Surie v MacDonald[2024] QCA 254

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Brown JA.
2. [2]
   BROWN JA:  The applicants seek leave to appeal against interlocutory orders made by the primary judge, Judge Andreatidis KC.  The effect of these orders was to grant the respondent an extension of time (of 11 days) to pursue additional causes of action for defamation proceedings which had already commenced.
3. [3]
   On 8 March 2023, the respondent issued a claim and statement of claim (SOC) in which she alleged that the applicants published defamatory imputations about her.  The respondent pleaded that those imputations were contained in a “letter” sent by the applicants to the Department of Education (the Department) on a date between 19 August 2022 and 28 October 2022.  The respondent then discovered that the publication was made via email to the Department in almost exactly the same terms as the pleaded letter, albeit with additional documents attached and addressed to additional recipients.  As a result of the discovery, the respondent subsequently amended the claim and statement of claim to add further causes of action outside the limitation period.  The amended statement of claim (ASOC) was filed on 30 October 2023.  An application was subsequently made for leave to amend the claim and statement of claim.
4. [4]
   Leave was granted on 7 December 2023 by Judge Andreatidis KC under s 32A of the Limitation of Actions Act 1974 (Qld) (LAA) to extend the limitation period until 31 January 2024 for the added causes of action pleaded in the ASOC.  His Honour further ordered that an email sent from the first applicant’s email address on 19 October 2022 referred to in [4] of the ASOC be disclosed and found that it should have been disclosed on the basis of the issues in dispute arising out of the SOC.  The applicants were ordered to pay the respondent’s costs of the disclosure application.
5. [5]
   The applicants contend the primary judge erred:

   1. in allowing the respondent to amend the pleaded causes of action after the expiry of the limitation period;
   2. in exercising his discretion to extend the limitation period for causes of action pleaded out of time;
   3. in finding that the applicants breached their duties of disclosure by not providing the 19 October 2022 email; and
   4. in the exercise of his discretion as to costs.
6. [6]
   The applicants wish to appeal the orders made on 7 December 2023 and have them set aside.

Leave required

7. [7]
   The applicants require leave of the Court of Appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).

8. [8]
   This Court has an unfettered discretion as to the granting of leave.  Typically, however, an applicant needs to show a reasonable argument that there is an error to be corrected and that it is necessary to correct a substantial injustice to the applicant or that it involves an important question of law or question of public importance.^[1]
9. [9]
   If leave is granted, it is an appeal stricto sensu, where the sole duty of the Court is to determine whether error has been shown on the part of the court below.^[2]

