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Courtney v Cayman News Service Ltd[2022] QSC 37

Courtney v Cayman News Service Ltd[2022] QSC 37

SUPREME COURT OF QUEENSLAND

CITATION:

Courtney v Cayman News Service Ltd & Ors [2022] QSC 37

PARTIES:

SIMON CHRISTOPHER COURTNEY

(plaintiff)

v

PINNACLE MEDIA GROUP LTD (RENAMED COMPASS MEDIA LTD)

(first defendant)

AND

BRENT FULLER

(second defendant)

AND

CAYMAN NEWS SERVICE LTD

(third defendant)

AND

WENDY LEDGER

(fourth defendant)

AND

NICOLA WATSON

(fifth defendant)

AND

iNEWS CAYMAN LTD

(sixth defendant)

AND

COLIN WILSON

(seventh defendant)

FILE NO/S:

5727 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application for summary judgment filed on 14 July 2021

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2022

JUDGE:

Jackson J

ORDER:

The application for summary judgment filed on 14 July 2021 is dismissed.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – OTHER MATTERS – where the defendants published news articles or editorials concerning criminal court proceedings brought against the plaintiff in the Cayman Islands that the plaintiff alleges were defamatory – where the filed defences are not in accordance with the rules of pleading – whether the defendants have a real prospect of successfully defending the plaintiff’s claim – whether summary judgment should be given against the defendant

Defamation Act 2005 s 25, s 26, s 29

Uniform Civil Procedure Rules 1999 r 5, r 125, r 165, r 166, r 168, r 171, r 292, r 293

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

Barristers’ Board v Darveniza [2000] QCA 253, cited

Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256, cited

Charan v Nationwide News Pty Ltd [2019] VSCA 36, cited

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

Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91, cited

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, cited

Farquhar v Bottom [1980] 2 NSWLR 380, cited

Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612, cited

Legal Services Commissioner v CBD [2012] QCA 69, cited

New Zealand Law Society v Stanley [2020] 1 NZLR 50, cited

Prothonotary v Gregory [2017] NSWCA 101, cited

R v Courtney (Unreported, Cayman Islands Court of Appeal, Goldring P, Field and Morrison JJA, 6 April 2017), cited

The Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, cited

UBS AG v Tyne (2018) 265 CLR 77, cited

Cambridge Dictionary

Collins Dictionary

Merriam Webster Dictionary

Oxford Dictionary

Patrick George, Defamation Law in Australia (3rd ed, 2017)

Plaintiff self-represented

Third Defendant represented by Fourth Defendant

Fourth and Fifth Defendants self-represented

Sixth Defendant represented by Seventh Defendant

Seventh Defendant self-represented

Jackson J:

Introduction

  1. [1]
    This application is brought in a proceeding started by claim in May 2019 by the plaintiff against seven defendants claiming damages for defamation.  The application is for summary judgment by the plaintiff against the third to seventh defendants.  The plaintiff applies for judgment in the sum of $376,500 by way of general compensatory damages, a further amount of $250,000 by way of aggravated compensatory damages and a further $4,770,000 by way of damages for economic loss.
  2. [2]
    It is remarkable that the proceeding is brought in this jurisdiction.  All of the publications of alleged defamatory matter were made on the defendants’ part by uploading online news articles or editorials between December 2015 and April 2017 in the Cayman Islands concerning criminal court proceedings brought against the plaintiff in the Cayman Islands over conduct of the plaintiff in January 2015 in the Cayman Islands.  The connections with this jurisdiction are that the plaintiff now lives here (he was deported from the Cayman Islands in April 2019 after serving part of a prison sentence) and he alleges that two individuals (who may be his acquaintances or friends – one of them was his lawyer) viewed and downloaded the articles in this jurisdiction in 2018 or 2019.  According to binding authority, it is the downloading or viewing in this jurisdiction that completes the publication that constitutes the cause of action of the tort of defamation in this jurisdiction[1] and, as well, the suffering of loss or damage in this jurisdiction that engages the “exorbitant” or “long arm” territorial jurisdiction of this court.[2]
  3. [3]
    The proceeding was started on 30 May 2019 and has made slow progress to date.  On 27 March 2020, the plaintiff’s application to join eighth and ninth defendants was refused.[3]  On 4 February 2021, the first and second defendants’ application to strike out paragraphs of the further amended statement of claim (“statement of claim”) was successful.  A cross-application by the plaintiff to strike out paragraphs of the first and second defendants’ further amended defence was refused.  On 15 December 2021, by consent, the plaintiff’s claim against the first and second defendants was dismissed.
  4. [4]
    The statement of claim, on which the present application for summary judgment is brought, included the now dismissed claims against the first and defendants for the same claimed loss as against the remaining defendants.
  5. [5]
    Before paragraph 11 was struck out, the statement of claim alleged publications of eight “matters” in the form of online news or editorial articles of and concerning the plaintiff of a cognate kind.  The now struck out paragraph 11 alleged that on 7 May 2015 the first and second defendants published an online news article that the plaintiff was a Cayman Islands attorney who had been charged in connection with a January 2015 hit-and-run collision, defined in the statement of claim as the “first matter”.  The now struck out paragraph 15 alleged that the first matter meant that the plaintiff:
    1. (a)
      is a hit-and-run driver;
    2. (b)
      drove away from the scene of an accident;
    3. (c)
      committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
    4. (d)
      actively took steps to avoid detection by the police; and
    5. (e)
      attempted to pervert the course of justice.
  6. [6]
    On 4 February 2021, the order by this court striking out those paragraphs was based in part on facts set out in paragraphs 1 to 7 of the reasons of Martin J as follows (a summary I gratefully adopt):[4]

“[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 5.00pm 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.

[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.

[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:

  1. (a)
    as having been charged in connection with a ‘January hit-and-run collision’, and
  1. (b)
    as having been sentenced ‘… as a result of a hit-and-run crash that seriously injured two tourists’.”
  1. [7]
    Those facts were taken largely from the reasons of the Cayman Islands Court of Appeal in The Queen v Courtney[5] published on 6 April 2017.
  2. [8]
    Other passages in the Cayman Islands Court of Appeal reasons should be noticed. In rejecting one of the plaintiff’s grounds of appeal against conviction, the Court of Appeal said:

“In our judgment, this ignores the reality of this case. In a nutshell, the prosecution’s allegation was that the appellant, in a built up area with pedestrians around, accelerated harshly in his powerful car in wet conditions, resulting in a complete loss of control of his vehicle, when (in respect of counts 1 and 2) he appreciated (or absent drink, would have appreciated) that he was running the risk of injuring people. That is what the jury was in the event sure of.”[6]

  1. [9]
    On the appeal against the appellant’s sentence of three years the Court of Appeal said:

“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.’”[7]

Alleged defamatory imputations

  1. [10]
    On 5 December 2015, the third, fourth and fifth defendants published the following online article of and concerning the plaintiff, defined in the statement of claim as the “second matter”:

“Lawyer denies GBH and dangerous driving

A Cayman-based corporate lawyer pleaded not guilty Friday to two charges of inflicting grievous bodily harm and one of dangerous driving when he appeared in the Grand Court. Simon Courtney (49) is accused of mowing down two tourists in January when he mounted the pavement near to Villas of the Galleon and the Ritz-Carlton on the West Bay Road while behind the wheel of a Red Ford Mustang Shelby. Having denied all three counts, the lawyer will face trial on 6 June.

