Stevens v Birtic[2024] QDC 160

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff and the defendant each independently operate refrigerated vans that they sell seafood from, in Gladstone and the surrounding district.
2. [2]
   The proceedings for defamation pursuant to the Defamation Act 2005 (Qld) (the Act) claiming compensatory damages in the sum of $200,000 was commenced by claim and statement of claim filed on 17 May 2024.  The plaintiff claims her reputation as a seafood supplier of seven years’ standing has been seriously harmed as a consequence of two Facebook posts authored by the defendant on 18 May 2023 and what he was recorded saying to a customer who was a stranger to him on 12 November 2023 and 21 January 2024 at the Discovery Coast Rotary Markets, on Captain Cook Drive, Town of 1770.
3. [3]
   The pleadings were filed by the plaintiff after giving by correspondence the relevant (and crucial) concerns notice to the defendant, in accordance with ss 12A and 12B of the Act.  The defendant responded by correspondence refuting the publication of defamatory imputations, and asserting the concerns notice “has failed to establish that she has suffered harm, much less serious harm to her reputation…” A conditional notice of intention to defend was filed on 26 June 2024.

The relevant law

4. [4]
   The objects of the Act are: to promote uniform defamation laws in Australia; not place unreasonable limits on freedom of expression, particularly on the publication and discussion of matters of public interest and importance; provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.   In doing so, the legislature has substantially altered the common law rules.
5. [5]
   I respectfully adopt the following passage in MG v PJ & Anor [2024] QDC 119 where Cash KC DCJ set out the relevant principles:

1. [3]
   Since 2021, it has been a statutory requirement of a cause of action for defamation that the plaintiff prove that the publication of a defamatory matter has caused, or is likely to cause, serious harm to their reputation. This is the result of the introduction of section 10A into the Defamation Act 2005 (Qld). Section 10A is similar to section 1 of the Defamation Act 2013 (UK), and identical to section 10A of the Defamation Act 2005 (NSW). The New South Wales Court of Appeal considered their cognate provision in Rader v Haines [2022] NSWCA 198. The plaintiff and defendants jointly submitted that the decision in Rader established the legal principles to be applied in deciding if the plaintiff has proved ‘serious harm’. In particular, the parties accepted Brereton JA’s analysis of the decision of the Supreme Court of the United Kingdom in Lauchaux v Independent Print [2020] AC 612; [2019] UKSC 27, which concerned the equivalent UK provision. This approach, with which I agree, permits me to briefly state the relevant legal principles.
2. [4]
   First, ‘serious harm’ involves harm that is more than merely substantial, though it need not be grave. But caution must be exercised in seeking synonyms for ‘serious’ – there being a risk that one merely substitutes other, equally imprecise terms. The determination of ‘serious harm’ is an inherently impressionistic exercise.
3. [5]
   Secondly, the plaintiff must prove serious harm to their reputation. This is concerned with the actual impact of the imputation, in all the circumstances, on the plaintiff’s reputation. It may arise from a combination of the inherent tendency of the words and their impact on those to whom they were communicated, but serious harm is not established by the gravity of the imputation alone, or the hurt feelings of the plaintiff.
4. [6]
   Thirdly, the matters to be considered will include the meaning of the words; the gravity of the imputations they conveyed; the situation of the plaintiff, including their existing reputation; the scale of the publication, which may include the inherent likelihood that the publication has or will become known to others; and the nature of the recipients, including their relationship with the plaintiff, and whether they are disposed to believe the imputations.
5. [7]
   Fourthly, a grave imputation may not result in serious harm where the publication is to a small number of people, well acquainted with the plaintiff, and who are not disposed to believe it. Similarly, an imputation might cause no serious harm to a plaintiff’s reputation if published to those who already view the plaintiff anathematically.^[1]

6. [6]
   Following the oral hearing of this matter, the parties drew my attention to the decision of Meagher J in Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991, which I am prepared to follow. That was another case where an application was brought under the Victorian provision^[2] to dismiss a defamation claim, or alternatively to strike it out as an abuse of process under the Federal Court Rules, because the concerns notice and pleading failed to establish ‘serious harm’. In discussing the legal framework, Meagher J said this at 29: “The provision was introduced to “weed out trivial or frivolous defamation claims” and to facilitate the early resolution of such matters: Selkirk v Hocking [2023] FCA 432 at [3]. The provision, in effect, places the onus on the applicant to prove, at the outset, that the publication has caused or is likely to cause serious harm to the applicant’s reputation: Newman v Whittington [2022] NSWSC 249 at [47], [69].”
7. [7]
   As to the requirement to give a compliant concerns notice, Meagher J said this at 62: “The purpose of the introduction of a mandatory concerns notice provision was to reduce the number of defamation actions which proceed to trial. In that regard, the purpose of a concerns notice is twofold. First, to provide the publisher with sufficient information to encourage the making of a reasonable offer of amends and secondly, to allow the aggrieved person to consider the threshold of serious harm which is required at an early stage: Georges v Georges [2022] NSWDC 558 at [56]–[59].”
8. [8]
   In dismissing the applications in that case, where the content of the concerns notices (there were two of them) differed markedly from the one given in this case, Meagher J found (at 72) there is quite a distinction between the notices he had and a concerns notice “that makes bare assertions as to the serious harm to the person’s reputation without any basis.”

