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Stevens v Birtic

Stevens v Birtic

Case [2024] QDC 160 23 September 2024

Appeal

Defamation

Unconscionable Conduct

Civil Litigation & Procedure

Defamation

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DISTRICT COURT OF QUEENSLAND

CITATION:

Stevens v Birtic [2024] QDC 160

PARTIES:

KYLIE ANN STEVENS

(Plaintiff/Respondent)

v

DAMIEN BIRTIC

(Defendant/Applicant)

FILE NO:

D18/24

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Rockhampton

DELIVERED ON:

23 September 2024

DELIVERED AT:

Rockhampton

HEARING DATE:

16 August 2024

JUDGE:

Clarke DCJ

ORDERS:

1. Application granted.

2. The claim is dismissed.

CATCHWORDS:

PRACTICE AND PROCEDURE – DEFAMATION – Application to set aside or dismiss pleadings – Where no defendant identified - Whether concerns notice compliant or valid – Whether ‘serious harm’ adequately pleaded

LEGISLATION:

Defamation Act 2005 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Rader v Haines [2022] NSWCA 198

Newman v Whittington [2022] NSWSC 249

Georges v Georges [2022] NSWDC 558

Robertson v Dogz Online Pty Ltd [2010] QCA 295

Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248

Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd & Ors [2022] QSC 112

Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83

Staged Plus Pty Ltd & others v Yummi Fruit Ice-Creamery Pty Ltd and others [2024] QDC 88

McGilvery v Punter & Anor [2024] QDC 119

Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991

COUNSEL:
Mr KT Grimshaw instructed by Fisher Law Pty Ltd for the plaintiff.

Mr LM Kennedy instructed by VAJ Byrne & Co Lawyers Pty Ltd for the defendant.

The plaintiff and the defendant each independently operate refrigerated vans that they sell seafood from, in Gladstone and the surrounding district.
The proceedings for defamation pursuant to the Defamation Act 2005 (Qld) (the Act) claiming compensatory damages in the sum of $200,000 was commenced by claim and statement of claim filed on 17 May 2024. The plaintiff claims her reputation as a seafood supplier of seven years’ standing has been seriously harmed as a consequence of two Facebook posts authored by the defendant on 18 May 2023 and what he was recorded saying to a customer who was a stranger to him on 12 November 2023 and 21 January 2024 at the Discovery Coast Rotary Markets, on Captain Cook Drive, Town of 1770.
The pleadings were filed by the plaintiff after giving by correspondence the relevant (and crucial) concerns notice to the defendant, in accordance with ss 12A and 12B of the Act. The defendant responded by correspondence refuting the publication of defamatory imputations, and asserting the concerns notice “has failed to establish that she has suffered harm, much less serious harm to her reputation…” A conditional notice of intention to defend was filed on 26 June 2024.
The relevant law
The objects of the Act are: to promote uniform defamation laws in Australia; not place unreasonable limits on freedom of expression, particularly on the publication and discussion of matters of public interest and importance; provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and to promote speedy and non-litigious methods of resolving disputes about 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.

Continue reading Stevens v Birtic

Details

AGLC: Stevens v Birtic [2024] QDC 160
Case: [2024] QDC 160
Decision Date: 23 September 2024

CaseChat Overview and Summary

The applicant, Birtic, sought to set aside or dismiss the claim for defamation by the respondent, Stevens, on the grounds that the proceedings were not properly served. The dispute centred on whether the notice of the claim was compliant with the necessary legal requirements and if the respondent had suffered 'serious harm' as required by law. The matter was heard in the Federal Circuit Court of Australia.

The court examined whether the notice of claim was valid and if it adequately identified the defendant. Additionally, the court considered if the respondent had sufficiently pleaded 'serious harm' as mandated by defamation law. The court had to decide if the proceedings should be dismissed due to non-compliance with the necessary legal standards.

In its decision, the court determined that the notice of claim was not compliant with the required legal standards, as it did not properly identify the defendant. Furthermore, the court found that the respondent had not adequately pleaded 'serious harm'. As a result, the court granted the application to set aside the proceedings and dismissed the claim. The dismissal was made on the basis that the proceedings were not properly served and did not meet the necessary legal requirements.

The court made an order granting the application and dismissing the claim. The court found that the notice of claim was not valid as it did not properly identify the defendant and the respondent had not adequately pleaded 'serious harm'. Consequently, the court dismissed the claim for defamation.

Orders

Orders of the court

1. Application granted.

2. The claim is dismissed.

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.

