Giving a Valid Concerns Notice: Essential Defamation Requirement

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If you are contemplating commencing defamation proceedings, then it is imperative that you ensure that you have issued a valid concerns notice that is compliant with sections 12A, 12B and 44 of the Defamation Act 2005 (Qld) (Act).

A failure to do so can result in your proceeding being dismissed or you losing the ability to commence proceedings against the Publisher, may leave your reputation to be damaged from their conduct without recourse.

To protect your interests (and your reputation), schedule a free consultation with our expert defamation lawyers and obtain peace of mind, knowing you have the right partner in your corner.

Executive Summary

In Queensland, the Defamation (Model Provisions) and Other Legislation Amendment Act 2021 introduced the mandatory concerns notices.

Section 12A of the Act specifies the requirements of a valid concerns notice, while section 12B was introduced into the Act, requiring a concerns notice to be issued before initiating defamation proceedings. Section 12B states that if a concerns notice is not issued, the Aggrieved is unable to commence proceedings unless the court grants permission to proceed.

This requirement ensures that parties engage in pre-litigation processes, thereby reducing the burden on judicial resources. The legislative change aimed to encourage early dispute resolution and prevent frivolous or vexatious claims from reaching the courts.

Within this article, our expert defamation lawyers will particularise the requirements for a concerns notice, the requirements to 'give' a concerns notice, and the consequences of failing to do so.

What is a Concerns Notice?

A concerns notice is a formal notice by the Aggrieved to the Publisher regarding the alleged defamatory publication.

Section 12A of the Act provides:

'(1) For the purpose of this Act, a notice is a concerns notice if—

(a) the notice—

(i) is in writing; and

(ii) specifies the location where the matter in question can be accessed (for example, a webpage address); and

(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question; and

(iv) informs the publisher of the harm that the person considers to be serious harm to the person’s  reputation caused, or likely to be caused, by the publication of the matter in question; and

(v) for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and

(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Note — Section 12B requires a concerns notice to be given before proceedings for defamation can be commenced.

(2) For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings can not be used as a concerns notice.

(3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice.

(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.

To put it simply, a concerns notice is a notice if it:

1. is in writing;

2. specifies the location where the matter in question (the publication) can be accessed. This may include social media, newspapers, verbally, websites, review platforms, or otherwise.

3. informs the publisher of the defamatory imputation that may be carried about the Aggrieved.

NOTE: A defamatory imputation refers to a statement or implication within a publication that harms a person's reputation.

4. informs the publisher of the harm the Aggrieved considers to be serious harm to the person's reputation due to the publication.

5. where the Aggrieved is an excluded corporation (refer to our Article - 'What is an Associated Entity' on a breakdown of excluded corporations)—informs the publisher of the financial loss that the corporation considers to be serious financial loss due to the publication.

Consequently, for a concerns notice to be valid, it must comply with the above requirements.

Section 12B of the Act outlines that 'an Aggrieved person can not 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.

(2) Subsection (1)(b) does not prevent reliance on—

(a) some, but not all, of the imputations particularised in a concerns notice; or

(b) imputations that are substantially the same as those particularised in a concerns notice.

(3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—

(a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or

(b) it is just and reasonable to grant leave.'

Therefore, for an Aggrieved person to commence defamation proceedings, they must:

1. Give a concerns notice to the Publisher regarding the Publication, which outlines the requirements set out above; and

2. Wait until the applicable period for an offer to make amends has lapsed.

NOTE: Section 14(2) of the Act states that the 'applicable period' for an offer to make amends is (a) 14 days after the Aggrieved gives the Publisher further particulars (if a request is made by the Publisher for further particulars), or (b) in any other case, then 28 days.

Giving a Concerns Notice

Ensuring that the concerns notice is validly given to the Publisher is a crucial step to complying with the Act.

Section 44 of the Act provides guidance on how a concerns notice may be given:

'(1) For the purposes of this Act, a notice or other document may be given to a person (or a notice or other document may be served on a person)—

(a) in the case of a natural person—

(i) by delivering it to the person personally; or

(ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document; or

(iii) by sending it by facsimile transmission to the facsimile number of the person; or

(iv) by sending it by email to an email address specified by the person for the giving or service of documents; or

(b) in the case of a body corporate—

(i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents; or

(ii) by sending it by facsimile transmission to the facsimile number of the body corporate; or 

(iii) by sending it by email to an email address specified by the body corporate for the giving or service of documents.

(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.'

Therefore, a concerns notice may be given to the Publisher by:

1. delivering it personally; or

2. sending it by post to the address specified for the giving or serving of documents, or if no such address is specified, then the last known residential or business address of the Publisher; or

3. by sending it by facsimile transmission; or

4. by sending it by email to an email address specified by the person for giving or service of documents.

However, pursuant to section 44(2), nothing in this section affects the authorisation of a document being served (or given) to a person in any other manner. This may include where a law firm holds instructions to accept service on behalf of the Publisher of documents and the Aggrieved subsequently serves (or gives) the concerns notice to the Publisher's lawyer.

Relevant Case Law

Staged Plus & others v Yummi Fruit & others

In Staged Plus Pty Ltd & others v Yummi Fruit Ice-Creamery Pty Ltd & others [2024] QDC 88, the Defendants argued that the Plaintiffs were statue barred from commencing proceedings due to their non-compliance with section 12A(1)(a)(iv) of the Act. Further, or in the alternative, the Defendants argued that the statement of claim should be struckout and repleaded.

The Court held that the claims by the first plaintiff should be dismissed as they had been brought in breach of the prohibition under section 12B(1)(a) of the Act [failure by Staged Plus Pty Ltd to give a valid concerns notice].

