Concerns notices: what they must contain and why they decide most matters

A concerns notice is the formal letter that starts almost every defamation dispute in Australia. Since the 2021 reforms to the uniform defamation legislation it has also been a legal precondition to suing: a person who has not given a compliant concerns notice, and then waited the required period, cannot commence proceedings at all. Courts have enforced that rule strictly, and many claims have been struck out because the notice was missing, late or inadequate.

This article explains what a concerns notice must contain, how the waiting period and the further particulars mechanism work, what the courts have said about defective notices, and what a publisher who receives one should do. It uses the section numbers of the Defamation Act 2005 (NSW), which match those in Queensland, Victoria, South Australia and Tasmania. The differences in the ACT, the Northern Territory and Western Australia are noted at the end.

Why the notice matters

The objects of the Defamation Act 2005 include promoting speedy and non litigious methods of resolving disputes about defamatory publications.¹ Part 3 of the Act gives effect to that object through two linked mechanisms: the concerns notice, given by the person who says they have been defamed (the “aggrieved person”), and the offer to make amends, which the publisher may make in response. The notice is designed to give the publisher enough information to decide whether to make a reasonable offer, and to prompt the aggrieved person to consider whether the publication has in fact caused serious harm.²

Before 1 July 2021 a concerns notice was optional and a plaintiff could simply issue proceedings. The reforms changed that. Under s 12B(1), an aggrieved person cannot commence defamation proceedings unless the person has given the proposed defendant a concerns notice about the matter, the imputations to be relied on in the proceedings were particularised in the notice, and the applicable period for an offer to make amends has elapsed.³ The Queensland Court of Appeal has described the concerns notice as playing a “central role” in the statutory scheme, because the offer to make amends process cannot operate if no notice is given.⁴

What the notice must contain

Section 12A(1) sets out the requirements. A notice is a concerns notice if it is in writing and does four things, and a fifth in the case of a corporate complainant.⁵

First, it must specify the location where the matter in question can be accessed. The Act gives a webpage address as the example. For a newspaper article or broadcast, the date, title and outlet will usually suffice; for a social media post, a link or screenshot.

Second, it must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried by the matter. An imputation is the meaning the words convey about the person, for example “the complainant stole money from clients”. The notice does not have to list every conceivable meaning, and the Act allows the complainant to later rely on only some of the imputations, or on imputations substantially the same as those in the notice,³ but the imputations that will found the claim must be there in substance.

Third, it must inform 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. This mirrors the serious harm element in s 10A. Fourth, if the aggrieved person is an excluded corporation (broadly, a not for profit or a company with fewer than ten employees), the notice must also describe the financial loss the corporation considers to be serious financial loss.

Finally, a copy of the matter in question must be provided with the notice if that is practicable. A document filed to commence proceedings, such as a statement of claim, cannot be used as a concerns notice.⁵

Section 12A(1) defines a concerns notice by its content, not its label. The notice need not be prepared by a lawyer, headed “concerns notice” or in any particular form. The Queensland Court of Appeal has treated the question as one of substantial compliance: a document that does not substantially comply with the statutory requirements is not a concerns notice, whatever it is called.⁹ A letter of demand which does each of the things above is therefore likely to be a concerns notice; a letter headed “concerns notice” that identifies no imputations is not.

How much detail is enough

In Georges v Georges, Abadee DCJ held that adequacy is judged objectively, from the perspective of a reasonable publisher, and that the provisions were intended to have “bite”: “a bare assertion that harm has been or is likely to be suffered is insufficient”.⁶ The requirement is not, however, to be equated with the rigour of particulars in pleadings.⁶ In Teh v Woodworth, Gibson DCJ struck out a claim where the letter made only a “bald reference” to serious harm, with no particulars of what the harm was and nothing connecting it to the publication.⁷

Courts differ on how much must be said about harm. In Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd, Porter KC DCJ in the District Court of Queensland declined to follow the stricter New South Wales decisions. His Honour held that a notice is sufficient if it informs the publisher of harm, expressly or by implication, a “modest standard” which does not call for pleading style particulars, unless the publisher has requested further particulars and not received them.²² Even on that approach, the corporate complainant’s notice failed because it said nothing about financial loss.²² Until an appellate court settles the point, a complainant should assume the stricter view applies.

The Queensland Court of Appeal has since confirmed that the requirements “are not onerous”, but that a letter which merely identifies the article and asserts that it is defamatory, inaccurate and “tarnishes” the complainant’s reputation does not identify any imputation and so fails s 12A(1)(a)(iii).⁸ The court also held that a document which does not substantially comply with the requirement to identify the imputations is not a concerns notice at all, and does not even engage the further particulars mechanism described below.⁹

In practice a sound notice will set out, in separate numbered paragraphs, each imputation; the facts said to show serious harm (for example, who read the publication, what they did as a result, lost work or contracts, and the complainant’s standing in the community); and, for a corporation, the actual or likely financial loss. It will attach the publication and say where it can be found.

