Federal Court of Australia

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

ORDERS

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.

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 www.kazalfamilystory.com (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 www.kazalfamilystory.com 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.

13    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.

14    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].

15    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.

16    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.

17    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.

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

19    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.

20    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.

21    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.

22    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.

23    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

24    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.

25    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)

26    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

27    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.

28    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).

29    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:

30    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).

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

32    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.

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

34    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”:

35    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.

36    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:

37    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”.

38    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 – http://www.kazalfamilystory.com – 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

39    Charif’s photo appears opposite at par 25.

40    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…”.

41    The next screen shot is below (shot A6):

42    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”.

43    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”.

44    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):

45    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!

46    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

47    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

48    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.

49    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.

50    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

51    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.

52    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

53    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.

54    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

55    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

56    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).

57    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.

58    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.

59    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”.

60    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].

61    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).

62    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?

63    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.

64    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…”.

65    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.

66    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.

67    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”.

68    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.

69    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.

70    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.

71    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.

72    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

73    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.

74    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).

75    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.

76    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).

77    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.

78    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

79    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.

80    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)

81    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.

82    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)

83    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.

84    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.

85    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.

86    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).

87    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.

88    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.

89    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).

90    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.

91    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).

92    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

93    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.

94    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.

95    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

96    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.

97    There are link shortening services available which are used to create shortened links. One such service is Bitly which each of Charif and Adam used to create a bitlink that he employed on his Twitter account. As Dr Schatz explained, the attraction of shortened links for a person posting a message on a Twitter account is that the link uses less characters than a hyperlink, thus leaving more characters for the account operator to use in the accompanying message. That is because Twitter limits the number of characters that can be used in any individual tweet. Dr Schatz said that Twitter tracks a significant amount of information about views and consumption of tweets.

98    Dr Schatz said that while the Bitly short link to the landing page had been created on 13 September 2013, the available Bitly statistics page for it only covered a time period beginning in 2016. He opined that reasons why short links, such as those on Charif’s Twitter account, are used on Twitter accounts can include an intention to drive users to the website the subject of the short link, increase the ranking of that website in search engines or provide a reference to source material related to an assertion referred to in the tweet. He said that the short links on Charif’s Twitter account did not disclose to a viewer of the tweets the identity of the linked URL, namely, the Kazal website, to which, by clicking on it, the viewer will be taken. Dr Schatz explained:

Short Link l was used in the following tweet, which I found in the Charif Kazal Twitter Account:

The goo.gl link points to a Daily Telegraph story titled "Westpac Life Saver chopper rescues rock fisherman in seas off Botany Bay thanks to mate's quick thinking'".

The bit.ly link refers to the home page document of the Kazal Website: http://kazalfamilystory.com/.

I reviewed the l November 2014 archived copy of the home page of the Kazal Website using archive.org. The page contained posts from 30 June 2013 through to 8 August 2014. The archived page did not contain any content of relevance to the rescue of a fisherman.

I inspected the Tweets in the Charif Kazal twitter feed over the period of 14 May 2014 to 8 August 2014. The tweets contained around 440 instances of Short Link 1, a sampling of subjects of which include:

a) Linkedin splashes $186 million;

b) Space age home wants new owner;

c) Door closed to asylum seekers;

d) Bigger container ships bound for NZ;

e) Hyundai ordered to pay $US240m in damages.

The archived copy of the home page of the Kazal Website that I examined did not contain content of relevance to the subject of the above Tweets.

If I assume that the archived version of the Kazal Website pointed to is an accurate representation of the complete content over the period 14 May 2014 to 8 August 2014, then it is my opinion that the Tweets referred.

99    Dr Schatz found that the bitlinks on Charif’s Twitter account that related to tweets naming Mr David did take the viewer to the landing page. One example is below:

100    Dr Schatz found that Bitly’s statistics showed that the bitlink to the website that he labelled “Short Link 1” had received 1016 “clicks” as at 12 July 2018 which, of course, only covered a period commencing in 2016. Dr Schatz said that he did not have access to Google or Twitter Analytics or statistics to confirm his opinion, based on his expertise and experience, it would be reasonable to assume that the inclusion of that bitlink in Charif’s tweets would have the effect of prioritising the position or ranking of the Kazal website in search engine results at the time of their publication. In my opinion, based on the evidence, Dr Schatz’s view about this is correct.

101    Dr Schatz did not examine Adam’s Twitter account. It is common ground that it used the same bitlink as Dr Schatz’s “Short Link 1” to drive viewers to the Kazal website as can be seen in the tweet below, which is the first tweet in annexure D to these reasons:

102    However, Adam argued that there was no evidence that he published the Intro article, including by his using any bitlinks on his Twitter account. I reject that argument because, once a reader was taken to the Kazal website, he or she could, and I am satisfied some did, move to the Intro article.

103    Dr Schatz said that a viewer would realise that, by clicking on a short link or bitlink in the tweet, he or she would be redirected to another website. He said that because of the nature of short links, they do not disclose or disguise the destination website to which a viewer who clicks on them will be taken. However, it is obvious that a tweet that presents an apparent news story, such as that in Charif’s tweet of 5 August 2014 “Dramatic rescue: Fisherman ‘lucky to be alive’”, as appears at [98] above, is calculated to induce a viewer to click on the associated short link or bitlink, so that he or she can read about that rescue. The ordinary reasonable viewer would expect to be taken to a website dealing with the story about the rescued fisherman and would not have intended to be taken instead to the landing page. Yet, that was the purpose of each of Charif and Adam in posting large numbers of tweets with that characteristic, namely to mislead and deceive anyone who took such a tweet at face value into being presented with the landing page, as the home page of the Kazal Family Story, and its attacks on Mr David.

Issues raised in respect of mitigation

104    Although neither Charif nor Adam has filed a defence, Charif had a right to lead evidence and cross examine in relation to the cross-claim while he persisted in it. Moreover, the applicants still had to prove certain matters, including damages. I allowed the respondents to cross examine witnesses, tender evidence and make submissions in opposition to the applicants’ claims for relief, subject to limiting the respondents’ to putting the applicants to proof, including as to particular matters in mitigation of damages: Kazal (No 10) [2020] FCA 1636. As I noted above, I required the respondents to give further particulars of any matters on which they relied in mitigation of damages. I allowed the respondents to rely on the findings made in the reasons for judgment of Jones J in the Grand Court of the Cayman Islands on 23 November 2011: In the matter of Emergent Capital Limited 2011 (2) CILR 329, which I discuss below.

background

Mr David

105    Mr David was born in Sydney in 1970, was educated and lived there until he went to study at the University of Southern California in 1988. He graduated with a Bachelor of Arts in 1993. While at university he met his wife, Elizabeth, or Liz, with whom he had a son, and daughter, who were 17 and 14 at the time of the trial.

106    After graduating, he worked in his family business in the grocery industry until 1998 in the United States, South East Asia and, briefly, in Sydney. He returned to Sydney and from 1998 to 2008 he worked in property development and construction.

Thunder

107    Mr David has been the chief executive officer (CEO) of Thunder since he caused it to be incorporated in California in March 2013. It is based in Long Beach and has operated from premises there that it leased in early April 2013. It began with about six employees, but by late June 2018 its workforce exceeded 10. As a result, at the time of first publication of each of the matters complained of in about June 2013, Thunder then was an excluded corporation, because it had less than 10 employees and was not related to another corporation within the meaning of s 9(2)(b) of the Defamation Act 2005 (NSW). As a result, s 9(1) of the Act provides that Thunder was able to maintain a cause of action for defamation.

108    Mr David said that Thunder provided services such as making content, programming, employing or engaging “talent”, both in person and remotely, doing livestream work for broadcasting and distributing it to networks, within the United States of America, in Australia, and elsewhere through operating a global paywall for its programming.

The previous relationship between Mr David and the Kazals

109    In about 2006, his father introduced Mr David to Charif. John David had met Charif at a meeting of the Australian Lebanese Chamber of Commerce.

110    In early 2008, Mr David and Charif discussed participating in a joint venture in the UAE and agreed to proceed. They incorporated a joint venture vehicle, Emergent Capital Limited in the Cayman Islands which had two corporate shareholders, RAAL Ltd, which Mr David controlled, and KTC which Charif and at least one of his brothers, Tarek, known also as Tony, controlled. Emergent’s share capital was 50,000 shares of 1USD each and its issued capital was 100 shares of which each of RAAL and KTC each held 50 shares.

111    Jones J referred in his reasons to the role of another brother, Karl, who appears to have contributed AUD600,000 in funding to Emergent, and gave a personal guarantee for its liabilities. There was a bizarre dispute that Jones J described about Karl’s role, in which he, Karl, denied ever participating in KTC (which contained in its corporate name the first initials of the names of Karl, Tony and Charif) and Charif asserted that he had forged Karl’s signature on his share transfer form in KTC. Jones J declined to make any findings about Karl’s role as a shareholder in KTC and confined his findings to the roles of Tony and Charif. He found that Charif was not a truthful or reliable witness and that Mr David was not a reliable one in that proceeding.

112    Importantly, s 91 of the Evidence Act 1995 (Cth) precludes evidence of the decision, or a finding of fact, of Jones J or any other court, from being admissible here to prove the existence of a fact that was in issue in such a proceeding. However, Jones J’s findings are relevant, not to establish the truth of those findings in this proceeding, but as evidence simply of what his Honour said about the dispute that he resolved and his reasoning process to arrive at those findings. The matters complained of purport to give a significantly distorted account of his Honour’s finding that Mr David breached his fiduciary duty. The findings are thus admissible to prove what Jones J found, but not to prove the correctness or otherwise of those findings, save as to the extent that they may create issue estoppels as between Mr David and his privies on the one hand and, on the other hand, Charif and his privies.

113    Jones J also found that Mr David and Charif agreed that each side would contribute funds in equal shares to support the joint venture and both men would move to Abu Dhabi in the UAE. Although Mr David and his family relocated to live in the Middle East, Charif did not. However, Tony was resident in Dubai. Moreover, his Honour found that KTC did not contribute its share of funding to the joint venture, in particular, later in 2008 and 2009. Jones J found that during 2008 and 2009, Mr Singh introduced a proposal, that he and Emergent took up, to buy a waste recycling business at Eastern Creek, a suburb of Sydney, owned by Global Resources Australia Pty Ltd. Emergent made that acquisition using a Cayman Islands vehicle, Global Resources Ltd. It is not necessary for me to make any findings beyond observing that disputes over the funding of this acquisition appear to have precipitated the denouement of the relationship between the Kazal family and both Mr David and Mr Singh.

