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  4. Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd - [2024] QDC 88

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Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd[2024] QDC 88

Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd[2024] QDC 88

DISTRICT COURT OF QUEENSLAND

CITATION:

Staged Plus Pty Ltd & others v Yummi Fruit Ice-Creamery Pty Ltd & others [2024] QDC 88

PARTIES:

STAGED PLUS PTY LTD ABN 85 634 996 062

(First Plaintiff)

AND

COREY ROSS FRASER

(Second Plaintiff)

AND

TANYA MARGARET WIEDEN

(Third Plaintiff)

v

YUMMI FRUIT ICE-CREAMERY PTY LTD ABN 72 624 325 846

(First Defendant)

AND

JULIE AMANKA KOPP

(Second Defendant)

FILE NO:

3325/23

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

10 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2024

JUDGE:

Porter KC DCJ

ORDER:

  1. 1.The parties are to file and serve written submissions as to the proper form of order and as to costs by 24 June 2024.

CATCHWORDS:

PROCEDURE – Civil proceedings in state and territory courts – Pleadings – Striking out – Generally – where the defendants applies to strike out the claim and statement of claim for an action in the tort of defamation – where the defendants contend all claims advanced by the plaintiffs must be dismissed for want of a valid concerns notice in respect of the matter concerned – where the defendants make complaint as to the adequacy of the pleading

DEFAMATION – Actions for defamation – Pleading – Queensland – Validity of concerns notice – where the tenth to thirteenth publications, occurring after the issue of the concerns notice, comprise the same or substantially the same matter as those referred to in the concerns notice – where the proceedings are not prohibited by reason of non-compliance with the condition in s. 12B(1)(a) because, on the proper construction of s. 12A a concerns notice is valid if it informs the publisher of harm, and is not required expressly to identify the characteristics of serious harm nor that the publication was causative of that harm – where the concerns notice complies with s. 12B(1)(a) because it identifies imputations of a quite serious nature which are apt to impact on business or reputation of the natural person plaintiffs – where the corporate first plaintiff is prohibited from commencing proceedings for failure to meet the further requirement of s. 12A(1)(a)(v) – where the concerns notice otherwise complies with (ii) to meet the threshold of validity – whether the proceedings are prohibited by reason of the plaintiffs’ failure to issue a valid concerns notice pursuant to s. 12A(1)(a) of the Defamation Act 2005 (Qld) in respect of the matter concerned

PROCEDURE – Civil proceedings in state and territory courts – Pleadings – Striking out – Generally – where the statement of claim fails to plead the element of serious harm – where the statement of claim fails sufficiently to plead the element of publication  – where the statement of claim fails to sufficiently plead material facts to sustain the allegation that the first plaintiff is an excluded corporation – where the statement of claim fails sufficiently to plead material facts to sustain the allegation that each publication was made with malice – where certain imputations linked to certain paragraphs of the statement of claim are not capable of arising from the defamatory matter pleaded – whether the statement of claim should be struck out

LEGISLATION:

Defamation Act 2005 (Qld) ss. 9, 10A, 12A and 12B

CASES:

Cooper v Nine Entertainment Pty Ltd [2023] FCA 726

Newman v Whittington [2022] NSWSC 249

M1 v R1 [2022] NSWDC 409

Project Blue Sky Inc. v Australian Broadcasting Tribunal (1998) 194 CLR 355

Teh v Woodworth [2022] NSWDC 411

Hoser v Herald & Weekly Times Pty Limited [2022] VCC 2213

Radar v Haines [2022] NSWCA 198

LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200 [2004] QSC 229

Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457

Body v Mount Isa Mines Limited [2013] QSC 188

Stoltenberg v Bolton [2020] NSWCA 45

Baboolal v Fairfax Digital A & NZ Pty Ltd [2015] QSC 196

COUNSEL:

A. C. White for the defendants

J. Nott solicitor, for the plaintiffs

SOLICITORS:

Jason Nott Solicitors for the plaintiffs 

Gibbs Wright Litigation Lawyers for the defendants

Contents

Summary4

The statement of claim5

THE CONCERNS NOTICE7

THE STATUTORY CONTEXT10

THE PLAINTIFFS’ CONCESSIONS12

THE CONCERNS NOTICE ISSUES12

The defendants’ contentions12

The first contention: alleged publications not referred to in the concerns notice13

The second contention: failure to inform of serious harm18

The contention18

The law19

The law applied26

Third contention: failure to inform of financial loss27

The fourth contention: where matter may be accessed27

Conclusion28

Failure to plead serious harm28

The principles28

Application31

Pleading of publication31

Pleading of excluded corporation status34

Pleading of Malice35

ChallenGed Imputations35

Conclusion36

Summary

  1. [1]
    The plaintiffs sue the defendants in the tort of defamation in respect of imputations arising from 13 separate publications alleged to have been made over the period November 2022 to September 2023. The defendants have applied to have the claim and statement of claim struck out. The defendants raise two categories of contentions.
  2. [2]
    The first category invokes the requirement imposed by s. 12B(1)(a) Defamation Act 2005 (the Act) that, prior to commencing defamation proceedings, a plaintiff must give a proposed defendant a concerns notice under s. 12A(1) of the Act in respect of the matter concerned.  The defendants contend that none of the causes of action advanced by any of the plaintiffs have been the subject of a valid concerns notice in respect of the matter concerned. Various distinct contentions are advanced.
  3. [3]
    As to that category of contentions, I am satisfied that no valid concerns notice has been given by the first plaintiff in respect of the defamatory matter it pleads, and the first plaintiff’s claim must be struck out. However, I am satisfied that a valid concerns notice was given in respect of the defamatory matter relied upon by the second and third plaintiffs.
  4. [4]
    The second category of contentions involve complaints as to the adequacy of the pleading. The defendants contend that:
    1. The statement of claim fails to plead the element of serious harm;
    2. The statement of claim fails sufficiently to plead publication because, although it pleads the posting of the publications to various social media websites, it does not plead that any person downloaded any of the web pages for any publication;
    3. The statement of claim fails sufficiently to plead material facts to sustain the allegation that the first plaintiff is an excluded corporation;
    4. The statement of claim fails sufficiently to plead material facts to sustain the allegation that each publication was made with malice; and
    5. Some of the alleged imputations are not capable of arising from the defamatory matter pleaded.
  5. [5]
    As to those matters:
    1. I agree that the statement of claim does not plead the element of serious harm, and therefore does not disclose a cause of action;
    2. The defendants’ contention is correct in respect of the second to 11th alleged publication. The allegations of publication for those alleged publications should be struck out. The allegations of publication for the remaining alleged publications are sufficient; 
    3. The defendants’ contention is correct. If I am wrong that the concerns notice in respect of the first plaintiff is ineffective, then the allegation that the first plaintiff is an excluded corporation should be struck out;
    4. The defendants’ contention is correct. Each allegation of malice should be struck out. Those paragraphs are identified in [119] below; and
    5. The defendants’ contentions are correct in respect of certain imputations linked to certain paragraphs of the statement of claim. Those I identify in [122] below should be struck out.

The statement of claim

  1. [6]
    The following is a summary of the allegations in the statement of claim. The pleading contains several typographical and grammatical errors. I do not remark on these errors, except where it is necessary to understand the meaning of the statement of claim.
  2. [7]
    The first plaintiff (Staged Plus) is a company which operated a business of the same name. The second plaintiff (Mr Fraser) and the third plaintiff (Ms Weiden) are directors of Stage Plus. It is alleged by paragraph 1 that Staged Plus:

Was, and is, an excluded corporation pursuant to section 9(2)(b) of the Defamation Act 2005 (Qld).

  1. [8]
    The first defendant (Yummi) operated a business, known as Yummi Fruit Ice-Creamery (the Business), with the second defendant (Ms Kopp) as a director. The Business appears to have involved the sale of ice cream and other products from a van.
  2. [9]
    The genesis of the defamation allegations appears to have been a contract for the sale of the Business. The plaintiffs allege that on or about November 2022, Yummi entered a contract of sale of the Business, including the van, to Staged Plus. The contract of sale required the plaintiffs to pay $85,000 to acquire the Business. The plaintiffs allege that they paid the sale price to the defendants.
  3. [10]
    The contract of sale required the defendants to take various steps to cause the transfer of the Business to the plaintiffs, including providing login details for the Facebook and Instagram accounts of the Business, transferring the sim card for the mobile number associated with the Business, and providing account and login details for the email account of the Business. The defendants have not complied with those steps, despite demand.
  4. [11]
    The statement of claim then moves to alleging the 13 alleged defamatory publications. The pleading follows the same pattern in respect of each alleged publication. I set out the pleading of the First Defamatory Publication by way of example:

First Defamatory Publication (“the First Defamatory Publication”)

  1. 11.Between the period(s) 29 November 2022 to 13 March 2023 the first and/or second defendant published on the Instagram account and /or Facebook account under the name ‘Yummi Fruit Ice-Creamery Pty Ltd’ of and concerning the first, second and third plaintiff these words:-

“Corey Fraser & Tanya Wieden: (also owners of Ice Cream 4 Me) Please pay the Seller the final payment amount owing to them. It is disgusting that you have decided to rip them off after everything they did for you in the lead up to this business sale.

