Wright v De Kauwe [No 2] - [2024] WASCA 51

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WRIGHT -v- DE KAUWE [No 2] [2024] WASCA 51
CORAM:   BUSS P
MITCHELL JA
LUNDBERG J

HEARD:   10 - 12 OCTOBER 2023
DELIVERED          :   17 MAY 2024
FILE NO/S:   CACV 25 of 2022
BETWEEN:   MATTHEW WRIGHT
Appellant
AND
BRENDAN JAMES DE KAUWE
First Respondent
HAIM COHEN
Second Respondent
ILAN SAAD
Third Respondent
GALIT ASSAF SHENHAR
Fourth Respondent
ERAN GILBOA
Fifth Respondent
BENJAMIN KARASIK
Sixth Respondent
IAN CRAIG PAMENSKY
Seventh Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: DE KAUWE -v- COHEN [No 4] [2022] WASC 35
File Number            :   CIV 1512 of 2018
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: DE KAUWE -v- COHEN [No 4] [2022] WASC 35 (S)
File Number            :   CIV 1512 of 2018

Catchwords:

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) [2018] VSCA 154; (2018) 56 VR 674
Bennett v Talacko [2020] VSCA 99
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Cassell & Co Ltd v Broome [1972] AC 1027
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Civic Video Pty Ltd v Paterson [2016] WASCA 69
Commonwealth of Australia v Gretton [2008] NSWCA 117
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Dank v Whittaker (No 1) [2013] NSWSC 1062
Dar al Arkan Real Estate Development v Al Refai [2013] EWHC Civ 1630
Defteros v Google Inc [2017] VSC 158; (2017) 54 VR 592
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dupois v Queensland Television Ltd [2015] QCA 160
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346
Falkingham v Hoffmans (a firm) [2014] WASCA 140; (2014) 46 WAR 510
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336
Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
G v O [2018] WASCA 211; (2018) 53 WAR 393
Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Giorginis v Kastrati (1988) 49 SASR 371
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
Google LLC v Defteros [2022] HCA 27; (2022) 96 ALJR 766
H & Q Café Pty Ltd v Melbourne Café Pty Ltd [2023] VSCA 200
Hammond Worthington v Da Silva [2006] WASCA 180
House v The King [1936] HCA 40; (1936) 55 CLR 499
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [No 2] [2008] NSWCA 85
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
McCartney v Orica Investments Pty Ltd [2011] NSWCA 337
McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353
McKay v Commissioner of Main Roads (No 7) [2011] WASC 223 (S); (2011) 185 LGERA 118
Miller v Jennings (1954) 92 CLR 190
Minchin v Public Curator of Queensland [1965] ALR 91
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223
Nangus Pty Ltd v Charles Donovan Pty Ltd (in liq) [1989] VR 184
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Parkes v Prescott (1869) LR 4 Ex 169
Poland v Hedley (No 5) [2023] WASC 294
Rayney v The State of Western Australia [No 4] [2022] WASCA 44
Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417
Rikard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481
Roberts v Prendergast [2013] QCA 89
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Searle v Commonwealth of Australia [2019] NSWCA 127; (2019) 100 NSWLR 55
Selecta Homes and Building Company Pty Ltd v Advertiser‑News Weekend Publishing Company Pty Ltd [2001] SASC 140; (2001) 79 SASR 451
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Singer v Berghouse (1994) 181 CLR 201
Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Talacko v Talacko [2021] HCA 15; (2021) 272 CLR 478
Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15; (2014) 46 WAR 219
Warren v Coombes (1979) 142 CLR 531
Webb v Bloch (1928) 41 CLR 331
Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd [2021] QCA 8; (2021) 7 QR 1
Willis v The Commonwealth [1946] HCA 22; (1946) 73 CLR 105
Wright v de Kauwe [2023] WASCA 42

Table of Contents

Buss P

The appeal and the cross‑appeals

The outcome of the appeal and the cross‑appeals

Dr de Kauwe's cross‑appeal: Dr de Kauwe's pleaded case at trial

Dr de Kauwe's cross‑appeal: Mr Wright's and the second to seventh respondents' pleaded case at trial

Dr de Kauwe's cross‑appeal: the trial dates and the judgment delivery date

Dr de Kauwe's cross‑appeal: Dr de Kauwe's written outline of opening submissions at the trial

Dr de Kauwe's cross‑appeal: the second to sixth respondents' written outline of opening submissions at the trial

Dr de Kauwe's cross‑appeal: Dr de Kauwe's written outline of closing submissions at the trial

Dr de Kauwe's cross‑appeal: the second to sixth respondents' written closing submissions at the trial

Dr de Kauwe's cross‑appeal: the second to sixth respondents' supplementary written outline of closing submissions at the trial

Dr de Kauwe's cross‑appeal: counsel for Dr de Kauwe's oral closing submissions at the trial

Dr de Kauwe's cross‑appeal: the second to sixth respondents' written submissions in reply at the trial

Dr de Kauwe's cross‑appeal: Dr de Kauwe's written response to the second to sixth respondents' written supplementary closing submissions at the trial

Dr de Kauwe's cross‑appeal: the evidence as to Race Oncology's share price

Dr de Kauwe's cross‑appeal: other evidence possibly bearing on Race Oncology's share price

Dr de Kauwe's cross‑appeal: the trial judge's reasons

Dr de Kauwe's cross‑appeal: the sole ground of the cross‑appeal

Dr de Kauwe's cross‑appeal: counsel for Dr de Kauwe's submissions

Dr de Kauwe's cross‑appeal: applicable legal principles

Dr de Kauwe's cross‑appeal: its merits

Conclusions

Mitchell JA

Summary

Background

Is Mr Wright a publisher of the Second ASX Announcement?

Publication: general principles

Trial judge's findings

Mr Wright's participation in initial discussions

Significance of Mr Wright's initial participation

Mr Wright's participation from 14 January 2018 to 21 March 2018

No objection to the publication of the Second ASX Announcement

Conclusion as to publication of the Second ASX Announcement

Loss of eSense director's fees

Trial judge's findings

Director defendants' submissions

Disposition

Loss of valuable opportunity to acquire Race Oncology share options and shares

Trial judge's findings

Director defendants' and Mr Pamensky's submissions

Disposition

A further issue sought to be raised by the director defendants

Value of loss of opportunity to acquire Race Oncology share options and shares

General principles

Standard of appellate review

Trial judge's findings

Dr de Kauwe's submissions

Defendants' submissions

Disposition

Whether options would have been offered

When options would have been exercised

Whether the options would have been exercised

Likely value of Race Oncology shares on exercise of options

Likely value which would have been realised from the shares

No error in the trial judge's approach

Adequacy of trial judge's reasons

Conclusion as to value of lost opportunity

Admissibility of Dr de Kauwe's Calderbank offer

Background

Relevance of Dr de Kauwe's Calderbank offer

Waiver

Conclusion as to admissibility of Dr de Kauwe's offer

Whether trial judge erred in the exercise of the costs discretion

Application to amend grounds of appeal

The defendants' Calderbank offers

Trial judge's approach

Value of the settlement sums

The apology

Uncertainty as to terms of some offers

Timing of the offers and period for which they were open

Costs and Calderbank offers: general principles

Alleged error as to the significance of an apology

Alleged error as to the value of offer of compensation and costs

Whether error should be inferred

Party/party costs

Mr Wright's and Mr Pamensky's position

Conclusion as to costs grounds

Orders

Lundberg J

BUSS P:

The appellant (Mr Wright) appeals against a judgment of Le Miere J after a trial of the first respondent's (Dr de Kauwe's) action for defamation.
Dr de Kauwe's action was brought against Mr Wright, the second to sixth respondents (the director defendants) and the seventh respondent (Mr Pamensky).
Dr de Kauwe and the director defendants were directors of eSense Lab Ltd (eSense). Mr Pamensky was the company secretary of eSense.
Dr de Kauwe was also a director of Race Oncology Ltd (Race Oncology).
The trial judge held that Dr de Kauwe had been defamed by imputations in two letters and two announcements to the Australian Securities Exchange (ASX).
The letters comprised a letter of 5 February 2018 from the second, third and fifth respondents to Dr de Kauwe that was published by the third respondent to Mr Pamensky and Quentin Megson and a letter of 15 February 2018 from the second respondent to Dr de Kauwe that was, relevantly, published by the second respondent to Mr Pamensky and Mr Megson.
The announcements comprised an announcement by eSense to the ASX of 13 March 2018 published by the director defendants and Mr Pamensky (but not by Mr Wright) (the First ASX Announcement) and an announcement by eSense to the ASX of 21 March 2018 published by Mr Wright and the second to seventh respondents (the Second ASX Announcement).
After the defamatory statements were published:
(a)Dr de Kauwe was not re‑elected as a director at eSense's 2017 annual general meeting on 29 March 2018; and
(b)Dr de Kauwe was asked to resign as a director of Race Oncology.
His Honour awarded Dr de Kauwe general damages, special damages, aggravated damages and interest.
The award included special damages for Dr de Kauwe's loss of an opportunity to acquire share options in Race Oncology and exercise those options.

The appeal and the cross‑appeals

Mr Wright has appealed against the trial judge's finding that he was liable to Dr de Kauwe for publishing the Second ASX Announcement and against his Honour's orders as to costs.
Dr de Kauwe has cross‑appealed against his Honour's assessment of special damages for Dr de Kauwe's lost opportunity to acquire share options in Race Oncology and exercise those options as a result of the publication by Mr Wright and the second to seventh respondents of the First ASX Announcement and the Second ASX Announcement.
The second to sixth respondents have cross‑appealed against his Honour's award of special damages to Dr de Kauwe and his Honour's orders as to costs.
The seventh respondent has cross‑appealed against his Honour's award of special damages to Dr de Kauwe and his Honour's orders as to costs.

The outcome of the appeal and the cross‑appeals

I agree with Mitchell JA, for the reasons he gives, that:
(a)Mr Wright and the second to seventh respondents should have leave to appeal against the trial judge's orders as to costs (being orders 6, 7 and 8 made by his Honour on 16 February 2022);
(b)Mr Wright's appeal should be dismissed;
(c)the second to sixth respondents' cross‑appeal should be dismissed; and
(d)the seventh respondent's cross‑appeal should be dismissed.
I also agree with Mitchell JA that Dr de Kauwe's cross‑appeal should be dismissed. However, I will state my own reasons for that conclusion.

