Kumova v Davison

Australian Securities and Investments Commission, ASIC warns of social media led 'pump and dump' campaigns (Media Release 21-256, 23 September 2021) Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement, signed on 24 July 2008, [2013] ATS 32 (entered into force on 11 October 2013) Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves (2012 edition) cl 51 Australian Securities and Investments Commission, Relevant interests and substantial holding notices (Regulatory Guide 5, 27 August 2020) Australian Securities and Investments Commission, Pump and dump of micro-cap securities (Report 732, July 2022) Australian Securities Exchange, ASX Listing Rules Explanatory Memorandum, Trans-Tasman Proceedings Bill 2010 (Cth) Tony Yoo, 'From taxi driver's son to $95 million business tycoon', Yahoo! Finance (online, 1 April 2019)

National Practice Area: Other Federal Jurisdiction

Date of hearing: 22 June - 7 July 2022

Counsel for the Applicant: Ms S Chrysanthou SC with Mr B Dean

Counsel for the Respondent: Mr D R Sibtain SC with Mr J Wheeldon

Table of Corrections 17 February 2023 In the table at paragraph 35 and the table at paragraph 80, "about New Century's acquisition of the Goro nickel mine prior to capital raising" be replaced with "about the New Century Resource's acquisition of the Goro nickel mine prior to the capital raising" 17 February 2023 In the table at paragraph 35, the heading at paragraph 68 and the table at paragraph 80, "manipulated share price of stocks to the benefit money launderers" be replaced with "manipulated the share price of stocks to the benefit of money launderers" 17 February 2023 In the table at paragraph 35, the table at paragraph 80, the table at paragraph 90, paragraph 234(2), the heading at paragraph 267 and paragraph 279, "an activity as disreputable as engaging in a drug syndicate" be replaced with "an activity that is as disreputable as engaging in a drug syndicate" 17 February 2023 In paragraph 148, "the pleaded representation has been proven to be apt" be replaced with "the pleaded representation has not been proven to be apt" 17 February 2023 In paragraph 339, "having closely observed the effect of this conduct of Mr Kumova" be replaced with "having closely observed the effect of this conduct on Mr Kumova"

AND: ALAN FRANCIS DAVISON Respondent

order made by: LEE J DATE OF ORDER: 9 JANUARY 2023

1. By 8 February 2023, the parties bring in agreed or competing short minutes of order providing for: (a) judgment to be awarded in favour of the applicant against the respondent on the amended statement of claim in the sum of $275,000 together with interest (at a rate of 3%) calculated to the date of entry of judgment; and (b) a proposed form of injunction enjoining the respondent if such relief was to be granted.
2. The proceeding be stood over to 10 February 2023 at 10:15am to deal with the entry of judgment and all remaining issues.

THE COURT NOTES THAT: 3. The respondent, through his solicitor, has given an undertaking to the Court that he and his servants and agents will take no steps to publish or republish the imputations that I have found to be conveyed until 4pm on 10 February 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A INTRODUCTION 1 This is a defamation case defended primarily on the basis of proving the existence of a "pump and dump" securities trading scheme. 2 The applicant, Mr Tolga Kumova, is an Australian investor in mining companies and sues the respondent, Mr Alan Davison, an ex-Swami, or religious ascetic, who is now engaged in the more prosaic activity of owning numerous internet domains and generating income from advertising revenue. More relevantly for present purposes, Mr Davison also operates a Twitter account at https://twitter.com/stockswami and has embraced the sobriquet "Stock Swami". He publishes anonymously and his account features a phantasmal (and somewhat disconcerting) profile picture. 3 Mr Kumova is also a Twitter aficionado. His Twitter account is located at https://twitter.com/kumovatolga. He liked to tweet about his investments in mining stocks and his success in making money. His evidence was that he did so because he was "proud" of his material success. He also tweeted about an array of personal matters, including his family, sport, his polo club, politics and the COVID-19 pandemic. 4 The genesis of this dispute (and the core of the defence) is Mr Davison's belief that some of the tweets posted by Mr Kumova were part of a deliberate strategy to mislead and deceive the investing public to further the financial interests of Mr Kumova. 5 It should be noted at the outset that Mr Davison was not tilting at windmills in being generally concerned about the real or potential misuse of social media to "ramp" securities. The misuse of social media prompted the Australian Securities and Investments Commission (ASIC) (in ASIC warns of social media led 'pump and dump' campaigns (Media Release 21-256, 23 September 2021)) (ASIC Media Release) to warn of: a concerning trend of social media posts being used to coordinate 'pump and dump' activity in listed stocks, which may amount to market manipulation in breach of the Corporations Act 2001. 'Pump and dump' activity occurs when a person buys shares in a company and starts an organised program[me] to seek to increase (or 'pump') the share price. They do this by using social media and online forums to create a sense of excitement in a stock or spread false news about the company's prospects. They then sell (or 'dump') their shares and take a profit, and other shareholders suffer as the share price falls. ASIC has recently observed blatant attempts to pump share prices, using posts on social media to announce a target stock, a designated time to buy and a target price or percentage gain to be reached before dumping the shares. In some cases, posts on social media forums may mislead subscribers by suggesting the activity is legal. If an investor decides to buy shares as part of one of these campaigns, they may become the victim. The people behind the campaign may start dumping their shares and taking profits before they reach the target price. Market manipulation is illegal. It can attract a fine of over $1 million and up to 15 years imprisonment. ASIC takes breaches of the market manipulation provisions seriously. 6 In recent weeks, Downes J found a social media user was carrying on a financial services business, which included posting positive stories about a company on an Instagram account. These stories often indicated that the social media user had acquired shares in that company or that he thought that shares would be a good investment. Her Honour found that a likely and knowing consequence of this conduct was that it would influence viewers of his stories to acquire shares and his shareholding would thus increase in value (a "clever way of pumping"): see Australian Securities and Investments Commission v Scholz (No 2) [2022] FCA 1542 (at [1]-[13]). As an aside, the activities of the contravener in that case had also attracted the interest and criticism of Mr Davison: see ASIC v Scholz (at [49]-[52]). 7 This problem is not confined to Australia. In the United States, for example, fraudulent schemes to manipulate securities by publishing false and misleading information in online stock trading forums, on podcasts, and through Twitter accounts are well known. 8 Different forms of manipulation broadly described as "pump and dump" or "hype and dump" schemes have a common theme: insiders or promoters obtain ownership or control of a significant block of shares of a selected issuer by using their own accounts or nominees. They hype the shares to the public to generate artificial interest and cause the price to rise without disclosing an intention to sell. There is nothing particularly new about such market manipulation, but it has recently become easier to effectuate because the "pumper" can readily access social media to attempt to distort the market (perhaps in combination with others). Such a social media user may have a sufficient understanding of the dynamics of the medium to predict that followers will act based on their "pumping", notwithstanding they might include a form of disclaimer on their profile to the effect they are not providing share recommendations or financial advice. 9 It is conduct that is difficult to regulate and, as ASIC has recognised, is insidious. When discovered, it is not only worthy of attention by the regulator, but also by those who commentate on financial markets. Speaking in the abstract, the financial media or a public commentator exposing market manipulation (and thereby prompting the regulator) might be thought to have social and economic utility. But the very seriousness of market manipulation in any form means that a public accusation of pumping and dumping or insider trading must be approached responsibly and with a degree of circumspection. 10 What also should be approached with care is boasting on Twitter or other social media about one's sagacity in share trading and the prospects of companies in which one has an equity stake. Holding oneself out as a stock picking expert and being so "proud" of the success of a company with which one is associated that one feels the need (for some reason) to share that pride with strangers risks promoting the company's shares to followers in a way that has the effect of generating demand for the company's shares. In micro-cap or other thinly-traded securities, this conduct risks the creation of a false market. Given the apparent trend for promoters to engage in broadly similar social media conduct, but with a base motive to manipulate the market, it is easy to see why tweeting or posting about the alleged value of a company's shares or assets, when you have a substantial interest in the company, can arouse suspicion. 11 For reasons I will explain, an aspect of Mr Kumova's conduct examined in this case is troubling. But if one is going to make an allegation of illegal conduct, one must proceed warily. For the reasons explained below, Mr Davison did not prove the substantial truth of critical facts. He defamed Mr Kumova, and upon a review of the whole of the evidence he has no substantial truth or honest opinion defence. Accordingly, Mr Kumova is entitled to be vindicated and to be seen to be vindicated. 12 In explaining why, the balance of my reasons are divided into the following headings: B Further Background; C The Publications, Imputations and Mode of Publication; D The Disputed Imputations and Meaning; E The Defences Generally; F Justification; G Honest Opinion; and H Relief.

B FURTHER BACKGROUND 13 The backdrop to this dispute is set out in the Statement of Agreed Facts (SAF) jointly filed by the parties pursuant to s 191 of the Evidence Act 1995 (Cth) (Evidence Act) and received into evidence. The following section records my findings, in large part based upon that document.

B.1 Mr Kumova's Business and Trading Activity 14 Mr Kumova boasts an extensive business and trading history. He has pursued investment opportunities in the junior mining sector since 2013, investing in numerous companies including Aston Minerals Limited (formerly known as European Cobalt Limited), Alderan Resources Limited, Bellevue Gold Limited (Bellevue Gold), Meteoric Resources NL, New Century Resources Limited (New Century) and Syrah Resources Limited (Syrah Resources). Mr Kumova has also held corporate director positions in a suite of mining companies. 15 Two companies are of especial importance to this case: Bellevue Gold and New Century.

Bellevue Gold 16 Bellevue Gold is listed on the Australian Securities Exchange (ASX). The company is exploring and developing a high-grade underground gold mine in Western Australia. 17 In the period during which the impugned matters were published (September 2019 to June 2020), Bellevue Gold experienced considerable growth, notwithstanding the COVID-19 pandemic. The share price bottomed at around $0.28 in early 2020, when the COVID-19 pandemic first broke out, but bounced back after BlackRock Asset Management took a $30,000,000 placement. As at the close of business on 27 May 2020, the company's market capitalisation was $491,100,000 based on a $0.72 share price with an average daily volume of 3,000,000 shares. By 11 November 2020, Bellevue Gold's market capitalisation was $1,175,900,000, based on a $1.40 share price with an average daily volume of 4,500,000 shares. 18 The largest shareholders in Bellevue Gold across the period included the following large institutional investors: 1832 Asset Management (a leading global gold fund), BlackRock Asset Management and VanEck (the largest gold exchange trade fund in the world): T342.19-21. 19 Mr Kumova first purchased shares in Bellevue Gold in about March 2017, at a time when they were trading for as low as three cents per share. Between July 2019 and March 2020, Mr Kumova disposed of a net 3,000,000 shares in Bellevue Gold. More particularly, on 5 July 2019, Mr Kumova sold 1,500,000 shares on market for $0.665 per share, totalling $997,500. He sold a further 200,000 shares on market on 11 November 2019 for just shy of $0.50 per share, and 200,000 shares on market on 16 December 2019 for just over $0.50 per share. 20 During the earliest stages of the COVID-19 pandemic, in late February 2020, Mr Kumova sold 389,498 shares for $0.60 per share and 810,502 shares for $0.6131 per share on market, culminating in a total sale of $730,617. As the full force of the pandemic was felt in March and April 2020, the Bellevue Gold share price collapsed. Mr Kumova took advantage of the drop, purchasing 100,000 shares on 19 March 2020 for $0.2850 per share. He sold those shares for $0.3150 per share the next day. 21 Mr Kumova did not sell Bellevue Gold shares again until 12 May 2020 when the share price had recovered to $0.59 per share. As at this date, Mr Kumova held 42,329,805 shares totalling $24,974,584 (based on the 12 May 2020 average sale price of $0.59). 22 By 25 June 2020, Mr Kumova's remaining 39,432,401 shares were worth $46,727,395. On 15 July 2020, when Mr Kumova ceased being a substantial shareholder due to a dilution on 15 July 2020, he still held 38,132,401 shares. 23 Mr Kumova's sales were disclosed to the market up until 30 July 2020. Mr Kumova also discussed his sales in a series of published interviews in 2020 and 2021. 24 Throughout the period over which the impugned matters were published, Mr Kumova had several offers to sell his total shares through Macquarie Bank or Canaccord Genuity Group Inc (Canaccord) on behalf of institutional investors. He declined those offers.

New Century 25 New Century is an Australian-based metal producer, also listed on the ASX. It operates the historic Century Mine in Mount Isa, Queensland, using hydraulic mining techniques to harvest and process zinc from tailings (the mineral waste that remains after the processing of ore to extract mineral concentrate). 26 Mr Kumova joined the board of New Century as a director in July 2017. With the encouragement of mining executive and investor Mr Evan Cranston, Mr Kumova capitalised upon what he perceived to be a "unique" deal and agreed to invest $2,500,000 in the company. He remained a director of New Century until July 2019. 27 Mr Kumova bought 16,666,666 fully paid shares and 30,000,000 options in New Century on 13 July 2017. At this time, New Century disclosed to the ASX that Mr Kumova had a shareholding of 5.64%. 28 On 1 May 2018, New Century had a large capital raising. It was heavily oversubscribed by institutional investors, and, as a result, New Century's directors, including Mr Kumova, were not entitled to participate. 29 Instead, Mr Kumova purchased $1,250,000 of shares in New Century on market. New Century's 2019 Annual Report records that Mr Kumova held 17,900,000 shares and 30,000,000 options in the company between 1 July 2018 and 17 July 2019. This investment did not change during this time, bookended by his resignation from the company.

B.2 Mr Kumova's Twitter Account 30 Mr Kumova began operating a Twitter account in September 2017, generating increased (but still relatively modest) interest over time. From April 2019 to June 2022, Mr Kumova's followers increased from approximately 4,500 to 27,500. As was put by his senior counsel, Mr Kumova is "no Kardashian". But he was celebrated in the business media from time to time, including by featuring on the Australian Financial Review's "Young Rich List", as a figure having gone "from taxi driver's son to $95 million business tycoon": Tony Yoo, 'From taxi driver's son to $95 million business tycoon', Yahoo! Finance (online, 1 April 2019). 31 Mr Kumova's account profile read at all relevant times, "My tweets are my opinions. I am not a licenced financial advis[e]r and what I say should not be considered financial advice". Notwithstanding what may be gleaned from the substance of Mr Kumova's tweets and Twitter activity, nowhere on his Twitter profile did Mr Kumova identify himself as a director of Bellevue Gold, New Century, or any other company.

B.3 Mr Davison's Twitter Account 32 At all material times, Mr Davison's Twitter account also had a modest following compared to some. He had approximately 4,900 followers in December 2019, 6,800 followers in September 2020 and 7,500 followers by mid-June 2022. 33 Mr Davison gave evidence that he started the @stockswami account "to give [himself] a platform to provide commentary" on the ASX and related online forums. In his account profile, Mr Davison described the account as offering a "[c]ynical and [c]ranky take on the ASX professional company manipulators, I mean operators, making a play on [r]etail. They can [b]lock but they can't stop the Swamo."

C THE PUBLICATIONS, IMPUTATIONS AND MODE OF PUBLICATION

C.1 The Matters and Imputations 34 Mr Kumova sues upon six allegedly defamatory publications published on Twitter. Mr Davison admits to publishing the material part of each matter. 35 Identified in the table below are the publications and the alleged imputations (by the number of the paragraph in which they appear in the amended statement of claim). Also identified in the table is whether the conveyance of the imputation was actively disputed by Mr Davison by the end of the trial. Mr Davison belatedly conceded that each imputation, if carried, was defamatory (T664.5-8; T677.18): First Matter

Imputation Actively Disputed Imputation 5(a): Mr Kumova engaged in insider trading Yes Imputation 5(b): Mr Kumova engaged in unlawful activity on the Australian [Securities] exchange No Imputation 5(c): Mr Kumova misled the Australian share market No

Imputation Actively Disputed Imputation 7(a): Mr Kumova engaged in insider trading Yes Imputation 7(b): Mr Kumova acted illegally by buying and selling stocks in a number of companies that he is intimately connected with Yes

Imputation Actively Disputed Imputation 9(a): Mr Kumova engaged in insider trading Yes Imputation 9(b): Mr Kumova gave inside information about the New Century Resource's acquisition of the Goro nickel mine prior to the capital raising involving IGO Limited No

Imputation Actively Disputed Imputation 11(a): Mr Kumova engaged in insider trading Yes Imputation 11(b): Mr Kumova gave inside information about the New Century Resource's acquisition of the Goro nickel mine prior to the capital raising involving IGO Limited No Imputation 11(c): Mr Kumova has a professional relationship with convicted tax evader Harry Hatch Yes Imputation 11(d): Mr Kumova has manipulated the share price of stocks to the benefit of money launderers Yes Imputation 11(e): Mr Kumova has manipulated the share price of Syrah Resources to the benefit of money launderers Yes Imputation 11(f): Mr Kumova has manipulated the price of Syrah Resources to enable it to get into an ASX index Yes

Imputation Actively Disputed Imputation 13(a): Mr Kumova engaged in pump and dump schemes in the financial market No Imputation 13(b): Mr Kumova engaged in an activity that is as disreputable as engaging in a drug syndicate No Imputation 13(c): Mr Kumova has engaged in market manipulation Yes

Imputation Actively Disputed Imputation 15(a): Mr Kumova gave inside information to Assad Tannous Yes

C.2 Mode of Publication 36 As to the mode of publication of the matters, being the social media platform Twitter, the parties helpfully agreed on a number of facts: see SAF (at [23]-[44]). Many of these facts might be thought obvious, but some should be recorded as findings. 37 Twitter is free to access and use (at least it was free at the time material to this case). Twitter users can create content (by posting tweets) or consume content (by reading other users' tweets). Twitter can be accessed from virtually any computer or device, through the website twitter.com or through the Twitter application, downloadable on mobile devices. 38 A user does not need a Twitter account to access Twitter and consume content on the platform. If a user establishes an account, the user is required to select a username known as a "handle". Users can choose to "follow" others, that is, to subscribe to receive updates concerning their activity on Twitter. 39 Upon logging in, the user sees a real-time stream of tweets made, re-tweeted or shared from accounts that the user has chosen to follow, known as the "Twitter Home timeline". 40 A user can also find content through the "Explore" tab function, which displays trending tweets and other tailored content, including from accounts the user does not follow. This content is generally selected by Twitter using a proprietary algorithm. According to Twitter's "Help Cent[re]", this additional content is selected "using a variety of signals", including the other users and topics the user already follows, how popular the content is, and how people in the user's network are interacting with it. Consequently, Twitter users who are interested in a particular subject matter may see tweets in their Twitter Home timeline related to matters they have engaged with in some way, from persons they do not follow. 41 Twitter allows its users to reply to, "like", "retweet" and "quote tweet" other users' tweets and share tweets of their own. Relevantly, a "retweet" is a reposting by one Twitter user (the "retweeter") of another user's tweet, while a "quote tweet" is a retweet with additional text or content added by the retweeter. Retweets and quote tweets are performed by clicking or tapping on the retweet icon and, in the case of a quote tweet, then adding any additional text or content. 42 Information about a tweet is displayed as follows: 43 Twitter Analytics records the level of engagement other Twitter users have had with a specific tweet. A metric used is "total engagement", which reflects the total number of times users have interacted with a tweet, that is, clicked anywhere on the tweet, including on retweets, replies, follows, likes, links, hashtags, embedded media, the username and the profile photo.