  1. 12.At the time of the First Publication, the Facebook page titled ‘Yummi Fruit Ice-Creamery Pty Ltd’ had 1,800 followers. The ‘Yummi Fruit Ice-Creamery’ Instagram account had 1,609 followers.
  2. 13.The words published by the first and second defendants in the First Defamatory Publication would have been understood to refer to the first, second and third plaintiffs.
  3. 14.The words published by the first and second defendants in the First Defamatory Publication, in their natural and ordinary meaning, meant and were understood to mean:
  1. That people have to be warned about the first, second and third plaintiffs;
  2. That the public should be cautious in engaging with the first, second and third plaintiffs;
  3. That the first, second and third plaintiffs are dishonest and untrustworthy;
  4. That the first, second and third plaintiffs are not prepared to comply with their contractual obligations;
  5. That the first, second and third plaintiff’s do not respond to complaints and/or disputes professionally; and
  6. That our clients are liars; and
  7. That our the first, second and third plaintiff’s have taken advantage of the first and second defendants; and
  8. That the first, second and third plaintiff’s engage in unfair and unreasonable business practices.
  1. 15.The First Publication and the meanings set out in paragraph fourteen (14) above were defamatory of the first, second and third plaintiffs.
  2. 16.When publishing the words in the First Publication, the first and second defendant:-
  1. We’re acting out of malevolence or spite; and / or
  2. Acted in a manner than was improper, unjustifiable and / or lacking in bona fides.
  1. 17.By reason of the first and second defendants publishing the First Publication the first, second and third plaintiff’s have been injured in its / their business reputation.
  2. 18.Unless restrained, the first and second defendants will continue to publish the First Publication or words to a like effect.
  1. [12]
    The pleading of the following 12 alleged defamatory publications follows exactly the same pattern. That includes identifying the same imputations for each of the publications, despite the text of the different publications varying considerably in content. The statement of claim then alleges damage in brief terms, as follows:

Damages

  1. 115.By reason of the matters pleaded in paragraph(s) 1-14 [sic, 114?] above, the first, second and third plaintiffs are entitled to, amongst other things, damages, including aggravated damages.
  2. 116.The first, second and third plainitff’s (sic) estimate that damages, including aggravated damages, in the amount of $50,000 would bear an appropriate and rational relationship between the harm sustained by the first plaintiff and the amount of damages awarded.

The concerns notice

  1. [13]
    The plaintiffs’ solicitors provided a concerns notice dated 17 July 2023, addressed to Ms Kopp.  The notice contains several typographical and grammatical errors. I do not remark on these errors. The quotations are verbatim. The footnotes are as per the text.
  2. [14]
    The document is expressly identified as a concerns notice written pursuant to s. 12A of the Act.  It then referred to the contract of sale, and that a dispute had arisen between the parties to the proceeding between 15 November and 22 November 2022.
  3. [15]
    It then stated:

Between the period(s) 29 November 2022 to 13 March 2023 at 2.40pm you made posts on Facebook, Google, Instagram and on the website https://www.yummifruiticecreamery.com.au/.

Publication of Defamatory and Misleading Statement(s):

…

  1. [16]
    The concerns notice then sets out what appears to be colour screenshots of posts to the three social media platforms, and printouts of posts to the Yummi website and comments submitted through the website (though without labelling them as such). As I counted them, there were 13 separate publications. Although one could infer, from the format of the image, the social media platform on which some items were posted, for others it was difficult to be certain.
  2. [17]
    The images of alleged publications are followed by the following (footnotes in original):

Defamatory Meanings and Imputations

The Google Review(s), Facebook Posts, Facebook Comments, publication on the website https://www.yummifruiticecreamery.com.au/ (collectively, the Defamatory Statement(s)) have the potential to cause significant damage to our clients reputation.

A statement will be defamatory if it lowers the reputation in the eyes of an ordinary, reasonable person.[1] And the forum in which you choose to achieve the broadest audience to publish the Defamatory Statement(s) was designed to enhance the sting in the words used.[2]

Accordingly to their natural and ordinary meaning, the Defamatory Statement(s) suggest or impute (the Defamatory Meanings):-

  1. [18]
    There follows a table identifying the statement in each the publication which was the subject of complaint, and the imputations said to flow from it. It is sufficient to set out just the first entry:

Statement

Imputation

“Corey Fraser & Tanya Wieden: (also owners of Ice Cream 4 Me) Please pay the Seller the final payment amount owing to them. It is disgusting that you have decided to rip them off after everything they did for you in the lead up to this business sale”.

  1. That people have to be warned about our clients;
  1. That the public should be cautious in engaging our clients;
  1. That our clients are dishonest and untrustworthy;
  1. That our clients are not prepared to comply with their contractual obligations;
  1. That our clients do not respond to complaints and/or disputes professionally; and
  1. That our clients are liars; and
  1. That our clients have taken advantage of you; and
  1. That our client’s engage in unfair and unreasonable business practices.
  1. [19]
    There are a further nine entries, which include statements from nine other posts included in the concerns notice. The attentive reader will immediately ask, “what about the remaining three alleged defamatory posts” (being those on pages 5 and 8 of the concerns notice)? They are not dealt with at all in this part of the letter. Two of the three posts not dealt with in the concerns notice appear as the seventh and tenth alleged defamatory publications in the statement of claim. 
  2. [20]
    The other nine statements in the imputations table, like the statement of claim, recite identical imputations for each alleged statement. Thereafter, the concerns notice turns to damage. It provides:

We are instructed that each of the Defamatory Meanings was and is defamatory to our clients. And that an ordinary, reasonable reader in the general community would understand the published words to mean[3] (the Adverse Effects):-

  1. Seriously harm our client’s reputation by exposing our client’s to public criticism, contempt or ridicule;
  1. Lower the ordinary persons estimation of our clients;
  1. Make people shun or avoid our clients; and
  1. Diminish the esteem in which our clients are held.

Our client’s earn a living based on their business reputation. As a result of the Defamatory Statements, our client will suffer loss and damage.

At the time the Defamatory Statements being published, you should have known that the Defamatory Statements, conveying the Defamatory Meaning, were likely to have the Adverse Effects on our client.

In compounding the above matters, our clients instruct that the Defamatory Statements and the Defamatory Meanings are false in substance and in fact. In this regard, we are instructed that:-

  1. The way in which our clients conduct their business is not dishonest;
  1. Our Client has not breached the “Bill of Sale of Yummi Fruit Ice Creamery Ice-Cream Van and Business” contract dated 10 November 2022;
  1. Our client’s conduct their work in a professional manner; and
  1. Our clients respond to disputes professionally.

You are now on notice as to the facts which our clients maintain are false and defamatory. If you elect to continue to make and/or publish such statement(s), then our client will be entitled to seek additional damages.

In the premise, our clients are entitled to compensatory damages to:

  1. Vindicate their reputation, by an amount sufficient to convince a person of the baselessness of their Defamatory Statements and Defamatory Meanings, in the case of a person who:-

a. Viewed the Defamatory Statements; and

b. Otherwise became aware of the Defamatory Statements.

  1. Compensate our clients for the mental anguish, distress, embarrassment and annoyance caused to our client by the Defamatory Statement(s) and the Defamatory Meanings. Our clients are not required to prove actual damage to reputation[4]; and
  1. Provide reparation for damage to our client’s reputation.
  1. [21]
    The concerns notice then articulates the plaintiffs’ demands for deletion of the posts, a published apology, and reasonable compensation. 

The statutory context

  1. [22]
    This application concerns provisions introduced into the Act recently to give effect to the reforms to the law of defamation, recommended by the Model Defamation Law Working Party. It is common ground that the Act, as amended, applies to these proceedings. The Act relevantly provides:
    1. By s. 9:

9 Certain corporations do not have cause of action for defamation

  1. A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
  1. A corporation is an excluded corporation if—
  1. the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
  1. it has fewer than 10 employees and is not an associated entity of another corporation;

and the corporation is not a public body.

  1. By s. 10A:

10A Serious harm element of cause of action for defamation

  1. It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
  2. For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.
  3. The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.
  4. Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)—
    1. (a)
      determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and
    2. (b)
      make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).
  1. By ss. 12 to 12B:

12 Application of division

  1. This division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person).
  2. The provisions of this division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise.
  3. Nothing in this division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this division.

12A Concerns notices

  1. For the purpose of this Act, a notice is a concerns notice if—
    1. (a)
      the notice—
      1. (i)
        is in writing; and
      2. (ii)
        specifies the location where the matter in question; and
      3. (iii)
        informs 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; and
      4. (iv)
        informs the publisher of the harm that the person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question; and
      5. (v)
        for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and
    2. (b)
      a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Note—

Section 12B requires a concerns notice to be given before proceedings for defamation can be commenced.

  1. For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings can not be used as a concerns notice.
  2. If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice.

  1. An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.

12B Defamation proceedings can not be commenced without concerns notice

  1. An aggrieved person can not commence defamation proceedings unless—
    1. (a)
      the person has given the proposed defendant a concerns notice in respect of the matter concerned; and
    2. (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.
  2. Subsection (1)(b) does not prevent reliance on—
    1. (a)
      some, but not all, of the imputations particularised in a concerns notice; or
    2. (b)
      imputations that are substantially the same as those particularised in a concerns notice.
  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—
    1. (a)
      the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or
    2. (b)
      it is just and reasonable to grant leave
  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.
  5. In this section—

limitation law means the Limitation of Actions Act 1974.

  1. [23]
    The Defamation Act 2005 (NSW) and the cognate Victorian statute contain identical provisions.

The plaintiffs’ concessions

  1. [24]
    Mr Nott, who appeared for the plaintiffs, made some concessions.
  2. [25]
    He conceded that the claims based on the fourth to seventh alleged publications (pleaded in paragraphs 35, 43, 51 and 59 of the statement of claim) should be struck out on the basis that they involved a direct message between the writer and the plaintiffs, rather than a communication which was published on any social media site or website in a manner which permitted others to read the matter. The result is that paragraphs 35 to 66 are to be struck out by consent. No further specific consideration will be given to the issues raised by the defendant insofar as they relate to the fourth to seventh publications.

The concerns notice issues

The defendants’ contentions

  1. [26]
    The defendants contend that all the claims advanced by the plaintiffs must be dismissed, because they have not given a valid concerns notice in respect of the matter concerned in any of those causes of action advanced by any of the plaintiffs. Therefore, the precondition to the commencement of defamation proceedings in s. 12B(1)(a) has not been met, and the claims should be struck out. The defendants articulate the following several points to make good that submission.
  2. [27]
    First, they contend that the claims made in reliance on the defamatory matter pleaded in the tenth to 13th publications are not referred to, expressly or impliedly, in the concerns notice, and all claims based on the matter pleaded there must be dismissed.
  3. [28]
    Second, they contend that the concerns notice fails to comply with s. 12A(1)(a)(iv), because it does not particularise the serious harm called for by that subsection for any claim advanced. On this basis all claims should be dismissed.
  4. [29]
    Third, they contend that, for the claims at the suit of Staged Plus, the concerns notice fails to comply with s. 12A(1)(a)(v), in that the notice does not articulate the financial loss called for by that subsection.
  5. [30]
    Fourth, they contend that, for all claims, the concerns notice does not provide sufficient detail of where the matter complained of may be accessed.