Dr de Kauwe's cross‑appeal: Dr de Kauwe's pleaded case at trial

In para 57 of the final version of his statement of claim filed 23 August 2021 (the Statement of Claim), Dr de Kauwe pleaded, in essence, that by reason of the publication of the defamatory imputations, in early April 2018 Dr de Kauwe was asked by the Board of Race Oncology to resign as a director of Race Oncology and on 4 April 2018 Dr de Kauwe so resigned.
In para 58 of the Statement of Claim, Dr de Kauwe pleaded that he had thereby suffered specific loss and damage. The particulars of the specific loss and damage included, relevantly, that 'Dr de Kauwe would have received and continued to receive a remuneration package from Race Oncology including … performance rights and options'.
In para 59 of the Statement of Claim, Dr de Kauwe pleaded that, by reason of the facts, matters and circumstances set out at paras 57 and 58 of the Statement of Claim, Dr de Kauwe claimed special damages.
On 21 December 2020, Dr de Kauwe filed and served further and better particulars of damages in relation to para 58 of the Statement of Claim. The further and better particulars were, relevantly, as follows:
(db)On 14 October 2019, Race Oncology gave notice of a general meeting to be held 22 November 2019 to consider resolutions including to approve the issue of options to directors as part of their directors' remuneration.
(dc)The options proposed to be issued to Race Oncology's directors were exercisable at $0.25 and were to expire 2 years from the date of issue.
(dd)A general meeting of Race Oncology's shareholders was held on 22 November 2019 at which the resolutions for the issue of options to directors were passed and the options were subsequently issued to the directors of Race Oncology.
(de)Had Dr de Kauwe remained a director of Race Oncology he would have been entitled to receive 1 million options to purchase Race Oncology ordinary shares.
(df)As at 18 December 2020:
(i)the closing price for Race Oncology's ordinary shares was $1.82; and
(ii)the approximate net value of the options Dr de Kauwe would have held was $1.57 million.
(dg)Dr de Kauwe claims the net value of the Race Oncology options to be assessed as at the date of judgment.

Dr de Kauwe's cross‑appeal: Mr Wright's and the second to seventh respondents' pleaded case at trial

In their defences, Mr Wright and the second to seventh respondents either denied or did not admit the allegations in paras 57, 58 and 59 of the Statement of Claim.

Dr de Kauwe's cross‑appeal: the trial dates and the judgment delivery date

The trial occurred on various dates between 28 ‑ 29 January, 8 ‑ 13 February, 12 ‑ 16 July, 2 ‑ 13 August, 19 August ‑ 3 September, 14 ‑ 16 October, 4 ‑ 5 November 2021 and on 17 January 2022. The trial judge reserved judgment. His Honour published his reasons on 9 February 2022. His Honour made formal orders in accordance with his reasons on 16 February 2022.

Dr de Kauwe's cross‑appeal: Dr de Kauwe's written outline of opening submissions at the trial

In his written outline of opening submissions at the trial filed 18 January 2021, counsel for Dr de Kauwe asserted [138]:
As a result of the defamatory ASX releases, Dr de Kauwe was asked to resign as a director of Race Oncology … [H]ad Dr de Kauwe remained a director, he would have been entitled to receive 1 million options to purchase Race Oncology ordinary shares which were allotted to directors of Race Oncology at their general meeting on 22 November 2019.

Dr de Kauwe's cross‑appeal: the second to sixth respondents' written outline of opening submissions at the trial

In their written outline of opening submissions at the trial filed 24 January 2021, counsel for the second to sixth respondents submitted that Dr de Kauwe's assertion that he would have received additional options if he had remained a director of Race Oncology on 22 November 2019 was speculative and, in any event, contingent on a number of events which might occur in the future [51]. It was also submitted that there were further complications, being that, at best, the options would have to have been exercised and Dr de Kauwe would have to show 'what their actual value, as shares, [was] (if they [were] not realised, the value of them is in question)' [52].

Dr de Kauwe's cross‑appeal: Dr de Kauwe's written outline of closing submissions at the trial

In his written outline of closing submissions at the trial filed 29 September 2021, counsel for Dr de Kauwe noted that one aspect of Dr de Kauwe's claim for special damages concerned the fact that Dr de Kauwe did not receive the share options that were issued to Mr Chris Ntoumenopoulos, who was a director of Race Oncology [505].
It was submitted in relation to the evidence of Dr William Garner (who was a founder of Race Oncology, its chairman until 6 March 2020 and a non‑executive director until 28 October 2020) [516] ‑ [518]:
Dr Garner gave compelling evidence that had Dr de Kauwe been a director at the time he would have received 1,000,000 options that were resolved to be issued to Mr Chris Ntoumenopoulos.
These options were and are 'in the money'. As at 5 February 2021, the share price was $2.32 with an exercise price of $0.25, the options would be worth $2.07 million ($2.32 ‑ $0.25 x 1,000,000 options). As damages are to be assessed at the date of judgment (Johnson v Perez (1988) 166 CLR 351).
The attempts raised in cross‑examination of Dr Garner to suggest that Dr de Kauwe's directorship was coming to a 'natural end' and that the board of Race Oncology was limited in number and the appointment of Dr John Cullity meant that Dr de Kauwe would not have been asked to continue as a director, were flatly rejected by Dr Garner (See for example, Tr 12/07/2021, pp 1151 ‑ 1160).

Dr de Kauwe's cross‑appeal: the second to sixth respondents' written closing submissions at the trial

In their written closing submissions at the trial filed 14 October 2021, counsel for the second to sixth respondents submitted that Dr de Kauwe purportedly claimed special damages 'on the basis of actual and entire losses to be calculated at the full maximum value (ie. that they are not to be assessed as losses of opportunity, or loss [of] a chance)'. It was asserted that this was not a proper basis upon which to claim special damages 'given the significant contingencies and uncertainties that arise in respect to the claimed damages' [525].

Dr de Kauwe's cross‑appeal: the second to sixth respondents' supplementary written outline of closing submissions at the trial

In their supplementary written outline of closing submissions at the trial filed 20 October 2021, counsel for the second to sixth respondents submitted that:
(a)Dr de Kauwe had presented no evidence as to the value of the options that he alleged he would have received in Race Oncology [14];
(b)the only evidence as to the value of the options was recorded in Race Oncology's annual report for the financial year ended 30 June 2020. The annual report recorded the value of the 1,000,000 options issued to each of the relevant directors as $54,208 [15]; and
(c)beyond the value recorded in the annual report, the court could not safely conclude that the options had any material value at the relevant times [16].
It was further submitted that Dr de Kauwe's claim in respect of the options was, in any event, for the loss of an opportunity. Any award of damages in respect of that aspect of Dr de Kauwe's claim required the trial judge to have regard to the probability of Dr de Kauwe 'realizing the opportunity'; 'the maximal value of the opportunity'; and 'the value of any contingencies, which need to be factored against the value of the opportunity' [17].

Dr de Kauwe's cross‑appeal: counsel for Dr de Kauwe's oral closing submissions at the trial

In his oral closing submissions made at the trial on 5 November 2021, counsel for Dr de Kauwe referred to evidence that as at 8 February 2021 the price at which shares in Race Oncology were trading on the ASX was $2.67 (ts 4511).
Counsel for Dr de Kauwe referred to Dr de Kauwe's evidence that in February 2021 he purchased Race Oncology shares. Dr de Kauwe paid $2.67 for each of those shares (ts 4511).
His Honour asked counsel for Dr de Kauwe what calculation his Honour should make in assessing Dr de Kauwe's loss in relation to the options. In particular, his Honour said '[d]o … I look at when was the highest price the shares ever reached … [a]nd say, well that's when he would have exercised them … [or do I find] the lowest price' (ts 4511).
On 5 November 2021, the following exchange then occurred between counsel for Dr de Kauwe and his Honour (ts 4512 ‑ 4513):
THARBY, MR:   Dr de Kauwe gave evidence, if I recall, that whilst he was a director of entities, he wouldn't sell his equity.
LE MIERE J:   Right.
THARBY, MR:   If he held options that were in the money and about to expire, it [is] reasonable to assume that [Dr de Kauwe] wouldn't just let them expire. [He] would exercise them and become a shareholder. And he would have held the shares. So if your Honour finds that he still would [have been] in his position as a director, then we would say he would still hold them. The difficulty we then have is fixing a time for valuation. And we say that the time of valuing that ‑ the options.
LE MIERE J:   [Valuing] what? The options.
THARBY, MR:   Yes. The date of judgment.
LE MIERE J:   [W]ere the options traded?
…
THARBY, MR:   They're not listed options. …
…
LE MIERE J:   All right. They're not listed options. So all we know is the price of shares, is it?
THARBY, MR:   Well, the price of the shares. We know that Dr de Kauwe didn't have to [pay] cash to exercise them. …
LE MIERE J:   Why is that?
THARBY, MR:   [There is] a cashless option facility. Where, in effect, … you don't pay that. But … what you would have paid comes off the value of the shares.
LE MIERE J:   Okay. … Your submission is he would have exercised the options if they were about to expire and they were in the money.
THARBY, MR:   Yes.
LE MIERE J:   Now, if he had been issued those one million shares, what was the term … of the options? Was it two years?
THARBY, MR:   I think it was two years. So we would be coming up … to expiry.
LE MIERE J:   So what do I do about that? At the time that Dr de Kauwe gave evidence ‑ I can't remember when it was now.
…
THARBY, MR:   In February.
LE MIERE J:   February ‑ to provide … evidence of a price. But on his evidence, he wouldn't have exercised the option[s] at that time.
THARBY, MR:   No.
Next, his Honour asked counsel for Dr de Kauwe what was Dr de Kauwe's 'loss' in respect of the options (ts 4513). Counsel responded that 'the value would … be the [difference] between the share price and the exercise price, because, in effect, you can obtain a valuable asset for [an] undervalue' (ts 4513). His Honour then observed that he would need 'a bit of persuasion about that' because the options were not listed. They were 'not tradeable' (ts 4513).
A little later, the following exchange occurred between counsel for Dr de Kauwe and the trial judge (ts 4514 ‑ 4520):
THARBY, MR:   [Dr de Kauwe] wouldn't have sold the shares if he remained a director. He would have held the shares. But he would still have shares that are worth millions of dollars.
LE MIERE J:   Well, were at that time.
THARBY, MR:   Were at that time. …
LE MIERE J:   Don't know what they're worth today or what they will be worth if and when he sells them.
THARBY, MR:   What we have suggested in our written closings is that we might seek to reopen for the purposes only of establishing a point in time valuation of those shares.
LE MIERE J:   What do you mean by that? What point in time?
THARBY, MR:   Well, as at the date of judgment, we say in accordance with the principles in Johnson v Perez, I think that's when we assess the value of the loss. So we look at the share price at that time, or thereabouts.
…
LE MIERE J:   Well, tell me again. Say when I have got my pencil out, what are the sums I do?
THARBY, MR:   We say the sum that your Honour would do is the share price, less the options exercise price ‑ ‑ ‑
LE MIERE J:   As at what date?
THARBY, MR:   We say the date of judgment.
LE MIERE J:   I would have to give you leave to reopen and give evidence about the price [at] the date of judgment.
THARBY, MR:   Yes. And if your Honour found that it was the date of trial ‑ ‑ ‑
LE MIERE J:   And what's the evidence about the price at the date of trial?
THARBY, MR:   That's the evidence that Dr de Kauwe gave that he ‑ ‑ ‑
LE MIERE J:   What was that?
THARBY, MR:   ‑ ‑ ‑ purchased shares. That's exhibit 843. …
LE MIERE J:   ... So it's $2.67, is it?
THARBY, MR:   So the unit price is $2.67. So the exercise [of an] option to acquire a share of 25 cents is … pay 25 cents for an asset worth $2.67. Makes $2.42 on it. And if you multiply that by a million, it's a significant sum.
…
LE MIERE J:   … [I]f there's no evidence at all when he would or wouldn't have exercised the options, why do I assume he would have waited until they were about to expire ‑ ‑ ‑
THARBY, MR:   Well ‑ ‑ ‑
LE MIERE J:   ‑ ‑ ‑ to exercise them? He might have exercised them ‑ ‑ ‑
THARBY, MR:   (indistinct)
LE MIERE J:   ‑ ‑ ‑ when the price went up to 35 cents.
THARBY, MR:   We say that doesn't matter …
LE MIERE J:   Well, he would have only made 10 cents on [the] options.
THARBY, MR:   He would have made 10 cents, but he would have continued to hold them.
…
THARBY, MR:   He would have continued to hold the shares.
LE MIERE J:   Again, why do I assume that?
…
THARBY, MR:   That was his evidence.
LE MIERE J:   Well, if I'm acting purely on a rational [basis], I would have thought you would exercise the option if you were going to sell the share. There's no point in exercising the option if you're not going to sell the share … during the term of the option.
THARBY, MR:   ... Yes, you might sit there and hold options, [or] if they were to expire after a resignation and you resigned, you might then exercise them.
LE MIERE J:   Yes, I can see the point … if they're about to expire … and they're in the money you would exercise them. But during … the life of the options … I would have thought, rationally, you would only exercise the option if it's in the money and you intend to sell the share. If it's in the money but you don't intend to sell the share, why exercise the option? Just wait and see.
THARBY, MR:   But you would still hold the option that ‑ ‑ ‑
LE MIERE J:   Well, that's right.
THARBY, MR:   ‑ ‑ ‑ had some value.
LE MIERE J:   And that's why I'm saying … what the person is likely to do is irrelevant.
THARBY, MR:   Yes. Well ‑ ‑ ‑
LE MIERE J:   Because … it's likely the holder would have held the options until they almost expired when they were $2.70, that's a different scenario if I attribute to the person the intention to … exercise the option as soon as they were in the money and sell the share. In which case, he might have only made 10 cents a share or something.
THARBY, MR:   Dr de Kauwe's evidence was that he wouldn't have sold the options ‑ ‑ ‑
LE MIERE J:   Well, that's what I'm coming to.
THARBY, MR:   ‑ ‑ ‑ or any securities whilst he remained a director of a company.
LE MIERE J:   Right. He did give that evidence, did he?
THARBY, MR:   Yes.
…
LE MIERE J:   All right.
…
THARBY, MR:   So [Dr de Kauwe] wouldn't have exercised [the options] to sell … the shares while he remained a director. If he was no longer a director for a particular reason, that wouldn't be his practice. Certainly if they were about [to] expire and they were in the money. We say that the only reasonable inference is that someone would exercise them, especially where they don't have to outlay the money.
Counsel for Dr de Kauwe concluded his submissions on Dr de Kauwe's claim in relation to the options by stating (ts 4522 ‑ 4523):
[T]hese options have a value ascertainable at a particular date because they're in the money. It's a very straightforward calculation, we would say, at a share price. We've now proven the value at the date of trial. If your Honour so holds that that's the value to be attributed and the way in which it's to be calculated, then that's the value that should be applied.
If it's the date of judgment, then the absence of agreement between the parties as to what the then-trading price of the shares is, then there might need to be a document tendered for … that limited purpose.

