Plaintiff v First Defendant

2 By summons filed on 2 August 2024, the defendants applied for summary dismissal of the proceeding under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'). The defendants contend the proceeding is an abuse of process because the plaintiff failed to comply with ss 12A and 12B of the Defamation Act. Expressed broadly, those provisions require a plaintiff in a defamation proceeding to issue a valid 'concerns notice'[3] and to provide an opportunity for a publisher to make an offer of amends prior to commencing their proceeding.

3 For the following reasons, the defendants' application succeeds and the proceeding will be dismissed.

4 A brief recitation of the events occurring before and after publication of the article follows.

5 At 9:52am on 22 March 2024, the second defendant emailed the plaintiff describing allegations that the plaintiff had been posing as a lawyer and telling people he had been working for high profile musicians, and inviting his reply before a 2:00pm deadline on the same day.[4] The plaintiff replied by email three times prior to 2:00pm.[5] In his second email, he asked the second defendant to 'hold the story for one day'[6] to enable him to email through documents relating to Victorian Legal Services Board + Commissioner ('VLSBC'), police checks and other information. He emailed again, at 1:16pm, stating 'I just spoke to the VLSBC whom have confirmed that my file is closed and there has been no need to further investigate.'[7]

6 On the same day at about 3:00pm, the Geelong Advertiser published online an article written by the second defendant titled 'Melbourne professor details bizarre encounter with serial Geelong impersonator Kurt Reiter.'[8] The article quotes an unnamed 'high profile Melbourne professor',[9] who was said to have met the plaintiff in transit in 2023, as saying that the plaintiff told her that 'he was a lawyer and was going to work on a case, and that he knew the CEO of Qantas and he worked for a bunch of singers.'[10] Reference is also made to a follow up email sent to the professor by 'Dr Kurt Reiter',[11] in which the plaintiff is said to have stated that he could arrange tickets to see the musician Pink. The article continues, providing additional quotes from the professor and the VLSBC, before referring to the time that the plaintiff served in jail in 2017, his history as a former Liberal candidate, and a fine he incurred in 2016 for posing as a lawyer.

7 On 25 March 2024, being three days after publication of the article online, the plaintiff emailed the second defendant, copied to Ms Olivia Shying, Chief of Staff at the Geelong Advertiser, stating 'I don't see a retraction on your front page today (or any other page). What's going on?'.[12] At 2:37pm on the following day, the plaintiff emailed a person by the name of Peter Hawkins, copied to the second defendant. The email stated, amongst other things, '[t]hank you for admitting that is [sic] was you that was the "source" for the Geelong Advertiser - you just made me a very wealthy man.'[13] A single line email, purporting to be from 'Peter Hawkins' at 2:19pm to which the plaintiff responded, states 'I told the Geelong adviser [sic] everything, I have also supplied photos and documents'.[14]

8 Later on 26 March 2024, the plaintiff emailed a document titled 'Form 5B - Originating Motion Supreme' to the second defendant, copying in Peter Hawkins. The document, styled as an originating motion, was unsealed and dated 25 March 2024 ('First Draft Originating Motion'). Under the heading 'Relief or remedy sought', the First Draft Originating Motion states, amongst other things:

Under the Defamation Act 2005 (Vic) I am entitled to be compensated for damages that the Defendants have caused to my person.

Due to outright false reporting by the Geelong Advertiser ("the Addy") on the 23rd of March, 2024 (Published on Pages one and three) my online reputation has once again been severely damaged and set me back with my achievements with Alcohol Rehabilitation, moving to transitional housing at Ozanam House and then being granted social housing approval.

...

When returning home from my volunteering job I searched all of my emails, text messages and documents and could not find a simple example of me being involved with P!NK in any way in the last twelve months as alleged by this 'mysterious' OAM awarded "High Profile Professor" and the Addy stated: "In a follow up email to her by "Dr Kurt Reiter" following the chance encounter, allegedly sent in February 2023, he indicated he could arrange tickets to see Pink, and referred to her as "Alicia"." Yet there are absolutely no such email exchanges between myself and this alleged Professor.

My data on my iPhone is backed up to the Apple iCloud and my data is backed up on two external HDDs using Time Machine so all back-ups are date/time stamped and thus cannot be manipulated after the fact and can be tendered as evidence.

As a result of targeted abuse and harassment by the Addy since becoming an alcoholic and following my election loss to The Hon. Lisa Neville (former Minister for Police) in the November 2010 election my recovery has been complicated because anything that is published by the Addy becomes quickly and easily searched on Google as a result of my unusual name.