The first contention: alleged publications not referred to in the concerns notice

  1. [31]
    The defendants contend that the plaintiffs are barred from commencing proceedings in relation to the alleged defamatory matter pleaded in the tenth to 13th publications by s. 12B(1)(a), because the text of those publications was not included in the concerns notice.
  2. [32]
    A screenshot of the defamatory matter relied on in respect of the tenth publication was included in the concerns notice.[5] However, the tenth publication is not set out in the imputations table: see [18] and [19] above.[6] The 11th to 13th publications are not included anywhere in the concerns notice because they occurred, on the plaintiffs’ case, after the delivery of the concerns notice.
  3. [33]
    The defendants referred to Cooper v Nine Entertainment Pty Ltd [2023] FCA 726 in support of the submission that, in the above circumstances, all of the claims based on the matters pleaded in paragraphs 59, 83, 91, 99 and 107 of the statement of claim should be struck out.
  4. [34]
    Dr Cooper was a medical practitioner. He was aggrieved by the publication of alleged defamatory matter in The Age newspaper, and online, in February 2022 that, inter alia, described him as a Tasmanian doctor who assisted AFL players to circumvent COVID-19 vaccination rules to play football. He claimed that the sting of the articles published imputed incompetence as a medical practitioner, and other damaging imputations; there were some 16 imputations pleaded. He brought an application for various interlocutory orders, including to add an allegation that, on and from 17 February 2022, and continuing thereafter, the respondents published matter, of and concerning the plaintiff, in hard copy editions of ‘The Age’ newspaper, and also upon ‘The Age’s’ website by way of an article, the text of which was of the same or substantially the same form.
  5. [35]
    It was accepted that a concerns notice was delivered by the plaintiff’s solicitor to the managing editor of The Age on 23 December 2022. That notice only referred to the print version of the article, about which the plaintiff complained. That version was not relied upon in the statement of claim. The concerns notice also did not refer to the versions of the article on the website of The Age. Further, it did not articulate all of the imputations which the plaintiff sought to plead.
  6. [36]
    The respondents contended that a concerns notice is a statutory prerequisite to the commencement of a proceeding in defamation for each and every publication that is relied upon. In this case the concerns notice only referred to the print article which was not relied on as a publication in the statement of claim. The notice did not refer to the other forms of publication which were pleaded. Accordingly, the respondents contended that Dr Cooper breached the statutory prohibition when he commenced the proceeding in reliance upon the online publication of the defamatory matter.
  7. [37]
    Justice McElwaine rejected that contention. His Honour’s reasoning should be set out in full, as it is important not only on this issue, but because of the approach to construction of the statute which it articulates:
  1. 34
    On its face s 12(1) draws no distinction between multiple publication of the same or substantially the same matter where each separate publication is treated differently for the purposes of injury to reputation in a concerns notice. Rather, it is concerned with the publication of an identified matter that conveys a meaning defamatory of the aggrieved person. Although the “sting”, being the injury to the reputation of the aggrieved person, is not the cause of action it is an essential component of it and the provision is drafted to operate at a preliminary stage where the purpose is to encourage early resolution of complaints about injury to reputation without resort to litigation. In my view it is contrary to this purpose to draw rigid distinctions that turn on how many causes of action exist and which must be identified in a concerns notice.
  1. 35
    The content of a concerns notice is spelled out at s 12A. There are formal requirements, such that the notice must be in writing and must address the content requirements of subparagraphs (1)(a)(i)-(v). However, these subparagraphs do not set forth inflexible prescriptive criteria. The requirement to specify the location where the matter in question can be accessed, is plainly able to be addressed by referring for example to a particular edition of a newspaper published by the person to whom the notice is addressed or, in the case of a webpage, by stating its address. In this case: www.theage.com.au.
  1. 36
    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. Similarly, the requirement to inform the “publisher of the harm that the aggrieved person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question” is concerned with the harm to the reputation of the individual which at the preliminary stage must be the matter of concern to the individual and which may be satisfactorily resolved by the making and acceptance of an offer to make amends.
  1. 37
    Supporting contextual meaning is found when one turns to the prohibition at s 12B. The bar operates 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. The respondents’ submission, if correct, confines the aggrieved person to the specific known publications identified in a concerns notice where others, perhaps unknown to the complainant, will likely be within the peculiar knowledge of the publisher; more so in the case of large media corporations. The submission harkens back to the forms of action at common law where an accidental slip and irrevocable choice in the method of procedure was usually fatal to success: see generally, Maitland FW, The Forms of Action at Common Law (1910) at 298-299.
  1. 38
    Further, s 12B(1)(a) speaks to giving a concerns notice “in respect of the matter concerned”. These are wide words which generally only require a connexion or association between the notice and the matter: Fitness First Australia Pty Ltd v Fenshaw Pty Ltd (2017) 341 ALR 607; [2016] NSWCA 207 at [39]-[41], Leeming JA. Here the “matter concerned” in my view must be understood as a reference to the “matter in question” at ss 12(1) and 12A(1)(a)(ii), (iii), (iv) and (v) which is the publication that the aggrieved person is aware of and which carries the sting that is complained about. In the case of multiple publication of the same or substantially the same defamatory matter the connexion that s 12B(1)(a) requires is in my view satisfied where the aggrieved person in a concerns notice identifies a publication, or some of many, and which the person contends is or may be defamatory. Having satisfied that requirement, a proceeding subsequently commenced is in respect of the matter so identified because of the factual connexion between the publication and the sting complained of. The statutory bar 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.
  1. 39
    My views are consistent with part of the analysis of Rothman J in Newman. His Honour was concerned with a pleading dispute in a defamation claim in which the plaintiff sought leave to amend her statement of claim. Various objections were pressed by the defendant, including that two matters sought to be included by amendment (11 and 12) were not the subject of a concerns notice with the consequence that s 12B of the Defamation Act 2005 (NSW) precluded a grant of leave to amend. The New South Wales provision is in identical terms to the Tasmanian provision. Matters 11 and 12 were published after the plaintiff commenced her proceeding. In granting leave to amend to include the additional publications (which raised the same imputations as the publications referenced in the concerns notice), his Honour noted the purpose of the provisions together with the serious harm element: “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” at [27] and continued at [28]-[31]:

The prohibition in s 12B of the Defamation Act is to the commencement of proceedings. Prior to the promulgation of s 64(2) of the Civil Procedure Act 2005 (NSW) and its predecessors, there was a common law prohibition on amending pleadings to include a cause of action that arose after the commencement of the proceedings. That common law prohibition no longer operates.

As a consequence, even though the date of the commencement of proceedings for the purposes of limitation is on the date on which the amendment is filed, the proceedings are the same and the proceedings had already commenced prior to the publication of matters 11 and 12. On its face, the prohibition in s 12B of the Defamation Act does not apply to the amendment to the cause of action to raise matters 11 and 12.

As a matter of discretion, where additional matters are raised, the Court may, in defamation proceedings, refuse to allow the amendment unless a concerns notice has been served. However, in the present proceedings, the imputations said to arise from matters 11 and 12 are the same imputations — or so similar as not to be distinguishable — as the imputations raised in relation to the matters previously published and in respect of which a concerns notice has been already served. The effect of the foregoing circumstance is that the purpose of the legislature has been 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.

In those circumstances, the prohibition in s 12B of the Defamation Act does not apply, and there is no discretionary reason why the Court should, because of the failure to serve a further concerns notice, not permit an amendment.

  1. 40
    Although I am not concerned in this proceeding with an amendment that seeks to put in issue publications made after its commencement, that difference is of no importance. In each case the amendments relate to separate publications for which there is no concerns notice. 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.

[underlining added]

  1. [38]
    Importantly, his Honour did not follow a decision relied upon in another respect by the defendants in this case. His Honour observed:
  1. 41
    A contrary view was reached by Gibson DCJ in Teh, where the plaintiff’s defamation claim was struck out for various reasons, including in relation to the publication of matter on 16 June 2022 because of non-compliance with the concerns notice procedure. A concerns notice was given to the publisher on 19 June 2022 in relation to publications made on 27 August 2019 and 20 February 2020. Her Honour reasoned at [21]-[26], first to the effect that a concerns notice is a mandatory requirement, second that s 12B(1) requires a notice “for the specific publication sued on” and third that a proceeding commenced in spite of it is “invalidate[d]”
  1. 42
    With respect to her Honour, classification of the concerns notice procedure as mandatory does not address the issue of why it is not open to a plaintiff who, having given a concerns notice that identifies at least one publication and the defamatory imputations to be relied on in a proposed proceeding, later discovers that there were other publications with the same or substantially the same imputations, cannot plead each publication in a proceeding when commenced or subsequently amended.
  1. 43
    I have sought to explain, the legislative scheme does not operate to rigidly confine a plaintiff to the publications that were known when the notice was given, provided that other publications were the same or substantially the same. That outcome is in my view consistent with the statutory object at s 3(d), the extract from the Second Reading Speech of the Attorney-General and s 8A of the Acts Interpretation Act 1931 (Tas) which requires as the preferred interpretation one that promotes that object, rather than one that does not. It is neither effective nor fair to strictly confine aggrieved persons to a remedy for publications that are specified in a concerns notice if there were other publications to the same or substantially the same effect, more so where the extent of publication is a matter within the knowledge of the publisher. Similarly disputation once a proceeding is commenced about the inability of an aggrieved person to seek redress for each publication is hardly conducive to the provision of efficient and fair redress for injury to reputation.

