Huynh v Chu [2025] QDC 165

(a) The defendant, under the username 'ChuHien Trang', uploaded a post to a Facebook group called VietAus QLD - Cong Dong Nguoi Viet o Queensland (Vietnamese in Queensland).

(b) The group was public and had approximately 28,500 members at the time.

(c) The post received 149 Facebook likes/reactions, 207 comments and 18 shares to other Facebook pages or groups.

(d) The post disappeared when the group itself disappeared.

(e) The post is lengthy but essentially contains allegations that the plaintiff carried out a plan with his older cousin (sometimes translated as brother) who was apparently the owner of premises which became Buncha Buncha Inala (a restaurant), to oust the defendant from the premises and thus from the business she and the plaintiff set-up. In particular:

(i) The defendant had conducted a restaurant called Buncha Buncha, at Stones Corner. The plaintiff and cousin approached her and she agreed to teach the plaintiff her recipes. They agreed to open a Buncha Buncha restaurant at Inala in a building of which the cousin was landlord.

(ii) The defendant's husband paid for and installed the equipment in the new restaurant. The plaintiff and brother in-law, by forcing the defendant out of the business, effectively stole the equipment belonging to the defendant's husband. Although the plaintiff offered to pay the defendant $170,000, payment was never made.

(iii) The plaintiff is continuing to profit from the business the defendant set-up.

(iv) The defendant has not seen any profit or return for what she sees as her significant investment of capital and expertise into both the premises and business that continues to run out of those premises, albeit under a different name.

(v) The plaintiff generally acted dishonestly throughout the course of their dealings, the defendant describing the behaviour as "Offer to Co-operate, learn the trade, oust".

(a) The defendant, under the username 'Buncha Buncha', uploaded the same post as the first publication to a Facebook group called Cộng đồng người Việt ở Brisbane - Queensland.

(b) The group was public and had approximately 33,000 members at the time.

(c) The post received 112 likes/reactions, 187 comments and 15 shares to other Facebook pages or groups.

(d) The post remained online as at 14 February 2025 (the date of the plaintiff's outline of submissions).

(a) The defendant, under the username 'ChuHien Trang', uploaded a different post to the Facebook group Cộng đồng người Việt ở Brisbane - Queensland).

(b) The post received 55 likes/reactions and 94 comments.

(c) The post read: 'Hey Ninh you want to kick me out, offer me $170,000 to buy back my shares like this, but in the end how could you not pay a penny, nor return the equipment I invested in, misappropriate my sweat and tears?? How does a big business grow by misappropriating other person's bones and blood like this???'

(d) The post was still online as at 14 February 2025 (the date of the plaintiff's outline of submissions).

(a) The defendant under the username 'ChuHien Trang' uploaded a post to VietAus QLD - Cong Dong Nguoi Viet o Queensland (Vietnamese in Queensland).

(b) The post received 48 likes/reactions, 47 comments and was shared twice.

(c) The post read: 'Hey Ninh, offering me $170,000 like this yet how could you not pay me a penny, nor return me the equipment, you misappropriated my bones blood sweat and tears like that then do you think you can keep your head up?'

(d) The post remained online as at 14 February 2025 (the date of the plaintiff's outline of submissions).

• [13] After each of the publications, the defendant uploaded comments which, in effect, became part of the relevant publication.
• [14] The comments of others and "shares" confirm the publication of the defamatory material and, as the plaintiff submits, support reliance on the "grapevine effect", a possibility recognized in Queensland cases and explained as metaphor by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [88-89].
• [15] As to the comments of other users of the Facebook pages, the plaintiff pleads that the defendant "provided the forum" for the comments of others "which became part of the ... publication and for which the Defendant is liable as a publisher". The plaintiff submits that the comments "conveyed their own defamatory meaning of and concerning the Plaintiff in what might be called Fairfax & Voller type comments for which the Plaintiff is liable".
• [16] Fairfax v Voller [2021] HCA 27; (2021) 273 CLR 346 does not support the submission. That case concerned the liability of media companies, who also maintained Facebook pages, for the comments of third-party users of the Facebook pages. The defendant, in this case, did not "provide the forum".
• [17] The plaintiff pleaded that the publications impute that he:

