De Kauwe v Cohen [No 4]

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.