De Kauwe v Cohen - [2021] WASC 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   DE KAUWE -v- COHEN [2021] WASC 25
CORAM:   LE MIERE J
HEARD:   3 FEBRUARY 2021
DELIVERED          :   8 FEBRUARY 2021
FILE NO/S:   CIV 1512 of 2018
BETWEEN:   BRENDAN JAMES DE KAUWE
Plaintiff

AND

HAIM COHEN
First Defendant

ILAN SAAD
Second Defendant

GALIT ASSAF SHENHAR
Third Defendant

ERAN GILBOA
Fourth Defendant

BENJAMIN KARASIK
Fifth Defendant

IAN CRAIG PAMENSKY
Sixth Defendant

MATTHEW WRIGHT
Seventh Defendant

Catchwords:

Practice and procedure - Pleadings - Leave to amend particulars of statement of claim - Case management principles - Whether amendment causes undue prejudice - Whether amendment causes adjournment of trial - Rules of the Supreme Court 1971 (WA) O 21 r 5 - Application allowed

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Leave to amend statement of claim granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett & Mr A Tharby
First Defendant	:	Mr J MacLaurin SC & Ms J Moore
Second Defendant	:	Mr J MacLaurin SC & Ms J Moore
Third Defendant	:	Mr J MacLaurin SC & Ms J Moore
Fourth Defendant	:	Mr J MacLaurin SC & Ms J Moore
Fifth Defendant	:	Mr J MacLaurin SC & Ms J Moore
Sixth Defendant	:	Mr S M Davies SC & Mr F Merenda
Seventh Defendant	:	Mr C P K Russell

Solicitors:

Plaintiff	:	Bennett + Co
First Defendant	:	DLA Piper Australia - Perth
Second Defendant	:	DLA Piper Australia - Perth
Third Defendant	:	DLA Piper Australia - Perth
Fourth Defendant	:	DLA Piper Australia - Perth
Fifth Defendant	:	DLA Piper Australia - Perth
Sixth Defendant	:	Jackson McDonald
Seventh Defendant	:	Wotton + Kearney Lawyers (Perth)

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296
Hamilton v Whitehead (1988) 166 CLR 121
Lee v Lee's Air Farming Ltd [1961] AC 12
Parkes v Prescot (1869) LR 4 Ex 169
R v Cooper (1846) 8 QB 533; (1846) 115 ER 976
R v Drake (1706) 90 ER 1134
R v Paine (1696) 5 Mod Rep 163; (1696) 87 ER 584
Salomon v Salomon & Co Ltd [1897] AC 22
Webb v Bloch (1928) 41 CLR 331

LE MIERE J:

Summary

By minute filed on 29 January 2021, the second day of the trial, the plaintiff applied to amend the particulars to [40] and [52] of his second amended statement of claim filed 8 August 2019. For convenience, I will refer to as the statement of claim in relation to the sixth defendant, Mr Pamensky.
On 4 February 2021 I made the following orders:
1.The plaintiff has leave to amend particular (b) to [40] of the second amended statement of claim in accordance with [1] of the plaintiff's further and better particulars filed 29 January 2021.
2.The plaintiff has leave to amend the particulars to [52] of the second amended statement of claim insofar as they relate to the sixth defendant in accordance with [2] of the plaintiff's further and better particulars filed 29 January 2021.
3.The defendants have leave to file and serve a minute of any proposed further re-amended defence.
4.The costs of the plaintiff's application to amend the particulars to [40] and [52] of the second amended statement of claim are reserved.
These are my reasons for making those orders.

