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Courtney v Pinnacle Media Group Ltd

 

[2020] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION:

Courtney v Pinnacle Media Group Ltd & Ors [2020] QSC 50

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 at Brisbane

DELIVERED ON:

27 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Bradley J

ORDER:

The order of the Court is that:

  1. The application to waive the requirement in rule 70 to serve the proposed eighth and ninth defendants is refused.
  2. The balance of the application filed 27 February 2020 is adjourned to a date to be fixed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – OTHER MATTERS – where the plaintiff commenced defamation proceedings against seven persons residing in the Cayman Islands – where the plaintiff applied to join as defendants two other persons residing in the Cayman Islands – where the plaintiff has not amended the statement of claim to plead imputations proposed to be common to the causes of action against the existing defendants and the proposed defendants and to delete those not proposed to be common – where the plaintiff failed to identify the words in the publication he intends to allege were defamatory and which gave rise to each  of five proposed imputations – where the plaintiff failed to provide particulars of publication of the matter in Queensland – where the plaintiff failed to provide particulars of any claim for damages, including compensatory damages, economic loss and aggravated damages –  where the plaintiff did not serve the proposed new defendants with the application – whether the requirement to serve the proposed new defendants should be waived – whether the proposed new defendants should be joined to the proceeding

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 69, r 70

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited

Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140, cited

Frigger v Trenfield (No 3) [2020] FCA 150, applied

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, considered

Godden v State of Queensland (2018) 84 MVR 5, cited

Goody v Odhams Press Ltd [1967] 1 QB 333, cited

Hartnett v Hynes [2009] QSC 225, cited

Kestrel Coal Pty Ltd v Longwall Roof Supports Ltd [2003] QSC 187, cited

Kinsella v Gold Coast City Council (No 3) (2016) 215 LGERA 272, considered

Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217, applied

Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267, cited

SOLICITORS:

The submissions of the plaintiff, who appeared on his own behalf, were heard on the papers

No appearance for the defendants

  1. [1]
    When the publishers of news articles about the plaintiff’s crimes and punishment in the Cayman Islands failed to comply with his demands to “remove all publications” regarding him from their websites, he commenced this proceeding, on the other side of the globe.  He sued seven defendants involved in the news reports and claimed over $5 million in loss and damage.
  2. [2]
    Now, the plaintiff would add an eighth and a ninth defendant, both also based in the Cayman Islands.  He would make them defendants without prior notice.
  3. [3]
    To explain why leave should not be granted, it is necessary to note a few things about the plaintiff’s application.

