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 filing of an amended statement of claim in 14 days.
The parties entered into settlement discussions and the proceedings were adjourned on three occasions to enable these discussions to continue. It was not until 17 November 2023 that the defendant foreshadowed an application for the summary dismissal of both proceedings pursuant to ss12A and 12B of the Act. The basis for that application was that the concerns notices sent by each of the plaintiffs failed to provide proper particulars of serious harm.
That application is now before the court for determination. There is some urgency. If the defendant's application succeeds against one (or both) of the plaintiffs, that plaintiff's statement of claim must be struck out, and a fresh notice must be served prior to the expiry of the limitation period, which is in two weeks' time, a period of less than the 28 days for the concerns notice. Although the provisions of s 12B(4) of the Act specifically allow for an extension where the 28-day notice period goes beyond the limitation period, there is "many a slip twixt cup and lip" in doing so, as the very similar facts in Zhao v Zheng [2023] QDC 108 ("Zhao") at [47] demonstrate, hence the need for speed.
In producing this judgment as quickly as possible, I have not dealt with a series of interesting but esoteric points of law raised by both parties as to the nature, content and meaning of notices in general and concerns notices in particular. Ms Amato referred to some of these arguments amounting to a discussions of how many angels could dance on the head of a pin. The trap in determining such questions is, as Dorothy L Sayers pointed out in "The Lost Tools of Learning" (https://web.archive.org/web/20161216062703/http://www.gbt.org/text/sayers.html), that the number of angels to be so accommodated is infinite, as angels do not occupy any spatial dimension, so the argument is "simply a debating exercise". There is no time in this litigation for debating exercises, as the parties need to move forward with their claims, so these interesting issues have to be reserved for another day.
The legal issues in the case are quite simple. Sections 12A and 12B of the Act require service of a concerns notice as a prerequisite to commencing proceedings. This is a form of compulsory pre-proceedings negotiation aimed at requiring the parties to give careful consideration to the making or the accepting of offers of amends as opposed to the commencement of what has been called "blockbuster" litigation where, in superior courts such as the Federal Court, costs in the millions of dollars are routine. For the concerns notice process to work, certain essential information must be provided, such as particulars of "serious harm" (for the purposes of which, see s 10A) caused by the publication. This is to help the publisher identify what sort of damage has been caused and thus what kind of offer (if an offer is appropriate) should be made. The question is whether this was done.
The factual issues are also simple. One of the plaintiffs, Mr Sommerville, who has owned and run a toy shop and other businesses in the main street of Coonamble for 44 years, was assailed, in the weeks following publication of the matter complained of (a radio broadcast) by members of the community coming into his toy shop, questioning him about the serious allegations of corruption made against him, with the result that he has been "forced to defend his character and reputation continually, subsequently causing acute mental distress". Coonamble is a very small town. The plaintiff considers the impact of the publication is that it is "likely" (to use the relevant term in s 10A) to prejudice his ability to conduct his business as well as to tarnish his reputation. He is also concerned about likely damage to his reputation impeding his political duties and about the impact of these events on his health.
The other plaintiff, however, paints no such picture. Whether accidentally or intentionally, he provides no particulars of serious harm at all. His claim is that the impact of the publication on his reputation as a respected member of the community known for his good works is self-evidently so "serious" that no further information is required. Alternatively, if better particulars were required, some were volunteered on 14 March 2023 (although this is outside the 28-day notice offer period).
The defendant submits that neither plaintiff has adequately particularised serious harm. For the reasons set out in more detail below, I am satisfied that Mr Sommerville's particulars of serious harm are sufficient for the purposes of the concerns notice procedure, but that Mr Horan's failure to refer at all to "serious harm" in his concerns notice is insufficient and incapable of being cured by the particulars proffered in the letter of 14 March 2023.
What did the matters complained of say about the plaintiffs, and what are the imputations pleaded? Both plaintiffs were councillors who participated in the development of an important community project. The conduct of the council in relation to this project was strongly attacked by the defendant and each of the plaintiffs, as they are entitled to do, says they are identified as the persons responsible for the conduct that is attacked, even though they were not named.
[2]
The matters complained of and the imputations
The plaintiffs both rely upon the same two excerpts of the broadcast of 13 February 2023:
"One of the good news features of Coonamble recently has been the $5.5 million dollars for the artisan spa baths.