Background to the application

10. [10]
    The applicants rely on the chronology of events in contending leave was not justified.  It is appropriate, therefore, to provide a brief overview of the relevant events, before turning to the issues that have to be determined by this Court.
11. [11]
    On 1 November 2022, the principal HR consultant for the Department emailed the respondent, Ms MacDonald, in relation to a complaint received by the Department.  That email contained a copy of the complaint, which was written in bright red font in bold and identified the applicants, Ms Surie and Mr MacDonald, as the signatories.  That copy of the complaint formed the basis of a defamation concerns notice dated 4 November 2022, which was sent to the applicants by the respondent.
12. [12]
    Defamation proceedings were instituted by the respondent in the District Court within the limitation period on 8 March 2023.  By way of the SOC, the respondent claims damages from the applicants arising out of the publication of allegedly defamatory imputations which were said to be published by way of a letter sent to the Department (the letter).
13. [13]
    The letter was pleaded as being published in “bright red font in bold”.  The terms of the letter were annexed to the SOC as attachment “A”, which depicted the text as being bright red, as described.
14. [14]
    The applicants originally did not admit the allegation as to the publication of the letter in their defence.  In an amended defence on 12 July 2023, the applicants denied the publication of a “letter, whether in red bold font or otherwise, which was of and concerning” the respondent to the Department “on any date between 19 August 2022 and 28 October 2022 because they did not do so”.
15. [15]
    The applicants did not make disclosure of the letter alleged to contain the defamatory imputations.
16. [16]
    In their amended defence, the applicants raised a defence of justification in the event that they were found to have published “the matter complained of”.  On 24 July 2023, the respondent served a request for further and better particulars of the amended defence.  In particular, she asked the applicants to define the phrase “the matter complained of”, to which the applicants replied that the words were used “in the same sense” as that used by the respondent.
17. [17]
    The respondent lodged an information access application with the Department, requesting that it provide copies of the correspondence relevant to her complaint.  On 22 May 2023, the Department provided partly-redacted copies of documents sought by the respondent.
18. [18]
    The Department disclosed, amongst other documents, an email sent to the Department and three other recipients (the email).  The content of the email was in identical terms to the letter the subject of the SOC, save for one typographical matter.  The email also attached three photographs of CCTV footage and a photograph of a Queensland College of Teachers complaint form.
19. [19]
    The respondent sought non-party disclosure from the Department in a notice filed on 31 July 2023.  As a result of that notice, the respondent obtained an unredacted copy of the email on 8 September 2023.
20. [20]
    On 19 October 2023, the limitation period for the defamation action accrued.
21. [21]
    On 30 October 2023, the respondent served the ASOC.  The ASOC still referred to the alleged defamatory imputations being contained in a “letter” but was amended to specify that the letter was “emailed” to the Department.  The ASOC also removed reference to the letter being published in “bright red font in bold”.  The alleged defamatory imputations did not change.  At that time, the respondent did not propose that they would make an application to seek leave to amend.
22. [22]
    On 3 November 2023, the applicants filed an application to disallow the amendments contained in the ASOC.
23. [23]
    On 10 November 2023, the respondent filed an application for leave, nunc pro tunc, to include a new cause of action by the amendments identified in the ASOC and sought orders that the applicants disclose the emails sent to the Department and other parties named in the ASOC.  The application was subsequently heard by Judge Andreatidis KC on 15 November 2023 and 7 December 2023, following which his Honour gave reasons as to the orders made.

Issues to be determined

24. [24]
    The applicants allege that Judge Andreatidis KC erred in three respects and that leave is required to correct those errors in order to avoid the applicants suffering substantial injustice.  The central contentions of the applicants in their application for leave before this Court are that his Honour erred:

    1. in ordering the applicants to disclose the email containing the defamatory imputations and finding that the applicants were in breach of their duty of disclosure or their duty to the administration of justice under rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR);
    2. in extending the limitation period and commensurately dismissing the applicants’ application to disallow amendments in circumstances where it was not reasonable and appropriate; and
    3. in finding that no new concerns notice needed to be issued as a result of the additional causes of action for defamation pleaded in the ASOC, as required by s 12B of the Defamation Act 2005 (Qld) (Defamation Act) and that leave to extend time could be given.
25. [25]
    The fourth ground of appeal in the application, which relates to whether the primary judge erred in ordering costs against the applicants, is said to flow from the error contended for in (a) above.
26. [26]
    The respondent contends that the errors are misconceived and leave should be refused.

Was there an obligation to disclose the emails?

27. [27]
    The applicants contend that, given it was specifically pleaded that the publication was made by a “letter”, the email which contained the text of the letter together with the complaint form and other documents attached to it, which was in their possession, was not directly relevant to the fact in issue under r 211 of the UCPR.  They contend the email (with the attachments) would not have proved or disproved the claim as pleaded and was not directly relevant.
28. [28]
    The applicants further contend that, in finding they should have made disclosure, his Honour failed to properly identify the issue in dispute between the parties, which they submit was whether a “letter” in “bright red font in bold” was published by the applicants.  Having correctly identified the issue in dispute, consideration of whether the email was directly relevant to that issue should have led his Honour to conclude it was not.
29. [29]
    The respondent contends that the applicants’ approach in identifying the relevant issue is overly technical and that his Honour’s was not in error.  I agree.
30. [30]
    In determining that the email should have been disclosed by the applicants, Judge Andreatidis KC correctly identified the test of direct relevance to the issues in dispute under r 211 of the UCPR.  His Honour found that the email would tend to prove or disprove the allegations originally pleaded in the SOC and should have been disclosed.  According to his Honour, the fact that the physical form of the alleged defamatory content was an email, and not a letter, and the SOC was mistaken was of no consequence to the obligation to disclose.  The email issue was relevantly identified by his Honour as relating to the thing that contained the typed content that was allegedly defamatory.  That content, fairly read, was made by or on behalf of the applicants.  His Honour further found that the approach of the applicants, in adopting fine distinctions as to disclosure, was contrary to the approach to be adopted in identifying the real issues in the proceedings, particularly in light of r 5 of the UCPR.^[3]
31. [31]
    The test of direct relevance was introduced in r 211 of the UCPR in order to confine the scope of disclosure.  As was observed by Applegarth J in Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd:^[4]