The application

9. [9]
   In reliance upon the inherent jurisdiction of the court, or specific rules in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)^[3], the defendant seeks orders that the claim and statement of claim be set aside and/or dismissed because:

1. It fails to identify a defendant.

2. The concerns notice is invalid.

3. Alternatively, the plaintiff has failed to properly plead the ‘serious harm’ element of the tort and so paragraphs 13(c), 13(d), 16(c), 16(e), 18, 19(a), 19(b), 21, 23, 27 and 28 of the statement of claim should be struck out.

10. [10]
    There is, of course, an ensuing costs order sought.
11. [11]
    Putting to one side the failure to describe the defendant, the application is based upon a complaint the concerns notice has only made a general assertion of harm, which is replicated in the pleadings.
12. [12]
    The application is resisted primarily on the basis the proceedings are at an early stage. Even though the defendant contends the concerns notice and ensuing pleadings fail to disclose a cause of action, the plaintiff says the defendant should instead have availed himself of the option of requesting the plaintiff ‘provide reasonable further particulars’ of the serious harm caused (as provided for in s 12A(3) of the Act). It is also argued that a defence should have been filed, rather than the conditional notice of intention to defend, which is all the defendant has filed to this point in time.
13. [13]
    The plaintiff denies any issue with the validity of the concerns notice and save two minor points claims no issue with the pleadings, but concedes that if I think the latter should be the subject of strike out, I should grant the necessary leave to replead.  There is a limitation problem with the Facebook posts: the proceedings were commenced the day prior to the time limited to proceed, which has of course now expired.

No defendant identified

14. [14]
    As I said earlier, the defendant has only filed a conditional notice of intention to defend, in circumstances where the claim and statement of claim erroneously and impermissibly described the defendant as the ‘second plaintiff’. Consequently, there is no defendant identified by description in the proceedings, at all.  The plaintiff says that is simply a typographical error and the defendant knows he should have been described as such, and no prejudice has been suffered. An oral application was made by the plaintiff in this proceeding, to grant leave to amend the misnomer, and in circumstances where the time limit requires extension.  The plaintiff bears the onus of establishing that leave should be granted.
15. [15]
    Ultimately, I am satisfied that it would be appropriate having regard to the interests of justice and in the exercise of discretion, to grant leave to amend, so that Mr Birtic be properly described as the defendant in the proceedings, pursuant to rr 371-378 UCPR.

The validity of the concerns notice and sufficiency of the pleadings

16. [16]
    The primary question for determination is whether the plaintiff has given the requisite notice of the ‘serious harm’ caused in the concerns notice, such that the defendant as publisher would be able to identify it and consider whether and how he could offer to make amends.  The 2021 amendments abolished the common law presumption of harm having been suffered by the publication of defamatory matter.^[4]  If I find the concerns notice to be deficient, not being higher than a bare assertion of harm, the cause of action will have been improperly commenced and the matter will be brought to an end.^[5]  I respectfully adopt the observations of Abadee DCJ in Georges v Georges [2022] NSWDC 558 that the giving of  the concerns notice is anterior to the litigation, is the pre-eminent mode of dispute resolution (especially in smaller backyard defamation cases), and is intended to ‘have bite’.
17. [17]
    In fact, the element of ‘serious harm’ is so crucial to a proceeding for defamation that s 10A (4) of the Act provides that a judicial officer may, of their own motion -

