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:
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- Case
- [2022] WASC 35
- Decision Date
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