurt to feelings in addition to the damages caused by the publications here of the matters complained of: Praed 24 QBD at 55.

1. The ongoing publication of the matters complained of coupled with the determined attempts of Charif and, until he obeyed the injunctions in late November 2016, Adam, to drive online traffic to the Kazal website and hence to the landing page and the Intro article, has had a profound impact on Mr David’s feelings.  Not only has he been driven to personal despair, but he has been profoundly hurt by his consciousness of the hurt and threats to his wife, two young children and, during his lifetime, to his late father.  In addition, from 1 April 2016, Charif in an obviously concerted campaign with Tony, bombarded Mr David and his staff with over 160 emails that they also posted to the Kazal website.  Tony and Adam could not post on the Kazal website without Charif’s knowledge and approval.  That conduct caused Mr David more hurt and anxiety, as it was clearly intended to do.  Likewise, the use by both Adam and Charif of the bitlinks on their Twitter accounts, and Charif’s LinkedIn and the Pinterest accounts, to drive traffic to the Kazal website was coordinated, not individual, conduct.  The respondents acted in an obviously concerted way with other male siblings throughout the period of publication and before.   

2. Charif refused to respond to or ignored the two open offers to settle in August 2015 and March 2016.  Indeed, the offer in March 2016 antedated the barrage of daily postings on the website and emails written by Charif and Tony (see [205]–[206]). 

   Aggravated damages

3. Aggravated damages are compensatory, not punitive, in nature.  They are awarded to augment the amount of ordinary compensatory damages where the conduct of the tortfeasor has aggravated the harm to the applicant or plaintiff because it was improper, unjustifiable or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 at 513–514 per Dixon, Williams, Webb and Kitto JJ and can include the tortfeasor’s conduct up to the time of the verdict: Praed 24 QBD at 55 per Lord Esher MR; KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729 at 760 [150] per Payne JA with whom White JA agreed.

4. Here, the conduct of each of Charif and Adam was improper, unjustifiable and lacking in good faith.  They persisted in the unjustifiable publication of the false imputations that I have found knowing that there was no real or rational basis for their assertions.  Indeed, they have taken extraordinary measures to antagonise Mr David, intensify the volume of publications of the matters complained of and associated matter to create as much damage to Mr David’s reputation as possible.  The use of the bitlink on their Twitter accounts is one example.  Others include Charif’s postings on LA Biz, Backstage, LinkedIn, Pinterest and the conduct in 2016 in which, first, Charif, in combination with Tony, began the barrage of daily postings and emails from 1 April 2016 and then Adam engaged in the activities in Sydney and Los Angeles the subject of his convictions for contempt, including his flagrant breaches of consent orders to desist in the defamatory republication of the landing page and many of the imputations that it and the Intro article conveyed. 

5. To add insult to Mr David’s injury, three days before I was to sentence Adam, Charif emailed Mr David on 24 February 2017 repeating his false claims in the matters complained of and asserting that Mr David had committed crimes “against me and my entire family” for which Charif asserted that Mr David should “serve time in prison”.  The unsupported assertions in the matters complained of never identified any conduct of Mr David that any reasonable person could consider in any way criminal.  Moreover, in the conduct of the trial, as I have found the respondents made unjustified aspersions on Mr David’s character (at [341]) that aggravated the damage.  In my opinion, the conduct of each of Charif and Adam, taken as a whole, can only be seen as persevering in the making of the false and defamatory imputations that I have found in each of the matters complained of in order to exacerbate that damage to Mr David’s and Thunder’s reputations and increase the hurt to his feelings: Triggell 82 CLR at 514.

6. As at the end of the trial, the maximum amount of compensatory damages that can be awarded for non-economic loss for defamation prescribed under s 35(3) of the Defamation Act was $421,000.  Damages for injurious falsehood are not limited. 

7. Moreover, s 36 of the Defamation Act requires the Court to disregard the tortfeasor’s malice or other state of mind at any time in awarding damages for publication of defamatory matter except to the extent that this affects the relevant harm.  Here, the states of mind of each of Charif and Adam were relevant because they proclaimed continuously, expressly or by their conduct, to Mr David their intention to harm him as much as they could and to continue doing so until he capitulated to their vendetta.  As the Intro article foreshadowed, Charif (and I find by his republications and tweets, Adam) promised (in pars 22 and 23) that:

   Our family will continue to openly challenge the abominable treatment we have received from firstly Rodric David… We will not rest until we obtain justice.

8. They repeated their perverse conception of achieving “justice” by their statements and conduct on multiple occasions, such as those I have quoted from the Kazal website at [205], [207], [223], [238] and [248], as well as Adam’s conduct in October and November 2016.