Further particulars notices

The Act anticipates that some notices will be thin. If a concerns notice fails to particularise adequately the location, the imputations, the harm or the financial loss, the publisher may give the aggrieved person a written further particulars notice requesting reasonable further particulars.⁵ The Act sets no deadline for the publisher’s request. The aggrieved person must then provide the particulars within 14 days of being given the request (or any further agreed period), and a person who fails to do so is taken not to have given a concerns notice at all.⁵

In Georges v Georges the court said that a publisher who considers a notice defective is expected to act reasonably, and that a publisher who “sits back, runs down the time” and then takes the point in court is not acting consistently with the objects of the Act; a court may take the publisher’s failure to request particulars into account when assessing whether the notice was adequate.¹⁰ The Queensland Court of Appeal, however, has made clear that s 12A(3) does not oblige a publisher to request particulars in order to cure a deficient notice, and that a document which identifies no imputations at all is not rescued by the publisher’s silence.⁹ It left open whether a deficient first document, read together with particulars later requested and provided, could amount to a concerns notice.⁹

The safe course is clear: a complainant should get the notice right the first time, and a publisher who genuinely needs more information should ask for it promptly and in writing.

The waiting period

Once the notice is given, the complainant must wait before suing. The “applicable period” for an offer to make amends is defined in s 14(2). Ordinarily it is 28 days from the day the publisher is given the concerns notice. If the publisher gives a further particulars notice, and the complainant provides the particulars more than 14 days after the original concerns notice was given, the applicable period becomes 14 days from the day the publisher receives the particulars.¹¹ Only the first further particulars notice has this effect.¹¹ A publisher cannot make an offer to make amends once the applicable period has expired or once it has served a defence.¹¹

A court may grant leave to commence proceedings before the period ends, but only if the proposed plaintiff shows either that waiting would mean the limitation period expires with no power left in the court to extend it, or that it is otherwise just and reasonable to grant leave.³ Leave is granted to a “proposed plaintiff”; the Queensland Court of Appeal has left open whether leave could be granted after the event to validate proceedings commenced too early.¹²

The 28 day waiting period for a concerns notice interacts with the one year limitation period. In every reformed jurisdiction the limitation statute now provides that, if a concerns notice is given within the last 56 days of the limitation period, the limitation period is extended so that the complainant still has time to receive and consider an offer. In New South Wales the provision is s 14B(2) and (3) of the Limitation Act 1969; in Queensland it is s 10AA of the Limitation of Actions Act 1974.¹³ The extension is 56 days less the number of days remaining after the day the notice is given. In the statute’s own example, a notice given seven days before the deadline leaves six days remaining after the notice day, so the period is extended by 50 days.¹³ A complainant close to the deadline should check the arithmetic carefully.

What happens if the notice is defective

The consequences of error are severe. In Cavar v Campbelltown Catholic Club Ltd the New South Wales Court of Appeal held that a plaintiff who had not given a concerns notice was not entitled to commence proceedings, and that the primary judge was “clearly correct” to summarily dismiss the claim.¹⁴ In Teh v Woodworth the court held that the requirements of ss 12A and 12B are mandatory rather than directory, that proceedings commenced without a compliant notice are invalid, and that the defect cannot be cured by serving a notice after the event.⁷ In Dorante-Day v Dailymail.com Australia Pty Ltd the Queensland Court of Appeal upheld the summary dismissal of a claim where the letter identified no imputations, and held that proceedings commenced before the applicable period has elapsed are also capable of being summarily dismissed.⁴

A struck out claim is not necessarily the end. If the limitation period has not expired, the complainant can give a proper notice, wait the applicable period and start again, usually bearing the costs of the first attempt. Where time has run out, the only route is an application to extend the limitation period, discussed in the time limits article.

Receiving a concerns notice

For a publisher, a concerns notice starts the 28 day clock on the most valuable protection the Act offers: the offer to make amends. A reasonable offer that is not accepted is a complete defence under s 18, but only if the offer was made as soon as reasonably practicable after the notice and in any event within the applicable period.¹⁵ Ignoring the notice forfeits a defence that might have ended the matter.

The sensible steps on receipt are to diarise the 28 day date, obtain the publication and any records of its reach, consider whether a further particulars notice is genuinely needed, and decide whether to make an offer, dispute the claim or both. An apology or correction published at this stage is not an admission of liability and may later reduce damages.¹⁶

A publisher should also check that the notice is directed to it specifically and to the publication in question. The notice must be given to the proposed defendant, and a notice about one publication is not a notice about a later one, even if the content is similar; the Act treats each publisher and each publication separately.¹⁷

Differences between jurisdictions

The concerns notice provisions are in the same terms in New South Wales, Queensland, Victoria, South Australia and Tasmania, using ss 12A and 12B. They commenced on 1 July 2021 in each of those states except Tasmania, where the amending Act commenced on 12 November 2021.²¹ In the Australian Capital Territory they are ss 124A and 124B of the Civil Law (Wrongs) Act 2002 (ACT).¹⁸ In the Northern Territory they are ss 11A and 11B of the Defamation Act 2006 (NT), which came into force on 11 August 2025.¹⁹

Western Australia has not enacted the 2021 reforms, so under the Defamation Act 2005 (WA) a concerns notice remains optional. There is an important qualification. In Aguasa v Hunter the Western Australian Court of Appeal held that s 12B(1)(a) of the New South Wales Act is a substantive rather than procedural law. Where a matter is published wholly in a reformed jurisdiction, the choice of law rule in s 11 of the WA Act requires a Western Australian court to apply that jurisdiction’s substantive law, and the claim in that case failed because no compliant concerns notice had been given.²⁰ A Western Australian plaintiff suing over material published in another state should assume the requirement applies.

Getting advice

Whether a letter is a valid concerns notice, when the applicable period ends and whether time is about to run out turn on the particular publication, the jurisdiction and the dates. Both sides fare better when those questions are answered at the start rather than argued in a strike out application.