“The direct relevance test under the Rules was intended to narrow the duty of disclosure. It is not sufficient that the document directly or indirectly allows a party to advance its case or damage the case of its opponent. The term ‘directly relevant’ has been defined to mean ‘something which tends to prove or disprove the allegation in issue.’ Even with the aid of judicial interpretation of the term ‘directly relevant’, there often remains scope for legitimate argument about whether a particular document or category of document tends to prove or disprove an allegation and is therefore directly relevant.” (footnotes omitted).

32. [32]
    Given that the email contained the exact same text as in the pleaded letter, save for one typographic difference and the fact that it was sent to additional recipients other than the Department, it was directly relevant to the matters in issue.  The question of whether the defendants had published the letter containing the alleged defamatory imputations was in issue.  The commonality in language between the email and letter, the fact that the email was sent to the Department and, on its face, was sent by the applicants could by inference directly prove or disprove the allegation that the applicants sent the letter containing the defamatory imputations to the Department.  As was stated by Judge Andreatidis KC: “it was the typed content that was defamatory; and that the plaintiff was entitled to damages for being defamed.  The email was at the heart of the real issues in dispute in the proceedings because it is the thing that contained the typed content and, in my view, was plainly disclosable.”  The issue of whether the email was disclosable was a different issue from whether the email may have constituted a separate publication which would be required to be pleaded if relied upon as a publication of defamatory material.  The applicants have wrongly conflated two different issues.
33. [33]
    In any event, even if, as was accepted by Judge Andreatidis KC, the applicants considered there was an argument as to whether the email was disclosable, they were on any view seeking to draw a very fine distinction as to what the matter in issue was on the pleading, which was tenuous at best.  In those circumstances, failing to disclose the email did not accord with the applicants’ disclosure obligations under r 211 or their obligations under r 5 of the UCPR.  While r 5 does not create an additional obligation of disclosure per se, it does require parties to adopt an approach to litigation which is directed towards resolving the real issues in dispute in the most expeditious way.  As Daubney J observed in Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd, in determining whether a document is directly relevant by reference to whether or not the document tends to prove or disprove the truth of a particular allegation, the process is not to “[reduce] merely to a microscopic examination of each factual averral in a pleading”.^[5]  As Daubney J stated, and appropriately adopted by the primary judge in this case, “… the process of identifying the ‘allegations in issue’ must be undertaken with a view to implementing the purpose of the UCPR stated in Rule 5(1), namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.^[6]  In considering that, contrary to rule 5 of the UCPR, the applicants did not “engage with the real issue, that is, the publication of the typed content, which was plainly in issue on the pleadings”, Judge Andreatidis KC was not in error.
34. [34]
    His Honour did not make a reasonably arguable error in his finding that the applicants should have disclosed the email pursuant to their obligations to make proper disclosure under r 211 of the UCPR or, alternatively, that they breached their duty under r 5 of the UCPR.

Did the primary judge err in relation to the extension of time?

35. [35]
    The ASOC was served 11 days after time had accrued.  The application for leave was made some 22 days after time had accrued.^[7]  The primary judge determined to extend time pursuant to s 32A of the LAA.  The applicants complain that Judge Andreatidis KC erred in the exercise of his discretion in determining that it was just and reasonable to extend time for the cause of action pursuant to s 32A of the LAA, both in terms of the weight given to the issues considered by his Honour and in failing to appreciate that the effect of s 12B of the Defamation Act made granting the extension of time futile.
36. [36]
    Section 32A of the LAA provides that:

3. “32A
   Defamation actions

3. (1)
   A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

3. (2)
   The court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

3. (3)
   In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to—

3. (a)
   the length of and the reasons for, the plaintiff's delay; and

3. (b)
   if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired—

3. (i)
   the day on which the facts became known to the plaintiff; and

3. (ii)
   the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action; and

3. (c)
   the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.