It went back to Council in 2008 to try and get this foot forward. And It's taken this long for the Councils to do it. The Council who put the grant in was from the previous Council, ran by.what's happened here..oh…the previous, run by the Council and finally the grant come through, maybe because of the politics involved and because the elections coming up.
The 5 mil was put in by the previous Councill, run by Al Karrangough and his trusty band of workers and..uh.. it finally came through… and we see who has taken the credit for it, but it really goes back to our previous council and I congratulate them for it.
But we have a problem for it, where is it going to be built? And who has priority over these decisions is a problem which will have to be sorted out..I'll give you more detail as we go on this morning."
Shortly afterwards, the defendant continued as follows:
"Still on the shire baths this morning.
The original plan was to have it at the Smith park, which was set out and planned for. But uh, with..when in consideration of the chance for expansion, the site of the golf club was the preferred site,..and um.. this was maintained right through until today… or until recently.
And it appears now that because it doesn't affect, or has some effect on businesses preferred around town, to what they decide…. And They've ..recorded as.. about the visibility of highway and also the promotion of larger areas..and also assess the golf club in its situation of financial…future.
Anyhow that's what's happened now we have two other preferred sites which have been brought forward by councillors, which… we are at a loss to understand why.. unless its for your personal gain.
Of course when you look at the original plan of smith park, well that was decided it was too small… and the golf club became the preferred site. This was after about 12-14 years of planning and probably progress of..uh..nil… and now we have the previous shire, have managed to obtain 5.5 million dollars to erect this..erect this.. shire baths or the artesian baths, but now yet we are having these problems once again to try and delay it, and it's possible we'll lose the funding as well.
And how that what happens in politics, I'm afraid, it's sorry to see..cause no one benefits from it, that is the problem we're going to have with this.. uh.. the objections to it.. and maybe..and maybe someone will see what's going to happen and do something about it."
Although pleaded separately, each of the plaintiffs acknowledge that these are essentially one publication.
Mr Sommerville pleads the following imputations:
1. Mr Sommerville misled the community about who put forward the grant;
2. Mr Sommerville lied to the public by trying to take credit for the artisan baths;
3. Mr Sommerville is a corrupt councillor and mayor who is only interested in personal gain;
4. Mr Sommerville acted corruptly in his performance in relation to his role in the project;
5. Mr Sommerville is actively trying to derail and delay the project;
6. Mr Sommerville has acted negligently, such that the project may lose its funding;
7. Mr Sommerville is an irresponsible councillor in that he plays "politics" instead of performing his proper role as a councillor;
Mr Horan pleads the following imputations:
1. Mr Horan misled the community about who put forward the grant;
2. Mr Horan lied to the public by trying to take credit for the artisan baths;
3. Mr Horan is a corrupt councillor and mayor who is only interested in personal gain;
4. Mr Horan acted corruptly in his performance in relation to his role in the project;
5. Mr Horan is actively trying to derail and delay the project;
6. Mr Horan has acted negligently, such that the project may lose its funding;
7. Mr Horan is an irresponsible councillor in that he plays "politics" instead of performing his proper role as a councillor;
[3]
Serious harm (in the concerns notice)
Mr Sommerville provided particulars of serious harm. I have highlighted the relevant extracts:
"B. Loss and Damage, Serious Harm
As a result of the defamatory imputations from the First Broadcast Segment and the Second Broadcast Segments, Mr Sommerville has been held up to hatred, ridicule and contempt, has been seriously injured in his credit and reputation, has suffered hurt and embarrassment, and has suffered and will continue to suffer loss and damage.
The loss and damage suffered has been to a very high degree, having regard to the severity of the allegations of corruption, and the importance of the Project to the economic growth of Coonamble. Further, we are instructed that the assertions raised in the First Broadcast Segment are entirely false, as the initial grant application made by previous Council was rejected. The current Council submitted a fresh application and was successful in securing the $5.5 million grant.
The imputations conveyed by the Publications have caused and continue to cause our client significant damage to his brand and reputation. Harm to reputation is done when a defamatory publication is comprehended by the person to whom it is published (Dow Jones & co Inc v Gutnick (2002) 210 CLAR 575). Whether or not a thing has a defamatory meaning is determined by whether the words 'tend to lower the plaintiff in the estimation of right-thing members of society generally' (Sim v Stretch [1936] 2All ER 12370). We consider that the imputations conveyed by the Publications meet this threshold.