D THE DISPUTED IMPUTATIONS AND MEANING 44 As noted above, Mr Davison denies that all but six of the pleaded imputations were conveyed and "does not contest" that the following imputations were carried: 5(b) and 5(c) (First Matter); 9(b) (Third Matter); 11(b) (Fourth Matter); and 13(a) and 13(b) (Fifth Matter). 45 One would think that not contesting issues would sensibly lead to the making of admissions consistently with the requirements of narrowing issues in accordance with s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), but Mr Davison still maintains that the "uncontested" imputations are matters for Mr Kumova to establish. 46 The principles as to meaning were unsurprisingly not in dispute and do not require, yet again, explication, save for in one respect: see, for example, Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 400 ALR 56 (at 63-65 [28]-[31] per Rares J, with whom Wigney and Lee JJ agreed). The issue of how questions of meaning should be approached in the context of social media posts was recently considered in Bazzi v Dutton [2022] FCAFC 84; (2022) 289 FCR 1 (at 9-11 [29]-[33] per Rares and Rangiah JJ). In short, as with all questions as to meaning, context is everything. Several pointed things might be said about Twitter, but it is correct to observe that it is a conversational medium characterised by informality and, sometimes, the crude reduction of complex matters to their core elements. It would be wrong to engage in elaborate analysis of tweets; an impressionistic approach is required: Bazzi v Dutton (at 16 [62] per Wigney J). However, this impressionistic approach must take account of each tweet as a whole and the context in which the ordinary reasonable reader would read it, including matters of general knowledge and matters that were put before the reader via Twitter. As has been remarked, it is pre-eminently a medium whereby the ordinary reader reads and passes on. Consistently with these features of the platform, it was not disputed that where shorthand is used in a tweet (which is often the case), implication and innuendo are rife. This is exacerbated by the limited number of characters available to users for each tweet. 47 It should also be noted that relevant extrinsic facts, being the shorthand references to certain companies, the ASX and "sp" (meaning "share price"), are agreed: see, for example, SAF (at [46]-[48], [60], [63]-[65], [71]-[74], [80]-[85], [95]-[96]). 48 It is convenient then to deal with each of the imputations.

Imputation 5(a): Mr Kumova engaged in insider trading 49 Mr Davison submits that Imputation 5(a) is not conveyed by the First Matter. At worst, it is said, the reader would understand the charge to be a failure to procure "$EUC" (European Cobalt Limited) to disclose information concerning a material acquisition to the ASX, which information was used by others to their financial benefit. In Mr Davison's view, it would be a strained or forced interpretation of the tweet to say it suggests Mr Kumova engaged in insider trading. 50 Mr Davison's submissions must be rejected for three reasons. First, the only person identified in the tweet is Mr Kumova. The words "[i]nside [t]rading alive and thriving" are indubitably directed towards him. Secondly, the ordinary reasonable reader would understand the words "[i]nside [t]rading", the reference to a "[t]rading halt" and a "33% spike in sp" to refer, plainly, to insider trading. This, coupled with the reference to the ASX as a "Pirate Ship", necessarily conveys that illegal acts are taking place on the ASX. Thirdly, the assertion that such piracy is a "Tolga Kumova special" conveys the message that Mr Kumova engages in insider trading on the ASX. The tweet purports to address just one example of Mr Kumova's improper tactics, "alive and thriving" and known by many, as implied by "err cough cough". 51 The imputation is conveyed.

Imputation 7(a): Mr Kumova engaged in insider trading 52 Mr Davison submits that the ordinary reasonable reader would understand the first sentence of the Second Matter ("Tolga Kumova certainly knows when to buy & sell a stock he is intimately connected with") to be a mere observation as to the impeccable timing of Mr Kumova's trades. Further, it is said that the final sentence (that Mr Kumova needs to "update himself with ASIC laws") is no more than an observation that Mr Kumova needs to refamiliarise himself with his legal obligations to disclose his share trading activity as a substantial shareholder in Bellevue Gold. Central to Mr Davison's submissions is that the Second Matter does not expressly mention inside information or use the words "insider trading". 53 These submissions should be rejected: the imputation is conveyed. 54 The allegation that Mr Kumova knows precisely when to buy and sell stock he is "intimately connected with", and that he has done so with three companies, conveys the meaning that Mr Kumova habitually misuses "intimate" information when trading. The phrase "intimately connected with" is pregnant with meaning. The ordinary reader would understand that phrase, in the context of the tweet as a whole, to be an allegation of insider trading, particularly having regard to the allegation that Mr Kumova needs to "update himself with ASIC laws".

Imputation 7(b): Mr Kumova acted illegally by buying and selling stocks in a number of companies that he is intimately connected with 55 Mr Davison conceded this imputation is carried in oral address: T768.9-10. However, that concession is not recorded in the table prepared by Mr Davison's solicitors summarising the contested imputations and defences finally pressed (Imputations and Defences Table) and is addressed (albeit briefly) in Mr Davison's written closing submissions. 56 It suffices to say that the suggestion that Mr Kumova should "update himself with ASIC laws" implies non-compliance with those laws. It is suggested that Mr Kumova is not disclosing substantial shareholdings and has traded in shares improperly prior to the trading halt. This imputes unlawfulness in Mr Kumova's trading practices. A pattern of behaviour is alleged in the reference to three companies. These elements culminate in the conveyance of Imputation 7(b): that Mr Kumova repeatedly acts unlawfully in relation to companies with which he is involved.

Imputation 9(a): Mr Kumova engaged in insider trading 57 This tweet suggests that, despite the published "cleansing statement" for New Century, Mr Kumova has inside information in relation to the company and passed on the information to his friends. It is an agreed fact that readers of the Third Matter knew that a "cleansing statement" was an announcement to the ASX by a listed entity which "may disclose information to the market and confirms that no other undisclosed price sensitive information exists": SAF (at [76]). 58 Mr Davison submits that there is a material difference between Mr Kumova giving inside information to "his mates", and Mr Kumova himself engaging in insider trading. 59 There is no such meaningful difference. The moral or social standard by which the hypothetical referee would evaluate the tweet would not discriminate between Mr Kumova and "his mates", other than that Mr Kumova, as the distributor of the inside information, is most at fault, or at least at the heart of the wrongdoing: Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; (2021) 386 ALR 36 (at 46-47 [34]-[36] per Rares J). 60 Further, the assertion that the alleged trading halt "makes a mockery" of the cleansing statement implies that the cleansing statement was false. This means that the ordinary and reasonable reader of the Third Matter would understand that the information Mr Kumova was said to be telling his "mates" was undisclosed, price sensitive information. That reader would not distinguish between Mr Kumova as facilitator, and Mr Kumova as participant, not least when reading the Third Matter on Twitter, a platform engineered for fast-paced reading and engagement. 61 The imputation is conveyed.

Imputation 11(a): Mr Kumova engaged in insider trading 62 As with the Third Matter, Mr Davison asserts that the Fourth Matter concerns Mr Kumova relaying information to others, rather than using that information during his own share trading activity. 63 Again, as a matter of impression, there is no material difference for the ordinary reasonable reader between orchestrating a series of insider trades and making the trades themselves. The hypothetical referee would read the Fourth Matter and glean from it that Mr Kumova had been instrumental in the misuse of inside information. 64 The tweet claims, "I outed TK giving inside info […] Tolga was the source of the leak […] Was this info just meant for friends?" This is an assertion of fact: that Mr Kumova has previously been exposed as using insider information to benefit his friends. The question, "Was this info just meant for friends?" can be read in two ways, both defamatory. The first available reading (and the better view) is that the assertion that Mr Kumova held on to sensitive information and revealed it "just" to "friends" is an allegation of insider trading. Secondly, the question might be thought by some to insinuate that Mr Kumova shared the information beyond "just" his "friends", to a broader pool. If I am required by authority to adopt one meaning, it would be the former. 65 Further, "Insiders were told of plans […] Tolga was hinting" and "let insiders make bank" imply that the "insiders" could make money from misconduct. The imputation of illegality is reinforced by the remaining allegations in the tweet which impute that Mr Kumova is engaged in a range of other nefarious conduct with his associates.

Imputation 11(c): Mr Kumova has a professional relationship with convicted tax evader Harry Hatch 66 The entire purpose of the second half of the Fourth Matter is to impugn Mr Kumova by reason of his alleged association with Mr Carlo Chiodo and Mr Harry Hatch. 67 The screenshot of orders made in a Federal Court matter between the Deputy Commissioner of Taxation and Mr Hatch imputes that Mr Hatch has been found to have evaded paying millions of dollars of tax. The crux of the defamation is the innuendo, "But if TK can judge me by my association with porn… 😏", an unfinished sentence which, if there was any doubt, is completed by Mr Davison when he questions why the "Press aren't all over the story" and notifies the reader that he is applying to the Court for documents to provide more detail. Read in context, this suggests that additional documents from a reliable source may disclose a newsworthy story about Mr Kumova. The sting is not assuaged by Mr Davison's assertion that his words do not "implicate anyone other than Hatch".

Imputation 11(d): Mr Kumova has manipulated the share price of stocks to the benefit of money launderers 68 Mr Davison alleges that Mr Kumova's case for Imputation 11(d) is built upon "inference upon inference and looking for the most well-hidden of meanings". Mr Davison's submission fails to recognise the way meaning is conveyed on a quick-fire, grapevine-like platform such as Twitter, especially in the light of the composition of the Fourth Matter, as a cascading series of retweets. 69 A hypothetical referee, scrolling through Twitter, would associate Mr Kumova with the conduct of Mr Chiodo, Mr Kumova's alleged "good mate", who has "been ramping the s*** out of spec stocks". In fact, Mr Davison expressly invites the reader to do so: "Chiodo was on early in all of Tolga's plays. $SYR $CSE Harry Hatch also". It is then alleged that Mr Hatch undertook questionable share transactions, and that Mr Chiodo was selling to Mr Hatch, a chain of wrongdoing in which Mr Kumova is implicated: "[a] great way to launder money tho, or hide who's been selling (manipulating)". 70 Furthermore, "[one] theory is $SYR sp was manipulated to into an ASX index to sell into the institutions buying" is a suggestion Mr Kumova manipulated the price of shares in Syrah Resources. Given Syrah Resources is identified as one of Tolga's "plays", the implication is that Mr Kumova manipulated the share price of that company to assist either or both of Mr Chiodo and Mr Hatch.

Imputation 11(e): Mr Kumova has manipulated the share price of Syrah Resources to the benefit of money launderers 71 The fact that the relevant reference to manipulation of the "$SYR sp" is couched as being "[one] theory" does not detract from the meaning, given it is said without qualification in a publication that impugns Mr Kumova repeatedly. Although the ordinary reader is neither avid for scandal nor suspicious of mind, the meaning is clear when one has regard to the context as a whole. The money launderers are plainly suggested to be Mr Hatch and Mr Chiodo.

Imputation 11(f): Mr Kumova has manipulated the price of Syrah Resources to enable it to get into an ASX index 72 The reasoning is essentially the same as above: the imputation is conveyed.

Imputation 13(c): Mr Kumova has engaged in market manipulation 73 It is Mr Davison's case that the Fifth Matter "says nothing about market manipulation". Rather, he submits, it is concerned with "the selling of cheaply bought stock to an identified customer base for a profit", which he characterises as market "exploitation" rather than manipulation. 74 This is a silly line to draw. To exploit the market by creating a "syndicate", "find[ing] a source", "buy[ing] cheap", "network[ing]" and profiting as a result is to engage in a form of market manipulation as that concept is generally understood. Nowhere is the implication of market manipulation stronger than in the use of the terms "pumper" and "pump group". 75 Although the meaning of the verb "pump" in this context is not an agreed fact, there did not emerge over the course of written and oral submissions any substantial difference in the parties' understanding of the term. Mr Kumova asserts, and I agree, that "a pumper or a pump group is a person or persons who engages in market manipulation to increase a share price and enable profit to be made on the shares". A definition to this effect is accepted by Mr Davison in his closing submissions, although elsewhere, Mr Davison adopts a different definition inconsistent with ordinary usage and understanding. It will be necessary to return to this issue below when considering the justification defence in Section F.6. 76 The present question is whether such a fact was notorious or was otherwise known to some readers of the Fifth Matter. It is a commonly used expression. Given the focus of Mr Davison's Twitter account, it can be readily inferred that readers of that account (or at least many of them) had knowledge of what a "pumper" and a "pump group" are, and the connotations of market manipulation carried by these terms. He was, after all, the "Stock Swami". 77 But even an atypical reader of the Fifth Matter who did not have a real understanding of the concept of "pumping" would understand it involved market manipulation. This is because of the appeal to readers to "lock up [their] money", the comparison of a pump group to a drug syndicate and the explanation of the pumping process given at the end of the Fifth Matter.

Imputation 15(a): Mr Kumova gave inside information to Assad Tannous 78 The collocation of "Tolga Kumova giving info to mates… again?" and the ticker codes $NCZ (New Century) and $IGO (IGO Limited) would, in the mind of the ordinary reasonable reader, impute that the "info" relates to the companies and the trading of shares in those companies. 79 By retweeting a tweet by Mr Assad Tannous, Mr Davison puts an insidious spin on it. The tweet conveys both that Mr Kumova gave inside information to Mr Tannous on this occasion but also on other earlier occasions ("giving info to mates… again?"). Although Mr Davison uses a question mark, it is deployed in a rhetorical sense given the content of Mr Tannous' tweet and the use of the ellipses. In any event, Mr Tannous is the only "mate" identified in the Sixth Matter, and the tweet accuses Mr Kumova of giving inside information "again". The ordinary reasonable reader would understand the Sixth Matter to impute that Mr Kumova gave inside information to Mr Tannous, perhaps on more than one occasion.

D.7 Conclusions as to Meaning 80 The upshot of the foregoing is that the following imputations are conveyed: First Matter Imputation 5(a): Mr Kumova engaged in insider trading Imputation 5(b): Mr Kumova engaged in unlawful activity on the Australian [Securities] Exchange Imputation 5(c): Mr Kumova misled the Australian share market Second Matter Imputation 7(a): Mr Kumova engaged in insider trading Imputation 7(b): Mr Kumova acted illegally by buying and selling stocks in a number of companies that he is intimately connected with Third Matter Imputation 9(a): Mr Kumova engaged in insider trading Imputation 9(b): Mr Kumova gave inside information about the New Century Resource's acquisition of the Goro nickel mine prior to the capital raising involving IGO Limited Fourth Matter Imputation 11(a): Mr Kumova engaged in insider trading Imputation 11(b): Mr Kumova gave inside information about the New Century Resource's acquisition of the Goro nickel mine prior to the capital raising involving IGO Limited Imputation 11(c): Mr Kumova has a professional relationship with convicted tax evader Harry Hatch Imputation 11(d): Mr Kumova has manipulated the share price of stocks to the benefit of money launderers Imputation 11(e): Mr Kumova has manipulated the share price of Syrah Resources to the benefit of money launderers Imputation 11(f): Mr Kumova has manipulated the price of Syrah Resources to enable it to get into an ASX index Fifth Matter Imputation 13(a): Mr Kumova engaged in pump and dump schemes in the financial market Imputation 13(b): Mr Kumova engaged in an activity that is as disreputable as engaging in a drug syndicate Imputation 13(c): Mr Kumova has engaged in market manipulation Sixth Matter Imputation 15(a): Mr Kumova gave inside information to Assad Tannous

81 Given the belated but inevitable concession that the pleaded meanings were defamatory of Mr Kumova, it then becomes necessary to turn to Mr Davison's defences.

E THE DEFENCES GENERALLY 82 A different form of "pump and dump" took place in the conduct of Mr Davison's defence. 83 In his further amended defence, Mr Davison had pleaded the following defences to each of the six matters: (1) justification under s 25 of the Defamation Act 2005 (NSW) (Defamation Act); (2) statutory qualified privilege under s 30 of the Defamation Act and qualified privileged at common law; (3) honest opinion under s 31 of the Defamation Act and fair comment at common law; (4) qualified privilege at common law based on reply to attack; and (5) (remarkably) triviality under s 33 of the Defamation Act. 84 Mr Davison also asserted contextual truth under s 26 of the Defamation Act with respect to the Fifth Matter. 85 The bulk of Mr Davison's defences fell away. It should have been obvious from the start that a number of these defences were untenable on the facts. Mr Davison is not an outlier in not pursuing pleaded defences following mature reflection. It seems that in defamation, in stark contrast to most commercial litigation, there is an entrenched persistence in joining issue and raising positive defences when there is an infirm basis for doing so. 86 Defamation cases are now commonly run in the Federal Court. Part VB of the FCA Act does not contain empty rhetoric. There is a statutory duty on practitioners to assist their clients in facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37N(2) of the FCA Act. This means that in preparing pleadings, it is necessary for both the solicitor on the record and the barrister settling the pleading to ensure contentions not bona fide in dispute are not put in issue, and to make sure untenable defences are not pleaded. The apparently persistent notion that defamation practitioners can just roll the arm over and plead defences like they are in a time warp that has transported them back to the 1970s needs to be exploded. 87 In any event, to obtain clarity as to what remained, at the conclusion of the hearing, I ordered Mr Davison to prepare two tables: the first being the Imputations and Defences Table referred to above; and the second outlining several representations alleged to have been made by Mr Kumova and primarily relevant to the justification defence. 88 This exercise confirmed that the residuum of Mr Davison's defence asserts statutory justification with respect to the First, Second and Fifth Matters and (with respect to the Fifth Matter only) honest opinion pursuant to s 31 of the Defamation Act. 89 In his further amended reply, Mr Kumova alleges that Mr Davison did not honestly hold any of the opinions expressed in defeasance of the honest opinion defence as to the Fifth Matter. 90 Leaving aside questions of meaning, it is worthwhile reproducing the final metes and bounds of Mr Davison's defence in the Imputations and Defences Table: Matter Imputation Defence First Matter 5(a): Mr Kumova engaged in insider trading Undefended 5(b): Mr Kumova engaged in unlawful activity on the Australian [Securities] Exchange Justification: FAD (at [43(2)]) 5(c): Mr Kumova misled the Australian share market Justification: FAD (at [43(2)]) Second Matter 7(a): Mr Kumova engaged in insider trading Undefended 7(b): Mr Kumova acted illegally by buying and selling stocks in a number of companies that he is intimately connected with Justification: FAD (at [44(2), (4)]) Fifth Matter 13(a): Mr Kumova engaged in pump and dump schemes in the financial market Justification: FAD (at [46A]), relying on the facts pleaded at [43(2.1)-(2.5)] and [46A(1.1)-(1.2)]) 13(b): Mr Kumova engaged in an activity that is as disreputable as engaging in a drug syndicate Justification: FAD (at [46A(2)]), relying on the facts pleaded at [43(2.1)-(2.5)] and [46A(1.1)-(1.2)]) Honest opinion: FAD (at [61]) 13(c): Mr Kumova has engaged in market manipulation Justification: FAD (at [46A(1(3))]), relying on FAD (at [43(2.1)-(2.5)] and [46A(1.1)-(1.2)] Honest opinion: FAD (at [61])

