Does Amending Defamation Pleadings Require a Fresh Concerns Notice?

By Damon Laffin, Director | Odyssey Legal | Queensland Defamation Lawyers

Defamation proceedings are expensive, time-sensitive, and unforgiving of procedural missteps. Before you can even file a claim in Queensland, you must serve a concerns notice on the proposed defendant, particularise the defamatory imputations, and wait for the offer-to-make-amends period to run. Get any of that wrong, and your proceedings cannot commence.

But what happens after proceedings are on foot? You discover new information. A publication you did not know about. Additional recipients. A different form of the same defamatory content. You need to amend your claim. And now the defendant is telling you the concerns notice you served before filing does not cover the amendments, and that you need to start the pre-litigation process all over again.

It is a common tactic, and it can be a costly one if it succeeds. In Surie v MacDonald [2024] QCA 254, the Queensland Court of Appeal confirmed that it should not.

Background: How the Question Arose

Ella MacDonald commenced defamation proceedings in the District Court at Brisbane after discovering that Natalie Surie and Scott MacDonald had submitted a complaint about her to the Department of Education containing statements she alleged were defamatory. She had received a copy-pasted version of the complaint from the Department, understood it to be a letter, and pleaded it as such in her statement of claim.

She later discovered through a third-party information access application that the underlying publication was in fact an email. The content was identical to the letter she had pleaded, save for a minor typographical difference. The email had been sent to four recipients and had three photographs attached.

When she amended her statement of claim to add causes of action for the additional publications constituted by the email (including the publications to the three recipients beyond the Department), those amendments were filed eleven days outside the one-year limitation period.

The applicants argued that the amendments were futile for two reasons. First, that the limitation period had expired. Second, that even if time were extended under section 32A of the Limitation of Actions Act 1974 (Qld), the absence of a fresh concerns notice under section 12B of the Defamation Act 2005 (Qld) operated as an absolute bar to the new causes of action.

The primary judge rejected both arguments. The Court of Appeal refused leave to appeal and upheld the primary decision.

What Section 12B Actually Says

The argument about fresh concerns notices turns on the text of section 12B(1), which provides:

(1)  An aggrieved person cannot commence defamation proceedings unless --

      (a)  the person has given the proposed defendant a concerns notice in respect of the matter concerned; and

      (b)  the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and

      (c)  the applicable period for an offer to make amends has elapsed.

The defendants' argument was that 'proceedings' should be read broadly to capture not just the originating process but also amendments that introduced new causes of action. If a new cause of action is introduced, they said, it is effectively a new commencement requiring its own concerns notice.

The Court rejected that construction for six reasons, each grounded in the text, context, and legislative history of the provision.

The Court's Six-Limb Reasoning

1. Plain language

Section 12B(1) uses the language 'cannot commence defamation proceedings unless'. The word 'commence' refers to the initiation of proceedings, namely the filing of the originating process. It does not capture the amendment of existing proceedings. Parliament chose that word deliberately.

2. Contextual support within section 12B

Section 12B(3) provides for the court to grant leave to commence proceedings despite non-compliance with the offer-to-make-amends period, where commencement after that period would otherwise violate the limitation law. The internal reference to 'commencement' throughout the section is consistent with the provision operating at the point of initiation, not amendment.

3. The Explanatory Note

The Explanatory Notes to the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld) stated that section 12B was inserted 'to require a concerns notice to be given to the publisher of matter that is or may be defamatory before defamation proceedings may be commenced against the publisher in respect of the matter'. The word 'before' reinforces the pre-commencement character of the obligation.

4. The Second Reading Speech

The then Attorney-General described the reform as making it mandatory to issue a concerns notice 'prior to commencing defamation proceedings in court'. The parliamentary intention was a gate at the door of litigation, not a recurring requirement activated by every pleading amendment.

5. Interaction with the offer to make amends defence

Section 18 of the Defamation Act provides a defence to an action where the defendant made an offer to make amends that was not accepted. Critically, an offer to make amends cannot be made after a defence has been served. If section 12B required a fresh concerns notice on every amendment, it would create a situation where a defendant could demand the right to make an offer to make amends at a point when the substantive right to do so had already expired. That would be an anomalous result.

6. Parliament's choice of language

It would have been an easy option for the Parliament to have referred to 'each cause of action for defamation' had they intended to require that a new concerns notice be issued each time an existing defamation proceeding was amended to add a cause of action. Yet, they chose not to do so.

This is the Court's sharpest observation. The drafters knew how to attach obligations to individual causes of action. They chose instead to attach the concerns notice requirement to proceedings. That choice of language must be given effect.

Three Jurisdictions, the Same Answer

The Queensland Court of Appeal's conclusion is consistent with decisions from New South Wales and the Federal Court applying equivalent provisions of the model defamation laws.

Newman v Whittington [2022] NSWSC 1725 (Rothman J)

Section 12B of the NSW Act does not, on its face, prohibit the amendment of an existing statement of claim to add two further publications. The purpose of the pre-litigation provisions is to encourage early resolution. That purpose is served by the initial service of the concerns notice and the identification of the serious harm caused by the alleged defamation. No fresh notice was required.

Whittington v Newman [2024] NSWCA 27 (NSW Court of Appeal)

Did not need to decide the construction question on appeal but confirmed that section 12B was satisfied by the original concerns notice where the same or similar imputations were raised.

Cooper v Nine Entertainment Company Pty Ltd [2023] FCA 726 (McElwaine J)

The focus of the concerns notice provision is upon the publication of matter that is or may be defamatory, not upon individual causes of action arising from multiple publications of the same material. Section 12B 'operates at the level of commencement of a proceeding, not with multiple causes of action that may be asserted and which rely on multiple publications of the same or substantially the same material'. An application to amend to add further publications 'engages the discretion to grant leave to amend an existing proceeding. It is not the commencement of a proceeding without first giving a concerns notice.'

