The introduction of mandatory concerns notices under Queensland’s defamation law represents a significant shift in how defamation disputes are managed. By requiring parties to engage in pre-litigation dialogue, these notices aim to reduce unnecessary court proceedings, encourage resolutions and protect reputational interests without the added burden of litigation. Understanding the requirements and implications of concerns notices is crucial for anyone involved in a potential defamation claim.
What is a Concerns Notice?
A concerns notice is a formal written document issued by an aggrieved person to the publisher of alleged defamatory material. The purpose of the notice is to:
- Identify the material claimed to be defamatory.
- Detail the imputations conveyed by the material.
- Explain why these imputations are defamatory and outline the harm caused or likely to be caused.
This notice gives the alleged publisher an opportunity to respond before legal proceedings are initiated. Responses may include an apology, retraction, offer to publish a correction or another form of redress.
Legislative Basis for Mandatory Concerns Notices
Mandatory concerns notices became a requirement in Queensland following the Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld), which amended the Defamation Act 2005 (Qld). Section 12B was introduced to Part 3, Division 1 of the Act, making the issuance of a concerns notice a precondition to commencing defamation proceedings. The legislation aims to foster early dispute resolution and prevent frivolous or vexatious claims from reaching the courts.
Under section 12B, failure to issue a concerns notice renders a claim invalid unless the court grants leave to proceed. This procedural hurdle ensures parties engage in pre-litigation processes, reducing strain on judicial resources.
Key Features of Concerns Notices
Construed together with the addition of section 12B; Part 3, Division 1 of the Defamation Act 2005 (Qld) outlines specific requirements for concerns notices:
- Written Format
The notice must be a formal written document.
- Details of the Publication
It must identify the defamatory material with enough specificity to enable the respondent to locate it.
- Imputations of Concern
The alleged defamatory meanings (imputations) must be clearly set out.
- Serious Harm
The plaintiff must demonstrate that the material caused or is likely to cause serious harm to their reputation. For corporations, financial harm must be shown.
- Timeline
A reasonable period is provided for the respondent to act before proceedings can commence, typically 28 days.
Offers to Make Amends
Once a concerns notice is received, the publisher can respond by issuing an offer to make amends under section 14 of the Act. This offer may include:
- An apology or retraction.
- A correction published prominently.
- Compensation for harm caused.
If the offer is reasonable and accepted, the matter is resolved without litigation. If rejected, the defendant may rely on the offer as a defence to reduce damages if the matter proceeds to court.
Practical Implications
Mandatory concerns notices have introduced a procedural safeguard in defamation law, ensuring claims are substantiated and capable of resolution before litigation. For plaintiffs, compliance with section 12B is crucial to avoid their case being struck out. For defendants, concerns notices provide an opportunity to address grievances early, potentially avoiding costly court battles.
Cases
- This is a Victorian case, but one that interprets the equivalent of section 12B enacted in Victoria under the model laws. In this case, the court strictly upheld the new requirement of serving a concerns notice to a defendant before commencing defamation proceedings. The court refused to hear the matter due to the failure of the plaintiff in serving the concerns notice. The conclusion demonstrates the courts’ willingness to strictly interpret the new defamation requirements as new core elements of defamation law.
Seeking Advice
Navigating the mandatory concerns notice process requires precision and legal expertise. At Harris Defamation, our team specialises in assisting clients with drafting compliant concerns notices, responding effectively to such notices and proceeding to litigation when necessary. We offer fixed-fee consultations to provide clarity and confidence throughout this process.
Conclusion
Mandatory concerns notices are now a cornerstone of Queensland defamation law, fostering early resolution and protecting reputational interests sometimes without the need for litigation. Whether you are issuing or responding to a concerns notice, compliance with procedural requirements is essential. Harris Defamation is here to provide expert guidance, ensuring your rights and reputation are safeguarded.