F.1 General Principles 91 Section 25 of the Defamation Act provides as follows: 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 92 Mere restatement of the statutory language may seem trite, but it is important to re-emphasise that it is the defamatory imputations that must be proven to be substantially true. 93 The relevant principles informing consideration of the defence are very well known and do not require repetition. It suffices to mention four matters. 94 First, as I recently explained in Palmer v McGowan (No 5) [2022] FCA 893 (at [278]), "substantially true" is defined in s 4 as "true in substance or not materially different from the truth". It is not necessary to establish that every part of an imputation is literally true; it is sufficient if the "sting" or gravamen of an imputation is true: see Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 (at 179 [86] per McColl JA, with whom Beazley and Giles JJA agreed). 95 Secondly, a defamatory imputation must be construed within the context in which it is conveyed: Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 (at 172-173 [21]-[27] per Mason P, with whom Wood CJ at CL agreed). The construction of the imputation in context must, in turn, inform what is required to prove the substantial truth of the imputation. 96 Thirdly, a potential misconception seemed at times to lurk below the surface during aspects of Mr Davison's submissions, being the notion of a defence of so-called "partial justification". It is now beyond doubt that a defence of justification requires a respondent to prove that each of the defamatory imputations conveyed by the matter was substantially true at the time of the publication: Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119 (at [7]-[17] per Rares J, with whom Wigney and Lee JJ agreed). A defence justifying only part of a defamatory matter is no defence at all. In the context of this case, the necessary consequence is that given a justification defence is now not pressed in relation to all imputations conveyed by the First and Second Matters, it must fail. The Fifth Matter is different because justification is still pressed for all three imputations conveyed. 97 Fourthly, a connected question of importance in this case becomes: what is to be done with evidence of misconduct on the part of an applicant that does not suffice to make out a defence of justification? There was no dispute between the parties that such evidence may be considered on the question of damages, to the extent that it is directly relevant to the subject of the defamatory matters in the relevant "sector" of the applicant's reputation. 98 This use of this evidence on damages was referred to in this case, as it is so often, as being in "mitigation" of damages. Although this jargon is very well-entrenched (and adopted in the Defamation Act), it seems to me to obscure what is going on. Some common factors in "mitigation" of damages are identified in s 38 of the Defamation Act (for example, an apology or other compensation). But this is not an exclusive list of factors (see s 38(2)), and does not include the concept with which we are presently concerned. Usually, of course, in other areas of the law, the term "mitigation" is used in the phrase "a plaintiff's duty to mitigate" (albeit mistakenly, as there is no so-called duty, because claimants are completely free to act as they perceive to be in their best interests, but defendants are not liable for all loss suffered by claimants in consequence of so acting): Sotiros Shipping Inc and Aeco Maritime SA v Sameiet Solholt, The Solholt [1983] 1 Lloyd's Rep 605 (at 608 per Donaldson MR); Borealis AB v Geogas Trading SA [2011] 1 Lloyd's Rep 482; [2010] EWHC 2789 (Comm) (at [42]-[50] per Gross LJ). Such a factor might be best described as not being in "mitigation" of damage, but as simply a factor, among others, informing the Court's assessment. The concept can be viewed through the prism of causation of loss as the use of such evidence is relevant to, and impacts upon, the actual, causally-related harm suffered. 99 But leaving aside terminology, there was no dispute as to the correct approach, which was usefully explained by Wigney J in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564 (at 573 [32]-[33]): 32. In Warren v Random House Group Ltd [2009] QB 600; [2009] 2 All ER 245; [2008] EWCA Civ 834, the Court of Appeal of England and Wales explained the Burstein principle in the following terms (at [78]): The decision of this court in Burstein v Times Newspapers Ltd [2001] 1 WLR 579; [2000] All ER (D) 2384; [2000] EWCA Civ 338, cited above, established two important interlocking propositions. (a) In relation to the court's assessment of damages for libel it is open to a defendant to seek to rely upon such facts as fall within the "directly relevant background context" to the defamatory publication. See in particular the judgment of May LJ, at para 42. (b) It is illogical and undesirable that a defendant can seek to rely upon such facts in relation to such assessment only if he has presented them as part of a substantive defence to liability, in particular within a plea of justification of the publication. He can rely upon them as freestanding matters pleaded as relevant only to the assessment of damages: see in particular the judgment of May LJ, at para 47. 33. That rather simple statement of the propositions flowing from Burstein somewhat belies the uncertainty that has arisen concerning the application of those propositions. That uncertainty mainly revolves around the vague and unhelpful expression "directly relevant background context". Judges are often rightly sceptical when the tender of evidence is sought to be justified on the basis that it provides "background" or "context". Those words often conceal or obscure, rather than explain, whether or why the evidence is relevant. Careful attention to what was actually decided in Burstein, however, tends to remove some of the uncertainty. 100 The facts pleaded and proved in the light of Burstein v Times Newspapers Ltd [2001] 1 WLR 579; [2000] All ER (D) 2384 must, in Wigney J's terms (at 577 [45]): concern specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the claimant's reputation in the part of his or her life the subject of the defamatory publication … courts, including this Court, must proceed with caution in applying Burstein, should guard against "extending too creatively" the concept of "directly relevant background", and should subject the proposal to adduce facts under the Burstein principle to careful scrutiny. Mere resort to the label "directly relevant background context" will not suffice. (Emphasis added). 101 The underlying rationale is to prevent trials such as this one from becoming "roving inquiries" into an applicant's reputation, character or disposition: Burstein (at 596 [35] per May LJ); Speidel v Plato Films Ltd [1961] AC 1090 (at 1143-1144 per Lord Denning). 102 A further point should be made. Contravening conduct of Mr Kumova directly relevant to damages occurred well after the last matter sued upon. Despite Sugarman ACJ considering that defamation law is concerned with a person's "actual" or "current" reputation as at the date of defamatory publication (see Rochfort v John Fairfax & Sons Limited [1972] 1 NSWLR 16 (at 22)), as was explained by McColl JA in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232, like the continuing nature of damage to reputation that may occur after the defamation, any evidence of post-publication material going directly to reputation and otherwise admissible should be considered to ensure that the damages awarded in accordance with s 34 of the Defamation Act accurately reflect the applicant's reputation at the time the damages are awarded (although, as noted above, any so-called Burstein use must be approached with caution and must be carefully confined (at 283 [245] per McColl JA, with whom Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreed)).

F.2 The Problems with Mr Davison's Case 103 With the above principles in mind, some problematic aspects of Mr Davison's justification defence become apparent. 104 The defence to the First and Second Matters is primarily focussed on nine statements made by Mr Kumova in a series of tweets and interviews, all with respect to either Bellevue Gold or New Century. With respect to those entities, Mr Kumova is said to have: (a) engaged in misleading and deceptive conduct in contravention of s 1041H of the Corporations Act 2001 (Cth) (Corporations Act); and (b) made materially misleading statements and/or disseminated materially misleading information, in contravention of s 1041E of the Corporations Act. It is also said that Mr Kumova contravened s 671B of the Corporations Act by failing to disclose to the market changes in his shareholding in Bellevue Gold. 105 Mr Davison's defence to the Fifth Matter asserts that Mr Kumova engaged in a pump and dump scheme in respect of Bellevue Gold. There was some confusion as to the evidence relied upon in respect of the Fifth Matter. As I understand the final position, however, Mr Davison relies on a series of bullish statements made by Mr Kumova (including the nine statements relied upon with respect to the First and Second Matters), as well as changes in Mr Kumova's shareholding in Bellevue Gold. 106 In the end, the parties agree that evidence of specific conduct adduced in relation to the First and Second Matters (as opposed to my findings as to whether that conduct constituted contravention of a statutory norm) may be relevant to my assessment of damages. Notwithstanding this, Mr Davison submits that it is necessary for the Court to determine whether Mr Kumova contravened the statutory norms he invokes in pursuit of his defence. In his further submissions, he insists this is because an "essential element of the imputations sought to be justified is that the activity of [Mr Kumova] was unlawful", and "there is a difference between conduct that is unethical or contrary to accepted standards and conduct that contravenes a statutory prescription regulating conduct". 107 Although this last statement is undoubtedly correct, there is, with respect, an oversimplification in the submissions of Mr Davison on this topic. 108 For almost fifty years, the commercial life of this country has been regulated by a basic norm, now reflected in a bewildering array of statutory provisions, being that persons must not engage in conduct which is misleading or deceptive, or likely to mislead or deceive. The pervading influence of the provisions enacting this norm might be seen generally as a reflection of social attitudes that have heralded a retreat from legal formalism on several fronts and, in many ways, the existence of the norm reflects community expectations of acceptable commercial behaviour. But it is not as simple as that. There is a continuum of conduct that can contravene the norm: at one end, wicked, predatory, and highly immoral conduct; and at the other, guileless conduct, engaged in by someone trying to do their best, but which involved an innocent but factually mistaken representation. 109 Speaking broadly, it is generally the nature of the impugned conduct, not its legal characterisation that matters when it comes to judging a person's reputation among ordinary, right-thinking persons. 110 Although it is correct, so far as it goes, that an "essential element" of the carried imputations is the unlawfulness of Mr Kumova's conduct, it is unlawfulness of a certain type requiring moral blameworthiness that is relevant. The impugned matters primarily relate to wrongdoing involving a subjective intention to obtain a financial reward by saying something to the public about financial matters which is other than the objective truth. 111 Mr Davison pleads breaches of different norms with different elements. As I will explain, Mr Davison relies on conduct (which is said to be in contravention of ss 671B, 1041E and 1041H of the Corporations Act) as being relevant to damages. But any such relevance is primarily because of the conduct itself. The fact that some of this conduct may have involved contravention of a statutory norm without any subjective element is, by itself, somewhat beside the point. Similarly, although there is no bright line, when it comes to damages, to the extent the conduct involves a breach of a norm with a subjective element, what matters most (but not exclusively) is the reputational effect of that conduct, not its legal characterisation. 112 However, I have resolved to address the entirety of Mr Davison's case as to contravention of the statutory norms given: (1) the need to survey the underlying evidence of the conduct in my assessment as to damages and the fact that the legal characterisation of the conduct is not irrelevant; (2) the centrality of the nine impugned statements and pleaded representations to Mr Davison's submissions; and (3) their relevance to the meanings conveyed by the Fifth Matter, which Mr Davison seeks to justify. 113 As such, I will proceed by: (1) setting out the statutory norms invoked; (2) examining the evidence adduced and submissions made as to these statutory norms; and (3) considering Mr Davison's defence to the Fifth Matter.

Misleading and Deceptive Conduct 114 Section 1041H of the Corporations Act prohibits a person from engaging in conduct in relation to a financial product or financial service that is misleading or deceptive, or likely to mislead or deceive. A financial product includes securities: ss 761A and 764A(1)(a) of the Corporations Act. 115 The principles applicable to s 1041H are well known, but it is well to set out what I said in Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 (at [2109]-[2114]): 2109. A useful two-step analysis for misleading and deceptive conduct was provided by Gordon J in Australian Competition and Consumer Commission (ACCC) v Telstra Corporation Ltd [2007] FCA 1904; (2007) 244 ALR 470 (at 474 [14]-[15]): 14. A two-step analysis is required. First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677; 46 IPR 481; [2000] HCA 12 at [105] (Nike); National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369; 61 IPR 420; [2004] ATPR 42000; [2004] FCAFC 90 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed); Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106; [2006] FCAFC 22 at [37]. 15. Second, it is necessary to ask whether the representations conveyed are false, misleading or deceptive or likely to mislead or deceive. This is a "quintessential question of fact": Australian Competition and Consumer Commission v Telstra (2004) 208 ALR 459; [2004] FCA 987 at [49]. 2110. Whether conduct is misleading or deceptive, or is likely to mislead or deceive, is a question of fact, determined by reference to the relevant surrounding facts and circumstances, and by having regard to the conduct as a whole: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 (at 625 [109] per McHugh J); approved in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 (at 341-342 [102] per Gummow, Hayne, Heydon and Kiefel JJ). The test is objective and a court must determine that question for itself: Butcher (at 625 [109] per McHugh J); Campbell (at 341-342 [102] per Gummow, Hayne, Heydon and Kiefel JJ). 2111. As has been made clear in many cases, the central question is whether the impugned conduct, viewed as a whole, has a sufficient tendency or is apt to lead a person exposed to the conduct into error, that is, to form an erroneous assumption or conclusion about some fact or matter: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 (at 198 per Gibbs CJ); Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 (at 200 per Deane and Fitzgerald JJ). 2112. The making of a false or misleading representation is, obviously enough, conduct that may be misleading or deceptive: Campbell (at 341-342 [102] per Gummow, Hayne, Heydon and Kiefel JJ). It follows that even though a person may have lacked any intention to mislead or deceive, they may be found to have engaged in conduct that is misleading or deceptive, or likely to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 (at 228 per Stephen J, with whom Barwick CJ at 221 and Jacobs J at 232 agreed; at 234 per Murphy J). 2113. In this context, the word "likely" means a real and not remote chance that relevant persons will be misled or deceived: Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 (at 87 per Bowen CJ, Lockhart and Fitzgerald JJ). 2114. A statement that is literally true may nonetheless be misleading or deceptive: Hornsby (at 227 per Stephen J). Hence a document may be misleading, even if a full and perfect understanding of its contents would not create that effect: National Exchange Pty Ltd v Australian Securities and Investments Commission (ASIC) [2004] FCAFC 90; (2004) 49 ACSR 369 (at 378 [36] per Dowsett J). 116 Two points may be added by way of elaboration. 117 First, where the relevant conduct is directed to the public at large, rather than a specific individual, the Court is required to determine whether the "ordinary" or "reasonable" member of the class of individuals to whom the conduct was directed would be misled or deceived: see Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; (2013) 249 CLR 435 (at 443 [7] per French CJ, Crennan and Kiefel JJ); Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 (at 85 [102] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). 118 Secondly, Mr Davison invokes s 769C of the Corporations Act, which provides that for the purposes of Ch 7 of the Act, a representation is taken to be misleading if it is with respect to any future matter (including the doing of, or refusing to do, any act) and is made without reasonable grounds. Of course, a representation will only be with respect to a future matter if it is in the nature of a promise, forecast, prediction or other like statement about something that will only transpire in the future - that is, a representation which is not capable of being proven to be true or false when made: Australian Competition and Consumer Commission v Woolworths Group Ltd [2020] FCAFC 162; (2020) 281 FCR 108 (at 145-146 [132] per Foster, Wigney and Jackson JJ). 119 Unlike its analogue s 4 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)), s 769C does not deem the person making the representation not to have had reasonable grounds for making it unless that person adduces evidence to the contrary: see s 4(2) of the Australian Consumer Law. To the extent Mr Davison relies on allegations of contravening conduct as being relevant to his justification defence or as to damages, he is required to establish that the facts possessed by Mr Kumova did not provide reasonable grounds for the making of the representation: In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789; (2014) 101 ACSR 233 (at 262 [88] per Black J).

Materially Misleading Statements and Information 120 Section 1041E relevantly provides: 1041E False or misleading statements (1) A person must not (whether in this jurisdiction or elsewhere) make a statement, or disseminate information, if: (a) the statement or information is false in a material particular or is materially misleading; and (b) the statement or information is likely: … (ii) to induce persons in this jurisdiction to dispose of or acquire financial products; … and (c) when the person makes the statement, or disseminates the information: (i) the person does not care whether the statement or information is true or false; or (ii) the person knows, or ought reasonably to have known, that the statement or information is false in a material particular or is materially misleading. 121 The most important distinction between ss 1041E and 1041H is well known and can be critical: s 1041E requires deliberate, negligent, or reckless conduct, whereas s 1041H imposes liability without any requirement of fault. More specifically, leaving aside issues going to jurisdiction, the elements of a contravention of s 1041E are that: (1) a person makes a statement or disseminates information; (2) that is false in a material particular or is materially misleading; and (3) is likely to (a) induce persons to apply for financial products; or (b) induce persons to dispose of or acquire financial products; or (4) is likely to have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market; and (5) when making the statement or disseminating the information, the person (a) does not care whether the statement or information is true or false; or (b) knows or ought reasonably to have known that the statement or information is false in a material particular or is materially misleading. 122 It is not a section (like s 1041H) directed to conduct generally, but rather the making of a statement or the dissemination of specified information. Mr Davison's pleading, which proceeds on the basis that s 1041E is directed to conduct (being the making of representations said to be conveyed by statements), elides this distinction. 123 Three further elements of the statutory text merit elaboration. 124 First, a statement is "materially misleading" if its likely effect is to induce investors to purchase a company's securities: Australian Securities Commission v McLeod [2000] WASCA 101; (2000) 22 WAR 255 (at 265 [42] per Owen J). The Court is to ask whether inducement of the reader to act in an erroneous belief is a natural and probable result of a statement: McLeod (at 265 [42] per Owen J). This question is to be determined objectively. 125 Secondly, the word "likely" in s 1041E(1)(b) has the same meaning as in s 1041H, that is, a "real and not remote chance": James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332; (2010) 274 ALR 85 (at 128 [184] per Spigelman CJ, Beazley and Giles JJA). In James Hardie Industries, Spigelman CJ, Beazley and Giles JJA explained earlier authority where it was held that "likely" meant "more probably than not": see also McLeod (at 266 [47] per Owen J); Australian Securities Commission v Nomura International plc (1998) 89 FCR 301 (at 395-396 per Sackville J). However, their Honours invoked the comment of Baroness Hale of Richmond in Boyle v SCA Packaging Ltd [2009] ICR 1056; [2009] 4 All ER 1181 (at 1075 [68]) that "Parliament can always use the word "probable" if that is what it means". 126 The word "likely" is liable to change with the context in which it is used (Boughey v The Queen (1986) 161 CLR 10 (at 20 per Mason, Wilson and Deane JJ)), but, as pointed out by Edelman J in Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023; (2016) 336 ALR 209 (at 330 [634]), it has long been established that conduct is likely to mislead or deceive if there is a "real and not remote chance" it will mislead or deceive: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 (at 380-381 per Bowen CJ, with whom Evatt J agreed). This is consistent with the meaning given to the word in analogous legislative contexts: see Australian Competition and Consumer Commission v Pacific National Pty Ltd [2020] FCAFC 77; (2020) 277 FCR 49 (at 115-116 [242]-[244] per Middleton and O'Bryan JJ). 127 Thirdly, as to the knowledge criterion in s 1041E(1)(c)(i), whether a person ought reasonably to have known that a statement is false in a material particular or is materially misleading is an objective question: Equititrust Limited (In Liq) (Receiver Appointed) (Receivers and Managers Appointed) (Responsible Entity) v Equititrust Limited (In Liq) (Receiver Appointed) (Receivers and Managers Appointed); In the Matter of Equititrust Limited (In Liq) (Receiver Appointed) (Receivers and Managers Appointed) (No 5) [2018] FCA 11; (2018) 124 ACSR 115 (at 134-136 [88]-[103] per Foster J).

Information about Substantial Holdings 128 Finally, Mr Davison also alleges breaches by Mr Kumova of s 671B of the Corporations Act. 129 Section 671B requires that a person give information about substantial holdings to a listed company or the responsible entity for a listed registered scheme, and the relevant market operator, if: (1) … (a) the person begins to have, or ceases to have, a substantial holding in the company, scheme or fund; or (b) the person has a substantial holding in the company, scheme or fund and there is a movement of at least 1% in their holding; or (c) the person makes a takeover bid for securities of the company or scheme. …. (8) A person commits an offence if the person contravenes subsection (1). … (9) A person commits an offence of strict liability if the person contravenes subsection (1). 130 The underlying policy is that shareholders of a listed company are entitled to know whether substantial holdings of shares exist which might enable a single individual or group to control a company's destiny and, if so, who has such control: Australian Securities and Investments Commission, Relevant interests and substantial holding notices (Regulatory Guide 5, 27 August 2020) (at [5.287]).