9. In my opinion the appropriate award of general and aggravated damages in defamation for Mr David against each respondent, having regard to ss 34 and 36 of the Defamation Act, the applicants’ causes of action for injurious falsehood, all of the evidence and the considerations to which I have referred is:

   (a)as against Charif, $400,000; and

   (b)as against Adam, $600,000.

10. In my opinion, pre-judgment interest should be awarded in accordance with the principles that I explained in Chau (No 3) 386 ALR at 78 [167]–[169]. Because the elements of publication and aggravation continued over the whole period between the initial publications of the matters complained of in June 2013 to the present time, the amount of damages needed to vindicate Mr David has not diminished over time but rather has increased and the hurt to his feelings has intensified. In my assessment he is entitled to an award of pre-judgment interest:

    (a)as against Charif, $125,000; and

    (b)as against Adam, $225,000.

11. I would not order any additional sum for any compensation, loss or damage caused by the respondents by their contraventions of s 18 of the ACL or for injurious falsehood.

12. I have awarded a higher figure in damages against Adam because his conduct that underlaid his convictions for contempt were significantly more threatening and malicious (as communicated to and perceived by Mr David) than even Charif’s extraordinary behaviour.  While Charif’s activities were mainly online, Adam’s were also physical and directly threatening of Mr David and his family, through numerous persons attending outside his home and Thunder’s premises, with organised protests in Sydney and Los Angeles that were serious breaches of the orders of this Court.  What particularly aggravated the damages was Adam’s attempt to oppress and intimidate Mr David and Mr MacCallum in this proceeding with his threats in his emails of 28 and 31 October 2016 and his conduct in organising the protestors and vans to republish the matters complained of and numerous of the imputations that I have found they conveyed.

13. In addition, while a considerable amount of Adam’s conduct in October and November 2016 occurred in Los Angeles and cannot be included in the damages for which he is liable in this proceeding, its effect on Mr David’s feelings was inseparably interconnected with Adam’s parallel conduct in Sydney.  The impact of that conduct on Mr David was cognate, even though what occurred in Los Angeles was, literally, closer to home for him.  I have attempted in my assessment of the appropriate sums to award as damages to unscramble the eggs that each of Charif and Adam, in effect, broke in Australia and the United States by his individual conduct that each originated and directed from Sydney where he lived.

14. Thunder is in a different position to Mr David.  There was no evidence that Thunder suffered any actual economic loss, except as a result of publications in the United States.  As I have noted, I am not satisfied, having regard to the different law that may apply in the United States that the publications in respect of the possible lost business opportunities with the entertainment lawyer, Mr Nami, the Westside Group, Mr Panos or Steven Rockefeller were actionable in that country. 

15. I am satisfied, however, that the matters complained of have caused some substantive damage to Thunder’s reputation, because as Mr Hammond’s evidence showed, like Mr David, it is known not only in the United States, but in Australia as well.  Mr David’s and Thunder’s involvement with Australians in the film industry both in Los Angeles and here meant that the wide publication of the matters complained of would have had, as their content was calculated to make them have, a damaging impact on Thunder’s reputation in Australia.  In addition, Thunder was not able to consummate any dealing with Foxtel, an Australian company, to which Mr Hammond referred in his evidence.

16. In Madden 313 ALR 1 at 30 [112]–[114], Rares and Robertson JJ said:

    A defamatory statement to the effect that a trading company carries on business in a dishonest manner is likely to injure its reputation in the way of its business and the Court can award damages to compensate the company for that damage: Barnes & Co Ltd v Sharpe (1910) 11 CLR 462 per Griffith CJ at 474, per O’Connor J at 478-479, per Higgins J at 485. Indeed, such a defamatory statement can attract substantial damages even where the company does not lead any evidence to establish any actual damage in terms of financial loss: Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 per Smithers J at 560, per Neaves J at 586-588, per Pincus J at 599-605.

    In Comalco 12 FCR 510 the Full Court awarded $100,000 damages for a nationally broadcast television program that conveyed serious, false defamatory meanings about a company’s reputation where, as Pincus J observed (at 604) there was “not a sentence of evidence to prove that any real damage, slight or large had been done”. And in RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 per Beaumont and Spender JJ at 178-181, with whom Davies J agreed, upheld an award of $15,000 for commercial loss made under s 82 of the Trade Practices Act. There the primary judge had inferred on “extremely exiguous” material that an insurer had suffered from the misleading and deceptive conduct of a broker in giving an inaccurate appraisal of its policy wording in circumstances where it was difficult to lead precise evidence of loss of premium income.

    The assessment of damages under s 82 and its analogues, in a situation where no actual financial loss is established, requires the Court to have regard to the nature of the representations or conduct complained of and to the manner and extent of their publication: RAIA 41 FCR at 179.

