Sommerville v Schieb; Horan v Schieb

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.