Defamation - Publication - Liability - Whether defendant participated in the publication of defamatory matter so as to be liable as a publisher of that matter - Turns on own facts
Defamation - Damages - Special damages - Causation - Whether publication of defamatory material caused plaintiff to lose an opportunity to receive directors' fees and share options - Assessment of value of lost opportunity to receive share options - Turns on own facts
Costs - Calderbank offers - Admissibility of successful plaintiff's Calderbank offer to assist in proving the plaintiff unreasonably refused to accept the defendants' Calderbank offers - Whether trial judge erred in failing to find that the plaintiff's rejection of the defendants' Calderbank offers was not unreasonable - Whether trial judge erred in failing to consider whether any reasonable rejection of the defendants' Calderbank offers justified an order that the plaintiff pay the defendants' party/party costs from the date of the offer - Significance of an apology in defamation proceedings
Legislation:
Defamation Act 2005 (WA), s 34 Rules of the Supreme Court 1971 (WA), O 24A
Result:
Leave to appeal against costs orders granted Appeal and cross-appeals dismissed
Category: B
Representation:
Counsel:
Appellant
:
C P K Russell
First Respondent
:
M L Bennett and A J Tharby
Second Respondent
:
J D MacLaurin SC, M Curwood SC and J Moore
Third Respondent
:
J D MacLaurin SC, M Curwood SC and J Moore
Fourth Respondent
:
J D MacLaurin SC, M Curwood SC and J Moore
Fifth Respondent
:
J D MacLaurin SC, M Curwood SC and J Moore
Sixth Respondent
:
J D MacLaurin SC, M Curwood SC and J Moore
Seventh Respondent
:
F P Merenda
Solicitors:
Appellant
:
Wotton + Kearney Lawyers (Perth)
First Respondent
:
Bennett
Second Respondent
:
DLA Piper Australia - Perth
Third Respondent
:
DLA Piper Australia - Perth
Fourth Respondent
:
DLA Piper Australia - Perth
Fifth Respondent
:
DLA Piper Australia - Perth
Sixth Respondent
:
DLA Piper Australia - Perth
Seventh Respondent
:
Jackson McDonald
Case(s) referred to in decision(s):
Bauer Media Pty Ltd v Wilson (No 2)
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
AGLC
Wright v De Kauwe [No 2] [2024] WASCA 51
Case
[2024] WASCA 51
Decision Date
CaseChat Overview and Summary
In this case, the plaintiff, Wright, brought a defamation claim against De Kauwe, asserting that defamatory material published online about Wright caused him to lose an opportunity to receive directors' fees and share options. The trial court found in favour of Wright and awarded him damages, including special damages for lost fees and options. De Kauwe appealed, arguing that the trial court had erred in various aspects of its assessment of liability and damages, as well as in its consideration of costs.
The court examined whether De Kauwe was liable for the defamatory material as a publisher. The court noted that liability for publication in defamation cases depends on the specific circumstances of each case, and found that the trial court's decision was supported by the evidence. The court also considered whether the loss of the opportunity to receive directors' fees and share options was directly caused by the publication of the defamatory material. The court found that the trial court's assessment of the value of the lost opportunity was appropriate, given the evidence presented.
In relation to costs, the court considered whether the trial judge erred in failing to find that Wright's rejection of De Kauwe's Calderbank offers was unreasonable. The court held that the trial judge did not err in this regard, as the evidence supported the finding that Wright's rejection was reasonable. The court also examined whether the trial judge erred in failing to consider whether any reasonable rejection of the Calderbank offers justified an order for Wright to pay De Kauwe's party/party costs from the date of the offer. The court found that the trial judge's failure to make such a finding did not amount to an error. Finally, the court noted the significance of an apology in defamation proceedings and held that an apology may be relevant to the assessment of damages and costs.
The appeal was dismissed, and the trial court's orders for damages and costs were upheld.