(a) breached a promise to pay his share of equipment expenses;

(b) conspired with his brother-in-law to cause the defendant loss and to misappropriate her trade secrets;

(c) misappropriated money intended to be for rent;

(d) misappropriated the defendant's interest in the partnership - also expressed as intentionally caused financial loss to the defendant;

(e) is dishonest;

(f) lied to his customers;

(g) cannot be trusted;

(h) is disgraceful and shameful.

• [18] Some of these "imputations" are directly asserted by the defendant's words. Other are open to being drawn, if to varying extents. For example, the defendant writes that the plaintiff promised to pay her an amount but did not, that he misappropriated her business and ultimately her interest in a partnership by excluding her from it. A reader might then infer that the plaintiff was dishonest in his business dealings, and so could not be trusted and was shameful. The publications assert not only that the plaintiff and the cousin/brother-in-law did these things but that it was a scheme or a plan. Another way to say that would be that they conspired towards the outcome. In this sense, the imputations are made out.

• [19] It is an element of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
• [20] In Radar v Haines [2022] NSWCA 198, Brereton JA referred to the reasons of Lord Sumption in Lachaux v Independent Print Ltd [2020] AC 612, which included:

"The reference to a situation where the statement "has caused" serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is 'likely' to be caused."[1]

• [21] It would seem to be uncontested, on the pleadings and on the plaintiff's testimony, that the defendant owned and operated a restaurant at Stones Corner called Buncha Buncha; that the plaintiff and the cousin/brother-in-law approached her to train the plaintiff; and that he worked at the Stones Corner restaurant for some months until he and the defendant went into partnership in a Buncha Buncha restaurant at Inala which was conducted in premises owned by the cousin/brother-in-law.
• [22] In support of the allegation that the publications concerned him, the plaintiff pleaded that:

(a) he worked "primarily in the kitchen and managed" Buncha Buncha Inala from 25 November 2021 to 8 March 2022; and

(b) he commenced working as restaurant manager of the business Khoi Restaurant on or about 26 July 2022, which operated from the premises at Inala previously occupied by the business Buncha Buncha Inala.

• [23] The plaintiff's evidence was that he and the defendant operated Buncha Buncha Inala in partnership. He thought she owned 50 per cent and he owned 40 per cent. He was not involved in the building of the restaurant. The evidence in chief included the following:

And the partnership, it built a kitchen and a dining room?‑‑‑Yeah, we build a whole restaurant. But, um - but, um, I think she tried to get some handyman to build, um - to build the restaurant, um, becau - I'm not involving - involved in any of building construction because I don't know anything about that. So her husband is a contractor man, and, uh, she - he - he tried to, um, hire handyman. There no, uh, uh - he tried to do handyman from outside [indistinct] the kitchen. That's why a lot of problem inside the kitchen. So when the landlord, uh, go into the restaurant, um, the kitchen were no [indistinct] at the bottom.