114    Jones J found that by 28 January 2010, Mr David had provided about AUD5.8 million in funds to support Emergent whereas the Kazal side had provided only about AUD600,000. On that day his Honour found that Mr David convened a board meeting and that another director, Nick Marvomanolakis (Mr Marvo) had given the Kazal side notice of the meeting on 22 January 2010. However, only Mr David and Mr Marvo attended. This meeting resolved to issue 49,900 shares in Emergent to RAAL at USD1 each, in consideration of a corresponding reduction in RAAL’s loan to the company.

115    In about March 2010, KTC commenced a proceeding in the Grand Court of the Cayman Islands seeking that Emergent be wound up on the just and equitable ground. This was the beginning of over a decade of litigation and other acrimony between Mr David and members of the Kazal family.

116    In about April 2010, Tony lodged a complaint with the Department of Immigration in Dubai. He alleged that Mr David had not communicated with him for over a year and absconded in breach of his visa. I accept Mr David’s evidence that Tony’s complaint was false.

117    On 6 May 2010, Charif lodged a criminal and civil complaint in the UAE in the Court of First Instance of Abu Dhabi (the UAE proceeding) against Mr David asserting that he had embezzled funds and that, among other financial misdeeds, Mr David had embezzled Tarek’s (i.e. Tony’s) salary in one of the joint venture companies. I also accept Mr David’s evidence that those allegations were false.

Mr David’s detention in the UAE

118    During his examination in chief before me, Mr David gave the following account of what happened next. Tony’s complaint caused the Abu Dhabi police to ask Mr David to attend at a police station on a Wednesday evening in May 2010. He was detained so that he could be delivered to the authorities in Dubai. The Islamic weekend was on the Friday and Saturday, which caused delays in the police transferring Mr David to Dubai. He was detained, first, in the police station overnight and on the Thursday evening moved to another facility in Abu Dhabi, where he spent a second night before being delivered to the Al Awir prison in Dubai. While he was in a Department of Immigration interview room at Al Awir prison, Mr David was served there with the petition to wind up Emergent that KTC had filed in the Grand Court. The Dubai authorities then released Mr David but required him to remain in the UAE while they investigated Tony’s complaint. After about six weeks, the Dubai immigration authorities apologised to Mr David, returned his passport and fined Tony for making a false complaint. Mr David and his family then left the UAE and returned to live in Sydney. They moved into accommodation rented in another name and kept their whereabouts secret.

119    I infer that the purpose of Tony’s complaint was to humiliate Mr David and make it difficult for him to conduct any defence of the winding up petition in the Cayman Islands while he was detained in custody in the UAE falsely accused of conduct that contravened his visa conditions. It could not have been accidental that KTC was aware of Mr David’s whereabouts in order to serve him while he was being detained on the basis of Tony’s complaint.

120    Mr David elaborated on his experience in detention in cross-examination before me and in his 1 June 2010 affidavit in the Grand Court. There, he deposed that he had been detained on (Wednesday) 12 May 2010 and kept overnight at the Abu Dhabi police station. He was taken from there on 13 May 2010 to Shahama station near the border of Dubai and, stayed in the waiting room overnight. He said in the affidavit:

I was never detained in Shahama, had full freedom to roam about the property and at all times had my mobile phone and personal effects in my possession. In fact, the hospitality shown to me by the police was exemplary.

On the morning of 14 May, the police commander personally arranged for my transfer to Dubai. This was unusual, in that Friday is a holy day in the UAE. Once I arrived in Dubai, I was released within 15 minutes.

121    As he was travelling back to Abu Dhabi following his release from detention, Mr David received a phone call from Mr Besser, which was their first encounter. They communicated with each other from time to time thereafter. Nearly three years later, Mr Besser used information that Mr David gave him about his detention in an article headlined “Bad company” which he published in the SMH on 16 March 2013 (see [142] below). Mr David was cross-examined on the basis of that article and his affidavit of 1 June 2010 in the Cayman Island proceeding that dealt with his detention in the UAE.

122    Mr Besser’s account of Mr David’s overall detention in the Bad company article, was not as anodyne as that in the latter’s 1 June 2010 affidavit. It commenced, under a photograph of Mr David for which he had posed in 2013 for the purpose of the article:

The stench - a gagging foulness of human sweat and faeces from filthy squat toilets - overwhelms Rodric David as he's led, handcuffed, into a dank cell block crammed with 300 unwashed men. The Australian business tycoon - son of former grocery magnate John David, of IGA fame - tries his best to remain calm, but under his label shirt beads of sweat are trickling down his back. The shortish, stocky 40-year-old is the only Westerner in the cell at Abu Dhabi's Port Zayed police station. And certainly the only one wearing a Zegna suit.

Knowing that any sign of weakness could be perilous, David keeps his eyes fixed firmly on the concrete floor. He spots a spare little table, sits down, and pulls out a notebook and pen from his jacket. He starts writing · and writing. When he runs out of pages, he starts scribbling over the writing between the lines.

"The chairman will see you now," a fellow prisoner in a kendora, a traditional cream-coloured Arab gown, announces to him in English. David, at a loss as to what else to do, follows the man into a separate cell. Sitting on the bed is a fresh-shaven Arab, who looks David up and down and, in a plummy British accent, pronounces: "You are under my protection." He issues David with a series of instructions. Don't go to the showers. Don't go to the toilet. Don't leave your cell.

123    Mr David said in cross-examination that Mr Besser had interviewed him from time to time over the period between his detention and the publication of the Bad company article, but he had not given Mr Besser all the material that the article contained. Mr David said, and I accept, that he was treated differently on the first night of his detention in Port Zayed, where he was in a dank cell in handcuffs, and the second night at Shahama. He said in his 1 June 2010 affidavit (and he repeated in evidence to me, correctly) that there is a difference between being detained and imprisoned. In his affidavit he was making this point to answer the suggestion, apparently put by KTC to the Grand Court, as follows:

In truth, I have never been imprisoned in any offence in the UAE, Dubai or anywhere else. Further, and directly contrary to the evidence put before this court and the submissions made to the court on 21 May [2010], I have not been charged or held in connection with false accounting or any other offence, or released on bail.

The next stage in the Cayman Island proceeding

124    Later in 2010, Jones J ordered Ernst & Young, accountants, to prepare audited financial statements for Emergent and its subsidiaries (the audit report). Once the audit report was completed in early October 2010, the Grand Court ordered the sale of Emergent’s shareholding in Global.

125    On 14 January 2011, the shareholders of Emergent resolved, pursuant to undertakings given to the Grand Court, to place it into voluntary liquidation. The sale of Global realised AUD13.5 million which was paid into court in the Grand Court.

126    In the liquidation of Emergent, based on the audit report, RAAL, Mr David’s and Mr Singh’s other interests received about AUD10 million to satisfy their proofs of debt, while KTC and the Kazal brothers received about AUD1 million based on the audit report.

The ICAC proceeding

127    In early 2011, the ICAC subpoenaed Mr David to give evidence at a private hearing. He and his lawyers provided documents and evidence to the ICAC in its inquiry about an alleged undisclosed conflict of interest between a senior executive of the Sydney Harbour Foreshore Authority, Andrew Kelly, and Charif in relation to them allegedly discussing, from 2007, establishing a joint venture business in the UAE.

128    On 9 May 2011 Mr Besser wrote an article that appeared in The Sydney Morning Herald headlined: “Revealed: Kazal family links to Gaddafi”. It reported on a trip in late 2009 to New Zealand that Saif Gaddafi, a son of the former Libyan dictator, Colonel Muammar Gaddafi, had allegedly made to holiday with Tony (Kazal). The article described the Kazal brothers as having established “a glittering property empire in Sydney”, the “jewel” of which was a “handful of leases to some of the state government’s most precious heritage buildings in the Rocks”. It reported on allegations that Saif Gaddafi, and his brothers, had benefited from considerable (Libyan) government financing of the Kazal family’s businesses’ endeavours, including the purchase of Global. When Mr David read this article, on about the day of its publication, he was concerned, given the reputation of Colonel Gaddafi and the reporting of his son’s connection to the Kazal family.

129    On 12 May 2011, Mr David was having a drink with business associates at the Vault Bar in the central business district of Sydney when two of the Kazal brothers made their presence felt. They threatened Mr David with profanities, saying “we’re going to get you”. Mr David and his associates left the bar and the two brothers followed them calling out, loudly and verbosely and swinging a bag that appeared to contain heavy cans or jars of protein powder.

130    On 20 May 2011, Mrs David was driving in the vicinity of Bondi Junction in Sydney when she noticed that someone was following her in another car and took note of the registration number. She went to the Rose Bay police station and phoned her husband. They then went to pick up their children from Woollahra Public School, nearby, and she noticed the same car drive past. Mr David got out of their car and walked down the street carrying his mobile phone with the aim of photographing the driver of the other car through the passenger window which was wound down. As he approached, the passenger lunged forward, grabbed Mr David’s phone and the car began to drive off. Mr David jumped onto the bonnet and held onto the windscreen wipers for a distance as the car accelerated down the street. He finally jumped off injuring his head. He walked back to the school and by then the police had arrived. Mr David had kept records on his phone of the communications with his lawyers about the evidence he was going to give to the ICAC as well as all his personal and other text messages.

131    When Mr David told the police at the school about his dealing with ICAC they took the family to Paddington police station where they remained until evening. The police told him that the other car was owned by a private investigator engaged by Tony (Kazal). Mr David said that, during the events of that afternoon, his wife and children appeared to exhibit “terrorised horror”. Thereafter, the police and the ICAC provided surveillance security for Mr David and his family, and he employed a specialist security firm to provide them with physical protection. They rented a car and changed it every week. They received what Mr David said were “very strange” phone calls and observed lots of vehicles that appeared to be driving by their home.

132    During July 2011, the ICAC conducted public hearings in Sydney at which Mr David, Mr Hammond and, I infer Charif and Mr Kelly, gave evidence. At one stage during the ICAC hearings, Mr David became aware that Charif had accosted Mr Hammond in the hearing room. Those incidents reinforced in Mr David’s mind the need to move away from Australia for his and his family’s safety.

133    Because of these incidents, after the ICAC hearing, Mr David and Mrs David and their children left Australia in late 2011. Mrs David and their children were citizens of the United States. He said, and I accept, “we were terrified”. He said that they left “to get away from the Kazals” hoping, in effect, that things would calm down when he was out of sight and out of mind. His hope was dashed as events unfolded.

The decision of Jones J

134    Jones J heard the claim to set aside the share allotment between 7 and 11 November 2011 (chronology). On 23 November 2011, his Honour delivered judgment in the Grand Court: Emergent 2011 (2) CILR 329.

135    Jones J found that on 22 December 2009 Charif, on behalf of KTC, wrote to Mr David denying that it had any obligation to participate in funding Emergent. Jones J found that Charif’s denial in his evidence that KTC had an obligation to fund Emergent equally with RAAL was not credible. I accept Mr David’s evidence before me that the parties had agreed to fund Emergent equally and that the Kazal side, through KTC or otherwise, did not contribute their share of that funding to Emergent.