Police said at the time of the collision, which happened around 5pm on Sunday 25 January, that the driver appeared to have lost control of his car. The couple who were hit both received serious head injuries, and while the woman was treated at the local hospital and made a full recovery, the man was airlifted to the United States and has since undergone two surgeries as a result of serious facial injuries he suffered.

Witnesses at the time said that the driver of the Mustang stopped for a moment and got out of the car and left a woman who was said to be a passenger at the scene of the crash before driving off.

Courtney is an associate with Forbes Hare, working in corporate finance, having arrived in Cayman some ten years ago.”

  1. [11]
    The statement of claim alleges the second matter contained the words complained of that:

“Witnesses at the time said that the driver of the Mustang stopped for a moment and got out of the car and left a woman who was said to be a passenger at the scene of the crash before driving off.”

  1. [12]
    Those words appeared in the second last paragraph of the article.
  2. [13]
    The statement of claim alleges that the natural and ordinary meaning of the words complained of was that the plaintiff:
    1. (a)
      is a hit-and-run driver;
    2. (b)
      drove away from the scene of an accident;
    3. (c)
      committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
    4. (d)
      actively took steps to avoid detection by the police; and
    5. (e)
      attempted to pervert the course of justice.
  3. [14]
    As to imputation (a), the words complained of do not carry the imputation that the plaintiff as a driver hit anyone.  That only emerges from the context of the article.  The words complained of mean that the plaintiff was a driver who drove away from the scene of an accident.  Accordingly, they carry the meaning of imputation (b).  As to imputation (c), the words complained of carry the imputation that the plaintiff left the scene but do not carry the imputation that the plaintiff committed the criminal offence in the Cayman Islands of leaving the scene of an accident.
  4. [15]
    As to imputations (d) and (e), nothing in the words complained of or in the context of the article suggested that the plaintiff actively took steps to avoid detection by the police or attempted to pervert the course of justice.
  5. [16]
    The article was, at least in part, a report of the court proceeding where the plaintiff was charged (in the Grand Court of the Cayman Islands) with offences of inflicting grievous bodily harm and dangerous driving and pleaded not guilty to those charges.  It is not clear whether the words complained of are a report of part of what was said during the proceeding or a separate account.
  6. [17]
    On 8 June 2016, the third, fourth and fifth defendants published the following online news article of and concerning the plaintiff, defined in the statement of claim as the “third matter”:

“Corporate lawyer in dock over tourist hit-and-run

Simon Courtney (50), a corporate layer with an offshore legal firm, appeared on a different side of the legal Bar on Wednesday, standing in the Grand Court dock as the crown opened its case against him for seriously injuring two tourists in a collision last year. The jury of three women and four men hearing the case were told that Courtney had lost control of his sports car after spending five hours at the Ritz-Carlton Champagne brunch, and then ploughed into a couple walking along the sidewalk by the Villas of the Galleon.

As she opened the prosecution’s case, crown counsel Trisha Hutchinson told the jury that Courtney was driving his Ford Mustang Shelby on 25 January 2015 in such a manner that he was responsible for inflicting grievous bodily harm on Cathy and Richard Schubert. The couple were on their way to eat dinner at the Sunshine Suites when they were struck down. Courtney has also been charged with dangerous and reckless driving.

A witness who was driving on the other side of the road at the time the couple were hit told the court she had seen the crash. She said the Mustang was driving towards West Bay as she drove her car towards town. She said the car appeared to be going fast and out of control before she saw it swerve into the West Bay Road central lane. She recalled how the car jerked quickly back into the left lane before it hit the couple, throwing them into the air.

CCTV shown to the jury showed the Mustang make the two swerves, lose control and spin around before ploughing into the couple, as a wheel flung off the car as it mounted the curb.

The witness recalled that the elderly couple had little time to react, as the man had tried to move the woman, whom she assumed was his wife, but they were both hit. She said he appeared to be very badly injured when she rushed to help in the wake of the crash. She said there was blood all around his head and he was spitting blood from his mouth and was disoriented. The witness also revealed that she had seen a man and a woman in the Mustang at the scene of the crash but by the time the emergency services had arrived, the man had disappeared.

The Schuberts, who were visiting Cayman when they were hit by Courtney’s Mustang, were both badly hurt and suffered serious head injuries. Cathy Schubert was treated at the George Town hospital but her husband was airlifted to the United States following the accident.

Courtney, who is represented by Trevor Burke QC, has denied all charges against him and the case continues before Justice Malcolm Swift in court one Thursday.”

  1. [18]
    The statement of claim alleges that the third matter contained words complained of that the plaintiff was “responsible for a hit-and-run accident”.  The article does not contain that text.  The words “hit-and-run” appear in the headline.  The opening of Crown counsel stated that the plaintiff drove his Ford Mustang in such a manner that he was responsible for inflicting grievous bodily harm.
  2. [19]
    In any event, the statement of claim alleges that the natural and ordinary meaning of the words complained of is that the plaintiff:
    1. (a)
      is a hit-and-run driver;
    2. (b)
      drove away from the scene of an accident;
    3. (c)
      committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
    4. (d)
      actively took steps to avoid detection by the police; and
    5. (e)
      attempted to pervert the course of justice.
  3. [20]
    As to imputation (a), the words complained of in the headline support the imputation that the plaintiff was a hit-and-run driver.  As to imputation (b), the article stated that it was shown on CCTV that a wheel of the car was flung off in the crash and evidence by a witness was that the plaintiff disappeared while there a woman who was in the crashed Mustang.  The words complained of (to the extent they were contained in the text) in the context of the article do not support imputation (b) or imputations (c) to (e). 
  4. [21]
    The article was a report of court proceedings at the trial of the plaintiff in the Grand Court of the Cayman Islands for the offences of inflicting grievous bodily harm and dangerous or reckless driving, in particular crown counsel’s opening and the evidence of some witnesses.
  5. [22]
    On 16 June 2016, the third, fourth and fifth defendants published the following online news article of and concerning the plaintiff, defined in the statement of claim as the “fourth matter”:

“Accused hit & run lawyer woke up in bushes

An offshore attorney who mowed down two visitors to the Cayman Islands after he lost control of his sports car, following a champagne brunch at the Ritz-Carlton, told the court that he woke up in the bushes the morning after the crash, “covered in blood, mud and sand”. Simon Courtney (50), who is a mutual funds lawyer, said he had very little memory of what happened after the crash in January 2015 but he denied being drunk and leaving the scene to avoid a breath-test.

Claiming to have sustained a concussion, though there is no medical evidence before the court to substantiate the injury, Courtney said he left the scene to fetch help for what he thought was just one victim and to find a phone because he did not have his own mobile with him as he had left it at home.

Taking the stand Wednesday after the crown closed its case against him for dangerous driving and inflicting grievous bodily harm on Cathy and Richard Schubert, the couple he knocked down on the West Bay Road, he revealed his version of events.

Courtney said he left the Ritz, with his wife in the passenger seat, at around 5pm that day, having been there for some five hours. But he had been drinking slowly during the $120 brunch, which includes unlimited champagne, and was not drunk as he knew he would be driving home.

He denied speeding away from the venue and skidding out of control on the wet roads before ploughing into the couple, who were walking along the pavement. Courtney stated that he was driving at a normal speed but suddenly felt a loss of traction in the rear wheel before the car swerved violently to the left. As he tried to correct it, he lost control of the Ford Mustang 633 HP and the car began to spin.