This set back will mean that my progress with NA, my ability to volunteer and attain gainful employment following achieving a Masters of Teaching degree is now all completely destroyed as is my housing because, as I explained to the 3rd Defendant in complete honesty and using the wording of "I beg you" to not again publish things about a former "Disgraced Liberal Candidate" to no avail. Yet it was published on the front page

The First Draft Originating Motion foreshadowed seeking damages for costs and lost income in the amount of $1,705,600 plus 'emotional damages' of $50,000.

9 On 27 March 2024, the plaintiff emailed the 'latest draft of [his] [c]omplaint'[16] to 'yoursay@geelongadvertiser.com.au', copied to the second defendant and 'news.customers@news.com.au'. The attachment[17] is named as 'Addy Draft Form 5B - Originating Motion' ('Second Draft Originating Motion'). Much of the text in the Second Draft Originating Motion mirrors that in the First Draft Originating Motion. However, the following material was inserted from the paragraph commencing with 'When returning home':

When returning home from my volunteering job I searched all of my emails, text messages and found an email exchange between myself and one Professor Barbora deCourten of RMIT whom I had met on a flight between Brisbane and Melbourne.

I put to her the allegations she had made to the Geelong Advertiser and her response was:

...

I further searched for documents and could not find a simple example of me being involved with P!NK in any way in the last twelve months as alleged by Professor Barbora deCourten" [sic] and the Addy stated: "In a follow up email to her by "Dr Kurt Reiter" following the chance encounter, allegedly sent in February 2023, he indicated he could arrange tickets to see Pink, and referred to her as "Alicia".

I will be alleging to Victoria Police that one Peter Hawkins whom I was a tenant of in Bendigo whom I sued in the Civil Division of the Magistrates' Court at Bendigo not only kept my files, clothes, other belongings but also went to the additional trouble of using my Apple Time Machine backup drive to find out so much about me and thus he has been able to contact so many of my former friends, associates, partners, wives and the like.

I have no doubt that Professor Barbora deCourten is lying and would have gone out of her way to defame me.

...

The 3rd Defendant said I was "fair game" because of my high profile. I explained that not only have I been banned from the Liberal Party, that I ran for Parliament in 2010 (fourteen years ago) and don't seek any public attention as I am studying a Masters of Teaching at Curtin University, doing volunteering work and that in my Relapse Prevention Plan prepared in Quin House Rehabilitation that this was noted as a serious trigger.

Despite my honesty, the Addy published this false story without checking the source correctly and this has put my reputation on Google back as the number one as "serial Geelong impersonator Kurt Reiter".[18]

10 The plaintiff deposes that on 28 March 2024, he also sent a copy of the 27 March 2024 email and the attached Second Draft Originating Motion by registered post to the first defendant, as well as to the first defendant's Company Secretary at his home address as disclosed in an ASIC search.[19] The first defendant denies receiving a copy of this email and its attachment by post, either to its corporate offices or at the home address of its Company Secretary.

11 On 29 March 2024, the plaintiff filed the writ and statement of claim to commence this proceeding together with a document styled 'Concerns Notice' (which bears the date 13 May 2024) and a copy of the article as it appeared online on 22 March 2024.

12 Mr Croft deposes that the sealed originating process was never properly served on the defendants.[20] He further deposes that the defendants were never served with sealed copies of the article or the document styled 'Concerns Notice' dated 13 May 2024.[21] However, he also deposes that on 13 May 2024 at 2:50pm, the plaintiff sent an email to the second defendant attaching an unsealed copy of the document styled 'Concerns Notice' and the news article.[22] Thereafter, upon undertaking searches of RedCrest, the defendants became aware of the proceedings and the so called 'Concerns Notice' and the pdf of the article filed along with it.