136    Jones J found that at 31 December 2009 Emergent was solvent on the basis that, as he valued its position, its assets exceeded its liabilities but that its solvency, from a cash flow perspective, depended on whether its shareholders were willing to fund it or wished to demand repayment of their loans. Thus, the issue of the 49,900 shares for only USD49,900 funded by a reduction of RAAL’s AUD5.8 million loan was not, in his Honour’s view, capable of being seen as actuated for the purpose of Emergent avoiding insolvency or raising the funds as working capital. Jones J found that in promoting the share issue, Mr David was determined to protect his own position by eliminating the Kazal brothers’ equity interest and assuming 99.99% ownership of Emergent. His Honour found that this would leave Mr David and Mr Singh owning and in control of the waste business that Global owned.

137    His Honour found that the action of the directors (Mr David and Mr Marvo) at the board meeting of 28 January 2010 “constituted a breach of their fiduciary duty because the only purpose was to eliminate KTC’s interest and pass ownership of Emergent to RAAL” (Emergent 2011 (2) CILR 329 at [51]). Accordingly, he ordered that the liquidators rectify Emergent’s register of members by cancelling the issue of the 49,900 shares on 28 January 2010.

Later events

138    On 16 December 2011 the ICAC reported on the investigation into Mr Kelly’s conduct. I admitted its report into evidence but limited its use under s 136 of the Evidence Act to evidence of the source of Mr David’s understanding and not of the truth of the facts asserted in the report. Mr David read the report when it was published. The ICAC found that in relation to holding out to Mr Kelly the prospect of employment in the UAE and paying him $11,170 for his accommodation and flight to the UAE in May 2007, Charif’s conduct was corrupt within the meaning of ss 8 and 9 of the Independent Commission Against Corruption Act 1988 (NSW).

139    On about 3 May 2012 the UAE Court acquitted Mr David of all charges and rejected Charif’s civil proceeding against Mr David. On 9 January 2013, the Court of Appeal of the UAE dismissed Charif’s appeal against the UAE Court’s determination of both the criminal and civil cases.

140    As noted above, on 8 March 2013, Thunder was incorporated in California.

141    Also on 8 March 2013, Adam, in company with another man, accosted John David in Woolloomooloo. Both were carrying hand held dumb bells. John David was then 82 years old. The New South Wales police facts in support of the ex parte provisional apprehended violence order that was issued on 22 March 2013 recorded that Adam had demanded $150 million, accused the David family of “swindling us out of $150 million” and yelled in John David’s face “you have stolen from us you cunt! I’m back in Australia now. I’m going to get you”. Passers-by intervened and Adam and his companion left. The police facts also recorded that on 15 March 2013 Adam attended at John David’s business address and demanded to see him, but he was not there.

The Bad company Article

142    On Saturday 16 March 2013 Mr Besser published two articles in the SMH, one headlined “Bad company”, the other “Two bags of money and a lot of trouble in Beirut”.

143    The Bad company article was lengthy and detailed. It recounted what it described as “the inside story” of how Mr David “ended up in a Middle Eastern jail after going into business with the Kazal brothers.” As I have noted above at [122] it contained Mr Besser’s dramatic account of Mr David’s first night of detention in Port Zayed on 12–13 May 2010, which was, I find, substantially accurate. The article said that Mr David had been:

thrown into prison because of a bitter falling out with an Australian man who once called him "brother" – Charif Kazal, a handsome, charismatic businessman whose Lebanese family owns a string of glamorous restaurants and bars in Sydney's The Rocks and Circular Quay, including a $13 million, three-storey nightclub called Bar 100, a popular look-at-me spot for many B-list celebrities.

144    The article stated that at an interview with authorities in the UAE after his release, Mr David was handed documents containing what the article said were Charif’s allegations in the Grand Court that Mr David “has been jailed for financial crimes and that their joint venture company has to be wound up immediately. A hearing is scheduled in four days time in the Cayman Islands”. The article referred to John David’s introduction of his son to the Kazal brothers as “good Lebanese boys”. The article discussed the joint venture structure and the way in which Emergent’s business in the UAE developed. It described Tony as having worked for the founding ruler of the UAE, having won the trust of the sovereign of Dubai and Tony being friends with Saif Gaddafi. It then described how the joint venturers fell out and, in December 2009, that Charif had written to Mr David denying that the Kazals had ever agreed to invest funds in the business and asserting that their role was confined to making introductions.

145    The article recounted that the board meeting of 28 January 2010 had brought about the dilution of the Kazals’ shareholding from 50% to 0.1%, and that “[i]t was a declaration of war and, ultimately a mistake.” It then described the course of events commencing with Tony lodging the false complaint with the UAE authorities and Charif’s assertion to the Grand Court that Mr David had been arrested and was then in prison in the UAE. Mr Besser wrote:

What David repeatedly failed to see - or chose not to in his haste to reap huge profits from a questionable housing project - was that this venture was probably doomed from the start. If David had bothered to do even a modicum of research into the history of the Kazals, he would never have even contemplated closing a deal on a handshake with Charif, Tony or Karl.

146    The article then traversed in some detail what it said was the history of the Kazal family. It asserted numerous less than flattering accounts of their personal and business ethics and dealings. This included an assertion that Tony had agreed to assist Hezbollah in a covert currency conversion of USD1.2 million for a significant profit. The article reminded readers that the United States considered Hezbollah to be a terrorist organisation.

147    The article also reported on Jones J’s judgment including:

The court ruled he [Mr David] had breached his fiduciary duties as a director in the debt-for-equity conversion that had practically eliminated the Kazals' share of the company.

The judge raised questions about David's truthfulness and drew an "adverse inference" about his failure to properly notify the Kazals of what he intended to do at the critical shareholders' meeting. The judge ordered their shareholding be restored. For his part, Tony Kazal says his family's claims were "entirely validated by the court and our shareholding was restored ... we went to court and we were vindicated".

But the actions against David also resulted in significant collateral damage for the Kazals. The same Cayman Islands judge found that the Kazals had indeed reneged on their promise to jointly fund the business. "Mr David thought that Charif Kazal was attempting to rewrite the history of their relationship," the judge found. "In my view the evidence overwhelmingly supports this conclusion."

148    The article then recounted that the Cayman Island’s fraud squad had investigated admissions that Charif made in the witness box which, it said, later embroiled him in a fee dispute with his lawyers. It reported that the Abu Dhabi Court (scil: UAE Court) had ruled that none of Charif’s criminal charges against Mr David were true and that Charif could not be accepted as a reliable or truthful witness. It said that the UAE Court had appointed experts who had found: “there is mismanagement by the company’s manager, Andrew Kelly, who throughout the dispute had been the Kazals’ star witness”.

149    The article then recounted what had occurred in the ICAC hearings, including the incident involving Mr Hammond, and that the “ICAC recommended prosecutors charge Charif with perjury for lying about the deal”. It also reported about the incidents in Sydney in May 2011 that Mr and Mrs David experienced, that I described at [129]–[131] above.

150    The second of Mr Besser’s articles in the SMH of 16 March 2013 described the detail of Tony’s alleged dealings with Hezbollah. Mr David read the article at the time of its publication, including its descriptions of the alleged links between the Kazals and the terrorist organisation, Hezbollah. He said that this was the first that he had heard about such a suggested link to the Kazals and when he learned of it, his anxiety about them increased.

The aftermath of the Bad company article

151    That anxiety was fuelled by the reaction that Adam, Charif and other Kazal family members then unleashed on Mr David and his family. Late in the morning of 16 March 2013, Adam began a barrage of aggressive text messages. Examples of the texts to Mr David and members of his family, including John David, appear below.

152    John David reported those messages to the police. According to the police facts, a sergeant phoned Adam who told the police that he (Adam) would continue to make all attempts to recoup the monies that he believed were owed to his family by the David family. The sergeant advised Adam to let his lawyers deal with his claims. He told Adam that his behaviour constituted harassment and intimidation and had to stop.

153    However, the police warning did not deter Adam from continuing his thuggish behaviour. On 18 March 2013, he attended John David’s business premises again and repeated his demands and threats.

154    On 19 March 2013, Adam made the following threats at 9:42am and 10:56am that he and Charif followed up by publishing the matters complained of not long after.

155    On 22 March 2013, the police made the provisional apprehended violence order preventing Adam from assaulting, harassing or intimidating John David, which was returnable before the Local Court on 27 March 2013. Subsequently, on 8 May 2014, the Local Court made a final order in substantially the same terms to remain in force for a period of two years.

The impact of the publication of the matters complained of on Mr and Mrs David

156    In about June 2013, Mr Hammond, in Sydney, performed a Google search for Thunder or Mr David in relation to his preparation for the forthcoming 2013 Australians in Film Awards and dinner that is an annual event in Los Angeles. He was going to attend the event and sit at the same table with Mr David. The search results threw up the Kazal website. Mr Hammond sent Mr David a text with a link to the Kazal website, which the latter received as he was leaving a movie theatre with his wife and children. Mr David glanced at the website when he received the text, saw what he described as “some salacious headlines and photos of me that were unflattering” and put the phone away until he had a chance to absorb it. At that point he felt a mixture of anger and despondency.

157    When Mr David looked at the landing page in his study after returning home from the cinema he felt an adrenaline spike of anger mixed with emotions of despair, anxiety and despondency. He saw the Kazal website as a continuation of the Kazals’ vendetta against himself and his reputation. He interpreted the blood red hand in par 43 as suggesting a risk to the life, principally, of himself, as well as those whom he loved. His first thoughts were how he could protect his wife and family from the repercussions of the scandalous, aggressive vendetta against him in the matters complained of. He said that he knew that legal proceedings would take a long time to address things and was burdened “by the sheer volume of the mud they threw”. He was also worried about the reputational impact on Thunder. He felt very despondent. That feeling was reinforced by his awareness that the publications followed close on the heels of Adam’s assault of his father (John David) and, because of “the threats embedded within it [viz: the first and second matters complained of] implied and otherwise, gave me real, real concern for my life”.

158    When he saw and went through the Intro article, on the night of Mr Hammond’s text he, again, felt angry, tormented and despondent.

159    Mr David he told his wife about the Kazal website the morning after he received Mr Hammond’s text and saw her shake involuntarily, exhibit grief and despair. He said: “All I could do was to hold her close and wait for it to subside”. After observing his wife’s reaction, Mr David said that he felt impotent and that he needed to protect her but “I couldn’t shield her from this”.

160    Mrs David observed her husband’s reaction on that morning as “a mixture of fury and incredulity”. She thought that the Kazal website was so unhinged that no one could take it seriously.

161    Mr David had never been found guilty or convicted of any crime. He denied that he was a corporate criminal or corporate thief or had ever paid money to Mr Besser or his employer, the owner of the SMH. He denied moving to the United States because he was guilty of corporate fraud or any criminality. Rather, he said, he moved his family there “to get away from the Kazals”. He said that each of the pleaded imputations in respect of the landing page and the Intro article was false. I accept that evidence.

