Serious harm in concerns notices enters its State of Origin era

In a recent decision in relation to the concerns notice regime for defamation complaints, the Queensland District Court has departed from the approach previously taken by its New South Wales counterpart in respect of the requirement under the model defamation laws for a plaintiff to inform the publisher of the alleged serious harm caused by the impugned publication.

In Staged Plus Pty Ltd & Ors v Yummi Fruit Ice-Creamery Pty Ltd & Anor [2024] QDC 88, the defendants argued that the plaintiffs (one corporate and two natural plaintiffs) were barred from commencing the proceeding because the concerns notice did not satisfy s 12A(1)(a)(iv) of the Defamation Act 2005 (Qld).  They relied on the New South Wales District Court decision of M1 v R1 & Ors [2022] NSWDC 409 as authority for the proposition that a plaintiff must provide a concerns notice which has particulars of the nature of the harm caused or likely to be caused, which demonstrate it to be serious harm, prior to commencing proceedings.

Section 12A(1)(a)(iv) states that a notice is a concerns notice if it "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".

Porter KC DCJ disagreed with the New South Wales authority and held that a concerns notice will be valid if it, expressly or by implication, informs the publisher of "harm", which does not need to objectively have the characteristics of being serious or caused by the publication, so long as the complainant subjectively considers that to be the case.  His Honour said this is a "modest standard" to meet and does not need to be akin to a pleading.  

His Honour found that this narrow construction is supported by the sections of the legislation which provide for a procedure for publishers to issue a further particulars notice where the particulars given are not sufficient, whereby if the complainant fails to provide reasonable further particulars within the required timeframe, the complainant is “taken not to have given the publisher a concerns notice for the purpose of this section”.

His Honour considered this conclusion was consistent with the purpose of the concerns notice regime, namely to encourage the resolution of disputes prior to the commencement of litigation.  

In Staged Plus, the purported particulars of serious harm set out in the concerns notice were harm to reputation by exposing the plaintiffs to public criticism, contempt or ridicule, lowering them in the estimation of ordinary persons, making people shun or avoid them and diminishing the esteem in which they are held.

While this merely restates the principles of 'what is defamation', the judge considered it adequately identified the harm the plaintiffs considered to be serious harm, and implied this harm was caused by the publications in question. His Honour found this went “well beyond” what was required by s 12A(1)(a)(iv).  

By contrast, since there was no part of the concerns notice that informed the defendants of the serious financial harm the corporate plaintiff alleged it suffered, even in light of the “modest standard” his Honour had determined was applicable, the claim against Staged Plus was dismissed.

Key lessons

The judgment confirms that the consideration of whether a concerns notice is valid is separate from the inquiry into whether serious harm is established as an element of the cause of action.  The two inquiries (and their respective thresholds) should not be conflated.

In light of this decision, it will be important for Queensland publishers to send a “further particulars notice” under s 12A(3) if the particulars of serious harm are inadequate.  Unless a further particulars notice is sent, there is a risk that the courts will find any reference to serious harm is sufficient to meet the “modest standard” and the validity of the concerns notice will not be able to be successfully challenged on that basis.

This approach is more consistent with that adopted by Abadee DCJ of the New South Wales District Court in Georges v Georges [2022] NSWDC 558 in which his Honour indicated, while not specifically distinguishing M1 v R1, that he did not think the particulars in a concerns notice had to be provided at a level akin to a pleading.  His Honour found that an aggrieved person must convey to a publisher their opinion, that is their subjective assessment, of the harm that has been or is likely to be caused by the publication in question.  He noted that a publisher should, in most cases, utilise the further particulars notice mechanism rather than electing to say nothing and later attempt to invalid a concerns notice on the basis of non-compliance with s 12A.

Given one purpose of model defamation laws is to prevent prospective plaintiffs from forum shopping, it will be interesting to see whether this difference between the application of this aspect of the laws by the Queensland and New South Wales District Courts, and even within the New South Wales District Court, continues or whether it is resolved.

Authors

Marlia Saunders |Partner | +61 2 8248 5836 | msaunders@tglaw.com.au

Amelia CausleyTodd | Associate | +61 2 8248 3455 | acausleytodd@tglaw.com.au

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