Kassar v Kee [2025] VSC 671

(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or

(b) it has fewer than 10 employees and is not an associated entity of another corporation -

and the corporation is not a public body.[1]

3 It is accepted by all parties that My Robes is an 'excluded corporation' for the purposes of this provision.

4 The Act also provides that a defamation proceeding cannot be commenced by an aggrieved person unless a concerns notice has been given to the proposed defendant.[2] The concerns notice must inform the publisher of matters such as the defamatory imputations alleged and the serious harm to the aggrieved person's reputation caused or likely to be caused by the publication of the matter in question.[3]

5 The requirement to give a concerns notice applies to both Fuross Kassar, as a natural person, and My Robes, as an excluded corporation. The content of the concerns notice for My Robes, as an excluded corporation, requires additional information, namely 'the financial loss that [My Robes] considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question'.[4]

6 On 5 September 2024, prior to the commencement of the proceeding, a concerns notice for the purposes of s 12B of the Act was sent to Samuel Kee. A concerns notice dated 5 September 2024 was also sent to Im Kim Qui.

7 By summons dated 20 June 2025 Samuel Kee has, relevantly, sought orders:

(i) the statement of claim in which it is alleged that certain publications by Samuel Kee were defamatory of My Robes, on the basis that the purported concerns notice served on Samuel Kee failed to inform him of the financial loss that My Robes considered to be serious financial loss caused or likely to be caused by the publications, contrary to the requirements of the Act; and

(ii) the statement of claim in which allegations are made regarding the Instagram publication, on the basis that this publication was not mentioned in the purported concerns notice, contrary to the requirements of the Act;

(b) requiring security for Samuel Kee's costs as against My Robes in the event that the claim by My Robes against him is not struck out.

9 The evidence before the Court in respect of these applications consisted of affidavits[5] of Mr Gigliotti, solicitor for Samuel Kee, sworn 16 June 2025, Fuross Kassar, the first plaintiff, affirmed 14 August 2025, and Samuel Kee, the first defendant, affirmed 3 September 2025. In addition to the affidavits, the first defendant tendered the concerns notice addressed to Samuel Kee dated 5 September 2024.[6]

10 Written submissions relied on by the parties consisted of the first defendant's written outline of submissions dated 31 July 2025, the plaintiffs' outline of submissions dated 14 August 2025 and the first defendant's reply submissions dated 3 September 2025.

11 The provisions of the Act relevant to the strike out application are as follows:

10A Serious harm element of cause of action for defamation

(1) It is an element (the serious harm 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.

(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

(1) For the purpose of this Act, a notice is a concerns notice if -

(a) The notice -

(i) is in writing; and

(ii) specifies the location where the matter in question can be accessed (for example, a webpage address); and

(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern); and

(iv) informs the publisher of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question; and

(v) for an aggrieved person that is an excluded corporation - also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and

(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Note

Section 12B requires a concerns notice to be given before a proceeding for defamation can be commenced.

(2) For the avoidance of doubt, a document that is required to be filed or lodged to commence a defamation proceeding cannot be used as a concerns notice.

(3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv), or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and the aggrieved person) after being given the notice.

(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.

12B Defamation proceeding cannot be commenced without concerns notice

(1) An aggrieved person cannot commence a defamation proceeding unless -

(a) the person has given the proposed defendant a concerns notice in respect of the matter concerned; and

(b) the imputations to be relied on by the person in the proposed proceeding were particularised in the concerns notice; and

(c) the applicable period for an offer to make amends has elapsed.

(2) Subsection (1)(b) does not prevent reliance on -

(a) some, but not all, of the imputations particularised in a concerns notice; or

(b) imputations that are substantially the same as those particularised in a concerns notice.

(3) The court may grant leave for a proceeding to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court -

(a) the commencement of a proceeding after the end of the applicable period for an offer to make amends contravenes the limitation law; or

(b) it is just and reasonable to grant leave.

12 The concerns notice sent by Fuross Kassar and My Robes to Samuel Kee asserted that over a period of seven months, commencing in or around January 2024, Samuel Kee and Im Kim Qui had engaged in a social media campaign calculated to destroy the reputation of Fuross Kassar and My Robes, and in the process had subjected them to hatred, ridicule and contempt.