162    Mr and Mrs David discussed what they should do about the content on the Kazal website. They considered doing nothing and ignoring it because it was so extreme and unusual while creating their own website to promote Mr David and Thunder, so that when persons searched the internet for him or it, their website would come up in the search results. However, as time went by, Mr and Mrs David perceived that people were treating them and their children differently in both personal and business matters and there appeared to be adverse impacts on Thunder’s business.

163    In the trial, Mrs David gave evidence before her husband from Los Angeles and he was present, without objection, on the audio/visual link while she did so. She recounted that because they had lived as a family in the United States since late 2011, they had only recently made friends or acquaintances of people in their new social and business circle, including among parents of children attending the same school and those children. The parents of a boy, who had become good friends of the Davids’ son, had also become reasonably good friends with Mr and Mrs David, but Mrs David said that, after June 2013, those parents stopped interacting with the David family and allowing their children to do so. Mrs David said that those parents “expressed to other people that they had read these terrible things online”. She recounted how their daughter had become close to the daughter of another couple and that both girls’ mothers had taken them to a Taylor Swift concert. Mrs David suggested to the other mother that they could have dinner together with their husbands but:

… my friend, who I was close to, who knew the mother in question, said that she had said to her, I feel bad that I keep telling Liz [Mrs David] no or ignoring it, but …her husband was quite a big deal with a big entertainment company and high-profile, and she basically said …. I can’t do it, because, you know, I read online about her husband, and I couldn’t risk doing that to my husband. He couldn’t risk the association. That was, you know, a paraphrase of what I heard…. I mean, of course, in these circumstances, it’s very difficult, because most people, out of social kindness, are probably not going to say to your face, “Hey, I read your husband’s a corporate thief”, so sorry, we’re not going to go out to dinner with you.

(emphasis added)

164    The worry about such reactions gave Mrs David sleepless nights. Mr David said that the girl’s father was a senior executive of a company that owned venues, Anschutz Entertainment Group, that was “influential in my industry”. Mrs David said that in the weeks and months following the first publication of the Kazal website in June 2013, it had “overarching effects” on their lives. She got to the point of trying not to say her husband’s name to people because in the circles in which they mixed people did Google searches (or “googled”) the names of businesses or other acquaintances. She feared that if they googled Mr David, they would read material on the Kazal website which, of course, included the landing page and its link to the Intro article. When she told Mr David, her partner for about 30 years, that this was what she was doing, he was furious and mortified. She described the impact that the publications complained of have had on their lives as costing hundreds of thousands of dollars in both lost business and legal fees and that she “wondered if … we would be able to stay together.”

165    Mrs David gave other examples of children making remarks to their son or daughter who told her things like “one of the boys in the playground saw dad on the internet and said he is a crook”. She said that those remarks caused her children distress and concern for their safety. When Mrs David related these remarks to her husband, she observed him to become angry and despairing, in a way that, to her, was “bordering on depression”. She said that he evinced a “sense of futility”. They discussed changing their names, moving away again, expressed their concerns about the effect of the publications on their two children and were so distressed that they asked themselves: “How can we live this day in and day out?” She said that the effect on her husband “was heartbreaking to see”.

166    Mr and Mrs David gave other instances of events in which the effect of the matters complained of manifested themselves in their social and business interactions. One evening in about October 2013, Mr Hammond and Mr and Mrs David went to dinner at a fashionable restaurant in Los Angeles with a prominent lawyer in the entertainment industry and his partner. Mrs David said that the lawyer had “his own prime spot table” and appeared to be well known to both the staff and other diners. She said that during the evening there was a lot of discussion about what the lawyer and Mr David might be able to do together in the future. Mr David said that he and the lawyer had a very productive discussion and got on well. However, as they were leaving, the lawyer took Mr David aside and said that he could not be associated with Mr David because there was “a lot of notoriety about you”. He told Mr David that when he went to the bathroom he had done a Google search on Mr David and saw material on a website that gave him cause for concern. Mr David felt angry on learning this. He said that was the end of any communications between him and the lawyer.

167    Mr Hammond also recalled this evening. He remembered the lawyer showing Mr David his phone, on which he (Mr Hammond) saw the Kazal website on screen and the lawyer saying “what have you done to these guys?” and that they “hate your guts”. Mr Hammond said that Mr David’s face blushed, and he appeared upset and embarrassed. He said that Mr David tried to explain his perspective but that “the story is [so] long and … almost unbelievable”. Mr Hammond said that, when returning to the Davids’ home that night Mr David said to him “that’s the end of that”.

168    The respondents put to Mr David in cross-examination that the likelihood to explain the lawyer’s reaction was that the lawyer had found details of a court case online. The case involved Focus on Cars Inc, the vendor of assets that Thunder appeared to purchase as part of its acquisition of its business premises. Focus had alleged that Thunder and Mr David breached the purchase contract, made intentional and negligent misrepresentations about Thunder’s ability to meet its contractual obligations and had fraudulently induced Focus to enter into the asset purchase agreement. As Mr David explained, that proceeding was, in fact, a cross-claim that Focus filed on 8 October 2013 in a proceeding that Thunder had brought against Focus in which Thunder alleged that Focus had made misrepresentations to induce the purchase (collectively, the Focus proceedings). The Focus proceedings settled at a mediation. Each action was dismissed and resulted in a reduction in the purchase price that Thunder had to pay Focus. There was no evidence before me of any publication concerning the Focus proceedings or any public knowledge of it that the entertainment industry lawyer knew or could have read before he told Mr David that there was “a lot of notoriety about you”. I accept Mr Hammond’s evidence that the lawyer had found and read the Kazal website, including the landing page and, I infer, the Intro article.

169    In about July 2013, Mr David became aware of Charif’s and Adam’s Twiter accounts. Over the years he noticed thousands of tweets posted on each that appeared to drive traffic to the Kazal website. He understood that the tweets used a bitlink to take the reader of a tweet about what seemed to be a news item, but diverted him or her instead to the Kazal website. This made him furious. To rub salt into the wound, Mr David felt the need to visit the Twitter accounts to keep abreast of the latest tweets.

170    In 2013, Thunder retained Nima Nami, a lawyer, to act for it. On 1 October 2013, Mr Nami, on his firm’s letterhead (Nami Law Firm), wrote to Charif, Karl and Tony at their Sydney office and GoDaddy at its Arizona offices. GoDaddy was then the host of the Kazal website. Mr Nami’s letters required Charif, Karl, Tony and GoDaddy to cease and desist publication of the matters complained of including on its website by 11 and 21 October 2013 respectively. The letter to the three brothers also required them to post an apology to Mr David.

171    A Google search screenshot for “rodric david” of 7 October 2013 showed the first result was a paid advertisement which appeared as “Kazal Family Story – Read about Charif and Tony”, gave a hyperlink to the Kazal website, and stated “Honest businessman from Australia”. The fourth item in the search results was “Your search – rodric david – did not match any news results”.

172    On 17 October 2013, Charif’s then Australian solicitor, Richard Mitry, replied to Mr Nami’s letter. Mr Mitry stated that Charif “is the sole of author of the website” and denied that Karl or Tony had any involvement in its publication or content. Mr Mitry wrote that Charif denied that the matters complained of on the Kazal website were defamatory of Mr David and asserted that the statements in them could be justified, included honest opinion and were made without any malice. Mr Mitry foreshadowed that Charif wished to bring proceedings for significant damages against Mr David.

173    On 18 October 2013, Mr David’s Sydney solicitor, Walter MacCallum, then of Aitken Lawyers, wrote to GoDaddy demanding that it remove the matters complained of.

174    On 3 December 2013, Mr Nami replied to Mr Mitry’s letter and rebutted its assertions in detail. Mr Nami again demanded that the defamatory publications on the website be deleted.

The Westside dealing

175    In early December 2013, Orlando Cabanday, a lawyer representing the Westside Group that had a business similar to that of Focus, approached Mr Nami to negotiate the lease of about 45,000 square feet in the premises that Thunder had acquired from Focus at a rent of USD45,000 plus outgoings and taxes per month for a term of 10 years. Mr David regarded this a good commercial opportunity for Thunder.

176    Mr Nami gave evidence that soon into the negotiations Mr Cabanday emailed him on 10 December 2013 enquiring in advance of sending a non-disclosure agreement “what can you tell me about this mess between Rodric and the Kazal brothers?”. Mr Nami attempted to explain the history of the dispute that Mr David had had with the Kazals and that he (Mr Nami) had been through those matters. He told Mr Cabanday that the allegations on the website were “completely not true” and vindictive. Subsequently, within minutes of their phone call on 10 December 2013, Mr Cabanday sent Mr Nami a draft non-disclosure agreement. However, Mr Cabanday did not engage later with Mr Nami’s attempts to follow up or pursue the negotiations. Within a few days, Mr Nami informed Mr David that Westside was no longer interested because its preliminary due diligence on him on the internet revealed that he (Mr David) was “some type of fraud”. Because it could not secure a tenant for it, Thunder used that space until about 2018 for storage, when it changed its use. Mr Nami said that Mr David was disappointed with this outcome and its connection to the Kazal website.

177    The respondents also asserted that Westside’s concern about the Focus proceedings was the reason for its cessation of interest in pursuing the lease negotiations. I reject that assertion. Mr Nami gave evidence that the parties mediated the Focus proceedings almost immediately after Focus commenced its cross action, which was filed on 8 October 2013. I infer that the mediation occurred before Mr Cabanday’s email of 10 December 2013 in which he inquired about “the mess between Rodric and the Kazal brothers”. Had Mr Cabanday or his client, Westside, been troubled by the Focus proceedings, it is likely that he would have raised those at the same time as his emails of 10 December 2013. But he did not because, I infer, the Focus proceedings were not of concern. Since Thunder secured a substantial reduction in the amount of the outstanding promissory note it owed to Focus for the purchase price, the answer to any such enquiry would be likely to have satisfied a commercial person that Thunder had not been at fault in the disputes the subject of the Focus proceedings.

178    Moreover, had Mr Cabanday read, or received a fair report of, Jones J’s decision in Emergent 2011 (2) CILR 329, he would have seen that Jones J found that Mr David had breached his director’s fiduciary duty by creating an allotment to dilute the Kazal brother’s shareholding. As Jones J made clear, this occurred in circumstances where the Kazal brothers were falsely claiming that they did not have to contribute to funding the joint venture vehicle and had made a relatively insignificant contribution to it of AUD600,000, in contrast to Mr David’s company’s contributions of over AUD5.8 million. It is doubtful that businesspeople would consider the facts or Jones J’s findings (or a fair report about them) about Mr David as suggesting that they should not do business as a tenant with Mr David or Thunder. The conduct as Jones J found was suggestive of Mr David’s frustration with having to continue to fund the joint venture with substantial funds, while the Kazal brothers were dishonestly repudiating their obligations to provide any significant funds.