3. (4)
   An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.”

37. [37]
    While the defamatory imputations arising from the publication of the email pleaded in the ASOC were the same as those relied upon in the SOC, given that the email went to a number of parties, it was accepted by the respondent below that, for the purposes of the application, the email constituted multiple publications and that, strictly speaking, there is a separate cause of action for each separate publication.
38. [38]
    One of the difficulties the applicants face is that their complaints as to the exercise of Judge Andreatidis KC’s discretion fail to identify error insofar as they complain about the weight attributed by the primary judge to the various considerations provided for under the LAA and the fact that his Honour did not weigh the considerations against the granting of leave more heavily.  In order to establish an error in the exercise of a discretion, a party must establish an error within the meaning of House v The King:^[8]

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

39. [39]
    The applicants did not seek to argue that the Court should infer error based on the outcome of the discretion being unreasonable or unjust.
40. [40]
    Part of the complaint of the applicants is that his Honour, as part of his decision-making, took into account his finding that the applicants should have disclosed the email to the Department.  For the reasons set out above, his Honour was not in error in making his finding in that regard.  The non-disclosure of the email was relevant to explaining the respondent’s delay in amending the claim and SOC to add additional causes of action by reference to that email.
41. [41]
    In any event, the complaint is of no substance given that Judge Andreatidis KC expressly stated that, even if he had not concluded that the defendants breached their disclosure obligation, he would have nonetheless concluded there was a satisfactory reason for the delay by the respondent in amending the SOC given the fact that the respondent was not aware of the email and had taken time to obtain the email via the non-party disclosure process.
42. [42]
    Part of the complaint is that Judge Andreatidis KC did not take into account the conduct of the respondent in issuing the SOC before obtaining disclosure from the Department.  The applicants submit that the respondent should have taken steps to obtain disclosure earlier.  His Honour considered the chronology of events prior to the making of the application in concluding that the respondent had acted in a timely manner in instituting the proceedings, in making the amendment to the ASOC and in not seeking disclosure from the Department until after filing her claim.  While his Honour considered that the respondent could have acted a “bit earlier” in seeking non-party disclosure, he was satisfied the respondent had acted in a timely and appropriate way.  However, his Honour considered that the fact that the respondent did not seek disclosure from the applicants before the limitation period expired weighed against the respondent.  His Honour also took account of the fact that the respondent knew about the email just over one month before the expiry of the limitation period but acted shortly after obtaining it, albeit outside the limitation period.  The amendments were 11 days out of time.  That finding was clearly open to his Honour.
43. [43]
    The fact that Judge Andreatidis KC did not address in his findings the fact that the respondent had commenced proceedings without having sought the email beforehand does not suggest any error by his Honour.  His Honour considered the chronology of events.  On 1 November 2022, a representative of the Department emailed the respondent to advise her that the applicants had made a complaint.  That email from the Department contained a copy-pasted version of the initial complaint, which explains why the respondent did not seek disclosure of the publication prior to commencing proceedings.  The Department did not indicate to the respondent whether the complaint was initially provided as a letter, an email or some other document.  The fact that the respondent understood the complaint to be a letter, but did not know when it was sent or the email addresses to or from which it was sent, was made clear in the concerns notice sent by the respondent on 4 November 2022.  The reference to “letter” in the pleading is a term of reasonably broad meaning and, in the circumstances, its use was reasonably based.  The Oxford and Macquarie dictionaries define letter as, inter alia, “a written, typed or printed communication addressed to a person, organisation, etc., and usually sent by post or messenger” and “a communication in writing or printing addressed to a person or a number of persons”, respectively.  Given the circumstances described by Judge Andreatidis KC, it was entirely open to his Honour not to find, as the applicants contend, that it was “reckless” of the respondent to not seek a copy of what was sent to the Department before filing her claim.  His Honour was not in error in not requiring a further explanation or refusing leave on this basis.
44. [44]
    Judge Andreatidis KC had regard to all of the factors outlined in s 32A(3) of the LAA in considering the matters weighing for and against the granting of leave, as well as considering whether any prejudice would be suffered by the applicants if leave was granted in determining whether it was “just and reasonable” to allow the action to proceed.  There was no suggestion that the cogency of evidence was affected by delay.
45. [45]
    His Honour turned his mind to all relevant considerations when looking to the question of delay and was not in error in finding it was just and reasonable to allow the extension of time.  The submission that the extension was “granted for just for the asking” by his Honour is without foundation.
46. [46]
    There is no arguable error in relation to Judge Andreatidis KC’s exercise of his discretion in considering the question of delay in addressing the causes of action.

