Woolf v Brandt

The second matter complained of

1. The second matter complained of, which is attached as a Schedule to this judgment, was published on 28 August 2021 to the defendant's Facebook followers, who appear to have been more or less the same persons as those to whom the first matter complained of was published, although the number had increased to 52. The parties addressed me on the basis that it was only published in jurisdictions in which ss 12A and 12B of the Act are in force.
2. The setting out of the attached Schedule requires explanation. The concerns notice did not include the whole of either Schedule B or Schedule B1; as it is difficult to understand where the lacunae occur, the version set out at the end of this judgment contains what the parties agree is the whole of Schedule B (the plaintiff's post) and Schedule B1 (the comments), with the words "not in concerns notice" appearing beside the two portions in Schedule B and the six portions in Schedule B1 which were omitted (the terms "Schedule B" and "Schedule B1" are taken from this description of them in the statement of claim).
3. There are further complications in that the concerns notice refers to some of the matter in Schedule B1 as being a "third" matter complained of. Mr Olson in fact commenced his argument by asserting that Schedule B1 is in fact either not sued on at all and merely attached as a particular of publication, or an additional matter complained of, although he appeared to resile from these positions during argument.
4. The plaintiff's concerns notice dated 14 April 2022 was received as a registered letter by the defendant on 25 April 2022. The parties agree that this meant the plaintiff was barred from commencing defamation proceedings based on matters in the concerns notice until 23 May 2022. When, in breach of that mandatory requirement for the second matter complained of, these proceedings were commenced 12 days early, on 11 May 2022, that concerns notice period ended prematurely. Proceedings in relation to the second matter complained of (but not the first) were thus commenced contrary to s 12B(1)(c) and s 14 of the Act and leave to proceed is required for the second matter complained of.

The challenges to the first matter complained of

1. The challenge to the first matter complained of relates solely to the adequacy of the particulars of publication in terms of the names, addresses and dates of downloading for the persons who read the matter complained of. A request was made for these particulars on 15 July 2022, which was responded to by a claim that such particulars "are not particulars our client is required to give in order to establish his causes of action" and a reference to Sims v Jooste (No 2) [2016] WASCA 83 at [19], as follows: "[19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones and MacDonald v Australian Broadcasting Corporation it was held that a plaintiff claiming to have been defamed by material posted on the internet must plead and prove facts which established that the material of which complaint was made had been downloaded and viewed by somebody, without necessarily having to provide particulars of the identity of the person or persons who downloaded the material. The cases also establish that an inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of 'hits' on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. For example, in Scali v Scali screenshots of the defendant's YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at the date of the screenshot, were relied upon as evidence of the fact that the videos of which complaint was made had been downloaded and comprehended by third parties."
2. Mr Olson seeks to rely upon this passage as permitting the proof of publication based on a "platform of facts" (a procedure endorsed in Stoltenberg v Bolton [2020] NSWCA 45 at [33] which does not necessarily include specific particulars of downloading).
3. Mr Smartt argues that it has always been the law that a plaintiff is required to specify the statement of claim the names of persons to whom allegedly defamatory material was published, citing Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 191 - 2 and 193 (see also Williams v Radio 2UE Sydney, Supreme Court of New South Wales, Levine J, 3 December 1993).
4. Both these decisions predate the internet, and deal with problems where a plaintiff's identity may arguably be unknown to any of the recipients of the publication. In Lazarus, the plaintiff was called a coward by a Lufthansa crew member, in front of fellow passengers and crew (all of whom were strangers), while the plane on which they were travelling had stopped in Delhi in the middle of the night. Hunt J stated that particulars of the identity of the persons, "either general or precise" (at 192) were required in such circumstances, by reason of the defences of qualified privilege and triviality. As Mr Lazarus could not name those persons, he was permitted to identify them in a "general" way, but on oath (at 195).
5. In the days of print publication, such as newspapers and books, particulars of identification in the form of names, addresses and location of reading the matter complained of were the exception rather than the rule, generally being ordered only where the plaintiff was not named, and decisions such as Lazarus must be read in that context.
6. However, in the computer age, the requirement that a plaintiff in a non-mass media case must specify the names of the persons to whom the matter was published by providing particulars of downloading is now general practice and will be the subject of orders if not provided: Cronau v Nelson [2018] NSWSC 1769 at [11]-[14]; Stoltenberg v Bolton at [55]-[56]. It is not sufficient for a plaintiff to assert that the publication being on the Internet, it must have been seen by someone. In Newman v Whittington [2022] NSWSC 249, Sackar J stated at [20]: "[20] I would therefore not grant leave to proceed with those matters. Quite simply the plaintiff in relation to those matters cannot plead the necessary material facts. She is unable to indicate to whom, when or more importantly even where, these publications occurred."
7. The difficulty the defendant faces is that the plaintiff has now provided the names of two persons and while the precise times and places of downloading are not currently known, is willing to give them. This concession is made very late in the piece, and will require an amended pleading, but I see no reason why leave should not be granted, in the amended statement of claim which it will be necessary to file after this judgment, to provide full particulars of the person, the date and the place of each downloading.
8. Mr Smartt submitted that the details were supplied too late and that two persons are insufficient, and that the claim concerning the first matter complained of should be struck out as being "a tempest in a teacup" (to use the description of events given by Hunt J in Lazarus).
9. I do not consider these defects warrant striking out the proceedings entirely. It is sufficient, to establish publication, for only one person to be named. There are in fact more; the other persons identified as having reacted, who are nine in number, should also be taken into account if sufficient particulars may be provided. In addition, it is possible to take account of likes and reactions as part of the platform of facts.
10. The defendant's application for summary dismissal in relation to the first matter complained of is accordingly refused.

