Georges v Georges; Georges v Georges

Statutory requirements

1. One of the two procedural applications now before the Court centre upon the interaction of two recent substantive changes to the Defamation Act 2005 (NSW), after 1 July 2021, ushered in by the Defamation Amendment Act 2020 (NSW). Both changes have the effect of imposing two conditions - one procedural, the other substantive - to an action in defamation can be brought in court1.
2. The first change is the imposition of a precondition to the bringing of a defamation suit, that a claimant gives a "concerns notice" to a publisher (s 12B(1)). That requirement cannot be evaded by the expedient of a claimant filing an originating process (s 12A(2)).
3. The second change is a 'serious harm' element of the cause of action in defamation, in s 10A.
4. The application for dismissal raises, in an acute way, the question of how specific a concerns notice must be, insofar as the requirement to particularise the serious harm element is concerned.
5. The thrust of the defendants' challenge, which was confirmed by the defendants' Senior Counsel at the hearing, is to the adequacy of the requirement of the contents notice (s 12A(1)(a)(iv) of the Act) insofar as it relates to the element of serious harm (under s 10A(1)) of the Act. The challenge about imputations only concerns the statements of claim.
6. Senior Counsel for the plaintiffs referred the Court to other provisions in Part 3 of the Act, relevantly ss 13(2)(b) and 15(1)(c)-(d). He did so to make the point that a publisher's offer of amends need not address the entirety of the imputations identified in a concerns notice (as stipulated by s 12A(1)(a)(iii) of the Act), but might address only a "limited" number of the imputations.

The element of serious harm

1. Section 10A(1) of the Act is a recently enacted provision. In Rader v Haines [2022] NSWCA 198, Brereton JA (per Macfarlan JA agreeing; Basten AJA concurring) (at [19]-[42]) analysed the case-law [1] of the corresponding provision in the Defamation Act 2013 (UK). Several points to emerge from that analysis are that: 1. the harm that has been, or is likely to be, caused is generally measured by combination of the inherent tendency of the words and their actual impact on those to whom they were communicated; 2. relevant considerations 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 (the recipients) believe the imputations; 3. the harm is confined to reputation - injured feelings is not sufficient, no matter how great the injury to feelings is; 4. serious harm involves harm that sits on a spectrum above 'substantial', though below 'grave'. There can be harm which, though substantial, does not reach the level of 'serious' harm; 5. it is the seriousness of the harm (ie the impact) of the publication which is in question; not the seriousness of the imputation. Thus 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 where any impact of the imputation on the plaintiff's reputation is transitory or ephemeral; 6. there may be serious harm without there being permanent harm; 7. any "grapevine effect" would be relevant in establishing serious harm.
2. Although, as Senior Counsel for the applicants acknowledged, there are differences in the provisions between the two jurisdictions [2] , Brereton JA's analysis in Rader, though directed to the provision in United Kingdom law, is clearly relevant to the construction of s 10A; and I respectfully agree with what Gibson DCJ has said, in multiple decisions, that they apply to s 10A of the Act: Zimmerman v Perkiss [2022] NSWDC 448 ("Zimmerman") at [6] & [145]; Randell v McLachlin [2022] NSWDC 506 ("Randell") at [14]. So much is common ground in this application.

The factors relating to serious harm asserted in the concerns notice

1. At the hearing of the applications, the Concerns Notices in the two proceedings were identified as Exhibit 1 (in both cases). Senior Counsel for both sides agreed that nothing turned upon differences in the content of those notices, having regard to a substantial degree of overlap in the imputations in the matters complained of in the two sets of proceedings.
2. That being so, I propose to take the concerns notice sent to Bassam as effectively representative of the two notices. That notice was dated 13 May 2022.
3. Taking into account the principles I have alluded to, relevant to the element of serious harm, the concerns notice may be broken down into the following component parts.

A statement of the plaintiff's position and standing

1. The concerns notice begins by identifying the plaintiff as a Design Practitioner with 33 years' experience, whose registration was unlimited. The plaintiff's Senior Counsel emphasised the significance of the next statement when assessing some of the imputations (involving sexual or other misconduct towards children), which was to the effect that the plaintiff was authorised to perform design services for organisations providing services to children.

Meaning of the words

1. These were set out in Schedule A to the concerns notice. The Schedule amounts to 5 detailed pages of the 8 defamatory matters complained of (in the Bassam proceeding; there having been 17 matters complained of in the George proceeding). Whilst it may not have been completely apt for the George proceeding (where there were similar but not far from identical imputations), a flavour of the alleged imputations is captured in the following description in the concerns notice: ".. imputations that our client is guilty of violently holding you to ransom, being a drug dealer, paedophile, sexually and physically assaulting and abusing you, his own and other children, and raping his sister.."

Extent of the publication

1. The concerns notice alluded in general terms to George's defamatory publications: "..forming part of a campaign by you and your brother, George Georges, to defame, harass, intimidate and abuse our client via a barrage of emails, SMS messages and voice mail messages sent to our client and others from as early as 18 months ago …"

Nature of recipients and relationship to the plaintiff

1. The concerns notice asserted that the publications were addressed or copied to a significant number of individuals and professional bodies. They were stated as including (without limitation): NSW Architects Registration Board; NSW Childcare Alliance; NSW Department of Communities and Justice; Heritage NSW; Personnel of our client's company, Design Cubicle; The Hills Shire Council; Hornsby Shire Council; Blacktown Shire Council; Cumberland City Council; City of Parramatta; City of Ryde; and Solicitors acting for (the plaintiff) and others, including Veritas Law Firm, Armstrong Legal and Madison Marcus."
2. Nevertheless, it may be observed that the means of dissemination were narrow: being in emails and not, say in mass media publications.
3. Soon after the listing of these entities, the concerns notice went on to feature certain assertions about the defendant's state of mind, being: "..the Defamatory Publications form part of a campaign by you and your brother, George Georges, to defame, harass, intimidate and abuse our client via a barrage of emails, SMS messages and voice mail messages sent to our client and others from as early as 18 months ago .. you have sought to inflict the most severe and lasting damage not only to our client's personal and professional reputation, but also to his and his family's psychological well-being. "By disseminating the Defamatory Publications to the individuals and entities listed above ....you have sought to destroy our client's personal and professional standing in the most callous and malicious way possible. In publishing these reprehensible slurs against our client, you have sought to destroy our client's relationships with the councils, professional and regulatory bodies with which he must remain in good standing in order to maintain his business and livelihood, further compounding the damage suffered by our client." (emphasis supplied)