 [underlining added]

  1. [39]
    His Honour’s analysis directly impacts on the issue under consideration here. However, the underlined passages also reflect the necessity for a flexible construction of the scope of the mandatory requirements of s. 12A where reliance is placed on them by a defendant to strike out a claim or part of a claim in reliance on 12B.
  2. [40]
    The defendants did not cavil with his Honour’s analysis. Rather, they submitted, in relation to the tenth to 13th publications, that each of those publications are, in substance, different publications which convey different imputations, and are published on different platforms. Accordingly, they submit that the plaintiffs have not given a concerns notice “in respect of the matter concerned” as required by s. 12B(1)(a) of the Act.
  3. [41]
    This argument cannot avail the defendants in respect of the tenth publication, as it was included verbatim in the concerns notice. The question is whether one or more of the other three publications comprise the same or substantially the same matter as that expressly identified in the concerns notice.
  4. [42]
    In my view, the 11th to 13th publications comprise the same, or substantially the same, matter as that contained in one of more of the ten publications set out in the concerns notice. The gravamen of the language in the 11th to 13th publication in each case is:
    1. The plaintiffs are dishonest and/or the truth will come out in proceedings in Court;
    2. The plaintiffs are deliberately avoiding paying money due to the defendants under the sale contract; and
    3. The plaintiffs chose not to resolve the matter in mediation for improper reasons.
  5. [43]
    Each proposition was included in one or more of the publications which are set out in the concerns notice, and in similar, if not identical language. Notably, in that respect, the defendants do not allege that the imputations pleaded for the 11th to 13th publication do not arise as a matter of law. (They are, of course, the same imputations ascribed to all the other publications.) This reflects the consistency of the gravamen of the statements in each case, even allowing for the submissions in Schedule 1 as to imputations which are alleged not to arise. This conclusion is supported, in my view, by both Cooper and Newman. For those reasons, I consider that the plaintiffs gave a concerns notice in respect of the matter concerned for the tenth to 13th publication. 
  6. [44]
    I have not overlooked that, in argument, I expressed the firm view that the defendants’ submissions on this point were correct, and that Mr Nott might be taken to have conceded as much. However, the concession was in the face of my expression of my view on the matter.  Mr White was not also pressed in oral argument on this point, given my expressed view.
  7. [45]
    On closer analysis of Cooper, and the circumstances of this case, I have reached the contrary view. I think it neither fair, in those circumstances, to hold Mr Nott to his concession (if it was truly made), nor do I think it unfair to the defendants for me to alter my view, given that I had Mr White’s written submissions on the point before me, as well as some oral submissions in support of his contention.

The second contention: failure to inform of serious harm

The contention

  1. [46]
    The defendants contend that the plaintiffs are barred from commencing the proceedings in respect of any publication, because the concerns notice did not inform about the serious harm alleged as required by s. 12A(1)(a)(iv), and therefore did not amount in law to a concerns notice in respect of the matter concerned.
  2. [47]
    The text of the concerns notice which relates to harm appears in [20] above (principally, the first paragraph of that quotation). Read literally, that paragraph does not make sense. Reference to an erroneous citation of Lewis v Daily Telegraph [1964] AC 234 at 260 does not assist.
  3. [48]
    The defendants submit that the words should be read literally, and that if that approach is adopted[7]:

What is clear is that the statement is not a drescription of actual or likely harm as required by s. 12A(1)(a)(iv) of the Act. It is merely an assertion of what a reader … would understand is conveyed by the imputations.

  1. [49]
    However, that is not the meaning intended by the words used. The paragraph is self-evidently missing some words. In my view, the paragraph objectively intends to communicate that:

…an ordinary reasonable reader would understand the published words mean the alleged imputations, and as a result, the publications have caused the Adverse Effects.

  1. [50]
    Further, the second paragraph communicates, albeit in brief terms, that the Adverse Effects would impact on the plaintiffs’ business reputation.
  2. [51]
    The defendants’ more persuasive contentions focus on the substance of the concerns notice. They contend:
    1. First, that the effect of s. 10A of the Act is to change the law as to damages for defamation, and that the natural plaintiffs must prove actual damage to their reputations: Newman v Whittington [2022] NSWSC 249 at [69];
    2. Second, that a plaintiff must provide a concerns notice which has particulars of the nature of the harm caused or likely to be caused, in the concerns notice, which demonstrate it to be serious harm: M1 v R1 [2022] NSWDC 409; and
    3. Third, that a plaintiff must also expressly particularise facts demonstrating a causal link between the matter complained of and the serious harm in the concerns notice: Teh v W [2022] NSWDC 411.

The law

  1. [52]
    As to the first proposition, in Newman v Whittington [2022] NSWSC 249 at [69], Sackar J reviewed authorities dealing with cognate provisions to s. 10A of the Act, including the leading UK decision of Lachaux v Independent Print Limited [2020] AC 612. His Honour concluded:

69 … it is clear that a plaintiff must prove serious harm as a necessary element of the cause of action in New South Wales since the introduction of s 10A. By parity of reasoning, I am of the view that s 10A, like its UK counterpart has the effect of abolishing the common law rule that upon the publication of a defamation, damage is to be presumed. The plaintiff is therefore obliged to prove serious harm as a fact in every case. Further in my view in that regard the general law on that matter has been changed either expressly by reason of the very terms of s 10A or by necessary implication (see s 6(2) of the Defamation Act 2005 (NSW)).

  1. [53]
    His Honour went onto to strike out parts of the statement of claim on the basis that it failed properly to plead serious harm.  However, the plaintiff in that case was appearing in person, and the pleading of damage was not clear. I see no reason to depart from his Honour’s conclusion on the point of principle. However, that principle does not define what facts must be pleaded by a plaintiff properly to plead the element of serious harm to the plaintiff’s reputation, nor could it. Every pleading is unique and what facts can or should be pleaded to disclose a cause of action in relation to the serious harm element will vary from case to case. 
  2. [54]
    I have more difficulty with the second and third propositions advanced by the defendants.
  3. [55]
    The defendants rely on M1 v R1 [2022] NSWDC 409 as authority for the second proposition. The parties were involved in family law proceedings. The husband was suing the wife and her solicitor for alleged defamation by four emails sent to various persons. The husband gave a concerns notice prior to commencing proceedings. The form of the husband’s proceedings was irregular. The defendants applied seeking that the proceedings be struck out, relevantly, on the basis that the plaintiff’s concerns notice was defective because the requirement for particularisation of the serious harm had not been met. Judge Gibson agreed.
  4. [56]
    Her Honour’s analysis began by citing and adopting Justice Sakar’s analysis in Newman in respect of pleading serious harm. Her Honour then considered what approach should be taken in the context where the adequacy of articulation of serious harm in the concerns notice arises. She held:

23 There is an important difference between the pleadings in this case and Newman v Whittington, namely there was no suggestion in Newman v Whittington that the concerns notice failed to contain particulars of serious harm, or that the particulars in the concerns notice were so defective that they should be struck out. The question of entitlement to replead serious harm will be an area where there will be considerable divergence between English and Australian authorities because of the additional requirement for these to be in the concerns notice. This is because, while inadequate particulars of serious harm in a statement of claim may be remedied by seeking leave to file a further pleading, inadequate particulars of serious harm in a concerns notice, if the effect is that no such particulars have been given, may render the notice invalid, in which case proceedings cannot be commenced at all. A fresh concerns notice would have to be served which contains proper particulars of serious harm. This leads to the further question of whether this can be done nunc pro tunc or whether the statement of claim must be struck out.

24 It might be argued that the reference to “cannot commence” in s 12B(1) only requires the items identified in s 12B(1)(a) – (c) and that there is no reference to “serious harm” in those subsections. I do not regard the omission of “serious harm” from the list of factors s 12B(1)(a) – (c) as indicating that there can be multiple attempts to plead serious harm in a concerns notice. This means that the limited powers set out in s 12B(3) for revision of a defective concerns notice, relating to changes to imputations and the 28-day period, do not extend to inadequate particulars of serious harm.[8] In other words, if the particulars of serious harm are not contained in (or are so inadequate they should be struck out of) the concerns notice, it cannot be a valid concerns notice.

25 Can leave be granted nunc pro tunc for the introduction of such particulars into the concerns notice and can the proceedings be retrospectively validated? Leaving aside the plaintiff’s failure to seek such leave in this application, comparison of s 12B(1) with other legislation such as s 48 of the Motor Accidents Act 1988 (NSW) (see Hill v Bolt (1997) 28 NSWLR 329 demonstrates that language of this “imperative nature” (at 331 per Kirby P) precludes the grant of such leave. The result is that a plaintiff really only has one chance to get his or her concerns notice particulars of serious harm over the threshold of being struck out because, without these being properly particularised, proceedings purportedly relying upon the defective concerns notice cannot be commenced.

26 In what circumstances may a court hold that particulars of serious harm have not been provided, and what test should be applied? There are other pleadings-related provisos in a concerns notice, namely the requirement to specify the imputations, but there are provisos for these to be redrafted or dropped. Taking all of the above factors into account, particulars of serious harm with a level of conciseness akin to a pleading would be desirable, in that confusing language may result in their being struck out (as occurred in Newman v Whittington).

[underlining added]

  1. [57]
    I respectfully disagree with her Honour’s conclusion that if particulars of serious harm with a level of precision akin to a pleading (if that is what ‘properly particularised’ should be taken to mean) are not contained in a concerns notice, it cannot be a valid concerns notice for the purposes of s. 12B(1)(a) of the Act.
  2. [58]
    In my respectful view, absent a failure sufficiently to respond to a request for further particulars notice under s. 12A(5), a concerns notice will be a valid concerns notice in respect of a matter if it, expressly or by implication, informs the publisher of harm. So long as the concerns notice meets that modest standard, particularisation, (much less particularisation akin to a pleading), is not required for the notice to be a valid concerns notice in respect of matter under s. 12B(1)(a).
  3. [59]
    Where it is sought to strike out proceedings under s. 12B(1), the focus of analysis usefully starts with that provision. Section 12B(1)(a) prohibits the commencement of defamation proceedings unless, relevantly, the person has given a concerns notice in respect of the matter concerned. This begs the question: what must a document contain at a minimum if it is to be a valid concerns notice for the purposes of s. 12B(1)(a)? The answer is provided by s. 12A(1), which provides that a notice is a concerns notice if the notice meets certain content requirements set out in (1)(a), and a copy of the matter in question is provided with the notice, if practicable.
  4. [60]
    The nature of the obligations imposed by the different subsections of 12A(1)(a) vary. Section 12A(1)(i) requires that the notice must be in writing. There is not much room for flexibility in the application of that requirement. If the notice is not in writing, it does not meet this requirement; if it is in writing, it does. The same certainty is not found in the words used in s. 12A(1)(a)(ii) to (v).  To adopt the words of Justice McElwaine, those sub-paragraphs set forth flexible, prescriptive criteria.  His Honour, at [37] of his reasons (see [37] above), gives the example of how with s. 12A(1)(a)(ii) might vary in the mode of compliance. In my opinion, a similar analysis applies to (iii) to (v).
  5. [61]
    Judge Gibson’s approach in M1 v R1 adopts a broad view of the extent of compliance with the prescriptive criterion for informing about harm in s. 12A that is required for a concerns notice to be a valid notice. However, in construing the extent of compliance necessary for a concerns notice to be a valid notice, it is my view that the rather more modest requirement articulated in [58] above is sufficient on the proper construction of the statute.
  6. [62]
    In a different but analogous circumstance, the majority in Project Blue Sky Inc. v Australian Broadcasting Tribunal (1998) 194 CLR 355 at [93] observed (footnotes omitted):

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".