Was a fresh concern notice under section 12B of the Defamation Act required?

47. [47]
    The applicants contend that the extension of the limitation period should not have been granted because no concerns notice had been served in relation to the new causes of action introduced in the ASOC, as required by s 12B of the Defamation Act.  That section is in the following terms:

3. “12B
   Defamation proceedings can not be commenced without concerns notice

3. (1)
   An aggrieved person can not commence defamation proceedings unless—

3. (a)
   the person has given the proposed defendant a concerns notice in respect of the matter concerned; and

3. (b)
   the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and

3. (c)
   the applicable period for an offer to make amends has elapsed.

3. (2)
   Subsection (1)(b) does not prevent reliance on—

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

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

3. (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—

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

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

3. (4)
   The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.

3. (5)
   In this section—

3. limitation law means the Limitation of Actions Act 1974.”

48. [48]
    The applicants complain that the concerns notice issued prior to the institution of the proceedings was in respect of a different matter than the matter the subject of the ASOC.  They further contend that s 12B operated as a bar to the new causes of action without a new concerns notice having been issued and that the extension was futile.  In those circumstances, they contend his Honour was in error in extending the limitation period under s 32A of the LAA.
49. [49]
    The primary judge rejected both arguments at first instance.  His Honour considered that the concerns notice was sufficiently broad and identified matters not known to the plaintiff in adequate and appropriate detail to permit the process envisaged by s 12B to occur.  He noted that the defamatory matter itself was the typed content, not the form in which it was contained, and the concerns notice had set the defamatory matter out and the defamatory imputations.  His Honour further considered that on a plain reading of s 12B, it did not apply to amendments to the proceedings.
50. [50]
    The respondent, however, contends that on its proper construction, s 12B is concerned with preconditions to the commencement of defamation proceedings and not amendments made to defamation proceedings which had already commenced.
51. [51]
    In terms of the construction, the better view is that s 12B applies before proceedings have been issued and not to amendments to proceedings, given:

    1. the plain wording of s 12B(1) refers to the fact that a person “can not commence defamation proceedings unless” the preconditions in paragraphs (a)-(c) are met;
    2. the fact that the “proceedings” refers to the originating process that commences the claim is supported by the context of the provision, namely that s 12B(3) provides for leave to be given to commence proceedings if the period of offer to make amends would result in the commencement of the proceedings after the limitation period or it is just and reasonable to grant an extension;

    3. it accords with the Explanatory Note to the amending Act stating that the new s 12B was inserted “to require a concerns notice to be given to the publisher of matter that is or may be defamatory before defamation proceedings may be commenced against the publisher in respect of the matter”;^[9]

    4. it is supported by the second reading speech to the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021, where the then Attorney-General stated:^[10]

“The bill contains a number of amendments to the pre-litigation process in part 3 of the Defamation Act, including: making it mandatory, rather than optional, to issue a concerns notice prior to commencing defamation proceedings in court; formalising the requirements of a concerns notice; and providing further clarity around the offer to make amends process, including the required content and the time frames…”, 

5. if an offer to make amends is made and not accepted, s 18 provides it is a defence to the action for defamation in relation to the matter if the preconditions in (a)-(c) are satisfied; and

6. an offer to amends cannot be made if a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.

