The requirement to take actions in defamation NSW

In NSW, concerns notice is a mandatory pre-litigation step for defamation proceedings under the Defamation Act 2005 (NSW) (the Act). In NSW, the statutory limitation period for defamation is generally 1 year from the date of publication of the matter complained of. 

1. Threshold position

A plaintiff cannot commence defamation proceedings unless: 

i. a concerns notice has been given to the proposed defendant;  

ii. the imputations later relied upon in the proceedings were particularised in the concerns notice, or are substantially the same as those particularised; and

iii. the applicable period for an offer to make amends has expired, unless leave is granted.  

A concerns notice must be served before proceedings, and failure to provide the essential particulars, or to provide reasonable further particulars when properly requested, may render the notice invalid and expose proceedings to being struck out.  

2. Mandatory contents of the concerns notice

Under section 12A of the Act, the notice must: 

i. be in writing;  

ii. specify where the matter can be accessed, for example a webpage address, social media URL, broadcast, email, publication, or other location;  

iii. inform the publisher of the defamatory imputations the aggrieved person says are, or may be, carried by the matter;  

iv. inform the publisher of the serious harm to reputation that the aggrieved person says has been caused, or is likely to be caused; and  

v. where the aggrieved person is an excluded corporation, also identify the serious financial loss said to have been caused, or likely to be caused.  

A copy of the matter complained of must also be provided if practicable.  

3. Serious harm requirement

Section 10A makes it an element of the cause of action that the publication has caused, or is likely to cause, serious harm to the person’s reputation. For an excluded corporation, serious harm requires serious financial loss.  

In practice, the notice should particularise matters such as the extent of publication, identity or nature of recipients/audience, reputational consequences, loss of clients or opportunities, enquiries received, exclusion from business or community dealings, distress only insofar as it reflects reputational harm, and any likely future harm. The Judicial Commission notes that particulars of serious harm should appear in both the concerns notice and any subsequent statement of claim. 

4. Service / giving the notice

Section 44 allows a notice or document to be given, relevantly: 

For a natural person, by personal delivery, post to the specified or last known residential/business address, facsimile, or email/messaging/electronic communication to an address or location indicated by the person for receiving documents. 

For a body corporate, by leaving it at, or posting it to, the head office, registered office, principal office, or specified address, or by facsimile, email, messaging, or other electronic communication to an address or location indicated by the corporation.  

For online publications, it is prudent to serve the author/poster, publisher, platform administrator, editor, company, or other participant separately where each is a proposed defendant. 

5. Further particulars notice

If the publisher says the concerns notice does not adequately particularise the location of the matter, the imputations, serious harm, or serious financial loss, the publisher may issue a further particulars notice.  

The aggrieved person must provide the reasonable further particulars requested within 14 days, or any longer agreed period. If they fail to do so, they are taken not to have given a concerns notice. 

6. Waiting period before proceedings

The usual waiting period is 28 days from the publisher being given the concerns notice. If further particulars are provided after 14 days have elapsed from the original notice, the applicable offer period becomes 14 days from the date the publisher receives the further particulars.  

Proceedings should not be commenced until that period has expired, unless leave is obtained because of limitation issues or because it is otherwise just and reasonable.  

7. Offer to make amends

During the applicable period, the publisher may make an offer to make amends. The offer must be in writing, be readily identifiable as an offer under the Act, remain open for at least 28 days, include a reasonable correction or clarification, include steps to notify others to whom the material was supplied, and include an offer to pay the aggrieved person’s reasonable pre-offer and offer-consideration expenses.  

The offer may also include an apology, access-prevention steps for digital matter, compensation, and particulars of any correction, apology, or action already taken.  

If a reasonable offer to make amends is not accepted, that may later provide a defence if the publisher made the offer as soon as reasonably practicable, was ready and willing to perform it, and the offer was reasonable in all the circumstances.  

8. Limitation issues

A NSW defamation action is generally subject to a one-year limitation period from the date of publication. If a concerns notice is given within the final 56 days before expiry, the limitation period is extended by the statutory formula in section 14B.  

The Court may extend the limitation period up to 3 years from publication if satisfied that it is just and reasonable, having regard to matters including the length and reasons for delay, when facts became known, promptness after knowledge, and prejudice caused by delay.  

For electronic publications, the single publication rule may be relevant: subsequent publication of substantially the same matter by the same publisher or an associate is generally treated as accruing from the date of first publication, unless the later publication is materially different. 

Practical drafting structure 

A NSW concerns notice should usually be structured as follows: 

i. identify the aggrieved person;  

ii. identify each proposed defendant/publisher;  

iii. identify the matter complained of, including date, platform, URL/location, author, title, screenshot, transcript, or copy;  

iv. specify the defamatory imputations in numbered form;  

v. explain why the matter identifies the aggrieved person, if not named expressly;  

vi. particularise serious harm, or serious financial loss for an excluded corporation;  

vii. require remedial steps, such as removal, correction, apology, undertaking not to republish, compensation, and payment of legal costs;  

viii. reserve rights, including the right to commence proceedings after the statutory period;  

ix. attach the matter complained of and preserve proof of service.  

A concise but adequate notice is preferable to a lengthy argumentative letter. The critical point is that the publisher must be able to understand what publication is complained of, where it is located, what meanings are alleged, and what serious harm is said to have resulted. 

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