Dr de Kauwe's cross‑appeal: the second to sixth respondents' written submissions in reply at the trial

In their written submissions in reply at the trial filed 10 January 2022, counsel for the second to sixth respondents submitted that Dr de Kauwe's alleged losses in respect of the Race Oncology options ought to be assessed 'as at the date of the [crystallisation] of the loss (which would in this case be the date upon which [Dr de Kauwe] resigned as a director of Race Oncology)' [45]. It was also submitted that if the trial judge was to depart from that position, the departure must be 'necessary' to provide adequate compensation [45].
Counsel argued that Dr de Kauwe did not state or provide any cogent or consistent reason why the date of judgment was the appropriate date for assessment [46]. Counsel elaborated [47] ‑ [55]:
Implicit in [Dr de Kauwe's] submission is an assumption that he would have held the options at the date of judgment. The Court ought not accept that assumption.
Consistently with the ratio in Perez (see [45] and [46] above), if the Court is to depart from the general [principle] that the date of assessment is the date of the wrong, it should do so only on the basis that the appropriate date is that on which options would have been 'converted into monetary terms'.
[Dr de Kauwe] gave evidence (T735 ‑ T737) that he sold a substantial parcel of shares (500,000) in Race Oncology at some time prior to trial, but gave no evidence as to the date of such sale(s). If it is found that [Dr de Kauwe] would have obtained the options claimed (which is denied), the Court should infer that [Dr de Kauwe] would have exercised his options and sold the converted shares at the same time as this sale or sales.
In light of [Dr de Kauwe's] election not to adduce evidence as to the date of the sale of his Race Oncology shares, the Court ought (if it is found that [Dr de Kauwe] would have obtained the options claimed) take a conservative approach and assess damages at a date shortly after the options would have reached the strike price. Any damages in respect to the Race Oncology options should thus be nominal.
To adopt the approach proposed by [Dr de Kauwe] would be to provide him with a windfall as a result of a complete paucity in the evidence on this crucial point.
…
In light of the submissions above, the [second to sixth respondents] do not consider that [Dr de Kauwe] has established that it is necessarily the case that the Court should receive evidence as to Race Oncology's share price at the date of judgment.
In any event, as the claim is for the value of the options that would have been held by [Dr de Kauwe], [Race Oncology's] share price is not dispositive of the assessment of such damages.
Finally, the question of whether the share price at the date of judgment should be adduced and for what purposes, may be affected by any findings made in the judgment as to the true nature of [Dr de Kauwe's] case and the time for and assessment of, [Dr de Kauwe's] damages.
This is particularly so if the Court considers that the claim is properly one for a loss of opportunity and thus needs to consider not the value of the options, but the opportunity to profit from those options. (original emphasis)

Dr de Kauwe's cross‑appeal: Dr de Kauwe's written response to the second to sixth respondents' written supplementary closing submissions at the trial

In his written response to the second to sixth respondents' written supplementary closing submissions at the trial filed 17 January 2022, counsel for Dr de Kauwe submitted that:
(a)Dr de Kauwe's claim for special damages had at all times been articulated as a loss of opportunity claim [19].
(b)Dr de Kauwe's position, as articulated during oral closing submissions, was that damages should be assessed at the date that most fairly compensates him. Dr de Kauwe would have remained a director of Race Oncology [34].
(c)Dr de Kauwe's unchallenged evidence was that he holds securities while he is a director of the company that issued the securities [36].
(d)The correct date of valuation should be the date of judgment. That was the only method by which Dr de Kauwe could properly be compensated for his true loss [37].
(e)Dr de Kauwe had foreshadowed that if the trial judge accepted his submission that the appropriate date for the assessment of the value of the options is the date of judgment, Dr de Kauwe 'may apply to adduce further evidence as to value as at the date of judgment' [38].
(f)In the event that the trial judge determines that the appropriate date for the assessment of the value of the options is the date of trial, 'the value should be assessed at at 8 February 2021'. As at that date, Race Oncology's share price was $2.62 per share. That values the 'option package at $2.37 million (1 million options x ($2.62 share price ‑ $0.25 exercise price))' [39].
(g)The only way to assess the value of the loss of opportunity in respect of the options is by reference to the value of the shares. There is no other mechanism by which to measure their value [40].

Dr de Kauwe's cross‑appeal: the evidence as to Race Oncology's share price

At the trial, the evidence adduced by counsel for Dr de Kauwe in relation to the price at which Race Oncology shares were trading on the ASX was confined to the following:
(a)Dr de Kauwe said in his evidence‑in‑chief, given on 8 February 2021, that (ts 383 ‑ 385 and exhibits 841 and 843):
(i)on 5 February 2021 he had purchased 235 Race Oncology shares at an average price of $2.32 per share;
(ii)on the morning of 8 February 2021 he had purchased 194 Race Oncology shares at an average price of $2.67 per share; and
(iii)the total value of the Race Oncology shares that were sold on the ASX between 7 am and 8 am on 8 February 2021 was about $3,000,000.
(b)Dr de Kauwe gave evidence, in cross‑examination, on 11 Feburary 2021, that after he resigned as a director of Race Oncology (on 4 April 2018) he sold 500,000 shares in the company. However, Dr de Kauwe could not recall 'the specifics' about that sale. He did not give any evidence as to the date or approximate date on which he sold the shares or the price or approximate price at which he sold them (ts 736 ‑ 737).
(c)Dr de Kauwe also gave evidence, in cross‑examination on 11 February 2021, that during the 12 months before his lawyers filed and served further and better particulars of damages on 21 December 2020 (see [20] above), Race Oncology's share price had been 'quite volatile' and the share price had 'ranged from 70 cents to, I think, as high as $2.80 and then down again' (ts 738 ‑ 739).
(d)Dr de Kauwe also gave evidence, in cross‑examination on 11 February 2021, that the Race Oncology share price had been below the exercise price of the options (that is, below $0.25 per share) during the 15 months before the trial, but the shares had been 'in the money' when he gave evidence (ts 1103 ‑ 1104).
(e)Dr de Kauwe also gave evidence, in cross‑examination on 11 February 2021, that he was unable to provide specific details as to when the Race Oncology share price was below or above the exercise price of the options during the 15 months before the trial (ts 1103 ‑ 1104).

Dr de Kauwe's cross‑appeal: other evidence possibly bearing on Race Oncology's share price

As Mitchell JA notes in his reasons, other evidence possibly bearing on Race Oncology's share price was tendered at the trial.
In particular:
(a)Race Oncology's annual report for the year ended 30 June 2020 (exhibit 853) indicated optimism in relation to a drug developed by Race Oncology for the treatment of a range of cancers. The annual report stated that in July 2020 Race Oncology had obtained its fourth patent for this drug in the United States of America.
(b)Race Oncology's annual report for the year ended 30 June 2020 stated that Race Oncology had raised equity capital by issuing 5,000,000 ordinary shares at an issue price of $0.60 per share. The shares were issued on 14 July 2020 (GAB 4, p 1114).
Race Oncology's financial statements for the year ended 30 June 2020 revealed that during that financial year Race Oncology derived minimal income and incurred an operating loss in excess of $3,800,000. Race Oncology's net assets were $5,690,035, of which $1,730,773 was cash at bank and $3,936,742 was intangible assets.
I agree with Mitchell JA that at all material times Race Oncology was a speculative investment. The company's prospects were dependent upon the uncertain future clinical and commercial performance of the cancer treating drug which it had developed.

Dr de Kauwe's cross‑appeal: the trial judge's reasons

The trial judge noted Dr de Kauwe's submission that, but for the publication of the defamatory imputations in the First ASX Announcement and the Second ASX Announcement, he would have remained a director of Race Oncology until at least 2025 [1102].
His Honour found that it was likely that Dr de Kauwe would have remained a director of Race Oncology until the 2020 annual general meeting [1102]. However, whether or not Dr de Kauwe would have remained a director beyond the 2020 annual general meeting was a matter of conjecture [1103]. His Honour was not satisfied on the balance of probabilities that Dr de Kauwe would have remained a director beyond the 2020 annual general meeting [1103].