13 The background to the campaign given in the concerns notice was said to be that Im Kim Qui had:

... engaged a company Alesse Design to perform renovation works ... Alesse Design invited My Robes to submit a quotation for joinery work on the property. It did so by way of an invoice for the payment of a deposit in the sum of $33,000. In the event, Alesse Design did not engage My Robes, so no works were commenced, and no part of the deposit was ever paid.

14 The publications included in the concerns notice and the imputations of concern were as follows.

15 The first publication relied on was asserted to be a comment on the My Robes Facebook page to the effect that Fuross Kassar and My Robes were guilty of theft and deceit. This publication was said to give rise to the following imputations:

(a) Fuross Kassar has stolen $33,000 from you;

(b) Fuross Kassar is an untrustworthy tradesman in that he abandons projects after being paid for them;

(c) My Robes has a dubious reputation as a maker of cabinetry;

(d) without provocation Fuross Kassar violently attacked you;

(e) Fuross Kassar poses a danger to the public owing to his violent nature;

(f) My Robes has been involved in numerous shady deals; and

(g) My Robes and Fuross Kassar are unscrupulous in their dealings with the public and should be avoided.

16 The second publication relied on was asserted to be a comment on the My Robes Facebook page commencing with the words that Fuross Kassar 'managed to track down my address and give my car a not-so-friendly makeover'. This publication was said to give rise to the following imputations:

(h) Fuross Kassar caused criminal damage to your car;

(i) My Robes and Fuross Kassar have stolen $33,000 from Ms Qui;

(j) together with his associates the Fuross Kassar misappropriated the sum of $308,714 from Qui;

(k) Fuross Kassar is a nasty and self-centred person;

(l) Fuross Kassar poses a danger to the public owing to his violent nature and should be shunned and avoided; and

(m) My Robes has been involved in numerous shady deals.

17 The third publication relied on was asserted to be a comment on the My Robes Facebook page to the effect that Fuross Kassar works with criminals and takes advantage of elderly clients. This publication was said to give rise to the following imputations:

(n) Fuross Kassar works with criminals;

(o) Fuross Kassar is a terrible human being and a disgrace to the community; and

(p) My Robes and Fuross Kassar have taken advantage of an elderly client.

18 The fourth publication relied on was asserted to be a comment on the My Robes Facebook page to the effect that Fuross Kassar from My Robes had failed to fulfill his obligations to complete a kitchen that had been paid for by his aunt. This publication was said to give rise to the following imputations:

(q) Fuross Kassar and My Robes has stolen $33,000 from Qui;

(r) Fuross Kassar has engaged in criminal wrongdoing with his associates by unlawfully taking $308,714 from Qui;

(s) Fuross Kassar has a violent temper and poses a danger to the public; and

(t) Fuross Kassar and My Robes exploit clients by taking their money without performing any work.

19 The fifth publication relied on was asserted to be a comment on the My Dodgy Builders Melbourne Facebook page accusing Fuross Kassar of being 'an unparalleled connoisseur of dishonesty', above a photograph of Fuross Kassar that had been doctored to make him look like a clown. This publication was said to give rise to the following imputations:

(u) Fuross Kassar and My Robes have stolen $33,000 from Qui;

(v) Fuross Kassar is guilty of criminal damage having vandalized your car; and

(w) Fuross Kassar is an unreliable tradesperson who abandons projects for which he had been paid;

(x) Fuross Kassar is a clown and deserving of contempt.

20 The sixth publication relied on was asserted to be a flyer with the word 'scammer' superimposed over a photograph of Fuross Kassar under the words 'fraud alert', posted on the Alesse Design and Fraud Facebook page. This publication was said to give rise to the following imputations:

(y) Fuross Kassar is a thief and a scammer;

(z) My Robes and Fuross Kassar engage in fraudulent activities;

(aa) Fuross Kassar is extremely violent and should be avoided;

(bb) the quality of the work produced by My Robes falls well short of an accepted standard of workmanship expected of a reasonably competent cabinet maker; and

(cc) Fuross Kassar is deserving of hatred, ridicule and contempt.

21 Reliance was also placed on a number of posts published on the Alesse Design and Fraud Facebook page, which were said to give rise to the following imputations:

(dd) Fuross Kassar is a thief and a scammer;

(ee) My Robes and Fuross Kassar engage in fraudulent activities;

(ff) the quality of the work produced by My Robes falls well short of an accepted standard of workmanship expected of a reasonably competent cabinet maker;

(gg) My Robes exploits its workforce; and

(hh) My Robes and Fuross Kassar should be shunned and avoided by the public.