[underlining added]

  1. [63]
    That principle also applies in my view where the question is, “what is the minimum level of compliance with the definition of concerns notice essential for the notice to be a valid notice for the purposes of s. 12A(1)(a)(iv)?”. The answer must be determined by construing the intention of Parliament as to that matter by reference to the words used and the scope and object of the relevant parts of the statute.
  2. [64]
    Let us start with the express words of s. 12A(1)(a)(iv). Those words are not apt to require particularisation of any standard, much less of the standard required for a pleading. The provision requires the concerns notice to:
    1. inform the publisher of the harm;
    2. that the person considers:
      1. (i)
        to be serious harm to the person’s reputation;
      2. (ii)
        caused, or likely to be caused, by the publication of the matter in question.
  3. [65]
    In my view, the words of the provision do not expressly require anything to be the subject of information to the publisher, other than “the harm”. The provision does not expressly require the person to inform the publisher that it is serious harm, nor that it was caused by the publication of the matter. Indeed, the harm identified does not objectively have to have the characteristics of being serious, or be caused by the publication at all. The provision only requires the harm to have those two qualities in the opinion of the person. This follows from the use of the phrase, “the person considers”, to condition the rest of the provision.
  4. [66]
    Arguably then, all s. 12A(1)(a)(iv) requires for validity is that the concerns notice informs the publisher of some identified harm, with the balance of the provision relating to what the person subjectively believes is the character of that harm. So, for example, it would be sufficient for the purposes of validity for the concerns notice to inform that the harm was harm to the reputation of the person. It would impliedly follow that that harm was believed, by the person, to have the characteristics identified, because that is the harm they have identified.
  5. [67]
    What warrant then is there for a wider reading of the requirements of the sub-section for a valid concerns notice?  The directly relevant statutory provisions give no warrant for a wider reading; rather the contrary.
  6. [68]
    First, a narrow construction is supported by s. 12A(3) and s. 12A(5). Those provisions together contemplate that, if there is not sufficient particulars of, relevantly, harm for the concerns notice to meet it statutory function, the publisher may seek further particulars. If the person failed to provide reasonable further particulars, only then is the person “taken not to have given the publisher a concerns notice for the purpose of this section”.  While this does not relieve a concerns notice from informing as required under (iv), it is consistent with a narrow construction of the minimum requirement of particularity for a notice to be valid, absent a request for further particulars.
  7. [69]
    Second, s. 12B(1)(b) and s. 12B(2) place particular emphasis on the particularisation in the concerns notice of each imputation to be relied upon by the person arising from the matter concerned. Those provisions have the effect that, despite s. 12A(3) to (5), the particularisation of imputations in a concerns notice is essential to the right to commence defamation proceedings, alleging such imputations arise from the matter concerned. To this extent, Parliament intends that compliance with the flexible criterion for particularising imputations in s. 12A(1)(a)(iii) should be analogous to the precision and particulars required in a pleading.
  8. [70]
    However, Parliament imposes no such obligation in respect of the requirements in (iv) and (v), though it could have done. This impliedly stands against any intention that particularisation for those requirements should meet a similar standard for validity. Further, it is notable that s. 12B(1)(b) calls for particularisation of the imputations; not the belief referred to in s. 12A(1)(a)(iii).
  9. [71]
    Third, I do not consider s. 10A of the Act directs any broader reading of s. 12A(1)(a)(iv). That deals with the elements of the cause of action. It therefore necessarily informs, as Newman explained, the requirements for a statement of claim seeking relief for defamation properly to plead a cause of action. But it has no implication for the identification of the minimum requirements for a notice to be a concerns notice under s. 12A. That follows from two matters:
    1. The first is the difference in drafting between (iv) and s. 10A(1), with the former articulated by reference to a subjective view of the aggrieved person, and the latter articulated in objective language; and
    2. The second is that the balance of s. 10A is concerned with the pleading and proof stage of a cause of action for defamation, and makes no reference to the concerns notice or its contents in respect of that element.
  10. [72]
    Fourth, I am conscious that the purpose of the concerns notice is to encourage resolution without proceedings. However, the construction I have identified is concerned with the minimum requirement for a valid concerns notice. If a publisher wishes for more information about the harm alleged, they can make use of the further particulars notice procedure. However, to adopt a broad reading of the necessary particularisation of harm for a valid notice is likely to have the opposite effect to that intended. It will provide an incentive for a publisher who considers a notice inadequately particularised not to seek to resolve a dispute in the hope or expectation that the publisher will be able to rely on s. 12B(1)(a) to defeat any future claim. 
  11. [73]
    The only other authorities to which I was directed on this issue was Teh v Woodworth [2022] NSWDC 411 and Hoser v Herald & Weekly Times Pty Limited [2022] VCC 2213.
  12. [74]
    The former was another decision in the NSW District Court in which the Court concluded that a concerns notice was invalid for non-compliance with s. 12A(1)(a) (iv). The analysis appears at [27] to [33] of the judgment. This decision also adopts the view that a valid concerns notice requires particularisation of the harm and its characteristics as serious harm to the extent required of a pleading: see especially [30] to [33].
  13. [75]
    For the reasons already given, I respectfully disagree with that approach. However, on the facts, the learned Judge noted that the concerns notice in that case did not identify any harm in an identifiable way, and so the same result might have followed on either approach.
  14. [76]
    The latter is a decision of the Victorian County Court. In that case, relevantly, it was again contended by the defendant that the concerns notice was invalid for failure to articulate serious harm in compliance with the (iv) of the cognate Victorian provision. In that case there was a further particulars notice, and a further response.
  15. [77]
    Judge Clayton articulated the scope of the obligation to comply with the requirements of s. 12A(1)(a) as follows:

69 In Randell v McLachlain, Gibson J held that:

“ If adequate particulars of serious harm are not provided in the concerns notice, then it has failed to comply with s 12A of the Act and the whole action must be struck out and the plaintiff would have to start again, as the language of the statute does not favour nunc pro tunc amendment.”: Randell v McLachlain [2022] NSWDC 506 [15]

70 She goes on to note that the plaintiff must particularise the facts from which the requisite causation can be inferred.  The English decisions emphasise that causation between harm and the publication must be established. A lack of specificity as to what the harm is makes it difficult for a defendant to properly assess the case against them and to make an appropriate offer of amends. An inability to make an appropriate offer of amends defeats the intention of s 12A, which is to promote early resolution of matters. Section 3(d) of the Act provides the objects of the Act include promoting speedy and non-litigious methods of resolving disputes.

71 Pointing to the seriousness of imputations is does not particularise the serious harm alleged. Mere assertions that the publication has caused damage to reputation, is not sufficient to inform the publisher of the harm to reputation the person considers to be serious harm. Asserting that he has been held up to hatred and ridicule does nothing more than assert that he has been defamed. What is required is evidence that he is in fact “hated” or “ridiculed” by members of the community, or, alternatively, that he has suffered some other harm. Mr Hoser has not provided any particulars of serious harm he says he has, or is likely to, suffer as a result of the publications.

  1. [78]
    Again, in my respectful view, that analysis appropriates obligations which arise in pleading the cause of action to the quite different question of what is required for a concerns notice to be a valid notice for the purposes of s. 12B(1)(a), without considering the statutory framework which informs how invalidity is to be determined in light of the flexible prescriptive criteria in (ii) to (v).
  2. [79]
    The plaintiff in Hoser provided a second notice in response to a further particulars notice. Her Honour analysed that as follows:

76 Although there is no specific identification of “serious harm”, he identifies the following as harm he has suffered:

  1. the news reports held him up for public hatred and ridicule;
  1. his feelings are damaged;
  1. his business is permanently disabled by damage to his reputation.
  1. all other things he engages in, or that others engage in under his name, trademarks or businesses, are disabled by damage to his reputation;
  1. his reputation as an honest person and scientist is irreparably harmed;
  1. his reputation as a person with a record as a safe handler of reptiles and venomous snakes is irreparably harmed;
  1. other damage is self-evident.

77 I take all of these matters to be the plaintiff informing the defendants of the harm he considers to be serious harm to his reputation.  I do not consider the lack of identification of these matters as “serious harm”, for example by a heading, to be fatal to the plaintiff’s case that those particulars are particulars of serious harm.

 Does the provision of these particulars rectify the Concerns Notice and render it compliant?

