Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91 [2021] 20 QLR

SUPREME COURT OF QUEENSLAND CITATION: Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91 PARTIES: SIMON CHRISTOPHER COURTNEY (plaintiff) v PINNACLE MEDIA GROUP LTD (RENAMED COMPASS MEDIA LTD) (first defendant) BRENT FULLER (second defendant) CAYMAN NEWS SERVICE LTD (third defendant) WENDY LEDGER (fourth defendant) NICOLA WATSON (fifth defendant) iNEWS CAYMAN LTD (sixth defendant) COLIN WILSON (seventh defendant) FILE NO/S: BS No 5727 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 10 May 2021 DELIVERED AT: Brisbane HEARING DATE: 4 February 2021 JUDGE: Martin J ORDER: 1. Paragraphs 4(d), 11, 15, 44, 47 and, so far as they concern the first and second defendants, 48, 49, 50 and 51 of the further amended statement of claim are struck out. 2. The application by the plaintiff is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the plaintiff was the subject of a publication by the first and second defendants – where the plaintiff pleads that the publications were defamatory – where the first and second defendants apply to strike out all or part of the plaintiff’s further amended statement of claim – where the -- 1 of 10 -- 2 first and second defendants submit that the further amended statement of claim is defective – whether the further amended statement of claim discloses reasonable cause of action of defamation – whether the further amended statement of claim should be struck out – whether the plaintiff should have leave to replead PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the plaintiff applies for orders striking out certain paragraphs of the further amended defence – where the first and second defendants raise the defence of justification – where the first and second defendants raise the defence of honest opinion – whether the paragraphs should be struck out Defamation Act 2005, s 25 Uniform Civil Procedure Rules 1999, r 155, r 171 Courtney v Pinnacle Media Group Ltd [2020] QSC 50 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 Her Majesty the Queen v Simon Courtney [2016] CICOA (Criminal Appeal; Goldring P, Field and Morrison JJA; 6 April 2017) Strata Plan 47027 v McGinn [2018] NSWSC 1228 COUNSEL: S C Holland for the first and second defendants/applicants Plaintiff appeared for himself SOLICITORS: Minter Ellison for the first and second defendants/applicants [1] On 25 January 2015, Mr Courtney and his wife attended a champagne brunch at the Ritz Carlton Hotel on Grand Cayman. Grand Cayman is one of the Cayman Islands in the Caribbean. [2] The brunch commenced at noon and finished at about 5.00 pm which was when Mr Courtney and his wife left. It had rained heavily during the time they were in the hotel. He was driving a Ford Shelby GT500 Mustang which was described in criminal proceedings as a “super high performance” vehicle. [3] A short time after leaving the hotel, the Mustang suddenly and violently spun out of control. It turned through 360 degrees, mounted the footpath, and struck and seriously injured two pedestrians. One of the vehicle’s rear wheels came off during this episode. [4] The police arrived at the scene soon after, but Mr Courtney had left the scene. Mrs Courtney was still sitting in the front passenger seat. The police searched for, but did not find, Mr Courtney. Closed circuit television footage from cameras in the hotel showed that Mr Courtney had rushed through the hotel, into the swimming pool area and then left via the beach. He was moving in the opposite direction to that in which his injured wife, his own vehicle and the injured pedestrians were. -- 2 of 10 -- 2 [5] On 17 June 2016, Mr Courtney was convicted by a jury of two counts of inflicting grievous bodily harm and one count of reckless driving. He was sentenced to concurrent terms of imprisonment: on the two grievous bodily harm charges – three years, and on the reckless driving charge – 18 months. [6] He unsuccessfully appealed both his conviction and his sentences – Her Majesty the Queen v Simon Courtney.1 [7] Mr Courtney is a lawyer. He seeks damages for defamation against the first and second defendants because, in their publication the “Cayman Compass” Mr Courtney was described: (a) as having been charged in connection with a “January hit-and-run collision”, and (b) as having been sentenced “… as a result of a hit-and-run crash that seriously injured two tourists”. The applications [8] There are two applications before the court. The first and second defendants seek orders striking out all or part of the plaintiff’s further amended statement of claim (FASOC). Mr Courtney seeks to strike out parts of the first and second defendants’ amended defence. The articles [9] So far as the first and second defendants are concerned, the articles the subject of the claim, appeared on the Cayman Compass website. [10] The first appeared on 7 May 2015. It read: “Attorney charged with ‘grievous harm’ in hit-and-run. By Brent Fuller - May 7, 2015 A Cayman Islands attorney has been charged in connection with a January hit-and-run collision along West Bay Road that injured two tourists. Simon Courtney, 49, was charged Tuesday with dangerous driving, leaving the scene of an accident and inflicting grievous bodily harm in the January crash near the Ritz Carlton, Grand Cayman. He is due to appear in court on May 25. …” [11] The second article appeared on the website on 27 December 2016. It read: “Lawyer sentenced for hit and run. 1 [2016] CICOA (Criminal