• [24] The plaintiff said he worked in the kitchen and the defendant "tried to keep all the money". She did not pay the rent or bills. At "the eighth month" the landlord asked for the rent. As none was paid and there was no money in the bank, "the owner tried to take the shop back".
• [25] The plaintiff's evidence was that the defendant worked at the counter taking the money. She did not work in the kitchen. His evidence was that he worked only in the kitchen.
• [26] The first difficulty in accepting the plaintiff's evidence is that it differs from his pleading that he worked "primarily in the kitchen and managed Buncha Buncha Inala from 25 November 2021 to 8 March 2022" [emphasis added]. The testimony was designed to reduce his role to the kitchen, leaving the defendant responsible for the financial management of the business and therefore its asserted failure. He spoke of no business-management experience. Also, there is some inconsistency with the pleaded term of operation of the Buncha Buncha Inala. If the landlord asked about the rent "at the eighth month", that would place the failure of the business at June or July 2022, shortly before the opening of the Khoi restaurant.
• [27] The plaintiff's evidence was inconsistent with that of one of the witnesses called to give evidence of the change in the plaintiff's reputation. Nhat Tien Le met the plaintiff through family members and had worked with him when the plaintiff operated a take-away shop at Ipswich. The witness worked at the Buncha Buncha Inala restaurant from September to November 2021. He described the plaintiff as his employer, "one of the boss there". Asked what the plaintiff did, he said, "chef and a whole restaurant manager. So he in charge of every things."
• [28] The plaintiff's evidence that, as at the time of trial, he was a chef - not manager - at the Khoi Restaurant, was inconsistent with the evidence of another witness, Cao Quoc Tien Do, who said he came to work as a cook at that restaurant when the plaintiff "asked me to work at his restaurant" [emphasis added]. The plaintiff's evidence seemed designed to minimize his role in the management of the businesses and distance himself from the brother/cousin. He referred to that person, who took no part in the trial, only as the landlord.
• [29] Despite my concerns about the plaintiff's reliability, there was a body of evidence, including some from the plaintiff himself, showing that many people in the local Vietnamese community were aware of the publications and talked about them.
• [30] Cao Quoc Tien Do gave evidence that he was employed as a chef at the Khoi Restaurant. He met the plaintiff at the badminton courts. The plaintiff asked him to work at his restaurant. He saw relevant Facebook posts on the Vietnamese community pages when he was in Vietnam. Before the publications, his experience was that most people were very friendly with the plaintiff. After he read the articles, the witness did not trust the plaintiff for several months. At trial, he said he trusts the plaintiff "a little bit" but "not strong like before". The witness said other people "don't want to talk about this, I think." This, I understand, was in the context of playing badminton - they "just want to play badminton."
• [31] Quan Hong Vu, a waiter at a restaurant at Jindalee, also knew the plaintiff from the social badminton club. At the time he read the articles on the community Facebook pages, he did not know the plaintiff well. He had thought of the plaintiff as a nice person. After seeing the publications, he thought he should "go deeper" to see whether the plaintiff was "really, uh, good business owner". Before the publications, he had not heard a negative comment about the plaintiff. After the publications, friends at badminton and at church talked to him about the story and their negative comments made the witness believe the plaintiff was not "the kind person as I know him before." He observed that some people at badminton would "stand back" as if judging the plaintiff. People said the plaintiff was not to be trusted.
• [32] Nhat Tien Le, already mentioned above, a chef at a restaurant at Jindalee, described the plaintiff as a close friend. He was in Vietnam when he saw the posts and others sent them to him. He was surprised to read the articles because "it's quite different from the man I know". He did not speak to the plaintiff until seeing him at a family Christmas party "two years ago". The witness gave evidence about some co-workers - "half of them quit the job ....when the new restaurant opened". This was not clarified and I give the evidence no weight. Asked whether he trusted the plaintiff, the witness said, "not with the business partner" but social contact was "fine for me right now."
• [33] The plaintiff testified that after the publications, friends from the social badminton game stopped inviting him to their homes for parties and family members would call him to ask about the posts. When he read the posts, he was shocked. He decided not to respond or react. He felt many people were attacking him, that people did not trust him. After about a year or two he tried to "get back to them" and had regained their trust, expressed as "more trust on them now".
• [34] In summary, taking into account the seriousness of the allegations in the publications and the evidence of their actual impact, the number of views and responses, and the plaintiff's position as a manager of a restaurant, I am satisfied the plaintiff has shown, on balance, that he is likely to suffer serious harm to his reputation.