  1. I am not persuaded the information provided is sufficient to comply with the terms of s 12A(1)(A)(iv). In my view, there are insufficient particulars for a potential defendant to know what serious harm to reputation is alleged, and how it is said that harm has been caused by the publications. I adopt the reasoning of Gibson J in Randell v McLachlain who noted that, to make an offer of amends, the defendant is entitled to particulars of how, where, and when the plaintiff suffered serious harm: Randell v McLachlain at [33].
  2. The Particulars provided amount to no more than generalised statements of harm. Hurt to feelings is not relevant for the purposes of serious harm to reputation: Rader v Haines [2021] NSWDC 610.  The Particulars are no more than repeated assertions of harm, without informing a defendant what the harm is in real terms, and how it is said to have been caused by the publication.
  3. The purported second Concerns Notice is not a compliant concerns notice, nor does it rectify the deficiencies in the first Concerns Notice.
  4. As the provision of the Further Particulars did not rectify the Concerns Notice, pursuant to s 12A(5), Mr Hoser is taken not to have given the publishers a concerns notice.
  1. [80]
    This case is of interest because it raises the question of what is necessary if further particulars are provided. Notably, the learned Judge’s analysis does not engage directly with the statutory language in s. 12A(5), which defines the scope of the obligation to provide further particulars. The plaintiff’s duty in that case was to provide “reasonable further particulars”. It is evident, however, that her Honour considered that reasonable further particulars required the plaintiff to state “how, where and when” the plaintiff suffered serious harm, and that reasonable particulars must directly address, as if in a pleading, the elements of seriousness of the harm, and causation of that harm. In my respectful view, there are three problems with that approach:
    1. First, what comprises reasonable particulars must be informed by the statutory obligation to which it refers. I have already articulated my view as to the proper construction of that statutory obligation in s. 12A(1)(a)(iv). To require articulation of how, where, and when goes beyond what (iv) requires. It requires, in effect, the plaintiff to articulate both material facts to sustain a claim for serious harm, and evidence of that matter, as well; and
    2. Second, whether harm to reputation is serious or not necessarily involves the application of those statutory words to certain facts. It will usually call for an inference drawn as to the magnitude of the effect on reputation of matters of the kind particularised by the plaintiff in [76] of the judgment; along with the character of the established imputations, their extent of publication, and so on. I respectfully do not agree that the scope of the statutory obligation is properly informed by the requirement to provide “how, where and when” the plaintiff suffered serious harm, and to expressly articulate causation between the harm identified and the imputations.
  2. [81]
    These observations are, of course, obiter here, as there is no further particulars notice before the Court.
  3. [82]
    I am conscious that the provisions in question are uniform legislation and that Courts should endeavour to give consistent meaning to the proper construction of such legislation. However, I respectfully do not consider the difference in approach between this case, and the cases decided in other jurisdictions on these issues, dealt with above, to be merely difference in constructional choice.[9] 
  4. [83]
    For these reasons, on the proper construction of s. 12A, and in the absence of a request for further particulars of harm, a concerns notice will be a valid notice in respect of the requirements of s. 12A(1)(a)(iv) if it informs the publisher of harm. It is not necessary to validity of the notice that the harm be expressly identified as having the characteristics of being serious harm, nor as having been caused by the publication.
  5. [84]
    Of course, a concerns notice should be as detailed as possible for it to have the maximum prospect of producing a resolution. But that is a different question from what minimum requirements are imposed by the statute, on its proper construction, to establish validity.

The law applied

  1. [85]
    That part of the concerns notice directly relating to harm appears as set out in paragraph [20], above. It informs the publisher of harm by articulation of so-called Adverse Effects. It further informs the publisher that the clients earn a living based on their business reputation. Read as a whole, the concerns notice identifies imputations of a quite serious nature which are apt to impact on business reputation.  It also identifies that the imputations alleged are substantively false.
  2. [86]
    Taken together, not only does the concerns notice inform the publisher of harm to the reputation of the natural person plaintiffs; it supports, objectively, an inference that that harm was caused by the publication, and was harm which, in the circumstances, could well be serious. It goes well beyond what is required for formal validity of the notice.
  3. [87]
    The proceedings of the plaintiffs are not prohibited by reason of non-compliance with the condition in s. 12B(1)(a) of the Act. 

Third contention: failure to inform of financial loss

  1. [88]
    This contention relates to the cause of action advanced by the corporate first plaintiff only. The defendants contend that the concerns notice fails to meet the further requirement of s. 12A(1)(a)(v) for a corporate plaintiff, in that it fails to articulate the “serious financial loss” suffered by Staged Plus.
  2. [89]
    The analysis of s. 12A(1)(a) (iv) above applies mutatis mutandis to (v).  Based on that analysis, a concerns notice will meet the minimum requirements for validity in respect of (v) if the notice, expressly or by implication, informs the publisher of financial loss claimed by Staged Plus.
  3. [90]
    The difficulty with the concerns notice in this respect is that, in contrast to the position in relation to harm to reputation, I can discern no part of the concerns notice which informs the publisher of financial loss to Staged Plus. It is not expressly identified, and its is not impliedly included in any demand for compensation made in the concerns notice.
  4. [91]
    Even based on the modest requirements for validity in respect of (v), which I consider called for by the statute, there is nothing which meets this requirement. For that reason, the concerns notice is not a valid concerns notice give by Staged Plus to the publisher in respect of the matter concerned in the notice. 
  5. [92]
    The defendants’ contention that Staged Plus is prohibited from commencing proceedings is made good.  That claim by Staged Plus must be dismissed.

The fourth contention: where matter may be accessed

  1. [93]
    This contention is summarised in the defendants’ outline as follows (footnotes omitted):
  1. Nor does the Purported Concerns Notice provide sufficient detail of where the matters complained of in the Purported Concerns Notice may be accessed. The Purported Concerns Notice merely states “between the period(s) [sic] 29 November 2022 to 13 March 2023 at 2:40pm you made posts on Facebook, Google, Instagram and on the [Business’ website]”. The Purported Concerns Notice then extracts various screenshots of the matters complained of.
  2. The approach taken in the Purported Concerns Notice does not provide sufficient detail to enable the defendants to ascertain the matters complained of. This prejudices the defendants’ ability to assess the matters complained of (and whether to make an offer to make amends in the context of the prelitigation procedure under the Act). That prejudice is brought into stark focus in respect of the fourth to seventh matters complained of, which appear to be private messages sent only to the plaintiffs. In the absence of details of where the matters complained of are located, the defendants are unable to assess the plaintiffs’ bald assertion that the matters complained of where published on Facebook, Google, Instagram or the Business’ website.
  1. [94]
    This is yet another contention by which an expansive reading of the requirements of the provisions in s. 12A(1)(a) is relied upon to contend that the concerns notice is invalid, and therefore no proceedings can be brought. It is another case where the defendants did not deliver a further particulars notice, but rather - having not done so - endeavour to rely on inadequate particulars in the concerns notice to defeat the entire cause of action.
  2. [95]
    No authority was cited for the proposition that compliance with s. 12A(1)(a)(ii), sufficient for validity of a concerns notice, has to provide specific details of each location where electronic matter was posted.
  3. [96]
    The contention assumes that, on the proper construction of (ii), “accessed” means electronically accessed. It is not clear to me that that is the purpose of the provision. Indeed, reading the provision together with s. 12A(1)(b), the better view is that the purpose of (ii) is to ensure that the concerns notice provides a copy of the matter the subject of complaint, if necessary by reference to another location and, preferably, by providing a copy.
  4. [97]
    Even on the defendants’ construction, however, the concerns notice identifies the timeframe and social media platforms where posts of alleged matter were made. It includes screenshots, many of which identify, by their format, the platform used. The defendants’ submission in this regard reveals, in my view, the danger of an expansive reading of (ii) to (v), which seeks to import standards which might apply to a pleading – or, indeed, to evidence in chief at trial – to the threshold question of validity of a concerns notice.
  5. [98]
    The concerns notice complies with (ii) to meet the threshold of validity.

Conclusion

  1. [99]
    The concerns notice was not a valid concerns notice for claims by Staged Plus. Those claims must be dismissed. The concerns notice was otherwise valid, and no basis to dismiss the claims of the natural person plaintiffs pursuant to s. 12B(1)(a) of the Act arises.

Failure to plead serious harm

The principles

  1. [100]
    The defendants contend that the statement of claim fails to disclose a cause of action because it fails to plead serious harm. I accept that serious harm is made an element of the cause of action for defamation by s. 10A, as explained by Sakar J. That section imposes two requirements for that element of the tort:
    1. Harm to the reputation established at trial must be serious harm; and
    2. That serious harm must be caused, or likely to be caused, by the publication.
  2. [101]
    The former begs the question as to what amounts to serious harm. In Radar v Haines [2022] NSWCA 198, Brereton JA (with whom Macfarlan JA and Basten AJA agreed) observed (footnotes omitted):

27 Courts appear so far to have avoided endeavouring to explain the word “serious”. Indeed, it has been said that “serious” is an ordinary word in common usage. But in my view there is utility in giving some further explanation of its content. It is used in the sense third mentioned in the Oxford Dictionary definition, namely “significant or worrying because of possible danger or risk; not slight or negligible”, for which the example given is “she escaped serious injury”, and the synonyms include “severe” and “grave”. In Lachaux, whereas the Court of Appeal had considered that the new statutory test was the same as the common law “tendency to cause substantial harm” test, in Thornton v Telegraph Media Group, [19] albeit raised to the level of “serious harm”, the Supreme Court confirmed that it “raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton”. [20] At least, this shows that “serious” involves more than merely “substantial”. In Monroe v Hopkins, Warby J concluded that “whilst the claimant may not have proved that her reputation suffered gravely, I am satisfied that she has established that the publications complained of caused serious harm to her reputation and met the threshold set by s 1 of the 2013 Act”. [21] In my opinion, “serious” harm sits on the spectrum above “substantial” but below “grave”. Importantly, there can be harm which, though substantial, does not reach the level of serious harm.

28 The authorities to which reference has been made found the following propositions in respect of s 1 of the UK Act:

  1. In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.
  1. “Serious” harm involves harm that is more than merely substantial, though it need not be grave.
  1. The requirement for serious harm to reputation is concerned with actual or likely reputational damage – that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.
  1. A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.

29 The following conclusions of the trial judge accord with those propositions:

  1. Section 1 introduced a “new threshold of serious harm which did not previously exist”, and “Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact”;
  1. “More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication”;
  1. “Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’”;
  1. “findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant.
  1. [102]
    Basten AJA had reservation, with which I respectfully agree:

91 The reservation relates to the exegesis on the meaning of “serious” in s 1 of the Defamation Act 2013 (UK). There is a risk in seeking synonyms, which may later be treated as valid replacements for the ordinary English word adopted by the Parliament. There is also a risk in seeking to place the term on a scale, between other terms of equal imprecision. The critical concept is “serious harm to the reputation of the claimant”; it is that to which the court is required to attend by reference to the evidence of a range of matters. Analysis of individual component words is apt to distract from that inherently impressionistic exercise.

