Piggott v Van Der Veen

Category: Procedural rulings

Parties: Plaintiff: Mark Piggott
Defendant: John Van Der Veen

Representation: Solicitors:
Plaintiff: self-represented
Defendant: BlackBay Lawyers

File Number(s): 2025/00257062

Publication restriction: Nil

Judgment

The application before the court

1. The plaintiff, by statement of claim filed on 6 July 2025, brings proceedings for defamation for emails sent to himself and to a conference venue site (info@winterfest.com.au) by the defendant. The texts of these emails and the dates on which they were sent are unspecified; the only description of them is set out in the “acts of defamation” referred to in paragraph 8 of the pleading, which appears to roll up all correspondence between the plaintiff and defendant over a period of about ten months.

2. The defendant, by notice of motion filed on 3 September 2025, seeks the dismissal of these proceedings on the grounds that they are (in relation to the publications prior to the 12-month period prior to filing) statute-barred under s 14B of the Limitation Act 1969 (NSW) and, further, disclose no reasonable cause of action by reason of failures to comply with ss 10A, 12A and 12B of the Defamation Act 2005 (NSW) (“the Act”).

3. The plaintiff acknowledges that the proceedings are brought out of time in relation to the first two publications but submits that this can be cured by seeking an extension of time. He says there is no need to seek leave until after the pleadings are concluded and regards it as a formality that the court will grant leave. The plaintiff also acknowledges that no concerns notice was sent in relation to any other publications but submits that the “concerns notice” he sent in relation to the first two publications will suffice.

4. The plaintiff did not attach the matters complained of to the statement of claim and a considerable amount of court time was spent endeavouring to determine what they were. The concerns notice dated 17 June 2024 is in fact a response to the defendant’s email sent earlier that day and does not identify any other 2024 publications to which it may apply; it also talks of “emails act[ing] as a concerns notice” without identifying what these other “concerns” emails contain or when they were sent. There is no concerns notice at all for any publications made after 17 June 2024. The statement of claim is similarly opaque; the unidentified publications are rolled up in paragraph 8 as “acts of defamation” but no dates are given. For the purposes of this application, it would appear that there are three matters complained of, namely the defendant’s emails dated 16 and 17 June 2024 and 8 April 2025.

The evidence

5. The plaintiff relied upon the affidavit he swore on 26 September 2025.

6. The defendant relied upon Ms Allen’s affidavit of 4 September 2025.

The concerns notice

7. On 17 June 2024, the plaintiff sent an email in response to the defendant’s email sent earlier that same day. The plaintiff’s email was self-described as being “a ‘concerns notice’ which is the first requirement of defamation proceedings”, in that it provided “a notice of breach, examples of breach (effect on reputation is implied in the content of these emails), damages resulting from the breach and remedies.” The plaintiff went on to state:

“My allegations of defamation are consistent with defamation legislation, informing you and your staff of the consequences of legal action is [sic] incidental and may be considered as a form of mitigation for the purpose of avoiding legal action. It is not a form of abuse. Legal documents can be easily submitted and served on you by the end of the week if a resolution cannot be amicably made. Safe work can be contacted about non-compliance. Safe work may take a step to investigate the entire showgrounds for non-compliance which may result in notices of breaches and a shutdown of part or all of the event. Licencing police can be contacted with an objection of [sic] the limited licence and about how the ticket system isn’t reducing risk of illegal consumption of alcohol. These are normal consequences for non-compliance and should be expected as a part of normal operation of business [emphasis in original].”

8. The plaintiff warned the defendant in this email that he would be employing “legal council [sic]” and that the “full cost” of this legal advice would be recovered from the defendant. He then ends with the following admonition, in bold lettering (which I have retained):

“My attempt to talk with you is to find an amicable resolution that avoids the necessity for legal action, avoids unnecessary costs, and to find solutions that comply with both liquor laws and OHS laws so that complaints made to Safe Work and Licensing Police are avoidable.”

9. The concerns notice went on to state that the plaintiff as the liquor licence holder for the event was entitled to discontinue the defendant’s and the function organiser’s application to sell liquor at this event. He also stated that he would contact the showground’s owners to reveal “OHS hazards”. The plaintiff concluded by saying:

“I will call you tomorrow. Hopefully this matter can be constructively quickly resolved. I will delay contact with the showgrounds, Safe work and Licencing Police until after our conversation.”