The second matter complained of

1. Mr Smartt seeks the summary striking out of the second matter complained of on the following grounds: 1. Proceedings for defamation were commenced less than 28 days after service of a concerns notice, in circumstances where the plaintiff did not, at the same time as filing the statement of claim or earlier, seek leave to do so, and the plaintiff should not now be granted that leave. 2. Contrary to s 12B(1)(a), the plaintiff commenced proceedings without giving a concerns notice in respect of the full and proper text of the matter complained of. As is evident from the document set out in the Schedule to this judgment, large sections of the second matter complained of were missing and the precise parameters of what the defendant is to be sued for are unclear. Part of the problem is that the plaintiff failed to provide the location where the matter in question can be accessed, namely the webpage for URL address. A mere reference to the defendant's Facebook page is insufficient because this does not give any further indication of whether the matter in question can be accessed, other than on the date in question, which may not be sufficient to convey the full context.
2. I will consider the plaintiff's application for leave nunc pro tunc (the challenge to which forms part of the first ground for summary dismissal in [23] above) at the same time.

The leave provision in s 12B

1. Section 12B(3) provides: "(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."

The circumstances in which the statement of claim was filed before 28 days had expired

1. The plaintiff's solicitors' concerns notice of 14 April 2022 sets out the two publications the subject of complaint, followed by particulars of identification, defamatory imputations, particulars of loss of reputation and aggravated damages and then made the following demand: "Demand 15 Our client demands that you immediately retract and cease any and all defamatory publications and communications about or in relation to our client. 16 Please note that our client is prepared to commence proceedings against you to recover his loss and damage. Nevertheless, our client is willing to engage in non-litigious resolution of this matter. 17 Our client further requires that you make an acceptable 'Offer to Make Amends' pursuant to section 15 of the Defamation Act within 28 days of the date of receipt of this letter [Note: this part of the letter was highlighted in bold." 18 Your 'Offer to Make Amends' must include the following provisions: a. You must provide a signed copy of the apology & retraction in Annexure A of this letter. You agree that our client may publish, print, circulate, show or otherwise make available to any person and on any platform at any time he sees fit; b. You must post a copy of the signed apology and retraction letter on your Facebook Page within seven (7) days of accepting this offer, and this apology is not to be removed or altered by you; c. You must provide our client with permanent undertakings, that you will: i. remove and retract all publications and comments about or in relation to our client made by you, and in particular any publications by you about or concerning our client that still remain published and/or otherwise visible to any third party; ii. not to do or say anything which might derogate from the effectiveness of the apology and retraction; iii. not to publish same or similar comments about or in relation to our client in the future; iv. to provide a clear signed copy of the apology to Harris Defamation Lawyers within seven (7) days of the date of the Undertaking [Note: this was in bold in the original]; v. to provide to Harris Defamation Lawyers, within fourteen (14) days of the date of the Undertaking [Note: this was in bold in the original], a complete list of all persons, organisations or otherwise whom you have contacted or otherwise published material to about or concerning our client and/or the Business that is either untrue, damaging, misleading, deceptive, humiliating or otherwise defamatory, within the past twelve (12) months; d. You must pay our client's reasonable legal costs incurred to date, and in considering your response to this letter, which we estimate to be in the sum of $2,200 including GST within 28 days of the date of your acceptance of this offer [Note: this was in bold in the original]; e. Payment should be made to our firm's trust account as specified below: Commonwealth Bank of Australia 240 Queen Street, Brisbane BSB: (redacted) Account Number: (redacted) Reference: MRC572 We anticipate receiving our client's instructions to take further action against you in the event you fail to comply with the above demand, noting any such action will incorporate a claim for damages that is anticipated to substantially exceed the sum requested in this Concerns Notice, as well as interest and costs on an indemnity basis. You would be aware that this Concerns Notice is a way to recover costs that our client incurs by pursuing you. We reserve our client's right in all respects."