The LA Biz and backstage posts

179    In about May 2014, Thunder launched an initiative called “Thunder Funder” to generate interest in its business among persons in the film industry and promote sales of its services. Mr David said that Thunder engaged a publicist to assist in it obtaining favourable positive publicity for the initiative.

180    On 28 May 2014, backstage published an article headlined “Best $1 million for your LA Indie Film” (the backstage article). The article had a picture of Mr David and informed its readers that he owned Thunder which had acquired Focus’s premises as a result General Motors’ recent bankruptcy filing. It stated that Mr David wanted to partner with others to use the 20 soundstages to produce indie films. He had launched an initiative called “Thunder Funder” offering a total of $12 million in funding for 12 independent film makers to undertake projects each year for the foreseeable future.

181    On 30 May 2014, Charif added the backstage post to the comment section of the Facebook version of the backstage article that commenced:

If you are currently doing business with Rodric David, or even thinking about it, you need to visit our website - http://www.kazalfamilystory.com - 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 many illegal and fraudulent actions. Below is a sampling of what the Judge had to say about Mr David's business practices:

182    On 6 June 2014, the LA Business Journal or LA Biz, published an article (the LA Biz) article headlined: “CEO Rodric David offering $1 million to independent projects through Thunder Funder. The article was lengthy. As I noted above (at [58]) Mr David said that the LA Business Journal is the equivalent of the Australian Financial Review as “the number one business paper in Los Angeles”.

183    On 8 June 2014, Charif made the LA Biz post to the comment section of the Facebook version of the LA Biz article, which was identical to the backstage post.

184    Mr David felt angry and very dejected when he saw each of Charif’s posts. He said that “the guy is following me around the world” and that “there was no way I could prevent the attacks against the positive messaging specific to the business”. He considered whether he should seek to separate himself from Thunder’s business so that the focus of the attacks would remain only on him.

185    He said that this experience resulted in him concluding that Thunder could not market itself “openly in a way that wouldn’t allow Charif Kazal a platform to amplify his attacks on me. It was extraordinarily damaging”. And Charif’s online activities involved him manipulating the search engine optimisation (SEO) results for each of Mr David and Thunder to place his (Charif’s) negative posts on the Kazal website at or near the top of search result pages.

186    On 23 May 2014, Charif opened his campaign on a new front by placing a paid advertisement on LinkedIn in The Australian Property Institute members group which appeared as:

187    Once again, Mr David felt angry and dejected by this paid attack on him.

188    In about August 2014 Charif opened a further front in his attacks on Mr David by posting press releases on various websites in online publications. On 8 August 2014, one press release headed “Charif Kazal and Linton Besser’s Untruthful Articles Published by Sydney Morning Herald” on ReleaseWire, which appears to operate in Australia and the United States, and related sites. This press release rehearsed the by now familiar theme that Mr Besser had victimised the Kazal family in the Bad company and other articles and that the ‘true story’ was available on the Kazal website to which it provided a hyperlink. It praised the connections and qualifications of Charif, Tony and Karl and their achievements. Notably, the press release said nothing about their failures to meet their funding obligations that Jones J had found. Another press release, published on ReleaseWire, on 7 August 2014, was headed “Why Linton Besser, Sydney Morning Herald Journalist, Aided and Abetted Rodric David”. Its content was equally predictable and it too included a hyperlink to the Kazal website.

Commencement of this proceeding

189    On 15 August 2014, the applicants commenced this proceeding against Charif and Adam. Mr David hoped that this would cause them to pause or stop their activities on the internet defaming him and Thunder. He was sadly disappointed. Later on 15 August 2014, a process server, Richard Wellmeela, attempted to serve Charif and Adam at one of their business premises, a bar in the Rocks in Sydney. Neither was there but Mr Wellmeela gave his phone number to an employee of the bar and soon after Adam rang him while he was still there. Adam told him “Tell the lawyer to stick the document up his arse”. Adam uttered other profanities including “I will then come to fuck the lawyers”. I note in passing that this response appeared to reflect Adam’s conduct and attitude to this proceeding, as I explain below, until he gave evidence when applying to be released early while serving his sentence of imprisonment: cf: Thunder Studios Inc (California) v Kazal (No 6) [2017] FCA 1573 at [52], [58]. Relevantly, however, when Mr David saw Mr Wellmeela’s affidavit of service of 5 September 2014, he was horrified and scared by Adam’s statements. As events in late 2016 were to demonstrate starkly, Mr David had good reason to have that reaction.

190    A Google Analytics report for the Kazal website for the period between 20 June 2013 and 5 September 2014 showed that:

191    In his answers to interrogatories, Charif said that between June to July 2013 and 21 September 2017, there had been, in Australia, 2404 page views of the Kazal website by 324 users and, in the United States, 556 page views of it by 36 users. He said that there had been an estimated 100,758 page “impressions” of the Kazal website, and 7,429 of the Intro article. Dr Schatz described a page “impression” as a potential, rather than an actual, view. Charif also asserted that there had been only one page view of the Intro article by one user in Australia and two page views by two users in the United States. I do not accept that the Intro article had so few page views or readers, since Mr David, Mr Hammond and the parties’ lawyers had read it. I place no weight on that estimate by Charif of the viewing of the Intro article.

192    On 9 September 2014 Aitken Lawyers wrote to Twitter demanding that it remove the link to the Kazal website published in each of Charif’s and Adam’s tweets on their accounts.

193    On 19 September 2014, GoDaddy wrote to Aitken Lawyers saying that without a Court order it could not take action in respect of the Kazal website.

194    On 14 November 2014, Charif and Adam published their first article “Ms Kate McClymont, Sydney Morning Herald: Kazal Family Story” on another online platform called prsync that allows persons to post press releases. In it he berated Ms McClymont, a well-known journalist with The Sydney Morning Herald, for writing about Mr David. Charif referred to Mr David in the article as a “convicted criminal” whom Ms McClymont has portrayed “as an innocent businessman being intimidated by the Kazals”. Charif asserted that she had portrayed “… my family, like we are the wrongdoers when in fact you are portraying an ex-convict who served time in gaol as some poor innocent victim is beyond pathetic”. The article stated that Charif had submitted it and it was signed by Adam, so that both were publishers of it. This was another rant and included, as usual, a link to the Kazal website so that readers could identify Mr David as the falsely described “ex-convict”. Charif followed up with further publications on prsync on 12 December 2014, 13 May 2015 and later, each of which was focussed on denouncing Mr David personally and Mr Besser’s publications. Each of those publications by Charif had a hyperlink to the Kazal website. Mr David explained that posting a press release or publication on prsync allows other websites to make automatic uploads of their content, which then provides an input to Google’s algorithms used to assess ranking of items in search engine optimisation results.

195    Subsequently, Charif and or Adam’s barrage of online postings continued. Next, in about May 2015, posts and articles about the Kazal Family Story and related topics began appearing on Pinterest. That online platform that is a photo hosting site. A post on Pinterest’s United States platform is published on its network worldwide and, again, is an input for search engine optimisation algorithms.

196    Needless to say, Charif and other Kazal brothers made multiple postings on their Pinterest accounts, many included snippets from, and of course links to the Kazal website such as:

197    Another Pinterest post, depicted below, showed that the information and link to the Kazal website also appeared on another website, buzzfeed.

The Steven Rockefeller encounter

198    During 2015, a friend introduced Mr David to Steven Rockefeller, one of the heirs to the Rockefeller fortune, who owned a media company. Mr David began negotiating a business deal under which Mr Rockefeller and one of his associates discussed merging their entertainment business with Thunder’s and contributing USD10 million working capital. Mr and Mrs Rockefeller had invited Mr and Mrs David to stay with them at the Rockefeller estate in New York and Mr David anticipated that the “deal” would be closed at a meeting there. On the day before they were due to fly to New York, the friend who had introduced Mr David phoned him to say that Mr Rockefeller was withdrawing from the deal and that Mrs Rockefeller had said to her husband that “she was not going to have crazy Arabs knocking on her door”. During their negotiations, Mr David had told Mr Rockefeller about this proceeding and the Kazal website. He said that Mr Rockefeller was comfortable and understood that the Kazal website and other publications that the Kazals had generated were malicious attacks. By this stage, Mr David considered that he had to take persons with whom he was beginning to deal or commence a relationship through the story about the Kazal website and related publications. He said that this made him feel embarrassed but “I thought it was always better for me” to do so.

The quiet before the storm

199    On 9 June 2015, Aitken Lawyers wrote to Adam (who had not filed an appearance) advising him that the Court had ordered a mediation to occur on 16 June 2015 and invited him to attend. Adam replied in an email on 15 June 2015 brazenly asserting that he had removed his Twitter post and:

“I have no intention of putting it back up. I am an undischarged bankrupt.

Accordingly, I see no reason why you will pursue a case against me”.

200    He said that he had no interest in mediation. His email reflected a detachment from the reality of what he was doing that pervades the behaviour of both respondents. There is no evidence that Adam removed his Twitter posts.

201    As at mid-August 2014 over 4,800 individual tweets were available for viewing on Charif’s Twitter account and over 3800 on Adam’s, which as at 8 September 2015 had increased, respectively, to 6,166 tweets and to 5,856.

202    On 7 August 2015, Mr MacCallum wrote to Charif’s solicitor, Mr Mitry, making an open offer to settle this proceeding on the basis that Charif and Adam agree to be enjoined from further publication of the matters complained of, continuing to make the misleading representations using the bitlinks on their Twitter accounts and pay $100,000 in costs. There was no response.

203    On 22 March 2016, soon after Mr David’s father’s death, Mr MacCallum wrote to Mr Mitry repeating the earlier open offer but adding a further term, that the proposed injunctions would not prevent Charif from publishing a fair report of Jones J’s judgment. Once again, there was no response to the offer. However, Charif adopted a new tactic that turned the posting of material onto the website into a virtual storm.

204    In 2016, GoDaddy suspended the Kazal website’s account after Mr David complained to it under the Digital Millenium Copyright Act (US). However, predictably, the respondents did not let this interfere with their persistence in harassing and disparaging Mr David and Thunder. They simply found a new host, a site called Indurance and kept the Kazal website operating as before. After Mr David’s lawyers made a new complaint to Indurance, it ceased hosting the Kazal website and the respondents found a new host, Orange. Orange was located in Iceland which required a complainant to follow a different process, under Icelandic law, for removal of a website. Mr David did not pursue such a process, since he thought that Charif and Adam would find another compliant host site if he went through the new process.

