Zhao v Zheng[2023] QDC 108

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 21 December 2022 the plaintiff commenced a claim in proceedings BD3149 of 2022 seeking, inter alia, damages from the husband and wife defendants for defamation relating to a post or posts to the social media platform WeChat.
2. [2]
   The Statement of Claim pleaded that a Concerns Notice was served on the defendants on 20 December 2022. The defendant presently denies that it amounts to a Concerns Notice, as defined. The Statement of Claim referred to the plaintiff seeking leave to commence proceedings pursuant to s 12B of the Defamation Act 2005 (“DA”) on the basis that the commencement of proceedings after the 28 day period required by the Concerns Notice may be barred by the applicable limitation period. In fact proceedings could have been commenced within the limitation period, as extended by s 10AA of the DA, and after the concerns notice period.
3. [3]
   On 15 February 2023 the defendants filed a Conditional Notice of Intention to Defend, referring to the asserted breach of the period of notice under s 12B of the DA.

The defendants also filed an application to the effect that the Claim and Statement of Claim be set aside as the proceeding had not been properly commenced.

4. [4]
   On 1 March 2023, by consent, the Claim and Statement of Claim in proceedings BD3149 of 2022 were discontinued and the defendants’ application was dismissed.
5. [5]
   On 3 March 2023 the plaintiff filed a Claim and Statement of Claim in proceedings BD523 of 2023 seeking, inter alia, damages for defamation. The terms of the Claim and Statement of Claim were effectively in identical terms to the documents filed in BD3149 of 2022, however they also pleaded alternative claims for damages in tort for conduct separate to the claim of damages in defamation.
6. [6]
   Also filed on the same date was an application, which was amended by consent at the hearing.

The plaintiff’s applications

7. [7]
   The plaintiff’s amended applications are:

1. “Pursuant to s 32A of the Limitations of Actions Act 1974 (Qld), the limitation period for the cause of action in defamation in proceeding BD523 of 2023 is extended to 3 March 2023.
2. Further, or in the alternative, pursuant to s 12B of the Defamation Act 2005 (Qld), the plaintiff be granted leave to commence and continue proceedings against the first and second defendants.
3. The defendants pay the plaintiff’s costs of the application.
4. Such further or other orders as the court considers appropriate.”

Factual background

8. [8]
   In 2022, the Chinese New Year period was between 1 February 2022 and 15 February 2022. Just prior to that period, the plaintiff received a message to the effect that the first defendant was telling others that the plaintiff had done some “bad things”. During the New Year period she received messages from another person informing her that the first defendant had created a group chat and, as a result of what he had said about the plaintiff, the friend would no longer trust her.
9. [9]
   In October 2022 the plaintiff was involved in a discussion with others when she was, in effect, told there was an article in existence, possibly since January 2022, which portrayed her as a “bad person”. The Statement of Claim alleges that nine people are said to have read the article.
10. [10]
    The plaintiff did not obtain a copy of the WeChat article until 21 October 2022, through the agency of a friend in China. In late November 2022 she consulted a solicitor and the steps outlined earlier were taken on her behalf.

11. [11]
    The Concerns Notice,^[2] amongst other things, asserted that the subject article “was authored by (the defendants) and made available on ‘WeChat’.” A copy of the article was attached to the Notice.
12. [12]
    On 18 January 2023 a solicitor for the defendants emailed, in part, that “our client strongly denies any and all allegations made against it (sic)”. There was no complaint in that letter about the adequacy of the Concerns Notice in terms of s 12A of the DA, nor was a further particulars notice issued.^[3]
13. [13]
    On 16 February 2023 the defendants’ solicitor wrote that the plaintiff had “delivered a Concerns Notice on 20 December 2022 …”. Again, no issue was taken with the adequacy of the Notice.^[4]
14. [14]
    The defendants, by letter dated 24 February 2023,^[5] for the first time contended that the notice did not  adequately describe where the matter complained of can be accessed. There is no evidence of a reply to that correspondence. This letter was issued while proceedings BD3149 of 2022 were still on foot.