He said when the car came to a stop, he saw that he had hit a woman and immediately went to her assistance as he was trained in first aid. But as he tried to help, he said, another woman asked him to leave her alone. After that, he said, he stood up and intended to return to Seven, the restaurant at the Ritz where he had just had brunch, to call 911.

But Courtney admitted taking a strange route back to the restaurant. Even though he told the court he had brunch there every Sunday, he said he got lost because he became disoriented and confused, a state he put down to a head injury or shock.

A combination of witnesses and CCTV confirmed that Courtney left the scene through the Villas of the Galleon car park, passing several people with phones who were calling 911. He clambered over a wall and then entered the Ritz Residences and not Seven. CCTV shows him burst in and stumble through the door and pass a desk with a phone. As a result of the evidence before the court, he also admitted passing staff, including a security officer carrying a medical bag who was rushing to the scene, but said he could not remember it.

Courtney said he wandered around the Ritz Residences disoriented and lost, not able to find the restaurant. But the camera footage shows him passing the door to the restaurant inside and going across the Seven patio, before crossing the Ritz pool area, passing phones and people, then disappearing off towards the beach without stopping to talk with anyone or call 911.

Courtney told the court, on oath, that he has almost no memory of what he did then but said he believes he went on to the beach. The lawyer said he found himself near Grand View condos, several miles down Seven Mile Beach from the Ritz, where he lived before he moved to his current home at Britannia.

But the next thing he remembered, he said, was waking up around 5am under a bush on the golf course near his home, “covered in blood, mud and sand” with a gash on his head that he believed he had sustained during the crash.

Struggling to stand, he eventually staggered home, he said, where he found his wife, whom he had left at the scene the previous day. Courtney said he then contacted a friend who was a lawyer and they went to the police station at around 7am but he said he was told to go back at 10pm that night. There is no record, however, of this alleged visit to the police.

Later that day, following a phone call to his wife from the police officer in charge of the case, he was asked to go to the station. He arrived at around 5pm — a full 24 hours after the smash — where he was arrested and bailed to return for interview at a later date.

As he recounted the events, Courtney spoke of remembering some things clearly and not others, but he repeatedly denied that he was drunk or that his behaviour after hitting the couple was because he was drunk. He blamed his behaviour on shock and the head injury, not drunkenness, as he insisted his intention when he left the scene was to call 911. He said he did not go home because of the confusion and disorientation.

Based on evidence of the waiter at Seven, his own claims of having a glass of champagne per hour during service and the nature of the brunch, crown prosecutor Trisha Hutchinson suggested that Courtney had consumed at least five glasses of champagne.

She said he sped off in what he called his “super” car at high speed on a wet road. Having lost control of the car and ploughed into the Schuberts, he then left the scene to avoid police, as he knew he had caused serious injury and was drunk. She said he stayed away from home for many hours and the authorities for a full 24 hours to avoid a breath test, all of which he denied.

Courtney talked about remembering the details of the lunch until around 3pm, claiming that he was drinking very slowly, but did not remember much between 3 and 5pm, after champagne service. However, he said he believed he was drinking water and coffee.

He remembered very specific details of losing control of his car and the subsequent collision and running to assist the woman but had no memory of the fact that Cathy Schubert was severely injured, having been scalped after scraping her face and head on the concrete. Courtney said that when he went to attend to the victim, she was not covered in blood and stated that he did not see her husband.

But after that his memory fades again as he said he became lost and disoriented in the Ritz Residences. Although he said he went to the hospital before going to the police station and was told he had a concussion, there is no medical evidence to support the claim, though a picture taken at the police station shortly afterwards shows a small cut above his head.

The case continues.”

  1. [23]
    The statement of claim alleges that the fourth matter contained the words complained of that the plaintiff was a “hit-and-run lawyer”.  The words and symbol “hit & run” appeared in the headline.
  2. [24]
    The statement of claim alleges that in their natural and ordinary meaning, the words complained of meant and were understood to mean that the plaintiff:
    1. (a)
      is a hit-and-run driver;
    2. (b)
      drove away from the scene of an accident;
    3. (c)
      committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
    4. (d)
      actively took steps to avoid detection by the police; and
    5. (e)
      attempted to pervert the course of justice.
  3. [25]
    As to imputation (a), the words of the headline support it.  As to imputation (b) there is nothing beyond the phrase “hit & run lawyer” that suggests that the plaintiff drove away from the scene of the accident.  The context of the article shows that was not the sense in which the phrase was being used.  Summarising, the article refers to questions of the plaintiff in cross-examination suggesting that after driving his car and hitting pedestrians the plaintiff left the scene on foot to avoid a breath test, which he denied.  As to imputation (c), an imputation that the plaintiff left the scene of the accident is supported, from the context of the article as well the complained of words, but the complained of words and the context of the article do not carry the imputation that doing so constituted a criminal offence in the Cayman Islands.  As to imputation (d), the complained of words do not carry that imputation.  However, some parts of the article other than the complained of words support an imputation that the plaintiff took steps to avoid detection by the police as that was the case advanced by the prosecutor’s questions.  As to imputation (e), nothing in the words complained of or the context of the article supports an imputation that the plaintiff attempted to pervert the course of justice.
  4. [26]
    The article was a report of a court proceeding of the continuing trial of the plaintiff for the offences of inflicting grievous bodily harm and dangerous or reckless driving, in particular of the plaintiff’s evidence.
  5. [27]
    On 19 June 2016, (which was father’s day) the sixth and seventh defendants published the following online editorial article of and concerning the plaintiff, defined in the statement of claim as the “fifth matter”:

“The Editor speaks: Fathers and a reckless lawyer

I don’t know whether corporate lawyer, Simon Courtney, is a father. If he is, I hope he realises how unimpressed his children will be of him and his irresponsible driving, his actions after mowing down an elderly couple walking a sidewalk, and his explanation to the court that was worthy of a frightened schoolboy afraid to tell the truth.

Mr. Courtney, is no example of a father and quite frankly he has brought disrepute to his profession as the jury, with their verdict of his guilt, are saying he is a liar.

And he is lucky he wasn’t charged with leaving the scene of an accident and being drunk at the wheel of a car.

Children watch and learn from their adults. If you are a father you have a responsibility to behave as a role model. They shape their lives as a reflection of you.

In this modern day mothers have to act as a father because of the number of fathers who just walk away from their responsibilities.

I was lucky. I had a good mother and father. I wanted to be like “Dad”. But my talent was not in making things. He was an engineer and a musician. He was a very quiet man, although he did like to tell jokes and dress up!!

So there was something there that I can attribute some “gift” to!

Do children today look up to fathers?

Do we as fathers, even without children of our own, embody the best attributes of fatherhood? Do we lead? And lead by good and honest examples? Therefore we need to be fathers to all the children our lives touch.

“The Fifth Commandment in the Bible tells us to honor both father and mother, and that when people heed this rule, things will turn out well. But how can a father expect to be honored – that is, to be loved and respected – if he does not live a life worthy of these things?

“If a man is lazy, dishonest, impure or indecisive, we can expect no better in his children. On the other hand, a father who loves and respects his wife – and who leads his family with decision and dedication – is the greatest gift a child can have. A child’s emotional stability depends on his or her father’s example. Because the first five years of a child’s life are the most formative, this example should be present from early on.” – Johann Christoph Arnold From “For Every Child, a Father”.

Cuban writer José Martí said, “the greatest aim of our education should be to make true fathers out of the boys, and true mothers out of the girls. Everything else is secondary.”