The 2016 activity on the Kazal website

205    From 1 April 2016, Tony and Charif began posting emails or news articles on the Kazal website on an almost daily basis. Their theme was in the headlines, for example, “Tony Kazal demanding answers from Richard Bribe Taker Story Maker Baker – Day 1” on 1 April 2016, “The lies to cover the Corporate Fraud Syndicate” by Charif on 3 April 2016 and “Charif Kazal Demands Answers from the Corporate Thief Rodric David – Day 2” on 11 April 2016. The articles rehashed in splenetic, distorted descriptions, the by now familiar themes. Richard Baker was a Fairfax journalist who wrote in The Age. This series of postings on the Kazal website culminated on 2 March 2017 with an article headed “Rodric David Reminded the Kazal family refused his family’s witnesses tampering Attempts – Day 163” that was signed by Tony. This last article was a rant that included statements such as:

Well guess what ! l don't care if it takes 20 years for justice to be served, I will not stop until every last grub your family has paid off is brought before the Courts and made accountable for the endemic corruption that surrounds you!

…

The evidence of your crimes is outlined on Charifs website www.kazalfamilystory.com which is tracking the truth of what occurred in our dealings with you and highlights the many crimes committed by you and your co-conspirators against Charif & I.

Your criminal acts that include being found guilty by the Court of stealing from Charif & I and having Fairfax Media write more than 30 malicious articles about Charif & I to help you steal from us and destroy our entire family's business reputation.

(emphasis added)

206    The other numerous examples of these postings rehearse the same familiar themes. Once again, the multiple postings had the purpose of exploiting the search engine optimisation algorithms so as to increase the use of Mr David’s name and thus his ranking in search results. In addition, many of these postings also were emailed to Mr David, Thunder and, initially, to a generic email address for sales at Thunder but later to individual employees. Mrs David saw many of these both on the Kazal website and on Twitter. Some of the postings to the Kazal website in this campaign were directed and emailed to Mr Singh and his employees.

207    On 1 September 2016, Charif emailed Mr David and employees of Thunder and posted on the Kazal website an article entitled “Charif Kazal Demands Answers from the Corporate Thief Rodric David – Day 74”. This article began by reciting that Charif and Tony had “commenced litigation against you for Fraud and Embezzlement and to wind up all of our businesses jointly owned with you starting in early 2010”. He accused Mr David of having made a vexatious complaint to the ICAC about Charif bribing Mr Kelly in 2007 when he (Mr Kelly) was a public official. He asserted that because of Mr David’s alleged breaches of a joint venture, the UAE based partner had terminated the contract. Charif then alleged that Mr David was in a conspiracy with Fairfax Media and Mr Besser to report lies over six years “for your benefit”. Charif alleged that this was “part of a deliberate strategy to steal the GRL [Global] business from Tony and I” and continued:

We have all the evidence of your crimes recorded on [the Kazal website] which contains all of your lies, corruption and contradictions for the world to see and judge for themselves.

The actions you took and those of Fairfax Media to support your lies by attacking innocent members of my family have cost us in excess of $3 Billion this past 6 years.

The truth is on our side which is why you can never evade us from pursuing you until you are made accountable before the Courts.

We will not stop until all is revealed about your disgusting malicious crimes against my family.

(emphasis added)

208    The tone of that posting and email was threatening and confronting. The Kazals instigated the winding up of Emergent on the just and equitable ground on the basis of the invalid allotment that Mr David had promoted. The winding up resulted in the sale of the interest in Global, the distribution to the joint venturers of the amounts Emergent owed them and a division of the balance on an equal basis. The alleged cost to the Kazals of “$3 billion” and “crimes” does not have any apparent grounding in reality.

209    Charif followed the 1 September 2016 posting with another email on 3 September 2016 entitled “Charif Kazal Demands Answers from the Corporate Thief Rodric David – Day 75”. This was largely repetitious of the previous posting, but also complained about Mr David’s conduct in allegedly setting up a website that was the subject of the cross-claim that Charif abandoned immediately before he would have had to give evidence to support his claim that Mr David had defamed him.

Litigation in the United States

210    Mrs David agreed in cross-examination that after a time, these emails and postings became “a constant barrage”. The purpose of the cross-examination of Mrs David on these postings was to link the distress which Mr and Mrs David felt as a result of that “barrage” of emails being sent to Mr David and Thunder’s employees and the picketing and pamphleteering that occurred in late October and November 2016 around the Davids’ home in Los Angeles contemporaneously with Adam’s conduct that resulted in his convictions for contempt of Court and the damages that Mr David and Thunder claimed in a proceeding against Charif, Adam and Tony that they brought in the United States District Court for the Central District of California in February 2017 (the District Court proceedings).

211    Mr David felt angry about the content of this stream of emails and the fact that it was also directed to the work emails of the staff at Thunder. He thought that those emails were also causing his staff stress and anxiety. He had to reassure them that there was no truth in the allegations against him. He offered them therapy if any needed it and told them that if they did not want to come to work because of the emails, they could have a sick day. He said that his staff expressed concern for their physical safety because of information in the material online, such as the newspaper articles suggesting connections between the Kazals, the Gaddafi family and Hezbollah. Mr David said that the public perception and fear in the United States about those persons and bodies at the time was different to that in Australia. He was distressed and concerned as to how his staff had been affected by this conduct. That distress only increased with what happened in late October 2016.

212    On 21 October 2016, Charif filed an amended complaint against Mr David and others in the Superior Court of the State of California for the County of Los Angeles – West District (Charif’s Superior Court claim). He claimed that Mr David, among others, had published the Kazal Family Truth, the publication of which was also the subject of Charif’s abandoned cross-claim in this proceeding. One complaint in the articles and emails that Charif posted after April 2016 related to the fact that, as Charif asserted, Mr David did not identify himself to be responsible for the Kazal Family Truth website. Mr David denied in evidence to me that he was responsible for the publication of the Kazal Family Truth website and said that the chief technology officer of Thunder from mid-2015, Matt Price, was its publisher in his private capacity.

213    Charif’s Superior Court claim asserted that Mr Price, Mr David and others had violated provisions of the United States Code relating to cyber-piracy, cybersquatting and the Business and Proprietorship Code relating to unlawful domain name registration and unfair business practices. Mr David denied in cross-examination that Mr Price had informed him that he (Mr Price) had created the Kazal Family Truth website before Mr David had been served with Charif’s Superior Court claim. Senior counsel for the respondents accused Mr David of lying in making that denial. In re-examination, Mr David said that he felt humiliated when accused of lying. Although the respondents criticised Mr David’s veracity on this issue, I accept his evidence that he was not aware of Mr Price’s responsibility in creating the Kazal Family Truth website before being served with Charif’s Superior Court claim.

214    First, Charif abandoned his cross-claim based on Mr David being the publisher of the Kazal Family Truth website. I find that, because Charif declined on the sixth day of the trial to pursue his cross-claim, any evidence that he could have given would not have assisted his case, both on the cross-claim and the defence of Mr David’s claim: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384–385 [63] per Heydon, Crennan and Bell JJ; Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J, 312 per Menzies J and 320–321 per Windeyer J.

215    Secondly, the respondents led no evidence to support the accusation during the trial, when it was a live issue in the cross-claim before Charif abandoned it. I infer that Charif had no documentary or other evidence, admissible against Mr David, to challenge the veracity of Mr David’s evidence that neither he nor Thunder was responsible for the publication of the Kazal Family Truth website or knew of Mr Price’s role earlier than he said, despite the availability of forensic processes of discovery and interrogatories in this proceeding and in Charif’s Superior Court claim (including, there, the availability of oral depositions).

The events of late October and November 2016

216    The online campaign directed at Mr David intensified in late October 2016 and morphed into a physical and disturbing form. Mr and Mrs David also gave evidence of the traumatising effect of the conduct and threatening behaviour that Adam and his brothers orchestrated in Sydney and Los Angeles in late October and November 2016.

217    On 26 October 2016, at about 6:15am, Mrs David walked downstairs in their Los Angeles home, which was in a cul de sac. It was dark outside but she saw a car full of men driving slowly past their house and slowly back again. Mr David had gone to the gym earlier that morning. She received a call from her neighbour who normally picked up their son to take him to school. The neighbour informed Mrs David that there were men on the street holding signs with Mr David’s picture on them. Her son went outside and got into the neighbour’s car. About two minutes later, the boy phoned her, hysterical, about the men, the signs and their allegations against his father. She told him that she would deal with things, he could go to school and she would talk to him later. At that stage she had not seen what was outside. She told their daughter not to leave the house because she did not feel safe. She locked up, leaving her daughter in the home, put on the alarm and got into the car. When she got to the corner she saw about five men holding large posters with Mr David’s face on them that proclaimed him to be a “Corporate Thief”. They had also placed two metre long banners on trees and stop signs. She rang her husband and said that she did not know what was happening. Mrs David also called the police because she was so distressed.

218    Mr David arrived home from the gym while his wife was speaking to the police. The police told the protestors that they could not hang their signs on public or private property, but the police told Mrs David that there was not much else that they could do as the men were on public property. Mrs David said that, given their experiences of the Kazals, she felt a heightened sense of threat and fear from this incident. She said their daughter, who usually walked to her school, which was a short distance away, was in tears, confused and terrified. She had to go with her daughter into the classroom and discuss the situation with the school principal. The men returned again over the next days. Their daughter did not walk to school until after Christmas 2016.

219    When he arrived at Thunder’s premises later on 26 October 2016, Mr David saw about 12 protestors doing the same thing as at his home, disrupting the driveway into the studios. Mr David rang his wife from work and told her that the same thing was happening outside Thunder’s premises. He called the sheriff who told the protestors that they could not approach private property. He was horrified, exasperated and very afraid because of those actions and posters. To him, “this was a step that we could never imagine”. He felt powerless to protect his family and children from this abnormal conduct. He said that the protestors were posting what they were doing on social media. He also saw a van (as depicted in [221] below) driving slowly in Los Angeles near his home, the children’s school’s front gates and Thunder’s premises. Mr David said that the protestors chanted “Rodric the robber” and took videos of their activities and posted these on Youtube and the Kazal website as appears below:

220    On 26 October 2016, Mr David rang his wife and said that the same thing was happening in Sydney (where it was 27 October 2016). At some point that day he also told her that vans were driving around Sydney. Mr David’s brother sent him photos of the similar activities of protestors and vans in Sydney, in the Central Business District and Eastern Suburbs, one of which is below:

221    Within a few days, Mrs David saw a van with the detailing below driving past their home, her daughter’s school and the neighbourhood:

222    Mrs David said that on one occasion the van and some accompanying cars were taunting her as she spoke to police about her fears. She said, and I find, that “it was terrifying. It was intimidating”. She engaged a security company to change all the locks at their home and install security lights and security cameras. She said that the Kazals were having her followed and photographed. Her doctor had to prescribe her with anti-anxiety medication as the extraordinary behaviour escalated. She began losing her hair and losing weight. The behaviour was, as I would infer could be expected, having a significant, adverse impact on their children and, of course, to her observation, on Mr David. She said his reaction was “fury… tempered by anxiety and fear”. Mrs David said that:

there just seemed to be this ever escalating series of events, and this was this was sort of our nightmare come true, that them being here on our doorstop, with men and aggressive tactics you know, we had tried very hard to keep our address in the United States secret, private used a PO Box for everything, you know, purchased the house in the name of a trust that had nothing, no reference to our Christian names. You know, the idea of them being here in Los Angeles, on our doorstep, around our children’s school, around his business, was it was terrifying, so whilst there was a lot of anger and rage and fury, there was equally fear and anxiety. It was gobsmacking.