Paragraphs 40 and 52 of the statement of claim

Paragraph 40 of the statement of claim pleads that each of the defendants authorised and approved, and therefore intended, publication of the first ASX Release to the ASX, republication of the first ASX Release on the ASX Market Announcement Platform (MAP) and republication of the first ASX Release on eSense's website. The plaintiff gives particulars described as 'particulars of authorisation'. Particular (b) relates to Mr Pamensky. The particular is that 'Mr Pamensky's authorisation and approval, alternatively adoption, of the content of the first Defamatory ASX Announcement' may be inferred from the matters there set out.
The sixth defendant says that the plea that the defendants 'authorised and approved, and therefore intended' publication and republication of the Release is a plea that the defendants authorised and approved the Release, and therefore it can be inferred from that fact that they intended the publication. Further, the sixth defendant says that insofar as particular (b) says that Mr Pamensky's 'adoption of the content' of the Release may be inferred from the matters stated, the particular goes beyond the plea that he authorised and approved it and cannot be maintained. In my view, whilst as a matter of strict grammar those contentions are correct, it is too narrow a view of the pleading. To confine the case in that way would be a triumph of form over substance that would prevent the plaintiff from putting the case he intends to put, and prevent or impede the court from deciding the case on its merits. The fundamental principle is fairness ‑ the plaintiff's pleading should sufficiently inform the defendant of the case he has to meet. In my view, the plaintiff's pleading, as explained by counsel for the plaintiff, fairly informs the defendant that the plaintiff's case is that the defendant participated in the alleged publication and republications of the Release by acts and omissions which authorised, approved, intended or adopted the publications and republications. I proceed on that basis for the purposes of this application and for the trial.
Paragraph 52 of the statement of claim pleads that each of the defendants authorised and approved, and therefore intended, publication of the second ASX Release to the ASX, republication of the second ASX Release on the MAP and republication of the second ASX Release on eSense's website. The plaintiff gives particulars described as 'particulars of authorisation' which repeats the particulars to [40]. As in relation to [40], for the purposes of this application and for the trial, I proceed on the basis that the pleading is that each of the defendants participated in the alleged publication and republications of the Release by acts and omissions which authorised, approved, intended or adopted the publication and republications.

Plaintiff's application to amend

By minute filed 29 January 2021, the plaintiff applied to amend the particulars to [40] and [52] of his statement of claim by adding the new particulars contained in the plaintiff's further and better particulars dated and filed 29 January 2021 (the Further and Better Particulars).
By [1] of the Further and Better Particulars, the plaintiff adds (iii) ‑ (xi) to particular (b) to [40] of the statement of claim; that is, to add matters from which it may be inferred that Mr Pamensky authorised, approved, intended or adopted the content of the first ASX Release.[1]
[1] The numbering appears to be in error. The additional matters should be numbered (iv) ‑ (xii).
By [2] of the Further and Better Particulars, the plaintiff adds particulars to [52] of the statement of claim; that is, to add matters from which it may be inferred that the defendants authorised, approved, intended or adopted the content of the second ASX Release. However, counsel for the plaintiff explained that the amendment is intended to amend only the particulars in relation to Mr Pamensky and not in relation to the other defendants. The application was argued on that basis. Accordingly, the amendment seeks to add the matters set out in [2](i) ‑ (xvi) of the Further and Better Particulars as matters from which it may be inferred that Mr Pamensky authorised, approved, intended or adopted the content of, the second ASX Release.

Defendants oppose amendments

The sixth defendant opposes the amendments on the grounds that the discretion of the court to allow the amendments has not been enlivened and that allowing the amendments would cause prejudice to the sixth defendant. The sixth defendant did not differentiate between the plaintiff's proposed amendments to [40] and [52] of the statement of claim. I will consider the sixth defendant's objections in the same way.
Although the amended particulars are directed to the sixth defendant, the first to fifth defendants oppose the amendments in relation to [40] of the statement of claim to the extent that they alter the plaintiff's pleaded case that the Release was published by eSense. They also oppose certain parts of the amendments in relation to [52] on the grounds that they are irrelevant to the allegation that Mr Pamensky authorised, approved, intended or adopted the content of the second ASX Release.