The origin of the claim

  1. [4]
    The origin of the plaintiff’s claim may be sketched from the parts of his filed material that are not the subject of controversy[1] and from the published reasons for judgment of the Cayman Islands Court of Appeal.[2]
  2. [5]
    The plaintiff was an attorney, practising in the Cayman Islands.
  3. [6]
    On 25 January 2015, he lost control of the vehicle he was driving and hit two elderly pedestrians on the footpath.  They were both seriously injured.  The rear right wheel came off the car in the accident.  The plaintiff had been spent about five hours at a nearby hotel for a champagne brunch.  He left the scene of the accident on foot, before the police arrived.  He was captured on CCTV rushing through the hotel into the swimming pool area and leaving via the beach in the opposite direction to where he had left his victims, his wife and his car.  He presented himself to the police at about 5:00 pm the following day.
  4. [7]
    On 5 May 2015, the plaintiff was charged with offences related to the accident.
  5. [8]
    On 7 May 2015, the first defendant published an article, “Attorney charged with ‘grievous harm’ in hit-and-run”, on its news website, caymancompass.com.  It was written by the second defendant, a journalist.
  6. [9]
    On 4 December 2015, the plaintiff was indicted on two counts of inflicting grievous bodily harm[3] and one count of dangerous driving.[4] He entered a plea of not guilty to each count.
  7. [10]
    On 5 December 2015, an article, “Lawyer denies GBH and dangerous driving”, was published, apparently by the third and fourth defendants.  The third defendant maintains the news website caymannewsservice.com.  The fourth defendant is a writer of news articles for the website.
  8. [11]
    On 8 June 2016, the trial commenced.  A count of dangerous driving was added to the indictment.[5]  Over the following days, evidence was adduced from witnesses, including from the plaintiff.
  9. [12]
    On 8 June 2016, an article, “Corporate lawyer in dock over tourist hit and run”, was published, apparently by the third and fourth defendants.
  10. [13]
    On 16 June 2016, another article, “Accused hit & run lawyer woke up in bushes”, was published, again apparently by the third and fourth defendants.
  11. [14]
    On 17 June 2016, the plaintiff was convicted by a jury of two counts of inflicting grievous bodily harm and one count of reckless driving.  At the time of his conviction, the plaintiff was on bail for offences of speeding, driving under the influence of alcohol, dangerous driving and driving without a licence.  He was subsequently convicted of these other offences.
  12. [15]
    On 19 June 2016, an article, “The Editor speaks: Fathers and a reckless lawyer”, was published, apparently by the sixth and seventh defendants.  The sixth defendant maintains the news website ieyenews.com.  The seventh defendant is the editor of the website.
  13. [16]
    On 7 July 2016, the court sentenced the plaintiff.  The trial judge adopted a starting point of two years imprisonment for each count of inflicting grievous bodily harm, because the plaintiff had consumed alcohol, and then increased each sentence to three years based on aggravating factors, namely serious injury to more than one person, leaving the scene, and the fact the plaintiff was on bail for motoring offences at the time of the offending.  He was sentenced to eighteen months imprisonment on the count of reckless driving.  All three sentences were ordered to be served concurrently.
  14. [17]
    On 10 July 2016, an untitled article about the traffic accident, the trial and the sentence was published, apparently by the sixth and seventh defendants.
  15. [18]
    On 27 December 2016, the first defendant published an article, “Lawyer sentenced for hit and run”, within a feature entitled “These are Cayman’s top stories of 2016”.[6]
  16. [19]
    On 9 March 2017, the Cayman Islands Court of Appeal heard the plaintiff’s appeal against the convictions and the sentence.
  17. [20]
    On 10 March 2017, an article, “Jailed hit-and-run lawyer awaits appeal decision”, was published, apparently by the third, fourth and fifth defendants.  The fifth defendant is a monitor and moderator of comments on the third defendant’s website, caymannewsservice.com.
  18. [21]
    On 5 April 2017, the Court of Appeal dismissed the plaintiff’s appeal.  All eight grounds of appeal against conviction were rejected.  In dismissing the appeal against sentence, the Court of Appeal observed the following about the trial judge’s sentencing remarks:

“As he was entitled to as the trial judge, the judge set out his conclusions in robust terms.  In short, he said the conviction was on the “clearest possible evidence,” that it was clear the appellant “fled” the scene leaving the victims lying there, that his first thought was for himself, that he had a cellphone which he did not use to call for assistance, that he lied when he claimed he was the “first responder,” that his expressions of remorse were “disingenuous,” that he spent 12 hours hiding from the police after the accident until the effects of the alcohol he had consumed had left his system, that his claim of concussion was false, that he was when driving “the worse for drink,” that his driving was impaired by drink, that he drove too fast for the conditions, that the conduct of his defence did him no credit and that he “tried to evade [his]…responsibility at every turn.” The judge referred to the victim impact statements which disclosed life affecting injuries.  He accepted that by his actions the appellant had destroyed his life and career.  He referred to the fact that the appellant was on bail for driving offences at the time.”[7]

  1. [22]
    On 6 April 2017, two articles were published.  One, “All hit-and-run lawyer’s appeals rejected”, apparently by the third, fourth and fifth defendants; and the other, “Courtney loses appeal in reckless driving case”, by the first defendant.
  2. [23]
    On 21 February 2019, the plaintiff’s then solicitor wrote to the first defendant complaining about “various statements” published and made accessible online from the Cayman Islands.  The nub of the complaint was expressed in these terms:

“… our client was referred to as a “hit and run driver”.  Please note that these statements are inaccurate.  Our client stopped at the scene of the accident and did not drive away.  Further, our client has never faced trial for leaving the scene of an accident let alone been convicted for this.  As such, these statements are false and defamatory.”

  1. [24]
    The plaintiff’s solicitor “warned and notified” the first defendant to remove “all publications” regarding the plaintiff from its website and to “CEASE AND DESIST making further false and defamatory statements.”
  2. [25]
    The same day, the plaintiff’s solicitor wrote to the sixth defendant complaining about publications in which the plaintiff was “accused of being intoxicated and guilty of leaving the scene of an accident”.  This defendant was also warned and notified to remove all publications about the plaintiff and to “CEASE AND DESIST”.
  3. [26]
    On 29 April 2019, the plaintiff was deported from the Cayman Islands.  The plaintiff intends to allege that the proposed eighth and ninth defendants published an online news article that day.[8]  The plaintiff says the proposed eighth defendant maintained the news website caymanmarlroad.com, where the news article appeared, and the proposed ninth defendant was the administrator of the website.