52. [52]
    There is some support for the above construction from cases in other jurisdictions, which have, similarly to Queensland, adopted the defamation model laws, at least in relation to the provisions being considered by this Court.
53. [53]
    In Newman v Whittington, Rothman J rejected an argument that the operation of s 12B of the Defamation Act 2005 (NSW) prevented two causes of action being included for two additional publications because no concerns notice had been served in relation to the amended statement of claim.^[11]  Rothman J considered that the purpose of the provisions, including s 12B of the Defamation Act 2005 (NSW),^[12] together with s 10A of the Act was “to ensure that proceedings commenced for defamation related to reputational damage that caused serious harm and, to the extent possible, to bring forward and to encourage the early resolution and settlement of the issues between the parties”.^[13]  In Newman, Rothman J found that, on its face, the prohibition in s 12B of the NSW Act did not apply to the amendment of the statement of claim to add two further publications after the plaintiff had already commenced her proceedings.^[14]  However, his Honour found that the imputations were similar as not to be distinguishable from the imputations raised in the concerns notice previously served in relation to other publications.  His Honour considered that the purpose of the legislation was achieved by the initial service of the concerns notice and the identification of that which is said to be the serious harm caused by the alleged defamation.^[15]  His Honour found the prohibition in s 12B did not apply and he considered that there was no discretionary reason why the court should, because of a failure to serve a further concerns notice, not permit an amendment.
54. [54]
    The question of construction was not considered on appeal in Whittington v Newman, but, in any case, the Court of Appeal found that s 12B was satisfied by the concerns notice that had previously been given because the same or similar imputations had been raised as those previously raised and in respect of which a concerns notice had been served.^[16]
55. [55]
    In Cooper v Nine Entertainment Company Pty Ltd, McElwaine J expressed consistent views with Rothman J in Newman.^[17]  His Honour considered the Defamation Act 2005 (Tas) which was cast in substantially the same terms as ss 12A and 12B of the Defamation Act.  In that case, there was an application for leave to amend to add, amongst other things, republication of defamatory imputations contained in online articles.  One of the bases for opposing the amendment was that the applicant had not given a concerns notice in relation to each and every publication relied upon.  His Honour considered whether a concerns notice had to be given for each and every publication relied upon where there were multiple publications.  McElwaine J rejected the argument that a concerns notice was a statutory pre-requisite to each and every publication that is relied upon.  In finding that a new concerns notice did not need to be issued for each publication, His Honour stated that the focus of a concerns notice provision is upon the publication of matter, which is or may be defamatory of another person.  He found the following:^[18]

“The requirement to inform 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” is concerned with the defamatory stings and not with multiple causes of action which the aggrieved person may have based on separate publication of material complained about.”

56. [56]
    That view was, according to his Honour, supported by the contextual meaning and s 12B of the Tasmanian Act which operated “on the commencement of defamation proceedings and not the content of the proceeding, which as is well-understood is likely to evolve over time through amendment and further particularisation”.^[19]The reference in s 12B to the concerns notice being given “in respect of the matter concerned” is cast in broad language which generally only required a connection of association between the notice and the matter.^[20]
57. [57]
    Justice McElwaine considered that s 12B(1)(a) was satisfied where the aggrieved person identifies in a concerns notice a publication, or some of many, which the person contends is or may be defamatory.  Having satisfied that requirement, the proceeding subsequently commenced is in respect of the matter so identified.^[21]  In his Honour’s opinion, the statutory bar:^[22]

“… operates at the level of commencement of a proceeding, not with multiple causes of action that may be asserted and which rely on multiple publication of the same or substantially the same material which is claimed to be injurious to the plaintiff’s reputation.”

58. [58]
    Referring to Rothman J in Newman, his Honour stated:^[23]

“As his Honour’s reasons demonstrate an application to amend a pleading to include additional publications of the same or substantially the same defamatory matter engages the discretion to grant leave to amend an existing proceeding.  It is not the commencement of a proceeding without first giving a concerns notice.  The prohibition at s 12B does not therefore apply though it is relevant to the exercise of the discretion.”