The trial judge also noted Dr de Kauwe's submission that the publication of the defamatory imputations in the First ASX Announcement and the Second ASX Announcement caused him to lose the opportunity to acquire options to purchase shares in Race Oncology [1105].
At the 2019 Race Oncology annual general meeting, held on 22 November 2019, the shareholders passed, without any significant opposition, resolutions to issue share options to the directors; in particular, 2,500,000 options to Dr Daniel Tillett and 1,000,000 options to each of Dr Garner, Dr Cullity and Mr Ntoumenopoulos [1106].
The options were exercisable at $0.25 and expired 2 years from the date of issue. On 26 November 2019, the options were issued. Dr de Kauwe alleged that had he remained a director of Race Oncology he would have been issued with 1,000,000 options on the terms on which options were issued to the directors following the 2019 annual general meeting [1107].
On 8 February 2021, Race Oncology's shares were trading at $2.67 [1107].
His Honour said [1115]:
Dr de Kauwe must prove that if the defendants had not published the ASX announcements, he would probably have received options to acquire Race Oncology shares. That is, he must establish causation on the balance of probabilities. If he establishes causation, then the value of his loss is assessed as the value of the opportunity lost.
The trial judge found that Dr de Kauwe had established the requisite causation on the balance of probabilities [1118]. His Honour elaborated [1119] ‑ [1121]:
For the reasons I have given, Dr Garner's evidence establishes that if the defendants had not published the ASX announcements, Dr de Kauwe would probably have remained a director of Race Oncology on 22 November 2019.
Dr Garner's evidence also establishes that if Dr de Kauwe had remained a director of Race Oncology on 22 November 2019, he would probably have received the same allocation of options as Mr Ntoumenopoulos. Dr Garner gave evidence of the genesis of the resolution to issue options to the directors. He agreed that the CEO, Mr Molloy, and the company secretary, Mr Webse, drew up the remuneration report which was accepted by the shareholders but did not accept that there was likely to have been any basis for distinguishing between the issue of options to Mr Ntoumenopoulos and the issue of options to Dr de Kauwe if he had been a director at the time. Dr Garner's evidence was that there might have been one or a couple of shareholders in the meeting that voted against the resolutions to issue the shares, but apart from that, it might have been unanimous; the resolutions were highly supported.
Dr Garner said that if Dr de Kauwe had been a director on 22 November 2019, he would have been treated the same as the other non‑executive directors and in particular Mr Ntoumenopoulos. Dr Garner volunteered:
[T]he crux of this is would Brendan have been treated like these - like other directors and the - I may be jumping the gun, but the answer is yes. And Chris [Ntoumenopoulos], as a - as a director, you know, received these - these options.
I don't believe it's any kind of a stretch to say that - that Chris [Ntoumenopoulos] and - and if Brendan would have been involved here, that they would have been compensated like this.
His Honour concluded that Dr de Kauwe had proved that he had lost 'a valuable opportunity' in relation to the options [1122].
The trial judge then noted that Dr de Kauwe 'must still prove the amount of the damages he suffered' and that this required 'evaluating the chance of uncertain events occurring' [1122]. His Honour proceeded to set out the uncertainties and made findings in relation to them [1123] ‑ [1125]:
There are several uncertainties. First, would the shareholders have voted to issue 1 million or some other number of shares to him? Secondly, would the terms on which the options have been issued to Dr de Kauwe have been the same as the terms on which the options were issued to Mr Ntoumenopoulos and the other non‑executive directors? Thirdly, would Dr de Kauwe have exercised the options before they expired either by their expiry date or because he ceased to be a director? Fourthly, would the options have been 'in the money' when Dr de Kauwe exercises the options? Fifthly, if Dr de Kauwe exercises the options, would he have realised the shares or held them? Sixthly, if Dr de Kauwe realised the shares at some time, would their sale price have exceeded the option exercise price, and if so by how much?
I have found that, on the balance of probabilities, Dr de Kauwe would have been a director on 22 November 2019 and the shareholders would have voted to issue … shares to him. Based on the evidence of Dr Garner, I find that it is likely that Dr de Kauwe would have been issued the same number of shares and on the same terms as Mr Ntoumenopoulos. Those are findings on the balance of probabilities. The probability of them occurring is less than 100%.
The third to sixth contingencies I have referred to are more problematic. As a matter of logic, it is likely but not certain that Dr de Kauwe would have exercised the options before they expired if the exercise price was less than the then current share price. As to when Dr de Kauwe would have sold the shares obtained by exercising the options, his evidence was that he would have held the shares as long as he was a director.
Next, his Honour made these observations and findings [1126], [1128]:
(a)If Dr de Kauwe had exercised the 1,000,000 options at an exercise price of $0.25 and had sold them at the price at which they were trading on 8 February 2021, namely $2.67, he would have made a profit of $2,420,000.
(b)There was no evidence about the share price on 22 November 2020.
(c)However, 'it was likely that the price of the shares at the time Dr de Kauwe would have been, or would be, likely to sell them' would be 'substantially in the money' if he sold them at or about the time of ceasing to be a director.
(d)There was 'a chance that Dr de Kauwe would have received options with a present value, or would have realised their value, in the order of $2,420,000'. However, the probability that Dr de Kauwe would have received options having that value, or would have received the options and realised that value, was 'low because of the many uncertainties'. Nevertheless, the probability was 'not so low, say less than 1%, to be regarded as speculative'.
The trial judge concluded that 'the probability of Dr de Kauwe receiving and exercising 1 million options at $0.25 and realising the resulting shares at a price in the order of $2.67 is unlikely but not so unlikely as to be disregarded as speculative' [1129]. His Honour then said '[d]oing the best I can, I value the loss of opportunity at $200,000' [1129].

Dr de Kauwe's cross‑appeal: the sole ground of the cross‑appeal

The sole ground of Dr de Kauwe's cross‑appeal alleges, in essence, that the trial judge erred in fact and in law in his assessment of the value of Dr de Kauwe's lost opportunity in relation to the options that were approved by resolution of the shareholders of Race Oncology at the annual general meeting held on 22 November 2019 and issued to the directors of Race Oncology on 26 November 2019.
Dr de Kauwe specifies three particulars of his Honour's alleged error of fact and law. First, his Honour erred in valuing the lost opportunity at $200,000. Secondly, his Honour erred in his 'weighting of "six contingencies" in valuing the prospect that [Dr de Kauwe] would have received options, or would have realised the value of those options, which did not occur as a result of the publication of [the defamation]'. Thirdly, his Honour erred in failing to give reasons, or alternatively, adequate reasons, 'for the respective weight of the "six contingencies", in light of the available evidence'.

Dr de Kauwe's cross‑appeal: counsel for Dr de Kauwe's submissions

The submissions of counsel for Dr de Kauwe are summarised in Mitchell JA's reasons.
I merely note the following aspects of counsel for Dr de Kauwe's argument:
(a)The trial judge accepted, on the balance of probabilities, that Dr de Kauwe would have remained a director of Race Oncology until its 2020 annual general meeting.
(b)His Honour found, on the balance of probabilities, that at the 2019 Race Oncology annual general meeting, held on 22 November 2019, the shareholders would have passed a resolution to issue 1,000,000 options to Dr de Kauwe and that the options would have been issued. The options were exercisable at $0.25 and expired 2 years from the date of issue.
(c)Dr de Kauwe's evidence that, while he was a director of a company, he retained securities in the company that he had acquired was unchallenged and accepted by his Honour.
(d)The options in question had a value of $1,830,000 in November 2020 and a value of $2,420,000 in February 2021.
(e)His Honour applied a significant discount in assessing Dr de Kauwe's special damages. The significant discount was not warranted on the basis of the contingencies identified by his Honour.
(f)Consequently, the award of $200,000 as special damages was wrong in that it was outside the range of a sound evaluative assessment.
(g)None of the contingencies identified by his Honour warranted a material discount. An appropriate range to reflect any negative contingencies and to balance any positive contingencies would have been between 10% and 30%, so that the award of special damages in respect of the Race Oncology options should have been between $1,694,000 and $2,178,000.

