Federal Court of Australia
Do v Kolsumdet Pty Ltd [2023] FCA 592
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Paragraph 1 of the interlocutory application filed by the applicants and dated 19 May 2023 be dismissed.
2. The applicants pay the respondents’ costs of and incidental to that application.
3. Order 1 of the orders made by Justice Bromwich on 6 April 2023 (Orders) be varied for the applicants to file a reply to the second respondent’s defence to the further amended statement of claim by 4.00 pm on 7 June 2023, limited to answering any defences of honest opinion.
4. Any submission on the stance of a party in relation to transfer of this proceeding to Division 2 of the Federal Circuit and Family Court of Australia, pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth) and r 27.01(1) of the Federal Court Rules 2011 (Cth), limited to 3 pages, be emailed to the associate to Justice Bromwich by 4.00 pm on 13 June 2023, or such further time as may be allowed.
5. Order 3 of the Orders be varied for each party to file and serve the outlines of evidence of witnesses on which they bear the onus by 4.00 pm on 31 July 2023.
6. Order 4 of the Orders be varied for each party to file and serve the outlines of evidence of witnesses in reply by 4.00 pm on 1 September 2023.
7. Any interlocutory application seeking orders for discovery or interrogatories be filed and served by no later than 4.00 pm on 15 September 2023.
8. Any application for discovery or interrogatories to be heard between 18 and 28 September 2023, on a date to be fixed in consultation with the parties.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Delivered ex tempore)
BROMWICH J:
1 By paragraph 1 of an interlocutory application dated 19 May 2023, the applicants seek an order that these proceedings be transferred to the National Operations Registrar for the purpose of reallocation to another judge of the Federal Court of Australia. The substance of the application by which that order is sought is that I should recuse myself from being the docket judge for this proceeding upon the basis of apprehended bias.
2 The basis for the apprehension of bias is the accumulation of views expressed, comments made, and other observations made during the course of case management hearings, which took place on 7 September 2022, 7 December 2022, 3 February 2023, and 6 April 2023. The transcripts for those four case management hearings were annexed to an affidavit affirmed on 19 May 2023 by Mr Stewart O'Connell, the solicitor for the applicants. The particular passages of those transcripts relied upon by the applicants were annexed to the applicants’ written outline of submissions, dated 22 May 2023. Additional passages were identified as being relevant by the second respondent. It was common ground that I should consider each of those transcripts, and especially the key transcript for 6 April 2023 as a whole.
3 Before considering those particular transcript references, it is necessary to say something about the nature of this proceeding, being a case brought by three social media bloggers or influencers against a restaurant and five individuals associated with that restaurant, arising out of posts and comments on posts, including by republication, about the applicants not paying in full for a meal. That is most easily done by reference to the further amended statement of claim dated 23 February 2023 (FASOC), which was filed after the three of the four case management hearings. The amendments made since the original statement of claim do not materially affect the issues in this application, save that the case has broadened somewhat with each iteration. The substance of the case is explained sufficiently for present purposes by the first and the last of the eight matters complained of (each being online publications).
4 The first publication on the restaurant’s Instagram page is headed “Beware fraudulent diners”. It continues:
On the evening of Friday 25 December 2020, we had an incident at our venue involving a family of 4.
They ordered a bottle of red wine and 1 live lobster and requested for it to be served sashimi style. This was all they ordered, nothing else.
Halfway through the meal, they complained to staff that they were "feeling sick" and accused us of serving them frozen lobster, instead of fresh/live lobster, which apparently was the reason for them "feeling sick".
Note the CCTV footage of them continuing to eat WHILST complaining about the food too.
Our staff tried to explain to them that this was definitely not the case. The staff brought the head of the lobster back out and even tried to explain to them how the head juices change colour based on the amount time passed, and since their order was only recently cut, they could see that that the head juices were still vibrant. They tried to reassure them that the lobster they chose, was the lobster was served to them.