The parties’ submissions

15. [15]
    The plaintiff submits that, on the assumption that the first publication^[6] was on 30 January 2022, the operation of s 10AA of the DA means that the automatically extended limitation period expired on 15 February 2023. Therefore, the plaintiff seeks an extension of 16 days to 3 March 2023, the day the proceedings in BD523 of 2023 were commenced.
16. [16]
    The plaintiff notes that the application is to be decided on the basis of the legislative provisions amended with effect from July 2021. Although there is no helpful case authority on the approach to the presently worded s 32A of the Limitation of Actions Act 1974 (“LAA”) from Queensland, it represents a more liberal test than the test in the previous legislation. It is said that, in all of the circumstances, including the matters identified in s 32A(3) of the LAA, it is appropriate to grant an extension.
17. [17]
    The plaintiff has alternatively applied for leave under s 12B of the DA. The plaintiff’s principal submission is that a compliant Concerns Notice was issued and the defendants did not issue a further particulars notice. Although there was a “faint complaint” in a letter dated 24 February 2023, that does not amount to the notice required. The alternative position is that where the defendants have been on notice for some time and have not offered to make amends, leave should be given.
18. [18]
    An issue arose in the course of submissions as to whether the proceedings commenced on 3 March 2023, at least insofar as they contain a claim for damages in defamation, could in fact have been filed in the absence of a precedent order granting an extension of time to commence proceedings. If they could not, that may affect the exercise of the discretion to extend the limitation period and may also affect the date of the extended period that should be sought. The plaintiff submits that on a consideration of the correct construction of the Act, and on the basis of previous authority on extension of time applications, the filing of the Claim and Statement of Claim on 3 March 2023 was a regular step and that is the date to which any extension should be granted.

19. [19]
    The defendants’ submissions can be distilled into the following propositions:

1. A valid Concerns Notice was never issued and, in those circumstances, leave under s 12B of the DA is not available.
2. The causes of action in the recently filed Claim and Statement of Claim are so ill-defined that, even if leave were available under s 12B of the DA, it ought not be granted.
3. In circumstances where the plaintiff accepts that the claim for the defamation proceedings is out of time, an extension under s 32A of the LAA is not supported by the evidence in the proceedings and the ill-defined pleadings should tell against an exercise of the discretion in favour of the plaintiff.

20. [20]
    The primary complaints as to the pleadings are what is said to be an inability or failure by the plaintiff to plead when publication occurred, a failure to plead with precision where the subject article was uploaded which in turn affects available defences that may be pleaded, an imprecise pleading as to whether the publication occurred in Australia or overseas and a broad and imprecise allegation of republication. It is submitted that where the pleadings are so imprecise as to justify striking out under r 171 of the UCPR, it is not just and reasonable to extend time to commence proceedings.
21. [21]
    It is also said that the purported Concerns Notice did not comply with the statutory requirements because it did not specify a location where the subject article can be assessed and because it did not nominate the defamatory imputations that are or may be carried by the subject article. Accordingly, a compliant notice must be issued before any proceedings are commenced under any extended limitation period.

Consideration

Was a Concerns Notice issued on 20 December 2022?

22. [22]
    Given the issues raised, it is convenient to firstly determine if the notice issued on 20 December 2022^[7]amounts to a “Concerns Notice” as required by s 12A of the DA.