Arnold recites this and says, “There is deep wisdom is these words. Boys hunger for masculine role models, and suffer when they do not find them. Conversely, those who do find true fathers can one day become good fathers and leaders themselves, and leave behind a legacy that will change still more lives.”

So Mr Courtney, it is not your special edition 633HP Ford Mustang sports car that impresses us. It is how you act.

And we are sadly not impressed.

I hope, however, you did have a Happy Fathers Day. I echo that to every one of our readers.

Comments

William Kruse says:

January 11, 2017 at 10.59 am

Dear Sir,
Thank you so very much for taking the time to write this commentary. I am the brother of Ms Kathy Schubert and her husband Richard “mowed down” by an intoxicated Simon Courtney in Jan 2015 and was thankfully here to deal with keeping them alive afterwards.
I too am appalled at Mr Courtney’s arrogance and lack of responsibility but not as much as how the Cayman Courts could have allowed him to still be driving after the 2011 incident.
What I can say is how many wonderful Caymanian People I ran into during the course of the ordeal and their compassion and caring for 2 people they didn’t even know. Proving to me that the world still is made up of
people I’d be proud to call my friends.
Bill Kruse

Reply

ieyenews says:

January 11, 2017 at 11.37 am

Thank you Bill. I was unable to write what I really thought of Simon Courtney and his ability to escape justice for so long because of his friends!”

  1. [28]
    The statement of claim alleges that the fifth matter contained the words complained of that: “Simon Courtney and his ability to escape justice for so long because of his friends!”
  2. [29]
    The article did not contain those words.  As published on 19 June 2016, it was an editorial piece by the seventh defendant that did not refer to the subject matter of escaping justice at all.  The words complained of appeared in a comment underneath the article made by the seventh defendant on 11 January 2017, in response to an earlier comment by William Kruse who had said he was appalled how the Cayman Courts could have allowed the plaintiff to still be driving after a 2011 incident.  That was a reference to a 2011 charge against the plaintiff of drink driving, which was not ultimately dealt with until after the 2016 proceedings against the plaintiff for inflicting grievous bodily harm and dangerous or reckless driving.  Ultimately, the plaintiff was also convicted of the 2011 offence of drink driving.  Mr Kruse was the brother of Ms Schubert, who was one of the two pedestrians injured by the plaintiff’s car when he lost control of it.  Precisely what the seventh defendant meant by the words “because of his friends” is not clear on the face of the text of the comment.
  3. [30]
    The statement of claim alleges that the natural and ordinary meaning of the words complained of was that the plaintiff:
    1. (a)
      engaged in corruption;
    2. (b)
      used his influence over the Cayman Islands judiciary to escape justice;
    3. (c)
      used his influence over the Department of Public Prosecutions in the Cayman Islands to escape justice;
    4. (d)
      perverted the course of justice; and
    5. (e)
      customarily engaged in corrupting the Judiciary to his own advantage.
  4. [31]
    In my view, the words complained of do not carry imputations (a) to (e).  They are equally consistent with other possible interventions by friends of the plaintiff who were neither judges nor prosecutors.  There is no reference to perversion of the course of justice as such and nothing that suggests customarily engaging in corrupting the judiciary.
  5. [32]
    On 11 July 2016[8] the sixth and seventh defendants published the following online editorial article of and concerning the plaintiff, defined in the statement of claim as the “sixth matter”:

“The Editor Speaks: When expats disgrace our shores

There were two stories during last week that put a blot on the expatriate population on our Island.

There are rotten apples in most barrels and the Cayman Islands is no exception.

One concerned American Craig Gaskill…

And talking of another nice ex pat who wanted to save his own neck…..

Wealthy lawyer from England, Simon Courtney (50), owner of a high-powered sports car – Ford Shelby Mustang that had been “souped-up”.

He went on a champagne brunch at the Ritz-Carlton, Grand Cayman on January 25th last year and knowingly drunk revved up the engine of his sports car and with a heavy boot accelerated harshly before losing control. The road was slippery because of rain, his vehicle went onto the sidewalk near Villas of the Galleon on the West Bay Road and mowed down two tourists who were taking a stroll. The two tourists, who were from the USA suffered serious head injuries. Although the woman has made a full recovery the man has had to undergo two surgeries because of his injuries suffered as a result of this drunk.

Courtney is an associate with Forbes Hare.

Instead of trying to help the couple Courtney fled the scene and hid from the police in a deliberate attempt to avoid being breathalysed. He only went to the police 24 hours after the incident.

Courtney told a pack of lies to the Court at his trial that even a child would not believe.

In passing a jail sentence on Courtney, Justice Swift said Courtney’s claims were “wicked lie”. His brief expressions of sorrow were disingenuous. The Judge condemned Courtney for claiming at trial that he had sustained a concussion in the accident with no medical evidence to support it. If that wasn’t enough Courtney then claimed in a social enquiry report, made after his conviction, that he had a brain injury. There was no evidence to support that claim either.

What a real nice guy.

A lawyer who repeats blatant lies under oath and cannot come to terms with what he has done does not deserve ever to practice law again. He cannot perceive wrong from right.

There is no doubt Courtney has received “special” privileges. Going back five years he was on bail for a DUI offence that has remained unresolved. Justice Swift has asked the Crown to research the case. I hope they do and find the reason. This was raised by local Lawyer, Peter Polack, immediately after this latest accident.

I hope Courtney receives no special privileges during his three years of incarceration. I hope he learns some contrition and begs for forgiveness and comes out a changed man.

Unfortunately one of his innocent victims will have to bear the pain and disfigurement from the injuries he suffered at Courtney’s hands for the rest of his life.

Lawyer Courtney you are a disgrace and a blot on the landscape to all us expatriates who work and have come to love the Cayman Islands.

Caymanians we are not all like these two men. They are the exception to the rule.”

  1. [33]
    The statement of claim alleges that the sixth matter contained the words complained of:

“Instead of trying to help the couple Courtney fled the scene and hid from the police in a deliberate attempt to avoid being breathalysed. He only went to police 24 hours after the incident”.

  1. [34]
    Those words appeared in the body of the article.
  2. [35]
    The statement of claim alleges that the natural and ordinary meaning of the words complained of is that the plaintiff:
    1. (a)
      is a hit-and-run driver;
    2. (b)
      drove away from the scene of an accident;
    3. (c)
      committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
    4. (d)
      actively took steps to avoid detection by the police; and
    5. (e)
      attempted to pervert the course of justice.
  3. [36]
    As to imputations (a) and (b), the words complained of do not carry either imputation.  Those words do support the imputation that the plaintiff left the scene of an accident but not that he hit someone or something or drove away.  They also do not support imputation (c) that he committed a criminal offence in leaving the scene.  They do support imputation (d) that the plaintiff actively took steps to avoid detection by being breathalysed.  But they do not support imputation (e) that he attempted to pervert the course of justice.
  4. [37]
    Before 10 July 2016, the plaintiff had been convicted of two counts of inflicting grievous bodily harm and one count of reckless driving over the events in question. The trial judge had sentenced him and made the observations set out previously in these reasons.
  5. [38]
    On 10 March 2017, the third, fourth and fifth defendants published an online news article of and concerning the plaintiff, defined in the statement of claim as the “seventh matter”, as follows:

“Jailed hit-and-run lawyer awaits appeal decision

Simon Courtney, the former corporate lawyer convicted of causing GBH to an elderly couple visiting Cayman in 2015 when he crashed his souped-up Mustang near the Ritz-Carlton, appeared in the Cayman Islands court of Appeal Thursday. Courtney appealed his conviction and, if that fails, his sentence. After a full day’s argument presented by his defence counsel, Laurence Aiolfi, the jailed offshore lawyer will now have to wait on the decision of the three Judges as they reserved judgment without setting a date for delivery.