The power to amend

Order 21 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC) gives the court a discretion to allow an amendment of a pleading.
The exercise of that discretion is guided by the objectives of RSC O 1 r 4A and r 4B. A just resolution of proceedings is the paramount purpose of O 1 r 4A and r 4B; but what is a just resolution is to be understood in light of the purposes and objectives stated.
In Aon Risk Services Australia Ltd v Australian National University[2] (Aon Risk), the plurality explained that the objectives stated in the ACT equivalent of RSC O 1 r 4A and r 4B required the court in deciding whether to exercise its discretion to allow a late amendment to consider all of the circumstances including the explanation from the party seeking the amendment of the delay in seeking the amendment, the circumstances giving rise to the need for an amendment, the nature and importance of the amendment to the party seeking it, the extent of the delay and the costs, the prejudice which might follow, and the point the litigation has reached.
[2] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

Sixth defendant says discretion to amend not enlivened

The sixth defendant submits that the plaintiff has adduced no evidence explaining his delay in seeking the amendment, and in the absence of such evidence, the court's discretion to allow the amendment has not been enlivened.
In his written submissions, the sixth defendant referred to the decision of the High Court in Aon Risk. In Aon Risk, the plaintiff brought proceedings against three insurers for indemnity for loss suffered from fire. The broker, Aon, was later joined as a defendant. On the third day of the trial, which had been set down for four weeks, the plaintiff sought an adjournment of the trial against Aon and foreshadowed an application for leave to amend its claim to allege a substantially different case. The trial was adjourned, but the application for leave to amend the plaintiff's claim was not heard until two weeks later, and the decision to grant leave was not made until 11 months later. The plaintiff, in an affidavit in support of its application for leave to amend, 'did not offer any explanation for the need to amend'.[3] French CJ said that the application was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so.[4]
[3] See Aon Risk at [53].
[4] Aon Risk [4].
It was in those circumstances that the High Court held that the primary judge and the Court of Appeal erred in allowing the amendments. The judgements in the High Court emphasise the importance of any explanation or justification, or lack of explanation, which is offered by an applicant seeking a late amendment. However, evidence explaining the delay is not a precondition to the exercise of the court's discretion. The court must consider all of the circumstances, albeit in some cases the absence of an explanation or justification for the delay will be fatal. As the Full Court of the Federal Court of Australia said in Cement Australia Pty Ltd v Australian Competition and Consumer Commission:[5]
Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.
[5] Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 [51]; see also Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 [767] ‑ [768].
In his written submissions, the only observation of the plaintiff about the reason for the delay is that, given the documentary evidence relied upon, it appeared Mr Pamensky would not deny he was responsible for publication of the first ASX Release. The plaintiff's written submissions were limited, by my direction, to no more than two pages. The plaintiff's observation about the stance adopted by the sixth defendant was accompanied by a complaint about the late delivery of submissions by the sixth defendant. The hearing of this application was noticeable for the complaints by counsel for the plaintiff and the sixth defendant about the conduct of the other in the conduct of the litigation.
The explanation for the delay appears to be that, when the plaintiff pleaded his case he was not aware of the documents and communications upon which he now wishes to rely as particulars. He became aware of those matters when the first to fifth defendants gave discovery in October 2019, but did not then amend his particulars because he considered it unnecessary. Counsel for the plaintiff maintained that position when he referred to exhibit 521 in the course of his opening submissions and moved to amend his particulars only when I ruled that he could not rely upon exhibit 521 in support of his contention that the defendants authorised, approved, intended or adopted the content of, the publication of the first ASX Release to the ASX without amending his particulars. I have ruled that the plaintiff was wrong in his contention that he was entitled to rely upon the communications and other matters he now seeks to rely upon in support of his plea, without pleading those matters in his particulars. However, the plaintiff's failure to seek to amend his particulars earlier was not a deliberate tactical decision to run a different case, nor does it constitute or evidence a lack of good faith.
This is a very different case to Aon Risk. In that case, the amendment had not been sought earlier as the result of a deliberate tactical decision by the plaintiff and the application to amend necessitated vacation of the trial dates. The delay in proposing the amendment in Aon Risk demanded an explanation and none was given. In this case the plaintiff has always, after becoming aware of them, intended to rely upon the matters in the proposed particulars as part of his case that Mr Pamensky authorised, approved, intended, or adopted the content of, the Releases.
In the circumstances of this case, the critical factors are whether the amendments cause any relevant prejudice to the defendants, and if so the extent of that prejudice; and whether they will necessitate a delay in the resolution of the case and waste any court resources.