10. Notably absent from this “concerns notice” are the following:

(a) Any delineation of the matters complained of in terms of content, imputations pleaded and extent of publication. (b) Any particulars of serious harm. (c) Any precision of the remedy sought or reference to the 28-day period during which such an offer could be considered. The defendant was told to be available for a telephone conversation the following morning or complaints would be made to the relevant authorities. This meant that an important part of the matter complained of, namely the terms on which the plaintiff was making an offer to make amends, was oral and not in writing.

11. The plaintiff did not volunteer what, if anything, happened the next day, but it is clear that the defendant did not do as he asked. Nothing further happened until 4 March 2025, when the plaintiff made a “merchant inquiry” to the Winterfest team conducting the 2025 Winterfest as he wished to be a stallholder. He was told that his request would be sent to the Tavern manager for review.

12. On 2 April 2024, the plaintiff sent the following email:

“Hi,

We haven't received any correspondence yet. Our Producer licence can be operated separately to the Tavern's limited licence. We can obtain separated permissions from licencing police in regard to our stall.

Kind Regards,

Mark Laurence Piggott

Managing Director

The Honey Library® & Meadery”

13. The defendant refused this request in his email of 8 April 2025, and passed this information on to Winterfest. The plaintiff states, in paragraph 5.cc of the statement of claim, that he was “not permitted to attend as a result”.

14. Contrary to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the “concerns notice” dated 17 June 2024 was not attached to the statement of claim. It is acknowledged that no further concerns notice was sent for any other publication.

15. The causes of action are hopelessly pleaded in that they are not set out as identifiable publications. Working out which publications were asserted to be the matters complained of was largely guesswork.

16. Ms Allen, for the defendant, submits that the contents of the sole “concerns notice” provided bear almost no relation to the requirements of ss 12A and 12B of the Act.

The statutory provisions for concerns notices

17. Section 12A of the Act provides:

“12A Concerns notices

(1) For the purpose of this Act, a notice is a

"concerns notice" if—

(a) the 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; 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

(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Note—

Section 12B requires a concerns notice to be given before proceedings for defamation can be commenced.

(2) For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings can not be used as a concerns notice.

(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.

(4) 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.

(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.”

18. Section 12B of the Act provides:

“12B Defamation proceedings can not be commenced without concerns notice

(1) An aggrieved person can not 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.

(3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—

(a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or

(b) it is just and reasonable to grant leave.

(4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3) (a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.

(5) In this section—

"limitation law" means the Limitation of Actions Act 1974.”

The defects in the concerns notice

19. The concerns notice is defective for the following reasons:

(a) The concerns notice relates only to one of the publications, namely the email of 17 June 2024, although it may also refer to the email of 16 June 2024, but not to any subsequent publication. (b) The concerns notice of 17 June 2024 does not comply with s 12A(1)(a)(ii), (iii), (iv) and s 12A(1)(b). (c) No concerns notice has been served in relation to the other publications. They are a year apart and are separate publications for which a concerns notice must be sent. (d) Although not stated in s 12A or 12B, a failure to identify the relief sought (for example, an apology or payment of money) may fail to amount to an “offer” in the sense of an offer to make amends. Although the concept of “offer” in this case is statutory rather than contractual, some kind of offer must be made. If the terms of the offer include threats such as reporting a person to the police if they do not make some form of recompense, in circumstances where this conduct amounts to an offence under s 99 of the Crimes Act 1900 (NSW) may not amount to an offer capable of being enforceable. (e) Interestingly, the concerns notice refers to these matters being discussed on the telephone the following day. If that is so, the concerns notice is defective by reason of s 12A(1)(a)(i), in that it is not in writing. (f) There are no particulars whatsoever of serious harm.