Specific assertion of serious harm

1. The concerns notice contains the following statements (although not under any particular sub-heading): "In the circumstances outlined above, the harm caused, or is likely to be caused, to our client's reputation by the Defamatory Publications is particularly serious. Your publication of the Defamatory Publications has: (a) damaged our client's reputation; (b) adversely affected our client's relationships with councils, professional and regulatory bodies, and his professional standing as a Registered Design Practitioner and founder and director of his company; and (c) caused our client to suffer serious harm, hurt, distress and psychological trauma."

Events after supply of concerns notices

1. The concerns notices were supplied on 13 May 2022.
2. Emails were sent by George and Bassam at 6:14pm and 6:22pm, respectively, that same day. Although they were partly abusive in content, neither made any complaint about or evinced any ignorance or lack of understanding that Farah was contending that he had suffered serious harm as a result of the publications. They did, however, emphatically supply an intention of what the defendants proposed to do should litigation ensue. Bassam, at least, declared "I have proof of all my allegations. Witnesses, facts and evidence. So BRING IT ON!"
3. The period for an offer to make amends lapsed. Other than the emails sent by the defendants on the date of the notice, there was no other (of what might be described as any) substantive response to the concerns notice before the proceedings commenced on 30 June 2022 (against George) or 12 July 2022 (against Bassam).
4. George and Bassam thereafter filed Defences, including the defences of justification and contextual justification. Consistently with the Court direction [3] , this was done in circumstances where they verbally reserved their rights to raise the non-compliance with s 12A of the Act. In the Defences filed, respectively, by both defendants, George and Bassam commonly averred, in respect to each and every matter complained of, as pleaded by Farah, that the proceedings in relation to each matter complained of was incompetent because the plaintiff did not provide a concerns notice compliant with s 12A. Where that was averred for the first time, each defendant specified that the concerns notice "did not provide particulars of the harm which the Plaintiff considered to be serious harm caused, or likely to be caused, by the publication of any of the matters complained of."

Submissions concerning the adequacy of the contents notices

1. The issue of the adequacy of particulars of serious harm in the concerns notice was determined on the premise that the imputations conveyed were as alleged. That common position has reflected recent practice in the Court; although there may be a question whether it is the correct approach (Zimmerman at [10]-[11]).
2. Argument on the adequacy of the contents notices was simply centred on both notices.

The defendants' submissions

1. The defendants contend, first, that properly construed, the content requirements for concerns notices are 'mandatory', such that non-compliance with them leads to the result that any subsequent proceeding commenced is invalidated. That contention reflected decisions in this Court [4] on the new provisions, which themselves involved a review of decisions interpreting certain preconditions (analogous to s 12B(1)) to rights to recover compensation under different statutory regimes [5] . It was also consistent with statutory purpose, which the defendants identified as the promotion of early settlement of defamation disputes by facilitating time for a proposed defendant to consider a prospective plaintiff's complaint, and to make an offer to amends, prior to the commencement of a suit.
2. By s 12A(1)(a), by providing information which the aggrieved person 'considered' (relevantly) to have or be likely to cause serious harm, the aggrieved person was required to state the person's case. This was important to a publisher because, as experience showed, whether serious harm was or was likely to be caused by a matter complained of was conceptually 'scale-able': there might be some large (as in mass media) publications where an imputation might not be very seriously; whereas conversely, there might be smaller publications where imputations were extremely grave. With reference to the instant publications, Senior Counsel for the defendants (perhaps speaking against his clients) argued that it may have been doubtful whether at least some recipients of the emails, taking a brief look at the publications, would have treated them seriously at all and if that was so in the case of all the recipients, there could hardly be any reputational damage. The publisher needed to know of the reactions of those who had read them, and had formed an adverse view of the plaintiff, so that it could consider whether and to what extent, it should make amends.
3. Secondly, the concerns notices were not valid in the following respects: 1. there was an absence of subheadings clearly demarcating the different components of the notice; 2. the only arguable particulars relating to serious harm were those which were set out in [28] above. But these were inadequate because: 1. they were no more than generalisations and bold assertions; 2. the reference to hurt or injury to feelings was beside the point; 3. although there may be cases where serious harm could be inferred, from the identity of the recipients and the seriousness of the imputations, that could not be the case here: first, although there was a reference to likely future harm, the thrust of the paragraph substantially referred to actual harm and the information supplied did not apprise the defendants of the case they have to meet. Secondly, a single set of particulars was utilised in respect to a large number of matters complained of and a 'cumulative' approach was not appropriate. It is essential that individual particulars of serious harm be given in respect to each matter complained of. 4. the matters complained of, when viewed as a whole, were highly repetitive and (actually or allegedly) conveyed the same imputations. 5. it is insufficient to rely upon the fact that the imputations were grave or that they are so serious as to have a tendency as to cause harm. 6. What was missing from the concerns notice was indications concerning the actual (past) or likely (future) impact of the publications, as indicated by the reactions of recipients, including communications with the plaintiff, indicative of the emails having been read, let alone taken seriously. 1. there needed to be specification of the serious harm in relation to each of the matters in question. This proposition was advanced contrary to a determination by Judge Gibson in Nyasulu (at [25]), but that determination was erroneous. Serious harm could not be "undifferentiated", as between multiple matters complained of. Some matters in question (or complained of) may give rise to grave harm and others less harm. In order to consider its position as to how to make amends, when assessing each individual matter complained of, a publisher was entitled to receive separate itemisation as to the aggrieved person's case as to what serious harm was sustained in relation to each matter complained of.
4. When I raised with Senior Counsel for the defendants how his arguments were to reconciled with all of the procedural steps potentially available in s 12A (s 12A(3)-(5); and not just s 12A(1))) as a whole, he argued that it was not mandatory for a publisher, in receipt of the concerns notice which it regarded as defective, to request any further particulars, (say) about the serious harm even if it could do so. Section 12A might have been expressed in such mandatory terms if Parliament considered that this was appropriate. The publisher had a permissive option to request further particularity, but was not prejudiced if it did not.