The Serious Harm suffered, and is likely to be suffered by our client is because:
(a) The Publications are to members of the public from which it is to be inferred that the imputations have or are likely to have come to the attention of people who know Mr Sommerville and/or Sommos Toy & Variety, or are likely to know him in the future whether within wider Coonamble Community, in the course or [sic] professional pursuits, within the political sphere or otherwise;
(b) The seriousness of the allegations are likely to have embedded into the minds of the members of the listeners the negative imputations about Mr Sommerville;
(c) The imputations are serious. Mr Sommerville's professional reputation depends on his integrity, expertise, good judgment and management skills in the political sphere. The imputations as alleged pose a significant risk to Mr Sommerville's political career, local business and reputation within the community;
(d) Mr Sommerville holds dearly his excellent reputation in the wider Australian community. The likely adverse effect on him of the Publications within his immediate community has caused acute distress. Mr Sommerville lives and operates Sommos Toy & Variety on the main street of Coonamble, a small town with a tight-knit community. Mr Sommerville has had members of the community come into Sommos Toy & Variety questioning him about the Publications. Mr Sommerville has been forced to defend his character and his reputation continually, subsequently causing acute mental distress;
(e) The Publications are likely to prejudice his ability to conduct his business;
(f) Mr Somerville is concerned that after 44 years of hard work, owning various business operating in the small community of Coonamble will be prejudiced due to the tarnish caused to his reputation by the Publications."
Mr Sommerville's particulars paint a picture of a respected member of the community, a shopkeeper in a small country town for many decades, who finds himself having to defend his reputation to his customers "continually", causing him acute mental distress and raising the likelihood that he, after 44 years of his working life in Coonamble, will not be able to run his toy shop or participate in local politics because his reputation is so tarnished.
By contrast, Mr Horan's concerns notice dated 17 February 2023 did not even contain a heading setting out "serious harm", let alone particulars. The closest the concerns notice gets is to set out the following information, under the heading "Loss and damage and applicability of defences":
"As a result of the Publications Mr Horan has been held up to hatred, ridicule and contempt, has been seriously injured in his credit and reputation, has suffered hurt and embarrassment, and has suffered and will continue to suffer loss and damage.
The loss and damage suffered has been to a very high degree, having regard to the severity of the allegations of corruption, and the importance of the Project to the economic growth of Coonamble. Further, we are instructed that the assertions raised in the First Broadcast Segment is entirely false, as the initial grant application made by previous Council was rejected. The current council submitted a fresh application and was successful in securing the $5.5million grant.
The imputations conveyed by the Publications have caused and continue to cause our client significant damage to its brand and reputation. Harm to reputation is done when a defamatory publication is comprehended by the person to whom it is published (Dow Jones & co Inc v Gutnick (2002) 210 CLAR 575). Whether or not a thing has a defamatory meaning is determined by whether the words 'tend to lower the plaintiff in the estimation of right-thing members of society generally' (Sim v Stretch [1936] 2All ER 12370). We consider that the imputations conveyed by the Publications meet this threshold.
We note that Mr Schieb gives no reasons for his conclusions of corruption, but rather states it as fact. This allegation is particularly offensive to our client, who values his reputation given his 20 years in the police force. In our view, you will have no available defences to you, including the Lange defence, or the defence of Public Interest pursuant to section 27A of the Act.
The Court will consider the indicia set out in the Act and will likely find that you:
(i) did not refer to any sources of information in the matter published (sections 29A(3)(e));
(ii) failed to make a reasonable attempt to obtain or a publish a response from our client before making the defamatory statements (sections 29A(3)(g)); and
(iii) failed to take any steps to verify the information in the matter published 29A(3)(h).
In short, we can see no basis whatsoever for any allegation that Mr Horan has engaged in any corrupt conduct. The inference being drawn by others is that this publication is highly defamatory and not based on fact. Accordingly, there are no available defences which may justify the imputations made."
Even by the generous standards of other decisions (discussed below) which fail to identify serious harm in a subheading or in substance, this is very close to the borderline. The best that Mr Horan can do is to say that this has caused him significant damage in terms of his "brand" and "reputation". Ms Amato submits that the generality of these terms, even when added to by the additional particulars of 14 March 2023, cannot give the defendant the information he needs in order to participate in the offer of amends process.
Both plaintiffs provide further particulars in the statement of claim. Ms Amato initially opposed reliance on these but now submits that these particulars, especially in the case of Mr Horan, demonstrate the kind of material he could and should have provided in the concerns notice.
