Introduction: Recent Case Highlights Importance of Valid Concerns Notices
A recent decision from the Supreme Court of Victoria has underscored the critical importance of properly drafted concerns notices in defamation proceedings. In Reiter v News Corp Australia Pty Ltd & Anor [2025] VSC 54, the plaintiff commenced proceedings against News Corp Australia and journalist Mark Murray over an article published in the Geelong Advertiser. The article, titled "Melbourne professor details bizarre encounter with serial Geelong impersonator Kurt Reiter," contained allegations that the plaintiff had been posing as a lawyer and claiming to work for high-profile musicians. The plaintiff claimed this publication damaged his reputation; however, his case was dismissed for failing to comply with the mandatory concerns notice requirements under the Victorian Defamation Act.
The Role of Concerns Notices in Modern Defamation Law
The 2021 amendments to the Defamation Act 2005 (Vic) introduced a mandatory concerns notice procedure. Similar reforms have been implemented in most Australian jurisdictions (though not yet in Western Australia at the time of writing). These amendments represent a significant shift in defamation practice, designed to promote early resolution of disputes and reduce the burden on courts.
Under the reformed legislation, before commencing defamation proceedings, plaintiffs must:
Issue a valid concerns notice to the publisher
Clearly identify the alleged defamatory imputations
Specify the serious harm allegedly caused or likely to be caused
Allow a statutory period for the publisher to make an offer of amends
The concerns notice regime serves two key purposes, as noted in Georges v Georges; Georges v Georges [2022] NSWDC 558:
To provide publishers with sufficient information to make a reasonable offer of amends before proceedings commence
To encourage potential plaintiffs to consider whether they have suffered serious harm to their reputation that meets the threshold for a defamation action
What Makes a Valid Concerns Notice?
Section 12A of the Defamation Act sets out several essential requirements for a valid concerns notice:
It must be in writing
It must specify where the matter complained of can be accessed
It must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried by the matter
It must inform the publisher of the serious harm the aggrieved person considers has been caused or is likely to be caused
It must attach a copy of the matter complained of, if practicable
Importantly, a document filed to commence defamation proceedings cannot be used as a concerns notice.
The Level of Detail Required
Courts have taken varied approaches to the level of specificity required in concerns notices. As discussed in Reiter, some cases have held that bare assertions of damage are insufficient and that specificity closer to pleading standards is necessary (Teh v Woodworth [2022] NSWDC 411; M1 v R1 [2022] NSWDC 409; Hoser v Herald and Weekly Times Pty Limited & Anor [2022] VCC 2213).
In Hoser, Clayton J stated that adequate precision is needed to ensure neither the defendants nor the Court are required to "perform some mental gymnastics" to understand the alleged defamatory imputations.
However, in Cooper v Nine Entertainment Co Pty Ltd (2023) 169 ACSR 584, McElwaine J adopted a more flexible approach, stating that imputations "are not required to be expressed in explicit language" and that the aggrieved person's obligation is to do "the best that can reasonably be done" in the circumstances.
Consequences of Non-Compliance
The consequences of failing to comply with the concerns notice requirements are severe. In Reiter, the Court found that the plaintiff's proceeding was an abuse of process and dismissed it under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
Non-compliance with section 12B of the Defamation Act can have substantive implications for publishers, as it denies them the opportunity to:
Obtain further particulars of the alleged harm
Make an offer of amends
Potentially rely on the substantive defense provided in section 18
As stated in Reiter, "the commencement of a defamation proceeding which is not permitted by s 12B has the potential to bring the administration of justice into disrepute."
The Waiting Period
Even with a valid concerns notice, plaintiffs must wait 28 days after giving the notice before commencing proceedings, unless the court grants leave. This statutory period is designed to give publishers time to consider and potentially make an offer of amends.
In limited circumstances, a court may grant leave for earlier commencement of proceedings if:
Waiting would contravene the limitation period, or
It is "just and reasonable" to do so
Practical Tips for Drafting a Valid Concerns Notice (not yet applicable in WA)
Drawing from the Reiter decision and other cases, here are some practical tips for drafting a valid concerns notice:
Clearly identify each allegedly defamatory imputation in specific terms
Provide detailed particulars of how the publication has caused or is likely to cause serious harm to reputation
Establish a causal link between the publication and the alleged serious harm
Attach a copy of the matter complained of
Ensure the notice is provided to the correct parties
Wait the full 28-day period before commencing proceedings
Conclusion
The concerns notice regime represents a significant procedural hurdle for plaintiffs in defamation proceedings, but one with important policy objectives. By forcing parties to clarify issues and explore settlement options before litigation, these provisions aim to reduce unnecessary court proceedings and promote earlier resolution of disputes.
Publishers who receive concerns notices should consider them carefully and seek legal advice about available options, including making offers of amends. Potential plaintiffs should ensure they comply meticulously with the procedural requirements to avoid having their proceedings dismissed as an abuse of process.
As Reiter v News Corp Australia Pty Ltd & Anor [2025] VSC 54 demonstrates, courts are taking these requirements seriously, and failure to comply can be fatal to a defamation claim before it even properly begins.