The plaintiff's submissions

1. Farah contends that s 12A(1)(iv) indicated the importance of the publisher being informed of serious harm. But what the aggrieved person was doing, in s 12A(1)(a)(iv) was conveying a subjective evaluative judgment that serious harm had been or was likely to be suffered, based on an amalgam of matters, including the class(es) of recipients, the plaintiff's relationship to recipients, the nature and scope of the publications and the gravity of the imputations. From this amalgam of matters, an inference could be drawn from the notice that the aggrieved person was asserting a connection between (actual or likely) reputational harm and the publications complained of. Senior Counsel for the plaintiffs took the Court through the matters in the notice concerning this amalgam of factors, which extended beyond the mere express assertion of serious harm having been, or likely to be, caused. George and Bassam were sufficiently informed of the nature and extent of the harm in the concerns notices (and also the defamatory imputations).
2. Mr Sibtain SC, who appeared with Mr Senior for the plaintiffs, submitted that ss 12A(3)-(5) were 'savings provisions' which might be utilised to cure deficiencies in the concerns notice. Section 12A(3), in particular, imported an objective standard: "if" the concerns notice failed to particularise a matter "adequately". The object of these particular provisions was to keep the amends process alive: if the particularisation of serious harm was inadequate, the publisher had the opportunity to indicate this to the aggrieved person and ask for greater particularity. If the publisher did engage constructively by asking for more, ss 12A(4) and (5) put real pressure, as to time and content (respectively) in how the aggrieved person should respond to such request, so as to enhance the amends process.
3. There was little doubt that Farah had articulated his "concern" that serious harm had been, or was likely to be caused, by the publications. There was also no doubt that, by their responses, George and Bassam understood the serious harm identified: this was underscored by the absence of any request, by either of them, for further particularity under s 12A(3); and also by the spate of activity that had subsequently occurred before they took any point about the adequacy of the notice.
4. A practical approach had to be taken when considering the adequacy of notice of the serious harm requirement, in preference to a strict approach, in drafting, since the latter may generate complexity and disputation; and may be especially prejudicial to self-represented litigants contemplating commencing defamation suits.
5. Farah referred the Court to two decisions of Gibson DCJ, being Nyasulu v Naikelekele [2022] NSWDC 507 ('Nyasulu') and Randell as recent authority for the view that the legislative purpose of the concerns notice was to promote the swift resolution of proceedings by providing prospective defendants with sufficient information to understand the nature of the complaint, so that the complaint could be considered and, if appropriate, facilitate the making of an appropriate offer to make amends.
6. After setting out the requirement for content in s 12A, Farah pointed to Nyasulu and Randell and two other decisions of the Court, being MI v R1 [2022] NSWDC 409 ("M1 v R1") and Teh v Woodworth [2022] NSWDC 111, as illustrative of the way that the content requirement had been construed. The last two decisions involved proceedings commenced by litigants in person. Farah argued that the vices identified in concerns notices in some of these earlier decisions did not apply to the notices in this case and they were not otherwise defective. In particular, the notices informed George and Bassam of the harm caused, or likely to be caused, by the impugned publications. Further, in this regard, it was inappropriate to isolate, as George and Bassam had attempted to do in their submissions, a specific part of the concerns notice, as the lever to challenge the identification of serious harm. Fairly viewed as a whole, the concerns notice had identified the nature and falsity of the defamatory imputations, the circumstances of the publication, the extent of the publication and the mode of publication. They also specified a causal link between the defamatory emails and the harm, or likely harm, and described that harm as serious.
7. When that was done, what Farah had supplied were readily identifiable particulars of serious harm that were subsequently incorporated in Farah's pleading. Further, contrary to George and Bassam's contentions, it was not the case that his case was confined to only past harm. Express reference was made to likely future harm as well. It was also possible to infer serious harm from factors such as the nature of recipients and the imputations themselves.
8. Farah argued, in addition, that there was already authority (Nyasulu at [25]) for the view that it was unnecessary for a plaintiff to supply particulars of serious harm in respect to each and every publication. Given the eminence and experience of Gibson DCJ in defamation matters, it was suggested that I would be loath to depart from her Honour's view unless convinced that it was plainly wrong.
9. Farah cited the unfortunate consequences of a finding that the particulars in the concerns notice were inadequate: in circumstances where the publisher had not raised complaint about the adequacy of the particulars in the pleading itself, the publisher could still later attack the adequacy of the particulars in the concerns notice and, if successful, invalidate the notice and have the proceeding dismissed. All that would accomplish is the sending out of a revised notice and the commencement of a fresh action (after the period for making amends lapsed).

Earlier authorities

1. In considering the requirements for a valid concerns notice, I have had regard, with respect, to the recent judgments of Gibson DCJ in Zimmerman, M1 v R1; Randell and Nyasulu.