The proceeding to date

  1. [27]
    On 30 May 2019, the plaintiff commenced this proceeding in the Brisbane registry of this court, naming the seven defendants, each located in the Cayman Islands.
  2. [28]
    In his statement of claim, the plaintiff pleaded the publication of nine of the articles noted above.[9]  He alleged that the matter published in each of the articles, in its natural and ordinary meaning, meant and was understood to mean 13, 14 or 15 separate imputations, each of which was defamatory of him.[10]  He claimed $4,770,000 as economic loss, $376,500 as general compensatory damages and $250,000 as aggravated damages, interest on each amount, a declaration that all of the imputations are false, and costs.
  3. [29]
    On 27 August 2019, defences were filed: one on behalf of the first and second defendants; one by the third, fourth and fifth defendants; and one by the sixth and seventh defendants.  It is sufficient to describe them briefly to indicate that the plaintiff’s various claims are opposed.
  4. [30]
    The first and second defendants denied the matters published by them bore or were understood to bear any of the meanings alleged by the plaintiff.  They also defended on the grounds that their publications were true or substantially true, fair reports of a proceeding of public concern, reasonably published by them about the decision of the Court of Appeal (being a matter of public interest) in the course of giving readers information about the decision, or expressions of opinion related to a matter of public interest based on proper material.[11]  As well, they pleaded that each cause of action was statute barred, as the plaintiff had not alleged any article had been published in any Australian State or Territory since 30 May 2018 (one year before the proceeding started).[12]
  5. [31]
    The third, fourth and fifth defendants contended that all of their publications “convey an accurate summary of the court cases” concerning the plaintiff.  Their defence stated that “as a convicted felon” the plaintiff caused the damages to himself and his claim was “a frivolous and malicious attempt to stifle the freedom of the press”.
  6. [32]
    The sixth and seventh defendants contended the claim was “frivolous and without any merit whatsoever.”  They pleaded that their publications “endorsed and presented” remarks in court from the trial and the appeal.
  7. [33]
    On 4 September 2019, the plaintiff filed an amended statement of claim.[13] In it, he pleaded the publication “to the website” of the first defendant of a tenth matter, on 27 December 2016.  The article appeared within a feature titled “These are Cayman’s top stories of 2016”.  The full text of the article is as follows:

Lawyer sentenced for hit and run

Lawyer Simon Courtney was sentenced to three years’ imprisonment as a result of a hit-and-run crash that seriously injured two tourists along West Bay Road.  The crash occurred in January 2015.”

  1. [34]
    From the heading and two sentences (a total of 39 words) the plaintiff alleged an ordinary reasonable person understood the article to have 14 separate meanings (pleaded by a total of 110 words).  According to the plaintiff, this article “in its natural and ordinary meaning meant and was understood to mean” that the plaintiff:

“(a) drove away from the scene of an accident to escape detection;

  1. (b)
    committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
  1. (c)
    is a source of shame for the community;
  1. (d)
    is a source of shame for the legal community;
  1. (e)
    is not fit to practice [sic] as a lawyer;
  1. (f)
    is characterised by a lack of truth, dishonesty [sic] and trustworthiness;
  1. (g)
    is morally corrupt and someone to be shunned or avoided;
  1. (h)
    is a detestable person;
  1. (i)
    is a spiteful and detestable man;
  1. (j)
    is mentally unbalanced;

(k) has no value or redeeming qualities whatsoever;

(l) is of low character and an object of contempt; 

(m) is a risk to the community; and 

(n) is a dangerous fool.”

  1. [35]
    All save the last of these imputations are alleged to have been conveyed by other publications the subject of the plaintiff’s claim.
  2. [36]
    On 16 September 2019, the first and second defendants filed an amended defence, denying the 27 December 2016 article had any of the 14 meanings alleged by the plaintiff.  They included further and alternative defences that, if the article did bear any of those meanings, then it was substantially true and/or an honest opinion of its author.[14]  They also raised the statute of limitation.

