The Uniform Defamation Laws in Australia require an aggrieved person to provide a concerns notice before commencing defamation proceedings.
A recent case, Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FEDCFAMC2G 323, highlights the significance of this requirement.
In this blog post, I discuss the mandatory nature of a concerns notice under the Uniform Defamation Laws and the implications of not adhering to this requirement.
The Uniform Defamation Laws
Defamation laws in Australia were historically inconsistent across different states and territories. However, the introduction of the Uniform Defamation Laws (these particular amendments yet to apply in WA) sought to harmonise these laws across the country, recognising the need for consistency in an era where publications can be disseminated instantaneously throughout Australia. The Uniform Defamation Laws introduced several key amendments to defamation law, including the requirement of a concerns notice before commencing defamation proceedings.
Mandatory Nature of a Concerns Notice
Section 12B(1) of the South Australian Defamation Act (DA) mandates that an aggrieved person cannot commence defamation proceedings unless they have provided a concerns notice to the proposed defendant. The concerns notice must specify the alleged defamatory imputations, the serious harm caused, and include a copy of the allegedly defamatory material.
In Hooper v Catholic Family Services, the court found that the plaintiff failed to comply with the mandatory provisions of the DA concerning the provision of a concerns notice, resulting in the summary dismissal of the defamation aspects of her claim.
Imperative vs. Directory Provisions
The High Court in Clayton v Heffron distinguished between imperative (mandatory) and directory provisions in the context of statutory requirements. Imperative provisions require strict compliance, with non-compliance rendering the resulting action null and void, while directory provisions do not have such fatal consequences, although substantial compliance is still necessary.
The court in Hooper v Catholic Family Services agreed with Gibson DCJ's view in Teh v Woodworth that section 12B(1) of the DA is an imperative provision, emphasizing the use of the word "cannot" in the provision.
Consequences of Non-Compliance with the Concerns Notice Requirement
Failure to comply with the concerns notice requirement can result in the dismissal of the defamation aspects of a claim, as demonstrated in Hooper v Catholic Family Services. The court in M1 v R1 also held that leave could not be granted to retrospectively validate defective concerns notices under the Uniform Defamation Laws.
Key Take-Aways
The Hooper v Catholic Family Services case serves as a reminder of the importance of complying with the mandatory concerns notice requirement under the Uniform Defamation Laws in Australia.
Failing to provide a proper concerns notice can lead to the summary dismissal of defamation claims, and such defects cannot be retrospectively remedied by amendment.
As such, it is essential for those pursuing defamation claims to ensure strict adherence to the concerns notice provisions of the DA.