    1. determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and
    2. make any appropriate orders concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).
18. [18]
    Following the analysis of cases in other Australian jurisdictions by Porter KC DCJ in Staged Plus Pty Ltd & others v Yummi Fruit Ice-Creamery Pty Ltd and others [2024] QDC 88, I am prepared to accept that the concerns notice does not necessarily need to identify the ‘serious harm’ caused with the same precision required by pleadings, but nevertheless needs to identify the harm, so that there is at least modest or minimal compliance with the requirement to give a valid concerns notice. 
19. [19]
    If I find there has been compliant notice given in accordance with s 12A, I would also need to consider whether the pleadings are adequate and sufficient to support the plaintiff’s case.  A discretion to grant leave for the plaintiff to replead arises if I find the pleadings or any part of them are liable to be struck out. I have mentioned the limitation issue.
20. [20]
    I respectfully adopt the principles identified by Bowskill J (as the Honourable Chief Justice then was) in  Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248 at [9]:  Usually, the approach, consistent with rule 5 UCPR is to proceed with caution before striking out a claim or statement of claim, which would have the impact of summarily dismissing the proceeding, prior to a trial.^[6]  And in that case at [10]:  “The focus of such an application is the pleading itself.^[7] As such, the court ordinarily assumes the factual allegations made by the plaintiff can be established;^[8] particularly where the application is brought at an early stage.”^[9]
21. [21]
    I am also assisted by the following summary by Flanagan J (now Flanagan JA) in Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd & Ors [2022] QSC 112 at [38]: “The power under r 16(e) of the UCPR to set aside an originating process may be exercised by the Court on the same grounds that are applicable to the exercise of the inherent jurisdiction.^[10] The power to summarily dismiss a proceeding in the Court’s inherent jurisdiction should be treated with caution.  Similarly the power to strike out pursuant to r 171 of the UCPR or in the inherent jurisdiction of the Court is to be exercised only in clear cases.  It is, however, appropriate to exercise the power in circumstances where the proceeding amounts to an abuse of process or is vexatious.  The Court must, however, take “great care”^[11] if it exercises a discretion to terminate proceedings prior to trial, bearing in mind that the consequence is to deprive a party of the chance to prove his or her claim or defence at trial.” 
22. [22]
    In my view, although the application should have perhaps been brought under s 10A of the Act, or by referring a separate question to the court for determination, the defendant is entitled to take the action in the way that he has. In doing so, the applicant  acknowledges the need to meet a higher bar in having the court make a determination the proceedings should be (effectively) summarily dismissed at this early stage, in circumstances where, as he contends, the irregularities are such that it would be a waste of time and resources to otherwise defend the proceeding where no cause of action is pleaded.^[12]  I accept that either course equally achieves the purpose of r 5(1) UCPR: “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”
23. [23]
    Despite the application being brought under the inherent jurisdictional powers and application of the UCPR and not under an allegation of non-compliance with s 10A of the Act, I am satisfied that a failure to comply with the usual rules of pleading is less important than an inability to plead the element which underscores the proceeding, as it does here.
24. [24]
    Having regard to the clear legislative intent and jurisprudence following substantial amendment of the common law, it follows that proceedings for defamation should be brought where the defamatory imputations and basis of the resultant harm have been clearly identified from the outset, so that meritorious claims are sustained.
25. [25]
    Even though the case is at a very early stage, in this proceeding I have had the benefit of being provided with the posts published online and have the full transcripts of the conversations: So I know precisely what the defamatory imputations are, without hearing evidence to prove, elaborate upon, explain (or defend) that evidence.
26. [26]
    Further to that, I note the claim and statement of claim (and the concerns notice) have all been couched in terms of the serious harm having already been suffered (and not as any alleged likelihood of future harm).  The plaintiff also disavowed any perception there was said to be any ill-will, malice or improper motive on the part of the defendant in writing and saying these things.
27. [27]
    Further, there seemed to be a belated concession that the pleadings failed to acknowledge the defendant’s qualifications when criticising his competitors.  For example, the defendant stated in the recorded conversation on 21 January 2024: “Yeah, no, she just buys it from PFD. It’s just imported…Of course it’s imported… But I don’t want to bag her business or anything else. That’s what she does. You know, that’s her business. But I have a lot of customers that come to me with products that are purchased from her and it’s just imported product. It’s not Australian fish. But I’m not saying everything she sells is like that. But the stuff I’ve seen, that’s what it is.” And later: “Kylie, Kylie can do… I don’t want her, her business to suffer at all… Yeah, I have no factual information on where it comes from. But the fish that they come and showed me I know come from PFD. I don’t know. I don’t know if everything is like that. I wouldn’t have a clue. I just concentrate on what I’ve got and make sure it comes off my boat fresh every week.”

What is the ‘serious harm’ the plaintiff has suffered?

