Offers to make amends: the publisher's most powerful tool

The offer to make amends is the centrepiece of the pre litigation scheme in Part 3 of the Defamation Act 2005. It is a statutory settlement mechanism with consequences that ordinary settlement offers do not have. If the offer is accepted and performed, the claim ends. If it is rejected, and a court later decides it was reasonable, the plaintiff loses the case entirely, no matter how defamatory the publication was.¹ In Vass v Nationwide News Pty Ltd, Parker J accepted counsel’s description of that effect as draconian: unlike an ordinary offer of compromise or Calderbank offer, which imposes a costs penalty, a rejected offer to make amends deprives the plaintiff of substantive rights.²⁴

This article explains who can make an offer and when, what the offer must contain, what happens on acceptance or rejection, and how the courts have assessed whether an offer was reasonable. For a publisher, the offer is the most valuable protection the Act provides; for a complainant, understanding how a court will later judge the offer is essential to deciding whether to accept it.

When an offer can be made

A publisher may make an offer to make amends to the aggrieved person, either in relation to the matter generally or limited to particular defamatory imputations that the publisher accepts the matter carries.² Where two or more people published the matter, an offer by one does not affect the liability of the others, although a court has held that an offer by a media company should be read as extending to its journalists and editors.³ An offer is taken to be made without prejudice unless it says otherwise.²

The timing rules are strict. An offer cannot be made once the applicable period for an offer to make amends has expired, or once the publisher has served a defence in proceedings brought by the aggrieved person.⁴ The applicable period is ordinarily 28 days from the day the publisher was given a concerns notice. If the publisher requested further particulars of the notice and the complainant provided them more than 14 days after the notice, the period is instead 14 days from receipt of the particulars.⁴ The applicable period is explained in more detail in the article on concerns notices.

An offer can only be made in response to a concerns notice, and the period is short. A publisher who receives a notice and does nothing until the applicable period has expired has lost the opportunity, and with it the s 18 defence.

What the offer must contain

Section 15(1) sets out the mandatory content. An offer to make amends must be in writing and must be readily identifiable as an offer to make amends under Division 1 of Part 3. It must state that it is open for acceptance for at least 28 days from the day it is made. If it is limited to particular imputations, it must say so and identify them. It must include an offer to publish, or join in publishing, a reasonable correction of the matter or a clarification of or additional information about it. If material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge, it must include an offer to take reasonable steps to tell that person that the matter is or may be defamatory. And it must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and in considering the offer.⁵

Each of these is a precondition to validity. In Pedavoli v Fairfax Media Publications Pty Ltd, McCallum J held that an offer which did not include the required offer to notify Twitter followers to whom the article had been distributed was not a valid offer at all, quite apart from whether it was reasonable.⁶

The offer may, but need not, include other terms: an apology; where the matter is digital, an offer to take access prevention steps such as removing or blocking the material; compensation for economic or non economic loss; and particulars of any correction, apology or other action already taken.⁷ For digital matter, an offer to take access prevention steps may be made instead of, or in addition to, the correction and notification offers.⁷ Compensation may be a stated sum, a sum to be agreed, a sum to be fixed by an agreed arbitrator, or a sum to be determined by the court.⁷

An offer may be withdrawn before acceptance by written notice, and a renewed offer may then be made on the same or different terms. A renewed offer is treated as a new offer for the purposes of the time limits, but the Act allows a renewed offer outside the applicable period if it is a genuine attempt to address concerns raised about the withdrawn offer and is made within 14 days of the withdrawal.⁸

If the offer is accepted

If the aggrieved person accepts the offer and the publisher carries out its terms, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter, even if the offer was limited to particular imputations.⁹ The bar applies only once the terms, including any compensation, have actually been carried out. The court may also order the publisher to pay the expenses the aggrieved person reasonably incurred as a result of accepting the offer, with any legal costs forming part of those expenses assessed on an indemnity basis.⁹

Where compensation was offered on an “amount to be determined” basis, the court may fix the amount and resolve any other dispute about the terms.⁷ Statements and admissions made in connection with making or accepting an offer are not admissible in any legal proceedings, other than for the purpose of deciding an issue under the Division or a question of costs.¹⁰

If the offer is rejected

This is where the scheme has real force. Under s 18(1), if an offer to make amends is made but not accepted, it is a defence to the action if three things are shown: the publisher made the offer as soon as reasonably practicable after being given a concerns notice and in any event within the applicable period; the publisher was ready and willing, on acceptance, to carry out the terms; and in all the circumstances the offer was reasonable.¹¹ The onus is on the publisher. Whether the defence is established is decided by the judge, not a jury.¹¹

The defence is a complete answer to the claim. A plaintiff who proves publication, identification, defamatory meaning and serious harm, and defeats every other defence, still loses if the court finds that a reasonable offer was refused. The Act separately directs the court to award indemnity costs against a plaintiff who unreasonably failed to accept a settlement offer, a term defined to include an offer to make amends that was reasonable when made.¹²

How courts assess reasonableness

Reasonableness is assessed objectively, at the time the offer was made and in all the circumstances.¹³ Section 18(2) directs the court to have regard to any correction or apology published before trial, including how far it was brought to the attention of the original audience, taking into account the prominence given to the correction compared with the original matter and the time that elapsed between the two. The court may also consider whether the complainant refused a limited offer because of disagreement about the imputations, and any other relevant matter.¹¹