23. [23]
    The notice had attached to it a printout of the subject article.^[8] Although that printout was not attached to the copy of the notice put in evidence before me, the notice referred to it being attached and it was not suggested it had not been provided. I have assumed that it is identical to the printout of the translated article attached to both the first filed Statement of Claim in proceedings BD3149 of 2022 and also to that attached to the Statement of Claim filed 3 March 2023 in proceedings BD523 of 2023. That notice also contained a list of asserted imputations^[9] and, as previously noted, asserts that the article “was … made available on ‘WeChat’”.
24. [24]
    The legislative amendments which came into effect on 1 July 2021 amended the requirements as to what constitutes a Concerns Notice. They apply to the present matter. Read as a whole, a Concerns Notice must contain adequate particularisation^[10] of the matters listed at s 12A(1)(a)(ii)-(iv) of the DA inclusive. There is no express reference to what amounts to adequate particularisation, but adequacy does not, as a matter of ordinary English, equate to precision. What is “adequate” will require an assessment of the overall circumstances, bearing in mind the Concerns Notice is part of a legislative scheme under Part 3 Div 1 of the DA, which is designed to promote resolution of those disputes without resort to litigation, and so it can be accepted that less strict responses than would be expected in litigation may be adequate.
25. [25]
    The notice issued on 20 December 2022 contains a list of imputations that the plaintiff says are carried by the article. Section 12A(1)(c)(iii) of the DA requires only information of what imputations the aggrieved person considers are carried by the publication. That is different to what imputations are actually carried, which would need to be pleaded in the litigation.
26. [26]
    While it is true that the translated article is lengthy and it is not for a defendant to divine what imputations are carried for the purposes of the litigation phase, the procedures under Part 3 Div 1 of the DA are, as noted above, designed to achieve a resolution without the formality attended to by litigation. In that regard I agree with Abadee DCJ in Georges v Georges^[11] that the requirement for adequate particulars in a Concerns Notice should not be assimilated with the same rigour attached to the pleadings in litigation. Although his Honour was there dealing with a different requirement of the Concerns Notice, I consider the observations to be apposite.
27. [27]
    In light of those observations, the information about the defamatory imputations in the notice issued 20 December 2022 can be distilled from a reading of the entirety of the article. The plaintiff is not required to specifically link parts of the article to specifically pleaded imputations, as might be the case if the matter proceeds by way of litigation.  The notice complies with s 12A of the DA in this respect.

28. [28]
    The other complaint is concerned with identifying the location where the article can be accessed. The first thing to be noted is that the requirement is in the present tense, referring presumably to the time of issuing the notice. Where the material was previously able to be accessed is not to the point, as least for the purposes of a Concerns Notice.
29. [29]
    It is not hard to imagine scenarios where the written publication in question was no longer in existence at the time the Concerns Notice was issued. For example, where all copies of a typewritten publication had been collected and destroyed by that time, or where an internet article had been removed permanently by that time. The failure to nominate where the publication can be accessed in these circumstances could not possibly mean the notice was non-compliant. Again, the adequacy of these particulars must be assessed in light of all circumstances at the time of the issuing of the notice.
30. [30]
    Here the material is clear that the plaintiff was told by others that the article was on WeChat. It is not suggested that she was told more precisely where (apart from the fact that there was a group chat in existence on WeChat), nor that she went searching. The copy attached to the notice was a printed copy given to her by someone who said they were aware of it on WeChat. The plaintiff says she never looked at the article on WeChat. Had she done so it could have safely been asserted that the particulars given in the notice were inadequate, but she did not.
31. [31]
    The defendants’ reliance on cases that require precision in identifying the URL address where the article can be located is understandable, but do not deal with the scenario where the plaintiff has no actual knowledge of that URL address. For example, the history of the Concerns Notice issued in Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling)^[12] shows that the plaintiff there either had access to or had the ability to readily access the relevant URLs. Her Honour’s observations at [68(b)] should be seen in light of the factual matrix before her.
32. [32]
    While recognising that the notice does not suggest any steps were taken to ascertain the precise URL where the article could be located, and remembering that the defendants were provided with a copy of the article with the notice, in the particular circumstances I consider that the particulars of the location provided in the notice were adequate. That, however, may not preclude issue being taken about the fairness of any litigation in the absence of those details. That however is a step in the future to which I need not have regard.
33. [33]
    There is a further overarching reason why I consider that the required information was adequately particularised. The correspondence from the defendants’ solicitors did not complain of the adequacy of the information in the notice until 24 February 2023, which is after the time that an offer to make amends could have been made and after the time a conditional defence was filed. The lack of complaint sheds some light on the adequacy of the particulars in the notice, and in that respect I find myself again in agreement with Abadee DCJ in Georges v Georges.^[13]