F.4 The Impugned Statements and Alleged Representations 131 The Impugned Statements and Alleged Representations said to have been conveyed are as follows: Impugned Statement Alleged Representation First Statement: Mr Kumova gave an interview on "stockhead.com.au". In the course of the interview Mr Kumova said (among other things) the following in relation to Bellevue Gold: "It's incredibly high grade. I think it's 2.2 million ounces now, and don't quote me on this but I think it'll probably go north of five in due course". Information or material available to Mr Kumova provided a reasonable basis to assert that Bellevue Gold was likely to achieve drilling results showing a mineral resource or reserve of greater than five million ounces of gold. Second Statement: Mr Kumova did not intend to dump his Bellevue Gold stock for so long as its management team continued to deliver. Third Statement: Mr Kumova conducted a video interview with Youtube content provider "180 Markets". In the course of that interview Mr Kumova said (among other things) the following: Mr Kumova would not liquidate, but would rather hold his shareholding in Bellevue Gold for so long as he considered that management was hitting the necessary targets or "catalysts". "I sit and hold through the catalyst. The catalyst works and I stay for the next catalyst. And if that catalyst works then I stay for the next one. And which is how you hold shares or stocks from - you know Bellevue, for example from 3 cents to a buck ten and I'm still there. Every catalyst, they've told me they were going to hit they have. So there's no reason really to liquidate until they don't, until the company gets sold or they annoy me somehow, do something irrational, something unexpected that I'm not comfortable in a sense […] But typically I look for catalyst to catalyst." Fourth Statement: Information or material available to Mr Kumova provided a reasonable basis to assert that the share price of Bellevue Gold was going to appreciate to $1.88. Fifth Statement: Information or material available to Mr Kumova provided a reasonable basis to assert that the share price of Bellevue Gold was going to appreciate to at least $1.88. Sixth Statement: Information or material available to Mr Kumova provided a reasonable basis to assert that Bellevue Gold would increase its resource to at least 3.0 million ounces of gold at 11 grams per ton[ne]. Seventh Statement: Information or material available to Mr Kumova provided a reasonable basis to assert that shares in NCZ represented an excellent investment opportunity on the basis that NCZ had access to a mineral reserve of US$12 billion of metal. Eighth Statement: All agreements, permits and funding were in place so as to allow New Century to commence production at its Century Mine in Queensland. Ninth Statement: New Century was fully funded to commence production from its tenement.

132 Before proceeding, it is necessary to explain in more detail three difficulties in Mr Davison's pleading. 133 First, as noted above, Mr Davison elides the distinction between s 1041H, which turns on conduct (traditionally the conveying of a representation or an omission), and s 1041E, which turns on the statutory concepts of a statement or information. Specifically, he relies upon representations he has crafted with respect to both sections. This limits his case as to s 1041H to the pleaded representations, and makes his s 1041E case at best uncertain, in that it is not focussed on the statements themselves nor upon identified, pleaded "information". 134 Following discussion with counsel for both parties during oral closing, and further written submissions on the issue, I have determined to hold Mr Davison to his pleaded representations for the purposes of s 1041H, but to approach his s 1041E case with reference to the statements themselves, not the pleaded representations. Despite some protests by Mr Kumova, I am of the view that this does not occasion any unfairness. A large part of oral and written submissions proceeded on this basis and, as it happens, it makes no difference to the result nor to the relief to be granted. 135 Secondly, as to s 1041H, the form of Mr Davison's pleaded representations is often misdirected, given the nature and overall context of each Impugned Statement. For example, Mr Davison has pleaded five representations based on the notion that Mr Kumova was representing that he had reasonable grounds upon which to make a statement. There is a real artificiality about this approach to the characterisation of the statement and the tweets. These were not solemn announcements and cannot be divorced from the informal context in which they were made. A statement made in a prospectus, or in a company announcement to the ASX, or during a bilateral commercial negotiation, is very different from a statement posted on a social media platform or said during a discursive and relatively informal interview. As will be seen, the forensic choice to pitch the representations in this way has caused difficulties. 136 Thirdly, Mr Davison's pleading asserts that each of the alleged representations was "partly express and partly implied" and a "continuing representation". The former contention was not really raised in oral or written submissions, and it is sufficient that I direct my attention to the question as to whether the representation pleaded was conveyed. The assertion the representations were continuing was not developed, was not said to be relevant to the way the misleading and deceptive conduct case was ultimately put and need not be considered further.

F.4.1 Relevant Class 137 Both parties addressed the relevant class of persons to whom Mr Kumova's impugned tweets and interviews were directed somewhat generally. Given each tweet was published by the same means, and both interviews were published on comparable websites, this was sensible, and it is appropriate to adopt the same course. 138 The tweets and the interviews were accessible by the public at large. With respect to the tweets, Mr Davison submits that the size of the relevant class of persons was considerable, relying on the agreed operation of Twitter as a platform, and on statements as to Mr Kumova's public notoriety in publications in the Business Review Weekly and the Australian Financial Review. Aside from these factors, Mr Davison's submissions rely on assertions at a high level of generality, including that there would have been a significant number of Twitter users aware of his reputation as an astute stock picker and interested in having free access to his views. 139 Similarly, it is said that the interviews were widely received as Mr Kumova tweeted links to them: SAF (at [115]-[116]). By reference to Campomar Sociedad, Limitada v Nike (at 85 [102]-[103] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ), Mr Davison argues for a wide conception of the "ordinary or reasonable" member of the relevant class. He submits the Court should take "judicial notice" of the prominence of self-managed superannuation funds and the advent of online discount share brokers such as "Commsec" or "nabtrade", being developments that have empowered individuals to take direct control of their investments. It is said the audience is also "self-selected" to some degree, narrowed to a group of individuals with a lack of professional engagement in or sophisticated understanding of share markets. As such, Mr Davison arrives at a definition of the relevant class as: unsophisticated retail investors with no professional experience or relevant formal education in financial markets or share trading, and who were of varying intelligence and understanding (including inevitably some of less than average intelligence and background knowledge), and who were seeking to receive helpful, readily comprehensible and actionable information about stocks and share market investing. 140 But this is arbitrarily specific. The Court must approach this inquiry at a level of abstraction which accounts for the likely characteristics of the persons who comprise the relevant class to whom the conduct or representation is directed, and consider the likely effect of the conduct on hypothetical ordinary or reasonable members of the class, disregarding extreme or fanciful responses: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; (2020) 278 FCR 450 (at 458-459 [22] per Wigney, O'Bryan and Jackson JJ). The conception of the relevant class must account for the reality that the alleged representations were directed at persons with some interest in or knowledge of trading of this kind, balanced against the reality that Mr Kumova's content was liable to appear on the Twitter Home timeline or Explore page (available to persons who have never sought out Mr Kumova's profile or like profiles). Mr Kumova's audience ought to be identified by adopting a level of generality somewhat like that adopted in Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 (at 506 [36] per French CJ, Gummow, Hayne and Kiefel JJ), where the relevant class was said to comprise "investors (both present and possible future investors) and, perhaps, as some wider section of the commercial or business community". Persons of varying levels of sophistication who used social media and were generally interested in shares or mining, seems to me a workable definition of the relevant class.

F.4.2 First Statement 141 The First Statement was made during a podcast interview with Mr Barry Fitzgerald, a journalist at Stockhead, a news service which reports on ASX-listed companies, on or about 28 May 2020. The podcast was part of Stockhead's "Explorers Podcast" series. 142 The podcast begins with a disclaimer that its content "should not be considered financial or investment advice. All interviews and discussions are opinions only". The substantive discussion then begins with a gesture by Mr Fitzgerald for Mr Kumova to discuss "some of [his] bigger and better-known investment positions". After discussing New Century, Mr Fitzgerald pivots to Bellevue Gold: "I'm just wondering how you're feeling about Bellevue's story so far this year?" 143 The impugned statement comes shortly after: "It's incredibly high grade. I think it's 2.2 million ounces now, and don't quote me on this but I think it'll probably go north of five in due course".

Misleading or deceptive 144 Mr Davison says this amounted to a representation that "information or material available to Mr Kumova provided a reasonable basis to assert that Bellevue Gold was likely to achieve drilling results showing a mineral resource or reserve of greater than five million ounces of gold". Mr Davison submits that the disclaimer at the outset of the podcast "cannot overwhelm the clear and dominant message of the words spoken". There is a "wink and nod" in the words "don't quote me on this", leading listeners to read truth and reliability into Mr Kumova's words. Mr Kumova was sharing a secret into a future matter, amounting to a representation about Bellevue Gold's future "drilling and exploration", which was misleading and deceptive. 145 I reject Mr Davison's allegations of contravening conduct for the following reasons. 146 Fatally, a representation of the kind alleged was simply not made. In the context of the whole interview, Mr Kumova does not convey that information or material available to him provided a reasonable basis to assert that Bellevue Gold was likely to achieve drilling results showing a mineral resource or reserve of greater than five million ounces of gold. His words are best characterised as a statement of opinion in the nature of a prediction ("I think it'll probably…"), qualified by the disclaimer and express caution "don't quote me on this". 147 In any event, assuming it was made, I am not satisfied that it has been proven that the pleaded representation was misleading or deceptive within the meaning of s 1041H of the Corporations Act. At the time Mr Kumova participated in the podcast on 2 June 2020, the following facts existed and were known to Mr Kumova: (1) In May 2020, Bellevue Gold published results that it had produced 2,200,000 ounces of gold at 11.3 grams per tonne; (2) on 13 May 2020, Bellevue Gold published a presentation that compared Bellevue Gold's resources to other mines in Western Australia, including two that had produced 5,500,000 ounces of gold, and noted that Bellevue Gold's resources were open and had never been drilled beyond 500 metres: T325.14; and (3) Bellevue Gold's mining tenements were in an area surrounded by other more mature gold mines that had reserves well over 5,000,000 ounces. 148 In the light of these circumstances, viewed objectively, and on the whole of the evidence adduced, the pleaded representation has not been proven to be apt to lead recipients to form an erroneous assumption or conclusion about the potential for the resource to appreciate: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 (at 198 per Gibbs CJ). 149 For completeness, I will dispose of Mr Davison's contention that the pleaded representation is as to a "future matter" for the purposes of s 769C. The better view is that Mr Kumova was primarily expressing a view as to a present state of events that could be proved to be true or false when made. He was speaking about the existing characteristics of Bellevue Gold's resource: it "is incredibly high-grade", at "2.2 million ounces now" (emphasis added). 150 While the further statement of opinion that it has the capacity to "go north of five in due course" is more problematic, Mr Davison misunderstands the operation of s 769C when he says that Mr Kumova is required to demonstrate that he had a reasonable basis to make the representation, and that if he is unable to do so, the representation "is deemed to be misleading". It is Mr Davison who is required to establish that Mr Kumova did not have reasonable grounds for making the representation at the time it was made: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; (2015) 235 FCR 181 (at 268 [457] per White J). He has failed to do so. All Mr Davison says is that the figure "might as well have been plucked from thin air". But this is insufficient. On the evidence put forward by Mr Kumova, I am not reasonably satisfied that he did not have a reasonable basis to present his opinion given the qualifications provided.

Section 1041E 151 As to s 1041E, Mr Davison says that the statement was "inherently" likely to induce Mr Kumova's audience to purchase securities because it was made in the following circumstances: first, it was posted on Stockhead, a website that provides information about securities, investing and trading on the ASX; and secondly, Mr Kumova shared a link to the interview on his Twitter account, where he had recently posted a number of other tweets about Bellevue Gold. It is also said that Mr Kumova ought to have known that the First Statement was materially misleading; if he had "stopped to think to the extent he should have", "he would have realised that he had no rational or proper basis to make it". 152 It is worthwhile reiterating that each of ss 1041E and 1041H has a different focus. While the same facts may give rise to a contravention of both sections, establishing a contravention of s 1041E will generally require further facts than a contravention of s 1041H (most notably, proof of deliberate, negligent, or reckless conduct): ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 224 FCR 1 (at 312-313 [1594] per Jacobson, Gilmour and Gordon JJ). 153 As to s 1041E(1)(a), Mr Davison has not satisfied me that the First Statement was misleading for the reasons canvassed above as to s 1041H, and, even if it was, I am not satisfied that it was misleading in a "material" sense. The natural and probable result of hearing this statement would not be to induce listeners to act in the belief that the resource would "go north of five in due course". The figures provided are consistent with the evidence before the Court, made in the context of a relatively informal interview and caveated by the disclaimer and comment "don't quote me on this". 154 In a similar vein, Mr Davison draws a long bow when he asks the Court to assume that listeners were likely to invest based on Mr Kumova's comment merely because it was featured on Stockhead and published in the wake of other tweets concerning Bellevue Gold: s 1041E(1)(b). Mr Kumova posted about Bellevue Gold on 18 March 2020, 22 April 2020, 21 May 2020, and 27 May 2020. I am not satisfied that the frequency of these tweets would render persons any more likely to listen to the podcast, let alone act based on a statement made in it. There is an insufficient evidentiary or logical basis upon which to conclude, as Mr Davison submits, that "a substantial number of the listeners to the podcast were familiar" with Mr Kumova's tweets about Bellevue Gold when they listened to the podcast. 155 Finally, Mr Davison has not put forward any evidence to establish that Mr Kumova did not care whether the statement or information was true or false, or that he knew or ought reasonably to have known that the statement or information was false in a material particular or materially misleading: s 1041E(1)(c). The very expression "don't quote me on this", without any further evidence of Mr Kumova's knowledge or intent at the time, rather points away from this conclusion.

F.4.3 Second Statement 156 This is a tweet which provides a hyperlink to the Stockhead interview containing the First Statement. In the tweet, Mr Kumova states: "I do not dump stock. Typical hold time is 3-5 years", "I need management teams to deliver to make $".

Misleading or deceptive 157 Mr Davison's case is that the Second Statement includes a representation that "Mr Kumova did not intend to dump his Bellevue Gold stock for so long as its management team continued to deliver", and that this representation was misleading or deceptive pursuant to s 1041H. Mr Davison relies heavily on the evidence of Mr Kumova's trading activity in the SAF, in particular, his sell down of shares between May 2020 and June 2021: see SAF (at [102]-[153]). As at 11 May 2020, Mr Kumova held 42,329,805 shares in Bellevue Gold, but by 16 June 2021, he held only 17,614,894: see SAF (at [102], [153]). 158 These facts are said to demonstrate that Mr Kumova had "devised a strategy to sell down his shareholding in Bellevue Gold" in early 2020, and that at the time the Second Statement was posted, he "had embarked on this deliberate strategy". As such, Mr Davison contends that the Second Statement was likely to mislead, because it conveyed to Mr Kumova's audience that he intended to continue holding his shares when he was in fact dumping them. 159 I cannot accept this for five reasons. 160 First, the initial problem is the framing of the alleged representation. A representation of the specificity pleaded is not conveyed. Mr Kumova provides an explanation of his general trading intentions by reference to his past strategy. While the cashtags for New Century, Bellevue Gold and four other companies are featured in a row at the bottom of the tweet, read fairly, Mr Kumova does not purport to provide advice or information as to Bellevue Gold or his specific intentions as to Bellevue Gold. The Second Statement is framed as being "[f]or those interested in what I look for with my investments". 161 Secondly, evidence of Mr Kumova's conduct after 3 June 2020, the date of publication of the Second Statement, has no bearing on whether the statement was misleading and deceptive or likely to mislead or deceive, an inquiry directed to the facts extant at the time the alleged representation was made. 162 Thirdly, whether Mr Davison subjectively intended to sell down his shares at the point of posting the Second Statement is irrelevant to the objective characterisation task I am required to undertake. This dumping "strategy" is the high-water mark of Mr Davison's submissions as to the Second Statement. 163 Fourthly, in all the circumstances, the relevant class would perceive the Second Statement as no more than a general statement as to Mr Kumova's investment strategy over the past 15 years and an attempt to encourage readers to listen to the hyperlinked interview. It is a comment made in response to "some opinions" that his strategy involved dumping stock. 164 Fifthly, and finally, I should note that Mr Davison submits that the Second Statement is a representation as to a future matter, namely Mr Kumova's future intentions in relation to his shareholding in Bellevue Gold. This contention is unpersuasive. The only reference to Bellevue Gold is its cashtag, listed at the bottom of the tweet alongside five others. The pleaded connexion between Mr Kumova's generalised statement of strategy and Bellevue Gold is not established on the face of the Second Statement. On balance, the Second Statement is best characterised as a statement as to Mr Kumova's trading method generally, not a representation as to what he will do in the future with specific reference to Bellevue Gold.

Section 1041E 165 Mr Davison relies on the same evidence and reasoning with respect to s 1041E, but to no avail. It follows from the reasons canvassed above that the facts, matters, and circumstances pleaded in his further amended defence (at [43(2.2.3(i))]) are either not established, or do not make the statement or information in the tweet materially misleading, that is, Mr Kumova's audience would not, as a natural and probable result of the statement, be induced to act in an erroneous belief.

F.4.4 Third Statement 166 The Third Statement was made during an interview with Mr Greg Lowe for "180 Markets", a YouTube stock picking channel, on or about 17 July 2020. The interview commences with a discussion of Mr Kumova's upbringing, which segues into a line of questioning about how Mr Kumova began as an investor, and how he presently invests. 167 The passage upon which Mr Davison relies is as follows: I sit and hold through the catalyst. The catalyst works and I stay for the next catalyst. And if that catalyst works then I stay for the next one which is how you hold shares or stocks from, Bellevue for example from 3 cents to $1.10 and I'm still there. So and every catalyst, Steve told me - they've told me they're going to hit they have. So there's no need to liquidate until they don't, until the company gets sold or they annoy me somehow or do something irrational or something unexpected that I'm not comfortable with then it's a different story, but typically I look for catalyst to catalyst. 168 Mr Davison alleges that the passage conveys the representation that "Mr Kumova would not liquidate but would rather hold his shareholding in Bellevue Gold for so long as he considered that management was hitting the necessary targets or 'catalysts'".

Misleading or deceptive 169 The pleaded representation is said to be misleading because Mr Kumova was, at the time it was made, engaged in a "strategy" with the aim of liquidating his shareholding. The problems with this position are as follows. 170 First, I am unable to accept that the Third Statement carries a representation of the kind alleged. Mr Kumova is discussing his general investment strategy, using Bellevue Gold as, in his terms, an "example" - he was not stating a specific intention as to that stock. 171 Secondly, even if listeners had understood Mr Kumova to be speaking to a specific strategy with respect to Bellevue Gold, the pleaded representation would not be conveyed. Mr Kumova details a number of additional factors beyond management performance that might "typically" lead to a decision to sell, including but not limited to: the company being sold; the company "annoy[ing]" him; or it doing "something irrational or something unexpected that [he was] not comfortable with". The pleaded representation that Mr Kumova "would rather hold his shareholding in Bellevue Gold for so long as he considered that management was hitting the necessary targets or 'catalysts'" is unqualified and therefore inaccurate. 172 Thirdly, even if, contrary to my view, the representation was carried, Mr Davison has not established that it was misleading or deceptive. Most of the evidence relied upon was not directed to the objective circumstances in which the Third Statement was made. The Court did hear, however, that at the time of the interview, Mr Kumova had not substantially sold down his shares in Bellevue Gold. While Mr Kumova disposed of 2,050,000 shares between 10 June 2020 and 17 July 2020, he still held 37,982,401 on 17 July 2020: SAF (at [117]). Accordingly, Mr Kumova did not mislead his audience when he suggested that he was "still there" as an investor in Bellevue Gold, and that "typically", when a stock is performing well (as Bellevue Gold was), he sees "no need to liquidate". 173 For completeness, the Third Statement does not engage s 769C: it is a statement as to Mr Kumova's general strategy and a description of the circumstances in which he "typically" sells.