The appeal court ends today with the ruling in a civil case, but the Judges are expected to deliver their findings on Courtney’s appeal in writing.

The 51-year-old lawyer was convicted in July last year after a jury trial in Grand Court. At the time, Justice Malcolm Swift, the trial Judge who handed Courtney a three year jail sentence, said he had been convicted on “the clearest possible evidence”.

Courtney ploughed into Cathy and Richard Schubert, who suffered dreadful injuries, when he lost control of his sports car on the West Bay Road after a champagne brunch at the Ritz-Carlton, Grand Cayman when he was drunk and then fled the scene.

Despite the findings of the jury and the Judge, Aiolfi, from Samson & McGrath, argued that there was no clear evidence that Courtney was drunk and that the Judge had led the jury towards that conclusion without supporting evidence. Presenting a long list of grounds of appeal, the defence lawyer also argued that there was no evidence of intentional recklessness and that not enough consideration had been given to expert evidence about the manufacturing flaws in the car’s wheels and the conditions. Aiolfi also submitted that his client’s jail term was excessive, as the Judge placed the offence in a higher category and so the starting point was too high.

At the time of his conviction and sentence Courtney had been on bail for another speeding and drink driving offence following an early morning stop when he was driving a Porsche. He was later convicted in Summary Court and he has also appealed that ruling by Magistrate Valdis Foldats.”

  1. [39]
    The statement of claim alleges the seventh matter contained the words complained of that the plaintiff was a hit-and-run lawyer.
  2. [40]
    Those words appeared in the headline of the article.
  3. [41]
    The statement of claim alleges that the natural and ordinary meaning of the words complained of is that the plaintiff:
    1. (a)
      is a hit-and-run driver;
    2. (b)
      drove away from the scene of an accident;
    3. (c)
      committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
    4. (d)
      actively took steps to avoid detection by the police; and
    5. (e)
      attempted to pervert the course of justice.
  4. [42]
    The words complained of support imputation (a).  As to imputation (b) the words complained of in the context of the article that he ploughed into the victims and then fled the scene support the imputation that the plaintiff was a hit-and-run driver who left the scene and arguably support the meaning that he drove away from the scene of the accident.
  5. [43]
    Imputations (c), (d) and (e) are not carried by the words complained of.
  6. [44]
    The article is a report of the court proceedings on the plaintiff’s appeal to the Court of Appeal of the Cayman Islands against conviction and sentence at the trial in the prior year.  I observe that those aware of the prior reports would have known that the plaintiff was alleged to have fled the scene on foot, rather than driving away.
  7. [45]
    On 6 April 2017, the third, fourth and fifth defendants published an online news article of and concerning the plaintiff, defined in the statement of claim as the “eighth matter”, as follows:

“All hit-and-run lawyer’s appeals rejected

The Cayman Islands Court of Appeal has rejected all eight grounds of appeal submitted by former corporate lawyer Simon Courtney (51) in relation to his convicted of causing GBH to an elderly couple visiting Cayman in 2015 when he crashed his souped-up Mustang near the Ritz-Carlton. In a written ruling delivered via the Grand Court on Thursday, the appeal court dismissed his claims that his three-year sentence was too high as well as rejecting all the arguments against conviction.

The 36-page ruling sets out the appeal court’s position on each of the submissions made on behalf of Courtney by his defence attorney, Laurence Aiolfi, most of which were described by the panel of Judges as having either no merit or no substance.

The appeal court rejected any idea that the trial Judge had misdirected the jury in any way or caused any prejudice in his summing up. The panel of senior Judges also described the submissions that the case should never gone to the jury as “surprising”, given that no argument was ever made to the Judge at the trial that the case should have been stopped for lack of evidence or any other reasons.

Dismissing all of the arguments in the appeal and upholding the convictions for inflicting grievous bodily harm and reckless driving, the Judges also upheld the sentence. The appeal court said that “the sentence was not even arguably manifestly excess”, as they rejected the entire appeal.

At the time of his conviction, the trial Judge said the former offshore lawyer had been convicted on the clearest possible evidence.

Courtney was found to have ploughed into Cathy and Richard Schubert, who suffered dreadful injuries, when he lost control of his sports car on the West Bay Road after 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, has remained steadfast in his claims of innocence, refusing to accept responsibility for the injuries he caused to the visiting couple.

Courtney has been in jail since his conviction in July 2016, and under the new Conditional Release Law can expect to go before the board for consideration for early release after serving 60% of his term, which falls in April of next year. Under the new legislation, a prisoner cannot be automatically released early but must demonstrate to the board they are fit to return to the community and will remain on licence until their full sentence is complete — risking a return to jail to finish the time should they commit any new offence, as well as any relevant new sentence.

Courtney was also convicted of a second DUI and speeding offence in Summary Court, which he has also appealed. However, the sentence in that case was ordered to run concurrently with the Grand Court sentence and will not impact his release.”

  1. [46]
    The statement of claim alleges the eighth matter contained the words complained of that the plaintiff was a hit-and-run lawyer.  Those words appeared in the headline of the article.
  2. [47]
    The plaintiff alleges that the natural and ordinary meaning of the complained of words was that the plaintiff:
    1. (a)
      is a hit-and-run driver;
    2. (b)
      drove away from the scene of an accident;
    3. (c)
      committed the criminal offence in the Cayman Islands of leaving the scene of an accident;
    4. (d)
      actively took steps to avoid detection by the police; and
    5. (e)
      attempted to pervert the course of justice.
  3. [48]
    As to imputation (a) the words complained of carry that imputation.  As to imputation (b), apart from the phrase “hit-and-run”, nothing supports the imputation that the plaintiff drove away from the scene.  The context of the article does not say whether the plaintiff “fled” by driving away or on foot.  Unless the meaning of “hit-and-run driver” is confined to a person who hits someone or something and then drives away, imputation (b) may not arise from the text of the article.
  4. [49]
    As to imputation (c), the words complained of support the imputation that the plaintiff left the scene of an accident, but nothing in those words or the context of the article supports that doing so constituted committing a criminal offence in the Cayman Islands.
  5. [50]
    Neither the words complained of nor the context of the article supports imputations (d) and (e) that the plaintiff actively took steps to avoid detection by the police and attempted to pervert the course of justice.
  6. [51]
    The article was a report of court proceedings being the decision of the Court of Appeal of the Cayman Islands rejecting all eight grounds of appeal made by the plaintiff on his appeals against convictions and sentence.

