Nyasulu v Naikelekele

The relevant principles of law

1. Section 3(d) of the Act, under the heading "Objects of Act", states that the fourth of these objects is "to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter". The emphasis on speedy and non-litigious means of resolution in s 3(d) is central to the functioning of the legislation in general and the concerns notice procedure in particular.
2. Section 10A of the Act identifies "serious harm" as an element of the cause of action for defamation. The publication must be established to have caused, or to be likely to cause, serious harm.
3. Section 12A(1) requires the aggrieved person to provide a concerns notice which, inter alia, informs the publisher of the defamatory imputations and the serious harm arising. This effectively puts a "brake" onto any claim for defamation for a 28-day period after the notice is served (and, if a request for particulars is made, for a longer period), a requirement intended to promote settlement discussions.

The purpose of the concerns notice procedure

1. In the Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25), the dangers of a proliferation of "neighbourly disputes" and "backyard defamation" were noted. The purpose of mandatory concerns notices is to promote swift resolution of such matters, without recourse to litigation, by use of the offer of amends process where appropriate. The purpose of the ability to respond by offer of amends is to achieve a settlement of the whole of the proceedings, and to do so informally and outside the court system. Previously, the undesirable situation had been that a plaintiff could simply serve a statement of claim and treat it as a concerns notice (Mohareb v Booth [2020] NSWCA 49; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283; s 12A(2) was specifically enacted to overcome the effect of these appellate decisions).
2. This purpose is relevant when considering whether the plaintiff is obliged to plead imputations and/or serious harm separately.
3. In broad terms, Ms Hart effectively submits that the rules of statutory interpretation require ss 10A, 12A and 12B to be interpreted as being a desire to discourage these minor defamation actions by imposing a notice procedure so strict in its requirements for specificity that only those plaintiffs who had no real alternative would start defamation proceedings. She submits that the language of these three statutory provisions, with their use of terms such as "specifies" (Gantry Acquisitions Corp v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554 at 569; Beckingham v Browne [2021] VSCA 362 at [52]), requires a high degree of precision which can only be answered by a meticulous setting out of each publication, followed by each set of imputations, followed by the specific harm flowing from each publication. I would interpolate, however, that while there are references to information which must be "specified" in these statutory provisions, namely the requirement in s 12A(1)(a)(ii) (for the site to be specified) and in s 12A(5) (re "specified" particulars), there is no requirement to "specify" anything else, including serious harm.
4. Ms Hart further submits that the use of the word "matter" in these provisions in the singular means that each of the matters complained of must be separated out and serious harm proved to arise separately from each. "Matter" is defined in s 4 of the Act as applying to a wide range of publications. I note, however, that the term "matter" is used consistently in the singular throughout the legislation.
5. In similarly broad terms, Mr Sibtain SC submits that the legislative purpose of these provisions was to encourage early resolution by requiring plaintiffs to supply information of a wider kind than would be found in a statement of claim and that nothing in the legislative language or timeframe for concerns notices suggested a requirement that they be constructed with the care of a pleading. He submits that the concerns process is being "weaponised" by applications of this nature which are designed to cut down otherwise indefensible claims.
6. While Mr Sibtain SC's concerns are understandable, I do not share them. This is because applications for notices (whether statutory or pursuant to an agreement) to be set aside as invalid are extremely common and there are principles of construction which are of long standing to apply. These challenges to validity may be based upon statutory interpretation (Bong Bong Town Centre v Illawarra Clay Target Club [2015] NSWSC 316), or contractual notices, where "[t]he principles of construction of notices are not relevantly different to those governing the construction of contracts" (Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467 at [67], citing Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 and Salta Constructions Pty Ltd v St George Bank (2014) 45 VR 245, 253-4 [28]); see also Tyco Fire & Security & Anor v Norfolk Mechanical & Ors [2007] NSWSC 585), or on factual issues such as whether a time period has passed or a notice is even applicable (Bangash v Patel [2021] ONSC 76 (whether a notice under the Libel & Slander Act RSO 1990 C. L. 12 (Ontario) was required for a social media publication)).
7. As to the application now before the court, there is a helpful discussion of the circumstances where breaches of statutory requirements may result in invalidity in The Baptist Union of New South Wales v Georges River Council [2017] NSWSC 347. There is a similar expectation as occurs in the analysis of contractual notices, where the issue is how a reasonable recipient would have understood the communication (Prospect Resources Ltd v Molyneux [2015] NSWCA 171 at [70] per Beazley P, referring to Mannai).