2. The reference to 28 days, which was in bold lettering, was an important feature, in that it indicated to the defendant that he needed to respond promptly. This was reinforced by the covering letter, which stated that if the defendant proposed to make an offer to make amends, he should provide by return mail so that the plaintiff's instructions could be sought.
3. The letter had an immediate impact on the defendant. Having received the letter on Friday 22 April 2022 at 9.05, the defendant recorded the following: "Just received a letter from a defimation [sic] lawfirm [sic] representing richard woolf After reading through it I was so distressed that I slammed my head into my desk as hard as I could at least 5 times while shouting as loud as I could before collapsing onto the floor and crying uncontrollably I honestly don't know if I can deal with this"
4. He did, however, respond on Tuesday 26 April 2022 as follows: "Hello Mr Caldwell, Recently I received a Concerns Notice from your firm representing Mr Richard Woolf. Firstly, I would like a copy of the Concerns Notice to be sent to this email address. Secondly, in part 16 of the Concerns Notice you state "our client is willing to engage in non-litigious resolution of this matter". I would like further clarification on the manner in which your client wishes to proceed with non-litigious resolution since to my knowledge there is no longer any way for me to directly contact them. "
5. On Tuesday, 3 May 2022 the defendant sent the following email to the solicitor for the plaintiff: "Mr Caldwell, Although you and your client may be under the [sic] impression that I have the capability to pay you due to my trust fund, I must inform you that the fund is depleted and I am currently unemployed with no likelihood of employment in the near future, as well as thousands of dollars in debt owed to credit agencies and the government. I do not have the capacity to and therefore will not be paying for your services to your client. As a gesture of good faith I have made the Second Matter Complained Of only visible to myself (evidence attached), I am also willing to delete the Second Matter Complained Of and subsequently the [sic] Third Matter Complained Of If your client agrees to not proceed with litigation. I will not be complying with your request for a statement of retraction or an apology to your client. To clarify, this gesture is in no way an admission that I have made defamatory publications about your client. And as for The First Matter Complained Of I Have already deleted the post at the request of your client as mentioned in my conversation with your client via text message on Saturday the 22nd of May 2021 at 13:03, this statement is in no way an admission that I have made any defamatory publications about your client. I look forward to your prompt response."
6. On 6 May 2022 the solicitors for the plaintiff sent the following letter to the defendant: "Dear Mr Brandt, Woolf -v- Brandt - Concerns Notice 1. We refer to our previous correspondence to you dated 14 April 2022, being a Concerns Notice for the purposes of Part 3, Div 1 of the Defamation Act 2005 (NSW) (the Act). 2. Our client repeats and relies on the contents of the Concerns Notice. 3. We refer to your email to our firm dated 3 May 2022 (your Email), where you state words to the effect that: (a) you have restricted the audience of the Second Matter Complained Of to yourself only; (b) you would consider deleting the Second and Third Matters Complained Of; (c) you will not provide an apology to our client or payment of our client's legal fees. 4. Further, we are instructed that subsequent to your receipt of the Concerns Notice, you have published a number of further publications of or concerning our client, primarily on the social media platform, Snapchat. Publications following receipt of the Concerns Notice 5. We understand you have published further publications of and concerning our client, including but not limited, to: (a) On 22 April 2022 via Snapchat; and (b) On or around 27 April 2022 via Snapchat. 6. We further understand in the further publications by you, you have expressly named our client. 7. Our client is concerned that your decision to publish further publications of or concerning our client, and the method of publishing same (being on Snapchat) will increase the attention attracted to the Matters Complained Of, as particularised in the Concerns Notice, and may further harm our client's reputation. 8. As you may be aware, publishing defamatory statements of or concerning our client subsequent to the receipt of a Concerns Notice may be a factor taken into account by the court in assessing aggravated damages and/or malice. 9. In any case, it is necessary for our client to seek an undertaking from you that you will refrain from publishing further material or republishing material of or concerning our client in the future. Demand 9. As particularised in the Concerns Notice, our client demands that you immediately retract and cease any and all defamatory publications and communications about or in relation to our client. 