Hearing of the application

  1. [52]
    The plaintiff is a lawyer not admitted to practise in this jurisdiction and appeared for himself in person.
  2. [53]
    The third, fourth and fifth defendants are respectively the company that carried on the “Cayman News Service” by online publications and the individuals who are directors and shareholders responsible for the third defendant’s publications. The fourth defendant was also a writer of the majority of its articles.  None of them were represented by a lawyer.
  3. [54]
    The sixth defendant carried on the “ieyenews” service, another online news service in the Cayman Islands. The seventh defendant is a director of the sixth defendant and was the editor of its website responsible for the publications constituting the fifth matter and sixth matter.  Neither of the sixth and seventh defendants was represented by a lawyer.
  4. [55]
    The defendants appeared on the application via video-link from the Cayman Islands where they reside or carry on business.
  5. [56]
    The filed defences are not in accordance with the rules of pleading under the UCPR.[9] However, the defendants generally do not dispute the writing and publishing of the articles containing the alleged words complained of.  In answer to the claim generally, they positively allege that the articles conveyed an accurate summary of the court proceedings concerning the plaintiff or their outcomes.
  6. [57]
    The defence of the third, fourth and fifth defendants alleges that the statement of claim is a frivolous and malicious attempt to stifle the freedom of the press in the Cayman Islands.  The defence of the sixth and seventh defendants also alleges that the claim against them is frivolous and without merit, relying on the decisions of the Grand Court of the Cayman Islands and the Court of Appeal of the Cayman Islands.
  7. [58]
    The plaintiff submitted that the words complained of in the published matters had the capacity to defame him.  Whether a defamatory imputation is capable of arising from published matter as a matter of law is a common question on an application to strike out a pleaded imputation, where it has been accepted that a strained or forced or utterly unreasonable interpretation should be rejected.[10]  But on an application for summary judgment by a plaintiff, the question is not whether the words are capable of the alleged meaning.  Summarising, it is whether the words complained of carry the alleged imputation to the ordinary reasonable reader who is a person of fair average intelligence and neither perverse, nor morbid or suspicious of mind, nor avid for scandal.[11]
  8. [59]
    For imputations (a) and (b) (except for the fifth matter) the plaintiff relied on four dictionary meanings[12] of the words “hit-and-run” as denoting a road accident in which the driver who caused the accident drove away without helping the other people involved and without telling the police.  Having regard to the context of the balance of the article in most of the alleged matters, the point of distinction relied upon by the plaintiff is between a driver who is in an accident and drives away and one who leaves on foot, sardonically described as a “hit-and-walk” in an earlier decision in this case.[13]  In my view, notwithstanding the dictionary meanings relied upon, the ordinary meaning of the words “and run” in “hit-and-run” does not require that the driver drove off, so that the meaning of the phrase cannot include a driver who crashes their car and leaves on foot.
  9. [60]
    The plaintiff relied upon r 168 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) as creating deemed admissions by the defendants.  It may be accepted, as previously stated, that the defendants have not pleaded in compliance with the rules, and that r 168 could operate because of non-compliance with r 166(1) and (4).  The plaintiff also relies on r 165(2) as precluding the defendants from giving or calling evidence, but it is not engaged because the defendants have not pleaded relevant non-admissions.
  10. [61]
    However, in any event, this is not the trial of the claim.  It is a summary judgment application under r 292 of the UCPR.  The question for determination is whether the Court is satisfied that “the defendant[s] have no real prospect of successfully defending all or a part of the plaintiff’s claim and there is no need for a trial of the claim or the part of the claim”.
  11. [62]
    Curiously, the plaintiff submitted that the second, third and fourth matters pre-dated the plaintiff’s trial and could not possibly be a summary (presumably the plaintiff means a report) of it.  However, the second matter was a report of the plaintiff’s arraignment and pleas of not guilty on the charges of inflicting grievous bodily harm and dangerous or reckless driving.  It was still a report of a court proceeding, although it was not the trial.  The third matter was a report of the same proceeding at the trial, being the opening of the prosecution case by Crown counsel and evidence of one or more witnesses.  The same is true of the fourth matter which was a report of the trial, being the plaintiff’s evidence including cross-examination.
  12. [63]
    The plaintiff submitted that the filed defences are vague and embarrassing.  They leave a lot to be desired.  However, he does not apply to strike out either of the defences under r 171 of the UCPR or otherwise.  His application is for summary judgment, which is a different matter.

Alleged imputations and possible defences

  1. [64]
    More relevantly, the plaintiff submitted that any defences by the defendants based on justification, contextual truth or fair report of proceedings of public concern would be destined to fail.
  2. [65]
    It is appropriate to consider the plaintiff’s alleged imputations and the relevant defences together in some instances.  Specifically, the alleged imputations in respect of the second, third, fourth, sixth, seventh and eighth matters are identical.
  3. [66]
    Section 25 of the Defamation Act 2005 (Qld) (“the Act”) provides it is a defence to the publication of a defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains is substantially true.
  4. [67]
    As to imputation (a) that the plaintiff was a “hit-and-run” driver, the defendants have a real prospect of defending the substantial truth of that part of the plaintiff’s claim. The plaintiff’s position that the words “hit-and-run” on their ordinary meaning denote a person who drives away, as also alleged in imputation (b), may be correct, but in context it is at best an artificial complaint.  I do not consider that meaning precludes a finding of substantial truth as to imputation (a) to the extent that it was carried by the words complained of in the context of the relevant articles.  Context is relevant upon the questions of both ordinary and natural meaning and substantial truth.[14]
  5. [68]
    As to imputation (b) that the plaintiff drove away from the scene of an accident, apart from the second matter where it was expressly stated that the plaintiff drove away, the defendants have a real prospect of defending the substantial truth of the statements that the plaintiff fled the scene without having to show that he drove away, for similar reasons to that conclusion in respect of imputation (a).
  6. [69]
    As to imputation (c) that the plaintiff committed the criminal offence in the Cayman Islands of leaving the scene of an accident, the defendants also have a real prospect of successfully defending that part of the plaintiff’s claim.  They did not say that that the plaintiff has been prosecuted or convicted for leaving the scene of an accident.  It is not the likely natural or ordinary meaning of the words complained of in any of the matters that he committed the criminal offence in the Cayman Islands of leaving the scene of an accident.
  7. [70]
    The plaintiff submitted that it was not true that he did not stop at the scene, it was not true that he drove away, and he has never been prosecuted or convicted for leaving the scene.  The last point is not relevant because imputation (c) is that he committed the criminal offence in the Cayman Islands of leaving the scene of an accident, not that he had been convicted or prosecuted for that offence.  Further, as previously discussed, the pleaded imputation is not supported by the words complained of in any of the matters.
  8. [71]
    In my view, the defendants have a real prospect of success in defending this part of the plaintiff’s claim on the ground of substantial truth, in any event.  The plaintiff only stopped at the scene of the accident in the sense of crashing his car and briefly getting out and speaking to one of those helping the injured before he “fled” the scene according to the court findings.
  9. [72]
    As to imputation (d) that the plaintiff actively took steps to avoid detection by the police, in my view, the defendants also have a real prospect of successfully defending that part of the plaintiff’s claim.  Some of the words complained of in the relevant matters do not carry the alleged meaning.  But even where the words complained of or the context of the article does so, so much was found to be true, in effect, by the trial judge in the Grand Court of the Cayman Islands according to his sentencing remarks, having heard all the evidence.  Those findings were sustained by the Court of Appeal on the plaintiff’s appeal against sentence.  The defendants have a real prospect of showing that the imputation was substantially true.
  10. [73]
    As to imputation (e), that the plaintiff attempted to pervert the course of justice, the defendants have a real prospect of successfully defending that part of the plaintiff’s claim.  The imputation is not carried by any of the words complained of.
  11. [74]
    Section 26(a) of the Act provides it is a defence to the publication of defamatory matter if the defendant proves that the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
  12. [75]
    In my view, the defendants have a real prospect of successfully defending all or part of the plaintiff’s claim based on contextual truth under s 26.  The plaintiff submitted that the defendants have not identified contextual imputations in respect of any of the defamatory matters complained of.  But the articles containing the words complained of in respect of the second to eighth matters clearly give rise to a number of contextual imputations that show the real prospect of successfully defending the plaintiff’s claim or part of it.
  13. [76]
    Without being exhaustive, the article constituting the sixth matter specifically referred to the trial judge’s sentencing remarks describing the plaintiff’s claims in evidence as “a wicked lie” and his expressions of sorrow as “disingenuous”.  A further description of the trial judge’s sentencing remarks is set out above in these reasons.  The article went on to say:

“A lawyer who repeats blatant lies under oath and cannot come to terms with what he has done does not deserve ever to practise law again. He cannot perceive wrong from right.”