The proposed claim against the new parties

  1. [37]
    On 27 February 2020, the plaintiff filed the present application, together with his affidavit, a written outline of submissions and an “excerpt of draft pleadings”.  On 11 March 2020, he filed an affidavit of his former solicitor, who deposed that on 27 February 2020 he sent the application and the plaintiff’s affidavit by email to the existing seven defendants.[15]
  2. [38]
    In Kestrel Coal Pty Ltd v Longwall Roof Supports Ltd, Muir J explained that: 

“As the joinder application requires the exercise of a discretion, the merits of the case proposed to be advanced after joinder is a relevant consideration, at least where there are significant doubts concerning its prospects of success.”[16]

  1. [39]
    A draft of the proposed pleading should be provided, to show there is a good cause of action against the proposed defendants,[17] and that the application satisfies rules for joinder.[18]  As well, a draft permits any question of power or jurisdiction to be identified.[19]  The plaintiff has provided the “excerpt”, comprised of paragraphs he proposes to add by further amendment to the amended statement of claim, if the proposed new defendants are included.
  2. [40]
    If they are included, the plaintiff proposes to plead that on 29 April 2019 the eighth and ninth defendants published an online news article that was accessed from Queensland.  The plaintiff exhibits a copy of the news article.[20]  It features a photograph of the plaintiff smiling and the following text:

Hit and run lawyer deported

by CMR – April 29, 2019 in Breaking News

(CMR) Corporate lawyer Simon Courtney (51) was deported today after being convicted in July 2016 for running down an elderly couple whilst intoxicated.

Courtney was sentenced to three years after being found guilty on two counts of of [sic] unlawfully and maliciously inflicting grievous bodily harm, plus one charge of reckless driving.  The jury found him not guilty of dangerous driving, an alternative charge.

Courtney caused serious bodily harm to the visiting couple in an incident on Sunday, Jan. 25, 2015, shortly after 5 p.m., when his car left the road and hit the victims, who were walking on the sidewalk along West Bay Road.  The car was a Mustang Shelby GT 500.  Accordingly [sic] to the case he accelerated right before hitting the couple.

The incident occurred after Courtney battened a champagne brunch at the Ritz-Carlton, Grand Cayman.  Believed to have been drunk at the time, based on witness evidence, he fled the scene and remained missing until the early hours of the next morning.  He denied being drunk and despite the evidence against him, remained steadfast in his claims of innocence, refusing to accept responsibility for the injuries he caused to the visiting couple.

In 2017 he was unsuccessful at appealing his sentence to the court of appeal.  Justice Quin, sitting as a single judge of the Court of Appeal, said only that the three judges hearing the matter on March 9 had rejected all eight grounds of appeal against conviction and rejected all grounds of appeal against sentence.”

  1. [41]
    In the “excerpt”, the plaintiff also sets out the imputations he proposes to plead  concerning this news article:

“56. In its natural and ordinary meaning, the tenth [sic][21] matter meant and was understood to mean (as separate imputations arising in respect of the plaintiff) that the plaintiff:

  1. (a)
    is a hit and run driver;
  1. (b)
    drove away from the scene of an accident;
  1. (c)
    committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
  1. (d)
    actively took steps to avoid detection by the police;
  1. (e)
    attempted to pervert the course of justice.”
  1. [42]
    The news article headline appears to convey that the plaintiff was a “hit and run” driver.  It is not immediately obvious that the news article conveys the last four of the imputations the plaintiff proposes to plead against the new parties.
  2. [43]
    The plaintiff does not identify the words in the news article he says are defamatory and he does not particularise the words he alleges give rise to each of the five imputations.  This is not a new issue for the plaintiff.[22]
  3. [44]
    Had the proposed new defendants been served, they might have urged the court not to make them parties until the allegations against them were properly formulated.
  4. [45]
    The proposed new defendants might also have made submissions about the substance of the proposed pleading against them.  It appears to be common ground that the plaintiff was convicted, sentenced and imprisoned.  The convictions are matters of public knowledge, having occurred in open court.  They concern the plaintiff’s conduct the subject of the news article.  The seriousness of his offending might be gauged by the sentences of three years imprisonment on each of the more serious counts and 18 months for reckless driving.[23]  The sentencing judge considered the plaintiff’s conduct at the time of the offending, including that his driving was impaired by the alcohol he had consumed, his departure from the scene, leaving the two seriously injured pedestrians, and his failure to report to the police until the following day.  The convictions might be accepted “as giving the best guide to his reputation and standing”.  In the words of the Master of the Rolls, “what better guide can there be to his character and reputation than his previous convictions?”[24]
  5. [46]
    The plaintiff’s complaints about the proposed new defendants’ article appear to be: that he was a “hit and walk driver”, rather than a “hit and run driver”, as he left the accident scene on foot, not by car; and that he was convicted of inflicting grievous bodily harm and reckless driving with the aggravating circumstance of leaving the scene, but not “the criminal offence in the Cayman Islands of leaving the scene of an accident”.  The plaintiff would allege he was defamed because the news article meant he “actively took steps” to avoid police detection, when he merely stayed away from the police until the close of the following day.[25]
  6. [47]
    The proposed new defendants might have asked the court to consider whether the plaintiff’s reputation, as a person convicted and sentenced for his crimes, could be further materially damaged by the news article reporting them in the context of his deportation.  Perhaps, he shares the Black Knight’s bravado, regarding his recent criminal history as “just a flesh wound” and “but a scratch” on his reputation.