[4]
Serious harm (in the statement of claim)
Mr Sommerville pleads essentially the same particulars of serious harm:
"Further to paragraph 8 hereof, by reason of the particulars sub-joined hereto, the Plaintiff has suffered serious harm.
Particulars of serious harm
(a) The Publications were to a mass audience;
(b) The audience to which the Publications were broadcast were within the Plaintiff's professional and business community;
(c) The Publications are to members of the public from which it is to be inferred that the imputations have or are likely to have come to the attention of people who know Mr Sommerville and/or his local business, Sommos Toy & Variety, or are likely to know him in the future whether within the wider Coonamble Community, in the course or professional pursuits, within the political sphere or otherwise;
(d) The seriousness of the allegations are likely to have embedded into the minds of the listeners the negative imputations about Mr Sommerville;
(e) The imputations are serious. Mr Sommerville's professional reputation depends on his integrity, expertise, good judgment and management skills in the political sphere. The imputations as alleged pose a significant risk to Mr Sommerville's political career, local business and reputation within the community;
(f) Mr Sommerville holds dearly his excellent reputation in the wider Australian community. The likely adverse effect on him as a result of the Publications being published within his immediate community has caused acute distress. Mr Sommerville lives and operates Sommos Toy & Variety on the main street of Coonamble, a small town with a tight-knit community. There has been a clear grapevine effect, Mr Sommerville has had 8 - 10 members of the community come into 'Sommos Toy & Variety' questioning him about the Publications. Mr Sommerville has been forced to defend his character and his reputation continually, subsequently causing acute mental distress;
(g) Mr Sommerville is concerned that the Publications are likely to prejudice his ability to conduct his business affairs and duties as a councillor;
(h) Mr Sommerville is concerned that after 44 years of hard work, serving the community and operating his business in the small community of Coonamble, all his endeavours will be prejudiced due to the tarnish caused to his reputation by the Publications.
(i) The defamatory publications have been repeated, and the corresponding fallout due to the defamatory imputations have resulted in more prominent publications on Crikey.com and in the Coonamble Times drawing attention to the defamatory imputations."
Mr Horan pleaded the following particulars of serious harm:
"Further to paragraph 8 hereof, by reason of the particulars sub-joined hereto, the Plaintiff has suffered serious harm.
Particulars of serious harm
(a) The Publications were to a mass audience;
(b) The audience to which the Publications were broadcast were within the Plaintiff's professional and business community;
(c) The Publications are to members of the public from which it is to be inferred that the imputations have or are likely to have come to the attention of people who know Mr Horan and/or his local motel, or are likely to know him in the future whether within the wider Coonamble Community, in the course or professional pursuits, within the political sphere or otherwise;
(d) The seriousness of the allegations are likely to have embedded into the minds of the listeners the negative imputations about Mr Horan;
(e) The imputations are serious. Mr Horan's professional reputation depends on his integrity, expertise, good judgment and management skills in the political sphere. The imputations as alleged pose a significant risk to Mr Horan's political career, local business and reputation within the community;
(f) Mr Horan holds dearly his excellent reputation in the wider Australian community. The likely adverse effect on him as a result of the Publications being published within his immediate community has caused acute distress. Mr Horan lives and operates a motel on the main street of Coonamble, a small town with a tight-knit community. Mr Horan has had members of the community come to him questioning him about the Publications. Mr Horan has been forced to defend his character and his reputation continually, subsequently causing acute mental distress;
(g) There has been a clear grapevine effect, as Mr Horan is aware of specific instances of people talking about the imputations;
(h) The Publications are likely to prejudice his ability to conduct his business affairs and duties as a councillor;
(i) Mr Horan is concerned that after years of hard work, owning various business operating in the small community of Coonamble will be prejudiced due to the tarnish caused to his reputation by the Publications.
(j) Mr Horan has commenced the process of listing his property on the market, as he feels compelled to leave the community as a result of the hurt and damage to his reputation and to his family's reputation;
(k) His family members including his daughter and son-in-law confronted him about the Imputations, and he was forced to defend his character;
(l) Mr Horan has received e-mails from his constituents accusing him of corruption. One example of this is the e-mail from kimmoth@gmail.com, Dated: 5 May 2023 at 12:34:46 pm AEST;
(m)The defamatory publications have been repeated, and the corresponding fallout due to the defamatory imputations have resulted in more prominent publications on Crikey.com and in the Coonamble Times drawing attention to the defamatory imputations."
