De Kauwe v Cohen [No 4]

Case [2022] WASC 35 (S)


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION: DE KAUWE -v- COHEN [No 4] [2022] WASC 35

CORAM:   LE MIERE J

HEARD:   28‑29 JANUARY, 8‑13 FEBRUARY, 12‑16 JULY, 2‑13 AUGUST, 19 AUGUST ‑ 3 SEPTEMBER, 14‑16 OCTOBER, 4‑5 NOVEMBER 2021 & 17 JANUARY 2022

DELIVERED          :   9 FEBRUARY 2022

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:

Defamation - Meaning - Publication of imputations in private and public company correspondence - Whether national and ordinary meaning of imputations defamatory of plaintiff

Defamation - Publication - Liability - Whether defendants authorised and intended publication - Whether defendants participated in publication and republication - Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 392 ALR 540

Defences - Qualified privilege - Common law qualified privilege - Whether publication pursuant to duty or interest to provide information to directors and officers of company who had corresponding duty to receive information - Whether publications constituted reply to attack - Statutory qualified privilege - s 30(3) Defamation Act 2005 (WA)

Defences - Qualified privilege - Malice - Whether publications actuated by improper motive or purpose - Whether privileged occasion exceeded

Damages - Assessment - Special damages - Whether plaintiff lost opportunity to remain director of companies - Whether plaintiff lost opportunity to acquire options as director of company - Whether plaintiff lost opportunity to become director of company

Damages - Assessment - General damages - Damage to reputation and professional standing - Aggravated compensatory damages - Whether conduct of defendants improper, unjustifiable, or lacking in bona fides - Whether damage amplified via 'grapevine effect'

Damages - Tort - Injurious falsehood - Whether imputations in certain publications were false - Whether exemplary damages necessary

Legislation:

Corporations Act 2001 (Cth)
Defamation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Plaintiff's claim partially successful

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)

Cases referred to in decision:

Adam v Ward [1917] AC 309

Ahmed…

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De Kauwe v Cohen [No 4] [2022] WASC 35 (S)
Case
[2022] WASC 35 (S)
Decision Date

CaseChat Overview and Summary

De Kauwe v Cohen [No 4] was a case heard by the Supreme Court of Western Australia, involving a dispute over costs. Dr de Kauwe, the plaintiff, sought to recover costs associated with legal services provided during the litigation. The defendants, Cohen, contested the amount of costs that could be recovered, arguing that they should be limited to the maxima specified in the relevant items or hourly rates within the applicable Costs Determination.

The primary legal issue before the court was whether the plaintiff's costs should be limited by the maxima specified in the relevant items or hourly rates within the applicable Costs Determination, or if the taxing officer should be directed to assess the costs without such limitations. The court needed to determine if the plaintiff had established a valid reason to deviate from the standard limits on costs, particularly in relation to the work done by Mr Bennett.

The court found that while the greater experience of taxing officers in relation to the cost of legal services generally made it more appropriate for the court to leave the determination of costs to the taxing officer, Dr de Kauwe had not provided a valid reason to raise the hourly rates for any practitioner or counsel other than Mr Bennett. Therefore, the court made orders allowing the taxing officer to assess the plaintiff's costs without reference to the limits, or, in respect of work done by Mr Bennett, hourly rates imposed by the relevant costs determination. This decision reflected the court's preference for the taxing officer to determine the appropriate costs based on the specific circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Generally speaking, the greater experience of taxing officers in relation to the cost of legal services makes it more appropriate for the court to merely direct that the bill be taxed without limitations imposed by the maxima specified in the relevant items or hourly rates within the applicable Costs Determination, instead leaving it to the taxing officer to determine whether in fact an award of costs reflecting a greater amount, or a greater number of hours, or a higher hourly rate than those allowed in the determination is justified. So, in this case, I will make orders which will allow the taxing officer to award costs reflecting the provision of services by a greater number of hours or at a higher hourly rate than those allowed in the relevant item, if the taxing officer considers such an award to be justified.[227] So, the orders will be that the plaintiff's costs be assessed without reference to the limits, or, in respect of work done by Mr Bennett, hourly rates imposed by the relevant costs determination.[227] Electricity Generation and Retail Corp t/as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [30] (Martin CJ). Dr de Kauwe has not established any reason for raising the hourly rates in respect of work done by any practitioner or counsel other than Mr Bennett.