Construing the requirements for an adequate concerns notice

The text

1. Section 12A falls within Part 3 of the Act, which is titled 'Resolution of Civil Disputes Without Litigation'. A sharp contrast is drawn with Part 4, which concerns the 'Litigation of Civil Disputes'. Within Part 3 is Division 1, the division in which ss 12, 12A and 12B respectively, appear, which has the sub-heading 'Concerns Notices and Offers to Make Amends'.
2. Section 12(1) states that that the provisions of Part 3 applies if a person (the "publisher" publishes matter (the "matter in question" ) that is, or may be, defamatory of another person (the "aggrieved person" ).
3. Section 12A(1)(a) prescribes the requirements for a valid concerns notice: (i) is in writing, and (ii) specifies the location where the matter in question can be accessed (for example, a webpage address), and (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 (the "imputations of concern" ), and (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 (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
4. By s 12A(3) 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.
5. By s 12A(4), prescribes what the claimant must do if he or she receives a further particulars notice: 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.
6. By s 12A(5): 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.
7. Section 12B of the Act provides: (1) An aggrieved person cannot commence defamation proceedings unless- (a) the person has given the proposed defendant a concerns notice in respect of the matter concerned, and (b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and (c) the applicable period for an offer to make amends has elapsed. (2) Subsection (1)(b) does not prevent reliance on-- (a) some, but not all, of the imputations particularised in a concerns notice, or (b) imputations that are substantially the same as those particularised in a concerns notice.
8. In summary, by these provisions, proceedings may not be commenced without a concerns notice (s 12B), the contents of which are set out in s 12A and include, relevantly for these proceedings, a requirement to attach a notice featuring the matter(s) complained of and to provide particulars of the serious harm the plaintiff considers has been caused. If adequate particulars of serious harm are not provided in the concerns notice, so that the concerns notice does not comply with s 12A of the Act, the effect is that no such particulars have been given, and this may render the notice invalid; in which case proceedings cannot be commenced at all. The statement of claim is liable to be struck out and the plaintiff would have to commence a fresh action (MI v R1 [2022] NSWDC 409 at [23]-[28]).

Context and purposes

1. One of the general objects of the Act is to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter: s 3(d). That object had been identified since 2005. Nevertheless, as was explained in the Attorney General's Second Reading Speech, concerning the Defamation Amendment Bill 2020 [6] , the introduction of a mandatory concerns notice was a response to widespread concern that: '..too many defamation actions proceed to trial as there is insufficient incentive for parties to engage in non-litigious dispute resolution'.
2. The Attorney General singled out, and accepted, the Law Society of New South Wales' recommendation that a concerns notice should be mandatory since, without it: "the offer to amends may lack potency and, in some instances, may be overlooked".
3. The Attorney General then stated that the structure of the relevant provisions for concerns notices: ".. is intended to enhance the concerns notice process by providing the publisher with sufficient information on which to make a reasonable offer of amends. It will also encourage the aggrieved person to turn their mind to the serious harm threshold at the time of preparing the concerns notice …"
4. These two purposes are not mutually exclusive: a claimant's reasoned articulation of the serious harm will assist the publisher to make a reasonable offer to make amends and will satisfy a court that the claimant has turned his, her or their mind to the circumstance that serious reputational harm has or is likely to result from the publication before commencing a defamation suit. The former purpose might be regarded as serving the private interests of the claimant and the publisher; the latter might be regarded as serving a public interest of the Court and the community.

