Kumova v Davison (No 2) [2023] FCA 1

FEDERAL COURT OF AUSTRALIA Kumova v Davison (No 2) [2023] FCA 1 File number: NSD 984 of 2020

Judgment of: LEE J

Date of judgment: 9 January 2023

Catchwords: DEFAMATION – proceeding brought by Australian investor against "Stock Swami" Twitter personality – seventeen imputations alleged to have been conveyed by six tweets – where tweets alleged applicant had engaged in insider trading, "pumping and dumping" of securities and other market misconduct – all seventeen imputations carried – where parts of defence abandoned – defence of justification pleaded pursuant to s 25 of Defamation Act 2005 (NSW) – consideration of relevant principles – consideration of so-called defence of "partial" justification – consideration of ss 671B, 769C, 1041E and 1041H of Corporations Act 2001 (Cth) as part of substantial truth defence – defence of honest opinion pleaded to one matter – both defences not made out DAMAGES – where applicant sought general damages for non-economic loss – where applicant sought aggravated damages – assessment of damages – consideration of so-called "mitigation" of damages – where respondent engaged in relentless Twitter regime against applicant notwithstanding apology and commencement of proceedings – where respondent pursued partly misconceived justification defence – where respondent destroyed documents and failed to comply with discovery obligations – circumstances warrant award of aggravated damages for increased hurt PRACTICE AND PROCEDURE – where applicant sought permanent injunction enjoining respondent domiciled in New Zealand – consideration of relevant principles pursuant to Trans-Tasman Proceedings Act 2010 (NZ) – importance of form of proposed permanent injunction