34. [34]
    Accordingly, I consider the notice issued on 20 December 2022 complied with the requirements of s 12A of the DA, and therefore was in fact a Concerns Notice.
35. [35]
    I now turn to consider the effect of the provisions at s 12A(3) and (5) the DA. As the Concerns Notice was issued on 20 December 2022, the 28-day period expired on 17 January 2023. The intervening public holidays and any Christmas office closures did not extend that date.^[14]
36. [36]
    It was not until 24 February 2023 that the defendants’ solicitor wrote suggesting that the statement in the notice of where the article could be located was insufficient. Earlier correspondence had not raised any such issue.^[15]

37. [37]
    The plaintiff submits that the letter is insufficient to amount to a further particulars notice. There is merit in that submission. While there is reference on three occasions to the insufficiency of identification of where the matter complained of could be accessed,^[16] it was not styled as a further particulars notice, did not invite further particulars within 14 days (or at all) and the tenor of the letter was to address why the defendants would not consent to the application for an extension of the period under s 12B of the DA in BD3149 of 2022. While there is no requirement that a further particulars notice be in any specific form, I consider that was not the function the letter was designed to achieve. In my view, it did not amount to a further particulars notice.
38. [38]
    Although the defendants now contend there is a second deficiency in the notice, there has never been complaint about that prior to the written submissions in this hearing. Accordingly, while this second issue is relevant to the “just and reasonable” assessments under s 12B of the DA and s 32A of the LAA, it is irrelevant for present purposes.
39. [39]
    If I am wrong, I also consider that it fails to meet the requirements of a further particulars notice because it was not issued within 28 days of the receipt of the Concerns Notice. As such, even if it was not replied to, the defendants cannot avail themselves of the benefit of the deeming provision at s 12A(5) of the DA.
40. [40]
    While s 12A of the DA does not expressly stipulate a period during which a further particulars notice must be given to be effective, the section is contained within Part 3, Div 1 of the DA. Its purpose has been earlier noted. Central to that scheme is the ability of the publisher to offer to make amends. The proffering of an offer to make amends, or the failure to do so, may ultimately be relevant to the issue of costs.^[17] The ability to request further particulars, with the legislative consequences if the aggrieved person not reply within 14 days, is part of that scheme and obviously designed to encourage a timely resolution. Given that s 14(2)(b) of the DA stipulates that an offer to make amends cannot be made after 28 days (in the absence of an earlier further particulars notice), I consider that a further particulars notice that engages Part 3 Div 1 of the DA must also be given within 28 days of delivery of the Concerns Notice.

41. [41]
    There is a surprising lack of published authority on this point, but the conclusion I have reached is again consistent with the observations of Abadee DCJ in Georges v Georges.^[18]
42. [42]
    It is also consistent with the observations of Fryberg J in Pingel v Toowoomba Newspapers Pty Ltd.^[19] In that case, the relevant statutory provisions were those in force prior to the legislative amendments taking effect on 1 July 2021; that is, prior to the legislation applying to the present case. The effect of the provisions relevant to this aspect however did not change, although the numbering of the provisions did.
43. [43]
    Noting the failure in that case to make an offer to make amends by the end of the prescribed period, his Honour observed that: “the procedures referred to in Division 1 then came to end”. As a corollary, the deeming effect of the present s 12A(5) of the DA must also have come to an end after 28 days from the issuing of the Concerns Notice. The consequence is that, the letter of 24 February 2023 cannot amount to a further particulars notice and hence the defendants cannot avail themselves of the benefit of s 12A(5) of the DA.
44. [44]
    None of that is to say that a “late” further particulars notice, issued prior to the commencement of proceedings is of no value. It may still be of utility in the resolution of the dispute and/or on the issue of costs under s 40 of the DA, but the benefit of the deeming provision does not attach to it.

When did the limitation period expire?