• [35] Nonetheless, the evidence allows little more than to conclude that the plaintiff suffered a degree of social exclusion and some loss of standing in the community. The plaintiff's evidence that, upon the closure of Buncha Buncha Inala, he was unable to find work for a period of time is irrelevant because, as pleaded and proved, the defamatory publications coincided with the recommencement of a restaurant business named Khoi Restaurant in the same premises as the Buncha Buncha Inala restaurant. The plaintiff is the manager of that restaurant.
• [36] The plaintiff relied on several decided cases to guide the quantum of damage.
• [37] Petrov v Do [2012] NSWSC 1382

(a) The plaintiff in this case was an active community member who had been caring for his unwell elderly neighbour. Defamatory material was published both online and in hard-copy form, imputing that the plaintiff had exploited, threatened and defrauded this neighbour.

(b) The Judge accepted that the plaintiff had previously enjoyed good standing and respect within his community and found that these imputations 'had a severe affect upon his wealth and well-being'.[2] Each defendant was ordered to pay $175,000 damages.

• [38] Forrest v Chlanda Pty Ltd [2012] NTSC 14

(a) A newspaper article was published which conveyed imputations that the plaintiff had conducted his real estate business in such a way as to allow police to suspect engagement in fraud. It further contained imputations that the plaintiff deserved to be stood aside in his role as southern representative of the Real Estate Institute of the Northern Territory Inc.

(b) The court found that the plaintiff had suffered considerable distress and actual damage to his reputation in the real estate industry. There was a damages award of $100,000, which included aggravated damages for the defendant's failure upon notice of the defamation to completely remove the article or issue an adequate apology.[3]

(a) Defamatory imputations were published to the P&C committee of a Hindi language school that the plaintiff, who was Principal of the school, had forged the signatures of two school teachers on documents.

(b) On an application for leave to appeal, Allsop P found that the context of the defamation, being to the P&C committee of the school, and the 'gravity of the statement', being an allegation of a crime of dishonesty, were circumstances that warranted a range of damages which included the $80,000 awarded at first instance.[4]

• [40] Manefield v Association of Quality Child Care Centres of NSW Inc [2010] NSWSC 1420

(a) The plaintiff had a career as a consultant and manager in the child-care industry. Having been terminated from his role at the defendant association, the plaintiff set out to develop a new child-care endeavour. The defendant sent a letter to about 650 of its members that contained imputations that the plaintiff was a dishonest person and using devious and underhanded methods to re-establish himself in the industry.

(b) In awarding damages, it was accepted that although it was not a mass media publication, it was targeted to the exact audience the plaintiff 'needed to impress' and after the letter the plaintiff 'had no future' in the child care industry.[5] Damages were aggravated because the imputations were knowingly false, published without any warning to the plaintiff, and published with the intention of harming the plaintiff.

• [41] Insofar as these cases provide a guide to the appropriate award in the present case, they suggest an award significantly lower than made in those cases, even taking into account the effects of inflation since they were decided.
• [42] The purposes of awarding damages to a defamed person include consolation for distress, reparation for harm to personal and business reputation, and vindication.[6]
• [43] In this case it is difficult to articulate the place of vindication in quantifying damage. There was no effective defence pleaded and no appearance at trial by the defendant. The truth of the statements not being raised, there arises no onus on the plaintiff to disprove them. Nonetheless, the plaintiff's counsel put the imputations to him and he denied them, as follows:

The things that were said about you in those articles - in those posts ‑ ‑ ‑?‑‑‑Yeah.

So for example that you failed to pay your share of partnership expenses, was that true?‑‑‑No, that's not true.

That you had conspired with your brother-in-law to cause a loss?‑‑‑No, no.

That you had conspired with your brother-in-law to obtain the defendant's trade secrets and her recipes?‑‑‑That's not true.

Had you misappropriated any money that was due for rent?‑‑‑No, that's not true.

Had you misappropriated or taken, without her permission, the defendant's interest in the business?‑‑‑No, it's not.