After they COMPLETELY FINISHED their sashimi and wine, they refused to pay. They were rude and tried to bully our waitstaff that we're not fluent in English.
When management arrived back on site the next day we were told of the incident.
We located the girls and their mother through Instagram and sent them a private message asking them to settle the matter in private and pay for the balance of their bill of $364. Within 24 hours, they have ALL BLOCKED US.
What makes this matter worse, is that after they left us, they went to another seafood restaurant across the road and ordered lobster and wine again!! How could anyone eat more of what made them "feel sick"? let alone another meal.
Belinda, Julie and Jennifer, we are disappointed with your dishonest and fraudulent behaviour.
We have hosted many food bloggers before, and none have ever acted this entitled.
This is totally classless behaviour, and we hope your reputation was worth tarnishing for $364.
** We are sharing this with the intention to warn other hospitality venues of their behaviour.
*** This will remain up for 48 hours, after which time we will remove as we do not wish to carry this into 2021.
5 The above text was followed by four posts, accompanied by photographs, with annotations, indicating where the applicants had been sitting, and with commentary akin to the observations reproduced above.
6 In subsequent publications on Facebook, other viewers posted adverse comments about what had been said about the applicants and what had been said about what they had done. It is fair to say that those observations were highly critical of the applicants. Some of those further comments made adverse comments about the appearance of one of the applicants. For present purposes, it is sufficient to reproduce the imputations, pleaded by the first applicant, in respect of the first matter complained of (underlining indicating the amendments made by the FASOC filed on 23 February 2023):
In its natural and ordinary meaning the first matter complained of conveyed, and was understood to have conveyed, the following defamatory imputations of and concerning the applicants:
The First Applicant
(a) is a fraudulent diner (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(b) fraudulently obtained a free dinner of lobster and wine from the Silver Pearl Restaurant on 25 December 2020 (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(c) falsely claimed that she and her family were served frozen lobster that was not fresh and made her and her family feel sick (the entire matter complained of but especially paragraphs 4, and 13-16).
(d) bullied the waitstaff of the Silver Pearl Restaurant (the entire matter complained of but especially paragraph 16).
(e) is a scammer (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(f) The first applicant's behavior in refusing to pay for a lobster dinner at the Silver Pearl Restaurant was dishonest and fraudulent (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
A. The first applicant was part of a group of diners that refused to pay for their meal.
B. The first applicant made a knowingly false complaint that the Silver Pearl Restaurant had served frozen, rather than fresh, lobster.
C. The first applicant was part of a group of diners that refused to pay for their meal on the false pretence that frozen, rather than fresh, lobster had been served.
The Second Applicant
(a) is a fraudulent diner (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(b) fraudulently obtained a free dinner of lobster and wine from the Silver Pearl Restaurant on 25 December 2020 (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(c) falsely claimed that she and her family were served frozen lobster that was not fresh and made her and her family feel sick (the entire matter complained of but especially paragraphs 4, and 13-16).
(d) bullied the waitstaff of the Silver Pearl Restaurant (the entire matter complained of but especially paragraph 16).
(e) is a scammer (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(f) The second applicant's behavior in refusing to pay for a lobster dinner at the Silver Pearl Restaurant was dishonest and fraudulent (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
A. The second applicant was part of a group of diners that refused to pay for their meal.
B. The second applicant made a knowingly false complaint that the Silver Pearl Restaurant had served frozen, rather than fresh, lobster.
C. The second applicant was part of a group of diners that refused to pay for their meal on the false pretence that frozen, rather than fresh, lobster had been served.
The Third Applicant
(a) is a fraudulent diner (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(b) fraudulently obtained a free dinner of lobster and wine from the Silver Pearl Restaurant on 25 December 2020 (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(c) falsely claimed that she and her family were served frozen lobster that was not fresh and made her and her family feel sick (the entire matter complained of but especially paragraphs 4, and 13-16).
(d) bullied the waitstaff of the Silver Pearl Restaurant (the entire matter complained of but especially paragraph 16).