  1. [77]
    Further, the Court of Appeal of the Cayman Islands’ reasons proceeded on the findings that the plaintiff’s conduct including “the conduct of his defence did him no credit”.  And that “his claim of concussion was false” and he was when driving “the worse for drink”.[15]  All those matters could go towards a conclusion that the plaintiff was not a fit and proper person to be on the roll of legal practitioners, in accordance with accepted case law.[16]  It is not relevant, for present purposes, to pursue such a question, but the possibility illustrates the seriousness of some contextual imputations that may engage s 26 of the Act if pleaded and proved by the defendants.  Any of that would be in addition to the truth of the contextual imputations that the plaintiff was charged with and found guilty of the offences of inflicting grievous bodily harm and reckless driving as described in the circumstances set out in the articles.
  2. [78]
    Last, s 29(1) of the Act provides, inter alia, that it is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of a proceeding of public concern.  “Proceedings of public concern” are defined in s 29(4)(e) to include any proceedings in public of a court of any country.
  3. [79]
    The plaintiff submits that s 29 will not avail the defendants because there was no finding that the plaintiff was a hit-and-run driver or drove away from the scene of an accident or committed the criminal offence in the Cayman Islands of leaving the scene of an accident or actively took steps to avoid detection by the police or attempted to pervert the course of justice.
  4. [80]
    However, in my view, the defendants have a real prospect of successfully defending all or part of the plaintiff’s claim under s 29, because the words complained of in the matters published did concern court proceedings in the Cayman Islands and were a fair report of those proceedings in general.  It is unnecessary, at this point, to detail the application or potential application of s 29 to each of the alleged imputations, to the extent that the plaintiff may be able to prove them in the first place.
  5. [81]
    The plaintiff specifically submits that the publication of the words “before driving off” complained of in the second matter could not be said to be an accurate portrayal of the court proceeding on that occasion, when the plaintiff was arraigned for the offences of which he was ultimately convicted.  That may be so, but that is only one small point among the numerous issues raised by the evidence on this application on which the defendants do have a real prospect of successfully defending.
  6. [82]
    Curiously also, the plaintiff submitted that the text of the article in the seventh matter included the statement that the plaintiff was drunk and fled the scene which was false and there was no evidence that he was impaired, let alone drunk.  First, the words complained of in the statement of claim for the seventh matter are not that the plaintiff was drunk and fled the scene but that he was described as a hit-and-run lawyer.  But second, the submission that there was no evidence that the plaintiff was impaired let alone drunk is contrary to the findings to that effect that were made in the sentencing remarks of the trial judge and sustained on appeal.  The plaintiff has not put the evidence tendered at the trial before this Court.
  7. [83]
    The plaintiff also submitted that it was acknowledged that the plaintiff had voluntarily turned up to the police station 12 hours later and well within the 24 hours required under the laws of the Cayman Islands.  It is not acknowledged in the reasons of the Court of Appeal that he voluntarily turned up to the police station 12 hours after the collision.  And whether he did so within the 24 hours required under the laws of the Cayman Islands was not a point made against him by any of the articles.  In any event, the plaintiff does not allege any imputation that he did not turn up to the police station within 24 hours of the collision.
  8. [84]
    In the same vein, the plaintiff submitted that based on video evidence, the expert witness for the prosecution gave evidence at his trial that he was driving within the speed limit in a straight line within his own lane and giving no cause for concern.  Again, that evidence is not before this Court.  But it is difficult to comprehend how the plaintiff considers that selective reference to some of the evidence at the trial, even if accurate, is a basis for summary judgment in this Court.
  9. [85]
    Lastly, the plaintiff submitted that the defendants cannot rely upon their publications as being a fair report of any of the proceedings.  In my view, the defendants have a real prospect of success on that point, if the plaintiff wishes to maintain it.  The plaintiff’s contention in his written outline in this regard is founded in the proposition that because he was not charged with leaving the scene of an accident, it was not a fair report of the proceedings that were brought against him to say that he left the scene.  That is a non sequitur.  In any event, from the sentencing remarks of the trial judge and those in the Court of Appeal, the plaintiff was found to have “fled” the scene.  The defendants’ reports of this point of the court proceedings were undoubtedly fair.

Damages

  1. [86]
    If he were successful in proving that any of the words complained of carried the alleged defamatory imputations and defamed the plaintiff, the plaintiff claims damages based on the heads of general damages, aggravated damages and damages for economic loss.
  2. [87]
    The amount of the alleged economic loss is $4,770,000.  The plaintiff alleges he suffered that loss because of his inability to obtain employment as a lawyer following the second to eighth matters containing the words complained of, calculated as $265,000 per annum for 18 years.  In support of that contention, the plaintiff relies on an affidavit of Anthony Tuite who says that he is a professional services consultant and that he has read the articles constituting the second to eighth matters.  He says that due to the nature of the publications it was not possible to promote the plaintiff to his clients as a suitable candidate.  Further, he says that, based on his experience, he is of the opinion that it was the nature of the hit-and-run allegations that made forwarding the plaintiff’s CV impossible.  He says those allegations suggest pre-meditation and intent, states of mind which are not present in a lapse of judgement while driving.
  3. [88]
    I reject Mr Tuite’s evidence of opinion.  If it is intended to be understood as meaning that because the words “hit-and-run” were used the plaintiff is not employable as a legal practitioner, that is not a matter of opinion in any field of expertise that is recognised as admissible.  Even if there were a proved field of expertise which would make such an opinion admissible, I would reject it.
  4. [89]
    If it is relied on as meaning that Mr Tuite could not recommend the plaintiff because the articles described him as a “hit-and-run” driver or lawyer, I still reject that opinion as causally relevant to the alleged economic loss.  Any substantial difference in employability of a “hit-and-run” driver who continues to drive their vehicle after the moment of collision and the conduct of the plaintiff as found in the proceedings in the Cayman Islands courts is a distinction that is not comprehensible, in my view.
  5. [90]
    The conduct of a driver who hits a pedestrian in the course of crashing a vehicle that is rendered undrivable who then runs away to avoid responsibility is hardly less culpable than the conduct of a driver who hits a pedestrian without crashing and continues driving.  It makes no difference if the driver leaves on foot by walking, rather than running, if the circumstances are otherwise the same.  It is incomprehensible to me how Mr Tuite did not consider the conduct of the plaintiff detailed in the second to eighth matters, including the findings of the courts of the Cayman Islands of a false explanation by the plaintiff in evidence, as well as the necessary factual bases to support the jury’s findings convicting the plaintiff of inflicting grievous bodily harm and reckless driving, to be just as serious as the use of the words “hit-and-run”.
  6. [91]
    The same circumstances that lead to the rejection of Mr Tuite’s evidence in support of the plaintiff’s claim for economic loss also support the view that the plaintiff’s claimed damages by way of general damages and aggravated damages are or may be unsustainable.  The way in which the plaintiff distinguishes between the loss or damage that he claims was caused by the alleged defamatory imputations whilst wholly leaving aside the loss or damage to his reputation that was necessarily caused by publication of the factual bases of his convictions for the offences of inflicting grievous bodily harm and reckless driving in the circumstances found by the courts of the Cayman Islands is also counterintuitive and incomprehensible.