Brown JA confirmed that this approach accords with the terms of the Queensland Defamation Act and with the apparent intent of Part 3 Division 1, which is to encourage the parties to resolve a matter before proceedings are commenced and significant costs are incurred.

Was the Original Concerns Notice Good Enough in Any Case?

Having found that section 12B does not require a fresh concerns notice on amendment, the Court went on to confirm that the original concerns notice was sufficient to cover the email publications in any event.

The concerns notice identified the published material as 'a letter of complaint you submitted by email on behalf of you both to the Department of Education Queensland'. It attached a copy of the contents of the letter (which was in the same terms as the email) and set out each defamatory imputation in detail.

Two provisions supported this conclusion.

First, the broad definition of 'matter' in Schedule 5 to the Defamation Act, which includes 'a letter, note or other writing' and 'any other thing by means of which something may be communicated to a person'. Whether the publication was transmitted as a letter or an email is irrelevant to whether the 'matter' has been identified. The defamatory content is the matter. The medium of transmission is incidental.

Second, the language of section 12B(1)(a) requires a concerns notice 'in respect of the matter concerned'. As McElwaine J observed in Cooper, these are wide words that generally require only a connection or association between the notice and the matter, not a one-to-one correspondence between each cause of action and a separate notice.

The defamatory matter itself was the typed content, not the form in which it was contained. The concerns notice had set the defamatory matter out and the defamatory imputations.

The Defendants' Offer to Make Amends Argument

The defendants raised a further argument: if no fresh concerns notice was required, they were denied the opportunity to make an offer to make amends in respect of the email publications, and therefore denied access to the section 18 defence.

The Court rejected this. The defendants had been given a concerns notice in November 2022. They were aware of the content of the publication and each imputation complained of. Their decision not to make an offer to make amends at that stage was a conscious choice: they denied publishing any letter at all. The Court was unmoved by the suggestion that discovering the publication was an email rather than a letter changed their legal position:

The applicants took the risk that the fact the publication was an email and not a letter may be discovered.

That observation carries a practical lesson for defendants in defamation matters. If you receive a concerns notice identifying content you recognise as material you published, the window for the offer to make amends defence runs from that notice, not from a later, more accurate pleading, regardless of the form the notice refers to.

One Qualification the Court Left Open

Brown JA noted one important qualification. While section 12B does not operate as a bar to amendments adding new causes of action, the absence or inadequacy of a concerns notice in relation to the matter raised by those new causes of action may still be relevant to the court's discretion whether to grant leave to amend.

The Court gave the example of amendments adding causes of action, publications, and imputations outside of the 'matter concerned' in the original concerns notice. In that situation, the lack of a covering concerns notice does not create an absolute bar, but it is a factor the court may weigh against the grant of leave.

This qualification matters in practice. If you are amending defamation proceedings to add causes of action that introduce substantially different imputations, rather than the same content published in a different form or to additional recipients, you should consider whether the original concerns notice adequately covers the expanded claim. If it does not, the better practice is to serve a further notice before seeking leave to amend.

What This Means for Queensland Defamation Matters

Key takeaways

• Section 12B is a pre-commencement obligation. One concerns notice, served before proceedings are filed, satisfies the requirement for the life of those proceedings where the amendments add causes of action based on the same or substantially the same material.
• A concerns notice does not need to precisely identify the form of the publication. It must identify the matter (that is, the defamatory content) and particularise each imputation. Whether the content was sent by letter, email, post, or any other medium is not determinative.
• Defendants who receive a concerns notice and choose not to make an offer to make amends carry the risk that later-discovered publications in the same terms will not generate a fresh opportunity to invoke the section 18 defence.
• If an amendment introduces imputations that go beyond the matter identified in the original concerns notice, the absence of a covering notice may weigh against leave to amend, even though it does not constitute an absolute bar.
• Draft concerns notices broadly and comprehensively at the outset. Identify every publication you are aware of, set out each imputation in full, and use language that captures the matter rather than a specific medium. The costs of doing this properly before proceedings are considerably lower than the costs of litigating about it later.

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Frequently Asked Questions

Do I need to serve a fresh concerns notice every time I amend my defamation claim?

No, based on Surie v MacDonald and the consistent position taken in New South Wales and the Federal Court. Section 12B applies to the commencement of proceedings, not to amendments within existing proceedings. A concerns notice served before you commenced will continue to satisfy the requirement, provided the new causes of action relate to the same or substantially the same matter.

What if my amendment introduces a publication I did not know about when I served the original concerns notice?

You do not need a fresh concerns notice as a strict legal requirement. However, if the new publication carries imputations that are substantially different from those in the original notice, the court may take the absence of a covering notice into account when deciding whether to grant leave to amend. The safer course is to serve a further notice before seeking leave in those circumstances.

I am a defendant. I received a concerns notice about a letter but the claim now refers to an email. Am I entitled to a fresh notice?

No, as confirmed in Surie v MacDonald. If the content of the email is the same as or substantially similar to the content identified in the original concerns notice, the notice covers both publications. Your decision whether to make an offer to make amends must be made on the basis of the concerns notice you received, not on the assumption that the pleaded form of the publication is the only thing you could be liable for.

Does failing to make an offer to make amends because you disputed the form of the publication protect you?

No. The Court in Surie was explicit: the defendants knew the content of the defamatory imputations from the concerns notice. Their choice not to engage with the offer to make amends process because they disputed the form of the publication was a risk they accepted. Courts will not reopen that opportunity once the email or other publication is discovered.