Dr de Kauwe's cross‑appeal: applicable legal principles

The object of an award of damages in tort is to place the plaintiff in the position in which he or she would have been had the tort not been committed. See Gates v City Mutual Life Assurance Society Ltd.[1]
[1] Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1, 12 (Mason, Wilson & Dawson JJ).
A plaintiff who claims damages in tort for deprivation of a commercial opportunity must prove, first, on the balance of probabilities that the defendant's tortious conduct caused the plaintiff some loss. The plaintiff can establish that he or she suffered some loss by proving that the defendant's tortious conduct caused the plaintiff to be deprived of a commercial opportunity which had some value (not being a negligible value). See Sellars v Adelaide Petroleum NL.[2]
[2] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, 355 (Mason CJ, Dawson, Toohey & Gaudron JJ).
This issue of causation requires the plaintiff to prove what would probably have eventuated had the defendant's tortious conduct not occurred. That is necessarily a hypothetical question and involves an evaluation of circumstances which did not in fact happen. The common law test is subjective. See Chappel v Hart;[3] Rosenberg v Percival.[4] A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenberg [44] (McHugh J).
[3] Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [32] (McHugh J), [93] (Kirby J).
[4] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [24] (McHugh J).
If a plaintiff who claims damages in tort for deprivation of a commercial opportunity proves, on the balance of probabilities, that the defendant's tortious conduct caused the plaintiff some loss, then the value of the plaintiff's lost opportunity is determined by reference to the degree of probabilities or possibilities. See Sellars (355 ‑ 356) (Mason CJ, Dawson, Toohey and Gaudron JJ).
The assessment of the value of the plaintiff's lost opportunity, by reference to the degree of probabilities or possibilities, is carried out in the manner articulated by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd:[5]
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high ‑ 99.9 per cent ‑ or very low ‑ 0.1 per cent. But unless the chance is so low as to be regarded as speculative ‑ say less than 1 per cent ‑ or so high as to be practically certain ‑ say over 99 per cent ‑ the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle ([1970] AC 166, at p 174); Davies v. Taylor ([1974] AC 207, at pp 212, 219); McIntosh v. Williams ([1979] 2 NSWLR 543, at pp 550 ‑ 551). The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. (emphasis added)
See Sellars (350, 355) (Mason CJ, Dawson, Toohey and Gaudron JJ); Tabet v Gett.[6]
[5] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 642 ‑ 643.
[6] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 [136] (Kiefel J).
In Searle v Commonwealth of Australia,[7] the appellant, who had enlisted in the Royal Australian Navy, entered into a contract with the Commonwealth pursuant to which the appellant was to receive training leading to a particular engineering qualification (a Certificate IV). The appellant did not receive the training specified in the contract. The trial judge dismissed the appellant's claim on the basis that it was beyond the power of the Commonwealth to have entered into the contract and, in any event, the contract was not supported by consideration given by the appellant. His Honour assessed the appellant's damages for breach of contract (there being no issue as to breach) at $60,000 in case his Honour was wrong in deciding that the contract was not valid and enforceable. The Court of Appeal of New South Wales granted the appellant leave to appeal and allowed his appeal. The court entered judgment for the appellant in the amount of $60,000. Bell P (Bathurst CJ and Basten JA relevantly agreeing) made these observations in relation to the difficulties involved in assessing damages for loss of opportunity and the proof and valuation of future possibilities and past hypothetical fact situations [202] ‑ [208]:
[7] Searle v Commonwealth of Australia [2019] NSWCA 127; (2019) 100 NSWLR 55.
There are peculiar difficulties associated with the assessment of damages for loss of opportunity and the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts: Sellars at 355. These difficulties are in part accommodated by the approach to the assessment of damages that only requires there to be established on the balance of probabilities that there was loss of an opportunity of some value but does not require it to be shown that the likelihood of that opportunity being realised was greater than 50%: Sellars at 355. Sellars drew on Malec v JC Hutton Pty Ltd(1990) 169 CLR 638; [1990] HCA 20 (Malec) where Deane, Gaudron and McHugh JJ said (at 643) that '[t]he future may be predicted and the hypothetical may be conjectured'.
In Commonwealth of Australia v Amann Aviation Pty Ltd(1991) 174 CLR 64 at 83; [1994] HCA 54 (Amann), Mason CJ and Dawson J said:
The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the 'assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation'. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages. (Footnotes omitted)
Menzies J's famous observation in Jones v Schiffmann(1971) 124 CLR 303; [1971] HCA 52 was also referred to by Toohey J in Amann at 138. Toohey J also made reference to the observation of Sir Garfield Barwick in Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd(1981) 145 CLR 625 at 636; [1981] HCA 3 that 'in many cases' damages are 'no more than an approximation lacking in mathematical or economic accuracy or sufficiency'.
The primary judge's finding to which I have referred at [194] above, namely that holding a Certificate IV 'might have been decisive in relation to some jobs' corresponds, in my opinion, with the 'real possibility' of promotion that the High Court indicated was sufficient to found an assessment of damages in Wynn v NSW Insurance Ministerial Corporation(1995) 184 CLR 485 at 498; [1995] HCA 53. Once his Honour had found a loss of opportunity had been suffered, he necessarily had to engage in the difficult task of estimation of future and hypothetical events.
It is not essential for a trial judge assessing damages for loss of a chance to nominate a particular percentage of probability to be attributed to the prospect of the chance being realised, and to insist on this would be prone to artificiality. A global approach not requiring the specification of particular percentages or degrees of probability or possibility was endorsed as acceptable by this Court in Fightvision Pty Ltd v Onisforou(1999) 47 NSWLR 473; [1999] NSWCA 323 at [147]. In Malec at 640, Brennan and Dawson JJ said:
... we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation.
The Commonwealth's attack on the primary judge's assessment of damages needs to be analysed with the above principles (and the difficulties to which they refer) squarely in mind.
In holding that the potential to secure a higher paying job which Mr Searle had lost by reason of the breach of contract was 'amenable to only the crudest numerical estimation', the primary judge was simply reflecting the difficulties in the assessment of damages for loss of opportunity that the High Court and this Court have referred to many times over the years. These difficulties and the need for 'estimation, if not guesswork' (see Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd[2003] HCA 10; 196 ALR 257 at [38] (Hayne J)) necessarily mean that a judge's reasoning process will be less precise and more attenuated than if he or she were dealing with known rather than hypothetical facts. The assessment of damages in the present case was a difficult task but that was not a reason not to undertake it.

As a general rule, damages in tort are assessed as at the date of the breach or when the cause of action arises. However, the general rule is not universal. The fundamental principle in assessing damages in tort is compensatory. The purpose of an award is to put the plaintiff in the same position, as nearly as money can, as if the plaintiff had not suffered loss as a result of the defendant's wrongful conduct. The general rule that damages are assessed as at the date of breach or when the cause of action arises gives way in particular cases to some other date if that is necessary to provide the plaintiff with adequate compensation. See Johnson v Perez;[8] Nikolaou v Papasavas, Phillips & Co;[9] Rentokil Pty Ltd v Channon.[10]
[8] Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, 355 ‑ 357 (Mason CJ), 367 ‑ 368 (Wilson, Toohey & Gaudron JJ), 386 ‑ 389 (Dawson J).
[9] Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, 404 (Wilson, Dawson, Toohey & Gaudron JJ).
[10] Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417, 432 (Meagher JA).
The date as at which the plaintiff's damages are to be assessed does not mean that evidence is excluded of events occurring after that date. Evidence of subsequent events which are relevant to the assessment process may be taken into account. For example, subsequent events may be relevant to the value of the lost opportunity or whether the plaintiff has mitigated his or her loss. See Nangus Pty Ltd v Charles Donovan Pty Ltd (in liq)[11] and, more generally, Willis v The Commonwealth;[12] Johnson v Perez (368 ‑ 369) (Wilson, Toohey and Gaudron JJ); Nikolaou (403 ‑ 404) (Wilson, Dawson, Toohey and Gaudron JJ). As Latham CJ explained in Willis (109):
[W]here actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second-best. Damages are awarded for injury actually suffered and for prospective injury. Prospective injury can only be estimated with more or less probability. But where the extent and character of what would at one time be described as prospective injury depends upon the happening or non-happening of a particular event and that event has in fact happened, it is unnecessary to speculate as to whether or not this event might happen and, if so, when. In such a case prospective damage (or diminution of damage) has become actual.
[11] Nangus Pty Ltd v Charles Donovan Pty Ltd (in liq) [1989] VR 184, 189 (Kaye & Southwell JJ).
[12] Willis v The Commonwealth [1946] HCA 22; (1946) 73 CLR 105, 109 (Latham CJ).
Where evidence was available and should have been adduced at the trial, it is difficult for a plaintiff who fails to call the evidence, or who calls incomplete evidence, to complain about a low award of damages. See Minchin v Public Curator of Queensland;[13] Giorginis v Kastrati;[14] State of New South Wales v Moss;[15] McCracken v Melbourne Storm Rugby League Football Club Ltd;[16] Stradford (a pseudonym) v Judge Vasta.[17]
[13] Minchin v Public Curator of Queensland [1965] ALR 91, 93 (Barwick CJ who dissented in the result but not on this point).
[14] Giorginis v Kastrati (1988) 49 SASR 371, 375 (von Doussa J; King CJ & Legoe J agreeing).
[15] State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 [69] (Heydon JA).
[16] McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 [69] (Ipp JA; Beazley & Basten JJA agreeing).
[17] Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 [777] (Wigney J).
In Giorginis, the defendants appealed against the trial judge's assessment of damages for personal injuries suffered by the plaintiff in a motor accident. The grounds of appeal were confined to the amounts awarded for past and future loss of earning capacity. The defendants argued on appeal that there was insufficient evidence to support the findings that the plaintiff had suffered such losses; alternatively, that the amounts awarded were against the evidence; alternatively, that the amounts awarded were manifestly excessive. The Full Court of the Supreme Court of South Australia held that the trial judge's findings were not supported by the evidence. The Full Court allowed the appeal and reassessed the plaintiff's damages. von Doussa J said (375):
If a plaintiff does not adduce evidence of this kind which is in his power or possession many uncertainties are likely to remain. It does not necessarily follow, as a matter of law or fact, that proof of the plaintiff's claim for lost earning capacity will fail. The evidence may nevertheless establish, on the balance of probabilities, the likelihood of some substantial element of loss, and the court will take that into account in assessing general damages: Russell v J Hargreaves and Sons Pty Ltd (1956) 30 ALJ 533. However, the assessment is likely to be a modest one having regard to the uncertainties unnecessarily left open by the evidence. The plaintiff will usually not be heard to complain on appeal that the loss may have been greater. In some cases the failure to adduce the supporting evidence may well cause the court to feel unable to accept the oral evidence of the plaintiff, at least at face value. The plaintiff and his advisers carry a heavy responsibility to ensure that this type of material is properly marshalled together in advance of the trial, and where it is not admitted, to have it introduced into evidence.
There will be cases where the nature and extent of the loss alleged will make it difficult or impossible to adduce evidence that permits the court to proceed to calculate damages in a precise way. In these cases, the plaintiff is not to be deprived of damages because the evidence does not permit a mathematical calculation: Hamlyn v Hann and Heagney [1967] SASR 387 per Mitchell J at 401. As Lord Devlin said in Yorkshire Electricity Board v Naylor [1968] AC 529 at 548: ' … difficulty in calculation is not ordinarily taken as a ground either for reducing or for increasing the award.'
But cases where the damages are, by the nature of the loss, difficult to calculate, are to be distinguished from cases, like the present, where precise calculation is rendered impossible, and even broad assessment difficult, not by the nature of the loss, but by a paucity of evidence where it is clear that it lies within the power of the plaintiff to produce business and taxation records usually maintained by people in employment or business or other evidence which could clarify the extent of his income.
The assessment of damages, including the valuation of a lost opportunity, has many of the features of a discretionary judgment. See H & Q Café Pty Ltd v Melbourne Café Pty Ltd;[18] Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd;[19] Sharman v Evans.[20] An appellate court should not intervene in a trial judge's assessment of damages, including the valuation of a lost opportunity, unless the appellate court is satisfied that the trial judge has acted upon a wrong principle, has mistaken the facts, has taken into account an extraneous or irrelevant consideration or has failed to take into account a material consideration. See H & Q Café [104]; House v The King;[21] Smith's Newspapers Ltd v Becker.[22] As Mason J observed in St Helens Farm (381), valuation involves estimation, not precise mathematical calculation, and 'certainly involves the making of a value judgment in the metaphorical as well as the literal sense'.
[18] H & Q Café Pty Ltd v Melbourne Café Pty Ltd [2023] VSCA 200 [104] (Niall & Kennedy JJA & Forrest AJA).
[19] Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336, 381 (Mason J).
[20] Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563, 565 (Barwick CJ), 589 (Gibbs & Stephen JJ).
[21] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).
[22] Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279, 300 (Dixon J).
An appellate court may not intervene in a trial judge's assessment of damages, including the valuation of a lost opportunity, merely because the appellate court would itself have awarded more or less. The trial judge's award must be 'so inadequate as to be beyond the limits of what a sound discretionary judgment could reasonably adopt': H & Q Café [105]. See also McCartney v Orica Investments Pty Ltd;[23] Calder v Boyne Smelters Ltd.[24]
[23] McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 [121] (Giles JA; Macfarlan JA agreeing & Young JA relevantly agreeing).
[24] Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, 341 (Shepherdson J; Kneipp J agreeing), 349, 352 (Cooper J; Kneipp J agreeing).
A complaint about the attribution of weight to a relevant consideration does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a trial judge's discretionary judgment. A weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of a trial judge's exercise of discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention. See Lovell v Lovell;[25] Mallet v Mallet.[26]
[25] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519 (Latham CJ).
[26] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 ‑ 615 (Gibbs CJ).
Section 34 of the Defamation Act 2005 (WA) requires that the court, in determining the amount of damages to be awarded in any defamation proceedings, ensure that there is 'an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded'.
If 'special damage' is claimed by a plaintiff in defamation proceedings, the plaintiff must prove some form of pecuniary loss or loss capable of assessment in money terms. See Chakravarti v Advertiser Newspapers Ltd.[27]
[27] Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 [98] (Gaudron & Gummow JJ).
The principles governing causation and the assessment of damages for deprivation of a commercial opportunity in tort actions generally apply to defamation proceedings. See, for example, Selecta Homes and Building Company Pty Ltd v Advertiser‑News Weekend Publishing Company Pty Ltd;[28] Dupois v Queensland Television Ltd;[29] Bauer Media Pty Ltd v Wilson (No 2);[30] Rush v Nationwide News Pty Ltd (No 7).[31]
[28] Selecta Homes and Building Company Pty Ltd v Advertiser‑News Weekend Publishing Company Pty Ltd [2001] SASC 140; (2001) 79 SASR 451 [70] (Lander J; Doyle CJ agreeing).
[29] Dupois v Queensland Television Ltd [2015] QCA 160 [10] (North J; Holmes & Fraser JJA agreeing).
[30] Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674 [289] ‑ [291], [334] ‑ [338], [545] (Tate, Beach & Ashley JJA).
[31] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 [867] (Wigney J).