The problem about publication

  1. [48]
    According to the excerpt, the plaintiff would plead:

“53. On 29 April 2019 the eighth and ninth defendants published an online news article (tenth matter) which could be accessed from each of the States and Territories of Australia and was, at a minimum, accessed from the State of Queensland.  …”

  1. [49]
    In the pleading excerpt the plaintiff does not allege that the news article was published to any person in Queensland or elsewhere in Australia.  Nothing is stated about the extent of publication.[26]
  2. [50]
    The publication of defamatory matter to a third party is fundamental to a cause of action in defamation.  The proposed new defendants are entitled to know the case to be put against them about publication of the news article in this State, and the extent of publication, including where it is an inferential case.[27]  If the plaintiff does not, or cannot, plead publication in Queensland or in Australia, or the facts from which the inference of publication should be drawn, then the prospects of his cause of action might be assessed accordingly.  Simply put, the excerpt is insufficient for this purpose.
  3. [51]
    Since 13 November 2019, the plaintiff has been on notice that his amended statement of claim is unsatisfactory in the same respects.  On that day, the Chief Justice ordered that:

“5. The plaintiff identify and particularise in the amended statement of claim the names and addresses of the third party he alleges viewed and downloaded the articles [published on 7 May 2015, 6 April 2017 and 27 December 2016] in Queensland and in any of the other States and Territories of Australia, within 30 days”.

  1. [52]
    No further particulars have been filed in accordance with r 160.

The position with respect to damages

  1. [53]
    On 13 November 2019, the Chief Justice also ordered that:

“6. The plaintiff is to particularise his claim for general compensatory damages in the amended statement of claim to comply with rule 155 of the Uniform Civil Procedure Rules 1999 (Qld), within 30 days of this order, including particulars which identify:

  1. (a)
    the basis on which the amount claimed has been worked out or estimated; and
  1. (b)
    the extent of publication and/or republication of each of the matters on which he relies for his claim for damages in this jurisdiction.
  1. The plaintiff is to particularise his claim for damages for economic loss in the amended statement of claim to comply with rule 155 of the Uniform Civil Procedure Rules 1999 (Qld), within 30 days of this order, including particulars which identify:
  1. (a)
    the exact circumstances in which the loss or damage was suffered; and
  1. (b)
    the basis on which the amount claimed has been worked out or estimated.”
  1. [54]
    No further particulars have been filed. 
  2. [55]
    The excerpt of draft pleading includes nothing that would remedy the inadequate pleas about damages.  In fact, the excerpt includes nothing about the plaintiff having suffered any loss or damage as a result of the publication of the 29 April 2019 news article.  If, as it seems, the plaintiff proposes to claim against the proposed new defendants for damage of the kinds he presses against the existing defendants, then he should produce a proposed pleading that pleads every fact, matter or circumstance the plaintiff would rely upon to claim any economic loss or compensatory or aggravated damages against the proposed new defendants.[28]

Including new parties

  1. [56]
    The power of the court to add new parties is conferred by r 69, which relevantly provides that the court may order the inclusion as a party of:

a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.”[29]