Had you caused her to lose money, deliberately?‑‑‑No.

Have you any reason to think that you might be dishonest?‑‑‑No.

Have you lied to any of your customers?‑‑‑No, I did not.

Have you, in your opinion, ever acted disgracefully or shamefully in relation to the business, at Buncha Buncha Inala?‑‑‑No.

Is there any reason you can think of that - arising out of the business at Buncha Buncha Inala, would mean that you couldn't be trusted?‑‑‑Sorry, can you ask that ‑ ‑ ‑

Well - yes. Did you do anything dishonest or deceitful about the business in Buncha Buncha ‑ ‑ ‑?‑‑‑No, I did not.

• [44] These denials did not address some of the facts asserted in the statements from which the imputations are formulated. As I have already written, it seems uncontested that the plaintiff, having worked with the defendant in her kitchen at Stones Corner and learnt her recipes, continues even as at the date of trial to conduct a restaurant business in the same premises as Buncha Buncha Inala, premises owned by the cousin/brother-in-law/landlord. The plaintiff did not deny the assertions in the defamatory statements that the defendant's husband funded the kitchen fit-out; that an agreement was reached for the plaintiff to pay the defendant an amount of $170,000 which was not paid; that the plaintiff uses the recipes learnt from the defendant. I have referred to inconsistencies between the plaintiff's evidence and the pleading and the evidence of witnesses called by the plaintiff. The plaintiff was not a convincing witness. The findings that the statements were made by the defendant, referred to the plaintiff, and contained defamatory imputations do not imply a finding that the assertions are not true, or that the converse is true and calls for the vindication of the plaintiff. While the plaintiff answered in the negative when asked was it true that he failed to pay his share of partnership expenses, there was no positive evidence that he paid partnership expenses. The effect of his evidence was that he stayed in the kitchen while the defendant conducted all other parts of the business.
• [45] The evidence in this case does not support an award of damages which includes a component directed at vindication of the plaintiff.
• [46] While there is arguably evidence of some loss of business reputation, the evidence reveals no actual loss in the plaintiff's business situation since the publications.
• [47] In the result, damages should reflect the plaintiff's distress, harm to personal reputation and business reputation such as the evidence supports.
• [48] The plaintiff submits that aggravated damages are warranted because of:

(a) the plaintiff's knowledge of the falsity of the imputations which they conveyed;

(b) the plaintiff's knowledge that the defendant was actuated to publish the matters complained of by malice that she harboured toward him;

(c) the plaintiff's knowledge that the defendant intended to injure his reputation;

(d) the defendant's failure to make reasonable enquiries as to the truth and to include the plaintiff's side of the story prior to publishing the matters complained of;

(e) the failure by the defendant to apologise despite a request to do so;

(f) the failure by the defendant to respond to the plaintiff's concerns notice and to make an offer to make amends.

• [49] The plaintiff provided no authority for these propositions. The evidence in this case does not support an award of aggravated damages:

(a) It is difficult to accept that the asserted plaintiff's knowledge of the circumstances in (a) to (c) above should trigger aggravated damages. In particular, if the plaintiff did not hold the "knowledge" of the falsity of the imputations, one would not expect a claim in the first place.

(b) Malice, on the part of the defendant, would be relevant to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.[7] If malice were proved in the case, and I am not satisfied it was, it is equally difficult to accept that the plaintiff's knowledge of the fact calls for aggravated damages.

(c) Also, there is no evidence of the facts asserted in (b) and (c) above.

(d) That evidence of an apology is admissible in mitigation of damages does not require that the failure to apologize compels or promotes an award of aggravated damages.[8]

(e) As to (f) above, defamation proceedings may not, without leave under s 12B of the Defamation Act 2005 (Qld), be commenced unless the claimant has given the prospective defendant a concerns notice. Section 13 provides that the publisher may make an offer to make amends. If the failure to make an offer to make amends results in a plaintiff commencing proceedings, that fact does not call for an award of aggravated damages.

