De Kauwe v Cohen [No 2] - [2021] WASC 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   DE KAUWE -v- COHEN [No 2] [2021] WASC 248
CORAM:   LE MIERE J
HEARD:   28 JANUARY - 13 FEBRUARY 2021 (8 DAYS), 12 ‑ 16 JULY 2021
DELIVERED          :   27 JULY 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 defence - Whether amendment resolves real issues in dispute - Whether adequate explanation for delay in application to amend - Whether amendment causes adjournment of trial - Whether amendment causes undue prejudice - Rules of the Supreme Court 1971 (WA) O 21 r 5 - Application refused

Legislation:

Defamation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application to amend defence refused

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)

Cases referred to in decision:

ACN002693843 Box Pty Ltd v Australian Corrugated Box Co Pty Ltd [2013] VSCA 223
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Byrne v Deane [1937] 1 KB 818
Cropper v Smith [1884] 26 Ch D 700, CA
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127
Webb v Bloch (1928) 41 CLR 331

LE MIERE J:

Summary

The first to fifth defendants applied to amend [45] of their defence in accordance with the minute of proposed first to fifth defendants' sixth amended defence attached to the affidavit of Simon David Hubbard affirmed on 12 July 2021. In its present form, [45] is:
Save to admit that the Defendants authorised and approved publication of the Second ASX Announcement to the ASX and on eSense's website, the Defendants do not admit the allegations pleaded in paragraph 40 of the Claim.
'Defendants' are defined to mean the first to fifth defendants.
The proposed amendment is to substitute 'the First, Second and Fourth Defendants' for 'the Defendants' and to substitute the 'First ASX Announcement' for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Kauwe v Cohen [No 2]

Details

AGLC: De Kauwe v Cohen [No 2] [2021] WASC 248
Case: [2021] WASC 248
Decision Date

CaseChat Overview and Summary

In De Kauwe v Cohen [No 2], the Supreme Court of Western Australia was required to determine whether the first to fifth defendants could amend their defence to withdraw admissions regarding their authorisation and approval of the publication and republication of the First ASX Announcement. The plaintiff, Brendan James De Kauwe, had brought a defamation action against several defendants over the publication of an announcement made by eSense, a company, to the Australian Securities Exchange (ASX) and its website. The first to fifth defendants had admitted in their defence that they authorised and approved the publication of the First ASX Announcement, but they sought to amend their defence to withdraw these admissions.

The court considered whether the amendment would resolve the real issues in dispute, whether there was an adequate explanation for the delay in applying for the amendment, and whether the amendment would cause undue prejudice to the plaintiff. The court held that the amendment would not resolve the real issues in dispute, as the defendants' admissions were not necessarily inconsistent with their witness outlines. The court also found that the defendants had not provided an adequate explanation for the delay in applying for the amendment. Furthermore, the court held that allowing the amendment would cause irremediable prejudice to the plaintiff, as it would result in the failure of the plaintiff's claim against the third and fifth defendants in relation to the First ASX Announcement.

The court refused the application to amend the defence, and the final orders of the court were that the application of the first to fifth defendants to amend [45] of their defence to withdraw their admission that they authorised and approved publication of the First ASX Announcement to the ASX and on eSense's website was refused.

Orders