  1. [57]
    The “matters in dispute in the proceeding” are those in dispute on the pleadings exchanged in the proceeding.  At present, the plaintiff alleges 13, 14 or 15 imputations are conveyed by each of the ten separate publications in the amended statement of claim.  Of the five imputations proposed to be alleged against the new parties, only one is alleged to have been imputed by any of the other ten publications.[30]  Another is similar, but not identical, to an imputation alleged to be conveyed by each of the other publications.[31]
  2. [58]
    The amended statement of claim alleges 14 other imputations were conveyed by one or more of the ten publications.  None of these other imputations is to be alleged to have been conveyed by the proposed new defendants’ news article on 29 April 2019.
  3. [59]
    Acknowledging this, in his written submissions the plaintiff conceded that the “defamatory imputations currently contained in the amended claim and statement of claim … could benefit from clarification”.  He proposes to file a further amended statement of claim.  In it he says he will delete the allegations that the many other imputations arise from each of the existing ten publications and instead allege that the five imputations (said to be conveyed by the 29 April 2019 news article) arise from each of the publications.
  4. [60]
    The commonality, on which the plaintiff relies to join the new parties, will only arise if and when such a further amended statement of claim is filed.  The plaintiff could have made the foreshadowed amendments at any time, under r 378.  No explanation for his failure to amend has been proffered.
  5. [61]
    If the plaintiff abandons the present alleged imputations and replaces them with the proposed five imputations, then the position will be different.  In this way the plaintiff may make good his submission that it would be convenient to have the court determine all his claims in a single proceeding.  At present, if given leave, he would be joining separate claims, with different alleged tortfeasors about separate publications alleged to have different meanings, with the most recent being published more than two years after the last of the existing matters of complaint.
  6. [62]
    The discretion conferred by r 69 should be exercised in light of the purpose of the UCPR – to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense[32] and with the objective of avoiding undue delay, expense and technicality.[33]  As with similar discretionary matters, the principles discussed by the High Court in Aon Risk Services Australia Ltd v Australian National University[34] can inform the exercise of the discretion to join a new party.[35]
  7. [63]
    There is a distinction between, on the one hand, adding a party who is necessary for the just and expeditious resolution of the real issues and, on the other, adding a party to raise new claims and new issues.  The latter course may prolong the litigation and increase the costsPrejudice caused to other parties, other litigants and the court, if the joinder is allowed, must be considered.  This includes the strain the litigation imposes on litigants, particularly individual litigants, and witnesses.[36]  Where a party has had sufficient opportunity to plead their case, an application to join a new party may be refused for the sake of doing justice to the other existing parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
  8. [64]
    There has been some delay in bringing this application, although not a substantial one.  The plaintiff has explained that he was not aware of the 29 April 2019 news article at the time he filed the claim and statement of claim on 30 April 2019.[37]  This is entirely understandable.
  9. [65]
    No explanation is offered for the delay since that time.  The proceeding has been on foot for about 10 months.  Subject to compliance with the 13 November 2019 orders, the pleadings have closed.  The parties have made disclosure and, if there has been compliance with the Order of 11 December 2019, that process should now be complete.  Although the existing parties otherwise ought to be ready to seek trial dates, no dates have been fixed, so there is no relevant prejudice to other litigants.
  10. [66]
    The inclusion of the proposed new defendants would “start the clock” again in some respects.  The plaintiff’s intention to further amend the statement of claim to substantially change the alleged imputations will have an effect on progress, requiring answering pleadings, with the need to consider available defences to the new imputations.  However, the reduction in the number of imputations and the intention to make them common for each of the publications may mean the overall delay is not great.  The amendment and the joinder would involve the waste of some costs for the existing parties.  Presumably, the defendants would be entitled to their costs thrown away by the amendments.[38] This would not be a full indemnity, and none is proffered by the plaintiff.
  11. [67]
    The plaintiff submitted, correctly, that “the desirability of avoiding multiple proceedings, excessive costs and the possibility of divergent findings in separate proceedings traversing the same subject matter” weighs in favour of including the proposed new defendants.  However, it is not the only means to achieve that outcome.  If a claim were to be made against the proposed new defendants in a new proceeding and progressed with appropriate expedition, then that claim could be heard together with the existing claim, with appropriate directions about evidence and the examination of witnesses.[39]
  12. [68]
    The weight given to these various considerations, generally and in combination, depends upon the facts of each case.[40]  In this instance, they do not compel a refusal of the application to join new parties, nor do they mandate a positive outcome.[41]  The defects in the plaintiff’s case should be remedied.  He should make clear the cause of action he would press against the proposed new defendants.  These steps will confirm whether the plaintiff has met the requirement in r 69(1)(b)(ii) and, if so, whether the court’s discretion should be exercised in his favour.

