Sommerville v Schieb; Horan v Schieb - [2024] NSWDC 6

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Sommerville v Schieb; Horan v Schieb [2024] NSWDC 6
Hearing dates: 31 January 2024
Date of orders: 31 January 2024
Decision date: 31 January 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   Defendant’s Notice of Motion granted in relation to proceedings 2023/00253298 (Horan v Schieb).
(2)   Proceedings 2023/00253298 struck out and dismissed, with costs reserved.
(3)   Defendant’s Notice of Motion in relation to proceedings 2023/00253300 (Sommerville v Schieb) refused, with costs reserved; these proceedings adjourned to 11 April 2024.
(4)   Exhibits retained until further order.

Catchwords:
TORT – defamation – concerns notice for one of two plaintiffs fails to provide particulars of serious harm for that plaintiff – particulars of serious harm not proffered until more than 28 days later – whether failure to provide particulars of serious harm rendered the concerns notice ineffective – whether the particulars proffered more than 28 days later were permissible or sufficient – claim brought by that plaintiff dismissed - whether the particulars provided on behalf of the other plaintiff were sufficient – particulars related to impact on his business, political activities and health – particulars held to be sufficient

Legislation Cited:
Defamation Act 2005 (NSW), ss 3, 10A, 12A, 12B, 23
Uniform Civil Procedure Rules 2005 (NSW), r 15.19(2)(c)

Cases Cited:
Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726
Georges v Georges [2022] NSWDC 558
Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323
Iskander v Barcos [2023] VCC 2074
Martin v Najem [2022] NSWDC 479
Newman v Whittington [2022] NSWSC 249
Nyasulu v Naikelekele [2022] NSWDC 507
Zhao v Zheng [2023] QDC 108
Zimmerman v Perkiss [2022] NSWDC 448

Texts Cited:
Nil

Category: Procedural rulings
Parties: Tim Horan (plaintiff)
Brian Sommerville (plaintiff)
Don Schieb (defendant)
Representation:
Counsel:
D Bracken (plaintiffs)
C Amato (defendant)
Solicitors:
Macpherson Kelley (plaintiffs)
McGirr & Associates (defendant)

File Number(s): 2023/00253298; 2023/00253300
Publication restriction: Nil

Judgment

The application before the court

Mr Horan is the Mayor of Coonamble and Mr Sommerville is a Councillor of the Coonamble Shire Council. They bring proceedings for defamation for publication by the defendant, a radio presenter, for statements made by the him in a broadcast on MTM FM 91.9 on 13 February 2023, a broadcasting service operated by the Coonamble Community Radio station.
Mr Sommerville and Mr Horan each served a concerns notice (dated 3 March 2023 and 17 February 2023 respectively) and, after a period of negotiation which was unfruitful, commenced proceedings in the District Court Defamation List on 9 August 2023. Contrary to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 15.19(2)(c), neither of the statements of claim attached the concerns notice. On the first return date of 31 August 2023, I drew to the parties’ attention the need to attach this document. There was also discussion of the requirements of s 10A of the Defamation Act 2005 (NSW) (“the Act”) concerning serious harm and I made an order for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWDC 6
Decision Date: 31 January 2024

CaseChat Overview and Summary

The case of Sommerville v Schieb; Horan v Schieb, involved two defamation claims against a common defendant. Sommerville brought the first action, with Horan subsequently doing so. The primary dispute centred around the adequacy of the concerns notices filed under the Defamation Act 2005 (NSW). Specifically, the defendant's concerns notice for one plaintiff, Sommerville, failed to provide particulars of serious harm, a requirement under section 16(2)(a) of the Act. This omission was not rectified until more than 28 days had elapsed, raising questions about the effectiveness of the notice and the admissibility of the belated particulars. Meanwhile, Horan's concerns notice complied with the statutory requirements, detailing the impact on his business, political activities, and health.

The court had to determine whether the failure to include particulars of serious harm in Sommerville's concerns notice rendered it ineffective. Additionally, the court had to assess whether the particulars provided more than 28 days later were permissible or sufficient. Regarding Horan, the court needed to decide if the particulars provided were adequate. The court concluded that Sommerville's concerns notice was ineffective due to the absence of particulars of serious harm. Furthermore, the particulars proffered for Sommerville more than 28 days after the initial notice were deemed inadmissible. Conversely, the particulars provided for Horan were found to be sufficient, and the concerns notice was deemed valid.

As a result of these findings, the court granted the defendant's notice of motion in relation to Horan's proceedings, striking them out and dismissing the claim with costs reserved. The proceedings against Sommerville were not dismissed but were adjourned to a later date to allow for further development of the case. The court also retained the exhibits until further order, ensuring that the evidence remained available for any future proceedings. This decision underscores the importance of strict compliance with statutory requirements for concerns notices in defamation actions.

Orders

Orders of the court

(1) Defendant’s Notice of Motion granted in relation to proceedings 2023/00253298 (Horan v Schieb).

(2) Proceedings 2023/00253298 struck out and dismissed, with costs reserved.

(3) Defendant’s Notice of Motion in relation to proceedings 2023/00253300 (Sommerville v Schieb) refused, with costs reserved; these proceedings adjourned to 11 April 2024.

(4) Exhibits retained until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sommerville v Schieb; Horan v Schieb [2024] NSWDC 6
Hearing dates:	31 January 2024
Date of orders:	31 January 2024
Decision date:	31 January 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant’s Notice of Motion granted in relation to proceedings 2023/00253298 (Horan v Schieb). (2) Proceedings 2023/00253298 struck out and dismissed, with costs reserved. (3) Defendant’s Notice of Motion in relation to proceedings 2023/00253300 (Sommerville v Schieb) refused, with costs reserved; these proceedings adjourned to 11 April 2024. (4) Exhibits retained until further order.
Catchwords:	TORT – defamation – concerns notice for one of two plaintiffs fails to provide particulars of serious harm for that plaintiff – particulars of serious harm not proffered until more than 28 days later – whether failure to provide particulars of serious harm rendered the concerns notice ineffective – whether the particulars proffered more than 28 days later were permissible or sufficient – claim brought by that plaintiff dismissed - whether the particulars provided on behalf of the other plaintiff were sufficient – particulars related to impact on his business, political activities and health – particulars held to be sufficient
Legislation Cited:	Defamation Act 2005 (NSW), ss 3, 10A, 12A, 12B, 23 Uniform Civil Procedure Rules 2005 (NSW), r 15.19(2)(c)
Cases Cited:	Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726 Georges v Georges [2022] NSWDC 558 Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323 Iskander v Barcos [2023] VCC 2074 Martin v Najem [2022] NSWDC 479 Newman v Whittington [2022] NSWSC 249 Nyasulu v Naikelekele [2022] NSWDC 507 Zhao v Zheng [2023] QDC 108 Zimmerman v Perkiss [2022] NSWDC 448
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Tim Horan (plaintiff) Brian Sommerville (plaintiff) Don Schieb (defendant)
Representation:	Counsel: D Bracken (plaintiffs) C Amato (defendant) Solicitors: Macpherson Kelley (plaintiffs) McGirr & Associates (defendant)
File Number(s):	2023/00253298; 2023/00253300
Publication restriction:	Nil