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De Kauwe v Cohen [No 4]

De Kauwe v Cohen [No 4]

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Case Copied 9 February 2022 73 min read

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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…

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.

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Details

Case: [2022] WASC 35
Decision Date

CaseChat Overview and Summary

The plaintiff, Dr de Kauwe, was a director of eSense Lab Limited, a life sciences research and development company. The first to fifth defendants were also directors of eSense Lab Limited. The sixth defendant was the company secretary and the seventh defendant was an advisor to a company that provided media and investor relations services to eSense Lab Limited. Between 5 February and 21 March 2018, several letters, notices, emails and ASX announcements were published which Dr de Kauwe alleged defamed him. The first to fifth defendants admitted that they published some but not all the publications. Mr Pamensky and Mr Wright deny that they published any of the publications. Dr de Kauwe claims he has suffered loss and damage because of the defamatory publications and claims damages, aggravated damages and special damages. Dr de Kauwe also claims that two of the publications were false statements of and concerning his business as a director of a listed public company and a corporate advisor and claims damages, including exemplary damages, for the tort of injurious falsehood. The defendants deny each allegation pleaded by Dr de Kauwe in support of his claim for damages for injurious falsehood. The court found that Mr Saad is liable to Dr de Kauwe in defamation for publishing the 5 February Letter. The court assessed damages of $10,000. The court found that Mr Cohen is liable to Dr de Kauwe in defamation for publishing the 15 February Letter. The court assessed damages of $20,000. The court found that all the defendants, except Mr Wright, are liable to Dr de Kauwe for publishing the First ASX Announcement. The court assessed ordinary compensatory damages of $40,000 against the first to fifth defendants and Mr Pamensky jointly. The court found that all the defendants are liable to Dr de Kauwe for publishing the Second ASX Announcement. The court assessed ordinary compensatory damages of $120,000 against all the defendants jointly. The court assessed aggravated damages of $30,000 against the first to fifth defendants jointly in respect of the First ASX Announcement and the Second ASX Announcement. The court awarded Dr de Kauwe damages for economic loss of $31,500 in respect of loss of fees as a director of eSense for which all of the defendants are jointly liable. The court awarded Dr de Kauwe damages for economic loss of $79,380 in respect of loss of fees as a director of Race Oncology Ltd for which all of the defendants are jointly liable. The court awarded Dr de Kauwe damages for economic loss of $200,000 in respect of loss of the opportunity to receive options to acquire shares in Race Oncology Ltd and to realise the shares for which all of the defendants are jointly liable. The court found that Dr de Kauwe made out the tort of injurious falsehood against each of the defendants but declined to award any damages in respect of that tort.

Orders