Wright v De Kauwe

[2023] WASCA 42

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Stay of proceedings
3. › Suspension of enforcement of judgment pending appeal
4. › Special circumstances
5. › Whether appeal rendered nugatory
6. › Prospect that judgment sum not recoverable if appeal succeeds
7. › Whether reasonable prospects of success
8. › Balance of convenience
9. › Civil Judgments Enforcement Act 2004 (WA), s 15
1. Defamation
2. › Publication
3. › Participation in publication
4. › Whether media consultant who assisted in preparation of ASX announcement but did not draft or approve content was a publisher
5. › Degree of active and voluntary participation required
1. Defamation
2. › Damages
3. › Special damages
4. › Causation
5. › Loss of director's fees
6. › Whether defamatory ASX announcements materially contributed to plaintiff not being re-elected as director
7. › Inferential reasoning from circumstantial evidence
1. Defamation
2. › Damages
3. › Special damages
4. › Loss of opportunity
5. › Loss of opportunity to acquire share options
6. › Whether plaintiff proved loss of valuable opportunity
7. › Assessment of contingencies

Quick Take

Where an applicant for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) adduces evidence from publicly available records indicating the respondent lacks capacity to repay the judgment sum, and the respondent — who is best placed to adduce evidence of their own financial affairs — declines to do so, the court may more readily draw the inference of likely incapacity to repay. The respondent cannot defeat the application simply by relying on the inaccessibility of their financial affairs. The case also illustrates that where cross-appellants seek to challenge costs orders, the orders wanted should include set-off provisions to preserve the argument that the appeal would be rendered nugatory.