Analysis

1. A concerns notice is the starting point for the amends process. The amends process is a process of dispute resolution separate to and anterior to the commencement of litigation. Indeed, for smaller defamation cases, it is intended to be the pre-eminent mode of dispute resolution. The critical significance of the concerns notice is such that litigation cannot be commenced without the aggrieved person having first given it to publisher (s 12B(1)(a)).
2. Section 12A(1)(a) sets out what might be regarded as baseline requirements in a valid concerns notice. Relevantly, s 12A(1)(a)(iv) requires a concerns notice to delineate "the harm" which the aggrieved person "considers" to be "serious" harm that has been, or is likely to be, caused by the publication of the matter in question. In substance, what must be conveyed (asserted) to the publisher is the aggrieved person's opinion; which opinion amounts to a subjective assessment of the harm (the impact) that has been or is likely to be caused by the publication. In order for aggrieved person to identify in the concerns notice "the harm", the aggrieved person needs to first form the opinion that serious harm has been, or is likely to be, caused by the publication in question, by reference to the principles analysing the 'serious harm' element so outlined. In particular, conformably with the principles earlier outlined, the claimant must form an opinion of the harm measured by (a) the inherent tendency of the words and (b) their actual (or likely) impact on those to whom they were communicated. That harm need not be permanent, but it must go beyond being substantial. It is only the question whether reputational harm has or is likely to be suffered which is to be considered in this respect (and not, say, injured feelings). Having so formed the opinion (and being satisfied that 'serious harm' has been, or is likely to be, suffered), s 12A(1)(a)(iv) requires the aggrieved person to inform the publisher of that opinion and to explain how serious harm has been or is likely to be caused.
3. There is, however, no indication in s 12A, or other provisions, as to the standard of adequacy of the information provided in s 12A(1)(a)(iv) is to be assessed.
4. Certain matters can, in my view, be accepted without serious dispute. There is no requirement that the aggrieved person's assertion, based upon opinion (that serious harm has been or is likely to be suffered) must be reasonably based, although it must be manifest on the face of the notice and asserted bona fide. Further, to state the obvious, when assessing the adequacy of the contents notice, the Court is not engaging in any predictive assessment of whether or not the plaintiff will eventually be able to satisfy the serious harm element of the action.
5. Secondly, s 12A(3), by its reference to 'adequacy', in my view, indicates an objective standard in s 12A(1). It is consideration of the information provided in the concerns notice from the perspective of a reasonable publisher in the subject publisher's position. But a concerns notice is not an end in itself. It is the means to the end of encouraging a publisher who the aggrieved person considers has published defamatory matters to engage with the amends process provided for in Part 3.
6. Further, I generally agree that the intent of ss 12A and 12B in erecting a precondition to the commencement of a proceeding, is that the provisions are intended to have bite. The changes have been described as being designed to drive down the incidence of 'neighbourly disputes' and 'backyard defamation' [7] (what I have described, for want of any better abbreviation, as 'small defamation' disputes). It would follow, therefore, that a bare assertion that harm has been or is likely to be suffered is insufficient. That would not assist the publisher as it considers the amends offer. Nor would it be likely that such an indication could satisfy the Court that the aggrieved person has turned its mind to satisfaction of the serious harm element of the action.
7. Beyond these relatively general observations, Parliament has left it to the Courts to determine what is adequate.
8. The structure of s 12A indicates that although a concerns notice under s 12A(1) is the beginning of the amends process, it is not necessarily the end of it. Section 12A(5) indicates that if a publisher has given an aggrieved person a further particulars notice, that person's failure to provide it (in accordance with s 12A(4)) has the effect that the aggrieved person will be deemed not to have given a concerns notice. Thus, the reference in s 12B(1)(a) to a concerns notice ought to be read as incorporating future consideration by a Court not only a reference to a concerns notice under s 12A(1), but potentially also a further particulars notice given under s 12A(4) in response to a request under s 12A(3).
9. There is, in my view, an underlying policy concern indicated by this structure. Section 12B(1) is entirely beneficial to a publisher. But with that, given Parliament's preference for small defamation disputes to be determined through an amends process, the corollary is that a publisher in receipt of a concerns notice is expected to act reasonably in response to it if it considers that the concerns notice is defective, in the sense of not providing enough information to enable it to consider how and whether to engage in the amends process. A Court's adjudication upon the adequacy of a concerns notice under s 12B(1)(a) not only looks to how a reasonable publisher in the publisher's position would understand what was conveyed, but may also consider the reasonableness of any omission by the publisher to request a further particulars notice.
10. To be sure, there may be some concerns notices that are manifestly inadequate; in which a Court would not expect a reasonable publisher to request a further particulars notice. For example, a concerns notice that contains a bare assertion that serious harm has been or is likely to be suffered, without explication of the basis or bases, being contrary to the requirement, would likely be regarded as inadequate.
11. It is where an aggrieved person has apparently sought to comply with the requirements in s 12A(1) that the question of its adequacy is likely to be more contentious. For such cases, the cure for incompleteness in the provision of information should to some extent lie in the hands of the publisher. To my mind, the perspective of a publisher, who considers a notice under s 12A(1) as inadequate, sits back, runs down the time for the amends process and then takes the point that the inadequacy of the notice is such that it should invalidate the proceeding is not in keeping with the legislative objects that are directed to attempting to have small defamation suits resolved under Part 3. That approach would render superfluous the provisions in s 12A(3)-(5). If the publisher thinks that a concerns notice under s 12A(1) is incomplete it would prudently give a further particulars notice to keep alive the viability of the amends process as the premier mode for dispute resolution. That will serve the private interests of the aggrieved person and publisher. It will also serve the public interests for the community and courts in minimising the incidence of the litigation of small defamation disputes, which were indicated earlier. If a publisher does, and the aggrieved person is unable or unwilling to provide further information within the specified time period, the publisher's position in seeking to invalidate the proceeding under s 12B(1)(a) will be strengthened: a Court may more likely regard the concerns notice to be inadequate so that a proceeding will be invalidated. But if the publisher does not, it runs the risk of the Court inferring that the publisher has formed the view that it has received adequate information to consider its response as part of the amends process.
12. Addressing only the concerns notice itself without reference as to how a reasonable publisher might respond should be as simple and as practical as possible. Further, in my view, a Court should be cautious about effectively imposing excessively prescriptive requirements. The requirement, for example, in s 12A(1)(a)(iv) is the provision of 'information'. It is true that the word 'particulars' is used (in s 12A(3), (4) and (5)) which is implicitly also indicated in s 12A(1). That does not mean that it means the same thing, or serves the same function, as particulars to allegation to a pleading in litigation. For myself, I would respectfully be reluctant to fully assimilate that requirement with the rigour of the provision of particulars in a concerns notice to allegations in a pleading in litigation. Pleadings and particulars in litigation serve important functions in terms of procedural fairness which is a vital hallmark of litigation, involving the exercise of judicial power in the quelling of disputes. It is not self-evident to me that the provision of information in an alternative mode of dispute resolution to the Court system for small defamation disputes is attended by the same rigour.
13. Although I am reserved about a complete analogy between the information provided in a notice with particulars to a pleading, the analogy is useful in at least one sense. It is well understood amongst litigators that a defendant who makes no complaint about the particularity of generally, vaguely or even ambiguously worded allegations but refrains from seeking further particularity when the opportunity is presented can hardly complain if a plaintiff prevails on the basis of a vaguely, generally or ambiguously worded allegation. It would be a rare case, for example, if a defendant successfully brought an application for strike out or summary dismissal of a plaintiff's claim on the basis of barely pleaded allegations where the defendant has not requested further information prior to the approach to the Court.
14. So too with s 12A: if a publisher passes up the opportunity to ask for more in the period in which the amends process is to occur if it takes the view that the information is insufficient of incomplete in order for it to understand how an aggrieved person asserts that serious harm has been or is likely to be sustained by a publication, then a Court may be entitled to infer that the publisher sufficiently understands the aggrieved person's 'concern' about serious harm having been, or likely to be, sustained by the matter(s) complained of.
15. This is all the more so, where a publisher conveys to the aggrieved person that the information provided in a concerns notice is irrelevant, immaterial or inconsequential to the publisher's consideration of whether or not it will seriously engage with the amends process, then that also may be taken into account when considering the adequacy of the information provided in the concerns notice. To reason to the contrary would be to ignore the structure of s 12A as a whole and diminish the likely effectiveness of the amends process for resolving small defamation disputes.
16. I do not overlook the concern, at the other end, of some aggrieved persons not being seriously interested in the amends process. Some persons aggrieved by a publication may be hell-bent upon commencing litigation and see the amends process as a cumbersome formality to be endured before litigation can be commenced. Such attitude might result in uninformative or unhelpful concerns notices. Two answers to this problem may arise (putting aside how realistic the problem really is given the notorious cost and uncertainties with litigation). First, there are minimum baselines I have touched upon; re-inforced by provisions like ss 12A(4) and (5) which will force an aggrieved person to supply the information. Secondly, as the survey of cases already decided by Judge Gibson relating to s 12A indicate, a Court will be astute to concerns notices which are so incomplete as to call into question the bona fides of an aggrieved person's engagement in the amends process; manifested, by bare assertions without bases. There may be cases where a concerns notice is so obviously defective in the provision of the requisite information that a publisher could justifiably ignore it and, on the lapse of the period for the amends process, it could persuade the Court that the concerns notice is inadequate and, accordingly, the suit is invalid.
17. The approach I favour eschews any notion of a 'one-size-fits-all', rigidly prescriptive or formulaic approach for determining the adequacy of a concerns notice, for the purpose of s 12B(1)(a). The approach means that, depending on the circumstances:

• the Court may draw inferences that adequate information about s 12A(1)(a)(iv) has been given not only from bare assertions of serious harm, but by other matters in the concerns notice requiring articulation, in s 12A(1)(a)(i)-(iii) and (where relevant) (v).
• it is inappropriate for the Court to fasten only upon that part of the concerns notice specifically earmarked, say, under the sub-heading 'serious harm'; however desirable it may be to have such sub-headings or other means of illuminating the discrete requirements in s 12A(1)(ii)-(v).
• information can be conveyed expressly and/or by implication;
• whilst it is necessary for an aggrieved person to set out the imputations particularised in the concerns notice, it is unnecessary, in the case where there is multiple publications complained of, for the purpose of s 12A(1), for the aggrieved person to link, connect or tie imputations to specific publications; and
• it is unnecessary, for the purposes of s 12A(1), for the aggrieved person to specifically identify the serious harm for each and every matter complained of.

1. It will be apparent from the last two dot points that I agree, with respect, with the conclusions of Judge Gibson in Nyasulu at [25] and [30] respectively.
2. In so finding, I do not discount the force of the constructional argument which the defendants advance here, which is that, in the case of multiple publications, a plaintiff will have to prove that serious harm was proven in respect to each and every publication to complete the cause of action. But whether that requires an express statement to that effect, in respect to each and every matter complained of, in a contents notice is another matter.

Application

1. In this case, by its concerns notice, Farah has specifically identified recipients of the publications, has asserted that he has relationships with those recipients - principally as a professional and subject to the governance of some of them - and a publisher in the position of these defendants can deduct from the notice that Farah has asserts that the inherent tendency of the imputations has been, or is likely to, harm his reputation with those recipients.
2. I agree that the statement that Farah's relations with these entities as being 'adversely' affected is conclusionary. But when reference is made to:

• the statements of his position, occupation, experience and standing;
• the inherent tendency of the words to cause serious harm,
• the circumstance of the dissemination of the publications to the wide categories of persons or entities likely to exercise professional or (predominantly local) governmental power over the plaintiff (who would not necessarily be presumed to be close associates to the plaintiff and, on that account, may instinctively be disinclined to believe the imputations),
• the references in the notice to the plaintiff's need to remain "in good standing" with the same councils, professional and regulatory bodies to "maintain his business and livelihood",
• the assertion in the concerns notice that the 'Defamatory Emails (a defined term, referable to each and every publication in Schedule A) relevantly caused Farah to suffer serious harm it is apparent to reasonable persons in the position of George and Bassam that expressly and/or impliedly, Farah is asserting that in each and every case of the matters complained of his reputation has actually been, or is likely to be, seriously harmed. It may even be the case that Farah, as a design professional may, like other professionals, is subject to expectations of being of good character and standing. It matters not that in the narrow section of the concerns notice specifically devoted to 'serious harm' the actual particulars supplied are directed only, in substance, to actual harm and not likely probable harm. I may be wrong, but it appears to me that Farah wishes to put his case into that relatively rare species of case where serious reputational harm can be drawn inferentially from all of the circumstances. It is not the Court's function, when assessing the adequacy of the concerns notice to pre-empt, preclude or prevent the aggrieved person from commencing a defamation suit to run such a case.

1. In my view, it is not necessary for the purposes of a concerns notice in s 12A(1), that the aggrieved person descends to explaining reactions from recipients; even if it might be helpful to the publisher to know of this. Indeed, as was reflected in some of the argument before the Court, argument about the adequacy of the concerns notice shaded into argument about whether Farah was likely to be able to establish the serious harm element to its action. Arguments to the effect that it had not been shown that anyone in particular had responded adversely to Farah after the publication was a prime example.
2. I respectfully agree with Gibson DCJ in Nyasulu, for the reasons her Honour gave at [25], which posits that it is unnecessary, for the purposes of s 12A(1)(a)(iv) (and s 12B(1)(a)) for Farah to identify in the concerns notice serious harm in respect to each and every one of the many matters he complains of. In addition, where, as here, similar imputations are made in respect to multiple matters complained of, over a short period and where there is overlap in the recipients, that it is artificial and impracticable to engraft such a requirement in s 12A(1)(a)(iv). If George and Bassam required information of that kind to determine whether and how each would engage in the amends process, it was up to each of them to ask Farah to give them that information.
3. Given the issue has not been argued before me, it is unnecessary to decide the hypothetical question, directed to s 12A(5), of what would have occurred under s 12A(3), if, George and Bassam gave Farah a further particulars notice seeking further information about the serious harm associated with each and every specific matter complained of, or seeking further information about the reactions of recipients who had read the matters complained of, and if those requests for particulars were unanswered.
4. As indicated, my view as to the adequacy of the statement of serious harm is strengthened by the circumstance that George and Bassam did not avail themselves of the facility of seeking any further particulars notice under s 12A(3) for further particularity of the serious harm sustained. If they had done nothing more, I would have been inclined to infer from such omission that they were sufficiently informed about the requirements of the concerns notice to enable them to participate in the amends process if they wanted to.
5. However they did do something more. They acted in a way that might be regarded as goading Farah into commencing the suit, thereby evincing their unwillingness to seriously engage in the amends process. It is inapposite or incongruous that they now approach the Court to invalidate proceedings on the implicitly false premise, necessarily retrospective, that they did not have enough information from Farah's concerns notices to consider whether to make an offer to amends and what that might comprise.
6. Farah also identified hurt, distress and psychological trauma. None of these forms of harm would satisfy the requirement of serious harm, for the purposes of s 10A (although that is not to say that they are irrelevant to Farha's claim for damages more generally and, in this way, it was helpful for the publisher to see those forms of harm referred to in the concerns notice for other reasons). It was not suggested that the inclusion of the reference to these other aspects of harm, beyond reputational harm, invalidated the notice under s 12B(1)(a).