20. The commencement of a defamation proceeding which fails to comply with s 12B to the extent that it does here has the potential to bring the administration of justice into disrepute. The Court has power to dismiss or strike out the proceeding issued in contravention of the statutory provision as an abuse of process: Reiter v News Corp Australia Pty Ltd & Anor [2025] VSC 54 at [20] – [21], citing Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling) [2022] VCC 2213, [7], [107]; M1 v R1 [2022] NSWDC 409; Teh v Woodworth [2022] NSWDC 411 (‘Teh’); Randell v McLachlan [2022] NSWDC 506 and Khan v Hassan (Ruling) [2023] VCC 852. Reiter v News Corp Australia Pty Ltd & Anor was referred to with approval in Durand v Lawrence [2025] QDC 129 at [42]. Although these are decisions of inferior courts, their unanimity is notable on this issue and many of these decisions have been cited with approval by courts of record. They demonstrate the court’s requirements for concerns notices, while flexible on formal issues such as serious harm, still require basic rules of fairness (such as identifying the matters complained of) to be complied with.

21. The facts in Teh are strikingly similar. The plaintiff issued a concerns notice for two out-of-time publications but failed to include a recent publication made to a third party by an organisation unrelated to the defendants. The first two publications were struck out because of the time bar. That meant there was no concerns notice for the publication made within time. That was significant because the later publication was not made by them at all but by a third party, in circumstances similar to Duke of Brunswick v Harm**er (1849) 14 QB 185. (Another noteworthy similarity between the concerns notice relied on in these proceedings and Teh is that no particulars of serious harm have been provided.)

22. Where no concerns notice has been served at all, there is no basis for the bringing of defamation proceedings for the publications in question: Cavar v Campbelltown Catholic Club Ltd [2024] NSWCA 126. By no means could the concerns notice served in these proceedings relate to any publication made a year later.

23. The plaintiff said he could serve a concerns notice now if one was required. Once proceedings are commenced, a concerns notice cannot be served retrospectively: Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323. The proceedings must be discontinued and if fresh proceedings are to be commenced, leave will be required: Khan v Hassan (Ruling No 3) [2023] VCC 2243.

24. Although left until the last in this list of defects, the absence of particulars of serious harm of any kind from the concerns notice is an irremediable defect. Courts have exhibited generosity (and, at times, ingenuity) in distilling serious harm from concerns notices which clearly had not been drafted with serious harm in mind, but there is little to go on in the concerns notice beyond a reference to damage to reputation, which is not relevant to the establishment of serious harm.

25. In his affidavit, the plaintiff has set out a table of losses arising from losing the opportunity to participate in the Winterfest, but the corporate structure he uses is the party that would have suffered the loss, if any, which has not been pleaded. That corporate entity is not a party. The principal problem is, however, that none of these particulars are set out either in the concerns notice or the statement of claim.

26. For all of the above reasons, the concerns notice dated 17 June 2024 fails to comply with ss 12A and 12B of the Act. Any proceedings based on this concerns notice would be struck out as an abuse of process.

27. Ms Allen submitted that the statement of claim is equally defective.

Defects in the statement of claim

28. Ms Allen pointed to the following:

(a) The text of the matters complained of is not set out. Moreover, as was the case in Teh (at [11.10]), the publications have been impermissibly run together, with the later publications being called a “continuation” despite the year-long gap and the absence of common complaint. (b) Like the concerns notice, there are no imputations and no plea of serious harm. (c) Neither the matters complained of nor the concerns notice are attached.

29. The statement of claim should be struck out and the proceedings dismissed for these reasons, as well as by reasons of the defective concerns notice.

Limitation Act 1969 (NSW)

30. In Teh, the plaintiff did bring an application for an extension of time and provided an explanation for delay. No such application is made and no explanation is proffered here. Any claim based on correspondence prior to 6 July 2024 (namely the emails of 16 and/or 17 June 2024) will accordingly also be struck out on this basis. The bringing of an application for an extension of time to commence proceedings is the first step a plaintiff should take, not the last. Mr Piggott’s claim that he believed the court could not deal with applications by both parties at the same time is without foundation or merit.

Other applications

31. The plaintiff foreshadowed an application for an extension of time for the 2024 publications but asked for an adjournment to February or March 2026 as this is the busiest time of year for him and he does not have time to attend to legal matters, as he is involved in other court proceedings as well. Delay of this kind in defamation actions, particularly where two of the three publications are already out of time, may itself be evidence of a lack of serious harm (Rader v Haines [2022] NSWCA 198.

32. The plaintiff also sought an adjournment on the grounds that he needed to seek legal advice. When I drew to his attention his statement in the concerns notice letter of 17 June 2024 that he was going to retain “council” [sic], he initially denied it but then agreed he had not done so. He has had plenty of time to seek legal advice.