223    On 28 October 2016 (Sydney time), Adam sent an email to Mr David and numerous Thunder employees, in the same manner of communication that Charif and Tony had used since about April 2016. Adam’s email was headed “Adam Kazal Demands Answers from Online Identity Thief Rodric David – Day 1” and read:

Rodric David,

You defrauded companies you owned with my brothers Charif & Tony.

You admitted under Oath to being the one the Sydney Morning Herald wrote their lies for to fabricate an ICAC Inquiry.

You used the Herald articles to avoid prosecution and steal the $180 million company you owned with Charif & Tony Global Renewables with help on the theft from CEO David Singh.

You had the Herald write an article attacking all of our family members and Oscar is suing them for that.

Now I find for at least the last 6 months you have stolen my identity to publish disgusting lies to embarrass me and my family just because I am Charif & Tony's brother. You also stole the identity of Charif, Tony & Karl.

You made it personal and I will show you that I am not going to put up with the crap you tried to dish out to my brothers.

My team in LA are going to expose you wherever you go until you are charged with your crimes and my team in Sydney will expose all of the spineless thieves who thought they could help themselves to steal from my family.

Getting your hyena to scream at the LA Police like she did yesterday exposing how the disgustingly racist elements of your family are not restricted just to your Syrian David blood is not going to stop me and my crew!!

I will show the good people of LA what scum they have allowed into their city that Australia is glad to be rid of. Let's see how you like having the truth of what you get up to reported for the world to see your true colours.

You and your crime lord father John David might be used to stealing white collar style with help from your family's ex-politician lapdog but I really don't care about any of that.

You start a fight with me, I will show you how Adam Kazal is different to the rest of the family.

See you around grub.

(emphasis added)

224    Adam’s statement “Getting your hyena to scream at the LA police” was a reference to Mrs David’s reaction to the shocking events that occurred on 27 October 2016 outside their home.

225    On 28 October 2016, Adam also republished that email on his Twitter feed under the heading: “hey @Rodric_David my team in LA are going to expose you wherever you go! – Day 1”. That republication was the subject of Adam’s conviction for contempt summarised in pars (c) and (d) by the Full Court (see [12] above).

226    When Mrs David read Adam’s email of 28 October 2016 (which was dated 27 October 2016 when it was received in Los Angeles) and its reference to “my team in LA and my team in Sydney” she “thought it was terrifying”. She knew of the earlier apprehended violence order against Adam as a consequence of his conduct toward her father-in-law. She said “I read this as a genuine threat. I read this as a threat to our safety, the safety of my children, the safety of my family”. When she expressed her fears to Mr David, they agreed to approach the Federal Bureau of Investigation (FBI) and the local police because of the unpredictability of the situation and to apply to this Court for an injunction. She also said that Adam’s misogynistic characterisation of her as a screaming animal was false and that she had not screamed at the police. Both she and Mr David read the contents of the email as a direct threat. She also learned that Adam had made the tweet of 28 October 2016.

227    Mr David burst into tears when he was taken in examination in chief to Adam’s email of 28 October 2016. He gave this evidence, that I accept, of its effect on him:

I was traumatised. I was in fear of my life and the life of my family. My extended family in Australia. My father.

228    Immediately afterwards, in response to questions in chief, Mr David said that his cultural heritage included Swedish, Lebanese, Egyptian and Syrian strands. He was then asked whether, although he was not a Muslim, he was proud of that racial heritage and said “Absolutely, I’m a proud son”. However, in late 2018 in the jury trial in the District Court proceeding, Mr David gave the following evidence concerning Adam’s racist taunt about “your Syrian David blood” in the 28 October 2016 email:

Do you have Syrian blood? --- That’s the funny thing, no.

(emphasis added)

229    In cross-examination before me, Mr David denied lying to the jury by saying that he did not have Syrian blood. He said that there was a family debate about the location of an ancestral village on his father’s side as to whether it was in Lebanon or Syria and asserted that “I misspoke at the time. It wasn’t a deliberate lie… It’s innocuous to me”. His cross examination continued:

You gave that answer to the jury, and you denied your Syrian blood to the jury, because you wanted them to find against the Kazals, who you painted as Muslims, and Arabs, isn’t that right? --- No, it’s not.

And you painted them as having links to Hezbollah, isn’t that right? --- No, it’s in the articles that were written about them.

And you thought that by telling lies about your Syrian blood, you would obtain an advantage over the Kazals in this trial before the jury, didn’t you? --- No.

Lets have a look at how your counsel opened this jury trial, at transcript page 13, please. Can we go down to line 14. You see there, Mr Wiener told the jury, in his opening, these articles, which will be introduced by both sides, also link the Kazals to Hezbollah, which is a terror organisation, and the Libyan regime of Muammar al Qaddafi; do you see that? --- I do.

And your counsel put that to the jury on your instructions; didn’t he? --- No, counsel ran the case as he saw fit. I’m not the lawyer.

(emphasis added)

230    I do not accept that Mr David was mistaken in giving his answer to the jury that he did not have Syrian blood. I find that he lied on that occasion. This has made me examine closely his evidence in general and be cautious in treating it at face value before accepting the large part of it in these reasons as I have, including his account of what happened to him while detained in the UAE during May 2010. Most of his evidence, apart from his state of mind, was consistent with objective facts or satisfied me as to its inherent plausibility. I have said that some of his account is coloured by the hurt and pain of the abusive conduct of the Kazals beginning with his arrest in the UAE, and continuing with the online and then physical threats and harassment to which he was exposed. Nonetheless, in considering the evidence as a whole, which spanned events over 13 years and concerned the considerable antipathy between the parties, I formed the view that the findings that I have made are warranted after having had regard to the matters and standard of satisfaction that I must reach prescribed in s 140 of the Evidence Act.

231    I have allowed in making my findings for the emotional scarring of the years of traumatising behaviour to which the Kazals have subjected Mr David and his family, which is likely to have detracted somewhat from his ability to give a wholly detached account. Having considered Mr David’s evidence as a whole, including as to his state of mind, I am satisfied that, in general, he was endeavouring to tell the truth and recounting a reasonably accurate history of his experiences of the verifiably extraordinary behaviour of the Kazals towards him and his family.

232    I accept Mr David’s evidence that Adam’s email of 28 October 2016 “changed the game”. He was in fear of his life and said that “[t]he escalation was extreme, and here is a clear and concise statement saying he is going to be very much different to his brothers in the way he seeks to deal with this”. He described Adam’s use of the anonymous face mask on his Twitter feed as reinforcing his perception that the behaviour to which he and his family were subjected in late 2016 was a vendetta. He was also concerned that Adam had included in his emails and tweets the individual email addresses of many of Thunder’s staff. This conduct caused Thunder to install a new firewall.

233    On 28 October 2016 Mr MacCallum wrote to Mitry Lawyers. Mr MacCallum put them on notice that Mr David believed that their client, Charif, and his brother, Adam, were responsible for the vans, protestors and posters that had been displayed in Los Angeles and Sydney. The letter noted that overnight posters had been affixed to telegraph and light poles along New South Head Road and Victoria Road in Sydney’s Eastern suburbs that appeared in the form below:

234    Mr MacCallum sought, by 5pm on Monday 31 October 2016, an undertaking from Charif that he would not post or display any signs, including on vans, to the above effect, or convey any of the imputations pleaded in the statement of claim, or any imputations that Mr David was a corporate thief, stole $180 million, was guilty of fraud, was a conman or conspired with Mr Singh to steal $180 million.

235    On 31 October 2016 Adam sent an email to Mr MacCallum headed “Response to your Letter”. Relevantly (as I found in Kazal [2016] FCA 1598 [6]–[9]), the email said that Adam had received Mr MacCallum’s letter and that the letter appeared:

to be trying to link me back to a case I was removed from at the outset when I removed the content your Client claimed offence to from my Twitter feed.

236    Adam wrote in the email that he did not regard Mr MacCallum’s threat in his letter of 28 October 2016 as related to the case involving his brother, Charif, being, I infer, this proceeding. Adam said this was a separate issue and a case that, for him, had ended a long time before. The email then proceeded to say among other things:

Regarding the van, do you seriously claim to be a lawyer? You are the same person as I recall that orchestrated and fabricated the ICAC case with Rodric David just to create a smokescreen for his highway robbery. That makes you nothing more than a common thug and liar fabricating claims to enable this man to steal from innocent victims. Is that what a lawyer does? I don’t think so.

You want me to cease using the Van? Are you serious? 

(emphasis added)

237    In the email, Adam made a series of allegations accusing Mr David of creating or being involved in the creation of false webpages that purported to be associated with members of the Kazal family, including Adam, but were, in fact, operated and controlled by Mr David and Thunder Studios (seemingly a reference to the Kazal Family Truth website). He asserted that those webpages defamed Adam, his entire family, and others. I infer that this allegation related to the subject matter of Charif’s abandoned cross-claim. Adam wrote in the email:

So if you think I am going to stop then clearly you also aren’t a very good lawyer!

238    It continued by referring to Mr David allegedly supplying The Sydney Morning Herald with misleading information that was used to defame, allegedly, the Kazal family in more than 30 articles, including some concerning Adam personally. It then said:

Unless your Client removes the offensive website and transfers the domain name www.adamkazal.com to me as the lawful owner, pays my costs of $666,666.66 for Legal & Marketing Costs, Pain and Disruption to the Bank Account mentioned below and issues a written public apology by 4pm tomorrow, I reserve the right to not only continue using the Van, but to also increase the size of my fleet.

Bank:…

Account Name:…

BSB…

Account #:…

If you fail to meet my demands and include a copy of any EFT Confirmation issued by the Bank the I reserve the right to do whatever is necessary to expose the Corporate Fraudsters Rodric David & David Singh who stole $180 million from my family as well as all other persons that have intentionally aided and abetted the Fraudsters in the process. Feel free to warn all involved to ensure they have a good digital image online if they want to look their best on the side of my growing fleet of vans……

For the avoidance of any doubt, that includes you too Sir. 