Service of the application

  1. [69]
    An application to join a person must be served on the person, unless the court orders otherwise.[42]
  2. [70]
    The regular processes of the court seek to balance the respective rights of the suitors and the sued.  Crucial to those processes is notification of persons liable to be directly affected by relief sought from the court.  Without notice, a person is denied an opportunity to put their case to the court.  This infringes their usual and accepted rights.  The failure to serve a respondent also denies the court the benefit of argument from an adversary, potentially impoverishing the judicial process.
  3. [71]
    Exercising the power to order that an application not be served, allows the court to accommodate circumstances where service is not appropriate.  Some examples come readily to mind.  An applicant may not be able to find the person, after reasonable efforts to do so.  A limitation period might be about to expire.  A person to be joined might be without legal capacity and without a guardian or representative.  There might be reason to apprehend that notice would result in attempts to evade the court’s jurisdiction or defeat the court’s orders or judgments or other unlawful conduct. No such circumstances are said to be present here.
  4. [72]
    The plaintiff seeks an order “waiving” the requirement to serve the application on the proposed new defendants on this basis that:

“since the plaintiff could issue separate proceeding [sic] against the proposed eighth and ninth defendants, initiated by serving a claim and statement of claim, there is no prejudice to the proposed eighth or ninth defendants by the court waiving the requirement to serve this application on the proposed eighth and ninth defendants and instead relying on the second amended claim and statement of claim to commence the proceedings against the proposed eighth and ninth defendants.”

  1. [73]
    The right to commence a new proceeding against a person is not a sufficient basis for the court to waive service of a joinder application.
  2. [74]
    Had they been served, each of the proposed new defendants would have had an opportunity to consider the application, obtain professional advice about it and make submissions to the court.  They may have raised some of the considerations canvassed above.  They may have raise additional points and matters specific to their respective positions.  I am not satisfied that there is any good reason for them to be denied the opportunity to do so, which rule 70(2) otherwise affords them.

Conclusion

  1. [75]
    To be clear, I have not concluded that the whole of the proposed cause of action is “so obviously untenable that it cannot possibly succeed”, “manifestly groundless” or “so manifestly faulty that it does not admit of argument”.[43]  Whether any publication of the 29 April 2019 news article entitles the plaintiff to recover any damages for defamation from the proposed new defendants in this court is a question for another day.  However, the deficiencies in the proposed pleading and the absence of any proper contradictor, have led me to refrain from concluding that the plaintiff has “demonstrate[d] the existence of an arguable case, and one that is sufficient to resist the entry of summary judgment by the party sought to be joined.”[44]

Disposition

  1. [76]
    The application to waive the requirement to serve the proposed eighth and ninth defendants is refused.  The balance of the application filed 27 February 2020 is adjourned to a date to be fixed.

Footnotes

[1]Some matters are expressly admitted and others are taken to have been admitted in the absence of an express denial or non-admission in an answering pleading.

[2]R v Courtney (Unreported, Cayman Islands Court of Appeal, Goldring P, Field and Morrison JJA, 6 April 2017).  The decision is noted as Courtney v R 2017 (1) CILR Note 7.

[3]An indictable offence under s 204 of the Penal Code (2013 Revision) (Cayman Islands), which provided:

  1. “204.
    A person who unlawfully and maliciously wounds or inflicts any grievous bodily harm upon any other person, either with or without any weapon or instrument, commits an offence and is liable on conviction to imprisonment for seven years.”

[4]An offence under s 76 of The Traffic Law (2011 Revision) (Cayman Islands),which relevantly provided:

  1. “76.
    A person who drives a vehicle or animal on a road dangerously or recklessly, or at a speed or in a manner or in a condition which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road or place and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road or place commits an offence and is liable –
  1. (a)
  1. (b)
    upon conviction on indictment, to a fine of three thousand dollars or to imprisonment for a term of two years, or to both, and in addition –
  1. (i)
    shall, without an order by a court, automatically be disqualified for two years or such longer period as the court may order, from holding or obtaining a driver’s licence or driving a vehicle on the road, the period of disqualification to run from the date of conviction or the expiration of the sentence of imprisonment, as the court may order; and
  1. (ii)
    the particulars of the offence shall be endorsed on his driving record.”

[5]This was an alternative count to the reckless driving count.

[6]The detail of this article is set out at paragraph [33].

[7]R v Courtney at [125] (Goldring P, Field and Morrison JJA).

[8]See paragraph [41].

[9]Those on 7 May 2015, 5 December 2015, 8 June 2016, 16 June 2016, 19 June 2016, 10 July 2016, 10 March 2017 and 6 April 2017.  At that time, he did not make any claim or allegation about the 27 December 2016 article.