Dr de Kauwe's cross‑appeal: its merits

Dr de Kauwe alleges, in essence, that the trial judge erred in valuing at $200,000 Dr de Kauwe's lost opportunity in relation to the options that were approved by resolution of the shareholders of Race Oncology at the annual general meeting held on 22 November 2019 and issued to the directors of Race Oncology on 26 November 2019. As I have mentioned, counsel for Dr de Kauwe submitted that his Honour should have awarded damages between $1,694,000 and $2,178,000 for the lost opportunity.
The trial judge made these findings concerning proof of the lost opportunity:
(a)If the defendants had not published the First ASX Announcement and the Second ASX Announcement, Dr de Kauwe would probably have remained a director of Race Oncology on 22 November 2019 (that is, the date of the annual general meeting of the company) [1119].
(b)If Dr de Kauwe had remained a director of Race Oncology on 22 November 2019, he would probably have received the same allocation of options as Mr Ntoumenopoulos [1120]. (On 26 November 2019, 1,000,000 options were issued to Mr Ntoumenopoulos. The options were exercisable at $0.25 each and expired two years from the date of issue.)
(c)Dr de Kauwe had established, on the balance of probabilities, the requisite causation in relation to his special damage claim in respect of the options [1118].
(d)Dr de Kauwe had therefore proved that he had lost 'a valuable opportunity' in respect of the options [1122].
His Honour made these findings concerning the value of the lost opportunity:
(a)Dr de Kauwe gave evidence that he would not have sold the shares obtained by exercising the options while he was a director of Race Oncology [1125].
(b)It was likely that Dr de Kauwe would have remained a director of Race Oncology until the 2020 annual general meeting [1102]. However, his Honour was not satisfied, on the balance of probabilities, that Dr de Kauwe would have remained a director beyond the 2020 annual general meeting [1103].
(c)It was likely, but not certain, that Dr de Kauwe would have exercised the options before they expired (on 26 November 2021) if the exercise price was less than the then current share price [1125].
(d)There was no evidence about the share price on 22 November 2020 (being the date on or about which the 2020 annual general meeting would have been held), but it was likely that the price of the shares when Dr de Kauwe 'would have been, or would be, likely to sell them' would have been 'substantially in the money' if he had sold them at or about the time of ceasing to be a director [1126].
(e)There was 'a chance that Dr de Kauwe would have received options with a present value, or would have realised their value, in the order of $2,420,000' (based on the share price on 8 February 2021) [1128].
(f)However, the probability that Dr de Kauwe would have received options having a value in the order of $2,420,000, or would have received the options and realised that value, was 'low because of the many uncertainties' [1128].
(g)The probability of Dr de Kauwe receiving and exercising 1,000,000 options at $0.25 each and realising the resulting shares at a price in the order of $2.67 each (being the share price on 8 February 2021) was 'unlikely but not so unlikely as to be disregarded as speculative' [1129].
After stating that he was '[d]oing the best [he could]', the trial judge said that the value of Dr de Kauwe's lost opportunity was $200,000 [1129].
On 5 November 2021, counsel for Dr de Kauwe, during his oral closing submissions at the trial, submitted in essence that the value of Dr de Kauwe's loss in respect of the Race Oncology options should be assessed on the following basis:
(a)It should be inferred that Dr de Kauwe would have exercised the options if they were about to expire and were 'in the money'.
(b)If Dr de Kauwe exercised the options he would not have sold the resulting shares while he remained a director of the company.
(c)If Dr de Kauwe had exercised the options he would have used the 'cashless option facility'.
(d)The value of Dr de Kauwe's loss should be determined as at the date of judgment.
(e)Counsel for Dr de Kauwe might seek to reopen his case for the purpose of establishing Race Oncology's share price as at the date of judgment.
As I have mentioned, the trial occurred on various dates in January, February, July, August, September, October and November 2021 and on 17 January 2022. On 9 February 2022, his Honour published his reasons. On 16 February 2022, his Honour made formal orders in accordance with his reasons.
The critical findings made by his Honour concerning proof of the lost opportunity were, in effect, that if the defendants had not published the First ASX Announcement and the Second ASX Announcement, Dr de Kauwe would probably have remained a director of Race Oncology on 22 November 2019 and that Dr de Kauwe would probably have received 1,000,000 options on 26 November 2019, with the options being exercisable at $0.25 each and expiring on 26 November 2021. Those findings are not challenged in the appeal.
The critical findings made by his Honour concerning the value of Dr de Kauwe's lost opportunity were, in effect, that Dr de Kauwe would not have sold the shares obtained by exercising the options while he was a director of Race Oncology; Dr de Kauwe was likely to have remained a director until the 2020 annual general meeting; his Honour was not satisfied that Dr de Kauwe would have remained a director beyond the 2020 annual general meeting; and Dr de Kauwe was likely to have exercised the options before they expired (on 26 November 2021) if the exercise price was less than the then current share price. None of those findings is challenged in the appeal.
No doubt, if Dr de Kauwe had exercised the options he would have taken advantage of the 'cashless exercise facility' (referred to by counsel for Dr de Kauwe in his oral closing submissions as the 'cashless option facility': see [33] above), pursuant to which Dr de Kauwe would have been able to obtain the shares without having to expend the exercise price. The trial judge did not mention the 'cashless exercise facility' in carrying out his assessment of the value of Dr de Kauwe's lost opportunity. However, his Honour did not include in the six contingencies that he enumerated any uncertainty about whether Dr de Kauwe could fund the cost of exercising the options from his own financial resources. See [54] above.
It was necessary, having regard to the unchallenged findings referred to at [83] ‑ [84] above, for the trial judge to assess the value of the lost opportunity by taking into account whether the exercise price was less than the current share price for the time being in the period leading up to the expiry of the options on 26 November 2021. His Honour had to assess the value at the time Dr de Kauwe was likely to have exercised the options, rather than (as counsel for Dr de Kauwe had submitted to his Honour) at the judgment date, alternatively the trial date. A finding as to whether and, if so, when Dr de Kauwe was likely to have exercised the options required evidence as to the current share price throughout the period leading up to the expiry of the options on 26 November 2021. Further, the current share price at the time Dr de Kauwe was likely to have exercised the options would have been strongly probative of the value of Dr de Kauwe's lost opportunity.
His Honour's task in valuing the lost opportunity was made very difficult by Dr de Kauwe's failure to adduce evidence of the price at which Race Oncology shares had traded on the ASX throughout the period leading up to the expiry of the options on 26 November 2021. As I have mentioned, Dr de Kauwe gave oral evidence that on 5 February 2021 he had purchased some Race Oncology shares at an average price of $2.32 per share and that on the morning of 8 February 2021 he had purchased some Race Oncology shares at an average price of $2.67 per share. However, Dr de Kauwe did not adduce any other evidence as to the specific price at which Race Oncology shares had traded on the ASX. As I have mentioned, Dr de Kauwe acknowledged in his oral evidence that Race Oncology's share price had been 'quite volatile' during the 12 months before his lawyers filed and served further and better particulars of damages on 21 December 2020 and that the Race Oncology share price had been below the exercise price of the options during the 15 months before the trial, but the shares had been 'in the money' when he gave evidence between 8 and 11 February 2021. Dr de Kauwe was unable to provide specific details as to when the Race Oncology share price was below or above the exercise price of the options during the 15 months before the trial. See [40] above.
The paucity of the evidence at trial about the price at which Race Oncology shares had traded on the ASX and the inadequacy of the general evidence Dr de Kauwe gave orally about the share price were not attributable to any trouble in obtaining and tendering relevant evidence. Indeed, relevant evidence was readily procurable. The very difficult task confronting the trial judge was attributable, to a significant extent, to the manner in which Dr de Kauwe ran his case.

First, the apology referred only to the First and Second ASX Announcements and did not apologise for or retract the 5 February Letter or the 15 February Letter. The 15 February Letter conveyed that Dr de Kauwe had stolen company funds and intentionally concealed the theft. As that was not an imputation conveyed by the First and Second ASX Announcements, the apology offered did not retract and apologise for all the defamatory publications on which Dr de Kauwe succeeded.[241] Illustrating the 'grapevine' effect, the 5 February Letter and the 15 February Letter were published to persons other than the two persons to which they were initially sent.[242]
[241] Supplementary decision [68] - [70].
[242] Supplementary decision [71].
Secondly, the offer was only to provide a copy of the apology to Dr de Kauwe and that he would be free to use it as he saw fit. However, the defendants made no offer to publish it to any wider audience.[243]
[243] Supplementary decision [75].
Thirdly, the apology did not identify the allegations against Dr de Kauwe in the First and Second ASX Announcements which the defendants retracted and for which they apologised. Nor did the apology say that the defendants retracted and apologised for all the defamatory allegations in the First and Second ASX Announcements.[244]
[244] Supplementary decision [76].
Fourthly, the proposed settlement was 'without any admission of liability whatsoever' by the relevant defendants. This objectively detracted from the apology in relation to the amelioration of the harm to Dr de Kauwe's feelings.[245]
[245] Supplementary decision [77] - [78].
The proposed apology was therefore of less value and gave less vindication to Dr de Kauwe than the judgment he obtained.[246]

Uncertainty as to terms of some offers

[246] Supplementary decision [72], [75].

The trial judge found that aspects of the offers were uncertain.
The 17 August 2020 and 26 January 2021 offers proposed that the director defendants and Mr Pamensky pay Dr de Kauwe's costs of the primary proceedings. It was not clear whether Dr de Kauwe was to have the benefit of mixed costs against those defendants and Mr Wright.[247]
[247] Supplementary decision [81], [101].
The terms of the offers made on 27 January 2021 and 28 January 2021 were uncertain as to whether Dr de Kauwe was at liberty to apply for a special costs order (the judge accepted he was not).[248]

Timing of the offers and period for which they were open

[248] Supplementary decision [120] - [121], [134].