Prejudice to sixth defendant

The sixth defendant says that he would be prejudiced by the amendments. In his written submissions the sixth defendant says that by his amendments the plaintiff seeks to change the basis upon which the plaintiff says the sixth defendant is liable for the publications to, and republications by, the ASX. The sixth defendant says that the amendments advance an entirely different case to that which had previously been put against the sixth defendant.
The amendments sought are important and significant. However, they do not, as was the case for example in Aon Risk, raise a completely different case.
The first set of amendments are to add particulars of [40(b)] of the statement of claim which gives particulars of the plea that Mr Pamensky authorised and approved, alternatively adopted, the content of the first ASX Release.
Paragraph 35 pleads that eSense published the Release to the ASX Market Announcements Office (MAO). Paragraphs 36 and 38 plead the republication of the Release. Paragraph 36 pleads that the MAO released the Release on the MAP and it was thereby republished to persons who accessed it and downloaded it from the ASX website. Paragraph 38 pleads that eSense republished the Release to persons who downloaded it from eSense's website.
Paragraphs 37 and 39 respectively plead that the republication by ASX on the MAP and by eSense on its website is the intended or the natural and probable consequence of the publication of the Release to the ASX.
Paragraph 40 then pleads that each of the defendants authorised and approved, and therefore intended, publication of the Release to the ASX, republication on the MAP and republication on eSense's website. Subparagraph 40(b) pleads that Mr Pamensky's authorisation and approval, alternatively adoption, of the content of the first ASX Release may be inferred from the matters there particularised.
The amendment seeks to add further matters from which Mr Pamensky's authorisation, approval or adoption of the first ASX Release is to be inferred. The matters consist of Mr Pamensky sending or receiving emails or drafts of the Release, amending drafts of the Release, speaking about the Release, lodging drafts of the Release with the MAO and that he did not express disapproval of the Release or his name being affixed to it.
The plaintiff's case, or the case the plaintiff wishes to put, is that each of the defendants, including Mr Pamensky, is liable for the publication to the ASX as a participant in the publication. The sixth defendant contends in effect that the plaintiff has not properly pleaded a case that Mr Pamensky is liable for the publication on the ground that he participated by being knowingly involved in the process of publication of the relevant words in the Release. The sixth defendant says that the plaintiff's case is, and should remain, confined to a case that he authorised the publication. In my view that is a false dichotomy.
The basic principle is that liability for publication extends to all those who take part in the commission of the tort.[6] All such participants are joint tortfeasors.[7] In Webb v Bloch,[8] Isaacs J discussed the concept of publication at common law:
The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.
[6] Webb v Bloch (1928) 41 CLR 331, 347 (Knox CJ), 363 - 365 (Isaacs J).
[7] Webb v Bloch, 359 (Knox CJ), 365 (Isaacs J).
[8] Webb v Bloch, 363 - 364; citing Folkard's Starkie on Slander and Libel (5th ed, 1891) 439.
Isaacs J discussed a number of authorities for the purpose of defining lability for publication at common law:[9]
In Parkes v Prescot[10] Giffard QC quotes from the second edition of Starkie: 'All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.' In R v Paine[11] it is held: 'If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.' A litter later, in R v Drake,[12] that law was reaffirmed. In The Queen v Cooper[13] Lord Denman CJ said: 'If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal.' In that case the defendant was indicted for 'publishing and causing to be published' the libel in question. The judgments show that all the defendant did was to authorise the publication of the libel, in law that he published it.[14]
[9] Webb v Bloch, 364.
[10] Parkes v Prescot (1869) LR 4 Ex 169, 173.
[11] R v Paine (1696) 5 Mod Rep 163; (1696) 87 ER 584.
[12] R v Drake (1706) 90 ER 1134.
[13] R v Cooper (1846) 8 QB 533; (1846) 115 ER 976.
[14] Webb v Bloch, 364.