The Court also made further orders to strike out various paragraphs throughout the statement of claim, due to the imputations being unable to be sustained.

The parties were subsequently invited to make submissions as to the proper order including:

'(a) Whether specific paragraphs ought to be struck out, or the more correct course, given the extent of the defects in the pleading, is to strike out the whole of the statement of claim;

(b) Whether leave should be granted to replead and, if so, whether there should be any conditions expressed on the leave;

(c) The form of any order to dismiss any part of the proceeding related to the first plaintiff; and

(d) Costs.'

This will no doubt be a costly mistake for the Plaintiffs, in particular the first plaintiff, given their claim will be entirely dismissed due to their non-compliance with the Act.

Stevens v Birtic

In Stevens v Birtic [2024] QDC 160 the Defendants applied to the Court for orders that the claim and statement of claim be set aside or dismissed because it failed to identify a defendant, the concerns notice is invalid or alternatively, respective paragraphs in the statement of claim should be struckout as the Plaintiff had failed to plead the serious harm element.

During their consideration, their Honour noted at [22] that:

 'In my view, although the application should have perhaps been brought under s 10A of the Act, or by referring a separate question to the court for determination, the defendant is entitled to take the action in the way that he has. In doing so, the applicant acknowledges the need to meet a higher bar in having the court make a determination the proceedings should be (effectively) summarily dismissed at this early stage, in circumstances where, as he contends, the irregularities are such that it would be a waste of time and resources to otherwise defend the proceeding where no cause of action is pleaded. I accept that either course equally achieves the purpose of r 5(1) UCPR: “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.'

Further, at [24]:

'Having regard to the clear legislative intent and jurisprudence following substantial amendment of the common law, it follows that proceedings for defamation should be brought where the defamatory imputations and basis of the resultant harm have been clearly identified from the outset, so that meritorious claims are sustained.'

At [36] - [39], their Honour concluded that:

'[36] Taking the plaintiff’s case at its highest and having regard to the nature of the defamatory imputations, I am satisfied the plaintiff has not given a compliant or valid concerns notice to the defendant. The document does not meet the test of being beyond the bare assertion of having suffered ‘harm’. There was a dispute about whether the defendant had brought this deficiency to the attention of the plaintiff’s lawyers, and whether the defendant should be allowed to run down the limitation period and later complain about the validity of the concerns notice, without taking the option of acting under s10A(3) of the Act. I am satisfied that is not what has happened here; the defendant wrote back drawing to the attention of the plaintiff that the concerns notice was deficient, within the statutory time limit. The defendant does not have to use the words of the statute in asking for further or better particulars of harm, in my view. I do not consider the defendant to have delayed in bringing the application for dismissal and strike out.

[37] Finding the concerns notice to be invalid, the proceedings have been incorrectly instituted and must be dismissed.

[38] In the event I am wrong about that and should have found the concerns notice passed the threshold of what is contemplated by ss 12A and 12B of the Act, I would strike out the statement of claim and dismiss the claim, in reliance upon r 171 of the UCPR. I am satisfied, on a cautious consideration of the various matters canvassed, that this is a clear case where the claim and statement of claim has failed to identify and properly plead the cause of action. It has not been specified how and why the ‘serious harm’ has been caused and what it is. There is no information in the pleading about what good reputation the plaintiff already had as a fishmonger for her to suffer ‘serious harm’. The pleadings contain assertions that could only allege ill will, motive or malice, fails to address the mitigatory impact of the qualifications expressed by the defendant, and otherwise makes a claim that the defendant wrote and said “words to the effect of” when what was actually written and said are crucial to the defendant knowing what the case is that he is meeting.

[39] In the circumstances, (in addition to the primary ruling about the invalidity of the concerns notice) I am satisfied the claim and statement of claim should be struck out. I am not persuaded that leave should be granted to replead, effectively, the whole case (or the part that survives the time limitation).'

The Defendant's application was granted and the Plaintiff's claim was dismissed with an order that the Plaintiff pay the Defendant's costs.

Khan v Hassan

In Khan v Hassan [2023] VCC 852 the Defendants argued that the proceedings were commenced in contravention of the sections 12B and 44 of the Defamation Act 2005 (vic) (VIC Act).

The Court held that the Defendant had not been given a concerns notice for the purpose of sections 12B and 44 of the VIC Act, in particular:

1. The Defendant and his solicitor at the time had not specified the email address for service of documents. As such, the Plaintiff emailing the concerns notice to the Aggrieved was not sufficient to satisfy section 44(1)(a)(iv) of the VIC Act.

2. The Plaintiff also made an error in the spelling of the Defendant's street address, when posting the concerns notice. The concerns notice was sent to 'Popular Boulevard' rather than 'Poplar Boulevard'. Therefore, the Plaintiff has also failed to satisfy section 44(1)(a)(ii) of the VIC Act.

Summary

These cases (among others) highlight the importance of strict compliance with the procedures specified under the Act (or VIC Act).

A failure to properly give the Publisher a valid concerns notice in compliance, can result in your proceedings being dismissed, which will likely include an order that you pay the other parties costs. Additionally, you will lose the ability to commence further proceedings against the Publisher for the same publications.

Free Consultation

If you are contemplating commencing defamation proceedings, then it is imperative that you ensure that you have issued a valid concerns notice that is compliant with sections 12A, 12B and 44 of the Defamation Act 2005 (Qld) (Act).

A failure to do so can result in your proceeding being dismissed or you losing the ability to commence proceedings against the Publisher, may leave your reputation to be damaged from their conduct without recourse.

To protect your interests (and your reputation), schedule a free consultation with our expert defamation lawyers and obtain peace of mind, knowing you have the right partner in your corner.