Resolving a defamation dispute without going to court

Most defamation disputes in Australia never reach a courtroom. That is partly a matter of cost and risk, and partly by design: the uniform legislation was drafted to push parties towards early resolution, and the 2021 amendments strengthened that push. This article maps the pathway from first complaint to signed settlement, explains the incentives that drive early resolution, and describes what happens when settlement fails.

Why the legislation favours early resolution

The Defamation Act 2005 sets out its objects in s 3. The fourth is “to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter”, alongside providing effective and fair remedies and protecting freedom of expression.¹ Several provisions give that object teeth.

First, since 1 July 2021 in New South Wales, Queensland, Victoria, South Australia and the ACT, since 12 November 2021 in Tasmania, and since 11 August 2025 in the Northern Territory, a person cannot commence defamation proceedings unless a concerns notice has been given, the imputations to be sued on were particularised in it, and the applicable period for an offer to make amends has elapsed.² Every dispute therefore begins with a written complaint and a pause of at least 28 days before any claim can be filed.

Second, the offer to make amends procedure gives the publisher a powerful reason to respond. An offer that is reasonable in all the circumstances, if not accepted, is a complete defence to the action.³ A complainant who refuses a reasonable offer recovers nothing, however badly defamed.

Third, s 40 allows the court, when awarding costs, to have regard to the way the parties conducted their cases, including any misuse of a superior financial position to hinder early resolution. Unless the interests of justice require otherwise, the court must award indemnity costs against a defendant who unreasonably failed to make or agree to a settlement offer, and against a plaintiff who unreasonably failed to accept one. A “settlement offer” for this purpose includes an offer to make amends that was reasonable when made.⁴

Fourth, the serious harm element introduced in 2021 filters out trivial disputes and reinforces the message that litigation is reserved for matters of substance.

Informal options before a concerns notice

Not every complaint needs a lawyer’s letter. Where the publication is a social media post, review or comment, the fastest remedy is often the platform itself. Most platforms have reporting tools for content that breaches their terms, and removal through that route costs nothing. Material that amounts to serious online abuse may also fall within the adult cyber abuse scheme under the Online Safety Act 2021 (Cth), which allows a complaint to the eSafety Commissioner and, in appropriate cases, a removal notice to the service provider.⁵ The threshold under that scheme is different from defamation: an ordinary reasonable person must be able to conclude that the material was likely intended to cause serious harm to the adult, and an ordinary reasonable person in the adult’s position must regard the material as menacing, harassing or offensive.⁶ Many defamatory publications will not meet it, but some will.

A direct request to the author is often effective where the parties know each other, the author acted in haste, or the publication was made in a small group. A short, calm message asking for removal can resolve the matter in a day. The risk is that an intemperate exchange generates further publications.

A lawyer’s letter that is not a concerns notice is a middle course. It can request removal and preservation of evidence, put the recipient on notice that the complainant regards the material as defamatory, and invite a response without triggering the statutory timetable. There are two cautions. The Act defines a concerns notice by its content rather than its label, and the Queensland Court of Appeal has assessed whether a complainant’s letter was a concerns notice by measuring it against those content requirements.²¹ A letter that asserts the material is defamatory, sets out the imputations and describes the harm may therefore be treated as a concerns notice whether or not it is called one. If it is, the 28 day period and the publisher’s right to make an offer will start to run from that letter. And a letter that does not comply with the statutory content requirements will not count as a concerns notice for the purpose of commencing proceedings, so a compliant notice will be needed later if the matter does not resolve.

The concerns notice and the offer

The concerns notice is the formal start of the statutory pathway; its requirements are dealt with in a separate article. Three features matter here. The notice must be in writing, identify the publication, set out the imputations complained of and the serious harm the complainant says was caused. Giving it starts the 28 day applicable period during which the publisher may make an offer to make amends. If the publisher asks for further particulars and they are provided more than 14 days after the notice, the period instead ends 14 days after the particulars are received.⁷ And if the limitation period would otherwise expire during that window, the Limitation Act extends it by 56 days less the number of days remaining when the notice was given.

The publisher’s response during the applicable period is the single most important decision in most disputes. The options are to make an offer to make amends, to make an ordinary settlement offer, to do nothing, or to deny liability. An offer to make amends must meet several requirements: it must be in writing; be open for at least 28 days; offer a reasonable correction or clarification; offer to take reasonable steps to tell recipients the material is or may be defamatory; and offer to pay reasonable expenses.⁸ It may include an apology, removal of digital material, and compensation.⁹ It is taken to be made without prejudice unless it says otherwise.¹⁰ Statements made in connection with making or accepting an offer are inadmissible except on questions arising under the offer provisions and costs.¹¹

An offer to make amends is not the only way to settle. The parties may negotiate directly, exchange offers expressed to be without prejudice save as to costs, or agree to mediate. The advantage of the statutory offer, from the publisher’s side, is the s 18 defence. The advantage of a negotiated settlement, from both sides, is flexibility: the parties can agree terms the Act does not contemplate, such as an undertaking not to repeat, mutual non disparagement, or an agreed public statement.

Settlement terms commonly used

Defamation settlements draw on a familiar menu. The mix depends on whether the publication is still accessible, how widely it spread and whether money is in issue.

Removal or amendment of the publication is almost always the first term. For online material this means deleting the post, article or review, or editing it to remove the imputations. Where the publisher wishes to retain a record, as news organisations often do, an editor’s note or annotation may be agreed instead.