Conclusion and disposition

  1. [92]
    It follows that the plaintiff’s claim for summary judgment must be dismissed.
  2. [93]
    Having regard to the inadequate pleading of the defences, it also would follow from these reasons that the defendants should be directed to amend their defences, to properly raise any defences under ss 25, 26 and 29 of the Act they may wish to raise, as well as any facts relied on in answer to the plaintiff’s claims of damage caused by the alleged defamatory imputations, so as to comply with the pleading rules of the UCPR.
  3. [94]
    There is one qualification.  The discussion of the questions raised upon this application shows not only that the defendants have a real prospect of successfully defending all or a part of the plaintiff’s claim, but also that there is a measure of support for the defendants’ pleas that this proceeding is frivolous.
  4. [95]
    The court has power to dismiss or (more commonly) to stay permanently a proceeding that is an abuse of process because it is brought without reasonable grounds.
  5. [96]
    Generally speaking, that power of a superior court was recognised by Lord Blackburn in The Metropolitan Bank Ltd v Pooley:[17]

“[F]rom early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse; but that was not done upon demurrer, or upon the record, or upon the verdict of a jury or evidence taken in that way, but it was done by the Court informing its conscience upon affidavits, and by a summary order to stay the action which was brought under such circumstances as to be an abuse of the process of the Court; and in a proper case they did stay the action.”[18]

  1. [97]
    The continuing correctness of that statement was accepted by the High Court in Batistatos v Roads & Traffic Authority of New South Wales.[19]
  2. [98]
    As well as, but not in substitution for, the power referred to in Pooley and Batistatos, in this jurisdiction, r 171 of the UCPR provides a power to strike out a pleading that is an abuse of the process of the court and r 293 provides a power for the court upon a defendant’s application to order summary judgment upon all or part of a plaintiff’s claim.
  3. [99]
    Further, in the context of a claim for damages for defamation, intermediate appellate court authority in this country under the uniform defamation laws accepts that it is an abuse of process for a plaintiff to institute an action seeking damages for a defamatory imputation that he or she knows to be true so as to invoke a court’s process to obtain a remedy to which the claimant is indisputably not entitled or put a defendant to proof of that which cannot be denied.[20]
  4. [100]
    The modern procedural structure provided by the rules of court of this jurisdiction and the leading statements of principle of appellate courts that give effect to them[21] only reinforce the strength of these propositions.  In this jurisdiction, r 5 of the UCPR identifies the purpose of the rules to facilitate the just and expeditious resolution of the real issues in civil proceedings at minimum of expense, provides that the rules are to be applied with the objective of avoiding undue delay, expense and technicality and facilitating that purpose, and imposes an implied undertaking by a party to the court and the other parties to proceed in an expeditious way.
  5. [101]
    However, the defendants have not brought a cross-application to dismiss or stay the proceeding on the ground that it is an abuse of process or otherwise.  It is not appropriate to consider that possibility further.
  6. [102]
    It follows that the order to be made at present is that the plaintiff’s application for summary judgment is dismissed.

Footnotes

[1]Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.

[2]Uniform Civil Procedure Rules 1999 (Qld), r 125(a)(ii).

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

[4]Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91.

[5]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. .

[6]Ibid [73].

[7]Ibid [125].

[8]Although parts of the matter alleged were published in later comments on the article.

[9]Uniform Civil Procedure Rules 1999 (Qld), rr 149, 150(4), 157, 165 and 166.

[10]Farquhar v Bottom [1980] 2 NSWLR 380 [21].

[11]Patrick George, Defamation Law in Australia (3rd ed, 2017) [9.4].

[12]Cambridge Dictionary (online at 23 August 2021) ‘hit-and-run’; Collins Dictionary (online at 23 August 2021) ‘hit-and-run’; Merriam Webster Dictionary (online at 23 August 2021) ‘hit-and-run’ (def 2); and Oxford Dictionary (online at 23 August 2021) ‘hit-and-run’.             

[13]Courtney v Pinnacle Media Group Ltd & Ors [2020] QSC 50 [46].

[14]Charan v Nationwide News Pty Ltd [2019] VSCA 36 [113]-[140].

[15]R v Courtney (n 5) [125].

[16]New Zealand Law Society v Stanley [2020] 1 NZLR 50; Prothonotary v Gregory [2017] NSWCA 101; Legal Services Commissioner v CBD [2012] QCA 69; Barristers’ Board v Darveniza [2000] QCA 253.

[17](1885) 10 App Cas 210.

[18]Ibid 221.

[19](2006) 226 CLR 256, 266 [12]-[13].

[20]Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612, 617 [35].

[21]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 211 [93]; UBS AG v Tyne (2018) 265 CLR 77, 93-97 [38]-[46].

Close

Editorial Notes

  • Published Case Name:

    Courtney v Cayman News Service Ltd & Ors

  • Shortened Case Name:

    Courtney v Cayman News Service Ltd

  • MNC:

    [2022] QSC 37

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    25 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Barristers' Board v Darveniza [2000] QCA 253
2 citations
Jump To
Cite 1 - [2000] QCA 253
Cite 2 - [2000] QCA 253
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
2 citations
Jump To
Cite 1 - (2006) 226 CLR 256
Cite 2 - (2006) 226 CLR 256
Charan v Nationwide News Pty Ltd [2019] VSCA 36
2 citations
Jump To
Cite 1 - [2019] VSCA 36
Cite 2 - [2019] VSCA 36
Courtney v Pinnacle Media Group Ltd [2020] QSC 50
3 citations
Jump To
Cite 1 - [2020] QSC 50
Cite 2 - [2020] QSC 50
Cite 3 - [2020] QSC 50
Courtney v Pinnacle Media Group Ltd [2021] QSC 91
2 citations
Jump To
Cite 1 - [2021] QSC 91
Cite 2 - [2021] QSC 91
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
2 citations
Jump To
Cite 1 - (2002) 210 CLR 575
Cite 2 - (2002) 210 CLR 575
Farquhar v Bottom [1980] 2 NSWLR 380
2 citations
Jump To
Cite 1 - [1980] 2 NSWLR 380
Cite 2 - [1980] 2 NSWLR 380
Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612
2 citations
Jump To
Cite 1 - (2017) 95 NSWLR 612
Cite 2 - (2017) 95 NSWLR 612
Legal Services Commissioner v CBD [2012] QCA 69
2 citations
Jump To
Cite 1 - [2012] QCA 69
Cite 2 - [2012] QCA 69
Metropolitan Bank Limited v Pooley (1885) 10 App Cas 210
3 citations
Jump To
Cite 1 - (1885) 10 App Cas 210
Cite 2 - (1885) 10 App Cas 210
Cite 3 - (1885) 10 App Cas 210
New Zealand Law Society v Stanley [2020] 1 NZLR 50
2 citations
Jump To
Cite 1 - [2020] 1 NZLR 50
Cite 2 - [2020] 1 NZLR 50
Prothonotary v Gregory [2017] NSWCA 101
2 citations
Jump To
Cite 1 - [2017] NSWCA 101
Cite 2 - [2017] NSWCA 101
UBS AG v Tyne (2018) 265 CLR 77
2 citations
Jump To
Cite 1 - (2018) 265 CLR 77
Cite 2 - (2018) 265 CLR 77

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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