22 Under the heading 'serious harm', the concerns notice stated:

Until you and your aunt began attacking our clients they enjoyed a good reputation as a reliable cabinet maker and competent tradesman. The My Dodgy Builders Facebook page has approximately 1,200 members. The Alesse Design and Fraud Facebook page has 467 followers. The comments you posted on these Facebook pages themselves have attracted comments from people visiting the sites including a comment as to what a reader might do to them if they shared a cell with them in prison and another calling for Fuross Kassar's house to be smashed up and his car burnt. Your comments have also exposed Fuross Kassar to racial abuse. A portion of these comments are attached and marked "N". Further as noted these publications are part of a concerted and systemic campaign to harm our clients' reputation and indeed go to the heart of their professional integrity.

Whether concerns notice failed to inform publisher of serious financial loss

23 Samuel Kee's submission was that My Robes failed to comply with s 12A(1)(a)(v) of the Act because the concerns notice entirely failed to set out the financial loss that My Robes considered to be serious financial loss caused, or likely to be caused, by the publications. Accordingly, My Robes has failed to serve a concerns notice within the meaning of s 12A of the Act. As a consequence, My Robes claim must be struck out, without leave to re-plead. My Robes cannot remedy the defect by issuing a fresh concerns notice, as the relevant limitation period has passed.

(a) there is nothing in s 12A(1)(a)(v) of the Act that prescribes what sort of information is required to satisfy the provision;

(b) the test is subjective;

(c) the information required only need be of a preliminary nature;

(d) pursuant to s 12A(3) of the Act a publisher can request from the aggrieved person further and better particulars - this path was pursued - and as a result the particulars formed part of the concerns notice;

(e) in any event, taking a purposive approach to the legislation, Samuel Kee was provided with all information required under the Act prior to proceedings being instituted against him.

25 It is clear that the concerns notice does not set out the financial loss that My Robes considered to be serious financial loss caused, or likely to be caused, by the publications. The concerns notice does little more than assert that there had been an attack on the plaintiffs' good reputation, including their reputation 'as a reliable cabinet maker and competent tradesman_'_. There is a reference to Facebook follower numbers, but there is no articulation as to how this might translate into serious financial loss.

26 As to My Robes' general submissions, the Act itself makes it clear that the requirements in s 12A(1) are conjunctive. As such, all listed requirements must be satisfied for a notice to be a concerns notice within the meaning of s 12A(1) of the Act.

27 As to My Robes' submission that the provision of further particulars resulted in those particulars forming part of the concerns notice, I do not accept that the particulars themselves can be treated as forming part of the concerns notice. In that regard, I agree with the conclusions expressed in a number of New South Wales District Court cases to the effect that the requirements are 'mandatory'[7] and the absence of required particulars is 'an irremediable defect'.[8] Similar sentiments were expressed by Goulden AsJ in Reiter v News Corp Australia Pty Ltd.[9]

28 It is also to be noted that s 12A(3) of the Act refers to a failure to particularise adequately. In the current case, My Robes failed to give any particulars that could be considered to be serious financial loss caused, or likely to be caused.

29 In any event, although particulars were provided by My Robes following a request, the particulars similarly failed to set out particulars of serious financial loss. The particulars did little more than blandly assert that My Robes was likely to suffer serious financial loss, because:

(a) Fuross Kassar was the sole director and public face of My Robes;

(b) My Robes is referenced in some of the publications complained of; and

(c) a number of the publications complained of were posted on the My Robes Facebook page.

30 Based on the above, I have concluded that the claim by My Robes must be struck out.

31 Samuel Kee's submission was that paragraphs 16 to 19 of the statement of claim make allegations in relation to the Instagram publication and that neither the Instagram publication nor the imputations said to arise were mentioned in the concerns notice as required by s 12A of the Act.

32 Samuel Kee also submitted that the imputations said to arise from the Instagram publication are not the same nor substantially similar to those set out in the concerns notice. As such, s 12B of the Act prevents the plaintiffs from suing in respect of the Instagram publication.