The offer of 26 January 2021 was made two days prior to trial when Dr de Kauwe's legal representatives were heavily involved in trial preparation.[249]
[249] Supplementary decision [108].
The offer of 27 January 2021 expired at 9 pm on the day it was made. As there was no evidence as to when it was received, the judge assumed it was open for a number of hours but how many hours was uncertain.[250]
[250] Supplementary decision [123].
The trial judge also assumed that the offer of 28 January 2021 was open for a number of hours but how many hours was uncertain. The trial judge said that the trial commenced at 10.30 am that day and it was not known whether the offer was received before or after the trial commenced. If it was before, it could not have been much before. The judge also observed:[251]
The offer was only open until 3.00 pm. The trial continued that day until 5.39 pm.
I note that the finding that the offer was open only until 3.00 pm appears to be in error - the offer was expressed to be open until 4.30 pm that day.[252] However, given that the trial continued to 5.39 pm that day any factual error in that respect is immaterial.
[251] Supplementary decision [135].
[252] See exhibit 4 in the costs hearing (Green AB 1378).
The trial judge found that the time for which the offer of 28 January 2021 was open was manifestly unreasonable. The offer was in different terms than previous offers and no lawyer could give his or her client advice without having carefully considered its terms. There was no opportunity to do that.[253]

Costs and Calderbank offers: general principles

[253] Supplementary decision [138].

The general principles relating to the impact of Calderbank offers on the exercise of the court's costs discretion were summarised by this court in Strzelecki Holdings, in the passage quoted at [274] above. Much of that summary is taken from the statement of general principles by Buss JA in Ford Motor Co of Australia Ltd v Lo Presti.[254]

Alleged error as to the significance of an apology

[254] Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [16] - [24].

In the following paragraphs, reference to grounds are to the grounds of appeal as amended pursuant to the amendment application.
Grounds 3.1(a) and (b) of the director defendants' cross-appeal contend that the trial judge made an express error of principle in the exercise of the costs discretion in relation to the significance of the apology proposed by the defendants' Calderbank offer of 14 October 2020. Ground 3.1(c) contends that the trial judge erred in finding that the proffered apology was 'inadequate'. Ground 5 of that cross-appeal incorporates ground 3.1 in relation to the later offers.
Ground 3.1(a) contends that the trial judge erred in the following passage by applying a test that in the settlement of a defamation claim an apology was of 'paramount importance':[255]
In settlement of defamation claims the offer and terms of an apology is of paramount importance because it may be a means, other than proceeding to judgment, of vindicating the plaintiff's reputation. Gatley says that an adequate and properly publicised apology will go a long way to achieving vindication for a claimant. Gatley further states that the purpose of an apology is to appease the injured feelings of the person defamed and to undo the harm done to his reputation in consequence of the publication. Gatley states that a requirement that the defendant publishes an apology, and the content and mode of publication of that apology, are likely to be crucial terms of a settlement of defamation proceedings. (citations omitted)
[255] Supplementary decision [31].
Ground 3.1(b) contends that the trial judge erred in approaching the exercise of the costs discretion in terms that, unless an adequate apology was proposed as part of the 14 October 2020 offer, rejecting that offer would not be unreasonable. The director defendants principally rely on the following observation, which was made in the context of considering the offer of 28 January 2021:[256]
The inadequacy of the apology to which I have referred is of itself a sufficient reason to make Dr de Kauwe's failure to accept the offer not unreasonable, and for the court to exercise its discretion to award the costs of the action to Dr de Kauwe.
The reference to the 'inadequacy' of the apology in this passage is also the subject of ground 3.1(c) of the director defendants' cross‑appeal.
[256] Supplementary decision [139].
The director defendants appear in effect to contend that this conclusion must also have been applied to the trial judge's consideration of the other offers, which proposed apologies in the same terms.
The nature of the error of principle for which the director defendants contend in written and oral submissions is somewhat opaque. It is not clear that the director defendants contend for more than an error as to the weight which the trial judge gave to the adequacy of the proposed apology. In their written submissions, the director defendants say:[257]
For the reasons which follow, the trial judge has, with respect, elevated the content and extent of an apology for the settlement of defamation proceedings, for the purposes of considering a rejection of a Calderbank offer, to a level where it has been given improper and undue weight.
The existence and extent of an apology was simply one factor to be taken into account.
(emphasis added)
[257] Director defendants' submissions, pars 61 - 62 (White AB 144).
The director defendants conclude this aspect of their submissions by stating:[258]
In conclusion, the trial judge approached his finding that the rejection of the 14 October Offer was not unreasonable by placing excessive weight on the terms of the apology offered. By determining that an apology was of paramount importance in the settlement of a defamation claim, the trial judge has acted on an incorrect principle. That incorrect principle has affected the assessment of 'the extent of the compromise offered'. (emphasis added) (citation omitted)
[258] Director defendants' submissions, par 68 (White AB 149).
To the extent that the director defendants assert that the trial judge placed excessive weight on the terms of the proposed offer, the grounds do not disclose a proper basis for this court to interfere with the exercise of the trial judge's discretionary judgment. As was noted in Gelmi v The State of Western Australia:[259]
An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
[259] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [81], citing decisions including Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26].
In defamation proceedings, it is open to the trial court to give significant weight to the adequacy or inadequacy of an apology proffered as part of a defendant's settlement offer in assessing whether it was unreasonable for the plaintiff not to accept the offer. The director defendants accept that reparation of harm to a plaintiff's reputation, consolation for personal distress and vindication of a plaintiff's reputation are three important purposes served by an award of damages for defamation.[260] The Defamation Act refers to the significance of an apology at various points. The court may have regard to a correction or apology in deciding whether an offer to make amends is reasonable (which may provide a defence under s 18 of that Act).[261] An apology is protected under s 20 of the Defamation Act so as not to be admissible in determining fault or liability. The fact of an apology is evidence in mitigation of damages under s 38(1)(a) of that Act. In these circumstances, it is open to a court to regard an offer to apologise as a matter bearing significantly on the value of an offer to settle and whether failure to accept an offer was unreasonable for the purposes of exercising its costs discretion.
[260] Director defendants' submissions, par 59 (White AB 144), citing Rayney [146] - [155].
[261] Defamation Act, s 18(2)(a).
It would have been an error of principle if the trial judge had held that it could not be unreasonable to refuse to accept a Calderbank offer which was not accompanied by an 'adequate' apology, or to fail to consider other aspects of the offer in deciding whether Dr de Kauwe unreasonably failed to accept the offer. However, when his Honour's reasons are read as a whole, it is apparent that the trial judge did not make an error of that kind. Generally, the judge did not refer to the proposed apology as inadequate, but rather assessed the ways in which it was of less value than the judgment. The trial judge had regard to all the circumstances. The extent to which the apology would vindicate Dr de Kauwe's reputation and console his personal distress in comparison to a judgment in his favour was only one of those circumstances. The judge correctly identified the factors which lessened the value of the proposed apology in comparison to a judgment in Dr de Kauwe's favour. His Honour was entitled to accord significant weight to that factor in assessing whether the failure to accept the offers was unreasonable in all the circumstances of each offer. No error of principle was involved in the trial judge's approach.
The passage quoted at [320] above must be understood in its context. It forms part of the discussion of the offer of 28 January 2021 only. The judge found the amount of compensation offered on 28 January 2021 to be substantially more favourable to Dr de Kauwe than the damages under the judgment he subsequently obtained even taking interest into account.[262] The difference between the costs taxed on the basis of a special costs order and the party/party costs offered would have eaten up a 'substantial part' (but not all) of the difference between the compensation offered and judgment damages.[263] The judge found that the 'proffered apology was of less benefit to Dr de Kauwe than the vindication he obtained by the court judgment'.[264] The time for which the 28 January 2021 offer was open was manifestly unreasonable.[265] In this context, the reference to the inadequacy of the proffered apology is to the repeated statements in earlier parts of the reasons as to the lesser value of that offer when compared to a judgment.[266] The trial judge is saying that, while the compensation offered was of greater value than the judgment damages, the lesser value of the apology meant that, overall, the 'offer was not more favourable to Dr de Kauwe than the judgment he obtained'.[267] The trial judge found that this was a sufficient basis for concluding that the failure to accept the offer was not unreasonable regardless of the fact that the offer was open for an unreasonably short period (which the judge addressed in the sentence following the quote at [320] above).
[262] Supplementary decision [133] read with [118].
[263] Supplementary decision [133] read with [122].
[264] Supplementary decision [132].
[265] Supplementary decision [138].
[266] Supplementary decision [87], [95], [117], [132].
[267] Supplementary decision [131].
Counsel for Mr Pamensky also refers to the fact that the judgment could not require the defendants to publish an apology and that damages should compensate for the absence of an apology.[268] However, the publication of a judgment of the court provides for its own vindication of a plaintiff's reputation. Where a private settlement is offered, there will ordinarily be no public vindication of the plaintiff's reputation except to the extent that a public apology is offered by the defendant.
[268] Mr Pamensky's submissions, pars 30 - 33 (White AB 200), citing Cassell & Co Ltd v Broome [1972] AC 1027, 1071.
For the above reasons, grounds 3.1(a) - (c) of the director defendants' cross-appeal are not established.

Alleged error as to the value of offer of compensation and costs

Ground 3.1(d) of the director defendants' cross-appeal contends that the judge erred in the exercise of his discretion as to costs by concluding that it was marginal whether or not the compensation and costs offered on 14 October 2020 were more favourable to Dr de Kauwe than the judgment he subsequently obtained. It is contended that the trial judge thereby:
failed to give sufficient weight to the fact that the settlement sum offered of $650,000 significantly exceeded the monetary award in the plaintiff’s favour after trial.
The director defendants submit that the 'plain fact' is that, well prior to trial, they offered a greater sum than Dr de Kauwe recovered after trial.[269] Mathematically, that is undeniable: the director defendants offered $650,000 while the amount of judgment and interest awarded after trial was only $603,142.82. That is a difference of $46,857.18.
[269] Director defendants' submissions, par 66.8 (White AB 148).
However, I agree with the trial judge that, in comparing the 14 October 2020 offer and the judgment ultimately obtained, it is necessary to take account of interest and costs to make a proper comparison. At the time the offer of 14 October 2020 was made, Dr de Kauwe was entitled to pre-judgment interest. The trial judge drew from his experience as case manager of the primary proceedings a conclusion that, even at the date of the 17 August 2020 offer, Dr de Kauwe was likely to obtain a special costs order, and that remained the case in October 2020.[270] The trial judge also in effect concluded that the additional amount obtainable if costs to that point were taxed on the basis of a special costs order (which the offer required Dr de Kauwe to forego) would be more than $46,857.18.[271] There is no proper basis for the view of this court to usurp these assessments by the trial judge who, as case manager of the primary proceedings, had a considerable advantage over this court in making the assessments.
[270] Supplementary decision [80], [90].
[271] Supplementary decision [90].
Mr Pamensky's submissions refer to the additional costs that a trial would impose on Dr de Kauwe and says that this should be brought to account in determining the value of the offers compared to the value of the judgment ultimately obtained.[272] I do not accept the submission that this is a critical factor. An offer which is significantly less than a plaintiff is entitled to at the time the offer is made is not unreasonably rejected merely because of the additional costs a trial will impose. Mr Pamensky's submission is inconsistent with the position adopted by this court in Civic Video Pty Ltd v Paterson,[273] where the trial judge in that case was held to have erred in taking into account costs incurred by the recipient of a Calderbank offer after the offer was made.
[272] Mr Pamensky's submissions, pars 22 - 24 (White AB 198).
[273] Civic Video Pty Ltd v Paterson [2016] WASCA 69[99] (Newnes JA, McLure P and Corboy J agreeing).
In my view, the trial judge was correct to conclude that it is marginal whether or not the compensation and costs offered on 14 October 2020 were more favourable to Dr de Kauwe than the judgment he subsequently obtained. It was certainly open to the trial judge to reach that conclusion. The weight to be given to the fact that the amount of compensation offered exceeded the amount of compensation and pre-judgment interest awarded by $46,857.18 was a matter for the trial judge in the exercise of his discretion. Ground 3.1(d) is not established.