13 The sealed and unsealed versions of the document styled 'Concerns Notice' appear to be identical. In this ruling, I will hereafter refer to the sealed version as the 'Filed Concerns Notice'. The Filed Concerns Notice describes the plaintiff as 'begging' the second defendant not to publish an article that would bring up his 'past mistakes and make them once again the top search on Google'.[23] In overview, the Filed Concerns Notice records that:

(a) publication of the article 'resulted in what [the plaintiff] advised would happen online';[24]

(b) the second defendant 'did not confirm the source (as is required)', and that the plaintiff 'confirmed with the "un-named" source that she had not contacted [the second defendant] (nor the Geelong Advertiser)... and in fact the information was made up and attained from one Peter Hawkins';[25] and

(c) as a result of the second defendant's decision not to accurately verify his source, and republish items about the plaintiff's past that put 'all of that back into the top search on Google', the second defendant had:

'already put [the plaintiff's] social housing at risk, [the plaintiff had] been "fired" from a volunteering role, [has] lost two close friends, and [his] fellow online students and others at Curtin University [were] now doubting [his] suitability to complete [his] studies.'[26]

The Filed Concerns Notice also foreshadows a significant financial damages claim, and states that the plaintiff would be happy to settle the matter if the defendants agreed to publish a specified retraction and apology.[27]

14 On 19 June 2024, the defendants' solicitors emailed the plaintiff attaching a letter identifying the defects in the plaintiff's claim, including issues with service and the failure to comply with the provisions of the Defamation Act.[28] The defendants invited the plaintiff to withdraw his claim.

15 On 20 June 2024, the defendants filed a notice of appearance,[29] and on 2 August 2024, the defendants filed this application.

Concerns notices and the offer to make amends procedure

16 Sections 12A and 12B were inserted into the Defamation Act in 2021,[30] following a national review. Section 10A was also introduced at this time, creating a new element of 'serious harm' in a defamation action. The amendments make it mandatory for an aggrieved person to give a written concerns notice and specify particulars of the imputations and serious harm, as well as provide for a period for a defendant to make an offer of amends before the aggrieved person can commence a proceeding. This procedure encourages early resolution of the dispute and anticipates an easing of the burden on courts and a reduction in the cost and time taken to resolve defamation disputes.[31] The role of the concerns notice in achieving this is twofold:

(a) it serves to provide the publisher with sufficient information to encourage them to make a reasonable offer of amends prior to proceedings being commenced; and

(b) it encourages the aggrieved person to consider whether they have suffered harm to their reputation at or above the threshold of serious harm before commencing a defamation proceeding.[32]

17 Without extracting the full legislative provisions of the Defamation Act, the requirements of ss 12A and 12B are as follows.

(a) A concerns notice that meets each of the requirements of s 12A must be issued prior to commencement of the proceeding (s 12B(1)(a)).

(b) The essential requirements for a valid concerns notice are that it:

(i) is in writing (s 12A(1)(a)(i)); and

(ii) specifies the location where the matter complained of can be accessed (s 12A(1)(a)(ii)); and

(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried by the matter complained of (s 12A(1)(a)(iii)); and

(iv) informs the publisher of the serious harm the aggrieved person considers has been caused, or is likely to be caused, by the matters complained of (s 12A(1)(a)(iv)); and

(v) attaches a copy of the matter complained of, if practicable (s 12A(1)(b)).

(c) A document that is required to be filed or lodged to commence a defamation proceeding cannot be used as a valid concerns notice (s 12A(2)).

(d) In addition to the requirement that a concerns notice be issued prior to commencement, an aggrieved person cannot commence a defamation proceeding unless:

(i) the imputations relied upon in the proceeding are those particularised in the concerns notice (s 12B(1)(b)); and

(ii) the applicable period of 28 days to make an offer of amends[33] has elapsed (unless leave is given despite non-compliance) (s 12B(1)(c)).

(e) The mandatory nature of the cumulative conditions in s 12B(1) is recognised in s 12B(3), which permits of only one exception in that, despite non-compliance with s 12B(1)(c), the Court may grant leave for a proceeding to be commenced where the particular conditions of s 12B(3) are satisfied.

18 Section 12A provides a publisher with an opportunity to seek further particulars of the information stated in a concerns notice by giving a further particulars notice to the aggrieved person (s 12A(3)).

19 Following receipt of a concerns notice, a publisher may make an 'offer to make amends' in accordance with ss 13 to 15. If an offer to make amends is accepted and performed, s 17 provides that it will prevent an action against the publisher in relation to the matter in question. Whereas, if it is not accepted, s 18 confers a substantive defence to an action for defamation if the offer was reasonable and other conditions of that section are satisfied.

The consequences of failing to comply with s 12B of the Defamation Act

20 The clear words of s 12B of the Defamation Act restrict the commencement of a proceeding unless s 12B(1) is complied with. That restriction recognises that non-compliance with ss 12A and 12B can have substantive implications for the proposed defendant, and can undermine the objectives behind these amendments to the Defamation Act. Depending on the precise failure, it would deny a defendant the opportunity to obtain further particulars of the harm suffered by the aggrieved person and, more significantly, the opportunity to make an offer of amends and to rely on the substantive defence provided in s 18.