59. [59]
    In my view, the approach discussed by McElwaine and Rothman JJ accords with the terms of the Defamation Act and is consistent with the apparent intent of the provisions in Part 3 Division 1 to encourage the parties to resolve a matter before proceedings are commenced and significant costs incurred.  That accords with the fact that s 18 of the Defamation Act provides a defence to the action and an offer to make amends cannot be made after the defence is filed.  If the amendments to an existing defamation proceeding add causes of action, publications and imputations outside of the “matter concerned” in the concerns notice given before proceedings are commenced, that may still be a relevant consideration in giving leave to amend.
60. [60]
    It would have been an easy option for the Parliament to have referred to “each cause of action for defamation” had they intended to require that a new concerns notice be issued each time an existing defamation proceeding was amended to add a cause of action.  Yet, they chose not to do so.
61. [61]
    I do not consider that s 12B operates as a statutory bar to the additional causes of action absent a fresh concerns notice.  In any case, I do not consider the primary judge erred in rejecting the contention of the applicants that the “matter” the subject of the concerns notice is different from the one that the respondent now wishes to proceed upon.  That is plainly correct insofar the defamatory imputations pleaded in the ASOC are essentially the same as the subject of the concerns notice.
62. [62]
    The concerns notice stated that the published material was “a letter of complaint you submitted by email on behalf of you both to the Department of Education Queensland”.  It attached “a copy of the contents of the Letter”, which is in the same terms as the email.  The concerns notice set out in detail the numerous statements said to be false and defamatory, based on the contents of the letter, which was in fact an email.  As McElwaine J observed in Cooper, the words “in respect of the matter concerned” is s 12B(1)(a) were “wide words” which generally only require a connection or association between the notice and the matter.^[24]
63. [63]
    Judge Andreatidis KC found the concerns notice issued by the respondent prior to the commencement of the proceedings was sufficient to identify the “matter” in question, namely the specified typed contents sent by the applicants to, at least, the Department.  That is supported by the broad definition of “matter”, which is defined broadly and includes “a letter, note or other writing” and “any other thing by means of which something may be communicated to a person”.^[25]  Whether the communication be an email or letter is of no moment in terms of the “matter”.
64. [64]
    While the applicants contend that the documents attached to the email, which were not the subject of the original email, change the context of the defamatory imputations made, they did not explain how that was so and, at best, it appears that they may be relevant to the defence, rather than changing the scope of the matter.  The defamatory imputations did not alter between the two publications the subject of the SOC and the ASOC in any significant way.
65. [65]
    The applicants sought to support their construction by the fact that, if a new concerns notice is not issued, they will not have the opportunity to make an offer to make amends and therefore be able to rely on the defence raised by s 18 of the Defamation Act.  The applicants were well aware of the content of the publication and the defamatory imputations complained of based on the concerns notice.  It was the applicants’ choice to not make an offer to make amends because the nominated medium containing the content was a letter not an email, notwithstanding the content and the defamatory imputations largely mirrored the content of the email.  The applicants took the risk that the fact the publication was an email and not a letter may be discovered.
66. [66]
    The primary judge was not in error in finding that the concerns notice issued by the respondent prior to the commencement of the proceeding was sufficient to identify the “matter” in question and that, therefore, a concerns notice in respect of the “matter” of the email had already been issued such s 12B of the Defamation Act had been complied with, even in respect of the additional causes of action.  In those circumstances, the applicants had not been deprived of the statutory defence offered by s 18 of the Defamation Act assuming they would have acted differently.

Costs

67. [67]
    In light of the above findings, the applicants’ counsel properly conceded that the Court would not need to consider the proposed appeal ground as to costs raised by the applicants, as it was premised on the Court finding that his Honour had erred in finding the applicants were in breach of their duty of disclosure.  It will not, therefore, be considered further.

Conclusion

68. [68]
    Based on the above reasons, there are no reasonably arguable errors which are required to be corrected in the primary judge’s findings to avoid substantial injustice being caused to the applicants.  The applicants have not established that they should be granted leave to appeal.

Orders to be made

69. [69]
    In my view, having regard to the above reasons, leave to appeal should be refused.  The cost of the appeal should follow the event and the applicants should pay the respondent’s costs of the application for leave to appeal.
70. [70]
    I would therefore order:

1. The application for leave to appeal is refused.
2. The applicants must pay the respondent’s costs of the application for leave to appeal.

71. [71]
    CROWLEY J:  I agree with the reasons of Brown JA and her Honour’s proposed orders.