45. [45]
    As earlier noted, the plaintiff submits that the automatically extended limitation period under s 10AA of the LAA expired on 15 February 2023. That is based on the assumption the publication first occurred on 30 January 2022.
46. [46]
    However, I do not accept it can be properly inferred that publication occurred on that date. The plaintiff’s own material shows that it could have been any time in January 2022.^[20] Further, the statement of claim filed 3 March 2023 pleads, at paragraph [3] that publication occurred “on a date unknown to the plaintiff, but which she believes, but cannot be certain, was sometime in January 2022…”. Nonetheless it seems to me it is reasonable to infer the publication occurred at some stage in January 2022.

47. [47]
    The mechanism used in s 10AA to the assessment of the automatically extended period is such that it does not matter what date in January 2022 is selected, the automatically extended limitation period expired on 15 February 2023.

Is it just and reasonable to extend the limitation period?

48. [48]
    The power to extend the limitation period is to be considered in light of all circumstances, but in particular those listed at s 32A(3) of the LAA.
49. [49]
    The delay in the present matter is not lengthy. The Concerns Notice was issued about one month after the plaintiff received a copy of the article. There is a period of 16 days between the expiration of the limitation period and the filing of the application, and a further 13 days to the oral hearing. The period between the oral hearing and the delivery of these reasons is not attributable to the plaintiff, and there was no suggestion that the defendants’ positions were likely to be prejudiced awaiting reasons. Nor is it suggested that relevant evidence is likely to be unavailable or less cogent than if the action had been commenced during the limitation period.
50. [50]
    Further, there was what must have been no more than about one week between the plaintiff coming into possession of a copy of the article and her obtaining legal advice. Until she had a copy of the article, her information about what was being communicated about her was generalised and it was not unreasonable for her to have not felt the need to investigated it further. Things however moved quickly once she had a copy of it.
51. [51]
    The thrust of the defendants’ submissions is that it is not just and reasonable to extend time where the plaintiff’s pleading is so deficient that it would be liable to be struck out under Rule 171(1)(a) of the UCPR.
52. [52]
    Firstly, it should be noted that there is in fact no application to strike out any or all of the plaintiff’s pleadings. The submission was illustrative only.
53. [53]
    Secondly, I have already concluded that some of the complaints do not invalidate the Concerns Notice. If it is maintained that these deficiencies are sufficient to warrant striking out, that application can be decided on the basis of proper submissions responding to a filed application from both parties. In the meantime, it is a matter of some weight in the plaintiff’s favour that the Concerns Notice has been validly issued.
54. [54]
    Thirdly, it is complained of that the pleadings fail to reveal whether any or all of the publications occurred in Australia or China, and hence failed to plead the lex loci delecti. However, the defendants’ Counsel accepted in oral submissions that affidavit material tended to suggest that some of the publications happened in Australia and at least one in China and, if pleaded properly, the trial could be conducted without issue.^[21] Alternatively, it may just be a matter of further and better particulars. Accordingly, this became a complaint of form rather than substance and is of little weight in the present consideration. Its significance is further diluted when one considers the effect of the decision in Palmer v Turnbull.^[22]