A correction, apology or clarification follows, with the wording, placement, prominence and duration agreed in the deed. The legal differences between those terms, and how courts assess their value, are dealt with in a separate article.

An undertaking not to repeat the imputations, or not to publish about the complainant at all, is common where the parties have an ongoing relationship or the publisher has a history of similar posts. The undertaking should be expressed clearly and its breach made a trigger for agreed consequences, because it is enforced as a contractual promise.

A contribution to legal costs is usual, and payment of compensation is included where the harm justifies it. Costs contributions are often the point on which negotiations stall, even though the cost of litigating would far exceed the amount at stake.

Confidentiality clauses prevent the parties from disclosing the terms, and sometimes the existence, of the settlement. The clause needs to accommodate whatever public statement has been agreed, and a publisher who apologises publicly will usually want to be free to explain why.

A statement that the settlement is made without admission of liability is routinely included. Since an apology is in any event not an admission under s 20, the clause adds little in law, but publishers usually want it.

Finally, a release and bar: the complainant releases the publisher from all claims arising from the publication, and the parties agree that the deed may be pleaded as a bar to any proceedings. Where proceedings have been commenced, the deed will also provide for them to be discontinued or dismissed, usually with no order as to costs.

Mediation

Mediation is a structured negotiation conducted with the help of an independent mediator, usually a barrister or retired judge. It can happen at any stage, before or after proceedings are commenced, by agreement or by court order.

In Queensland the Civil Proceedings Act 2011 allows a court to refer a dispute to mediation on a party’s application or when the proceeding is otherwise before it, and the parties must then attend and must not impede the process; a party who impedes the mediation risks a stay of its claims and adverse costs orders.¹² The Uniform Civil Procedure Rules 1999 (Qld) set out the machinery: the court may direct the registrar to give notice of a proposed referral, a party may object within 7 days, the proceeding is stayed while the mediation runs, and the parties must act reasonably and genuinely and help the mediator finish within the time set.¹³ Evidence of what was said or admitted at a mediation is admissible only if all parties agree, and an agreement reached at mediation must be written down and signed, after which a party may apply for orders giving effect to it.¹⁴

In New South Wales the Civil Procedure Act 2005 allows the court to refer any proceedings for mediation “either with or without the consent of the parties”, imposes a duty to participate in good faith, protects what is said at mediation from admission in evidence, and allows the court to make orders giving effect to an agreement reached.¹⁵

Mediation suits defamation disputes for reasons beyond cost. The remedies a complainant most wants, a correction and an apology, cannot be ordered by a court and can only be obtained by agreement, and mediation is where the wording can be worked out face to face. A publisher with a genuine defence can test the complainant’s resolve without exposure to a judgment.

Deeds of settlement and enforcement

A settlement should be recorded in a written deed or agreement signed by all parties. The document should set out every obligation with precision: what is to be removed and by when, the exact wording and placement of any correction or apology, the amount and due date of any payment, the terms of any undertaking, the scope of confidentiality, and the consequences of default.

A settlement agreement is enforced as a contract. If a party fails to perform, the other may sue for damages for breach or, in some cases, seek an order compelling performance. Two cautions apply. Courts are reluctant to compel the publication of an apology, treating it as an exceptional step even where the words were contractually agreed.¹⁶ And a settlement induced by false statements about the underlying facts may be set aside. In Vass v Nationwide News Pty Ltd the plaintiff had told the publisher, in pre settlement correspondence, that the imputations were false; the court found the statements fraudulent and held that any settlement contract was vitiated. It added that it would in any event have refused specific performance for unclean hands, because ordering the apology would have involved the court in misleading the public.¹⁷ What a party asserts about the facts in negotiation may later be tested.

Where an offer to make amends has been accepted, the position is slightly different. Once the publisher carries out the terms, the complainant cannot assert or continue an action in respect of the matter, and the court may order payment of expenses and costs.¹⁸ As noted in Vass, the Act contains no express mechanism for compelling performance of an accepted offer, which is one reason why parties often prefer to record even an accepted offer in a deed.¹⁹

When litigation is unavoidable

Some disputes cannot be settled. The publisher may be confident of a truth or public interest defence and unwilling to pay. The complainant may be unwilling to accept anything short of a full retraction that the publisher will not give. The publisher may be anonymous, impecunious or overseas. Or the material may be spreading in a way that only an injunction can stop. Proceedings are then commenced, but the pressure to settle does not end. Costs consequences continue to apply to offers made during the litigation, both under s 40 and under the court rules on formal offers to settle,²⁰ and the court may refer the matter to mediation at any stage.

Realistic timeframes

The statutory pathway sets a minimum rhythm. A concerns notice is followed by up to 28 days for the publisher to respond, or 14 days after further particulars are supplied. An offer to make amends must remain open for at least 28 days. A dispute that follows the statutory steps and then settles will typically take two to four months from the first letter to a signed deed. Mediation adds the time needed to agree a mediator and date, usually several weeks. The whole process must fit within the one year limitation period, extended where necessary by the concerns notice provisions, or by court order where it is just and reasonable to do so.

Proceedings that run to trial take much longer. Even a straightforward matter is unlikely to be heard within a year of filing, and interlocutory disputes over pleadings and evidence can add further months. That disparity, and the costs that accompany it, is why most parties settle.

Getting advice

Whether to send an informal letter or a concerns notice, whether to make or accept an offer, and how to draft the deed that ends the dispute are decisions with consequences that cannot be undone. Complainants and publishers alike benefit from advice at each step.