[10]The alleged imputations are quite lengthy.  Most are set out at paragraph [34] below, as they were repeated by the plaintiff when he added a claim about the “tenth matter”.

[11]These defences are expressed to be pursuant to the Defamation Act 2005 (Qld), ss 25, 29, 30, and 31.

[12]See Limitation of Actions Act 1974 (Qld), s 10AA.

[13]The plaintiff also filed a notice he was acting in person and a separate reply to each of the defences.

[14]Defamation Act, ss 25 and 31(2).

[15]There is no evidence the defendants were served with the outline of submissions or the pleading excerpt. None of the defendants has sought to be heard.  All are based in the Cayman Islands.  Five do not have local solicitors acting on the record.

[16][2003] QSC 187 at [16].

[17]Kinsella v Gold Coast City Council (No 3) (2016) 215 LGERA 272 at 278 [13] (Burns J).

[18]Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140 at [6] (Helman J).

[19]Godden v State of Queensland (2018) 84 MVR 5 at 10 [18] (Martin J).

[20]Affidavit of Simon Christopher Courtney filed 27 February 2020, exhibit SCC-1.

[21]Rather confusingly, the plaintiff’s “excerpt of draft pleadings” refers to the 29 April 2019 news article as the “tenth matter”.  The amended statement of claim already includes a “tenth matter”, being the publication by the first defendant on 27 December 2016.

[22]In the amended statement of claim, the plaintiff failed to identify the words he alleged were defamatory in each of the ten articles.  He failed to state which of those words he alleged gave rise to each of the 13, 14 or 15 different imputations.  On 13 November 2019, the Chief Justice ordered the plaintiff to remedy these defects, in his claims against the first and second defendants, within 30 days. No such particulars have been filed.

[23]The maximum penalty for inflicting grievous bodily harm was seven years’ imprisonment and the maximum penalty for reckless driving was two years’ imprisonment.

[24]Goody v Odhams Press Ltd [1967] 1 QB 333 at 341 (Lord Denning MR).

[25]Without more by way of pleading, it is difficult to identify words in the article that could be alleged to mean the plaintiff “attempted to pervert the course of justice”.

[26]The plaintiff appears oblivious to this issue, submitting “there is a good cause of action against the proposed eighth and ninth defendants and there is no issue with limitation periods”: Outline of submissions for the plaintiff filed 27 February 2020, paragraphs [12] and [16].

[27]Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 at [24], [25], [33] (Flanagan J).

[28]Uniform Civil Procedure Rules 1999 (Qld), rr 149(b), 150(1)(b), 150(2), 155, 157, 158(2) (UCPR).

[29]r 69(1)(b)(ii).

[30]“that the plaintiff … committed the criminal offence in the Cayman Islands of leaving the scene of an accident”: see paragraph 56(c) of the excerpt extracted at paragraph [41] above.

[31]“that the plaintiff … drove away from the scene of an accident to escape detection” (emphasis added): see paragraph [34] above.  Cf paragraph 56(b) of the excerpt extracted at paragraph [41] above.

[32]UCPR, r 5(1).

[33]r 5(2).

[34](2009) 239 CLR 175.

[35]See, by way of analogy, the application of these principles to the amendment of a pleading in Hartnett v Hynes [2009] QSC 225 at [12]–[22] (Applegarth J).  See also Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267 at [74] (Flanagan J, McMurdo P and Morrison JA agreeing).

[36]Four of the present defendants are individuals.  One of the proposed new defendants is an individual.

[37]Affidavit of Simon Christopher Courtney filed 27 February 2020, paragraph [11].

[38]UCPR r 386.

[39]rr 79, 80.

[40]Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267 at [100] (Flanagan J, McMurdo P and Morrison JA agreeing), citing Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at 275–276 [51] (Keane CJ, Gilmour and Logan JJ).

[41]Frigger v Trenfield (No 3) [2020] FCA 150 at [5] (Jackson J).

[42]UCPR, r 70(2).

[43]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ).

[44]Kinsella v Gold Coast City Council (No 3) (2016) 215 LGERA 272 at 278 [13] (Burns J).

Close

Editorial Notes

  • Published Case Name:

    Courtney v Pinnacle Media Group Ltd & Ors

  • Shortened Case Name:

    Courtney v Pinnacle Media Group Ltd

  • MNC:

    [2020] QSC 50

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    27 Mar 2020

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status