  1. [103]
    The latter element raises a question of causation. The law has ample experience with the obligation to plead causation. In LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200 [2004] QSC 229, Justice Douglas summarised the principles and leading authorities as follows (at [3]):

The principal complaint made against the pleading is that it does not identify the facts which establish any causal relationship between the acts of nuisance or trespass complained of and the loss which is said to result from those acts. The principle relied on is that facts must be set out which lead to a reasonable inference that the acts complained of and the loss claimed stand to each other in the relation of cause and effect and that the plaintiff must plead the necessary facts showing that causal link; see Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210, 221; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215, 221- 3 222; Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 at [43]-[49]; (1999) ATPR 41-691, 42,833-42,834; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [25]-[26], (1999) 165 ALR 409, 419.

  1. [104]
    Each case depends on its own allegations. In a simple case where the causal chain is obvious, no specific allegations going to causation are required. However, where the causal chain is not obvious on the face of the facts alleged, a party will be compelled to plead, as material facts, the matters linking the breach to the loss alleged. Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 at [15] and Body v Mount Isa Mines Limited [2013] QSC 188 at [17] to [27].[10]
  2. [105]
    Whether a pleading sufficiently pleads serious harm to reputation, and sufficiently pleads causation of that harm, is not a matter that can be the subject of absolute rules. As I observed in relation to a concerns notice, each case will be different, and what is required to plead to make out the elements of serious harm to a person’s reputation, and causation of that serious harm by the publication, will differ from case to case.

Application

  1. [106]
    The only allegation in the pleading which directly addresses harm at all is set out in [12] above. That form of formal allegation fails to plead harm to the reputation, much less serious harm. Nor does it plead any facts which might sustain a causal link between the publications alleged, and the damage sought. This is most evident when the formal form of the pleading is contrasted with the informative submission by the plaintiffs’ outline from paragraph 25 to 32.  There the plaintiffs emphasise some matters pleaded in various parts of the pleading, and other matters inferred therefrom as being relevant to serious harm.
  2. [107]
    However, the fact that matters which might sustain a pleading of the serious harm element can be extracted from disparate allegations in the pleading is not sufficient for a proper pleading. It is not sufficient to plead material facts somewhere in a pleading and leave it for the defendant to pick over the pleading to try to work out what is relied upon and what is not (Justice Martin’s famous truffle hunt[11]). It is necessary that the relationship between material facts alleged and the causes of action advanced (or elements of the cause of action alleged) is stated in the pleading in a manner which allows the other party to understand the materiality of those facts (i.e. how they are material to each element of the cause of action).[12] 
  3. [108]
    The statement of claim is deficient in failing properly to plead material facts which address the serious harm element. It is evident from the plaintiffs’ outline of submissions that something of the kind could be done, but it has not been done.

Pleading of publication

  1. [109]
    The defendants contend that the statement of claim fails properly to plead the element of publication. Publication by posting on the internet has been treated as raising issues which differentiate it from publication in broadcast media, or newspapers and periodicals with wide circulation. In the latter, publication in broadcast or sale is the subject of a rebuttable presumption. The authorities were recently summarised by Gleeson JA (with whom MacFarlane JA and Brereton JA agreed) in Stoltenberg v Bolton [2020] NSWCA 45, as follows:[13]

55 It is not in dispute that his Honour correctly acknowledged the bilateral nature of publication for the purposes of a defamation claim, referring to Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [26]-[27] and [44]”

[26]  Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.

[27] The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action.

…

[44] In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. … (Citations omitted)

56 His Honour also correctly accepted that the mere fact of posting material online does not lead to an inference that it has been downloaded, referring to Sims v Jooste (No 2) [2016] WASCA 83 at [18]-[20]. It is useful to reproduce in full the remarks of Martin CJ at [17]-[20] (Buss JA and Mitchell J agreeing) in relation to proof of publication in cases involving the internet:

[17] Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site. There is a real prospect that many of the billions of web pages accessible via the internet have never been seen by anyone other than the person who posted the page on an internet site. This has been recognised in the cases to which I will now refer.

[18] In England, it has been consistently held that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media of print or broadcast in order to establish that there has been substantial publication within the jurisdiction. Rather, the plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded. The English cases recognise however that publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference of download can properly be drawn. However, such an inference will not be drawn from the mere fact that the material complained of has been posted on an internet site.

[19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones [2012] FCA 1193 and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 it was held that a plaintiff claiming to have been defamed by material posted on the internet must plead and prove facts which established that the material of which complaint was made had been downloaded and viewed by somebody, without necessarily having to provide particulars of the identity of the person or persons who downloaded the material. The cases also establish that an inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of ‘hits’ on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. For example, in Scali v Scali [2015] SADC 172 screenshots of the defendant’s YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at the date of the screenshot, were relied upon as evidence of the fact that the videos of which complaint was made had been downloaded and comprehended by third parties.

[20] Cavasinni v Camenzuli [2009] NSWDC 159 provides the one Australian exception to this line of authority. In that case, in deciding an application to strike out the statement of claim, Gibson DCJ distinguished the principle enunciated by the High Court in Dow Jones on the basis that that case concerned publication on an internet site only available to subscribers. In her view, in a case in which the relevant internet site was available to all, it was sufficient for the plaintiff to plead the jurisdictions in which publication was asserted, without pleading or proving specific facts from which an inference could be drawn to the effect that the material of which complaint was made had been downloaded. With respect to her Honour, I do not read the observations of the plurality in Dow Jones as being limited to cases in which complaint was made of material published on a site only available to subscribers. Nor is such a distinction consistent with the principles consistently enunciated in the English cases, or the other cases in Australia to which I have referred. For that reason, with respect, I would not follow the view expressed in Cavasinni. (Emphasis added.)

  1. [110]
    Notably, while publication in the form of downloading by a reader of a page on the internet will not be presumed from the mere fact of posting; the fact of publication can be pleaded and proved by reference to allegations from which the fact of downloading can be inferred.  Again, no fixed rules as to how this element must be pleaded or established can be applied. Each case will depend on its own facts.
  2. [111]
    The defendants are sensitive to that subtlety. They contend, in respect of this particular pleading, as follows:
  1. The Statement of Claim alleges in relation to each of the matters complained of that: “the Facebook page titled ‘Yummi Fruit Ice-Creamery Pty Ltd’ had 1,800 followers. The Yummi Fruit Ice-Creamery Instagram account had 1,609 followers.” This does not assist the plaintiffs for two reasons:
  1. First, it does not necessarily follow from the assertion that a particular page has a certain number of followers that the relevant publication has been downloaded. It is incumbent on the plaintiffs to plead “at platform of facts” from which an inference that the matters complained of have been downloaded and comprehended by at least one person can be drawn….
  1. Second, while the Statement of Claim does not allege the location of the third to seventh, ninth and tenth matters complained of, the evidence served by the plaintiffs demonstrates that these matters were not published on publicly accessible areas of Facebook or Instagram (or in some cases on those platforms at all). Many of those matters appear to be private messages or emails. The Statement of Claim specifically pleads, in relation to the eleventh matter complained of that the matter complained of was “a google review”. The alleged number of “followers” of the Facebook and Instagram pages is irrelevant to the third to seventh and ninth to eleventh matters complained of in those circumstances. 
  1. [112]
    I do not concur in the defendants’ first submission. Take an extreme example. Ms Swift has millions of followers on several social media platforms, and on the internet. The inference that a matter published there would be read by someone (perhaps millions of someones) is overwhelming. The opposite would be true for a page with only one follower. Other circumstances than mere numbers might also inform the issue. Ultimately, the question must be whether there is a sufficient basis alleged in the pleading to sustain the factual allegation that publication has occurred.  I consider the allegations of publication on the Facebook or Instagram pages, where the number of followers in over 1000 is, from a pleading perspective, a sufficient platform of facts from which one could infer that, to meet the minimum requirements for pleading publication. Whether that is established at trial is another matter. The pleading of publication for the first, 12th and 13th publications is sufficient.
  2. [113]
    However, the defendants’ second point is well made. In respect of the one-to-one communications through the website, the plaintiffs have conceded the publication is not, and cannot be, established. But the issue applies more broadly than the concession of the plaintiffs. The second to tenth publications do not allege publication on the Facebook or Instagram pages, nor indeed anywhere else. It does not address this shortcoming that, in some cases, the defendants can work out where the matter might have been published from other sources. The 11th is unique in that it alleges the publication of a Google review but does not link that to the allegations about the number of followers of the Facebook and Instagram pages.
  3. [114]
    The second to 11th publications fail to allege publication in a manner which meets the minimum requirements for pleading that element. Those allegations should be struck out.

Pleading of excluded corporation status

  1. [115]
    The defendants’ submissions on this point were brief. They contend that the allegation that the first plaintiff is an excluded corporation under s. 9 of the Act should be struck out as pleading a legal conclusion. Section 9 relevantly provides:

9 Certain corporations do not have cause of action for defamation

  1. A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
  2. A corporation is an excluded corporation if—
    1. (a)
      the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
    2. (b)
      it has fewer than 10 employees and is not an associated entity of another corporation;

and the corporation is not a public body.

  1. [116]
    It is immediately evident that a corporation might be an excluded corporation, of one, or other, or both of two reasons. The pleading fails to identify by reference to which it claims to be an excluded corporation. And further, it fails specifically to allege either matter. That allegation is conclusory and should be struck out. The point is moot, however, because I have found that there was no valid concerns notice in respect of the Staged Plus’ claim in any event.

Pleading of Malice

  1. [117]
    The defendants’ contentions in this respect are as follows (footnotes omitted):[14]
    1. The plaintiffs allege in relation to each of the matters complained of that the defendants:

“(a) We’re [sic] acting out of malevolence or spite; and/or

  1. Acted in a manner than [sic] was improper, unjustifiable and / or lacking in bona fides.”
  1. This appears to be an allegation of malice. Two points arise in respect of this pleading. First, an allegation of malice is properly made in the plaintiffs’ reply, not the statement of claim. Second, an allegation of malice or ill will is a matter which must be specifically pleaded, together any facts from which those matters are said to be inferred…
  1. [118]
    The second submission is correct. The facts from which the inference of a state of mind is to be inferred must be pleaded. It is far from clear what the basis might be for that allegation. If the defendants genuinely believe (perhaps even unreasonably) that the plaintiffs have acted improperly in the manner they contend for in respect of the disputed business transaction, it is difficult to see how malice or spite could be inferred. Indeed, the list of perjorative descriptions used in the quoted parts of the pleading themselves comprehend, subtlely, different states of mind, listed as cumulative or alternative states of mind. That is itself an embarrassing form of pleading.
  2. [119]
    The paragraphs paragraphs [16], [24], [32], [40], [48], [56], [64], [72], [80], [88], [96], [104] and [112] must be struck out. Care is required in repleading any such allegations.