(e) is a scammer (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
(f) The third applicant's behavior in refusing to pay for a lobster dinner at the Silver Pearl Restaurant was dishonest and fraudulent (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21).
A. The third applicant was part of a group of diners that refused to pay for their meal.
B. The third applicant made a knowingly false complaint that the Silver Pearl Restaurant had served frozen, rather than fresh, lobster.
C. The third applicant was part of a group of diners that refused to pay for their meal on the false pretence that frozen, rather than fresh, lobster had been served.
7 The eighth matter complained of goes a little further than those for the prior publications, with the imputations being pleaded as follows:
In its natural and ordinary meaning the eighth matter complained of conveyed, and was understood to have conveyed, the following defamatory imputations of and conceming the applicants:
The First Applicant
(a) threatened the management of the restaurant in order to obtain free food (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2, and 7-8 of H1).
(b) is a thief who stole from the silver pearl restaurant (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
(c) is a prostitute (the entire matter complained of but especially paragraphs 5 and 11 of H1).
(d) is a robot sex doll (the entire matter complained of but especially paragraph 5 of H1).
(e) is a blow up doll (the entire matter complained of but especially paragraph 11 of H1)?
(f) is a fraudulent diner (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2).
(g) fraudulently obtained a free dinner of lobster and wine from the Silver Pearl Restaurant on 25 December 2020 (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
(h) falsely claimed that she and her family were served frozen lobster that was not fresh and made her and her family feel sick (the entire matter complained of but especially paragraphs 4, and 13-16 of H2).
(i) bullied the waitstaff of the Silver Pearl Restaurant (the entire matter complained of but especially paragraph 16 of H2).
(j) is a scammer (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
(k) The first applicant's behavior in refusing to pay for a lobster dinner at the Silver Pearl Restaurant was dishonest and fraudulent (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
The Second Applicant
(l) threatened the management of the restaurant in order to obtain free food (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2, and 7-8 of H1).
(m) is a thief who stole from the silver pearl restaurant (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1 ).
(n) is a prostitute (the entire matter complained of but especially paragraphs 5 and 11 of H1).
(o) is a robot sex doll (the entire matter complained of but especially paragraph 5 of H1).
(p) is a blow up doll (the entire matter complained of but especially paragraph 11 of H1).
(q) is a fraudulent diner (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2).
(r) fraudulently obtained a free dinner of lobster and wine from the Silver Pearl Restaurant on 25 December 2020 (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
(s) falsely claimed that she and her family were served frozen lobster that was not fresh and made her and her family feel sick (the entire matter complained of but especially paragraphs 4, and 13-16 of H2).
(t) bullied the waitstaff of the Silver Pearl Restaurant (the entire matter complained of but especially paragraph 16 of H2).
(u) is a scammer (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
(v) The first applicant's behavior in refusing to pay for a lobster dinner at the Silver Pearl Restaurant was dishonest and fraudulent (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
The Third Applicant
(a) threatened the management of the restaurant in order to obtain free food (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2, and 7-8 of H1).
(b) is a thief who stole from the silver pearl restaurant (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
(c) is a prostitute (the entire matter complained of but especially paragraphs 5 and 11 of H1).
(d) is a robot sex doll (the entire matter complained of but especially paragraph 5 of H1).
(e) is a blow up doll (the entire matter complained of but especially paragraph 11 of H1).
(f) is a fraudulent diner (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2).
(g) fraudulently obtained a free dinner of lobster and wine from the Silver Pearl Restaurant on 25 December 2020 (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
(h) falsely claimed that she and her family were served frozen lobster that was not fresh and made her and her family feel sick (the entire matter complained of but especially paragraphs 4, and 13-16 of H2).
(i) bullied the waitstaff of the Silver Pearl Restaurant (the entire matter complained of but especially paragraph 16 of H2).
j) is a scammer (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
(k) The first applicant's behavior in refusing to pay for a lobster dinner at the Silver Pearl Restaurant was dishonest and fraudulent (the entire matter complained of but especially paragraphs 2, 4, 8, 13-16, and 18-21 of H2 and paragraphs 2-3 and 7-9 of H1).