33. His request for an adjournment to February or March 2026 is accordingly refused.

34. Ms Allen also challenged service of the application. The plaintiff said he had had to leave the publication on the ground because he was threatened by security staff at the Winterfest and that this was sufficient to establish service. In view of my findings on other issues I do not consider it necessary to deal with this issue further.

The plaintiff’s address

35. Contrary to UCPR r 4.5 (Hanna v Registrar of the Court of Appeal of NSW and the Prothonotary of the Supreme Court of NSW [2006] NSWSC 564 at [10], Kelly v Mosman Municipal Council [2010] NSWCA 370; 178 LGERA 136 at [64] – [65]), the plaintiff’s address for service is a post office box. In light of the difficulties in trying to contact the plaintiff on the morning of the hearing when he was not present at the appointed starting time (as there is no telephone number provided), I drew this rule to his attention and asked if he would be prepared to provide an address for service, even if it were only the address for his company, and also a telephone number.

36. The plaintiff informed the Court that he had no fixed address of any kind, saying that he resided in temporary accommodation only, adding “I can give you a false address if you wish”. A search of the liquor licence of his company extracted from New South Wales Fair Trading Website, The Honey Library Pty Ltd, Licence Number LIQW880015671, revealed it has an address on the Central Coast which the plaintiff admitted was the location of a storage facility as opposed to a place of business of any kind. If so, that would not be an acceptable address for s 142 of the Corporations Act 2001 (Cth), let alone for the address for service for parties for the purposes of litigation. It is to be hoped that the giving of storage facilities as an address is not a widespread practice.

37. Independently of UCPR r 4.5, a correctly stated current residential address has always been a prerequisite to the commencement of proceedings. In Sheen v Burke [1993] 1 VR 584, Beach J stated that this was to deter persons from making fraudulent or mischievous claims or avoiding orders for costs or security for costs; see also Anderson v Beldev MI Pty Ltd [2025] NSWSC 471 and Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 3) [2017] NSWDC 89 at [28]. Use of a post office box was deplored in Rapisarda v Colladon (Irregular Divorces) [2014] EWFC 35, where the presiding judge, Sir Munby P, set aside 180 divorce petitions from Italian residents where one party was claiming one of the partners was living in the United Kingdom, all of whom gave the same post office address.

38. While the plaintiff’s offer of a “false address” may have been a misguided attempt at humour, it does not augur well for the conduct of this litigation that he is not prepared to give contact details to the court. His refusal to provide mobile phone details was similarly without any satisfactory explanation.

39. While I would not have struck out these proceedings on this basis alone, if I had refused the defendant’s applications, I would only have permitted the plaintiff’s claims to proceed if an address consistent with the requirements of UCPR r 4.5 were provided. The potential for abuse of court by one or more of the parties by the giving of false addresses is a risk that courts need to take seriously.

Costs

40. The defendant seeks an order for costs on an indemnity basis, pointing to a series of emails throughout this litigation (including but not limited to emails dated 4 and 25 September 2025) drawing attention to the many defects in the concerns notice and pleadings and inviting the plaintiff to withdraw the claim. The plaintiff responded to these emails in derogator terms, calling the email of 4 September 2025 “vexatious”.

41. Indemnity costs are not intended to be a form of punishment for a party who fails in an action but may be appropriate where a claim is genuinely hopeless. The granting of costs on an indemnity basis should be reserved for unusual cases or cases involving unreasonable conduct established on clear grounds: Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [113].

42. The commencement of proceedings out of time, the failure to identify the publications sued on (let alone particularise imputations and serious harm), the failure to serve concerns notices containing this information and the incoherently pleaded statement of claim are all fatal defects. The plaintiff’s failure to accept the course proposed by the defendant of discontinuing is, additionally, unreasonable for the purposes of s 40 of the Act, which is relevant to summary dismissals in the same way that it applies for trials (Eppinga v Kalil & Anor (No 2) [2022] NSWDC 591). Costs will accordingly be payable on an indemnity basis.

Orders

43. I make the following orders:

44. Statement of claim struck out and dismissed.

45. The plaintiff is to pay the defendant’s costs of these proceedings on an indemnity basis.

46. Exhibits retained until further order.

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