10. Please note that our client's intention to commence proceedings against you is genuine should you fail to comply with the above demand. Nevertheless, our client is willing to provide a final opportunity for you to make an acceptable 'Offer to Make Amends' pursuant to section 15 of the Defamation Act. 11. Your 'Offer to Make Amends' must be made on or by 9a.m. 9 May 2022 by return email to (redacted) and include the following provisions: (a) You must provide a signed copy of the apology & retraction in Annexure A of this letter. You must agree that our client may distribute the signed apology and retraction as he sees fit; (b) You must post a copy of the signed apology and retraction letter on your Facebook Page within seven (7) days of accepting this offer, and this apology is not to be removed or altered by you; (c) You must provide our client with permanent undertakings, that you will not: (i) republish the Matters Complained Of, or other matter substantially of the same effect; or (ii) publish other matter(s) conveying the defamatory imputations set out in the Concerns Notice; or (iii) do or say anything which might derogate from the effectiveness of the apology and retraction; and (d) You must provide a clear signed copy of the apology to Harris Defamation Lawyers within seven (7) days of the date of the Undertaking. 12. We consider the above offer is fair and reasonable in the circumstances and makes no request for payment of the legal fees our client has incurred to date. 13. We anticipate receiving our client's instructions to commence proceedings against you without further notice to you and before 11 May 2022 in the event you fail to comply with the above demand. Our client will seek monetary damages, as well as an injunction against you, plus interest and payment of our costs on an indemnity basis, the amount of which may be considerable, and we would estimate between $50,000 to $100,000. 14. We reserve our client's rights in all respects. 15. We encourage you to seek legal advice about the contents of this letter. 16. We look forward to your prompt response." "APOLOGY & RETRACTION TO RICHARD WOOLF Attn: Richard Woolf C/- Harris Defamation Lawyers Level 7,193 North Quay BRISBANE QLD 4000 To Mr Woolf, Between on or about 11 May 2021 and on or about 28 August 2021, I published a series of defamatory comments about or in relation to you on my personal Facebook Page. I acknowledge the comments made by me contained allegations such as rape, sexual assault, abuse and stalking which carry serious criminal penalty. There was no basis for me to make these comments and I understand that the comments had the potential to, and did, damage your reputation. The statements I made were false. I unreservedly apologise to you for my actions and my comments, which were untrue and unjustified." "To: Harris Defamation Lawyers Level 7,193 North Quay, BRISBANE QLD 4000 UNDERTAKING TO RICHARD WOOLF I, Nicholas Brandt, hereby undertake: 1. to remove and retract all publications and comments made by me about or in relation to Mr Richard Woolf that are either untrue, damaging, misleading, deceptive, humiliating or otherwise defamatory; 2. not to publish or otherwise make any comments in relation to Mr Richard Woolf that are either untrue, damaging, misleading, deceptive, humiliating or otherwise defamatory; 3. not to do or say anything which might derogate from the effectiveness of my apology and retraction of the defamatory comments made by me about or in relation to Mr Richard Woolf; 4. to return a clear signed copy of the apology and retraction drafted and provided to me by Harris Defamation Lawyers within seven (7) days of the date of this Undertaking; 5. to publish the apology and retraction drafted and provided to me by Harris Defamation Lawyers on my personal Facebook Page within seven (7) days of the date of this Undertaking."
7. The new compliance date of 11 May in paragraph 13 of this letter is important, as that is the date on which the statement of claim was filed, as the affidavit of the process server and makes clear.
8. The statement of claim was not served until 20 June 2022. However there was no prior warning of the defendant as to the significant shortening of time for the commencement of the proceedings, namely the shortening to 11 May 2022 when in fact he had 28 days from the receipt of the registered letter. In other words, not only did the plaintiff's solicitors shorten the 28-day period to 16 days, but they did not tell the plaintiff that they were doing so contrary to his entitlement to have 28 days, and they did not serve him with the statement of claim or tell him that they had filed it.
9. Mr Smartt reminded me that the plaintiff is a 20-year-old self-represented person and submits that he would not have understood any of these matters, noting the distressed state he was in at the time, as his phone message about his response to the concerns notice makes clear.
10. The breach of ss 14 and 12B(1)(c) of the Act is acknowledged. The only way that a claim based on the second matter complained of can proceed is if leave is granted nunc pro tunc.
11. Mr Smartt submits that leave cannot be granted after the proceedings are commenced and, if this submission is incorrect, that leave should not be granted.