Section 1041E 174 As to s 1041E, Mr Davison submits that the Third Statement is materially misleading because it was inconsistent with his "systemic disposal of the majority of his shares" in Bellevue Gold, was not a trivial or inconsequential matter and was likely to induce listeners to purchase shares in Bellevue Gold. 175 I am unable to see how, objectively, the Third Statement is materially misleading pursuant to s 1041E(1)(a), or that there was a real and not remote possibility that it would encourage Mr Kumova's listeners to buy or sell shares in Bellevue Gold (s 1041E(1)(b)). Bellevue Gold is invoked by way of example of a general strategy, perhaps a boast, and as a statement as to the past reliability of what has been conveyed by management. 176 In any event, it cannot be said that Mr Kumova knew or ought reasonably to have known that the statement was materially misleading (s 1041E(1)(c)). Mr Davison relies on the fact that Mr Kumova disposed of his shareholding between May 2020 and June 2021, and that his intention over that period was to get an "average price over three years". But I am not satisfied that such intention had crystallised as at 3 June 2020, and even if it had, that it is inconsistent with a general statement that when stocks are performing well, Mr Kumova generally has "no reason to liquidate". As such, Mr Davison has not established that Mr Kumova possessed the requisite fault element to engage s 1041E(1)(c).

F.4.5 Fourth Statement 177 The Fourth Statement is a tweet published by Mr Kumova, which retweets a tweet by Twitter user "@easye_trades" (a stock picker by the name of Mr Emre Basar) and supplements it with commentary by Mr Kumova: "$BGL $1.88 target after a solid retest according to @easye_trades".

Misleading or deceptive 178 Mr Davison submits that the Fourth Statement conveyed a representation that "information or material available to Mr Kumova provided a reasonable basis to assert that the share price of [Bellevue Gold] was going to appreciate to $1.88". 179 At the core of Mr Davison's economical submissions on this topic is that the tweet conveys an enthusiastic and unqualified endorsement of Mr Basar's prediction. This may be accepted, but that is not the representation pleaded, which is that "information or material available to Mr Kumova" provided a reasonable basis to assert that the share price was going to appreciate. This is a broader focus than would have been the case if more specific representations had been pleaded, such as: (1) Mr Kumova believed that Mr Basar's charts or technical analysis provided a reasonable basis for a prediction that the share price of Bellevue Gold was likely to increase to $1.88; or (2) Mr Basar's charts or technical analysis were considered by Mr Kumova to be sound, or to provide a reasonable basis for any prediction about the appreciation of Bellevue Gold shares. 180 These cases were not run. Mr Davison had many opportunities to plead his case and it would be inappropriate of the Court to construct it for him. 181 In any event, it seems to me quite clear that members of the relevant class would understand Mr Kumova to be endorsing Mr Basar's predictions and methodologies and expressing his view the "target" was achievable because of the analysis undertaken. Put another way, the relevant class would consider that Mr Kumova was representing that his opinion was that the Bellevue Gold share price would likely appreciate consistently with the analysis and predictions of Mr Basar, an "[a]mazing technical analyst". 182 But I reject the notion Mr Kumova conveyed that Bellevue Gold stock was going to appreciate to $1.88. This is sufficient to reject the claim of contravening conduct as pleaded. 183 For completeness, although on balance the Fourth Statement can be characterised as a representation as to a future matter for the purposes of s 769C (as it is a forecast or prediction), if a lack of reasonable grounds for the pleaded representation was to be proved, it would have been necessary to establish, on the information then possessed by or available to Mr Kumova, that the opinion was an unreasonable one. The task of proving that proposition was not discharged. The only evidence put forward in support of this argument was that Mr Kumova conceded under cross-examination that he had no confidence in charting of this kind (T209.41; T213.9; T371.10; T378.31-37) and that he admitted he wanted to convey the "excitement" of a $1.88 price target to his followers (T387.24). But this is not determinative as to whether there was, at the time, no objectively reasonable basis available on the "information or material available to Mr Kumova" upon which to represent the share price "was going to appreciate to $1.88" (a fortiori to impugn his opinion it was likely to appreciate, which is what was actually conveyed). 184 The Court heard (although Mr Davison did not rely on this in his closing submissions) that the share price at and around the time of posting the Fourth Statement was lower than the projection, that Canaccord had put forward a lower projection of $1.55 and that the share price never did reach $1.88. Again, even leaving aside what other information was relied upon by Mr Kumova, none of this challenges the basis upon which Mr Basar arrived at the $1.88 figure. Needless to say, a representation as to a future matter will not be misleading or deceptive merely because the promise, prediction, or opinion does not eventuate (SPAR Licensing Pty Ltd v MIS Qld Pty Ltd [2014] FCAFC 50; (2014) 314 ALR 35 (at 40-41 [18]-[20] per Buchanan J)), or because other views may have been reasonably sustained at the time. 185 I should say, however, that it reflects poorly on Mr Kumova that he was endorsing or promoting Mr Basar's analysis when he had subjective concerns about analysis of this type. One can think of how misleading representations could have been pleaded relying upon this manifestly inconsistent conduct. 186 In the end, it does not matter very much. Although I consider this an example of Mr Kumova's cavalier approach to tweeting, his approach of playing somewhat fast and loose with predictions finds reflection in a finding of contravening conduct I make below (in Section F.4.8). Further, there would have been no real incremental diminution to my ultimate assessment of damages if Mr Davison had successfully pleaded and run the additional case in relation to the Fourth Statement that may have been available to him.

Section 1041E 187 Mr Davison also alleges in his further amended defence (at [43(2.2.7(h))]) that the posting of the Fourth Statement amounted to the dissemination of information or making of a statement which was materially misleading for the purposes of s 1041E(1). 188 He further contends that the question of whether the price of Bellevue Gold's shares was going to increase to $1.88 per share was not a trivial or inconsequential matter but rather was material to the evaluation of Bellevue Gold's shares and likely to induce persons to acquire shares in Bellevue Gold (s 1041E(1)(b)(ii)). So much may be accepted, but the statement or information disseminated by the tweet is that Mr Basar predicts that the Bellevue Gold share price will reach $1.88, that Mr Basar had picked the price well two days ago and that Mr Basar is an "amazing technical analyst". I know nothing of the underlying reasonableness of the analysis done by Mr Basar other than another analyst had a lower target price, post-statement events, and Mr Kumova's subjective view of the merits of the methodology used. The sort of evidence one would customarily adduce to undermine a prediction of this kind and demonstrate objective unreasonableness is simply not present in this case. 189 Further, even though I have been somewhat generous in allowing Mr Davison to run a broader case than he pleaded, I should again stress that the statement or information, properly construed, is not that Bellevue Gold will reach $1.88. If this was the case, no-one would sensibly publish any analyst reports on traded securities. All of Mr Davison's submissions are misdirected by this false premise.

F.4.6 Fifth Statement 190 As to the Fifth Statement, the alleged representation is that "information or material available to Mr Kumova provided a reasonable basis to assert that the share price of Bellevue Gold was going to appreciate to at least $1.88". 191 Given the similarities between the Fourth and Fifth Statements, the parties largely repeated the submissions made for the Fourth Statement with respect to the Fifth Statement. But I think what is being conveyed is different.

Misleading or deceptive 192 Unlike the Fourth Statement, the Fifth Statement includes Mr Kumova's emphatic opinion that the share price is going to appreciate in the future. Here, Mr Kumova buttresses Mr Basar's prediction with the statement that "a couple of guys", being Mr Steve Parsons and Mr Luke Gleeson of Bellevue Gold (T386.24-25), knew it was going "a hell of a lot higher": T404.20-24. In response to a question from the Court, Mr Kumova agreed that by saying the words, "They know it is going a hell of a lot higher," it might be thought he was saying that his opinion was that it was going to go a hell of a lot higher: T404.20-24. This suggestion is furthered by Mr Kumova's words, "[s]eems this project doesn't produce anything but visible #gold", and the use of the past tense, "[c]ouldn't have happened to a more passionate team" (emphasis added). 193 On balance, I am satisfied that the tweet conveys that information or material available to Mr Kumova provided a reasonable basis to assert that the share price of Bellevue Gold was going to appreciate to at least $1.88. That information included Mr Basar's prediction, and the endorsements of Mr Steve Parsons (the managing director of Bellevue Gold) and Mr Luke Gleeson (the Director of Investor Relations for Bellevue Gold). While I accept Mr Kumova's submission that the readers of the tweet understood they were on Twitter and knew its characteristics and limitations, and (less significantly) that Mr Kumova's Twitter account expressly disavowed providing any financial advice, the overall context and the terms of the tweet are such that I find a representation to the effect pleaded was conveyed. 194 The Fifth Statement is best seen as a statement that conveys something about what may (or may not) happen, not capable of being proven to be true or false when made. Therefore, it is best seen as a representation as to a future matter, which will be misleading or deceptive if made without "reasonable grounds" (s 769C). Of course, as explained above, for there to have been reasonable grounds, there must have existed facts sufficient to induce that state of mind in a reasonable person. Mr Kumova's subjective belief as to whether he had reasonable grounds is irrelevant: Cummings v Lewis (1993) 41 FCR 559 (at 565 per Sheppard and Neaves JJ); Australian Competition & Consumer Commission v Dateline Imports Pty Ltd [2015] FCAFC 114 (at [99] per Gilmour, McKerracher and Gleeson JJ). 195 As I have also explained, although it is obscured by his submissions, it is Mr Davison who bears the onus of establishing that Mr Kumova did not have a reasonable basis upon which to publish the Fifth Statement. Section 769C (unlike s 12BB of the Australian Securities and Investments Commission Act 2001 (Cth) or s 4 of the Australian Consumer Law) does not aid him in this endeavour by reversing the evidentiary burden of proof (which, contrary to his submissions, is a different thing from onus): SPAR Licensing v MIS Qld (at 55-57 [71]-[77] per Foster J). 196 But as would already be obvious from my analysis of the Fourth Statement, Mr Davison has not satisfied me that there were, at the time of posting the tweet, no facts sufficient to induce in the mind of a reasonable person a basis for making the representation: Australian Securities and Investments Commission v Forex Capital Trading Pty Limited, in the matter of Forex Capital Trading Pty Limited [2021] FCA 570 (at [64] per Middleton J). Although Mr Davison makes much of the fact that Mr Kumova did not have much subjective faith in the reliability of Mr Basar's prediction, this fact is not decisive. One must have regard to all the grounds available and relied upon as a whole, and objectively assess whether a want of reasonable grounds has been proven: ACCC v Dateline (at [99] per Gilmour, McKerracher and Gleeson JJ). Mr Davison must establish that the information Mr Kumova actually "had" or possessed (including information that is implicit or inferred from the circumstances), assessed objectively, did not provide a reasonable basis for making the representation. That task was never attempted in any detailed way by reference to any objective analysis of the relevant contemporaneous information possessed by Mr Kumova. Most starkly, I know nothing from the evidence as to the objective worth of the premises upon which Mr Basar's prediction was based. 197 Moreover, it is necessary to stress again that the Court's analysis must be ex ante and not ex post. This is another instance where Mr Davison sought to rely on the subsequent fact that the share price did not reach $1.88 to demonstrate a want of reasonable grounds. The price of Bellevue Gold shares had steadily risen in the days prior to the publication of the Fifth Statement. It may have been the case that a fundamental analysis of the stock by an expert directed to the time of the tweet, or the tender of contemporary publications by analysts covering the stock, or some other cogent material might impeach the reasonableness of the view held at the relevant time, but this task was not assayed.

Section 1041E 198 In the light of the above, it is unnecessary to say anything further in relation to s 1041E. However, I should note that contrary to Mr Kumova's submissions, I accept that a post of this type might be thought to give rise to a real and not remote chance that investors would purchase securities in Bellevue Gold. 199 Finally, in relation to this statement, I repeat the comments I made at [185]-[186].

F.4.7 Sixth Statement 200 The Sixth Statement is found in a tweet, which provides, "$BGL Not one of the multiple lodes discovered has been closed off in any direction to date". Mr Kumova then asks, "Will it be a…" followed by an interactive Twitter poll with three options: "3m oz deposit @11gt"; "5m oz deposit @11gt"; and "10m oz deposit @11gt". The tweet also retweets three tweets, one now deleted, one posted by Mr Kumova and one posted by "@tog244".

Misleading or deceptive 201 Mr Davison alleges that in publishing the Sixth Statement, Mr Kumova baselessly conveyed that "information or material available to him provided a reasonable basis to assert that Bellevue Gold would increase its resource to at least 3,000,000 ounces at 11 grams per ton[ne]", being the lowest amount referenced in the interactive poll. 202 In response, Mr Kumova disputes that this representation was conveyed (notwithstanding his oral concession that it was: T414.11-12) and provides two sources which he says establish its factual basis: a Bellevue Gold ASX announcement and a Canaccord analyst report, both dated 11 November 2020. 203 Once again, the vice in Mr Davison's case with respect to the Sixth Statement is the pleaded form of the alleged representation. The allegation is that Mr Kumova represented he had a reasonable basis upon which to assert that Bellevue Gold would increase its resource to at least 3,000,000 ounces of gold. However, when one has regard to the overall context, the better view is that the interactive poll suggests objectively that Mr Kumova believed, or it was his opinion, that Bellevue Gold could or was likely to increase its resource to the amounts indicated. Accordingly, the pleaded representation was not conveyed. 204 In any event, Mr Davison faces two further issues. The first is an insuperable evidentiary problem, in that the impugned tweet features a link to another tweet which has since been deleted. Mr Davison is unable to establish what Mr Kumova represented without presenting the whole of the tweet to the Court. Put simply, I am unable to come to an objective view as to what was conveyed, which requires consideration of all the circumstances, without one obvious aspect of those circumstances being before me. 205 Secondly, even if the pleaded representation was conveyed, I am not convinced that this statement of opinion would lead Mr Kumova's audience into error. It is true that Mr Kumova contrived the poll and its parameters, and that its context (in particular, the retweeted tweet beginning "Its [sic] actually unheard of") implies that Bellevue Gold would likely increase its resource considerably. But the seriousness with which a poll on Twitter would be considered must be accounted for. It cannot be said the representation was as to what would necessarily happen based upon reasonable grounds. 206 It should be said, however, that if it was thought the "at least" 3,000,000 ounce projection was made in definitive terms, based on the whole of the information objectively ascertainable at the time of the statement and in evidence, I am not satisfied it would have been without reasonable grounds. The Canaccord report available at the time of posting states that "with two new discoveries recently being made while essentially focusing on infill, we see our ~3Moz total Resource target in 2021 as increasingly conservative". Mr Kumova also had access to the latest Bellevue Gold ASX announcement dated 11 November 2020, which did not present the 3,000,000 ounce figure, but disclosed the following information suggesting further growth: (1) a total resource at 2,410,000 ounces at 10 grams per tonne; (2) exploration on six additional lodes; (3) all lodes were open along strike; and (4) Bellevue Gold was continuing an aggressive drilling programme and continuing to find new gold with drilling. 207 Although the pleaded representation was not made (and subject to the missing material), it appears this incident might be consistent with the boastful and cavalier approach of Mr Kumova to tweeting (which, as noted above, is a type of conduct reflected in the pleaded - and hence relevant - misleading conduct found below).

Section 1041E 208 It suffices to say that I cannot form a view as to s 1041E when part of the Sixth Statement is missing, and I cannot assess the alleged impugned conduct in all the circumstances. Hence, it is unnecessary to form a view as to the likelihood that the statement or information disseminated in the form of a poll on Twitter would materially mislead its audience and be likely to induce Mr Kumova's followers to buy shares (although I note Mr Kumova's peremptory dismissal of the notion that the 222 people who voted on the survey would never have been induced to buy based on what had been conveyed to be unconvincing).

F.4.8 Seventh Statement 209 Mr Davison submits that in posting the Seventh Statement to Twitter, Mr Kumova represented that "information or material available to him provided a reasonable basis to assert that shares in New Century represented an excellent investment opportunity, as New Century had access to a mineral reserve containing US$12,000,000,000 worth of metal".

Misleading or deceptive 210 In response, Mr Kumova submits that the Seventh Statement contains no representation that New Century is an "excellent investment opportunity" whatsoever. The "colourful language" and image of Mr Kumova at the Century Mine site are said to do no more than "inform readers about an institutional site visit". Mr Kumova's characterisation is inconsistent with the principles (upon which he heavily relies elsewhere in his submissions) concerning how social media posts are to be read. They are not to be "parsed" for their "theoretically or logically deducible meaning": Stocker v Stocker [2020] AC 593 (at 606 [43] per Lord Kerr JSC). The ordinary Twitter user does not scroll through their feed with an eye for the contrived nuance which Mr Kumova asserts. 211 While, once again, I have issues with the precise form of the pleaded representation, I am satisfied that a representation to the effect pleaded was carried. The Seventh Statement is unequivocal: "US$12B of metal sitting behind me there". This is exacerbated by the accompanying image of Mr Kumova standing on the mineral reserve in question. 212 The carried representation was not only foolish, but misleading and deceptive or likely to mislead or deceive in the circumstances in which it was made. There are two reasons for this. 213 First, it is apparent that the US$12,000,000,000 figure is patently incorrect, attributing to the reserve a value up to $4.8 billion higher than its actual value at the time: T174.15-20. Mr Kumova conceded this was a "mistake" (T178.29) and Mr Patrick Walta, managing director of New Century, gave evidence that (at T235.34-37): based on the tailings resource alone and the metal prices on that day, it totals approximately US$9 billion in value. Based on the total resource and the metal prices on that day, it totals approximately $10.7 billion in value … 214 While I accept that Mr Kumova was not aware of this error at the time the post was made, the Seventh Statement was apt to lead the ordinary and reasonable member of Mr Kumova's audience into error. It should be said that whether Mr Kumova intended to mislead or deceive his audience is of no moment. As I said in ASIC v GetSwift (at [2112]), even though a person may have lacked any intention to mislead or deceive, they may be found to have engaged in conduct that was misleading or deceptive, or likely to mislead or deceive: see also Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 (at 228 per Stephen J, 234 per Murphy J). 215 Secondly, and more discreditably, in making the alleged representation, Mr Kumova wrongly deployed in situ or in ground valuation data. This is evident from cl 51 of the Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves (2012 edition) (JORC Code), which, regarding the publication or reporting of in situ valuations, notes that such a course: breaches the principles of the Code (as set out in Clause 4) as the use of these terms is not transparent and lacks material information. It is also contrary to the intent of Clause 28 of the Code. Such in situ or in ground financial valuations must not be reported by companies in relation to Exploration Results, Mineral Resources or deposit size. The use of such financial valuations (usually quoted in dollars) has little or no relationship to economic viability, value or potential returns to investors. 216 Mr Kumova is an experienced man in mining and, at the very least, ought reasonably to have known the limitations of this type of data. He might have tweeted to boast, but it was a silly and unreasonable boast. In all the circumstances, an in situ "valuation" such as that provided in the Seventh Statement was apt to mislead. 217 Further, the Seventh Statement was also a representation as to a future matter made without reasonable grounds, and so may be deemed misleading and deceptive pursuant to s 769C(1). While "US$12B of metal sitting behind me there" may be seen to speak to the present value of New Century's mineral reserve (or, at least, what Mr Kumova thought the present value was), the assertion that it will be "one big cash register by the time we're done with it" is, on balance, best seen as a forecast.