(a) the present case must be viewed in the context of a sustained and vitriolic attack on the character and reputation of the plaintiffs;

(b) the focus of a concerns notice is the defamatory sting and it is contrary to the purpose of a concerns notice, namely to encourage early resolution, to draw rigid distinctions;

(c) while s 12A of the Act sets out the formal requirements of a concerns notice it does not set forth inflexible prescriptive criteria;

(d) section 12B of the Act operates as a bar to the commencement of proceedings in defamation and not the content of the proceeding;

(e) section 12B(1)(a) of the Act is couched in broad terms and only requires a connection or association between the notice and the matter;

(f) quoting McElwaine J in Cooper v Nine Entertainment Pty Ltd, it is not necessary to identify each and every publication:

In the case of multiple publication [sic] of the same or substantially the same defamatory matter the connexion that s 12B(1)(a) requires is in my view satisfied where the aggrieved person in a concerns notice identifies a publication, or some of many, and which the person contends is or may be defamatory. Having satisfied that requirement, a proceeding subsequently commenced is in respect of the matter so identified because of the factual connexion between the publication and the sting complained of.[10]

34 I accept the submission of the plaintiffs that the legislative scheme does not operate to confine a plaintiff to the particular publications identified in a concerns notice in circumstances where:

... a plaintiff who, having given a concerns notice that identifies at least one publication and the defamatory imputations to be relied on in a proposed proceeding, later discovers that there were other publications with the same or substantially the same imputations ...[11]

35 In Cooper v Nine Entertainment Co Pty Ltd, McElwaine J said:

... the legislative scheme does not operate to rigidly confine a plaintiff to the publications that were known when the notice was given, provided that other publications were the same or substantially the same. ... It is neither effective nor fair to strictly confine aggrieved persons to a remedy for publications that are specified in a concerns notice if there were other publications to the same or substantially the same effect, more so where the extent of publication is a matter within the knowledge of the publisher.[12]

36 In respect of s 12B(1)(a) of the Act, I am satisfied that there is sufficient similarity between the Instagram publication and the other publications to enable it to fall under the umbrella of the 'matter' the subject of the concerns notice.

37 In respect of s 12B(1)(b) of the Act, I am satisfied that two out of the three imputations pleaded in paragraph 19 of the statement of claim are substantially the same as those particularised in the concerns notice.

38 The imputation pleaded in paragraph 19(a) of the statement of claim is that Fuross Kassar 'was a clueless buffoon and deserving of ridicule'. That is not all that different to the imputation set out in the concerns notice to the effect that Fuross Kassar was a clown and deserving of contempt.

39 Similarly, the imputation pleaded in paragraph 19(c) of the statement of claim that Fuross Kassar and My Robes 'have misled and deceived people by claiming to be a family owned business that had operated for over a decade' is similar in a general sense (albeit not identical) to imputations set out in the concerns notice to the effect that:

(a) My Robes had been involved in shady deals and had a dubious reputation as a maker of cabinetry; and

(b) My Robes and Fuross Kassar engage in fraudulent activities.

40 It is further noted that the flyer relied on in the concerns notice contained a statement that Fuross Kassar 'lies about being in business for over 10 years'. I accept that there was no imputation set out in the concerns notice in these precise terms. But, accepting that a proceeding 'is likely to evolve over time through amendment and further particularisation',[13] I have concluded, albeit with some hesitation, that I will not strike out the imputation pleaded in paragraph 19(c) of the statement of claim.

41 As to the pleading in paragraph 19(b) of the statement of claim that the Instagram publication was meant or was understood to mean that Fuross Kassar 'was mentally deficient insofar as he had a tiny brain', I conclude that there is no similar imputation asserted in the concerns notice. This paragraph of the statement of claim will be struck out.

42 Insofar as the pleadings in paragraphs 16 to 19 reference My Robes (as opposed to Fuross Kassar), they will be struck out in accordance with my findings above.

43 Given my determination in respect of the strike out application, it is not necessary to deal with the application for security of costs.

44 I will hear the parties on the form of orders and as to costs.

[1] Defamation Act 2005, s 9(2).

[2] Ibid, s 12B.

[3] Ibid, s 12A(1).

[4] Defamation Act 2005, s 12A(1)(v).

[6] A concerns notice addressed to Im Kim Qui dated 5 September 2024 is exhibited to the affidavit of Peter Gigliotti sworn 16 June 2025.

[7] Teh v Woodworth [2022] NSWDC 411, [27] (Gibson J).

[8] Piggott v Van Der Veen [2025] NSWDC 391, [24] (Gibson J).

[9] [2025] VSC 54 (Goulden AsJ).

[10] Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726, [38] (McElwaine J).

[13] Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726, [37] (McElwaine J).