Can leave be granted nunc pro tunc?

1. The plaintiff, having already commenced proceedings, seeks leave under s 12B(3) nunc pro tunc. Mr Olson submits that there is nothing in the language of this section to indicate such orders cannot be made.
2. The principles for determining whether leave can be granted nunc pro tunc are set out in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90. At [48], Beazley JA considered that leave under s 23 could not be granted nunc pro tunc, but McColl JA and Sackville JA held otherwise.
3. As Katzmann J noted in Massarani v Kriz [2022] FCA 80 at [66], Beazley JA's position was consistent with the approach taken to the predecessor of s 23, s 9(3) of the Defamation Act 1974 (NSW), which similarly prohibited a person from bringing further proceedings against the same defendant "in respect of the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought": see Spautz v Kirby (1989) 21 NSWLR 27 at 30D (Hunt J); Lee v Kim (2006) 68 NSWLR 433 at [33] (Handley JA, Beazley and Santow JJA agreeing). Katzmann J noted that the purpose of s 9(3) of the 1974 Act was to remedy the defects of the 1958 Act due to changes in publication, "because of the multiplicity of causes of action which may attend the dissemination of defamatory matter": NSW Law Reform Commission, "Report on Defamation" (Report 11, 1971) at app D, [51].
4. Beazley JA's reasoning was as follows: "[44] Section 23, however, regulates what may be done in a particular circumstance, in that it proscribes the bringing of further defamation proceedings against the same defendant, "except with the leave of the court". The requirement of leave is directly related to the bringing of proceedings. In my opinion, that is a proscription on the bringing of proceedings, rather than a regulation of the manner in which the proceedings may be brought. Importantly, there are no equivalent provisions in the Defamation Act to the Corporations Law, ss 467 and 467(a), which was influential in the reasoning of Gaudron J in Emanuele. [45] I am also of the opinion that the text of s 23 and, in particular, the words "except with the leave of the court in which the further proceedings are to be brought" (emphasis added), requires that leave be obtained before the commencement of the further proceedings." [Note: these words appear in bold in the judgment.]
5. What is the language here? The reference in s 12B(3) to "may grant leave for a proceeding to be commenced" is very close to the language in s 23 "are to be brought".
6. However persuasive the arguments of Beazley JA and the first instance judge in Carey v Australian Broadcasting Commission may be, they remain unaccepted, and this means that the plaintiff is entitled to bring such an application nunc pro tunc.