8 The part of the transcript of the case management hearing which took place on 7 September 2022 referred to by the applicants, took place in the context of the applicants’ successful application to join the sixth respondent, and is not relied upon as evidencing any basis for apprehended bias, but rather as context for what followed in subsequent case management hearings. In that case management hearing, I observed that it looked to me that this was the sort of case where, whatever view was taken of the damages, they were going to pale in terms of significance against the costs. I also raised the question of transferring the proceedings to Division 2 of the Federal Circuit and Family Court of Australia (Circuit Court). I also said that I wanted to raise again the question of mediation and the question of transfer if mediation was not successful. I expressly said that I was not making a decision and that I might be persuaded that there was some feature of the case that warranted it staying in the Federal Court, expressly referring to the High Court decision in Johnson v Johnson [2000] HCA 48; 201 CLR 488 (in fact, [13], without referring to that paragraph in terms).
9 In the course of the case management hearing on 7 December 2022, I referred to my prior comments about mediation and transfer to the Circuit Court from the earlier case management hearing and said that if it was brought in the New South Wales state courts, it would not be in the Supreme Court but rather in the District Court. Mr Rasmussen, counsel for the applicants, said of that observation:
Well, we would suggest otherwise, your Honour, because of the extent of the publication. I know it appears on its face to be minor, but it’s not; for example, the second matter complained of was republished in the Sunday Telegraph. Now, we say the substance of it is there. Now, the Sunday Telegraph is the most widely read newspaper in Australia. It also was republished in, I think, four different – on four different websites, each of which has not less than 40,000 readers, one of which has, I’ve noticed, 140,000 members.
10 After some further debate, I made the observation that the applicants would have had difficulty getting this case into the New South Wales Supreme Court and that if it was not suitable for the Supreme Court, I would need some persuading that it was suitable for the Federal Court. Mr Rasmussen responded by observing that customarily matters against the media are brought in the Supreme Court, but that he had noticed there are plenty of media matters brought in the District Court and a number dealing with Facebook publications were in the Supreme Court. A little later in the debate, I referred to the sorts of cases that were being heard in the Federal Court, like the case brought by Mr Rush, and the case brought by Mr Roberts-Smith, not cases of this kind, to which Mr Rasmussen responded that it would be a shame if this Court was turned into a celebrity court. I responded that it would be a shame if this Court was turned into a neighbourhood disputes court, and that this matter was somewhere between the two, but more at the neighbourhood dispute end of the spectrum. Mr Rasmussen ultimately asked that the question of transfer be left until the pleadings are closed.
11 The third of the case management hearing transcripts relied upon, dated 3 February 2023, concerned an application by the applicants to appropriate contextual truth imputations, and for that purpose, to amend the statement of claim. In the course of that, an issue was raised about an order that was sought by the respondents to enable them to rely upon those contextual truth imputations in the event that they were shown to be true. Mr Rasmussen raised a concern about that order not being able to be re-visited if the matter was transferred to the Circuit Court, and I made observations to the effect that I would not regard the Circuit Court being bound to retain the order in favour of the respondents.
12 The parts of the fourth case management hearing transcript, on 6 April 2023, which is what is most heavily relied upon by the applicants, involve me raising the question about mediation, and Mr Rasmussen agreeing that the applicants saw no further point in mediation. Counsel for the second respondent, Ms McKenzie, submitted that having regard to the magnitude of the claim, particularly against her client, they would welcome a further opportunity for mediation after pleadings are closed. Mr Parkin for the remaining respondents did not have any instructions, but was inclined to the view that a further attempt at mediation would not be successful.