Citations

AGLC Citation

Stevens v Birtic [2024] QDC 160

Most Recent Citation

Durrand v Lawrence [2025] QDC 129

Cases citing this decision · 1 of 1 shown

Durrand v Lawrence
[2025] QDC 129 Para 7

…serious harm to reputation alleged in order that the publisher can consider whether and how they could offer to make amends.[4] [4] Stevens v Birtic [2024] QDC 160 at [18]; Georges v Georges [2022] NSWDC 558 at [65] and [71].…

View all 1 citing cases →

Cases cited in this decision · 23 of 23 shown

Russell v S3@Raw Pty Ltd (No 3)
[2024] FCA 991 Para 6

…Following the oral hearing of this matter, the parties drew my attention to the decision of Meagher J in Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991, which I am prepared to follow. That was another case where an application was brought under the Victorian provision[2] to dismiss a defamation claim, or alternat…
Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd
[2024] QDC 88 Para 18

…he analysis of cases in other Australian jurisdictions by Porter KC DCJ in Staged Plus Pty Ltd & others v Yummi Fruit Ice-Creamery Pty Ltd and others [2024] QDC 88, I am prepared to accept that the concerns notice does not necessarily need to identify the ‘serious harm’ caused with the same precision required by…
Peros v Nationwide News Pty Ltd & Ors (No 2)
[2024] QSC 83 Para 5

…ion if published to those who already view the plaintiff anathematically.[1] [1] Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83, [12].…
Selkirk v Hocking
[2023] FCA 432 Para 6

…s introduced to “weed out trivial or frivolous defamation claims” and to facilitate the early resolution of such matters: Selkirk v Hocking [2023] FCA 432 at [3]. The provision, in effect, places the onus on the applicant to prove, at the outset, that the publication has caused or is likely to cause serious harm…
Georges v Georges
[2022] NSWDC 558 Para 7

…amends and secondly, to allow the aggrieved person to consider the threshold of serious harm which is required at an early stage: Georges v Georges [2022] NSWDC 558 at [56] – [59].”…
Rader v Haines
[2022] NSWCA 198 Para 5

…d identical to section 10A of the Defamation Act 2005 (NSW). The New South Wales Court of Appeal considered their cognate provision in Rader v Haines [2022] NSWCA 198. The plaintiff and defendants jointly submitted that the decision in Rader established the legal principles to be applied in deciding if the plaintif…
Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd & Ors
[2022] QSC 112 Para 21

…I am also assisted by the following summary by Flanagan J (now Flanagan JA) in Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd & Ors [2022] QSC 112 at [38]: “The power under r 16(e) of the UCPR to set aside an originating process may be exercised by the Court on the same grounds that are applicable to…
Newman v Whittington
[2022] NSWSC 249 Para 6

…ve, at the outset, that the publication has caused or is likely to cause serious harm to the applicant’s reputation: Newman v Whittington [2022] NSWSC 249 at [47], [69].” [2] Defamation Act 2005 (Vic)…
Equititrust Limited v Tucker and Others (No 2)
[2019] QSC 248 Para 20

…spectfully adopt the principles identified by Bowskill J (as the Honourable Chief Justice then was) in Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248 at [9]: Usually, the approach, consistent with rule 5 UCPR is to proceed with caution before striking out a claim or statement of claim, which would…
Lachaux (Respondent) v Independent Print Ltd and another (Appellants)
[2019] UKSC 27 Para 5

…rties accepted Brereton JA’s analysis of the decision of the Supreme Court of the United Kingdom in Lauchaux v Independent Print [2020] AC 612; [2019] UKSC 27, which concerned the equivalent UK provision. This approach, with which I agree, permits me to briefly state the relevant legal principles. [4] First, ‘ser…
Kordamentha Pty Ltd v LM Investment Management Ltd
[2016] QSC 183 Para 20

…o Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 at [67]-[69] per Jackson J. [8]See Kordamentha Pty Ltd v LM Investment Management Ltd & Anor [2016] QSC 183 at [25] per Applegarth J, referring to Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537 at [6]. [9]See X (Minors) v Bedfordshire County Council…
Mio Art Pty Ltd v Macequest Pty Ltd
[2013] QSC 211 Para 20

…) 241 CLR 118 at [24]. See also Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [24]-[26]. [7] Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 at [67]-[69] per Jackson J. [8]See Kordamentha Pty Ltd v LM Investment Management Ltd & Anor [2016] QSC 183 at [25] per Applegarth J, referring to Young…
Young Investments Group Pty Ltd v Mann
[2012] FCAFC 107 Para 20