Section 1041E 218 The Seventh Statement also presented false or materially misleading information for the purposes of s 1041E(1)(a). There was a real and not remote chance that the figure would lead Mr Kumova's audience into error, given the unequivocal terms of the tweet, the extent of the miscalculation and the objective tendency of in ground valuations to mislead: s 1041E(1)(b). 219 Finally, at the very least, Mr Kumova ought reasonably to have known that publishing an in ground valuation (a fortiori one which he had not bothered to check was correct) was false in a material particular or materially misleading for the purposes of s 1041E(1)(c)(ii). 220 The wrongful conduct pleaded has been made out in this regard.

F.4.9 Eighth Statement 221 The Eighth Statement is a tweet which tags the New Century cashtag, states that "All agreements, permits and funding in place. Bring on production" and provides a link to an ABC News article titled "Native title in focus for new wave of Century Mine".

Misleading or deceptive 222 In his closing submissions, Mr Davison conceded that his misleading and deceptive conduct case with respect to the Eighth Statement was "subtle". This is a generous description of this point as it was put. In essence, it was said that not all funding was in place, and that "the caveats and warnings that are essential for ASX announcements cannot be ignored by a director of the company posting material on social media in his 'personal capacity'". 223 The Eighth Statement conveys the pleaded representation in terms: that "all agreements, permits and funding were in place so as to allow New Century to commence production" at the Century Mine. Contrary to Mr Kumova's submissions, there is no material difference between Mr Kumova's words, "bring on production" and, Mr Davison's pleaded formulation "so as to allow [New Century] to commence production". 224 Mr Davison's submissions jar with how the ordinary reasonable member of Mr Kumova's audience would respond to the tweet. In all the circumstances, the Eighth Statement was not misleading and deceptive or likely to mislead or deceive. The statement and the context in which it was made resemble the circumstances in Forrest v ASIC, where the High Court held that a series of statements to the market, which accurately conveyed what parties had said in certain agreements, were not misleading or deceptive: (at 510 [50] per French CJ, Gummow, Hayne and Kiefel JJ). Here, the stakes are even lower: the Eighth Statement is a tweet from Mr Kumova's personal account, not a formal statement to the market. 225 In any event, at the time of posting, there was ample public material providing a reasonable basis for Mr Kumova to make the assertion he did. Both parties pointed to three ASX announcements, dated 11 October 2017, 6 November 2017 and 28 November 2017, each of which grounds Mr Kumova's representation that all agreements, permits and funding were in place: (1) the 11 October 2017 announcement provided that New Century had signed a "legally binding, conditional term sheet, for a US$45,000,000 (~A$58,000,000) debt facility with global resources fund Sprott Resource Lending" for the purposes of "fund[ing] the restart of the Century Zinc Mine"; (2) the 6 November 2017 announcement provided that New Century had completed a significantly oversubscribed $52,900,000 share placement and the proceeds were "expected to contribute to funding the restart of operations at the Century Zinc Mine via initial tailings reprocessing"; (3) crucially, the 28 November 2017 announcement expressly provided that "all necessary permits and approvals [were] in place to undertake the restart"; and (4) the 28 November 2017 announcement also provided that New Century's board had approved the immediate progression to the construction, refurbishment and re-commissioning phase, with the company to be fully funded to commence operations including working capital, through its current cash position ($50,700,000) and conditional debt facility ($58,000,000). 226 Furthermore, the linked article outlines that the "Gulf Communities Agreement" for native title with the traditional owners and the Queensland government would stay in place. While the reference to the Gulf Communities Agreement is, in the article, pitched more conditionally ("We won't be seeking to make any changes to that agreement"), it is true that the agreement remained in place at the time of the tweet, and Mr Davison has not suggested that there were not reasonable grounds upon which to suggest that the agreement would stay in place. 227 As such, at the time of posting the Eighth Statement, it was not misleading to say, as a matter of substance, the requisite agreements, permits and funding were in place to proceed with the Century Mine.

Section 1041E 228 It follows that the information conveyed in the Eighth Statement was also not false or materially misleading for the purposes of s 1041E.

F.4.10 Ninth Statement 229 The substance of the Eighth and Ninth Statements are very similar. The Ninth Statement was posted on Twitter on 21 May 2018, and relevantly provides, "$NCZ Fully funded and bringing on production in a couple of months". 230 The pleaded representation that "New Century was fully funded to commence production from its tenement" is conveyed. 231 However, for the reasons explained with respect to the Eighth Statement, Mr Davison's submissions are misdirected. New Century was, in effect, prepared to commence production in a couple of months as of 21 May 2018.

F.5 Alleged Contraventions of s 671B 232 Mr Davison made submissions as to three alleged contraventions of s 671B by Mr Kumova which, it is said, establish that Imputations 5(b) and 5(c) (First Matter) and 7(b) (Second Matter) are substantially true. These arguments go well beyond Mr Davison's pleaded case, and, unlike the Impugned Statements and Alleged Representations, have no bearing on the Fifth Matter. 233 As such, there is no benefit in canvassing them at this point. They can only be relevant to my assessment of damages, and I will deal with them below.

F.6 The Fifth Matter 234 As to the Fifth Matter, Mr Davison contends that the following imputations are substantially true: (1) Imputation 13(a): Mr Kumova engaged in pump and dump schemes in the financial market; (2) Imputation 13(b): Mr Kumova engaged in an activity that is as disreputable as engaging in a drug syndicate; and (3) Imputation 13(c): Mr Kumova has engaged in market manipulation.

F.6.1 Mr Davison's Submissions 235 Oral and written submissions proceeded on the basis that Mr Davison's answers to the three imputations may be thought of collectively as, in Mr Davison's terms, his "truth case of pumping and dumping". Mr Davison's submissions are wide-ranging and travel well beyond his pleaded case. In essence, four points are made. 236 First, it is said that a pump and dump scheme involves the purchase of stock at a low price, before that price is inflated by "positive and potentially dubious" or "often misleading" statements. "Pumping" is given a broad definition, extending beyond the dissemination of false or exaggerated information "to just creating excitement": T150.6-151.40. Mr Davison relies on an excerpt from the ASIC Media Release that provides that "pumpers" "us[e] social media and online forums to create a sense of excitement in a stock or to spread false news about the company's prospects". On this basis, senior counsel for Mr Davison contended that positive or bullish comments may amount to pumping: T150.6-151.40. 237 Secondly, it is said that, consistently with the decision of the High Court in Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135, it is not necessary for Mr Davison to prove any actual effect on the market price for shares to establish the existence of a pump and dump scheme. 238 Thirdly, Mr Davison says that in any event, the evidence before the Court establishes the existence of a pump and dump scheme. 239 Fourthly, Mr Davison submits that despite having numerous opportunities to do so, Mr Kumova failed to disclose to his audience the "simple fact" that he was systemically selling down his shareholding. To this end, it is said that while Mr Kumova was not under any statutory disclosure obligation in respect of his Bellevue Gold shareholding, the course taken was "sharp and unethical".

F.6.2 The Evidence 240 Mr Davison relies upon a series of tweets concerning Bellevue Gold and using its cashtag, which were "uniformly positive and enthusiastic in tone", and "calculated to be seductive to his readers". For example: (1) "The gift that keeps giving"; (2) "@SteveParsons345 and the team have discovered the best gold discovery in Australian in decades in my opinion"; (3) "Seriously curious to see how big this deposit is going to be"; (4) "$BGL … I am actually speechless"; (5) "$BGL incredibly rare to find a deposit like this and yes visible gold #gold please"; (6) "$BGL is incredibly special and feels like the story is just starting to unfold"; and (7) "$BGL surprise after surprise. I always asked for visible #gold clearly going to keep surprising investors including me. Amazing intercepts. Well done @SteveParsons @43Gleeso". 241 He also invokes the Impugned Statements analysed in Section F.4 above, as well as five further statements, initially pleaded as representations amounting to misleading and deceptive conduct or materially misleading statements (Pump and Dump Statements). By closing submissions, neither party specifically addressed these statements. It is, however, important to set them out, given they ostensibly form part of Mr Davison's defence as finally put: First "Pump and dump" Statement Second "Pump and dump" Statement Third "Pump and dump" Statement Fourth "Pump and dump" Statement Fifth "Pump and dump" Statement On or about 19 February 2021, Mr Kumova conducted an interview with stock promotion website "resourcesrisingstars.com.au" in which Mr Kumova (as pleaded): (a) represented that he was in the market bidding for Bellevue Gold stock; (b) said that Bellevue Gold was "a prime candidate for a takeover bid"; and (c) said that Bellevue Gold was "worth a lot more to someone else than the market is giving it credit for".

242 Further, Mr Davison contends that Mr Kumova systemically disposed of his shareholding in Bellevue Gold during the relevant period. To this end, he relies heavily on the SAF (at [102]-[153]), in particular, the agreed facts that: (1) Mr Kumova's shareholding dropped from 42,329,805 shares on 11 May 2020 to 1,761,894 shares by 16 June 2021; and (2) by the time of the hearing, Mr Kumova had completely sold out of his position in Bellevue Gold.

Imputation 13(a): Mr Kumova engaged in pump and dump schemes in the financial market 243 In the particulars subjoined to [46A] of his further amended defence, Mr Davison adopts a definition of what amounts to a "pump and dump scheme". This definition is taken from an affidavit sworn by Mr Kumova on 21 December 2020 (at [9]) and provides as follows: Ramping and pumping stocks are very negative concepts in my industry. To me, both ramping and pumping mean that a person is engaging in market manipulation to increase a share price, including on the basis of spreading untrue information about a company and what is happening to the company's share price or business. Both ramping and pumping generally correlate with action to increase a share price and enable profit to be made from the sale of shares when they are sold or "dumped". As such, the phrase "pump and dump" is often used to describe this practice. My understanding is consistent with the two article extracts set out in paragraphs 110 and 113 of Mr Davison's affidavit, which state: (a) "it was a classic "pump and dump", where stock is purchased at a low price before the release of positive and often misleading company announcements" (at paragraph 110); (b) "… accused of running a "pump and dump" scheme, where a stock is bought at a low price before being inflated by positive and potentially dubious statements …" (at paragraph 113). 244 It is then said "further or in the alternative" (whatever that means in this context) that the concept adopted by Mr Davison as constituting a pump and dump scheme is the same as that: used by the Australian Securities & Investments Commission Media Release 21-256MR dated 23 September 2021 (that is, 'pump and dump' activity occurs when a person buys shares in a company and starts an organised program to seek to increase (or 'pump') the share price by using social media and online forums to creat [sic] a sense of excitement in a stock or spread false news about the company's prospects, in order to then sell their shares and take a profit, and with other shareholders suffering as the share price falls). 245 Whatever else may be unclear, the case is pleaded on the basis that someone is engaged in a pump and dump scheme where they have a strategy to: (1) build up or inflate the price of stock; and (2) take advantage of that manipulation by selling the stock while it was impounded by share inflation. 246 Mr Davison is specific that all definitions have a common essential element: pumping involves the publication or dissemination of information about shares or securities that is false, misleading or exaggerated for the purpose of increasing demand for a security and thereby producing share inflation (which would either artificially maintain or increase the stock price). 247 This is consistent with the notion that there must first be pumping "events in the form of momentum ignition and organised campaigns on social media": Australian Securities and Investments Commission, Pump and dump of micro-cap securities (Report 732, July 2022) (at 3) (ASIC Report 732). As ASIC notes (at 3), such a campaign entails: blatant attempts to pump share prices, using posts on social media to announce a target stock, a designated time to buy and a target price or percentage gain to be reached before dumping the shares. In some cases, posts on social media forums may mislead subscribers by suggesting the activity is legal. 248 Secondly, the "pumper" must then propose to dump their shares and take a profit: ASIC Media Release. This causes other shareholders to suffer as the share price falls. 249 It was only at trial that Mr Davison sought to fasten upon a somewhat different case. He now submits that it is not a necessary element of a pump a dump scheme that activity has an effect on the market price for shares. It is then said, however, that the objective is to produce or retain purchasers for the shares at the highest price possible (which does seem to carry with it some notion of an artificial market). 250 It is understandable why Mr Davison engaged in a case shift. He led no evidence as to any market effect of any event occasioned by Mr Kumova and was forced to accept in his final submissions that (for reasons discussed below) the share price of Bellevue Gold itself might not have been readily susceptible to manipulation. 251 I am not convinced it is fair to allow Mr Davison to change his case in this way. Defences of truth need to be pleaded with precision and proven in accordance with one's particularised case, a fortiori when illegal conduct is being alleged. Here, no attempt was made by Mr Davison to prove or plead the elements of the pump and dump scheme he says existed. The case seeking to prove the substantial truth of Imputation 13(a) should fail on this ground alone. 252 But having said this, I accept it is possible that a person may fasten upon a strategy to engage in a pump and dump scheme (as that concept might be understood by an ordinary reader) and yet carry out the scheme so maladroitly that there is no effective pump or dump. Accordingly, against the prospect I am in error in holding Mr Davison to his pleaded case, I will deal with the revised and broader case advanced in his submissions. 253 Even on this broader case, the want of evidence as to any price effect caused by Mr Kumova cannot be ignored. The absence of any attempt to prove any discernible share inflation occasioned by the alleged pumping conduct (making a subsequent dump a rational step) is a less than promising start to proving the existence of such a scheme. Put another way, a finding that a pumping scheme existed is made easier if one proves a spike in price related to the conduct of a pumper (or the co-ordinated conduct of pumpers), and then the sale of the relevant shares while the stock is impounded by share inflation. 254 The approach to proving the existence of share inflation occasioned by an event such as a tweet is not novel. Whether an identified event or series of closely connected events had a price inflationary effect is usually proven using a statistical tool involving linear regression analysis known as an event study. In the case of a mining stock, fundamental value and share price are usually closely connected to variations in the market value of the relevant commodity. To the extent there was any evidence, the SAF usefully sets out (at [101]-[161]) a narrative of relevant events, including a series of public statements by Mr Kumova (including the Impugned Statements and the "Pump and dump" Statements), ASX announcements and other company updates, and the acquisition and disposal of shares by Mr Kumova. Two graphs were also tendered summarising Mr Kumova's trades in Bellevue Gold shares, his tweets and the share price compared with the VanEck Gold Miners Exchange Traded Fund price between 2019 and 2021 and the gold spot price ($AUD/troy ounce) between 2019 and 2021. Those graphs are reproduced in Annexure A and Annexure B to these reasons. In short, it is evident that the price of Bellevue Gold shares essentially tracked the gold price and company announcements. 255 It is unnecessary for the purposes of this judgment to determine whether Bellevue Gold was trading on a "semi-strong" efficient capital market and that Bellevue Gold shares were themselves trading efficiently (such that the share price would reflect all publicly available information and respond quickly to new information). I have not been assisted by any evidence as to whether Bellevue Gold shares traded efficiently; nor has evidence been adduced to prove any price effect of the alleged pumping conduct. Why this matters on Mr Davison's broader case is that I cannot be satisfied on the evidence adduced that the so-called pumping conduct has been proven to have had any real effect on the share price such as to make dumping an economically rational step to take. 256 But this is not fatal on the broader case. As I have said, Mr Kumova might have had an insufficiently wide audience to disseminate information efficiently and introduce share inflation, or there may have been something about the market, or some confounding information, that make it difficult to show any relevant share inflation. One must look at what Mr Kumova was trying to do. If his proven intention was to conduct a scheme, even a misconceived scheme, that is enough. 257 Mr Kumova's Twitter activity demonstrates bullish comments, which could be consistent with pumping behaviour: so much is clear from their terms. But there are several problems in establishing the substantial truth of the imputation that Mr Kumova was engaged in a pump and dump scheme in the financial market. 258 First, as noted above, if there was such a scheme, the evidence does not make it an obvious one, such as to demonstrate a connexion between alleged pumping activity and share inflation. 259 Secondly, and connected to the last point, at least so far as the evidence adduced is concerned, it does not appear Bellevue Gold securities were particularly susceptible to a pump and dump scheme. ASIC Report 732 refers to promoters who encourage their followers "to engage in coordinated purchases and sales of low liquidity securities susceptible to market impact". It repeatedly refers to "micro-cap securities", which it defines as "securities with market capitalisations below A$61 million" (at p 10). Of course, at no point in the relevant period did Bellevue Gold fall within this definition. Mr Kumova gave unchallenged evidence, corroborated by Canaccord analyst reports, that there was significant liquidity in Bellevue Gold shares across the relevant period, with an average of $3-4.5 million worth traded per day. The largest shareholders in the relevant period were a leading global investment fund, a leading global gold fund and the largest gold exchange trade fund in the world. Mr Davison's allegation a scheme existed must be assessed in the light of the contextual fact that Bellevue Gold was a much more difficult stock to pump than a thinly-traded micro-cap with no institutional support. 260 Thirdly, to the extent there was a pump, there was no connected dump. While there is no denying that Mr Kumova's sell down across the period was significant, and while some patterns are discernible (for example, it appears Mr Kumova generally sought to maintain an average price), there is no established connexion between Mr Kumova's conduct on Twitter and in the media and his selling shares. In any event, the SAF identifies that he began selling shares before the period identified in the further amended defence (being May 2020 to June 2021), and well after that period, not selling out completely until about a month before the trial. Indeed, Mr Kumova's selling activity was not proven to be anything other than generally consistent with his trading strategy adopted in relation to similar mining stocks (in which he had a substantial interest). Further, as one would expect with any sophisticated trader, Mr Kumova's disposition of shares was not linear and in February 2021, when there was a correction in the share price, Mr Kumova bought 500,000 shares. He also gave evidence, which I accept, that he did not sell out in one transaction because he was hoping to be part of any takeover of Bellevue Gold that he anticipated would occur: T363.46, T365.22. At the very least, this trading evidence does not sit happily with the existence of a pump and dump scheme as alleged. 261 Fourthly, and most importantly, as noted above, while Mr Davison is not required to establish that every part of an imputation is literally true, he must prove the "sting" or gravamen of an imputation is substantially true. The sting was that Mr Kumova was involved in a scheme, that is, a premeditated, coordinated plan of action (the pump and dump) to achieve an illicit end. That is inherent in the nature of a scheme. Although Mr Davison has proven that Mr Kumova was tweeting about Bellevue Gold in a manner that was apt to cause excitement as to the company's prospects and was directed to making readers feel that Mr Kumova was clever or skilled in having backed the stock, such proof is insufficient. 262 Mr Davison has the onus of establishing the substantial truth of illegal conduct. It is trite that to the extent that allegations of illegality, unlawfulness and dishonesty are involved, such allegations cannot be justified by inexact proofs, indefinite testimony, or indirect inferences: s 140(2) of the Evidence Act; Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361-362 per Dixon J). The focus on the gravity of the finding is linked to the notion that the Court takes into account the inherent unlikelihood of alleged misconduct, and common law principles concerning weighing evidence: see Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 (at 576 [137]-[138] per Branson J). Hence, bearing in mind the seriousness of the allegation, Mr Davison will not succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). 263 A logical start to proving the substantial truth of the imputation would have been to focus on the scheme or "syndicate" referred to in the Fifth Matter. But no attempt was made to prove the involvement of the various persons named in the alleged plan of action, or to tender any material relevant to the existence of a collaboration. 264 Faced with a lack of evidence as to a syndicate, the cross-examination of Mr Kumova at times seemed simply to equate positive comments (even misleading statements such as that contained in the Seventh Statement) as equivalent to pumping and dumping: see, for example, T150.6-151.40. But Mr Davison's cases requires me to reject Mr Kumova's repeated denials that there was any such syndicate and, more particularly, his denials he had a dishonest and illegal plan to inflate shares through market manipulation, and that he dumped stocks to take advantage of his pumping activity. 265 Mr Kumova submits that he had "every reason to be proud" as Bellevue Gold "kept announcing positive drilling results and the share price increased" and that he was "boasting about his continued success and ability to pick shares early on". It is also said Mr Kumova "used Twitter to talk about and cheer on the companies he invested in as though they were a sporting team". These submissions are based on the evidence that Mr Kumova used Twitter essentially to convey his own sense of excitement. Although Mr Kumova's general approach to tweeting positively (and, on occasion, inaccurately) about companies in which he had an interest might have rationally aroused suspicion as to his motives, on balance, I accept Mr Kumova's primary motivation was to convey his excitement. Put in less attractive (and perhaps more accurate) terms, Mr Kumova's Twitter activity was, at least in large part, an exercise in swaggering braggadocio directed to telling the world about his skills, his wealth and his perceived success. Behaviour of this kind is not unique in the world of social media. 266 Accordingly, I do not accept that Mr Davison has established the substantial truth of Imputation 13(a).