The particularisation of serious harm in the concerns notice

1. Ms Hart submits that the absence of a heading "Particulars of serious harm" is fatal, as is the failure to demonstrate the causative link between each of the publications and the serious harm each gives rise to.
2. Ms Hart is correct to say that the absence of a heading could be significant, but careful analysis of the whole of the concerns notice demonstrates that not only are there such particulars, but there are nearly eight pages of them, as the following summary demonstrates: 1. The general tenor of the first two pages is that the defendants' series of posts individually and collectively caused personal distress and humiliation to the plaintiffs through their ministry, as they have been deluged with messages by the thousands of readers who saw them. The defendant made "extremely serious" allegations damaging to the plaintiffs' reputations in the eyes of these persons. 2. This includes four paragraphs of details (headed "Relevant Cultural and Reputational Matters") and a description (on pages 1 - 2) of the plaintiffs' work in the Ministry, not only in Australia but at other locations, and how that work has been affected. 3. There is then a heading: "The involvement of You and Your daughter in the ministry" setting out how the defendant left Streams while her daughter chose to remain. 4. The defendant is next told about the responses of the members of Streams to the publications (submissions, paragraphs 21 - 24). This section describes some of the responses of the readers of the matters and the impact this has had on the plaintiffs' reputation. 5. The next heading, "The defamatory publications", identifies each of the publications made between 8 and 9 September made by the defendant under a pseudonym. The texts of each of the publications and the publishee are both set out. 6. This is followed by the defendant's list of the imputations of concern, on page 6 of the concerns notice. This list of 22 imputations sets out that the matters complained of "carry numerous defamatory imputations, including…". 7. The next heading is "Damage caused and ongoing". This sets out precise figures for the extent of publication. The assertion is made that the Facebook page (erroneously described on page 8 as "this letter") has reached 28,731 people across the world, with 10,024 post engagements, 5,493 link clicks and 4,512 persons watching an embedded video for more than 3 seconds. This is followed by "examples" of public exchanges between the defendant and the persons to whom she addressed her posts. It concludes by noting that other content has been posted on "other social media locations." This is clearly an ongoing issue; Mr Sibtain SC referred in his oral submissions to publications to over 80,000 people and to the need for further particularisation in the future. 8. The letter concludes by setting out the orders that will be sought, including a figure for general damages and a claim for exemplary damages (which I assume is an error, in that there should be a separately assessed figure for aggravated damages pursuant to s 35(2B) of the Act. Exemplary damages are not available: s 37 of the Act.) 9. The letter then concludes with an invitation to make amends for the hurt and damage to reputation suffered.
3. Miss Hart's first complaint is the absence of a heading referring to "serious harm" and identification of what that harm may be, which she submits amounts to a total failure to provide particulars of serious harm.
4. I agree that a heading for "serious harm" should have been inserted but, in practical terms, what the plaintiffs' solicitors have done is to set out at length what harm the defendant's publications have caused, over a series of headings on eight pages of the letter.
5. The words "serious" and "harm" are asserted not to appear. I note, however, the following: 1. The "matters" raised in the publications are described as "extremely serious" (page 1 of the letter) allegations that have caused the plaintiffs damage to reputation as well as actual damage. 2. There is a heading "damage caused and ongoing" on page 8 providing extensive material about the damage the plaintiffs consider to be likely to happen, which forms part of the "serious harm" fact matrix anticipated in s 10A(1).
6. The first question is whether, where there is no "serious harm" heading, serious harm may be established.
7. I am satisfied that the defendant is not left to wonder about either the seriousness or the harm, both of which have been addressed in detail. It is unfortunate that the drafter of this concerns notice omitted such a heading but as there is adequate particularisation for the purpose of understanding the nature and parameters of the serious harm, the particulars provided are sufficient. If the heading "Damage caused and ongoing" were replaced by "Serious harm particulars", there would be little left to complain about. In those circumstances, sufficient detail of serious harm has been provided.
8. Ms Hart's next submission is that serious harm must be set out separately for each of the matters complained of. Any publication for which serious harm is not particularised, with specific focus on proof of causation, should not be permitted to go forward.
9. Mr Sibtain SC responds that there is no mandate for reading in such a requirement into s 12A. The concerns notice, which is aimed at promoting resolution outside the court process, is not a "survivor of the fittest" procedure designed to identify the publications likely to survive; it is an informal process aimed at resolving all of the issues between the parties so that the matter does not proceed to the court.
10. Mr Sibtain submits that even if this were not the case, such a requirement would not necessarily apply to every case and, in particular, not to the publications in these proceedings. Not only are these publications on the same website, to the same Church readership (this being a public Facebook page), many of whom are likely to have read more than one of the posts, and over a very short two-day period, but their content is very similar.
11. The aggrieved person is obliged to set out every publication upon which he or she relies so as to receive an offer of amends for all of these where appropriate. I agree with Mr Sibtain that the concerns notice system would fail if the plaintiff was obliged to particularise them individually so that the defendant could pick and choose which part of the curate's egg was acceptable. Even if separate particularisation was required (which I do not accept), the similarity in content and audience of these publications over such a short period of time would render such a process artificial.
12. The next challenge raised by Ms Hart is to the manner in which the imputations are pleaded.