ChallenGed Imputations

  1. [120]
    The final contention raised by the defendants relates to the imputations said to arise from the pleaded matter in the statement of claim. An imputation will be struck out where an ordinary reasonable reader could not draw the imputation alleged.[15]  Flanagan J explained how that proposition is applied in Baboolal v Fairfax Digital A & NZ Pty Ltd [2015] QSC 196 (footnotes omitted):

5 … The question is whether the alleged defamatory meaning is reasonably capable of being conveyed to the ordinary reasonable reader. The meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it. However, any strained, forced or utterly unreasonable interpretation must be rejected.

6 The reference to the ordinary reasonable reader is to a person of fair, average intelligence, who is neither perverse nor suspicious of mind nor avid of scandal. Such a reader, however, is one who may read between the lines but considers the publication as a whole.

7 The Court's function at the capacity stage is to determine “the outside boundaries of the possible range of meanings”. In Favell v Queensland Newspapers Pty Ltd, the High Court held that “ultimately, the question is what a jury could properly make of it”. In doing so, the plurality approved the following statement of McPherson JA in the Court of Appeal:

“The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out.”

  1. [121]
    Mr White, who appeared for the defendants, and left no strike out stone unturned, set out a schedule in his submissions identifying the imputations which he contended were not open from the matter pleaded for each publication. Although he adopted a conservative approach, I was not persuaded of all of his submissions in this regard. I think it sufficient to list those which I think, self-evidently, do not arise from the publication. It is not surprising that some of the imputations alleged cannot arise from the publications, given that the pleading repeated every one of the standard form imputations for each alleged publication (whether they needed it, or not).
  2. [122]
    In my view, the imputations in 14(f), 38(c) to (h), 54(f) and 62(a) to (h) of the statement of claim could not be sustained and should be struck out for the reasons given in the defendants’ schedule.[16]

Conclusion

  1. [123]
    Given the above, I have concluded that:
    1. The claims by the first plaintiff should be dismissed as brought in breach of the prohibition in s. 12B(1)(a) of the Act;
    2. Numerous other paragraphs of the statement of claim must be struck out as specified in these reasons.
  2. [124]
    I invite the parties to make submissions as to the proper form of the order including:
    1. Whether specific paragraphs ought to be struck out, or the more correct course, given the extent of the defects in the pleading, is to strike out the whole of the statement of claim;
    2. Whether leave should be granted to replead and, if so, whether there should be any conditions expressed on the leave;
    3. The form of any order to dismiss any part of the proceeding related to the first plaintiff; and
    4. Costs.

Footnotes

[1] Radio 2ue Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, [5] (Chesterton).

[2] Watney v Kenican [2018] 1 Qd R 407, 416 [19].

[3] See Lewis v Daily Telegraph [1965] AC 234, 260 (Lewis)

[4]Cerutti & Anor v Crestcide Pty Ltd v Anor [2016] 1 Qd R 89, 108 [25].

[5] The tenth publication, alleged in paragraph 83 of the statement of claim, appears at page 8 of the concerns notice.

[6] The omission appears to have been an oversight.

[7] Defendants’s outline para. 17

[8] My footnote: I infer that the reference to s. 12B(3) in the underlined sentence in paragraph 24 is a typographical error and is intended to be a reference to s. 12A(3), though that provision expressly provides for revision of particulars of serious harm on request by the publisher.

[9] See the cases and analysis in Vukolic v Browning [2022] QDC 279 at [117] to [123].

[10] See the detailed analysis of the issue in Justice Bond’s paper Pleading Causation published, inter alia, in Commercial Law Quarterly Vol. 36, No. 2, Aug 2022, 4-9.

[11] Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314at [29]; Mineralogy Pty Ltd & Anor v The State of Western Australia [2020] QSC 344 at [77] to [78].

[12] Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44 at [20]-[21] (per Hodgson JA with whom Mason P and Handley JA agreed).

[13] Defendant’s Submissions.

[14] Defendants’ Submissions.

[15] Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139 at [2] per McMurdo P

[16] As to the seventh, which is dealt with in 62(a) to (h), one wonders what possible defamatory imputation could be extracted from that statement. It is a moot point though, as the claim based on the seventh publication has been struck out by consent.

Close

Editorial Notes

  • Published Case Name:

    Staged Plus Pty Ltd & Ors v Yummi Fruit Ice-Creamery Pty Ltd & Ors

  • Shortened Case Name:

    Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd

  • MNC:

    [2024] QDC 88

  • Court:

    QDC

  • Judge(s):

    Porter KC DCJ

  • Date:

    10 Jun 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

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Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] QSC 196
2 citations
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Cite 1 - [2015] QSC 196
Cite 2 - [2015] QSC 196
Body v Mount Isa Mines Limited [2013] QSC 188
2 citations
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Cite 1 - [2013] QSC 188
Cite 2 - [2013] QSC 188
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215
1 citation
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Cite 1 - (1987) 14 FCR 215
Cavasinni v Camenzuli [2009] NSWDC 159
1 citation
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Cite 1 - [2009] NSWDC 159
Cerutti v Crestside Pty Ltd[2016] 1 Qd R 89; [2014] QCA 33
1 citation
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Cite 1 - [2016] 1 Qd R 89
Cooper v Nine Entertainment Pty Ltd [2023] FCA 726
2 citations
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Cite 1 - [2023] FCA 726
Cite 2 - [2023] FCA 726
Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210
1 citation
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Cite 1 - (1890) 15 App Cas 210
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
1 citation
Jump To
Cite 1 - (2002) 210 CLR 575
Dow Jones & Co. Inc v Gutnick [2002] HCA 56
1 citation
Jump To
Cite 1 - [2002] HCA 56
Fitness First Australia Pty Ltd v Fenshaw Pty Ltd [2016] NSWCA 207
1 citation
Jump To
Cite 1 - [2016] NSWCA 207
Garry Rogers Motors Aust Pty Ltd v Suburu (Aust) Pty Ltd (1999) ATPR 41
1 citation
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Cite 1 - (1999) ATPR 41
Hill v Bolt (1997) 28 NSWLR 329
1 citation
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Cite 1 - (1997) 28 NSWLR 329
Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling) [2022] VCC 2213
2 citations
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Cite 1 - [2022] VCC 2213
Cite 2 - [2022] VCC 2213
Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44
1 citation
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Cite 1 - [2002] NSWCA 44
Lachaux v Independent Print Limited [2020] AC 612
1 citation
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Cite 1 - [2020] AC 612
LBS Holdings Pty Ltd v Body Corporate for Condor Community Title Scheme 13200 [2004] QSC 229
2 citations
Jump To
Cite 1 - [2004] QSC 229
Cite 2 - [2004] QSC 229
Lewis v Daily Telegraph [1965] AC 234
1 citation
Jump To
Cite 1 - [1965] AC 234
Lewis v Daily Telegraph Ltd (1964) AC 234
1 citation
Jump To
Cite 1 - (1964) AC 234
M1 v R1 [2022] NSWDC 409
3 citations
Jump To
Cite 1 - [2022] NSWDC 409
Cite 2 - [2022] NSWDC 409
Cite 3 - [2022] NSWDC 409
MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206
1 citation
Jump To
Cite 1 - [2014] NSWSC 206
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409
1 citation
Jump To
Cite 1 - (1999) 165 ALR 409
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101
1 citation
Jump To
Cite 1 - [1999] FCA 1101
Mineralogy Pty Ltd v The State of Western Australia [2020] QSC 344
1 citation
Jump To
Cite 1 - [2020] QSC 344
Newman v Whittington [2022] NSWSC 249
3 citations
Jump To
Cite 1 - [2022] NSWSC 249
Cite 2 - [2022] NSWSC 249
Cite 3 - [2022] NSWSC 249
Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314
1 citation
Jump To
Cite 1 - [2012] QSC 314
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Queensland Newspapers Pty Ltd v Palmer[2012] 2 Qd R 139; [2011] QCA 286
1 citation
Jump To
Cite 1 - [2012] 2 Qd R 139
Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499
1 citation
Jump To
Cite 1 - [1999] FCA 499
Radar v Haines [2022] NSWCA 198
2 citations
Jump To
Cite 1 - [2022] NSWCA 198
Cite 2 - [2022] NSWCA 198
Rader v Haines [2021] NSWDC 610
1 citation
Jump To
Cite 1 - [2021] NSWDC 610
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
1 citation
Jump To
Cite 1 - (2009) 238 CLR 460
Randell v McLachlain [2022] NSWDC 506
1 citation
Jump To
Cite 1 - [2022] NSWDC 506
Scalia v Scalia [2015] SADC 172
1 citation
Jump To
Cite 1 - [2015] SADC 172
Sims v Jooste (No 2) [2016] WASCA 83
1 citation
Jump To
Cite 1 - [2016] WASCA 83
Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457
2 citations
Jump To
Cite 1 - [2004] QSC 457
Cite 2 - [2004] QSC 457
Stoltenberg v Bolton [2020] NSWCA 45
2 citations
Jump To
Cite 1 - [2020] NSWCA 45
Cite 2 - [2020] NSWCA 45
Teh v Woodworth & Anor [2022] NSWDC 411
3 citations
Jump To
Cite 1 - [2022] NSWDC 411
Cite 2 - [2022] NSWDC 411
Cite 3 - [2022] NSWDC 411
Toben v Jones [2012] FCA 1193
1 citation
Jump To
Cite 1 - [2012] FCA 1193
Vukolic v Browning [2022] QDC 279
1 citation
Jump To
Cite 1 - [2022] QDC 279
Watney v Kencian[2018] 1 Qd R 407; [2017] QCA 116
1 citation
Jump To
Cite 1 - [2018] 1 Qd R 407

Cases Citing

Case NameFull CitationFrequency
Durrand v Lawrence [2025] QDC 1292 citations
Stevens v Birtic [2024] QDC 1603 citations
1

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