55. [55]
    There is, in my view, a further relevant consideration that favours the granting of the extension. Given the Concerns Notice was issued on 20 December 2022 and that the automatically extended limitation period expired on 15 February 2023, regardless of when in January 2022 publication first occurred, and given that there was no further particulars notice issued under Part 3, Div 1 of the Act, an action for defamation could in fact have been properly commenced without the need to apply for an extension of the limitation period at any time between 18 January 2023 and 15 February 2023. However, for reasons best known to themselves, the plaintiffs’ solicitors elected to commence an action, initially, before the expiration of the 28 days required to be observed after service of the Concerns Notice, namely on 21 December 2022. Those proceedings remained on foot until after the expiration of the limitation period, namely when dismissed by consent on 1 March 2023. A further action in defamation, namely BD523/2023 (together with unrelated actions in tort pleaded in the alternative) were filed on 3 March 2023.
56. [56]
    In my view, the plaintiff should not necessarily be locked out of the opportunity to be vindicated in the defamation proceedings where the present procedural issues appear to be at the feet of her advisers, and not her personally, and where there are other reasons to justify the granting of the extension under s 32A of the LAA.
57. [57]
    I am satisfied that it is just and reasonable to allow the defamation action to proceed, subject to an assessment of what date that extension would be to.
58. [58]
    I accept the plaintiff’s submissions that the date of extension should be to 3 March 2023, the date the proceedings in BD523/2023 were commenced.
59. [59]
    First, the effect of s 33 of the LAA is that an extension of the limitation period means the prior expiration of the limitation period is of no effect for the purposes of that legislation. If it were otherwise, and given the wide definition of “action” at s 5(1) of the LAA, an application for extension itself could not be filed as it would constitute an action on a cause for defamation being brought after the expiration of a limitation period, contrary to s 10AA(1) of the LAA. A construction that avoids express tension between ss 10AA(1) and 32AA of the LAA is preferable.
60. [60]
    Also, I accept the present issue was not specifically argued in Akbari v State of Queensland & Anor,^[23] but one of the issues for consideration by the Court of Appeal was whether an extension should have been granted to the date the Claim and Statement of Claim were filed, together with the application for extension, or only to an earlier date. That the Court of Appeal extended to the latter date suggests the members of the Court were not concerned about the impropriety of doing so.

61. [61]
    The issue was not considered at all in Forbes v Brisbane City Council,^[24] in which I was the presiding Judge. This case does not assist either party.
62. [62]
    Finally, the granting of the extension to 3 March 2023 is consistent with the plurality’s approach in Carey v Australian Broadcasting Corporation.^[25] Although that decision was concerned with a differently worded provision applicable to the extension of a limitation period for an action in defamation, it seems to me the cognate provisions are sufficiently similar to justify the same conclusion.
63. [63]
    An extension of the limitation period to that date does not detract from the earlier stated reasons as to why it is just and reasonable to extend the limitation period.
64. [64]
    If I had come to a different conclusion, I would have been prepared to grant an extension of the limitation period to 27 June 2023. I do not detect relevant unfairness in extending to that date. The essence of the argument before me was as to the justness and reasonableness of any extension, not of an extension to a particular date.
65. [65]
    In that event, it would have been necessary to strike out so much of the claim and statement of claim in proceedings BD523 of 2023 as relates to the defamation action as it had been irregularly commenced. That would have left the remaining alternative actions based in tort on foot.

The application for leave under s 12B(3) of the DA

66. [66]
    My earlier conclusions make it unnecessary to consider the plaintiff’s alternative application under s 12B(3) of the DA.
67. [67]
    If however I am wrong in my conclusion that the notice issued on 20 December 2022 amounts in fact to a Concerns Notice, I would in that event have refused leave under s 12B(3) of the DA. The July 2021 legislative amendments place more emphasis on the role of the Concerns Notice than was previously the case. In this scenario, that a Concerns Notice would not have been provided in the roughly 18 months since publication would have told heavily against a finding that the granting of leave was just and reasonable.

Costs

68. [68]
    The defendants sought to be separately heard on costs. They will be given that opportunity in light of these reasons, although it is difficult to see why that cannot be reasonably done by way of written submissions.

69. [69]
    Orders

70. [70]
    My orders are as follows:

1. Pursuant to section 32A of the Limitation of Actions Act 1974 (Qld), the limitation period for the cause of action in defamation in proceeding BD523 of 2023 is extended to 3 March 2023.
2. Subject to the orders herein concerning costs, the plaintiff’s amended application is otherwise dismissed.
3. The plaintiff is to file and serve written submissions as to costs, limited to no more than four pages exclusive of any material filed in support of them, no later than 4.00pm on Wednesday 28 June 2023.
4. The defendant is to file and serve written submissions as to costs, limited to no more than four pages exclusive of any material filed in support of them, no later than 4.00pm on Wednesday 5 July 2023.
5. The plaintiff is to file and serve written submissions in reply, limited to no more than two pages exclusive of any material filed in support of them, no later than 4.00pm on Monday 10 July 2023.