21 For the above reasons, the commencement of a defamation proceeding which is not permitted by s 12B has the potential to bring the administration of justice into disrepute.[34] The Court has power, including under r 23.01 of the Rules, to dismiss or strike out the proceeding issued in contravention of the statutory provision as an abuse of process.

22 In order to be successful on this application, the defendants must persuade the Court that:

(a) none of the plaintiff's communications was a valid concerns notice for the purposes of s 12A; and

(b) to the extent that any one of those communications was a valid concerns notice:

(i) the proceeding was not commenced in accordance with s 12B because the imputations relied upon in the proceeding were not those particularised within the valid concerns notice, if any; and

(ii) the period in which the defendants were entitled to make an offer of amends had not elapsed at the time of commencement of this proceeding on 29 March 2024.

Do any of the First or Second Draft Originating Motions, or the Filed Concerns Notice, constitute a 'concerns notice' for the purposes of s 12A of the Defamation Act?

23 The focus of the defendants' submissions at the hearing was initially directed solely toward the validity of the Filed Concerns Notice. That notice was filed on the date the proceeding was commenced, and an unsealed copy emailed to the second defendant on 13 May 2024. However, the plaintiff also relies upon conversations he asserts he had with the second defendant, and documents he asserts he sent to the defendants, earlier than the Filed Concerns Notice and prior to commencement of the proceeding. These comprised emails and conversations with the second defendant prior to publication of the article, the First Draft Originating Motion and the Second Draft Originating Motion.[35]

24 The plaintiff stated that he was not aware that a 'concerns notice' had to be served upon the defendants until he was informed of the requirement by the self-represented litigants co-ordinator of this Court.[36] The plaintiff further submitted that during a phone conversation[37] with the second defendant on 22 March 2024, and in the emails he sent before the 2:00pm publication deadline, he conveyed the information required by s 12A. The defendants submitted that the conversations could be discounted as not being in writing, as required by s 12A(1)(a)(i), and that both the emails and the conversation could not constitute a concerns notice because they occurred prior to publication at a time when the plaintiff had no cause of action.[38]

25 It is apparent from the material before the Court that the plaintiff was personally concerned, in a general sense, by the potential publication of an article which contained the material the subject of the second defendant's request for comment. However, the mere fact that he communicated his concerns does not render the communications a 'concerns notice' for the purposes of s 12A. That section is prescriptive of the essential components for such a notice to be valid. In particular, a concerns notice must be in writing. It follows that a telephone conversation between the plaintiff and the second defendant could not constitute a concerns notice for the purposes of the Defamation Act. I also accept that a communication sent prior to publication could not qualify. It is implicit in the definition of a 'matter' in s 4 of the Defamation Act (which includes an article), the terms of s 12(1) by which Pt 3 Div 1 of the Defamation Act comes to apply where a person 'publishes' a 'matter', and in the terms of s 12A which require that the contents of the concerns notice be addressed to the defamatory imputations relating to, and harm caused by, the publication of the matter in question, that no valid concerns notice could be given prior to publication. Put simply, a person aggrieved could not identify any imputations of concern which are, or may be, carried about the aggrieved person by the matter in question absent its publication.

26 I therefore find that neither the conversation between the plaintiff and the second defendant (if one occurred), nor any of the emails from the plaintiff to the second defendant prior to publication of the article, could constitute a valid concerns notice.

27 The plaintiff contended that all of the imputations were 'within the correspondence and the original Form 5A',[39] by which I take him to mean the First Draft Originating Motion. The defendants submitted that the First Draft Originating Motion could not be a concerns notice in light of s 12A(2) of the Defamation Act. Further, they submit that it was never provided to the first defendant and did not identify any defamatory imputations or particularise the serious harm which the plaintiff considers is caused or is likely to be caused to his reputation as a result of the publication.[40]

28 I do not accept the submission made by the defendants that the First Draft Originating Motion offends s 12A(2). That section provides a document that is 'required to be filed or lodged to commence a defamation proceeding cannot be used as a concerns notice'. Albeit styled as a pleading, and while plainly a first draft of the contents of the writ and statement of claim that the plaintiff ultimately filed, the First Draft Originating Motion is not the document filed to commence this defamation proceeding, and so could qualify as a concerns notice provided the other requirements of s 12A are met.