Appeal; Goldring P, Field and Morrison JJA; 6 April 2017). -- 3 of 10 -- 3 Lawyer Simon Courtney was sentenced to three years imprisonment as a result of a hit-and-run crash that seriously injured tourists along West Bay Road. The crash occurred in January 2015.” The FASOC [12] Mr Courtney has sued a number of people for different alleged defamations. This application only concerns the first and second defendants. The first defendant (Pinnacle) maintains a website for, among other things, the online version of the Cayman Compass newspaper. [13] The second defendant (Mr Fuller) was an employee of Pinnacle and the author of the first article. The application to set aside [14] The applicants seek to have the whole of the FASOC struck out or, in the alternative, identified paragraphs of the FASOC struck out. [15] The Uniform Civil Procedure Rules 1999 (the Rules) provides that the court may strike out a pleading, or part of a pleading, on a number of grounds, including that the pleading discloses no reasonable cause of action, or has a tendency to prejudice or delay the fair trial of the proceeding, or is otherwise an abuse of process of the course. See r 171. [16] Ms Holland, for the applicants, grouped the objections to the FASOC into three loose categories: (a) the failure to properly plead publication, (b) the failure to plead how each of the defamatory imputations arise from the words of the articles, and (c) the failure to properly plead the matters relied upon to establish the claim for damages including a failure to plead causal connection. [17] This matter has been before the court on more than one occasion. On 22 November 2019, the Chief Justice ordered that, within 30 days of the order, Mr Courtney: (a) identify and particularise in the amended statement of claim the words of the relevant articles which are alleged to be defamatory and which he alleges give rise to each of the imputations pleaded, (b) particularise his claim for general compensatory damages in the amended statement of claim to comply with r 155 of the UCPR (within 30 days of the order) including particulars which identify: (i) the basis upon which the amount claimed has been worked out or estimated, and (ii) the extent of publication and/or republication of each of the matters on which he relies for his claim for damages in this jurisdiction; (c) particularise his claim for damages for economic loss in the amended statement of claim (within 30 days of the order) including particulars which identify: -- 4 of 10 -- 4 (i) the exact circumstances in which the loss or damage was suffered, and (ii) the basis upon which the amount claimed has been worked out or estimated. [18] Mr Courtney has made some amendments to the FASOC but none of them constitute compliance with those orders. [19] I turn first to the group of paragraphs in which the applicants submit that the plaintiff has failed to plead the material facts of publication and should be struck out. The failure to properly plead publication [20] Paragraph 4(d) of the FASOC reads: “At all times material to this proceeding, the first defendant: … (d) at a time presently unknown, uploaded each and all of the publications complained of, as pleaded at paragraphs 11 and 44, and uploaded to the www.caymancompass.com website and pending disclosure of the weblogs and any other relevant material the plaintiff will invite the Court to infer that each of the said publications was accessed by and hence published to, a number of people in Australia. Such inference to be based on the average number of Australian visitors and the length of time that the publications were made available online.” [21] Paragraph 11 of the FASOC reads: “11. On 7 May 2015 the first defendant and the second defendant published an online news article of and concerning the plaintiff, written by the second defendant, (first matter) by uploading it to the first defendant’s website at the URL www.caymancompass.com. The first matter contains the language complained off: ‘A Cayman Island’s attorney has been charged in connection with a January hit-and-run collision’. At paragraph 10(d)(iva) of the first and second defendants’ amended defence filed on 16 September 2019 the first defendant admits uploading the first matter to its website. The first matter could be accessed from each of the States and Territories of Australia. The first matter was accessed from within the State of Queensland by: (a) Mr Antony Loizou, of 3 Compass Drive, Biggera Waters, Queensland 4216, Australia (a Queensland resident) at least once during the period from 30 May 2018 to 30 May 2019; and (b) Mr Philip Magoffin, of Level 6, 46 Edward Street, Brisbane Qld 4000 (a Queensland resident) at least once during the period from 30 May 2018 to 31 December 2018. -- 5 of 10 -- 5 The plaintiff also relies on the ‘grapevine effect’. The first matter continues to be available for access from each of the States and Territories of Australia.” [22] It is worth noting at this point that Mr Philip Magoffin is the solicitor who was acting for Mr Courtney when these proceedings commenced. [23] The final paragraph complained of under this grouping is paragraph 44 which reads: “44. On 27 December 2016 the first defendant published an online news article of and concerning the plaintiff (ninth matter) by uploading it to the first defendant’s website at the URL www.caymancompass.com. The language complained of is that the ninth matter is entitled ‘Lawyer sentenced for hit and run’ and