"Just and reasonable"

1. What does "just and reasonable" mean? This term appears in limitation legislation (see, for example, Cavanagh v State of New South Wales [2008] NSWCA 350) and, in personal injury litigation, often involves consideration of "unexplained failure" (Millard v State of Victoria [2006] VSCA 29 at [1] per Chernov JA) by a plaintiff or his solicitor to commence proceedings prior to the expiry of the limitation period. It is a term permitting consideration of "a wide range of circumstances that may be relevant to the exercise of a discretion" (Commissioner of State Revenue v Artistic Pty Ltd [2008] WASCA 24 at [21] per Martin CJ). Conformably with those principles, I invited Mr Olson to set out why it would be just and reasonable to do so.
2. Mr Olson's submissions were as follows: 1. The requirements for s 12B(1)(c) must be read in the light of the purpose of concerns notices. The point of the 28-day period is to promote negotiation but if those negotiations break down or are completed in less than 28 days, there is no injustice in abridging time under s 12B(3) because the publisher has had as much time as he or she needs. In this case, there was no utility in continuing the negotiation process as it had effectively come to an end. What is more, the defendant had stated categorically, in his email of 3 May 2022, that he could not pay any legal costs, which meant that he could not make a valid offer to make amends as payment of reasonable legal costs is a prerequisite to a valid offer. The negotiation procedure came to an end with the defendant's 3 May 2022 email refusing to pay costs. 2. The limitation period for the first matter complained of was about to expire and proceedings had to be commenced; commencing proceedings for both publications (and not just the publication with the limitation period problem) was, he argued, the only way to resolve the limitation problem. If leave were not granted nunc pro tunc, the plaintiff would be unable to recommence proceedings in relation to the limitation-barred action because the plaintiff could not survive the limitation test. The plaintiff should not be shut out from commencing and continuing in relation to each of these very serious claims. 3. A grant of leave under s 12B(3) is reasonable "because it is simpler and involves less cost than the alternative, which would have required the filing and service of an Amended Statement of Claim" (submissions, paragraph 19).
3. I do not accept that it would be just and reasonable to do so, for the following reasons.
4. The first is that the 3 May 2022 email was not the end of negotiations, as the content of the letter from the plaintiff's solicitors' letter to the defendant of 6 May 2022 demonstrates. They were proposing to continue the negotiations, but they are moving the date for his compliance forward, in that he no longer had 28 days but must now respond by 11 May 2022, as proceedings would be commenced on that day.
5. This would be confusing for any recipient of such a letter, let alone a self-represented young man just out of his teenage years. What is of concern to me, in the exercise of my discretion, is that the solicitors for the plaintiff had earlier told the defendant he had 28 days to make an offer (which the defendant was doing, in terms of responding to the correspondence). Suddenly and without warning, the solicitors for the plaintiff then wrote to him on 6 May 2022 to say that his response must be received by 11 May 2022, without explaining why or even pointing out that the period of time for response has been unilaterally shortened by them by 12 days.
6. Two portions of the letter are of interest. First, this much earlier date is accompanied by a steep increase in the likely estimate of legal fees, which would have been intimidating to anyone: "We anticipate receiving our client's instructions to commence proceedings against you without further notice to you and before 11 May 2022 in the event you fail to comply with the above demand. Our client will seek monetary damages, as well as an injunction against you, plus interest and payment of our costs on an indemnity basis, the amount of which may be considerable, and we would estimate between $50,000 to $100,000." [Note: emphasis in the original.]
7. While it must be acknowledged that the plaintiff's solicitors added that they "encourage you to seek legal advice about the contents of this letter", nowhere do they reveal why the date for compliance has been moved forward by 12 days to 11 May 2022, or that this would be contrary to s 12B(3) unless the court granted leave to do so. This letter would have been as terrifying as it was confusing.
8. The second portion of the letter which is of interest is paragraph 12B: "12. We consider the above offer is fair and reasonable in the circumstances and makes no request for payment of the legal fees our client has incurred to date." [Note: emphasis added.]
9. The plaintiff was making an offer which did not include legal fees. In those circumstances, Mr Olson cannot say that the defendant's refusal to pay legal fees in his 3 May 2022 email brought the negotiations to a dead end. What did bring negotiations to a dead end is that the plaintiff took no further action to discuss the proposals in the correspondence because the plaintiff had, of course, commenced proceedings on 11 May 2022, and it would have been hard for the plaintiff's solicitors to send further correspondence about settling the case without revealing that this step had been taken.
10. The claim that the plaintiff considered the negotiations over (and was entitled to do so) after the email sent on 3 May 2022 by the defendant is inconsistent with these events.