29 The First Draft Originating Motion is in writing. Although it does not explicitly purport to be a concerns notice, the parties did not make submissions concerning whether the First Draft Originating Motion could comprise a concerns notice in the absence of that intention being conveyed in some way in the document itself, or in the covering email.[41] Nevertheless, in light of the following conclusions I have drawn as to the other deficiencies in the contents of the First Draft Originating Motion, it is unnecessary to further consider this issue.

30 Subsection 12A(1)(a)(iii) requires a concerns notice to inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried in the publication about the aggrieved person. If these are inadequately particularised, reasonable further particulars may be requested by the publisher. Although courts have taken varied approaches to construing the level of detail required when communicating the alleged imputations,[42] at a bare minimum, a concerns notice must specify the imputations. Here, the First Draft Originating Motion does not identify any imputations at all.

31 The plaintiff submitted that a flexible approach must be taken to construe the concerns notice as in Cooper v Nine Entertainment Co Pty Ltd.[43] However, the circumstances of this case stand in stark contrast to those in Cooper where a concerns notice that did not identify the defamatory imputations carried in an online version of the article later relied upon in the proceeding was held to be valid. The difference in that case was that imputations arising from an identical print version of the article were identified in a concerns notice (which itself complied with s 12A), and were substantially similar to those pleaded, which meant the imputations alleged to be carried by the online version were self-evident. Here, the First Draft Originating Motion refers to 'outright false reporting' on 23 March 2024 with the effect that the plaintiff's 'online reputation has once again been severely damaged'.[44] The First Draft Originating Motion does not shed any light on what the imputations are about the plaintiff that are conveyed by the article, nor why or in what way the plaintiff's online reputation has been or will be severely damaged. The usual remedy for the recipient of a concerns notice which fails to adequately particularise the imputations conveyed by the matter published is to issue a notice requesting further particulars. However, that could not be done in respect of this First Draft Originating Motion as it was never provided to the first defendant. The First Draft Originating Motion does not comply with s 12A(1)(a)(iii).

32 In the event that I am incorrect about the failure to identify any imputations, it is necessary to consider whether s 12A(1)(a)(iv) is satisfied by the First Draft Originating Motion. Again, there is a divergence in the approach taken by different courts as to the specificity of the serious harm that must be particularised in a valid concerns notice. In some cases, it has been held that mere assertions of damage are insufficient and that specificity that is closer, or even equivalent, to that required in pleadings is necessary.[45] In another, such specificity has been rejected,[46] although in that case the concerns notice set out very detailed imputations.

33 The First Draft Originating Motion makes what, in my view, can only be characterised as the bare assertion that the plaintiff's online reputation will be 'severely damaged'.[47] Although the plaintiff separately states that this set back will mean his progress with Narcotics Anonymous, his ability to volunteer and attain gainful employment and his housing 'is now all completely destroyed',[48] these are 'vague generalities'.[49] There are no particulars sufficient to identify the causal link between the publication and the asserted serious harm to the plaintiff's reputation.[50] It is made worse by the lack of identified imputations against which the asserted serious harm might otherwise be assessed. In the absence of particulars, the defendants face difficulty in being able to properly assess the case against them and to frame an appropriate offer to make amends. This undermines the objective of the 'offer to make amends' regime established by these provisions. Once again, the first defendant was denied any opportunity to request further particulars of any asserted serious harm because the First Draft Originating Motion was never given to it. The First Draft Originating Motion did not comply with s 12A(1)(a)(iv) of the Defamation Act.

34 The concerns notice must also attach copies of the publication unless it is not practicable to do so. There is no copy of the article accompanying the First Draft Originating Motion. There is no suggestion it would have been impracticable to attach one. This is another instance of non-compliance with the requirements of s 12A.

35 For the reasons given, I am satisfied that the First Draft Originating Motion was not a valid concerns notice for the purposes of s 12A of the Defamation Act.

36 The Second Draft Originating Motion was the subject of additional evidence and submissions filed after the hearing. The defendants submitted that the Second Draft Originating Motion was never given to the first defendant, contrary to evidence given by the plaintiff. They also submitted that it fails to particularise the imputations or serious harm, such that it is not a valid concerns notice for the purposes of s 12A.

37 The plaintiff's submissions regarding the Second Draft Originating Motion reflected those that he made more generally, that is, although he did not use the phrase 'concerns notice', there could be no doubt that the second defendant was aware of his concerns.