application to strike out statement of claim

1. This application was brought only in the alternative, in the event that the Court did not accept the defendants' primary application regarding its criticism of the adequacy of the concerns notice.
2. It was common ground that if the Court accepted the defendant's complaint, the remedy would not extend more broadly than a strike out of the statement of claim - it would be inappropriate to dismiss the proceeding.

The defendants' submissions

1. George and Bassam complain that the pleadings contained imputations that were not particularised in the concerns notice.
2. Two points in particular were raised. First, as a matter of construction, it was said that where there were multiple publications, it was appropriate for the aggrieved person, in its concerns notice, to separately identify the imputations arising from each publication. As a matter of fact, from the defendants' perspective, Farah had tried to do this.
3. Secondly, George and Bassam submitted that in the statement of claim, s 12B prevented Farah from attaching imputations to matters complained if that had not been so linked in the concerns notice. There were two associated arguments. The first was that, in the pleading, where there were multiple matters complained of, Farah could not rely upon imputations from a matter complained of which had not been tied or linked to the matter complained of in the concerns notice. He could not 'mix and match' imputations identified in the concerns notice against matters complained of in the pleading where that had not been done in the concerns notice. Secondly, in his pleading, whilst Farah was entitled to abandon certain imputations that had been raised in the concerns notice, he could not add to the imputations by creating, in effect new ones. He might add only imputations that were substantially similar to those raised in the concerns notice.
4. The defendants argued that Farah's pleadings suffered from each of these suggested vices: in his pleading, he essentially tacked on additional imputations to the multiple matter(s) complained of, contrary to what he had done in his concerns notice and sought to justify doing so simply because the imputation happened to be referred to somewhere in the concerns notice. Secondly, if this first contention was not accepted, the defendants submitted that he added fresh imputations (or those that could not be said to be "substantially the same") which had not been set out in the concerns notice at all.

The appropriate procedural course to consider these arguments

1. Subject to a qualification, In the consideration of these arguments, the parties agreed that it was appropriate for the Court to consider questions of principle and, depending on its views on those matters, to leave it to the parties to confer between themselves which imputations (if any) should be struck out.
2. The qualification was that Senior Counsel for the plaintiffs' primary position was that he had come to Court to defend an application for summary dismissal only; and not a strike out application.
3. As indicated during the course of argument, it was not expedient to conduct hearings on interlocutory matters in tranches. Rule 18.6 of the Uniform Civil Procedure Rules 2005 (NSW) proceeds on the basis that, to the extent practicable, all interlocutory applications should be dealt with at the same time. The defendants' written submissions (MFI 1), prepared a good 3 weeks before the hearing, expressly (in paragraph 34) indicated that they sought relief, in the alternative, for strike out. In those circumstances, it is not unfair to the plaintiff, and I propose to deal with the issues in principle raised by the parties and, to leave it to the parties to confer as to appropriate orders in conformity with those reasons.

The plaintiff's submissions

1. Farah argued that there was no right or wrong way to provide the information required to be contained in a concerns notice (Nyasulu at [30]). Section 12B(1)(b) did not specify the way in which imputations were to be particularised in the concerns notice. The purpose was to inform the publisher of the imputations that the aggrieved person considers may be carried. That can be done by listing the relevant imputations all in one place or separately. Here, Farah clearly did identify in the concerns notice the imputations (thus satisfying the requirement in s 12A1)(a)(iii)).
2. The defendants' construction of s 12B required reading into the provision or implying an additional requirement in a subsequent pleading linking pleaded imputations with matters complained of in a manner tied to the concerns notice. This was unjustified for the reasons considered, but rejected, by Gibson DCJ in Nyasulu at [30].
3. Section 12B(2)(b) provides that the pleaded imputations may be substantially the same as those particularised in the concerns notice. Farah submits that so long as the pleaded imputations encapsulate or reflect the same defamatory "sting" as the imputations particularised in the concerns notice, they may be relied upon. This was the situation here.

The defendants' submissions in reply

1. Senior Counsel for the defendants argued that the plaintiff's construction (accepted by Judge Gibson) should be rejected. It could undermine the amends process of which the concerns notice was part of. An aggrieved person might, as Farah had done, carefully go to the trouble of identifying the imputations associated with each matter complained of and (putting aside other matters) a publisher may take a course of action in reliance upon what was said in the concerns notice. If the amends process fails and the aggrieved person commences litigation, the plaintiff should not be permitted to enlarge the case previously stated in the amends process by 'mixing and matching' imputations referred to somewhere in the concerns notice but not tied to any particular matter complained of.