11. The second reason is that, when the proceedings were being filed and served, no application was made to the court for leave to continue the proceedings which had been commenced in breach of the 28-day requirement. No formal application to the court was made until Mr Olson's written submissions of 8 December 2022.
12. Mr Olson submitted that failing to seek leave earlier was reasonable conduct, as it may have been the case that the defendant's legal representatives would not take the point. Given the stream of interlocutory applications coming before this court on concerns notices, I consider the taking of such an indulgent view by the opposing party to be most unlikely.
13. Parties expecting courts to determine issues such as "just and reasonable" should themselves behave reasonably, and this includes advising the court at the earliest opportunity of matters uniquely within their knowledge, such as failure to comply with s 12B(3), particularly in circumstances where indulgences from the court such as an extension of time to service the statement of claim are sought. There may be only a faint aroma of equity in the term "just and reasonable", but there remains an expectation that the party seeking such just and reasonable determination will itself behave in a just and reasonable way.
14. Although it is a minor point, the plaintiff delayed service of the statement of claim until well past the 28-day period and during that time, when the claim came before this court's Defamation List, twice (on 9 and 16 June 2022) sought an extension of time for service without revealing that proceedings had been commenced in breach of the 28-day requirement and that they had been in regular contact with the plaintiff at all relevant times up to five days before filing the statement of claim. Delay in service is contrary to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 10.1, and is particularly serious if it occurs after the expiration of the limitation period: Tolcher v Gordon [2005] NSWCA 135 at [3]. The extension of time to serve is a matter of discretion and there must be a real question as to whether an extension of time would have been granted if the court had been apprised of this fact. An application under UCPR r 12.11 to set aside the ex parte orders I made extending time could well have been brought by Mr Smartt. (In case it is said that the Defamation List judge should pick up these issues, no judge managing the List could have known the proceedings were commenced within the 28-day period because, contrary to UCPR r 14.30, the concerns notice was not attached to the statement of claim.)
15. The third reason is that the asserted urgent need for commencement of proceedings was unnecessary. No explanation is offered for the reasons for delay for sending the concerns notice, and that delay was the real reason for the problem, not the imminent expiry of the limitation period. Nor was the issue managed in a frank and open fashion with the defendant and with the court. The best course would have been to seek the court's leave at the same time as filing the statement of claim. Alternatively, the plaintiff could have filed a statement of claim suing on the first matter complained of and amended the statement of claim as of right within the 28-day period during which amendment is permitted without leave (although doing so might run the risk of an argument that such conduct was inconsistent with the spirit of the legislation and invalidated the concerns notice). These steps would be more cost-effective than the costs of resolving the complexities of the current application.
16. The fourth reason is that the period of 28 days for the offer of amends is intended to be a period of genuine negotiation and provision of information, as Abadee DCJ sets out in Georges v Georges [2022] NSWDC 558 at [65]-[75]. The introduction of the concerns notice provisions was one of the key reforms aimed at achieving a better balance where the publication was on social media and/or the extent of publication limited, as the Attorney-General of New South Wales, Mr Mark Speakman SC MLA explained when he introduced the Bill at the Second Reading speech on 29 July 2020: https://www.facebook.com/watch/?v=336492017350972.
17. Both matters complained of in these proceedings fall into that category. The plaintiff and defendant had had a relationship breakdown, as many if not most of the readers would have known, and the publications would have been read in that context. The extent of publication was very small. The plaintiff can only point with certainty to two persons who read the first matter complained of and the particulars for the second matter complained of are not much bigger. This was a case crying out for non-litigious resolution through a concerns notice process. A party who unilaterally shortens the 28-day period for no better reason than those given here runs the risk, whether proceedings are commenced or not, of invalidating the notice as well as failing to satisfy the requirements for leave.
18. Finally, as to the asserted lack of utility in proceeding with discussions when the defendant had said he had no money to pay legal costs, this is a matter for negotiation. In fact, that was the case here, as the plaintiff's letter of 6 May 2022 indicated a willingness to make and accept an offer which did not involve the payment of costs, as is noted above.
19. Individually as well as together, the above grounds constitute reasons why, if leave nunc pro tunc is permissible (which I accept is the case), leave should not be granted.
20. I briefly note that the parties agree that the imminent expiry of the limitation period for the first matter complained of is not a proper basis for the seeking of leave under s 12B(3)(a), as it is not a publication for which a concerns notice is required.