Two New South Wales decisions illustrate the approach. In Pedavoli, a newspaper article wrongly identified a teacher as having resigned over sexual misconduct with students. The publisher offered a page two apology, publication of the apology online, $50,000 and costs. McCallum J held that the starting point is the capacity of the offer to address the hurt and harm done, both as to seriousness and extent; that the apology, published under the bare heading “apology” and at the bottom of the website, was “barely noticeable” against front of paper headlines; and that given the gravity of the imputations a monetary payment was essential, although there may be cases where a reasonable correction and a contrite apology would obviate any payment.¹⁴ Her Honour also made a point that the Court of Appeal later approved in another case: a reasonable monetary offer does not have to fall within the range of damages that would be awarded at trial, because that would ignore the reparation achieved by the correction itself. The reasonableness of the money is nonetheless informed by the reasonableness of the correction, including its reach.¹⁵ The offer was held not reasonable and the plaintiff recovered $350,000.¹⁶

In Zoef v Nationwide News Pty Ltd, a national newspaper described an elderly tailor as a gunrunner, when in truth the criminal charges related to his son, who had the same name. The publisher offered an apology in the “For the Record” section, $20,000 and costs. The Court of Appeal held the offer unreasonable. The proposed apology was “footnote size” and buried on a page of miscellaneous items, while the article had occupied a full page; the monetary component was modest given imputations of serious criminality and a 60 per cent drop in the tailor’s business; and the publisher’s prospects of defending the claim were poor.¹⁷ Gleeson JA set out the factors that inform the adequacy of any money offered: the seriousness of the defamation, the other components of the offer including any apology, the fact that acceptance would make amends and avoid a trial, and the risk of the proceedings succeeding given the defences raised.¹⁸ The court also confirmed that an apology is not a mandatory component of a reasonable offer, although its absence will be weighed.¹⁹

A more recent Queensland decision illustrates an offer that was found to be reasonable. In McVicker v Australian Broadcasting Corporation, the ABC responded to a concerns notice about an online article first published some 30 months earlier by modifying the article, adding an editor’s note stating that it did not adopt the claims made and apologising for any unintended adverse suggestion, offering to communicate the note to people nominated by the complainant and offering $5,000 towards costs. It did not remove the article and offered no compensation. The Court of Appeal held that the article did not convey the pleaded imputations, but went on to hold that the offer was in any event reasonable. The question was not whether the article should have been taken down but whether the modifications adequately addressed the alleged imputations; it was not unreasonable for a public broadcaster to retain a corrected record; the apology, though lacking a clear statement of regret, was sufficient; and compensation is not mandatory, particularly where the concerns notice itself suggested no loss.²⁰ Because the claim was confined to publication in the last days of June 2021, the court applied ss 15 and 18 “as [they] then applied”, that is, the pre 2021 text under which the offer had to be made “as soon as practicable after becoming aware that the matter is or may be defamatory”.²⁰ The reasonableness limb, s 18(1)(c), and the considerations in s 18(2) were not changed in 2021, so in our view the reasoning applies equally today.

These cases suggest the questions to ask when framing an offer. Will the correction reach substantially the same audience as the original, with comparable prominence? Does it actually withdraw the sting, rather than merely express regret for offence taken? Is the money, if any, proportionate to the gravity of the imputations and the strength of the available defences? Was the offer made promptly, and will it stay open long enough to be considered?

Deciding whether to accept

For a complainant, rejecting an offer is a calculated risk. An offer that looks mean at the time may later be judged reasonable, in which case the claim fails and costs follow. On the other hand, courts hold publishers to a real standard: a half hidden apology and a token sum will not do for a serious libel. The relevant comparison is not with what a court might award after a trial, but with whether the package as a whole reasonably repairs the harm.

Where the sticking point is the imputations, the Act allows a middle course. A publisher may make an offer limited to imputations it accepts the matter carries; if the complainant refuses because of a disagreement about meaning, the court may take that into account.¹¹ A complainant who wants to accept a limited offer should be aware that acceptance and performance bar any defamation action about the published matter as a whole, not only the imputations the publisher admitted.⁹

Differences between jurisdictions

The provisions are in the same terms, with the same section numbers (ss 13 to 19), in New South Wales, Queensland, Victoria, South Australia and Tasmania. In the Australian Capital Territory they are ss 125 to 131 of the Civil Law (Wrongs) Act 2002 (ACT).²¹ In the Northern Territory they are ss 12 to 18 of the Defamation Act 2006 (NT), which adopted the reformed scheme on 11 August 2025.²²

Western Australia retains the original 2005 scheme. A concerns notice is not a precondition to suing, but if one is given the publisher still cannot make an offer more than 28 days later, and under the older wording a statement of claim that identifies the imputations can itself operate as a concerns notice and start the 28 days running.²³ The defence requires that the offer be made “as soon as practicable after becoming aware that the matter is or may be defamatory”, rather than by reference to a concerns notice, and the 28 day minimum acceptance period and the digital matter provisions do not apply.²³ The version of s 18 considered in McVicker reflects that older wording.

Getting advice

Whether to make an offer, what to put in it, and whether to accept one are decisions with permanent consequences, made within tight statutory deadlines. Both sides are well served by obtaining advice as soon as a concerns notice is sent or received, not after the applicable period has run.