Whether error should be inferred

Ground 3.2 of the director defendants' cross-appeal contends that the trial judge should have found that, by virtue of the proffered apology, compensation and costs offered on 14 October 2020, it was unreasonable for Dr de Kauwe not to accept that offer so that he should pay the director defendants' costs of the proceedings from that date on an indemnity basis.
To the extent ground 3.2 depends on the success of ground 3.1, it fails with ground 3.1. To the extent that ground 3.2 asks this court to infer error from the outcome of the exercise of the costs discretion, it fails on the basis that that outcome is not unreasonable or plainly unjust.[274] It was reasonably open to the trial judge to conclude that, in all the circumstances, the fact that Dr de Kauwe did not accept the offer made on 14 October 2020 did not justify an order that he pay the director defendants' costs of the proceedings from that point.
[274] House (504 - 505).
Ground 5 is expressed only to pick up the reasons set out in ground 3.1, and so fails with ground 3.1.

The trial judge also concluded that Dr de Kauwe's failure to accept the offers made on 26, 27 and 28 January 2021 did not justify an order for costs being made against him. This decision of the trial judge is also not unreasonable or plainly unjust. In reaching the conclusion I note that the disparity between the amount of each of the offers of 27 and 28 January 2021 and the judgment sum was almost $250,000. The compensation offered was at least equal to the 'estimate of damages substantially in excess of $750,000' which the trial judge found to be not unreasonable at that time.[275] Had I been determining the matter for myself, I may not have concluded that, in the context of the amount of compensation offered, the inadequacy of the apology was 'of itself a sufficient reason' to make Dr de Kauwe's failure to accept the offers not unreasonable.[276] However, when those factors are combined with the very short period for which the offers of 27 and 28 January 2021 were open and the proximity of the trial, then it was at least open for the trial judge to conclude that the failure to accept the offers was not unreasonable in all of the circumstances. The director defendants' grounds are not established to any extent that they assert that the exercise of the costs discretion by reference to the offers made in January 2021 was unreasonable or plainly unjust.

Party/party costs

[275] Supplementary decision [99].

[276] Supplementary decision [139].

Ground 4 of the director defendants' cross-appeal advances an alternative argument. This alternative argument is premised on the trial judge's conclusion that Dr de Kauwe's failure to accept the offer of 14 October 2020 was not unreasonable.
The director defendants contend that the judge ought to have compared the amount of the Calderbank offer of 14 October 2020 with the judgment sum and applied O 24A r 10(5) of the Rules of the Supreme Court 1971 (WA) (Rules) by analogy (grounds 4.1(a) and (b)). They also contend that the trial judge erred by equating the test for the award of party/party and indemnity costs by rejecting an application for party/party costs for the same reasons as his Honour rejected the application for indemnity costs. Ground 5 picks up ground 4.1 in relation to the later Calderbank offers.
In applying the Calderbank principles, the departure from the ordinary rule that a wholly successful plaintiff should have the costs of trial[277] is justified by the characterisation of the plaintiff's refusal to accept an offer as unreasonable. I see no basis on which the reasonable refusal to accept an offer constitutes conduct which should be sufficient to deprive a wholly successful plaintiff of the trial costs.
[277] See O 66 r 1(1) of the Rules.
There may be circumstances in which the refusal of an offer of payment impacts on the court's assessment of whether or not the plaintiff was wholly successful as a matter of substance.[278] That is the basis on which the judgment of Beech J in McKay v Commissioner of Main Roads (No 7),[279] on which the defendants in this case placed considerable reliance, should be understood. In McKay, the only issue was the amount of compensation payable by a public authority for the compulsory acquisition of Mr McKay's land. There was no issue that compensation was payable, and the only question was the amount. The court awarded compensation which was less than that sought by Mr McKay and more than that contended for by the acquiring authority. Mr McKay had, not unreasonably,[280] failed to accept a Calderbank offer which would have left him about $6 million better off than the judgment ultimately obtained.[281] Beech J found that, while the ordinary costs principles applied, the fact the case involved valuation for compensation for the taking of land was relevant to and part of the framework for the exercise of the costs discretion.[282] Beech J expressed his conclusion as to the general approach to be adopted in such cases in the following terms:[283]
In the context of a dispute about the amount of compensation, I think the justice of the case favours giving substantial weight to the Calderbank offer. … [G]enerally, in a land resumption compensation case a claimant should have its costs of obtaining due compensation. I accept the defendants' submission that the costs of obtaining due compensation end when an offer for more than that is made. In my view, in some cases at least, thereafter the claimant should pay costs.
[278] Cf, in the context of an assessment of damages in a negligence action, Commonwealth of Australia v Gretton [2008] NSWCA 117 [1], [91], [121] - [124] and, in the context of an appeal against the assessment of damages for defamation, Roberts v Prendergast [2013] QCA 89 [15].
[279] McKay v Commissioner of Main Roads (No 7) [2011] WASC 223 (S); (2011) 185 LGERA 118.
[280] McKay [126].
[281] See McKay [39].
[282] McKay [43], [85].
[283] McKay [172].
The parties have not cited,[284] and I have not located, any cases in which the approach adopted in McKay has been applied to cases not involving the assessment of compensation for the compulsory acquisition of land.[285] In my view, the approach has no application in the circumstances of the present case. In the present case, the issue of the defendants' liability for the publications, whether the publications caused the particularised loss and the quantification of damages for that loss were all hotly contested at trial. Dr de Kauwe succeeded on all of these issues. In my view, in all the circumstances of the present case, it was not open to conclude that Dr de Kauwe's reasonable failure to accept the defendants' Calderbank offers meant that he was not a wholly successful plaintiff. In those circumstances, once the trial judge concluded that the failure to accept those offers was not unreasonable, there was no proper basis for concluding that the failure to accept the defendants' offers justified an order that the wholly successful plaintiff should pay the defendants costs from the time of the offers.
[284] See appeal ts 276 - 277.
[285] McKay was distinguished in Civic Video [101].
Nor was there any proper basis for applying O 24A r 10(5) of the Rules by analogy. That approach for which the director defendants' advocate finds no support from McKay.[286] The director defendants' approach is not correct as a matter of principle. Rule 10(5) creates a presumptive outcome of the exercise of the costs discretion where an offer meeting the requirements of O 24A is made by a defendant and not accepted by a plaintiff. That provision has no application where an offer does not meet the requirements of O 24A which condition the application of the presumption. A party who wishes to take advantage of the regime established by O 24A must comply with the relevant rules.[287]
[286] See McKay [119].
[287] As was observed, in a similar context, in Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd [2021] QCA 8; (2021) 7 QR 1 [74].
The trial judge's conclusion that Dr de Kauwe's failure to accept the Calderbank offers was not unreasonable and therefore was not such that the defendants should have their costs on a party/party basis was correct. Ground 4 of the director defendants' cross-appeal, and ground 5 so far as it picks up ground 4, is not established.

Mr Wright's and Mr Pamensky's position

Counsel for Mr Wright accepted in oral submissions that Mr Wright's challenge to the exercise of the trial judge's costs discretion depended on the admission of Dr de Kauwe's Calderbank offers.[288] As I have found Dr de Kauwe's offer is not admissible, grounds 4 - 6 of Mr Wright's appeal cannot succeed.
[288] Appeal ts 324 - 325.
Ground 2 of Mr Pamensky's cross-appeal and submissions advanced in support of that ground generally reflect the position adopted by the director defendants. I have dealt with Mr Pamensky's submissions to the extent they raise substantial additional arguments above.

Conclusion as to costs grounds

For the above reasons, the defendants have not established any miscarriage in the exercise of the trial judge's discretionary judgment as to the appropriate costs orders in the primary proceedings. None of grounds 4 - 6 of Mr Wright's appeal, amended ground 2 of Mr Pamensky's cross-appeal or amended grounds 3 -5 of the director defendants' cross-appeal have been established. While I would grant leave to appeal on the grounds which challenge only the costs orders,[289] the appeal and cross-appeals against the costs orders should be dismissed.
[289] See s 60(1)(e) of the Supreme Court Act 1935 (WA).
In these circumstances, it is unnecessary to deal with Dr de Kauwe's contention that the defendants should be allowed only one set of costs and that judgment should not be set-off against any costs order in the defendants' favour.[290]
[290] See Dr de Kauwe's re-amended submissions, pars 109 - 109J (White AB 55 - 57).

Orders

For the above reasons, none of the grounds of appeal or cross-appeal are established. Orders to the following effect should be made:
1.Leave to appeal is granted to the defendants to appeal against orders 6 - 8 of the primary orders (as to the costs of the primary proceedings).
2.Mr Wright's appeal is dismissed.
3.The director defendants' cross-appeal is dismissed.
4.Mr Pamensky's cross-appeal is dismissed.
5.Dr de Kauwe's cross-appeal is dismissed.

I would hear from the parties in relation to the costs of the appeal and the cross-appeals.

LUNDBERG J:

For the reasons given by Mitchell JA, I agree that orders 1 to 4 of the orders set out at [350] of his reasons should now be made. That is, the following orders should be made:
1.Leave to appeal is granted to the appellant and the second to seventh respondents to appeal against orders 6 – 8 of the primary orders.
2.The appellant's appeal is dismissed.
3.The second to sixth respondents' cross-appeal is dismissed.
4.The seventh respondent's cross-appeal is dismissed.
As to Dr de Kauwe's cross-appeal, I agree with Mitchell JA's reasons and his conclusion concerning the contention the primary judge failed to give reasons, or alternatively, adequate reasons, for the weight he gave to the contingencies (particular 1.3 to ground 1). Like Mitchell JA, I consider that contention should be rejected.
As to the balance of Dr de Kauwe's cross-appeal (particulars 1.1 and 1.2 to ground 1), I agree with the reasons given by Buss P. The cross-appeal should accordingly be dismissed, in my view.
I would hear from counsel as to the form of the orders which should be made and in relation to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
17 MAY 2024