Federal Court Justice Michael Lee on Friday barred New Zealand-based Alan Davison, who tweets under the handle Stock Swami, from publishing any allegations concerning Kumova’s actions prior the injunction. In January, Justice Lee awarded Kumova  $275,000 in damages for the defamatory tweets.

Kumova had sought an order barring Davison from ever tweeting again about him, claiming he needed protection against future defamation, but the judge raised concerns that this would impinge on his freedom of speech.

Justice Lee said it was a “solemn and serious thing to do” to take away Davison’s right to comment in the future, despite the judge’s criticisms of his tweeting.

The judge said that in deciding to order the restraint, he considered tweets by Davison which said he will not “shut up about Tolga” and a press release by his lawyers at Xenophon Davis that said he “won’t be muzzled”.

“There is no doubt in my mind that Mr Kumova, who has been the victim of a campaign, deserves some protection. The only question is how far that protection should extend,” the judge said.

Davison ‘unusually obsessed’ with Kumova, court told

Counsel for Kumova, Sue Chrysanthou SC, argued Justice Lee should order an injunction barring Davison from ever tweeting again about Kumova to protect him from being defamed in the future.

Davison was not an “ethical journalist” who defamed someone by publishing allegations they sincerely believed to be true but was “unusually obsessed” with Kumova, said Chrysanthou.

“[Davison] has engaged in an inordinate amount of defamation of my client over a period of years in what can only be described as irrational and obsessive,” said Chrysanthou.

“He is an unhinged dishonest stalker of my client and that’s why he should be enjoined.”

Injunction would ‘muzzle an ordinary citizen’, Davison says

Counsel for Davison, Dauid Sibtain, argued Kumova’s proposed injunction was “inappropriate” because Davison could not publish anything concerning the investor without seeking the approval of the court.

“What my learned friend wants to do is muzzle an ordinary citizen,” said Sibtain. 

In a judgment delivered in January, Justice Lee ruled that Davison failed to prove the substantial truth of the allegations in his tweets and that his conduct in the litigation justified an award of aggravated damages to Kumova.

In awarding aggravated damages, Justice Lee took into account “the content, tone and frequency” of Davison’s tweets about Kumova and his “less than genuine apology” in September 2020. His pursuit of an “untenable” justification defence and his “disregard for the processes of this court” were also aggravating, the judge said.

Despite expressing some concern over the investor’s “troubling” conduct in relation to one of his own Twitter posts, Justice Lee said Kumova was “entitled to be vindicated and to be seen to be vindicated”.

Under the Stock Swami account, Davison claims to offer a “cynical and cranky take” on the ASX. In a series of tweets, Davison wrote of a “Tolga Kumova special” on the “$ASX pirate ship” and said insider trading was “alive and thriving”.

Davison’s accusations mostly centred on Kumova’s trading of shares in mining companies Bellevue Gold, of which he was at one point a substantial shareholder, and New Century, where he served as director from July 2017 to July 2019.

Kumova’s valuation error equivalent to GDP of Chad, says judge

Justice Lee found some of Kumova’s tweets “concerning”, including a post that allegedly over-valued zinc producer New Century Resources by $4.8 billion, which the judge noted was equivalent to the gross domestic product of Chad.

“There is a non-fanciful risk that such representations might give risk to some legitimate public comment,” said Justice Lee.

In a tweet published in September 2017 about New Century Resources, of which he was then a shareholder, Kumova described a mineral deposit owned by the company as “one big cash register” of $12 billion.

“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,” the judge said in his January decision.

The judge noted that the $12 billion figure was “patently incorrect” – which Kumova conceded in cross-examination during the June hearing.

The judge also ordered indemnity costs against Davison, saying his “insufficient and dishonest discovery” justified Kumova having his costs fully reimbursed.

Facing questioning during the trial in June, Davison admitted he deliberately chose to withhold from the court communications he had with stockbroker Stephen Dobson, despite orders that he hand them over. 

“My findings with respect to Mr Davison’s insufficient and dishonest discovery ought properly to attract indemnity costs,” the judge said.

Kumova told Lawyerly on Friday that the case brought an end to “years of trolling” by Davison.

“I feel vindicated by the court’s decision and the permanent injunction preventing these lies from being repeated. The problem of trolls hiding behind anonymous accounts is an issue that we need to deal with in society,” said Kumova.

“I am lucky I had the resources to uncover the identity of the person harassing me. We need stronger laws in Australia to protect individuals from such online harassment.”

Davison and Xenophon Davis declined to comment.

Kumova is represented by Sue Chrysanthou SC and Barry Dean, instructed by Gilbert + Tobin. Davison is represented by Dauid Sibtain and James Wheeldon, instructed by Xenophon Davis.

The case is Kumova v Davison.

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