38 In my view, although supplemented by some additional paragraphs of text, the Second Draft Originating Motion suffers from the same defects as the First Draft Originating Motion. The Second Draft Originating Motion fails to identify any imputations the plaintiff considers are or may be carried by the article which he alleges have damaged his 'online reputation'.[51] Hence, s 12A(1)(a)(iii) has not been complied with.

39 If I am incorrect in making this finding, I also conclude that the Second Draft Originating Motion fails to inform the defendants as to how the plaintiff considers the publication has, or is likely to, cause serious harm to his reputation for the purposes of s 12A(1)(a)(iv). The Second Draft Originating Motion contains nothing more than the bare assertion that the plaintiff's online reputation will be 'severely damaged', supported by the equally bare assertion that is not linked with any imputation, that his reputation on Google is 'back as the number one as "serial Geelong impersonator Kurt Reiter".'[52] There are no particulars sufficient to identify the causal link between the publication and the asserted serious harm to the plaintiff's reputation. Hence, s 12A(1)(a)(iv) has not been complied with.

40 The Second Draft Originating Motion did not attach a copy of the article complained of, and is another instance of non-compliance with s 12A.

41 For the reasons above, I am satisfied that the Second Draft Originating Motion was not a valid concerns notice for the purposes of s 12A of the Defamation Act.

42 Although the plaintiff deposed that the Second Draft Originating Motion was sent to the first defendant, in addition to being emailed to the second defendant, the first defendant denies receiving it, either by post at its offices or at the home of its Company Secretary. Given that I am satisfied that the Second Draft Originating Motion does not constitute a valid concerns notice, I do not need to make any determination about whether the document was ever given to the first defendant as required by the Defamation Act.

43 The defendants submitted that the Filed Concerns Notice:

(a) was never given to the first defendant and was only given to the second defendant on 13 May 2024 by email, well after the commencement of the proceeding; and

(b) failed to inform them of the imputations and serious harm considered by the plaintiff to be carried by, and caused by, the article as required by ss 12A(1)(a)(iii)-(iv).

The plaintiff submitted the defendants had been properly served with the originating process and Filed Concerns Notice and that they were aware of his concerns.

44 As with the First and Second Draft Originating Motions, I am satisfied that the Filed Concerns Notice fails to identify any imputations and does not comply with s 12A(1)(a)(iii). Again, the Filed Concerns Notice does not put the defendants on notice as to what the imputations are that are said to be carried by the article. In the retraction/apology sought, the plaintiff refers to his 'online reputation' being 'at significant risk'.[53] However, the Filed Concerns Notice does not identify any imputation that is conveyed by the article which could place the plaintiff's online reputation at risk. More than mental gymnastics is required to determine what the imputations are that the plaintiff considers are carried by the article, and the paucity of information renders it an exercise in speculation.

45 I am also satisfied that the Filed Concerns Notice fails to comply with s 12A(1)(a)(iv). The plaintiff complained that information about his past now appears at the top of a Google search for his name, with the result that:

(a) the plaintiff's social housing is at risk;

(b) the plaintiff has been fired from a volunteering role;

(c) the plaintiff has lost two close friends; and

(d) his fellow students are doubting his ability to complete his studies.

Although adopting the language of causation, the information provided does not establish a causal link between the publication and the asserted serious harm to the plaintiff's reputation. Rather, the asserted serious harm is linked causally to matters in the plaintiff's past now featuring again on Google's top search results for the plaintiff. There is no allegation that the plaintiff's reputation has been or is likely to be seriously harmed by the contents of the article itself.

46 There are no particulars given of the events, dates or conversations to support the serious harm asserted by the plaintiff. For example, the plaintiff does not specify what role he occupied as a volunteer, with which organisation, when he was fired, by whom and what reasons were given. While the recipient of a concerns notice containing inadequate particulars might issue a notice requesting further particulars, the Filed Concerns Notice was not given to either defendant prior to the plaintiff commencing this proceeding.

47 For the reasons above, I am satisfied that the Filed Concerns Notice was not a valid concerns notice for the purposes of s 12A of the Defamation Act.

Has the plaintiff complied with s 12B of the Defamation Act?