Imputation 13(b): Mr Kumova engaged in an activity that is as disreputable as engaging in a drug syndicate 267 This imputation is baseless. No "syndicate" has been pleaded or proved, not least one "as disreputable as a drug syndicate". The fact that Mr Kumova tagged other persons in a number of the impugned tweets does not establish that he was acting or publishing the matters in concert with them as part of an elaborate, premeditated scheme.

Imputation 13(c): Mr Kumova has engaged in market manipulation 268 For the reasons already given, there is insufficient evidence to prove the substantial truth of Imputation 13(c). 269 The justification defence to the Fifth Matter fails.

G HONEST OPINION 270 As noted above, in relation to the Fifth Matter only, Mr Davison asserts a defence of honest opinion pursuant to s 31 of the Defamation Act. 271 There was no dispute that, in line with the elements of the statutory text and the broader common law principles underlying the defence (as recently articulated in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 (at 150-158 [119]-[163]) and Dutton v Bazzi [2021] FCA 1474 (at [66]-[74], [84]-[101], [103]-[156] per White J)), Mr Davison must establish the following: (1) the matter would have been understood by the ordinary reasonable reader to be an expression of Mr Davison's opinion: s 31(1)(a); (2) Mr Davison's opinion related to a matter of public interest: s 31(1)(b); and (3) Mr Davison's opinion was based on proper material (s 31(1)(c)), that is: (a) his opinion was based on facts stated or sufficiently referred to in the relevant matter; (b) all such facts were substantially true at the time of publication; and (c) there was a sufficient rational connexion between such facts proved to be true and his opinion. 272 In contrast to the defence of justification in s 25 of the Defamation Act, honest opinion requires that it is the relevant matter that was an expression of opinion, not the imputation or imputations conveyed: Stead (at 152 [130]). The Court's analysis is nonetheless to be undertaken with reference to the defamatory imputations found to have been conveyed: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 (at 287-289 [83] per Gummow, Hayne and Heydon JJ); Stead (at 152 [130]). It is not, however, constrained or dictated by their terms so as to transform the inquiry into a consideration as to how each imputation would be understood: Stead (at 152 [131]). 273 I will address each element of the defence in turn.

G.1 An Expression of Opinion 274 "Opinion" is not defined in the Defamation Act. As such, the task is one of characterisation in the light of the authorities and with fidelity to long-standing common law principle: Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004 (at [82] per Bromwich J); Manock (at 264 [36] per Gummow, Hayne and Heydon JJ). 275 Three principles drive this pursuit. First, as noted above, the Court is to assume the perspective of the ordinary reasonable person. Secondly, from that vantage point, the Court asks whether the matter constitutes a comment or a statement of fact. More often than not, there is no bright-line between the two categories: John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789 (at 67,455 [25] per Giles JA). However, it is often the case that a fact is stated and an opinion "overtly follows": Molan v Dailymail.com (at [84] per Bromwich J). Thirdly, by way of further elaboration, an opinion is conceived of as something which can reasonably be characterised as a conclusion, judgment or observation: see John Fairfax Publications v O'Shane (at 67,455 [25] per Giles JA). 276 Mr Davison contends that the Fifth Matter may be characterised as an expression of judgment of Mr Kumova, and that the ordinary reasonable reader would understand Mr Davison to be expressing an opinion that pumping and dumping is "as disreputable as engaging in a drug syndicate" or "selling drugs to an addicted customer base". It is said that the comparison between the business aims and practices of a drug dealer and a stock "pumper" is demonstrative of an "evaluative process" having been undertaken by Mr Davison. At its highest, the contention is that Mr Davison weighed facts and formed an opinion in relation to those facts. 277 Mr Davison's assertions have insufficient grounding in the Fifth Matter itself, and must be rejected. 278 The Fifth Matter is emphatic. A cautionary message builds from start to finish: the first line implores readers to be vigilant in the face of an objective risk: "Lock up your daughters & your Money!"; the centre of the tweet asserts, "Always knew that guy was a pumper"; and the tweet closes with a final instructive appeal: "Remember, A pump group is no different than a drug syndicate". The ordinary reasonable reader would understand the Fifth Matter to present a series of facts. 279 This conclusion is reified when one views the Fifth Matter through the "prism" of the defamatory meanings conveyed, two of which impute that Mr Kumova engaged in pump and dump schemes (Imputation 13(a)) and that he has engaged in market manipulation (Imputation 13(c)). Even the imputation that Mr Kumova "engaged in an activity that is as disreputable as engaging in a drug syndicate" (Imputation 13(b)) does not assist Mr Davison's defence. While this may be construed as an evaluative assessment of Mr Kumova's conduct when read in isolation, when viewed in the context of the matter as a whole, what is being conveyed is the fact that Mr Kumova did engage in activity of a certain kind. 280 Accordingly, the defence of honest opinion is unavailable to Mr Davison. For completeness, however, I will proceed to address Mr Davison's case with respect to the final two elements of the defence.

G.2 Public Interest 281 "Public interest" is, like "opinion", left undefined by the Act. My reasons in Stead set out the parameters of the concept in some detail (see, in particular, at 154 [141]). For present purposes, it suffices to say that the concept defies comprehensive definition, and so requires the Court to undertake an open-textured, evaluative assessment. What can be said is that the concept of the public interest should not be confined within narrow limits, and that anything which affects people at large (so that they may be legitimately interested in, or concerned at, what is going on) can be a matter of public interest. 282 Mr Davison asserts that the "proper and efficient operation of the Australian share market" is a matter of public interest. Although Mr Kumova is not described in the Fifth Matter as a shareholder, investor or director of any relevant company, I think that would be sufficiently understood. Contrary to the submissions of Mr Kumova, I am prepared to accept that if the matter was a statement of opinion, the opinion did relate to matter of public interest.

G.3 Proper Material 283 The final aspect of the defence in s 31 requires that the opinion be "based on proper material". 284 Applying the iteration of the Defamation Act in force at the time the matters were published (prior to the coming into force of the Defamation Amendment Act 2020 (NSW)), an opinion is based on proper material if it is based on material that is "substantially true": s 31(5)(a) 285 An opinion need only be "reasonably based" on proper material to satisfy the statutory test (see Stead at 151 [125], Dutton v Bazzi at [139]-[156] per White J); there must be some rational connexion, which need not extend to all material upon which a matter is based, and which need not be held by the ordinary reasonable reader. 286 This aspect is not established because Mr Davison has not attempted to prove the factual matters necessary to underpin any so-called "opinion". There is also no rational connexion between the quote-tweets from Mr Basar and Mr Kumova and the serious allegations made in the Fifth Matter. Nothing that Mr Davison is seeking to prove true in these proceedings provides any substantially true basis for the "opinion" expressed.

G.4 Defeasance 287 In his further amended reply, Mr Kumova alleges that Mr Davison did not honestly hold any opinions expressed in defeasance of the honest opinion defence for the Fifth Matter. Mr Davison did not address this contention in written or oral submissions. In the light of my conclusions as to the unavailability of honest opinion, there is no point addressing defeasance.

H.1.1 Relevant Principles 288 Mr Kumova seeks damages for non-economic loss comprising general damages for injury to reputation and hurt to feelings, as well as aggravated damages. 289 In broad strokes, the parties agreed as to the approach I am to take in assessing Mr Kumova's entitlement to damages. Those principles are uncontroversial, and I recently set them out in Palmer v McGowan (No 5) (at [425]-[429]). In brief, the award of damages is governed by the provisions of Pt 4 Div 3 of the Act. By s 34 of the Act, the Court is required "to ensure that there is an appropriate and rational relationship" between the harm sustained and the amount of damages awarded: see also Stead (at 171 [236]). 290 The maximum amount of damages which may be awarded, as at 1 July 2022, is $443,000. The cap in force at the time of judgment applies, and may only be exceeded if the Court is satisfied that the circumstances of the publication of the defamatory matter are such as to warrant an award of aggravated damages: s 35(2A) of the Defamation Act; Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 (at 522 [443]-[444], 526 [459]-[463] per White, Gleeson and Wheelahan JJ). 291 In coming to a landing as to general damages, there are a number of factors to be considered including: (1) the severity of the defamatory stings; (2) the purposes of an award of damages in defamation, being consolation for hurt to feelings, recompense for damage to reputation and vindication of reputation; and (3) the extent of publication. As I noted in Palmer v McGowan (No 5) (at [428]), consideration of these factors is an intuitive, evaluative process conducted at large, but within the parameters of Pt 4 Div 3.

H.1.2 Severity 292 The nature of the imputations speak for themselves and there is no need to elaborate save to note that the defamatory publications convey allegations of very serious misconduct and contravention of the law, including the allegations of insider trading (Imputations 5(a), 7(a), 9(a)), and of conduct comparable to a "drug syndicate" (Imputation 13(b)). These are grave charges to make.

H.1.3 Hurt to Feelings 293 Mr Kumova submitted that he suffered hurt to feelings, primarily due to feeling "terroris[ed] when you wake up every day thinking, 'what has he written next[?]'": T99.41. 294 Other witnesses gave similar evidence of Mr Kumova's reaction to the publications, recording his frustration, concern, upset and offence. 295 I observed Mr Kumova as someone whose feelings were protected to some degree by his self-regard, personal confidence and apparent unshakeable conviction that the allegations made against him by the defamatory publications were baseless. This conclusion is supported by the fact that Mr Kumova did not rush to the registry at the first tweet; he waited some time before pursuing Mr Davison. Consistently with this measured reaction, his presentation was generally stoic. 296 Ordinary human experience reveals there are people who express themselves in an understated way, and others who emote freely and are otherwise less restrained. This does not mean that the subjective hurt of the former person is any less than that of the latter. What matters is the genuineness of the evidence as to hurt to feelings, which is best assessed by the evidence in chief on this topic being given viva voce and in person. 297 I have formed the view that Mr Kumova's feelings were worn down over time by publication of the matters. Unsurprisingly, his pain was most palpable when questioned on Mr Davison's decision to tweet continuously about him, notwithstanding he had issued what was said to be an apology on 20 September 2020. In Mr Kumova's view, this demonstrated that Mr Davison "doesn't care. He doesn't care what he's saying. As long as it's damaging or hurtful or painful, he's happy to bring it up": T101.11-13. Mr Kumova testified that "in my business, it's all about people, it's all about relationships, it's all about trust": T100.17-30. These comments ought to be considered as representative of hurt to feelings, consistently with the observation of Lord Diplock in Broome v Cassell & Co Ltd [1972] AC 1027 (at 1125): The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages.

H.1.4 Damage to Reputation 298 While it is not, of course, necessary for a person in the position of Mr Kumova to lead evidence of good reputation, as is commonly the case, he did so. 299 I accept Mr Kumova's logical submission and unchallenged evidence that allegations of insider trading, market manipulation and other business misconduct have the propensity to cause significant damage in the industry. I also accept his evidence that numerous journalists, stockbrokers, investors, fund managers and executives asked him about the tweets, and that some institutional investors or other market players might hesitate before working or investing with him. Indeed, Mr Kumova said he would not engage with someone he did not know who had been accused of insider trading or market manipulation: T79.13-14; T83.7-8. 300 Additionally, a number of witnesses gave evidence that Mr Kumova is, in Mr Walta's words, a person with an "overwhelmingly positive reputation", and in Mr Cranston's terms, a person "considered to be very ethical and honest and to operate with integrity […] a straight shooter". I am inclined to accept this evidence up to a point, but I think it more likely that views as to the general reputation of Mr Kumova were not as uniform as this evidence suggests. One does not need to be a paragon of humility and self-effacement to regard someone posting images of themselves as James Bond or holding themselves out on Twitter as a stock savant as being somewhat louche. There is no accounting for taste and I think it likely that right-thinking members of the community might have a range of different views as to how they judge the reputation of a person who uses social media in this way. 301 But irrespective of any differing views as to Mr Kumova's self-promotion, I am satisfied to the requisite standard that the defamatory publications had a significant negative effect. 302 The real issue in the present case is that notwithstanding the necessity of an award sufficient to reflect the severity of the defamatory stings, consolation for hurt to feelings and vindication of reputation, there is an overriding need to ensure an appropriate and rational relationship between the actual harm sustained and the amount of damages awarded. 303 It is in this context that one comes to an issue that assumed importance in this case: the conduct of Mr Kumova directly relevant to his reputation in the part of his life the subject of the defamatory publications. 304 As I have already noted, both parties accepted (consistently with Burstein (at 598-602 [41]-[52] per May LJ) and Rush v Nationwide News Pty Ltd (No 2) (at 573-577 [32]-[45] per Wigney J)) that notwithstanding rejection of the justification defence, evidence of directly relevant and particularised misconduct is relevant to reputational damage and hence relevant to my fixing upon an appropriate and rational assessment of damages. This is another way of saying any such assessment does not occur "in blinkers". 305 Mr Davison submits that the damage of which Mr Kumova complains is damage to his reputation in the sector of his share trading activity and participation in mining stocks, and that the gravamen of Mr Kumova's complaint is that he has been unfairly (and falsely) accused of unlawful, dishonest and unethical conduct in respect of his share trading activities. 306 Mr Davison further submits that to the extent the Court is satisfied that Mr Kumova has contravened s 1041E of the Corporations Act, this amounts to a finding Mr Kumova has committed "an offence no less serious than insider trading". It is said that this finding is directly relevant to Mr Kumova's reputation in the part of his life that is the subject of the allegedly defamatory publications. In elaboration of this submission, Mr Davison points out that the penalty for a contravention of s 1041E and the prohibition on trading while in possession of inside information (s 1043A) are the same (15 years' imprisonment) and both are serious market integrity offences involving taking advantage of innocent counterparties. 307 Similarly, Mr Davison submits that to the extent Mr Kumova engaged in: (1) conduct proscribed by s 1041H, or contravened s 671B, then he "has engaged in unlawful conduct in the very sector of his life that he seeks to vindicate"; and (2) pumping and dumping of shares, that conduct "strikes at his professionalism, his honesty and his ethics" and is "shameful conduct and would be viewed with admonition by participants in the Australian share market". 308 The consequence of this is said to be that the actual damage occasioned to Mr Kumova's reputation would be "slight" in respect of the defamatory publications unsuccessfully defended, because he is only entitled to be compensated for the reputation he deserves. 309 Although it may be accepted the relevant sector of Mr Kumova's reputation is his honesty and good faith in connexion with his interests in mining stocks, any impact of the findings made as to the pleaded contravening conduct is dependent upon how that conduct could rationally impact upon Mr Kumova's reputation in the relevant sector. 310 I have already explained, contrary to the submissions of Mr Davison, the primary focus for the purposes of damages is on the relevant conduct and less the objective characterisation of that conduct as being in breach of a particular norm (although it cannot be said, as Mr Kumova suggests, the unlawfulness of the conduct - in and of itself - is an irrelevant matter). 311 It is then necessary to turn to the two instances where I accept Mr Kumova engaged in contravening conduct as pleaded by Mr Davison. These are: (1) Mr Kumova's failure to disclose changes in his substantial shareholding in New Century and Bellevue Gold as required by s 671B of the Corporations Act; and (2) the publication of the Seventh Statement, which asserted that Bellevue Gold had access to "US$12B of metal sitting behind me there. One big cash register by the time we are done with it", was reliant on a considerable miscalculation of the relevant resource value and breached the JORC Code. 312 As to the first of these matters, Mr Davison adduced evidence that Mr Kumova failed to lodge a notice as required by s 671B within two business days of becoming aware there was a 1% movement in his voting power on three occasions: (a) in July 2017 in relation to his shareholding in New Century; and, in relation to his shareholding in Bellevue Gold: (b) in March 2018; and (c) in April 2020. But it is important not to decontextualise what actually occurred. 313 As to (a), Mr Kumova became a substantial shareholder in New Century with a holding of 5.64% on 13 July 2017. He admitted under cross-examination that he was aware of the change at the time (T450.25-28) and that he had "asked [the company secretary] to prepare and issue all documents" (T457.36-37), but that he was now aware that the requisite documentation (namely, what is known as a "Form 604 Notice of change of interests of substantial holder" (Form 604 Notice)) had not been provided to the ASX. Senior counsel for Mr Kumova submitted that because an Initial Director's Interest Notice (Appendix 3X) and Change of Director's Interest Notices (Appendix 3Y) in respect of Mr Kumova's shareholding were provided to the ASX in compliance with s 205G of the Corporations Act and r 3.19A of the ASX Listing Rules, the requirements of s 671B(3) had, in substance, been met. In response, Mr Davison submits that there are substantial differences between the substantive requirements in s 671B on one hand, and s 205G and r 3.19A on the other. It hardly matters. The real question to be answered is whether the evidence impacts upon Mr Kumova's reputation in the relevant sector. Here it is clear that the conduct engaged in, on the basis it does amount to a breach, ranks exceedingly low in the calendar of corporate misfeasance. 314 This point is even more obvious in relation to (b) and (c). As to (b), despite a substantial change in Mr Kumova's voting power on 23 March 2018, Mr Kumova did not file a Form 604 Notice with the ASX until 21 August 2019. Mr Kumova explained under cross-examination that he was not aware at the time that his voting power had changed so as to trigger his notice obligations (T452.33-35). As to (c), on April Fools' Day in 2020, there was a dilution of 0.93% that, in combination with earlier small dilutions in 2019 and small sales, reduced Mr Kumova's voting power in Bellevue Gold by more than 1%. Mr Kumova did not inform the ASX of this change until 22 April 2020. I am satisfied this late filing was a result of delays in the preparation of the relevant documentation by the Bellevue Gold company secretary, in large part due to the contemporaneous introduction of stay at home orders in the early stages of the COVID-19 pandemic. In any event, Mr Kumova did not buy or sell shares in the period he was under an obligation to lodge the notice. 315 Although these late filings amounted to breaches (albeit, technical breaches) of statutory requirements, I am far from satisfied that any of this could have any real impact upon Mr Kumova's reputation in the relevant sector. 316 The second aspect of the conduct, being the making of the Seventh Statement (Bellevue Gold had access to "US$12B of metal sitting behind me there. One big cash register by the time we are done with it"), falls into a different category. 317 This was conduct apt to mislead and it reflects poorly upon Mr Kumova. It demonstrates he was capable of posting without a secure basis in fact and when, at the very least, he ought reasonably to have known that the JORC Code prohibits the publication or reporting of in situ valuations on the basis that such reporting has inherent limitations. In this regard, given Mr Kumova's experience, I am sceptical of his denial of being aware of the need for caution in relation to providing information concerning in ground valuations: see T465.4-6. Moreover, the arithmetic error shows a cavalier approach to putting information in the public domain without checking it properly. 318 Although I reject the notion Mr Kumova was pumping stock and behaving dishonestly as part of a broader scheme, the making of the Seventh Statement amounted to conduct which was irresponsible, careless and in contravention of statutory norms regulating statements made to the market. This conduct does rationally bear upon Mr Kumova's true reputation in the relevant sector and thus is of some significance in the overall assessment process.