17. Even though a company that has been defamed or is the subject of an injurious falsehood or misleading or deceptive conduct does not prove that it has suffered any direct financial loss, a serious attack on its commercial reputation that has received wide publicity will cause real damage, albeit that that damage is insusceptible of precise calculation.  In such a case a court can only estimate what amount is necessary to compensate it for the defamatory or injuriously false publication: cf: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 at 266 [38] per Hayne J with whom Gleeson CJ, McHugh and Kirby JJ agreed at 259 [6]–[7]; Madden 313 ALR at 31 [116].

18. Accordingly, I consider it appropriate to award compensatory and aggravated damages to Thunder.  However, the aggravated damages component does not include any element of compensation to hurt to feelings (because a company has none); rather, it is based on the persistence in and ever increasing attempts to widen the reach of publication of the matters complained of, including Adam’s conduct here, in October and November 2016.

19. In my opinion, Thunder is entitled to awards of damages of:

    (a)as against Charif, $50,000;

    (b)as against Adam, $75,000.

20. In addition, there should be prejudgment interest of $15,000 as against Charif and $22,500 as against Adam. 

21. Accordingly, the applicants are entitled to judgments against Charif and Adam as follows:

    (1)Mr David against Charif: $525,000

    (2)Mr David against Adam: $825,000

    (3)Thunder against Charif: $65,000

    (4)Thunder against Adam: $97,500

    Injunctions

22. In my opinion, unless enjoined, both Charif and Adam are likely to continue making publications of the matters complained of, the Kazal website and the defamatory imputations that I have found, as well as the misleading and deceptive use of the bitlink on their Twitter accounts.  Their persistent conduct over the seven years to the trial (except in Adam’s case after the consent interlocutory injunctions and contempt proceeding) makes it plain beyond doubt that each will continue his irrational and vendetta-like behaviour the subject of these reasons, unless enjoined permanently from doing so.

    CONCLUSION

23. I will direct the parties to draft the form of injunctions and other orders to give effect to these reasons.  I will also make directions for the parties to make submissions as to costs.

I certify that the preceding three hundred and sixty-six (366) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

Associate:

Dated:       18 February 2022

ANNEXURE A

Orders of 11 November 2016

Upon the Applicants providing the usual undertaking as to damages:

1.Until the final disposition of these proceedings, the Second Respondent be restrained from posting, affixing or displaying, or directly or indirectly causing to be posted, affixed or displayed on any structure, building, signpost, pole, wall, mobile or immobile structure, or to any motor vehicle, any kind any sign, placard, poster, banner, pamphlet, flyer or any like item, or otherwise publishing or distributing any such material, whether or not displaying images or likenesses of Rodric David or any members of his family, where such object may be or is in fact visible or distributed to the public or any member of the public and which:

a.is in the form of or to the same or similar effect as the sign or poster, a copy of which is annexure "A" to this Order 1; or

b.makes, conveys, or is capable of making or conveying, any imputation that Rodric David:

A.is a corporate thief;

B.stole $180 million;

C.is guilty of fraud;

D.is a con man;

E.conspired with David Singh to steal $180 million,

or any imputation to the same or similar effect.

…

2.Until the final disposition of these proceedings , the Second Respondent be restrained from publishing or distributing (otherwise than to his lawyers for the purpose of obtaining legal advice or for use in litigation), in hard copy or electronic form, whether on the internet or any form of social media, including Twitter:

a.the material contained in the e-mail dated Monday 31 October 2016, a copy of which is annexed and marked "B";

b.the material contained on the Second Respondent's Twitter feed entitled "Hey Walter MacCallum You want me to cease using the Van? Are you serious? @aitken_lawyers @australian #kazal @rodric_david @thr @IRStaxpros”, a copy of which is annexed and marked "C";

c.the material located on the internet at https://twitter.com/ AdamKazal/status/793388384311996416, a copy of which is annexed and marked "D";

d.the video entitled "Street protests and vans exposing corporate thieves Rodric David and David Singh" displayed on YouTube and the website at imputation arising from any material (whether in hard copy or electronic form) published on or after 26 October 2016 that Rodric David, alone or together with his legal representatives:

i.fabricated a case before the ICAC;

ii.perverted the course of justice;

iii.is guilty of contempt of the ICAC;

A.lied to the ICAC;

B.engaged in thuggery, to enable him to steal from innocent people;

C.lied, to enable him to steal from innocent people;

D.fabricated claims, to enable him to steal from innocent people;

E.Is a thief,

or any imputations to the same or similar effect

ANNEXURE B

ANNEXURE C

ANNEXURE D