Failure to set out the imputations arising separately from each of the matters complained of

1. Ms Hart submits that the obligation to plead each imputation as arising from each publication can be drawn from the use of the word "matter".
2. The drafting of s 12A(1) refers to "matter" in two places. The first is the location where the matter in question can be accessed and the second is to inform the publisher of the imputations the aggrieved person "considers are or may be carried". The term "matter" in both circumstances clearly includes situations where more than one publication is involved, but the term "each matter" is not used.
3. Ms Hart submits that it is general practice to list each imputation drawn from each publication and that there is no other way permissible to attend to this task. Listing all of the imputations arising from the publications as a group would not therefore be permitted.
4. Adopting the general rules of construction of notices set out by Lonergan J in The Baptist Union of New South Wales v Georges River Council, I do not consider that there is a "right way" or a "wrong way" to provide this information. This is a notice provision, not a court pleading. An aggrieved person may therefore be able to comply with the obligation to inform the publisher of these imputations simply by listing them all in the one place, just as he or she may be able to comply by listing them separately for each publication. The concerns notice is a notice, not a pleading.

The "consensus argument" that in the 21st century, these publications are not even capable of defamatory meaning

1. Ms Hart, relying on the "consensus argument" in Sube as well as on Falkenberg v Nationwide News Pty Ltd, submits that in modern society, particularly taking into account the manner in which social media posts are read in a somewhat cynical fashion, the matters could not give rise even to defamatory meaning, let alone serious harm, as comparison to the devil would not be taken seriously; it was evident from the matters complained of that nobody took the defendant literally or believed what she said.
2. There are a number of judgments where courts have held that allegations of witchcraft (WIC Radio v Simpson [2008] 2 SCR 420 at [97], citing Loukas v Young [1968] 3 NSWR 549), being the devil (Falkenberg v Nationwide News Pty Ltd) and even sleeping with the devil (Peschmann v Quayle (WD, Pa., 13 August 2019) are rarely likely to be defamatory in "a modern developed society", because such an imputation "would not be believed and therefore would not harm the plaintiff's reputation" (WIC Radio v Simpson at [97]).
3. Mr Sibtain submitted in response that it was "not trivial" to say that the plaintiffs were the devil incarnate and running a satanic cult.
4. This submission may be disposed of in relatively brief terms. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, the plaintiff, a gynaecologist, brought proceedings for defamation for being called an abortionist. The action was struck out at first instance on the basis that the word did not have a particular defamatory meaning. On appeal (referring, inter alia, to imputations of being a communist), Glass JA noted the differing views in other jurisdictions: "There is no need to document the existence in the community of a deep factional divide on the issue of abortion. The pro-abortion lobby approves the existing grounds for lawful termination of pregnancies and seeks to have them extended. The anti-abortion lobby contends that all abortion is morally wrong and that no abortion should be lawful. So the description of the plaintiff as a lawful abortionist will excite both approbation and disapprobation in different sections of the community. How does the law of defamation accommodate these discrepant social attitudes? There is a body of English authority which suggests that the standard of opinion is that of "right thinking people generally": Tolley v J S Fry & Sons Ltd [1930] 1 KB 467, at 479; Sim v Stretch [1936] 2 All ER 1237, at 1240; 52 TLR 669, at 671. The corollary to this proposition was that an imputation of conduct which disparaged the plaintiff only in the eyes of a limited class was not defamatory; Byrne v Deane [1937] 1 KB 818; Myroft v Sleight (1921) 90 LJKB 883; Clay v Roberts (1863) 8 LT 397. In the United States, on the other hand, an imputation can be defamatory if it injures a man in the eyes of "a considerable and respectable class in the community" though it be only a minority, Peck v Tribune Co 214 US 185, at 190 (1909), in which Holmes J said "liability is not a question of a majority vote".
5. The Court of Appeal set aside the first instance judgment, holding that an imputation of being an abortionist was sufficiently precise in meaning to be defamatory. The same principles should apply to matters asserted to give rise to serious harm. Reference to twenty-first century standards is no basis to assert that certain terms are now no longer defamatory. There could be no better example, given recent decisions of the American courts, than that of being called an abortionist today.

The particulars of serious harm in the statement of claim should be struck out

1. This complaint may be dealt with briefly. The plaintiffs currently have an entitlement to amend as of right and have put the defendant on notice of their intention to revise and enlarge the particulars of harm. If so, the only order the court would make, at the most, would be for the provision of further particulars. In those circumstances, it is unnecessary to make any orders concerning the current particulars. Ms Hart did not make submissions to the contrary.

Concluding remarks

1. I have rejected all of the defendant's challenges to the concerns notice, which I am satisfied is valid. The application to dismiss the proceedings is refused.
2. Ms Hart appeared for the defendant as part of the pro bono scheme pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.36. The court is grateful for the assistance of practitioners who participate in this scheme.
3. I was not addressed as to costs or a timetable for the future conduct of these proceedings. I have listed the proceedings for directions for the next Defamation List date (10 November 2022), on which date the parties may hand up Short Minutes of Order.

Order: 1. Defendant's application for summary dismissal on the basis that the concerns notice is invalid is dismissed. 2. Costs reserved. 3. These proceedings listed for directions in the Defamation List on 10 November 2022 for a timetable for further pleadings.

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: 27 October 2022