• [50] An award of $40,000.00 bears an appropriate and rational relationship with the harm sustained by the plaintiff. There will be judgment for the plaintiff in that amount plus interest. I invite the plaintiff's submission on the calculation of interest.

• [51] It is appropriate to order the removal of the remaining posts. This is because of all the circumstances of this case, particularly including the serious nature of the allegations of conspiracy to misappropriate and the posts continuing at least until February 2025.
• [52] Whether an order permanently restraining the Defendant from publishing matter similar to the posts that have been the subject of this proceeding is not so straightforward. The principles guiding the exercise of discretion to grant an injuction preventing future action were discussed by Chesterman J. in Kestrel Coal Pty Ltd v CFMEU [2000] QSC 150; [2001] 1 Qd R 634 at [22-28]. The factors to consider and weigh include the likelihood of the conduct occurring, the damage the plaintiff would suffer if it did and the hardship on the defendant if the injunction were granted. A lesser likelihood of repeated conduct might still require the injunction if the consequences for the plaintiff would be great.
• [53] In this case, the plaintiff proved the defendant published defamatory statements which, I am satisfied, were liable to cause serious harm and caused the degree of injury suffered by the plaintiff described above. The defendant did not attend the trial and seek to prove, for example, the substantial truth of the statements. It was not for the plaintiff to prove the statements were untrue. It will be obvious to the defendant that to republish similar statements will cause injury for which action is likely to be taken, which reduces the likelihood of republishing. In view of the level of injury to reputation in this case, I am inclined not to grant an injunction to prevent future conduct. If the underlying dispute is to continue, it is for the parties to deal with it on its merits.

• [54] Where, as here, the plaintiff has succeeded and, I am satisfied, ought to be awarded costs, the Court may have regard to the way the parties conducted the proceeding and other relevant matters and must order costs to be assessed on an indemnity basis if satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.[9]
• [55] For this purpose, "settlement offer" includes an offer to make amends.
• [56] The defendant did not apologise, offer to make amends, make a settlement offer or remove the publications. The defendant did not take part in the proceeding beyond filing a "holding defence". The nature of the defamatory allegations was serious. If s 40(2)(a) of the Act is engaged, the Court is compelled to make a costs order on the indemnity basis, unless the interests of justice require otherwise.[10]
• [57] Two matters arise in deciding where the interests of justice fall on the question of costs:

(a) Whether in all the circumstances, including the quantum of damages sought in the Statement of Claim and that awarded in this judgment, the defendant's conduct pre-trial was unreasonable;

(b) Whether, having regard to rules 697 and 703 of the Uniform Civil Procedure Rules, damages should be assessed as if the proceeding were commenced in the Magistrates Court.

• [58] Subject to submissions as to whether costs should be assessed on the indemnity basis and whether as if the proceeding had been started in the Magistrates Court, I propose to order that the defendant pay the plaintiff's costs of the proceeding, including the cost of preparing the affidavit relied upon at trial but otherwise not including the costs of the application for declarations of deemed admissions.

[1]Rader v Haines [2022] NSWCA 198 at [19] per Brereton JA, citing Lachaux v Independent Print Ltd [2020] AC 612 at [14] per Lord Sumption.

[2] Petrov v Do [2012] NSWSC 1382 [14].

[3] Forrest v Chandla Pty Ltd [2012] NTSC 14 [42].

[4] Sharma v Shandil [2011] NSWCA 155 [3].

[5] Manefield v Child Care (NSW) [2010] NSWSC 1420 [187].

[6] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 p. 60.

[7]Defamation Act 2005 (Qld), s 36.

[8]Ibid, s 38.

[9] Defamation Act 2005 (Qld), s 40.

[10]Nationwide News Pty Ltd v Weatherup [2017] QCA 70 [73].