Wright v De Kauwe [No 2]

Case [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)

Continue reading Wright v De Kauwe [No 2]

Sign in free to access the full text

Details
AGLC
Wright v De Kauwe [No 2] [2024] WASCA 51
Case
[2024] WASCA 51
Decision Date

CaseChat Overview and Summary

In this case, the plaintiff, Wright, brought a defamation claim against De Kauwe, asserting that defamatory material published online about Wright caused him to lose an opportunity to receive directors' fees and share options. The trial court found in favour of Wright and awarded him damages, including special damages for lost fees and options. De Kauwe appealed, arguing that the trial court had erred in various aspects of its assessment of liability and damages, as well as in its consideration of costs.

The court examined whether De Kauwe was liable for the defamatory material as a publisher. The court noted that liability for publication in defamation cases depends on the specific circumstances of each case, and found that the trial court's decision was supported by the evidence. The court also considered whether the loss of the opportunity to receive directors' fees and share options was directly caused by the publication of the defamatory material. The court found that the trial court's assessment of the value of the lost opportunity was appropriate, given the evidence presented.

In relation to costs, the court considered whether the trial judge erred in failing to find that Wright's rejection of De Kauwe's Calderbank offers was unreasonable. The court held that the trial judge did not err in this regard, as the evidence supported the finding that Wright's rejection was reasonable. The court also examined whether the trial judge erred in failing to consider whether any reasonable rejection of the Calderbank offers justified an order for Wright to pay De Kauwe's party/party costs from the date of the offer. The court found that the trial judge's failure to make such a finding did not amount to an error. Finally, the court noted the significance of an apology in defamation proceedings and held that an apology may be relevant to the assessment of damages and costs.

The appeal was dismissed, and the trial court's orders for damages and costs were upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.