H.1.5 Evidence of Circulation 319 As I said in Tribe v Simmons (No 2) [2021] FCA 1164 (at [23]-[24]), Twitter presents two unusual challenges, described as the "firehose effect" and the "grapevine effect": 23. … The evidence reveals that Twitter provides, on a commercial basis, a stream of data that includes the content of tweets and various data linked to each tweet - including time stamps, engagement with other users of each tweet, etc. - which has been described by Twitter as a "firehose". The term "firehose" is said to convey the large volume as well as the real-time velocity with which this data is produced by Twitter, which has a large global base of active users, including 4.6 million users in Australia alone. 24. By its very nature, Twitter encourages the dissemination, by repetition, of messages sought to be conveyed by users. The dissemination of information with great velocity is no doubt a significant reason why it has become such a pervasive and popular social medium. If one looks at the evidence in this case, one obtains a graphic modern-day example of the so-called "grapevine effect" often referred to in matters of this kind. 320 Mr Kumova submits that there was a significant "grapevine effect" resulting from Mr Davison's defamatory tweets, comparable to mass media cases and cases involving broad public publication. 321 Despite Mr Davison's conception of himself as a prominent, self-appointed regulator of corporate misfeasance, the parties agreed that Mr Davison's following was not particularly widespread: he had 4,892 followers on 19 December 2019; 6,025 followers on 4 June 2020; 6,808 followers on 1 September 2020; and 7,476 followers as of 14 June 2022: SAF (at [22]). 322 But the "firehose" and the "grapevine" do not discriminate. Many of the disputed matters tagged Mr Kumova or other parties and also included cashtags for companies that would have made the matters easily searchable by anyone who looked for those cashtags. This means that the potential and actual publication of the matters was significant and where Mr Kumova was tagged, the tweets would appear to persons who followed him. 323 Limited analytic data is available as Mr Davison deleted the matters (excepting the Second Matter) prior to the commencement of proceedings. However, the SAF paints somewhat of a picture on the basis of the existing evidence. There were 11,382 impressions (being the number of times, a tweet or group of tweets appears on a user's Twitter feed) for the First Matter; 8,200 impressions for the Second Matter; 2,789 impressions for the sixth tweet in the Fourth Matter and 5,001 impressions for the final tweet in the Fourth Matter; and 26,343 impressions for the second tweet in the Fifth Matter: SAF (at [57], [66], [87], [91]). There were 130 engagements with the First Matter (SAF (at [57])); 1,123 engagements with the Second Matter (SAF (at [66])); 35 engagements with the sixth tweet in the Fourth Matter and 750 engagements with the final tweet in the Fourth Matter (SAF (at [87])); and 683 engagements for the second tweet in the Fifth Matter (SAF (at [91])).

H.1.6 Aggravated Damages 324 Aggravated damages may be awarded by way of compensation for injury resulting from the circumstances and manner of a respondent's wrongdoing. A respondent's conduct after publication may also relevantly be taken into account as improperly aggravating injury done to the applicant, but only if that conduct meets the threshold of being unjustified, improper or lacking bona fides. Section 35(2) of the Defamation Act requires, as a condition of the power to award aggravated damages, that the Court must be satisfied that the circumstances of publication warrant such an award. The relevant approach was helpfully summarised by Rares J in Barilaro v Google LLC [2022] FCA 650 (at [311]-[313]). 325 Mr Kumova submits that he is entitled to an award of aggravated damages by reason of a shopping list of matters, which may be summarised into three broad headings: (1) Mr Davison's ongoing campaign against Mr Kumova, including that he failed to inform Mr Kumova of the imputations he intended to publish, and continued to tweet about Mr Kumova and reported him to ASIC despite receiving a letter of demand, a Concerns Notice, issuing an apology and the commencement of proceedings; (2) Mr Davison's pursuit of his justification defence; and (3) the conduct of Mr Davison and his legal representatives prior to and during the proceeding, including a series of publications before and while the proceeding was underway, as well as Mr Davison's destruction of documents and failure to comply with discovery obligations. 326 I will deal with each of these three matters below, but it is useful to make a preliminary point: some of the submissions of Mr Kumova were understandably put forcefully but, as a consequence, seemed to skirt with a perceived need to condemn Mr Davison for his conduct (particularly his lack of candour as to discovery). Notwithstanding no submission was made expressly by experienced counsel that aggravated damages be awarded to punish Mr Davison, it is important to stress that it is no part of my function to award exemplary damages: any award of aggravated damages is, of course, purely compensatory. 327 As to the first matter, which does relate to the circumstances of the publication of the defamatory matters, the content, tone and frequency of the tweets by Mr Davison about Mr Kumova are indicative of an intention to discredit Mr Kumova. They travelled beyond the proper purpose in publishing information or comments as a "citizen journalist". Mr Davison started tweeting about Mr Kumova in early 2018, and his tweets escalated in frequency and seriousness. Remarkably, the document prepared by Mr Kumova's solicitors reproducing those tweets is some 111 pages long. Mr Davison also implicated Mr Kumova's companies, colleagues, friends and family: see, for example, T80.45-81.5. Three examples are demonstrative: (1) on 31 May 2020: MAKE NO MISTAKE The Tolga Kumova plays … DO NOT CREATE WEALTH. They Transfer it. From your pocket to theirs! Caveat Emptor… (2) on 16 June 2020: "Teflon Tolga Kumova sanitising his life for the crowd. Not a mention of his Brother Emre Kumova being arrested as a principal player in a meth drug syndicate at the exact same time Tolga made his money on Doray Minerals. I bet Emre has some stories"; and (3) on 15 January 2021: "Tolga Kumova should have a disclaimer on everyone [sic] of his pumps saying: Caution Not 1 of my stocks have ever made a profit. My profit comes from speculative rises in share prices". 328 The force of these statements is exacerbated by what I find was Mr Davison's less than genuine apology on 20 September 2020, which read: I have in the last few days received a statement of claims that I made imputations that Tolga Kumova has engaged in insider trading. Let me be clear. That was not and has ever [sic] been my intention, inference or thought. I apologise to Tolga for any hurt caused. 329 The conduct of this campaign by Mr Davison against Mr Kumova amounted to improper or unjustified conduct, increasing hurt and satisfying me that the circumstances of the publication of the defamatory matters warrant an award of aggravated damages. 330 Secondly, Mr Davison's pursuit of his justification defence, including the fact that large aspects of it were abandoned, is of real concern and amounts to unjustified conduct increasing Mr Kumova's hurt and warranting an award of aggravated damages. The raising of what was partly an untenable justification defence adopting allegations of serious criminal conduct not only caused and increased vexation to Mr Kumova, but also caused delay and wasted costs (notwithstanding its later, partial abandonment). 331 Thirdly and finally, over the course of the proceeding, Mr Davison proceeded with disregard for the processes of this Court. Although engaging in contemporaneous public commentary on Court cases by litigant is not itself improper (if kept within appropriate bounds), Mr Davison tweeted about Mr Kumova and those assisting him incessantly while the proceeding was before the Court, for example: (1) with reference to an interlocutory judgment of Flick J (Kumova v Davison [2021] FCA 753), on 5 July 2021, Mr Davison tweeted: "The Judgement [sic] was short and bitter. Apparently my Twitter feed does not break enough news to be considered a [sic] journalist. So I will break some tomorrow, ;)" and, the next day, on 6 July 2021, "More breaking news not before unleased [sic] on unwashed retail masses! We will disclose an update to the Tolga Kumova v Stockswami saga We'll unravel a pump and dump scheme"; (2) on 8 July 2021, he tweeted: "The 1 good thing about being sued is that you become so broke, you don't get worried about being sued a second time"; (3) on 28 July 2021, he tweeted: "This is funny. Tolga's Kumova's PR agent runs a smear campaign against me while his lawyers write letters complaining I'm still talking about Kumova & his stocks. They don't like me talking about Evan Cranston either. Tough titties"; and (4) on 23 December 2021, he tweeted: "Tolga is claiming I'm calling him a pumper & dumper but for some reason doesn't want me to put on evidence of his pumping & dumping". 332 At the risk of a digression, Mr Davison's approach to providing tendentious commentary was, regrettably, mirrored on one occasion by his solicitors. On 23 June 2022, during the course of cross-examination of Mr Kumova, Mr Davison's solicitors responded to some evidence by posting a tweet, which opens, "Tolga Kumova 4.8 billion overvaluation!" As I pointed out when this post was drawn to my attention, r 28.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) provides a solicitor must not publish or take steps towards publication of any material concerning a proceeding which may, among other things, prejudice the administration of justice. It is unnecessary for me to form any view as to any breach of this rule, but it suffices to note that a solicitor mocking a witness on social media while they are under cross-examination and because of the evidence they have given should not occur. That said, this conduct was not engaged in by Mr Davison and I have not placed significance upon it in assessing damages. 333 In the end, self-serving public commentary on highly charged litigation may be seen for what it is and may not itself be particularly significant to aggravation, but significantly worse were Mr Davison's attempts to impede the proper and fair conduct of this litigation by the destruction of documents and his failure to comply with discovery obligations. It is necessary here to sketch the facts detailing this conduct. 334 In a series of tweets and a statement to ASIC on 5 July 2020, Mr Davison alleged that Mr Kumova, in February 2020 in Cape Town, gave inside information to his friends about New Century's acquisition of the Goro nickel mine. Mr Davison's source was Mr Stephen Dobson, a person who Mr Davison had met only twice and about whom the Court was otherwise told nothing. Mr Davison produced a partial exchange of messages with Mr Dobson. 335 Eventually, after the interlocutory judgment of Flick J referenced above, Mr Dobson's name was disclosed on 16 July 2021 and a subpoena was issued to him. In response, and to his credit, Mr Dobson produced an email dated 17 March 2021 whereby Mr Davison directed him to delete his Twitter account, open a new account and delete the email. Mr Davison did not produce this message and has now admitted that he deleted it the same day. 336 In answer to a notice to produce issued on 20 June 2022, Mr Davison belatedly produced a series of messages with Mr John Shapiro, a journalist with the Australian Financial Review at the time, which apparently resulted in an article in the Australian Financial Review about New Century and IGO Limited on 19 April 2020. Inexplicably, those messages were also not discovered. 337 This revelation led me to form a preliminary view that proper discovery had not been given. Accordingly, I agreed I should make an order requiring Mr Davison to attend court in order to be cross-examined on his affidavit of discovery. Under oath, Mr Davison admitted to deliberate destruction of documents and non-compliance with the orders for discovery in that he: (1) made a conscious decision not to discover relevant documents (T508.28-37); (2) altered or omitted parts of a chain of messages with Mr Dobson (T517.40-518.9; T522.10-13); (3) directed Mr Dobson to delete his Twitter account (which had the effect of deleting the direct messages between them) (T513.6-7; T514.4-36); (4) deleted documents (T520.24-521.8; T556.35-39; T581.35-582.16); (5) did not make reasonable searches in his various email and Twitter messages (T540.6-28); (6) lied in his affidavit of discovery (T539.29-540.33); (7) made a deliberate decision to mislead Mr Kumova and his solicitors on the issue of documents (T538.5-8); (8) did not comply with his ongoing obligation of discovery (T538.18-539.27); and (9) produced nothing in answer to the standard discovery order on 30 March 2022 (when it was plain that he had material to discover) (T553.5-17) and did "very little" to check for documents to comply with that order (T580.3-4). 338 This evidence, although given in an adjectival proceeding relating to discovery compliance, was subsequently tendered in the trial by consent and became evidence in the hearing. 339 I am amply satisfied that Mr Davison conducted himself with disregard for the principles which he says drive his practices on Twitter: decency and a desire for the truth. Although he says he was acting for the laudable motive of protecting a source, this is no excuse for deliberate dishonesty in the conduct of litigation. Although I am conscious I am not awarding damages to punish Mr Davison, having closely observed the effect of this conduct on Mr Kumova, I consider that the harm suffered by Mr Kumova was aggravated by this improper conduct.

H.1.7 Quantum 340 Mr Kumova's entitlement to aggravated damages lifts the statutory cap on quantum and it follows that Mr Kumova is entitled to damages in excess of the cap imposed under s 35 of the Defamation Act (currently $443,000). 341 I should pause to note that the recently enacted s 35(2B) of the Defamation Act provides an award of aggravated damages is to be made separately to any award of damages for non-economic loss. In this case, the relevant amendments do not apply as the defamatory matters were published prior to 1 July 2021. Traditionally, of course, a damages award is not usually broken down into components for "pure" compensatory damages and "aggravated" compensatory damages, and I will proceed to make an award in the orthodox way, without distinguishing damages for non-economic loss from aggravated damages. Further, as authorised by s 39 of the Defamation Act, and given the close connexion between the causes of action upon which Mr Kumova has succeeded, I propose to assess damages in a single sum. 342 I have explained above the principles and findings relevant to the impressionistic process of fixing upon an appropriate solatium for hurt to feelings, damage to reputation and vindication in one lump sum. Without losing sight of the necessity to have regard to all the relevant circumstances, in this assessment, it is worth returning to three matters. 343 First, this is a case where the defamations were very serious - there is a real need for an award which takes account of the failure to justify these allegations and for Mr Kumova to be vindicated and to be seen to be vindicated. 344 Secondly, Mr Kumova did experience real hurt to feelings, aggravated by the campaign maintained by Mr Davison against him and the improper conduct to which I have referred. 345 Thirdly, notwithstanding the presumption of good reputation, the evidence as to reputation, and the need for vindication, I have reminded myself of the need to ensure the assessment is made cognisant of the misleading and unlawful conduct I found occurred in the relevant sector of Mr Kumova's reputation. The final damages award must reflect, among all other matters, all the findings I have made relevant to Mr Kumova's true reputation. 346 There is little to be gained from a review of other cases which turn on their facts. However, in considering the appropriate and rational relationship between harm and amount, I have had regard to the general tenor of awards (including those where serious allegations of wrongdoing have been made) as part of the process of synthesis of the relevant matters to which I have referred. This is an unusual case, and doing my best to weigh up all the factors, I have concluded that the appropriate award of ordinary and aggravated compensatory damages is $275,000.

H.2 Interest 347 An interest rate of 3-3.5% is generally awarded in defamation proceedings: Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34 (at [8]-[16] per White J). In the circumstances, I am satisfied a rate of 3% is suitable.

H.3 Injunction 348 Mr Kumova seeks to enjoin Mr Davison permanently from "republishing the matters complained of and any imputation found to be carried by the matters complained of". Two preliminary questions arise for consideration: first, whether an injunction is utile, in that if ordered by this Court it will be enforceable in New Zealand, where Mr Davison is domiciled; and secondly, whether the circumstances are such as to consider a properly-framed permanent injunction should run. 349 As to the first issue, s 53(1) of the Trans-Tasman Proceedings Act 2010 (NZ) (TTPA) provides that "registrable" Australian judgments may only be enforced in New Zealand if registered with a New Zealand court pursuant to s 57. The TTPA operates in tandem with the Trans-Tasman Proceedings Act 2010 (Cth), both of which implement the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement, signed on 24 July 2008, [2013] ATS 32 (entered into force on 11 October 2013) into domestic law. 350 A "registrable judgment" is defined in s 54(1) of the TTPA as including final and conclusive judgments given in civil proceedings by Australian courts. Section 54(2) sets out a series of exceptions, relevantly providing that a judgment is not a "registrable Australian judgment" where it is a non-money judgment of a kind that is declared by an order of the Governor-General to be excluded from recognition or enforcement: ss 54(2)(b), 54(3) of the TTPA. It should be noted that on proper reading, an injunction falls within the definition of "non-money judgment" in s 4 of the TTPA, which provides: a judgment that is not a money judgment (including, without limitation, a judgment that does not involve the payment of money but requires a person to do, or refrain from doing, other things). (Emphasis added). 351 This is supported by the Explanatory Memorandum to the Trans-Tasman Proceedings Bill 2010 (Cth), which specifies that a "non-money judgment" includes "an injunction or order for specific performance" (at 5): see also LFDB v SM (No 3) [2017] FCA 80 (at [138]-[139] per Griffiths J). 352 No order has been made under s 54(3) of the TTPA with respect to permanent injunctions enjoining persons in New Zealand from publishing defamatory matters. As such, there is no reason to suggest there will be an issue with enforcement in New Zealand, should it become necessary. Accordingly, there is utility in making the order if it is otherwise appropriate. 353 In any case, the possibility of enforcement issues in New Zealand is not reason enough to deter me from making an order for a permanent injunction. Faced with a similar issue in Webster v Brewer [2020] FCA 622, Wheelahan J explained (at [17]-[19]) that the tort of defamation "is not complete until there is comprehension of defamatory matter by a reader, listener or viewer"; accordingly, the injunction sought by Mr Kumova is to enjoin the commission of torts in Australia. 354 Secondly, as to whether a permanent injunction should be ordered, the relevant principles are surveyed in Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383 (at [9]-[31] per Wigney J). There his Honour identified the main consideration as whether there is "a risk or apprehension" that the respondent will republish the defamatory publications (at [12]). 355 The greatest virtue and vice of the internet and social media is that anyone can be a publisher. Cases involving publication on the internet by a respondent who was not a professional journalist or mainstream media organisation often come with some "demonstrated threat or risk" that the defamation will be repeated: Rush (No 9) (at [22]-[24] per Wigney J) and the authorities there surveyed, in particular Munsie v Dowling (No 10) [2018] NSWSC 709 and Tavakoli v Imisides (No 4) [2019] NSWSC 717. 356 My preliminary view is that this is one such case. Mr Davison has made clear that he does not intend to "shut up about Tolga"; he "won't be muzzled", "remains unfazed" about being sued, hopes to "get the message" across and "advance the conversation". He does not mind if he has to "pay through the nose for it". On 21 June 2022, the eve of the final hearing, he tweeted, "Now, the Stockswami haters are hiding […] As far as I'm concerned, my Stockswami Twitter account has already been validated". 357 It is clear to me that Mr Davison derives some sense of worth from Mr Kumova's pursuit of relief in this Court. There is a risk his self-described "vital service to investors in Australia" will continue at Mr Kumova's expense unless he is enjoined. 358 That said, the current form of order proposed - "republishing the matters complained of and any imputation found to be carried by the matters complained of" - lacks necessary specificity. It is contrary to principle to decide upon whether an injunction should be granted without identifying the precise form of the injunction that would run if ordered. I will receive submissions on the question of the grant and form of a permanent injunction at a date to be determined.

I CONCLUSION AND ORDERS 359 Mr Kumova is entitled to judgment in the sum of $275,000 (together with interest at a rate of 3%) until entry of judgment. 360 I will hear the parties on costs and as to relief in the form of the permanent injunction at a date to be determined. I certify that the preceding three hundred and sixty (360) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.