The new particulars of serious harm from Mr Horan may be summarised as follows:
1. Although rarely claimed, evidence of injury to health may be taken into account not only in damages (Iskander v Barcos [2023] VCC 2074) but also in relation to serious harm (Martin v Najem [2022] NSWDC 479 at [71] and [76]) where the evidence is likely to include physical or mental problems and/or a need for treatment. Such matters must be particularised.
2. Repeatedly having to defend oneself to customers, friends and even family and the likelihood of family stress is accepted as being harmful: Martin v Najem at [22]-[36]. Again, such matters must be particularised.
3. Having to sell one's home or move out of the area as a result of what has been said or written could amount to acceptable evidence of serious harm, although Sackar J expressed some doubts about this in Newman v Whittington [2022] NSWSC 249 at [32]. Mr Horan is entitled to rely on this in terms of the "future" aspect of serious harm.
4. Damage to business and financial harm may be regarded as serious if at a sufficient level.
Had these particulars been provided in the first place, Mr Horan and the defendant would have been in a much better negotiating position in terms of resolving these claims. Regrettably, since Mr Sommerville was also a party, his better particularised claim may not have been able to be dealt with in any final sense while Mr Horan's particularisation remained so general.
[5]
Conclusions concerning Mr Horan's particulars of serious harm
Failure to have a heading of "Serious Harm", or to provide particulars which are identified as the particulars in question, need not be fatal where the clear meaning of the concerns notice makes the identification of these particulars possible: see Zimmerman v Perkiss [2022] NSWDC 448 at [39]-[42], Nyasulu v Naikelekele [2022] NSWDC 507 and Georges v Georges [2022] NSWDC 558. The difficulty occurs where no amount of analysis of the concerns notice can identify what those particulars would be. This is essential information for any publisher, in terms of inquiries to be made, advice to seek and the quantum and/or other remedy to be offered. Mr Horan's failure to provide any particulars in the concerns notice is fatal and cannot be cured by the late provision of particulars called "serious harm" but which are no more than restatements of general principles about damage to reputation.
I gave consideration as to whether the particulars in Mr Sommerville's claim could assist Mr Horan but on reflection I do not consider this to be the case.
As Mr Horan's concerns notice is ineffective, the statement of claim must be struck out.
As the defendant has failed in relation to the application against Mr Sommerville, those proceedings will be allocated a fresh hearing date.
[6]
The next stage of this litigation
There can be no doubt that the parties made substantial and serious attempts to resolve their litigation both before and after the first return date and up to the bringing of this application. Resolution of disputes as opposed to commencing court proceedings is one of the key objects in s 3 of the Act. The District Court takes these obligations particularly seriously, given that this is the venue of choice for claims of a more modest nature, which means that a different approach to that of the "blockbuster" claims in superior courts (where the preferred course, under their procedural rules, is for mediation as part of the court process after proceedings are started and for all issues to be deferred to the trial: Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726 at [73] and [74]). It was perhaps in part for this reason, namely the desirability of mediation, that Ms Amato made a series of concessions as to not taking limitation or leave (s 23 of the Act) points if a fresh concerns notice is to be issued very promptly. She is optimistic that once these issues have been resolved, the parties can return to the negotiating table. The parties are to be commended for their constructive approach to mediation.
The appropriate course for me to take in those circumstances is to grant the defendant's application for summary dismissal of Mr Horan's claim (this being the agreed result of failure to provide a valid concerns notice, as the parties noted: see Newman v Whittington). This will enable Mr Horan to send a fresh concerns notice immediately and, when the 28-day period of notice has expired, to commence fresh proceedings if the matter has not resolved rather than find himself in the same position as occurred in Zhao.
I am conscious of the argument that to strike the claim out, in circumstances where most if not all of the particulars in question have now been more largely identified in the statement of claim, appears nitpicking. A similar submission was made to Brown J in Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323 at [87]. I agree with Brown J that pragmatism should not overcome these key legislative reforms designed to promote early resolution of defamation proceedings. These are not mere formalities; their success has already been reflected in the significant drop in the number of defamation trials in all courts around Australia, a drop which began to be noticed in 2022 and increased in pace in 2023, with the result that defamation trial numbers for 2023 were nearly a third smaller than 2022.
I indicated to the parties that I proposed to reserve costs. This was in part because of the parties' mixed success and in part in the hope of assisting the ongoing mediation and resolution of these proceedings.
[7]
Orders
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.
[8]
Amendments
05 February 2024 - Paragraphs 1 and 7 - title of mayor corrected pursuant to UCPR r 36.17.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 February 2024