Senior counsel for the sixth defendant appeared to submit that, by the amendments, the plaintiff seeks to advance an entirely different case. They submit that the plaintiff's existing case is that Mr Pamensky authorised the publication of the Release to the ASX, whereas the amendments advance a case that Mr Pamensky participated in the publication by exerting control over the publication. Senior counsel referred to Dank v Cronulla Sutherland District Rugby League Football Club Ltd[15] where Ward JA referred to the notion of control. However, her Honour made it clear that the trial judge had not 'applied some new form of control test' and it is appropriate to apply the test in Webb v Bloch, namely that, for there to be liability as a publisher of defamatory material, the defendant must in some way knowingly 'conduce' and be responsible for the publication complained of.[16]
[15] Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288.
[16] Dank [137].
The pleading is not elegant and in some respects is opaque. However, the statement of claim sufficiently pleads the case that Mr Pamensky, and indeed each of the other defendants, is liable for the publication as a person who participated in the publication to the necessary degree.
Various verbal formulae have been adopted to express the degree of participation in a publication necessary to render a person liable for the publication. In Webb v Bloch, Isaacs J referred to 'all who are in any degree accessory to the publication of a libel and by any means whatever conduce to the publication', 'all persons who concur, and show their assent or approbation' [to the publication], 'assisting and encouraging a man in the act' and 'the judgements show that all the defendant did was to authorise the publication of the libel, in law that he published it'.[17]
[17] Webb v Bloch, 364.
In his statement of claim, the plaintiff pleads that each of the defendants 'authorised and approved, and therefore intended, publication' and that Mr Pamensky's 'authorisation and approval, alternatively adoption, of the content of (the Release) may be inferred from [the matters particularised]'. For the reasons I have set out earlier, the pleading is and should be taken to be that the sixth defendant participated in the alleged publication and republications of the Release by acts and omissions which authorised, approved, intended or adopted the publications and republications.
The ultimate question for the court will be whether or not the plaintiff has established that the sixth defendant participated in the pleaded publication and republications such that he is liable for that publication and republications. Whether or not evidence of acts or omissions may be adduced in evidence will be determined by whether they are relevant to the plaintiff's plea that the sixth defendant authorised, approved, intended or adopted the publication of the Release to the ASX.
The addition of the proposed particulars is not the pleading of 'an entirely different case to that which has previously been put against the sixth defendant'. However, the question remains whether the addition of the particulars relevantly prejudices the sixth defendant and if so the extent of that prejudice.
The sixth defendant submitted that the amendments would cause him prejudice in three related ways. First, the sixth defendant will have to prepare for a different case than the case he has prepared to meet. Senior counsel for the sixth defendant submitted that he will now have to spend time addressing the plaintiff's reformulated case against Mr Pamensky when he would otherwise have been preparing for cross‑examination and undertaking other forensic tasks.
The further particulars essentially raise matters that are already in issue and were always going to be in issue in the trial. The further particulars raise 25 communications or other matters. Fifteen of those matters are addressed by Mr Pamensky in his witness outline. The remaining matters are five emails or communications sent or received by Mr Pamensky; an email containing a draft of the second ASX Release; Mr Pamensky participating in a teleconference to discuss the Position Letter; the publication of the second ASX Release on the MAP (which is not in contention); and assertions that Mr Pamensky did not express disapproval of the first and second ASX Releases, or his name being affixed to the Releases.
The raising of further particulars of the sixth defendant's participation in the publication of the ASX Release on the second day of the trial is apt to place some pressure and inconvenience upon Mr Pamensky and his legal representatives. However, twists and turns are commonplace in trials, and the amendments, whilst requiring some additional work by Mr Pamensky and his legal representatives, will not place an undue burden on them. Unfortunately, the trial has been delayed by the necessity of the court to adjourn because of COVID‑19 restrictions. One consequence of that unfortunate recess is that Mr Pamensky and his legal advisers will have additional time to consider the forensic consequences, if any, of the amendments and additional time to address them.
The sixth defendant submits that the evidence the sixth defendant intended to give may be different had the case now sought to be put been pleaded. As I have said, the matters raised by the additional particulars are matters addressed by Mr Pamensky in his witness outline, matters not in contention or matters that he may readily address. Senior counsel said that if the additional particulars had been pleaded, Mr Pamensky may elect not to give evidence. Mr Pamensky may still make that election.
In his written submissions the sixth defendant submitted that: 'Faced with a different claim, the sixth defendant may have been advised to have advanced different or additional defences.' In the course of argument, senior counsel was asked to identify the different or additional defences the sixth defendant might have advanced. He did not identify any. I am not satisfied that there is any prejudice to the sixth defendant arising from the sixth defendant not having advanced any different or additional defence that he might have if the additional particulars had been pleaded earlier.
Although the plaintiff's case against the sixth defendant could have been pleaded more clearly, the essential basis on which it is alleged that Mr Pamensky is liable for the publication and republication of the ASX Releases is sufficiently identified in the existing statement of claim. There is no ambush at trial. The further particulars do not cause any undue prejudice to the sixth defendant.
There is no suggestion that allowing the amendments will require an adjournment of the trial. The amendments will not cause the waste of any judicial resources or disadvantage other litigants.