48 Given my findings that no valid concerns notice was given by the plaintiff to the defendants prior to the commencement of this proceeding, the plaintiff was prohibited from commencing it by the terms of s 12B(1)(a). Furthermore, by reason of my findings that none of those documents informed the defendants of any imputations the plaintiff considered to be carried by the article, the plaintiff would also be prohibited from commencing the proceeding by virtue of s 12B(1)(b).

49 Having reached these conclusions, I accept that the proceeding is incompetent and ought be dismissed as an abuse of process. In the event that I am incorrect in relation to ss 12B(1)(a) and (b), I find that the proceeding is also prohibited for non-compliance with s 12B(1)(c), and that the plaintiff is not entitled to a grant of leave under s 12B(3). My reasons for so finding are stated briefly below for completeness.

50 Assuming any one of the concerns notices was valid, the plaintiff nevertheless failed to comply with s 12B(1)(c) in respect of each of them. The plaintiff was obliged to wait 28 days after giving a concerns notice before commencing this proceeding. However, the writ was filed three days after the First Draft Originating Motion was emailed to the second defendant; two days after the Second Draft Originating Motion was emailed to the second defendant; and around 45 days before the Filed Concerns Notice was emailed to the second defendant. It is not disputed that the First Draft Originating Motion was never provided to the first defendant. There is a dispute, which I have found I do not need to resolve, as to whether either the Second Draft Originating Motion or the Filed Concerns Notice was ever served. However, even if they were, the plaintiff did not allow the period of 28 days to elapse before commencing the proceeding, in contravention of s 12B(1)(c).

51 Section 12B(3) provides that the court may grant leave for a proceeding to be commenced despite non-compliance with s 12B(1)(c) if the plaintiff establishes that commencement of the proceeding after the end of the 'applicable period' will contravene the limitation law, or where it is 'just and reasonable' to do so. The defendants submitted that the circumstances do not warrant granting leave nunc pro tunc pursuant to s 12B(3) to permit commencement of the proceeding on 29 March 2024. I agree. First, as the online version of the article was published on 22 March 2024, the plaintiff has until 22 March 2025 to commence the proceeding, such that the power to grant leave by reason of the imminent expiry of the limitation period in s 12B(3)(a) is not enlivened. Second, I accept that granting leave in the current circumstances would undermine the policy objectives and legislative intent of ss 12A and 12B to promote speedy and non-litigious methods of resolving defamation disputes and would prejudice the defendants by denying them the opportunity to make an offer of amends and to avail themselves of the defence in s 18. There is nothing in the material before the Court that suggests there is anything unique about the circumstances of this case that would otherwise make it 'just and reasonable' to grant leave. Certainly, the fact that the plaintiff is self-represented does not provide that justification as the plaintiff could have informed himself about the concerns notice process when it was brought to his attention by the self-represented litigants co-ordinator of this Court. The proceeding did not need to be commenced urgently, and on the contrary, the plaintiff still has time prior to the expiry of the limitations period to comply with ss 12A and 12B and commence a fresh proceeding.[54]

52 I will make orders dismissing the proceeding in accordance with the defendants' summons.

53 I will order that the plaintiff pay the defendants' costs of the proceeding on a standard basis.

[1] This publication is also referred to by the plaintiff as 'the Addy'.

[2] Affidavit of Alexander William Tinney Croft affirmed on 22 July 2024, Exhibit AC-1, 20-23 ('First Croft Affidavit'). The article appeared online at about 3:00pm on 22 March 2024.

[3] For a notice to be a 'concerns notice', it must comply with the terms of s 12A of the Defamation Act.

[4] Exhibit to the Affidavit of Kurt Andrew Reiter filed on 7 October 2024 ('Fifth Reiter Affidavit').

[5] Exhibit to the Fifth Reiter Affidavit. The three emails were sent at 10:23am, 11:46am and 1:16pm.

[6] Exhibit to the Fifth Reiter Affidavit.

[7] Exhibit to the Fifth Reiter Affidavit.

[8] First Croft Affidavit, Exhibit AC-1, 20-23. It is alleged the article was published in the print edition of the Geelong Advertiser (on pages 1 and 3) on 23 March 2024, although there is no copy of the print edition in evidence before me. No issue has been raised by the defendants about the version of the article that is relied upon.

[9] First Croft Affidavit, Exhibit AC-1, 20-23.

[10] First Croft Affidavit, Exhibit AC-1, 20-23.

[11] First Croft Affidavit, Exhibit AC-1, 20-23.

[12] First Croft Affidavit, Exhibit AC-1, 6.

[13] First Croft Affidavit, Exhibit AC-1, 8.