13 A lengthy debate then ensued with Mr Rasmussen, during which I indicated that the issue I had with defamation cases generally was that unless they involve a huge amount of damages being occasioned, a lot of them end up being litigation over costs. Mr Rasmussen indicated that the applicants were concerned to get the matter on for hearing and would not have commenced in the Federal Court if they did not believe they “had a genuinely significant claim of general damages”. I made a number of observations, in the context of the value of further attempting mediation, that I would be astonished if the applicants were going to get any substantial amount of damages, this being said in the context of costs, but also expressly said that I was always open to being astonished and that no view formed at this “umbrella level” was reflective of what will necessarily happen. I said that the very nature of this case was that my instinct was that I would be surprised if it was going to be a very substantial award of damages. There was a continued debate on the same line in which Mr Rasmussen maintained that his clients were being accused of being fraudsters, to which I responded that they were only being accused of that in relation to non-payment of a restaurant meal. I later referred to the costs consequences for a damage award of under $100,000 and referred to two prior cases I had decided in which the imputations were more serious and the awards of damages were not very large.
14 The written submissions in support of the application for recusal are nine pages in length, followed by the transcript extracts relied upon. Those nine pages include about six pages of quotes from cases outlining well-established principles, including in particular quotes from QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (17 May 2023), and just over two pages dealing with the application of those principles. The substance of the application is that by April 2023, a fair minded observer would understand that I had taken the view that the applicants’ claim was minor, that I would be astounded if the applicants were to be awarded a substantial sum and that there were costs consequences of proceeding in this Court and not obtaining a significant amount. The word “minor” was not uttered by me or anyone else on 6 April 2023, and was only uttered by Mr Rasmussen on 7 December 2022, in the passage reproduced at [9] above, when he was submitting that while the case might appear that way, it was not because of the extent of republication.
15 Mr Rasmussen also submitted that a fair minded observer would have observed that I had taken the view that because the applicants were social media influences or bloggers, their claims were less than impressive, a submission that was not supported by any of the transcript references to which I was taken.
16 A number of other like submissions were made which were similarly unsupported by any transcript reference and therefore do not warrant reproduction. The real substance of the application going to the first test identified in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8] is that a fair-minded observer would quite reasonably come to the view that I held a state of mind that was not open to persuasion that the applicants’ claim was significant, despite the express references made to these being early and preliminary observations that could change at trial.
17 Overall, the applicants’ basis for seeking recusal did not rise above assertion that I was incapable of altering the preliminary conclusions I had reached as to the seriousness of the imputations pleaded relative to the significantly greater costs that were likely to be incurred, in the context of urging further mediation. No reference was made by Mr Rasmussen to the numerous references to the preliminary nature of the views expressed and to the fact that this could well change.
18 The fundamental problem for this application is that it does not properly entail any sufficient identification of any factor within the preliminary views expressed in the context of encouraging further mediation attempts which might lead me to resolve the issues at trial other than on their legal and factual merits, applying Ebner. There was no serious attempt at an articulation of the logical connection between that factor, being the content of the transcript references and comments made, and the asserted apprehended deviation from deciding the case on its merits. I consider that a fair-minded lay observer, either listening to the case management hearings, or reading the transcripts as a whole, would understand that I was saying no more than that, because this proceeding was not at the higher end of seriousness when it comes to defamation, there was a real risk of costs greatly exceeding any likely damages being awarded even if the case was wholly successful, and therefore that a further attempt at mediation would be worth considering. I accept that the applicants, via Mr Rasmussen, are opposed to that taking place and that accordingly because of that stance, there will be no further attempt at mediation.
19 I am not satisfied that the application made comes close to establishing a proper basis for mediation. In those circumstances, Ebner at [19], as well as Johnson v Johnson at [13], compel this application to be dismissed. Nothing said in QYFM compels any different conclusion. While the respondents did not support or oppose the application, as is often the case for an opposing party when a recusal application is made, they have incurred costs and should be compensated for that. The applicants must therefore pay the respondents’ costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. |
Dated: 6 June 2023
NSD 1355 of 2021 | |
SALIE CHEN | |
Fifth Respondent: | NANG CHAISUMDET |
Sixth Respondent: | HANH TO |