in that article the plaintiff was referred to as having been sentenced for a hit-and-run crash. At paragraph 18(b)(ii) of the first and second defendants’ amended defence filed on 16 September 2019 the first defendant admits that the ninth matter was available to be accessed from its website. The ninth matter could be accessed from each of the States and Territories of Australia. The ninth matter was accessed from within the State of Queensland by: (a) Mr Antony Loizou, a Queensland resident, at least once during the period from 30 May 2018 to 30 May 2019 and was accessed again on 28 August 2019; and (b) Mr Philip Magoffin, a Queensland resident, at least once during the period from 30 May 2018 to 31 December 2018. The plaintiff also relies on the ‘grapevine effect’. The ninth matter continues to be available for access from each of the States and Territories of Australia.” [24] A critical element of the tort of defamation is the publication of the alleged defamatory article. The publication of alleged defamatory matter on the internet occurs where the recipient downloads the material, not where the publisher uploads the material. See Dow Jones & Company Inc v Gutnick.2 [25] The relevant date for the purposes of the cause of action is the date on which the publication is comprehended by the recipient: “It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded onto the computer of a person who has used a web browser to pull the material from the web server.”3 2 (2002) 210 CLR 575 at 600-601 [25]-[27] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 3 Ibid at 606-607 [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ. -- 6 of 10 -- 6 [26] The importance of the time of publication was emphasised by Parker J in Strata Plan 47027 v McGinn4 where he said: “[24] A critical element of the tort of defamation is that the allegedly defamatory material is published. The fact of publication, and in particular to whom the material is published on the occasion on which it is published, is an important part of the tort … If there is no publication, there can be no tort; and if there is publication, then the people to whom it is published and the occasion of its publication may be relevant to the existence of defences as well as to the quantum of damages.” (emphasis added) [27] Paragraph 4 of the FASOC does not plead the material facts of publication. The pleading of an inference of the kind set out is impermissible without allegations of facts which give rise to the alleged inference. Paragraph 4(d) is struck out. [28] Paragraph 11 of the FASOC does not plead the occasion of the publication of the alleged defamatory material. Paragraph 11 is struck out. [29] The mere statement that the plaintiff relies on the “grapevine effect” is inadequate as a pleading. The “grapevine effect” is accurately described in Social Media and the Law:5 “[4.275] Damage to reputation may occur from what has come to be described as the ‘grapevine effect’. The basis for the grapevine effect is that the real damage cannot be ascertained because it is impossible to track back the scandal, to know what quarters the poison may reach. The grapevine effect may enable the court to come to the view that the damage done to the plaintiff’s reputation was ‘natural and probable’ as a result of the original publication. It recognises that by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published, but is likely to be republished and spread by any means available.” [30] Of course, the grapevine effect is confined to further publication or spread within the jurisdiction. [31] If a plaintiff does rely upon the grapevine effect, then that must be stated, but in order to plead it there must be some allegations which demonstrate the extent of any ongoing publication. While the law recognises that defamatory material may be repeated or republished to others through the grapevine effect, it is still incumbent upon a plaintiff to plead the matters which give rise to the effect and the extent of the effect. That has not been done in this case. [32] Paragraph 11 does not properly plead the date or dates on which the act of downloading and reading the article of 7 May 2015 occurred. 4 [2018] NSWSC 1228. 5 (LexisNexis Australia, 2 nd ed, 2016). -- 7 of 10 -- 7 [33] Paragraph 44 is in a similar form to that of paragraph 11 but it relates to the second article the subject of the claim against the applicants. The only difference is a further pleading that the article was accessed again by Mr Antony Loizou on 28 August 2019. [34] The publication of defamatory material gives rise to a new cause of action on each occasion that it is published. But that depends upon the publication being to a person other than a person who has already been nominated as someone to whom the defamation has been published. It is pleaded that Mr Loizou accessed the second article at least once during the period 30 May 2018 to 30 May 2019. For the reasons given with respect to paragraph 11 of the FASOC this is an inadequate pleading. An allegation that it was accessed again by the same person on a specific date does not create a new cause of action with respect to that person. [35] Paragraph 44 is struck out. Are the pleaded imputations capable of being conveyed? [36] It is argued by the applicants that Mr Courtney does not particularise the words which he alleges give rise to each of the imputations set out in paragraph 15 and 47. The imputations which are alleged to arise from the articles