[14] First Croft Affidavit, Exhibit AC-1, 8.

[15] First Croft Affidavit, Exhibit AC-1, 13.

[16] Exhibit to the Fifth Reiter Affidavit.

[17] The attachment was not exhibited to Fifth Reiter Affidavit. At the conclusion of the hearing on 22 October 2024, I directed that the plaintiff file a further affidavit attaching a copy of the document he had described as the 'latest draft of [his] [c]omplaint'. The plaintiff filed his further affidavit on 24 October 2024.

[18] Exhibit to the Affidavit of Kurt Andrew Reiter affirmed on 24 October 2024 ('Sixth Reiter Affidavit').

[20] First Croft Affidavit, [11], Affidavit of Alexander William Tinney Croft affirmed on 13 September 2024, [5] ('Second Croft Affidavit').

[22] First Croft Affidavit [12], Exhibit AC-1, 16-29; Second Croft Affidavit [8].

[23] Concerns Notice filed on 29 March 2024, 2 ('Filed Concerns Notice').

[28] First Croft Affidavit [15], Exhibit AC-1, 32.

[29] The defendants submit this is the deemed date of service of the writ and statement of claim as they had not been served with the originating process prior to filing their notice of appearance.

[30] Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) s 23.

[31] Victoria, Parliamentary Debates, Legislative Assembly, 14 October 2020, 2665 (Ms Hennessy, Attorney-General).

[32] Georges v Georges; Georges v Georges [2022] NSWDC 558, [56]-[59] ('Georges'); Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991, [62] ('Russell').

[33] Defamation Act s 14(2)(b).

[34] See, eg, Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling) [2022] VCC 2213, [7], [107] ('Hoser'); M1 v R1 [2022] NSWDC 409 ('M1 v R1'); Teh v Woodworth [2022] NSWDC 411 ('Teh'); Randell v McLachlain [2022] NSWDC 506 ('Randell'); Khan v Hassan (Ruling) [2023] VCC 852.

[35] The Second Draft Originating Motion was not in evidence and there were no submissions directed to its contents. Accordingly, at the conclusion of the hearing, the Court directed that additional affidavit material and submissions be filed concerning that document.

[36] Transcript of Proceedings, Kurt Andrew Reiter v New Corp Australia Pty Limited & Anor (Supreme Court of Victoria, S ECI 2024 02493, Goulden AsJ, 22 October 2024) T59.24-T60.5 ('Transcript'); Plaintiff's Written Submissions filed on 4 October 2024, [6] ('Plaintiff's Written Submissions').

[37] There is no evidence before the Court as to the occurrence of this phone conversation, although it is referred to in the Plaintiff's Written Submissions. Whether it occurred or not ultimately does not matter as I am satisfied that it is not capable of constituting a concerns notice.

[39] Transcript T44.19-T44.20, T58.16-T58.24.

[41] See generally Hoser at [62]-[67], where Clayton J considers that a lack of identification of a document as being a concerns notice would not necessarily be fatal provided it was otherwise clear to the publisher in the circumstances that the document was a concerns notice.

[42] See, eg, Hoser at [68], where Clayton J said that adequate precision was needed to ensure neither the defendants, nor the Court, are required to 'perform some mental gymnastics' in order to understand the defamatory imputations allegedly conveyed. In Cooper v Nine Entertainment Co Pty Ltd (2023) 169 ACSR 584 at 613-14 [79], McElwaine J stated that the 'imputations are not required to be expressed in explicit language...the obligation of the aggrieved person is to do "the best that can reasonably be done" in the particular circumstances.' Conversely, in Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd [2024] QDC 088, Porter KC DCJ held that imputations should be particularised with the same precision as a pleading.

[43] (2023) 169 ACSR 584 ('Cooper').

[44] First Croft Affidavit, Exhibit AC-1, 13.

[45] Teh [27]-[33]; Georges; Hoser [78]; M1 v R1 [26]; Russell.

[46] Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd [2024] QDC 088, [57]-[58].

[47] First Croft Affidavit, Exhibit AC-1, 13.

[48] First Croft Affidavit, Exhibit AC-1, 13.

[50] M1 v R1 [29], [43]; Teh [27]-[33]; Randell [25]; Hoser [78].

[51] Exhibit to the Sixth Reiter Affidavit.

[52] Exhibit to the Sixth Reiter Affidavit.

[54] Albeit leave may be required under s 23 of the Defamation Act.