Gayed v Virgin Mary [2024] NSWSC 1232; first decision from the NSW Supreme Court on the concerns notice provisions in the Defamation Act 2005 (NSW).

It is never brilliant writing about something you are on the wrong side of, but on Tuesday an important decision was handed down by the NSW Supreme Court concerning compliance with the concern notice provisions in the Defamation Act 2005 (NSW). This is the first decision from the NSW Supreme Court on the concerns notice provisions.

The case is Gayed v Virgin Mary [2024] NSWSC 1232, a decision of Rothman J. Given the uniform nature of this legislation this decision will be important in other jurisdictions too.

This matter was actually heard back in February and so when compared to the then only decisions from the NSW District Court and Victorian County Court on this issue the findings in Gayed significantly lower both the level of information required to comply with s12A(1)(a) and also what non-compliance with s12A(1)(a) actually means for proceedings already commenced. Gayed does not deal with or cite any of the lower courts’ decisions, though astute readers will pick up on some things below that were first discussed by Abadee DCJ in Georges v Georges [2022] NSWDC 558.

However, in light of the recent development of the law in Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991, Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726 and Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd [2024] QDC 88, the first aspect regarding the level of information that has to be provided in order to comply with s12A(1)(a) is not as surprising anymore.

In short then, some important key points from this new decision:

-Strict compliance is not required with s12A(1)(a), only “substantial compliance” is required.

-Rothman J determined that only substantial compliance was required on the basis of the Explanatory Memorandum ([29]-[30]), the second reading speech ([31]-[33]), and the terms of s12A and s12B, specifically:

the fact that s12A(3) allows a publisher to request “further particulars”, which Rothman J held must show that “almost by definition, some or other of the material that would otherwise be within the contents of the Concerns Notice has not been fully articulated”; and

if strict compliance with s12A(1)(a) were required then “the terms of s12B(1)(b) would be otiose” and “would be wholly unnecessary”.

[42]-[46]

-Where there are no or insufficient particulars in the concerns notice of any matter required by s12A(1) the putative defendant is entitled to request further and better particulars, but the concerns notice is not, for such reason, a nullity [46];

-Where there is enough information to infer that “serious harm is stated in the Concerns Notice”, then there has been substantial compliance [52];

-A concerns notice that does not strictly comply with all the content requirements of s12A(1)(a) of the Act is not void and of no effect. As long as there is substantial compliance proceedings can be commenced, but if there were a document that “could not be said to be a Concerns Notice and does not comply substantially with the requirements of the Act, then it may not allow the commencement of proceedings as a consequence of the provisions of s12B of the Act” [54];

-Substantial compliance is achieved where there is “sufficient information for a putative defendant to understand the imputations said to arise, that the publication has given rise to serious damage and allows the publisher to settle the proceedings without recourse to litigation.” [55];

-The fact that the concerns notice in this matter said “considerable harm” had been caused did not mean that it “did not comply with the proposition that [the publication] caused “serious harm”. As to what serious means, no definition or meaning was provided but “it must mean something that is not insignificant or not ephemeral” [57];

Other than what was said at [54], this decision does not discuss what would have happened if substantial compliance was not found to be met. It certianly does not address the large number of NSW District Court and Victorian Country Court decisions prior to this that determined that a failure to strictly comply with s12A(1)(a) lead to the dismissal of a claim and/or striking out of pleadings.

A lot of recent decisions from other jurisdictions have seemed to imply that even if compliance with s12A(1) has not been achieved then the determinant as to whether proceedings could be continued/commenced when there non-compliance would be whether or not further particulars were requested pursuant to s12A(3). There seems to be a view that if further particulars were not requested then a (now) defendant cannot rely on a failure to comply with s12A(1) (and therefore, by extension s12B(1)).

One of the issues I have with that approach is the plain wording in s12A(3). That section says a publisher “may” request further particulars if a concerns notice fails to particularise adequately any of the information required. It does not say a publisher “must” request further particulars.

Therefore, to answer the question as to whether proceedings have been validly commenced when a concerns notice has not complied with the legislative requirements on the basis of what the defendant decided to do with a discretion seems to me to elevate the “may” to a “must”.

Whilst there is still clearly lots to work out with respect to the reforms that came into force on 1 July 2021, what we do know currently is concerns notices now only need to:

• substantially comply with s12A(1)(a);
• substantial compliance is likely to be met as long as there is sufficient information for the publisher to understand the imputations said to arise; that there has been serious harm caused or is likely to be caused; and gives enough information to allow the publisher to put together an offer to make amends and/or attempt to settle the matter prior to the commencement proceedings; and
• anyone receiving a concerns notice should probably be asking for further particulars as a matter of course for the information required by s12A(1)(a)!

The link to the decision is here: https://www.caselaw.nsw.gov.au/decision/192460ca1506e97c98c4cfe2