include that the plaintiff: (a) is a hit and run driver, (b) drove away from the scene of an accident, (c) committed the criminal offence in the Cayman Islands of leaving the scene of an accident, (d) actively took steps to avoid detection by the police, and (e) attempted to pervert the course of justice. [37] As I have noted above, Mr Courtney has not complied with the order that he identify and particularise in the amended statement of claim the words of the relevant articles which are alleged to be defamatory and which he alleges give rise to each of the imputations pleaded. [38] The applicants are entitled to know what the plaintiff says are the parts of the publication which give rise to the imputations. The defendants should be aware of what precise statements are alleged to give rise to the imputations. The defamatory meaning which is complained of should also be pleaded. [39] Mr Courtney has had many opportunities to remedy the defects in his pleading. He has not. He has not complied with an order of the court with respect to this matter. That is sufficient to demonstrate that he cannot plead in accordance with the Rules with respect to this part of the pleading. Paragraphs 15 and 47 are struck out. The particulars of identification [40] This matter was not pursued. The defendants are aware of the articles. Failure to plead damages in accordance with the Rules [41] As I have noted above, Mr Courtney was required to provide particulars of damage by the order of 13 November 2019. He has not done that. -- 8 of 10 -- 8 [42] Mr Courtney claims nearly $5 million in damages for economic loss but has failed to provide any particulars of that claim. He has not pleaded any fact or circumstance upon which he could rely or, indeed, any causal connection between his inability to find employment as a solicitor and the alleged publication of the two articles in this State. [43] In his claim for general compensatory damages in the sum of $376,500, he, once again, has failed to provide any material setting out any particulars which would support the claim. [44] With respect to the claim for aggravated damages, Mr Courtney has not pleaded that anything done by the first or second defendant was improper, unjustifiable or lacking in bona fides. [45] Paragraphs 48 – 51 are struck out so far as they concern the applicants. Should Mr Courtney be given leave to replead? [46] Mr Courtney did not seek leave to replead should the application of the first and second defendants be successful. He is, though, unrepresented and so that omission does not carry the same weight as it would have had he been represented. [47] The applicants contend that the statement of claim, so far as it affects them, ought to be struck out pursuant to r 171(1)(e). That rule allows the court to strike out all or part of a pleading if it is an abuse of the process of the court. [48] The gist of Mr Courtney’s complaint about the articles published by Pinnacle is that he was not a “hit-and-run driver” but rather, as Bradley J observed in earlier proceedings,6 a “hit and walk driver”. In his argument before me and in his written submissions, Mr Courtney reagitated arguments which were largely unsuccessful before the Cayman Islands Court of Appeal. He argues that he has been damaged by the articles because the revelation to a prospective employer that publications existed in which he was referred to as a hit and run driver would cause him more damage than the truthful revelation that he was convicted of two counts of causing grievous bodily harm and reckless driving. That is fanciful. [49] These proceedings were commenced three years after the initial uploading of the first article and Mr Courtney has not been able to plead any matters which would satisfy the ordinary rules relating to the pleading of defamation actions. [50] In all the circumstances, I see no reason to give leave to replead for a case in which Mr Courtney has not demonstrated any reasonable prospects of success. The cross-application [51] Mr Courtney seeks to strike out paragraphs 21-25 of the further amended defence. In those paragraphs, the defence of justification under s 25 of the Defamation Act 2005 is relied upon. Mr Courtney takes issue with the fact that the first and second defendants raised the defence of justification in relation to only one of the pleaded imputations. If the matter had gone to trial, then the first and second defendants would have been entitled to rely upon s 25 if the only imputation found to be conveyed was 6 Courtney v Pinnacle Media Group Ltd [2020] QSC 50 at [46]. -- 9 of 10 -- 9 that the plaintiff was a “hit and run driver”. There is no reason to strike out this part of the further amended defence. [52] The plaintiff also raises a complaint about the pleading of the defence of honest opinion. This defence would arise if, on a trial, Mr Courtney were to be successful in establishing the imputation that he is a “hit and run driver”. There is a threshold question as to whether the words in either of the articles are capable of being regarded as statements of opinion. If that threshold is passed, then it is a question for the jury. [53] There is no established basis for striking out these parts of the further amended defence. Order [54] Paragraphs 4(d), 11, 15, 44, 47 and so far as they concern the first and second defendants, 48, 49, 50 and 51 of the further amended statement of claim are struck out. [55] The application by the plaintiff is dismissed. -- 10 of 10 --