Consideration

1. I agree with the plaintiffs that there is no requirement in s 12B(1)(b) that in any statement of claim (brought after the amends process) that the way in which imputations are pleaded must be tied or linked to the matters complained of in the same fashion as occurred in the concerns notice. That would represent a significant incursion in the liberty of a pleader which is not supported by the statutory text. The only restriction imposed on the content of the pleading by s 12B(1)(b) is that the alleged imputations must previously have been particularised in the concerns notice. The provision does not say how. I agree, with respect, to what Gibson DCJ said in Nyasulu at [30] in this regard.
2. Further, I would add that I do not find persuasive the argument, which I understood as being tantamount to a complaint of unfairness, that an aggrieved person who cited, in a concerns notice, an imputation for one matter complained of (A) and who could have, but did not, invoke the same imputation for another matter complained of (b) in the same notice, should be precluded from doing so in the new form of dispute resolution for defamation disputes, being litigation, which is the subject of Part 4 of the Act. The present focus of inquiry is on the statement of claim, in litigation, commenced on the premise that the amends process in Part 3 has not resolved the parties' dispute. Although s 12B erects certain barriers to the commencement of litigation, assuming they are surmounted, a defendant should not be entitled to ask the Court to look back and determine that, on the basis of what occurred in the amends process in Part 3, additional fetters or restrictions should be imposed upon a plaintiff in a defamation proceeding. The parties have 'moved on' from the amends process to the very different process of dispute resolution in which the plaintiff has enlisted judicial power to resolve the on-going dispute. So should the Court.
3. There is of course, as the combination of ss 12B(1)(b) and 12B(2) makes plainly apparent, an obvious and express restriction in a pleading of imputations. The effect is that no new, or additional imputations are to be included in a pleading which are not the same or substantially similar to those that have been particularised in the concerns notice.
4. As I understand the position, as yet there has not been any exposition of the expression 'substantially the same' where that appears in s 12B(2)(b). The plaintiffs emphasised that the practical test was whether the 'sting' was the same. The defendants did not disagree with that, but encouraged the Court to drill deeper as to how that measure was to be ascertained. In that regard, the defendants pointed to authority of John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 per McColl JA at [187] [8] , where as a rule of thumb, it was observed the question effectively whether the same facts could be relied upon to prove the different imputations.
5. I accept that the defendants' suggested measure is appropriate. It is inherently likely that, in the absence of manifestly contrary intention, the expression in the new statutory provision would be similarly interpreted as it was in defamation law before the recent amendments.
6. Although, the parties (all represented by experienced senior and junior counsel) have agreed to undertake the task of trying to reach a consensus of what might satisfy s 12B(2)(b), to forestall further disputation it might assist them if I give some examples as to how, on a preliminary view, I am inclined to find on the question whether there is a difference in substance as between the imputations set out in the concerns notice and those set out in the pleading. 1. "The plaintiff is so fueled with narcotics that he needs to be committed to a rehabilitation institution" is not substantially the same as "The plaintiff is seriously addicted to narcotics". First, there might arguably be multiple stings to the imputations. Secondly, there are different facts that would need to be proven to establish the former sting. 2. "The plaintiff is a danger to children because he has been charged with serious sexual harassment" is not substantially the same as "The plaintiff is a danger to children because of his acts of sexual harassment". There is significant factual difference between something that is charged in the former, which involves only an accusation and the assumption in the latter that acts of sexual harassment (whether or not they are serious) have occurred. 3. "the plaintiff is guilty of sexual assault and domestic violence against his children and his ex-wife" is not substantially the same as "the plaintiff committed domestic violence against his ex-wife and children" as the latter imputation omits reference to the additional matter of the commission of sexual assault against the ex-wife; which should not be equated to mere domestic violence. 4. "the plaintiff is liable to be charged with criminal and gang-related activities" is substantially the same as 'the plaintiff is reasonably suspected of being criminally involved in gang related activities".

Summary and orders

1. To summarise, the defendants' challenge to the adequacy of the concerns notice fails. Whether and to what extent the statements of claim survive in their current form depends on the question, which the parties are endeavouring to determine for themselves, as to whether, in the light of the resolution of issues of principle in these reasons, impugned parts of the plaintiff's existing statements of claim can survive strike out. A finite opportunity will be given to the parties to confer for this purpose and it will be hoped that most, if not all of the assessments of individual imputations can be mutually resolved without adjudication by the Court.
2. In terms of orders and directions, these are as follows: 1. The defendants' applications to dismiss the proceedings for non-compliance with s 12A(1)(a)(iv) of the Defamation Act 2005 (NSW) are dismissed. 2. The parties are to confer, within a period expiring 21 November 2022, for the purpose of endeavouring to resolve consensually the survival of the existing imputations in the statements of claim. 3. In the event that the parties cannot agree, the defendants are to notify my Associate (by email) indicating points of disagreement by 22 November 2022. 4. The two proceedings are adjourned for mention in the Defamation List on 24 November 2022 at 9:00am when the parties may expect that: 1. provision will be made for a timetable for written submissions on any residual arguments on the validity of the existing pleadings (if appropriate), with such dispute to be determined on the papers; 2. a timetable will be set for the filing and service of any Amended Statement of Claim (if appropriate); 3. a timetable will be set for the determination and resolution of the defendants' applications to further amend their Defences; and 4. the costs of the defendants' application to dismiss the proceedings or (alternatively) to strike out the statements of claim (for non-compliance with s 12B of the Defamation Act 2005 (NSW)) and the plaintiff's strike out applications against the specific defences (justification and contextual truth) raised in the Defences are reserved.

Endnotes

1. So described by Rares J in Barilaro v Shanks-Markovina (2021) 393 ALR 469 at [8]
2. principally Lachaux v Independent Print Ltd [2020] AC 612
3. These are emphasised in D Rolph, 'A serious harm threshold for Australian Defamation Law' (2022) 51 Australian Bar Review 185 at 191, 202-204
4. This was order 1 made by Levy SC DCJ on 21 July 2022
5. M1 v R1 [2022] NSWDC 409 at [25]; Teh v Woodworth [2022] NSWDC 411 at [26]
6. Hill v Bolt (1992) 28 NSWLR 329 at 331, 336-7 (motor accidents legislation) and Baker v Rothmans of Pall Mall (Australia) Ltd [1999] NSWCA 245 at [16]-[20]
7. Hansard, Legislative Assembly, 29 July 2020
8. NSW Department of Justice, Council of Attorney-General Review of the Model Defamation Provisions - Background Paper (December 2019, p 25) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2022