Objections by first to fifth defendants

The proposed amendments are directed to the sixth defendant. Nevertheless, the first to fifth defendants objected to the amendments on the grounds that they affect, or may affect, the case against those defendants.
The first to fifth defendants submitted that the proposed additional particular that Mr Pamensky lodged the first ASX Release with the MAO alters, or may alter, the plea that eSense published the Release to the MAO. There is no substance in that objection. ESense is a corporation. It can only act through people. The pleading, with the additional proposed particulars, is to the effect that Mr Pamensky lodged the Release with the MAO in his capacity as an officer of eSense acting within his authority or acting as the company (as the directing mind and will of the company) and in his personal capacity. There is nothing conceptually wrong in such a case. It is a logical consequence of the decision in Salomon's case[18] that one person may function in dual capacities.[19]
[18] Salomon v Salomon & Co Ltd [1897] AC 22.
[19] Hamilton v Whitehead (1988) 166 CLR 121, 128 citing Lee v Lee's Air Farming Ltd [1961] AC 12, 26.
In the law of defamation, there is no principle that where a person causes a corporation to publish a matter or publishes a matter acting as the corporation, the person may not be personally liable for the publication. Indeed such a principle would be potentially a libeller's charter. Whether a person who lodged a document on behalf of a company, or as the company, also did so in his personal capacity depends on all the circumstances.
The first to fifth defendants object to some of the proposed additional particulars to [52] of the statement of claim. Those additional particulars are particulars of the plea that Mr Pamensky authorised and approved and therefore intended publication or republication of the second ASX Release. The first to fifth defendants submit that proposed particulars 2(i) and (ii) (1) ‑ (5) are irrelevant to the pleaded allegation that Mr Pamensky authorised, approved, adopted or intended the publication of the second ASX Release.
Proposed particular 2 (i) is:
On 13 February 2018 Mr Wright prepared and provided to Mr Cohen, Mr Malik, Mr Schneider and Mr Lace a draft announcement for eSense to release to the market.
The communication referred to is exhibit 304. Senior counsel for the first to fifth defendants says that exhibit 304 is not a draft announcement for release to the market, it is an email which attaches a document described by the email as 'Draft positioning release'. The plaintiff's case is that the 'Draft positioning release' is the source or origin of the second ASX Release.
Proposed particular 2(ii) is that the 'Draft positioning release' was updated from time to time as set out in that particular. The first to fifth defendants say that the updates referred to in particular 2(ii) (1) ‑ (5) are not relevant to the case that Mr Pamensky participated in the publication of the second ASX release as pleaded by the plaintiff. In particular, senior counsel referred to the alleged update by Mr Malik on 16 February 2018, which is exhibit 345. Exhibit 345 is an email from Mr Malik to Mr Lace, Mr Wright, Mr Schneider, Mr Cohen and Mr Karasik but not to Mr Pamensky. The email attaches an updated version of the Draft positioning release. The updates referred to in particular 2 (ii) must be considered together, not individually. This particular is about the provenance of the second ASX Release. The updates made by Mr Pamensky must be seen in that context. Updates in the chain between the original draft document and the final document are relevant notwithstanding that Mr Pamensky may not have been a party to a particular update.

Conclusion

It is desirable that the case be decided on its merits so as to do justice between the parties and preserve public confidence in the administration of justice. In this case, in the absence of any substantial prejudice to the defendants, that consideration outweighs the other relevant factors bearing on whether the amendment should be allowed. The plaintiff will have leave to make the amendments.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BR
Associate to the Honourable Justice Le Miere
8 FEBRUARY 2021