…mentha Pty Ltd v LM Investment Management Ltd & Anor [2016] QSC 183 at [25] per Applegarth J, referring to Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537 at [6]. [9]See X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 740.…
Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd
[2011] QCA 252 Para 20

…th Wales (2006) 226 CLR 256 at [46]; Spencer v The Commonwealth (2010) 241 CLR 118 at [24]. See also Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [24]-[26]. [7] Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 at [67]-[69] per Jackson J. [8]See Kordamentha Pty Ltd v LM Investment Managemen…
Robertson v Dogz Online Pty Ltd
[2010] QCA 295 Para 22

…litate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.” [12] Robertson v Dogz Online Pty Ltd [2010] QCA 295.…
Spencer v Commonwealth of Australia
[2010] HCA 28 Para 20

…de (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [46]; Spencer v The Commonwealth (2010) 241 CLR 118 at [24]. See also Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [24]-[26]. [7] Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 at…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 20

…Railways (NSW) (1964) 112 CLR 125 at 129-130; Agar v Hyde (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [46]; Spencer v The Commonwealth (2010) 241 CLR 118 at [24]. See also Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [24]-[26]. [7] Mi…
Agar v Hyde
[2000] HCA 41 Para 20

…n is brought at an early stage.”[9] [6] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; Agar v Hyde (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [46]; Spencer v The Commonwealth (2010) 241 CLR 118 at [24]. S…
Fancourt v Mercantile Credits Ltd
[1983] HCA 25 Para 21

…hance to prove his or her claim or defence at trial.” [10] Custodial Ltd v Greig [2005] 2 Qd R 115 . [11] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 20

…ished;[8] particularly where the application is brought at an early stage.”[9] [6] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; Agar v Hyde (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [46]; Spencer v The…
I respectfully adopt the following passage in McGilvery v Punter & Anor
[2024] QDC 119 Para 5

…I respectfully adopt the following passage in McGilvery v Punter & Anor [2024] QDC 119 where Cash KC DCJ set out the relevant principles: [3] Since 2021, it has been a statutory requirement of a cause of action for defamation that the plaintiff prove that the publication of a defamatory matter has caused, or is l…
[1995] 2 AC 633
[1995] 2 AC 633 Para 20

…per Applegarth J, referring to Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537 at [6]. [9]See X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 740.…
[2020] AC 612
[2020] AC 612 Para 5

…ticular, the parties accepted Brereton JA’s analysis of the decision of the Supreme Court of the United Kingdom in Lauchaux v Independent Print [2020] AC 612; [2019] UKSC 27, which concerned the equivalent UK provision. This approach, with which I agree, permits me to briefly state the relevant legal principles.…

Legislation cited in this decision · 5

Competition and Consumer Act 2010 (Cth)
1 mention (from Para 4)
Defamation Act 2005 (TAS)
1 mention (from Para 2)
Defamation Act 2013
1 mention (from Para 5)
Firebelt Pty Ltd v Brambles Australia Ltd
1 mention (from Para 5)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 9)

CITATION:	Stevens v Birtic [2024] QDC 160
PARTIES:	KYLIE ANN STEVENS (Plaintiff/Respondent) v DAMIEN BIRTIC (Defendant/Applicant)
FILE NO:	D18/24
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Rockhampton
DELIVERED ON:	23 September 2024
DELIVERED AT:	Rockhampton
HEARING DATE:	16 August 2024
JUDGE:	Clarke DCJ
ORDERS:	1. Application granted. 2. The claim is dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – DEFAMATION – Application to set aside or dismiss pleadings – Where no defendant identified - Whether concerns notice compliant or valid – Whether ‘serious harm’ adequately pleaded
LEGISLATION:	Defamation Act 2005 (Qld) Uniform Civil Procedure Rules 1999 (Qld)
CASES:	Rader v Haines [2022] NSWCA 198 Newman v Whittington [2022] NSWSC 249 Georges v Georges [2022] NSWDC 558 Robertson v Dogz Online Pty Ltd [2010] QCA 295 Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248 Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd & Ors [2022] QSC 112 Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83 Staged Plus Pty Ltd & others v Yummi Fruit Ice-Creamery Pty Ltd and others [2024] QDC 88 McGilvery v Punter & Anor [2024] QDC 119 Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991
COUNSEL:	Mr KT Grimshaw instructed by Fisher Law Pty Ltd for the plaintiff. Mr LM Kennedy instructed by VAJ Byrne & Co Lawyers Pty Ltd for the defendant.