28. [28]
    Without more, the concerns notice alleges there has been harm, and the statement of claim alleges there has been serious harm suffered, because there has been harm or serious harm.  There is no elaboration on how, why, when and where the serious harm has manifested.  The bare assertion seems to be that because the plaintiff has worked in this industry, the good reputation she has built up has been seriously harmed by the defendant’s imputations.  Taking the plaintiff’s case at its highest, and presupposing for the purposes of the application that she does not source substandard produce from overseas or bulk food suppliers, and the defendant is completely wrong about that, I am left wondering what the ‘serious harm’ is that the plaintiff has suffered to her reputation.
29. [29]
    The concerns notice specifically identifies that the plaintiff has been contacted by customers questioning the quality and provenance of her product, and some have stopped buying from her and that this, under a heading entitled “Hurt and harm”, has caused the plaintiff “great anxiety and stress.”  It talks about the tendency and likelihood to cause “serious” and “substantial” harm but is otherwise framed in the past tense – as if the harm has already been caused.
30. [30]
    By the time of filing the statement of claim, the past harm is elevated to the plaintiff having suffered “serious harm” but is otherwise not adequately identified or pleaded, in my view.
31. [31]
    Given the harm is said to have already been suffered, I am perplexed why the harm cannot or has not been clearly stated in the concerns notice; or pleaded.  For example, even though the claim for damages for reputational harm is not for economic loss, I would expect a pleading alleging precisely how the defamatory imputations had the result that customers shopped elsewhere or otherwise disrupted the plaintiff’s business model.  I would expect at least some information pleaded about the impact suffered by the plaintiff as a direct result of the publications, but there is none, apart from the general assertion (as also stated in the concerns notice) that some people have ceased buying from her and one customer demanded a refund.  This is especially so where the only real claim for harm in the concerns notice and pleadings is a vague assertion (without directly pleading causation) that customers have ceased doing business with the plaintiff “on the basis of the matters complained of.”
32. [32]
    Further, there is an assertion in the concerns notice that the defendant has made defamatory imputations including that the plaintiff “engages in misleading, deceptive or unscrupulous marketing practices” as if alleging breach of The Australian Consumer Law^[13] as part of these proceedings. With respect, there is little to support that allegation, which is made in addition to the allegations of defamatory imputations that she sells imported seafood of unknown quality and age.
33. [33]
    The posts and recorded comments made by the defendant were effectively to explain that his cost of maintaining a professional fisherman’s licence drove up the pricing of his product, which was fresh caught by him in Australian waters, unlike some (including the plaintiff) who sourced product of unknown age and provenance, or from wholesalers.  He had based his opinion on having inspected fish brought to him by customers of the other suppliers, including the plaintiff.
34. [34]
    In the first place, the posts on Facebook seemed to start out as a way of advertising to prospective customers, to let them know when and where he was going to be operating his van.  It was following an enquiry about his pricing that led to the comments complained of.
35. [35]
    It is unclear why the conversations have been recorded, but appear to be instituted by a customer asking the defendant about the quality of the plaintiff’s product, and the defendant confirming he has been shown fish by other disgruntled patrons of the plaintiff’s.  The defendant said he told those people it wasn’t Australian fish and to take it up with the plaintiff. I have otherwise already replicated some of the comments, to put them in context. 

Determination

36. [36]
    Taking the plaintiff’s case at its highest and having regard to the nature of the defamatory imputations, I am satisfied the plaintiff has not given a compliant or valid concerns notice to the defendant.  The document does not meet the test of being beyond the bare assertion of having suffered ‘harm’.  There was a dispute about whether the defendant had brought this deficiency to the attention of the plaintiff’s lawyers, and whether the defendant should be allowed to run down the limitation period and later complain about the validity of the concerns notice, without taking the option of acting under s 10A(3) of the Act.^[14]  I am satisfied that is not what has happened here; the defendant wrote back drawing to the attention of the plaintiff that the concerns notice was deficient, within the statutory time limit.  The defendant does not have to use the words of the statute in asking for further or better particulars of harm, in my view. I do not consider the defendant to have delayed in bringing the application for dismissal and strike out.
37. [37]
    Finding the concerns notice to be invalid, the proceedings have been incorrectly instituted and must be dismissed. 
38. [38]
    In the event I am wrong about that and should have found the concerns notice passed the threshold of what is contemplated by ss 12A and 12B of the Act, I would strike out the statement of claim and dismiss the claim, in reliance upon r 171 of the UCPR.  I am satisfied, on a cautious consideration of the various matters canvassed, that this is a clear case where the claim and statement of claim has failed to identify and properly plead the cause of action. It has not been specified how and why the ‘serious harm’ has been caused and what it is.  There is no information in the pleading about what good reputation the plaintiff already had as a fishmonger for her to suffer ‘serious harm’.^[15]  The pleadings contain assertions that could only allege ill will, motive or malice, fails to address the mitigatory impact of the qualifications expressed by the defendant, and otherwise makes a claim that the defendant wrote and said “words to the effect of” when what was actually written and said are crucial to the defendant knowing what the case is that he is meeting. 
39. [39]
    In the circumstances, (in addition to the primary ruling about the invalidity of the concerns notice) I am satisfied the claim and statement of claim should be struck out. I am not persuaded that leave should be granted to replead, effectively, the whole case (or the part that survives the time limitation).
40. [40]
    In the event the parties are unable to agree on the appropriate order as to costs, the hearing and determination about that will be listed on an agreed date and time, following the service and filing of outlines of submissions, limited to four pages or less.