C.2 Temporal Application
25 The second issue was the subject of extensive submissions today.
26 Mr Kumova submits that an injunction which extends to "publishing a matter in any form to the effect of [the carried imputations]" is necessary to militate against the "real danger" that Mr Davison will use his online platforms to undermine the Court's findings and resume his defamatory campaign. Counsel pointed to the serious findings I made against Mr Davison, including as to his dishonesty in relation to the conduct of the proceedings and as to the content, tone and frequency of the vast number of tweets he posted about Mr Kumova. It is said, consistently with my reasons (at [327] and [356]), that the matters which I found to be defamatory were indicative of an intention to discredit Mr Kumova, and that this finding was consistent with an array of evidence that included representations by Mr Davison that he did not intend to "shut up about Tolga" and would not be "muzzled".
27 The position of counsel for Mr Davison was to remind me of the caution that should attend the Court's restraint of ordinary freedoms: Palmer v McGowan (at 730 [520]); Carolan v Fairfax (at [14] per McCallum J). In Mr Davison's submission, an injunction in the form sought by Mr Kumova would inhibit Mr Davison from commentating on misconduct which may be engaged in by Mr Kumova in the future. It is said that, should Mr Davison publish defamatory material concerning Mr Kumova in the future, Mr Kumova could preserve his legal right to reputation by bringing an action in defamation.
28 There are, of course, considerations pointing both ways.
29 As explained above, it is evident that Mr Davison is not lacking in self-regard for the importance of his role as the "Stock Swami". So much is clear in what appears to have been a press release published by his solicitors two days prior to the hearing, entitled "Who is Stockswami? Meet the Man Behind the Twitter Account". It is difficult to fathom why Mr Davison's solicitors thought it was appropriate for such a press release to be published. The present relevance of this document is that it demonstrates what even Mr Davison's solicitors describe as "a path that has come to dominate his life":
"From 2017 I started calling them out and naming them. Exposing them really. They were sophisticated investors so they'd get the stock low at a capital raise then they would pump it at the same time. I exposed brokers, directors, sophisticated investors, all pumping incognito on social media and stock forums. They would stop posting once I identified them. It's amazing. Once people know who you are they see the conflict of interest but when you're anonymous and don't disclose who you are, it just sucks people in like it sucked me in. Had I known how controversial it was all going to become I should have remained anonymous myself."
His public interest journalism made him one of the most vocal figures pressing ASIC and the ASX to crack down on the artificial pumping of stocks on social media. A campaign that has paid off in recent years. "My biggest complaint was how they let companies make ramping announcements that were just designed to push up the share price. Now the ASX have a ramping rule. What annoys me is sometimes I feel the horse racing industry is better regulated than the stock market. They ban people from the racetrack, but ASIC have trouble banning anyone. When you're a mum and dad investor and you've earned your money honestly, you expect companies, especially ones that are regulated to be doing the same and giving it their best."
Despite his public agitation and his impact Davison has maintained a low personal profile. "I'm not comfortable talking about my life. I'm still a Swami, we sort of renounce our activities or any benefit from them. I gain nothing from this and I see it genuinely as a public service."
His research has earnt him some powerful enemies but Davison remains unfazed. "It is just my philosophy about a greater good. I hope we can get the message that I want across. Hopefully it will advance the conversation. If I have to pay through the nose for it, well that's my karma. I don't mind".
30 Mr Davison's attitude is also reflected in a tweet he posted on 19 December 2022, while judgment was reserved, which noted that he had "won the war against Tolga & others [sic] shameless promoting of his stocks to a retail audience". He went on to assert that he "didn't destroy Tolga's reputation" and referred to the fact that his "conscience is clear". The following day, he compared the tactics of Mr Kumova to the tactics of Mr Tyson Scholz, a person who this Court has found to have engaged in "a clever way of pumping": see ASIC v Scholz (at [1]-[13]) per Downes J); J (at [6]).
31 Mr Davison is perfectly entitled to these opinions. But his conduct bespeaks of a risk of republication. In view of all of the above, there is no doubt in my mind that Mr Kumova deserves some protection. The only question is how far that protection should extend.
32 I queried with counsel whether it was appropriate to have regard to Mr Kumova's contraventions of the Corporations Act in determining whether or not the injunction should extend to matters after the date of the order. Counsel for Mr Kumova's response was not to suggest it was an irrelevant consideration, but rather, that it was one of no weight. In part, and initially, it was said that (leaving to one side Mr Kumova's essentially procedural breach of s 671 of the Corporations Act) my findings as to the Seventh Statement related to what was no more than an arithmetic error on the part of Mr Kumova.
33 This is not a correct characterisation of my reasons at [209]-[220]. As explained, far more concerning than the arithmetic mistake was that Mr Kumova wrongly deployed in situ valuation data (as I indicated (J at [215])). Mr Kumova, in the light of his experience in the mining industry, ought, at the very least, to have known the limitations of this type of data.
34 Counsel for Mr Kumova then submitted that the Seventh Statement was also irrelevant because it was posted at a time when Mr Kumova did not have a substantial Twitter following. This argument was mounted in support of a further submission that the Seventh Statement was unlikely to induce persons to acquire financial products and, in other respects, did not engage the prohibition in s 1041E of the Corporations Act, because it could not be said there was a "real and not remote" chance that the figure would lead Mr Kumova's audience into error: Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 (at 87 per Bowen CJ, Lockhart and Fitzgerald JJ).
35 I do not propose to indulge in debate as to whether that is a correct account of my reasons. I will satisfy myself by repeating a point I have already emphasised (at J [109]-[112] and [310]): to the extent any conduct of Mr Kumova was relevant to the question of damages, the primary focus was on the relevant conduct, rather than the objective characterisation of that conduct as being in breach of a particular statutory norm.
36 Accordingly, whether there was a failure to engage with an argument as to the elements of s 1041E (as Mr Kumova sought to suggest) is of little moment. All of this seems to me to be somewhat of a tempest in a teacup. I did indicate that some of Mr Kumova's conduct on Twitter was of concern, and if he was to continue to make public statements of this type, there could be said to be a non-fanciful risk that such representations might give rise to legitimate public comment.
37 Counsel for Mr Kumova contended that if Mr Davison wished to comment on any matter involving Mr Kumova which might occur at some stage in the future, it would always be open to him to make an application for a variation of the injunction. This is hardly a satisfactory basis to enjoin someone in terms broader than is necessary in the first instance.
38 I regard it as reasonably necessary to make an order in the terms proposed by Mr Kumova, with one significant qualification. I will limit the restraint on Mr Davison such that he is enjoined from publishing matters to the effect of the defamatory imputations in relation to occurrences prior to the date of the order. This course balances Mr Davison's right to free speech against the need to protect Mr Kumova from further harm.