(emphasis added)

239    Adam also posted the Tweet below that also reproduced his 31 October 2016 email:

240    When Mr David saw Adam’s email of 31 October 2016 it reinforced in his mind that Adam “was well prepared and capable of taking the law into his own hands as he saw it”.

241    On 4 November 2016, Perram J granted an ex parte injunction against Adam that enjoined further publication of defamatory imputations of and concerning Mr David including on the vans. On 5 November 2016 Mr David became aware of a video that showed the placards, posters and vans had been posted on YouTube and multiple other outlets, including the Kazal website and channels called John Doe, David Singh and Rodric David. The video showed activities outside the Sydney office of the Prime Minister at 1 Bligh Street, as well as Mr Singh’s home with him, and later his wife, leaving it in cars. There was narration accompanying on the video directed at Mr David. After Perram J granted the injunction, the video on the Rodric David channel was taken down only in Australia but was still available elsewhere.

242    I set down the hearing of the application to extend the injunctions until the trial for 11 November 2016. I recorded a summary of relevant findings in my reasons that Adam had committed contempts (Thunder [2016] FCA 1598 at [11]–[22]). Both the Full Court and I found that Adam had contravened orders 1 and 3 (in annexure A to these reasons) because he published the Kazal website, by his express reference to it on the vans and posters, in circumstances where the Kazal website displayed 23 posts that conveyed the proscribed imputations about Mr David: Kazal 256 FCR at 119–120 [57]. The Full Court affirmed Adam’s convictions on counts 8 and 9, namely that, by sending and publishing the 28 and 31 October 2016 emails and tweets, he had intended to put improper pressure on Mr David, Thunder and Mr MacCallum that had the tendency to interfere in the administration of justice. Those publications contained deliberate threats to escalate his conduct involving the posters, pamphlets, protestors, vans and defamatory publications that were calculated to bring improper indeed, as Besanko, Wigney and Bromwich JJ said, “extreme” pressure on Mr David, Thunder and Mr MacCallum to desist in this litigation: Kazal 256 FCR at 129 [87]. Their Honours held that “it was a plain, deliberate and serious administration of justice contempt”.

243    I am satisfied by Mr and Mrs David’s evidence that Mr David genuinely felt that extreme pressure and was traumatised by Adam’s conduct of publishing and causing the republication of the defamatory imputations conveyed by the landing page and the Intro article as part of his campaign of intimidation and harassment that he pursued relentlessly in late October and until late November 2016. In my opinion, as I explain later, that conduct must sound in a significant award of compensatory and aggravated damages: Praed v Graham (1889) 24 QBD 53 at 55 per Lord Esher MR, with whom Lindley and Lopes LJJ agreed.

244    Even after I found Adam guilty of contempt on 21 December 2016 (Thunder [2016] FCA 1598) and sentenced him on 27 February 2017 (Thunder (No 2) [2017] FCA 202), the Kazal website remained active and contained posts that Charif updated or caused to be updated, by reason of his control of it, until at least 2 March 2017 when Tony posted, and emailed to Mr David, Thunder, six of its employees and Charif his article, “Rodric David Reminded the Kazal Family Refused his Family’s Witness Tampering Attempts – Day 163” (see [205] above). Mr David said that in separate proceedings that Mr Singh and his company, Re.Group, brought in respect of similar conduct including that posting in October and November 2016, Perram J had made an order that had the consequence that “the website was, in effect, shut off”. Whatever order, if any, was in effect, it was not before me, but I accept that from about March 2017 the Kazal website ceased being updated, but has remained online.

245    However, during the trial, Mr MacCallum was able to play, in Court on 21 October 2020 (which was conducted electronically on Microsoft Teams), as real evidence, YouTube videos on youtube.com that were still available for viewing through using a Google article on the Kazal website. One video, that lasted for about two minutes 20 seconds, showed a van driving in Sydney and protestors holding posters and placards with Mr David and Mr Singh’s photos (see [241] above) and “Robbed $180 million” and standing outside a house (which I infer was Mr Singh’s) from which a man emerges and gets into a car. A voice-over states: “Mr Singh, Adam Kazal wants to know why four and a half years ago you had no money and now you live in a $30 million house at [a named eastern suburb in Sydney]. Can you explain that?” The video also showed about ten people holding the posters and placards outside 1 Bligh Street, chanting “Rodric the Robber” before concluding with a display of the Kazal website’s internet address. This became Exhibit B.

246    Another short video of about 20 seconds, which became Exhibit D showed, progressively, still images of the names of the Kazal Family Story, Mr David with a cloak over his shoulder and a large hand reaching toward him (par 30, as seen in the landing page), a smiling labelled photo of Charif, a road sign “Integrity” the “Truth or Dare” sign (par 36), a “Caring for Sustainability Sign”, the “Failure Types” graph (par 23), a sign “Contact us”, followed by “NSW, Sydney, Australia” and the Kazal website’s internet address. Music played in the background of this video.

247    When Mr MacCallum tried to copy Exhibit D after Court on 21 October 2020 he could not do so directly on his computer but made a copy using his mobile phone. That became the physical Exhibit D. However, overnight, the videos were removed from YouTube by the uploader and could not be viewed anymore.

248    On 24 February 2017, three days before Adam’s sentencing hearing was to occur, Charif emailed Mr David, other Thunder employees and Tony, and posted an article on the Kazal website entitled “Charif Kazal Demands Answers from the Corporate Thief Rodric David – Day 162”. The article referred to the ICAC proceeding and accused Mr David of making a false accusation that Charif had committed a crime which the Director of Public Prosecutions had determined raised no case for Charif to answer. He stated:

You were found guilty by the Court of stealing the shares owned by my brother Tony & I.

More recently you stole the online identities of Tony & I as well as our brothers Karl & Adam.

Our lawyer in America where you had your Thunder Studios employees carry out the online identity theft on your behalf is confident we will again prevail.

Finally we have our long running defamation proceedings. You have so far failed to meet the majority of Court imposed deadlines over several years, whilst I simply rely on the Truth Defence to expose you for what you did to Tony & I.

The truth is a powerful weapon. Too bad you will never get an opportunity to feel the power it brings to a Court case like ours!

My website www.kazalfamilystory.com is recording all of your lies, corruption and contradictions for the world to see and judge for themselves including the work of the Sydney Morning Herald who has written more than 30 malicious articles in the last 6 years attacking me and my family on your behalf.

The truth will never go away and I will continue to use it as a shield against your desperate lies and malicious threats including your online Identity theft and defamatory lies!

I will not rest until you repay what you stole plus damages, apologise publicly for the lies you told and serve time in prison for the despicable crimes you committed against me and my entire family!

(emphasis added)

249    Mr David felt exasperated when he read that email, especially in the context that Adam had been found guilty and was about to be sentenced for his contempt, including for his threats in his 28 and 31 October 2016 emails to interfere in the administration of justice. Mr David said “this is such extraordinary crazy behaviour” and that he believed that Charif “was stepping into his brother’s Adam’s shoes”. When he read the paragraph “The truth is a powerful weapon. Too bad you will never get an opportunity to feel the power it brings to a Court case like ours” he understood that it “reemphasised that there was a threat to my life”.

250    Mr David said that as a result of the campaign waged by Charif, Adam and other Kazals “I don’t sleep comfortably in my own house because I know they know where I live” and:

Fatherhood is my greatest joy. It’s not right, it’s not normal, for a business dispute to attack family members, put protestors and vans and denigrate a parent in front of the childrens school. This has been an extraordinary campaign to defame, destroy, slander, smear, attack, assault my entire family. My dad has been assaulted.

251    Mr David now has weapons at home for protection on advice from the FBI and ordinarily when his wife and he attend a function they have armed body guards, electronic security at home, and security personnel now take his children to school. He gave consideration to abandoning this proceeding at times. He was deeply devastated by his inability to protect his wife and children from the behaviour of Adam, Charif and the Kazals. At one stage in this chain of events he was fearful that his marriage would not survive. He said that “I have no online reputation. It’s been taken from me” and that in the modern business world people do online due diligence of potential business associates or persons.

252    As at 1 September 2020, the second page (of ten results) of a Google search of “Rodric David” displayed the Kazal Family Story Pinterest account with the caption “Another hopeless act by the corporate thief Rodric David”.

The reputation witnesses

Mr Panos’ evidence

253    Edward Panos was a company director, entrepreneur and venture capitalist who had experience in negotiating with institutional investors including on Wall Street. He was living in Utah at the time of the trial. He had worked on numerous reverse mergers and listed public offerings before January 2014 when he became chief executive officer of Indie Film Funding, which he helped his niece to incorporate. In about February or March 2014 Martin Guigui, a Hollywood producer, whose company was called Sunset Pictures, introduced Mr Panos to Mr David for the purpose of exploring a joint venture between their three companies. Mr Panos described the contemplated transaction as a “triangular merger”. Sunset had access to large numbers of film scripts, Thunder had the production facilities and space and Indie Film Funding had a crowd funding platform.

254    Mr Panos said that, in his experience, it was and is a common practice for people in his field to google a person with whom they are considering entering into a transaction because “Google can tell you a lot of things”. When he did such a search on Mr David, Mr Panos of course came across the Kazal website. He described his reaction when he did so:

Not good. I read through the stories and was concerned about the introduction and the meeting.

255    Mr Panos called people in the film industry and others whom he knew to enquire if they had had dealings with Thunder and received responses that he described as “neutral” in the sense that none were negative about Mr David. He also took into account that Mr Guigui had recommended Mr David, and decided to have a meeting with them. Mr Panos raised the issue of the Kazal website with Mr David who gave his side of the story. Mr Panos said that Mr David appeared to be an honest person.

256    On about 1 April 2014, the three men’s companies (Sunset, Indie Film and Thunder) entered into a letter of intent. On 31 July 2014, Sunset, Indie Film and Thunder entered into a memorandum of understanding with the intention of undertaking a significant capital raising through an initial public offering (IPO). Mr Panos introduced Mr David to a lawyer and business plan writer to prepare documentation for external investors. They raised some money from external sources before taking the next step of approaching, as investors, private equity and other institutions on Wall Street, such as JP Morgan and Goldman Sachs. Mr Panos assessed the proposed investment vehicle as having good prospects. He had had experience of successfully raising capital in this way before and thought that this proposal was better than some of Mr Panos’s earlier ones.

257    However, despite having a professionally prepared business plan, a list of proposed movies and production facilities, Mr Panos found that, after six to eight months of effort, there was no interest. He said that this caused him to ask: “why weren’t we getting traction with such an amazing deal?” He received feedback from those whom he asked that they had gone onto Google, read the negative reviews about Mr David on the Kazal website and considered that these would negate any interest from Wall Street investors and the public. Mr Panos said that once the persons he approached had done “due diligence [on Mr David], they went cold”. In his experience, people and institutions in his industry would “absolutely not” be likely to do business with a person, who had been described as a “corporate thief” or “a corporate fraudster”.