Failure to give proper particulars of publication in the concerns notice

1. In view of my refusal of leave under s 12B(3)(b), my findings on this issue will be brief.
2. The plaintiff could have established the text of each of the matters complained of (whether two or three in number) in the concerns notice as follows: 1. He could have attached copies of the matters complained of to the concerns notice, as is suggested in s 12A(1)(b), as a screenshot or photocopy of the post. This is good practice, but not mandatory. 2. He should have specified the web page or pages where the matter in question could be accessed, such as a webpage, conformably with s 12A(1)(ii). This is mandatory.
3. The plaintiff failed to take either of these steps. As to the first method, namely providing a copy, a version of the part of the second matter complained of labelled Schedule B was typed out, but two of the passages are missing. The part of the second matter complained of set out in Schedule B1 has six missing passages and is described in the concerns notice as the third matter complained of. That is unsatisfactory.
4. As to the second method, Mr Smartt points out that providing a copy cannot function as a substitute for complying with s 12A(1)(ii), but it certainly would have been preferable to providing an inaccurate typed copy. All that was provided in terms of access, to comply with s 12A(1)(ii) was the statement that the matters were published "via your Facebook username", with this term being defined on page 1 of the concerns notice as "the Facebook profile with username 'Nicholas Brandt' being your personal Facebook page".
5. Mr Olson submitted that the defendant was in fact in no doubt as to what the text of the matter complained of was, in that he sent back a version that he had of the post described in the concerns notice as the second matter complained of, marked to show that it was now visible only to himself.
6. I do not accept this submission. The fact that the defendant thought what was being complained about was this part of the matter complained of merely demonstrates that he had no proper understanding of what he was being sued for.
7. It is a mandatory requirement to provide the location, because social media changes so quickly, as Mr Smartt notes in his written submissions. This is particularly the case if there is a long delay between publication and the concerns notice, as is the case here. If the matter is no longer online, a description of the site where it was, accompanied by a screenshot, should be provided. The failure to provide a full copy of the matter complained of runs the risk of complaint that the matter complained of (and thus the imputations) are not the same. Whether or not that is the case here, the failure to provide proper and full details of the site address at which publication had been viewed is a failure to comply with s 12A(1)(a)(ii) and the concerns notice is invalid for this reason.

Concluding remarks

1. I have required the plaintiff to provide full particulars of downloading for the first matter complained of and struck out the second matter complained of. In those circumstances, the plaintiff should pay the defendant's costs, although I have granted liberty to apply to permit additional or different costs orders if such are sought.
2. The parties have expressed an interest in early mediation. I recommend this course to both sides.

Order: 1. Leave to the plaintiff to amend the statement of claim in 7 days as follows: 1. The plaintiff is to provide full particulars of downloading for the first matter complained of, including each of the persons' names, locations and dates of each download. 2. The plaintiff's application for leave nunc pro tunc pursuant to s 12B(3)(b) of the Defamation Act 2005 (NSW) to continue the claim for defamation for the second matter complained of in paragraphs 5 - 9 of the statement of claim is refused; these paragraphs of the statement of claim are struck out and dismissed. 1. Plaintiff pay defendant's costs with liberty to apply. 2. The parties are to bring in Short Minutes of Order for a further timetable in these proceedings.

Schedule NOTE: The poor quality of resolution of this schedule is the best quality that the parties can provide. 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: 15 December 2022