Further Particulars Notice in Defamation

Further Particulars Notice & Particularisation of Concerns Notices

A concerns notice is a mandatory written notice sent by an aggrieved person to a publisher before initiating defamation proceedings under section the State & Territories Defamation Acts 2005 (as amended). It must:

1. Identify the defamatory matter (e.g., location such as webpage address).
2. Set out the defamatory imputations said to arise.
3. State that the publication has caused or is likely to cause serious harm.
4. For excluded corporations, specify the serious financial loss alleged.
5. Attach the matter in question, if practicable.

A concerns notice must include:

1. Precise defamatory imputations that the aggrieved claims arise from the publication.
2. Specific harm (including financial loss for excluded corporations).
3. Location where the matter can be accessed.
4. Copy of the matter, if practicable.

The level of detail required means the notice should functionally outline the exact imputations upon which the plaintiff intends to rely in proceedings.

Please read our detailed article on concerns notices – https://stonegatelegal.com.au/concerns-notice-in-defamation-complete-guide/

If a publisher does not feel that the concerns notice contains sufficient particularisation, they can send a further particulars notice.

Further Particulars Notices

It is a written request issued by the publisher in response to a concerns notice when they believe that:

1. The imputations are unclear.
2. The location of the publication is not properly identified.
3. The serious harm statement is too vague.
4. Or other mandatory elements under the relevant section of the Defamation Acts 2005 that are missing or insufficient.

The relevant state and territory legislation states:

Section 12A (3) of the Defamation Act 2005 (QLD) says:

If a concerns notice fails to particularise adequately any of the information required by subsection (1) (a) (ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a “further particulars notice’) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

Section 12A (3) of the Defamation Act 2005 (NSW) says:

If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a “further particulars notice”) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

Section 13 (3) of the Defamation Act 2005 (NT) says:

If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a “further particulars notice”) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.

Section 12A (3) of the Defamation Act 2005 (SA) says:

If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a “further particulars notice”) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

Section 12A (3) of the Defamation Act 2005 (TAS) says:

If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

Section 12A (3) of the Defamation Act 2005 (NSW) says (under s 20):

If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

Section 14 (3) of the Defamation Act 2005 (WA) says

If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.

So, each state and territory has legislation stating that a publisher can send a further particulars notice if the aggrieved fails to particularise sufficiently:

1. the imputations of concern; or
2. the information required by subsection (1)(a)(ii), (iii), (iv), or (v).

That’s it.  Nothing more – a concerns notice is not a court pleading, so the rules of pleading do not apply to concerns notices.

At this stage in the process, the publisher can’t demand proof – only clarification, and the notice can’t be used to harass or stall the aggrieved.

If more than one request is made, only the first one triggers the 14-day period relevant for calculating the time for an offer to make amends.

The Information Required by Subsection (1) (a) (ii), (iii), (iv), or (v)

In most of the state and territory legislation, subsections (1) (a) (ii), (iii), (iv), or (v) of the various defamation acts state the following:

(1) For the purpose of this Act, a notice is a “concerns notice” if … (a) the notice …

(ii) specifies the location where the matter in question can be accessed (for example, a webpage address); and

(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question; and

(iv) informs the publisher of the harm that the person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question; and

(v) for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question.

So, a further particulars notice (except in NT & WA – imputations only) can be given in relation to allegations of insufficient particulars in relation to the following only:

1. Failure to properly identify the defamatory matter (e.g., location such as webpage address).
2. Failure to properly set out the defamatory imputations said to arise.
3. Failure to properly state that the publication has caused or is likely to cause serious harm.
4. For excluded corporations, failure to properly specify the serious financial loss alleged.

Therefore, if you get a lawyer demanding particulars in a further particulars notice for anything outside of those things, then you may not have to provide them.

I will explain these in more detail below.

Identification of the Matter Complained Of

The concerns notice must clearly and specifically identify the matter in question — that is, the publication (article, post, broadcast, etc.) said to contain the defamatory content.

This ensures that the publisher knows exactly what is being complained of, can locate and review the content themselves, and can properly assess whether any offer to make amends or legal defence is appropriate.

You must identify the location of the matter in question by providing specific details, such as:

1. Date and time of the publication.
2. Name of the publication (e.g., The Courier Mail).
3. Platform (e.g., Facebook, Twitter, Instagram).
4. Precise URL of the webpage or article.
5. Username or handle of the publisher.

Some examples of this may include:

“The article titled ‘Council Cover-Up’ published on www.newsweekly.com.au on 15 March 2025, available at [URL].”

or

“A video segment aired on Channel 7 News at 6:00pm on 2 April 2025 titled ‘Local Developer Under Fire’.”

or

“A Facebook post by the user ‘@brisbanebuilderwatch’, posted on 20 February 2025 at 10:03am, containing text: ‘Be careful who you hire…’.”

The Defamatory Imputations

You must set out the defamatory meanings (imputations) that you allege are conveyed by the publication. These are the core allegations that you say damage your reputation.

This allows the publisher to understand exactly what about the publication is alleged to be defamatory, know what they are being asked to retract or correct, and consider whether to respond with an offer to make amends under the Act.

Each imputation should be:

1. Clearly expressed – plain language, no vagueness,
2. Separately listed, much like how they would be pleaded in a statement of claim,
3. Logically derived from the words or context of the publication,
4. Capable of bearing a defamatory meaning – i.e., lowering your reputation in the eyes of a reasonable person.

The imputations must be attributable to the matter in question.  They must reflect serious harm to personal or professional reputation.  They should be in substantially the same form as those intended to be relied upon in later court proceedings (see s 12B(2)).

Some examples of this may include:

“The publication conveys the following defamatory imputations:
(a) That the aggrieved person has engaged in corrupt conduct as a councillor;
(b) That the aggrieved person is dishonest and untrustworthy;
(c) That the aggrieved person has committed sexual assault.”

You do not need to explain why they are defamatory – just what the imputation is.

Statement of Serious Harm or Financial Loss

You must assert that the publication has caused or is likely to cause:

1. Serious harm to your reputation (for individuals); or
2. Serious financial loss (if you are an excluded corporation with fewer than ten employees and not-for-profit).

This requirement links directly to section 10A of the Act, which creates a threshold requirement for defamation actions — trivial harm is not enough.

This is to prevent misuse of defamation law for minor slights or hurt feelings and filter out frivolous or non-serious claims.

Read more on the serious harm threshold – https://stonegatelegal.com.au/serious-harm-threshold-in-defamation/

The Consequences of Failing to Provide Sufficient Particulars

Failure to include sufficient particulars in a concerns notice can have serious procedural consequences. Under the state Defamation Acts 2005, a concerns notice must clearly identify the matter complained of, set out the defamatory imputations said to arise from it, and state that the publication has caused or is likely to cause serious harm.

If these technical requirements are not met, the notice will be invalid, and any subsequent defamation proceedings are liable to be struck out.

Moreover, if the publisher issues a further particulars notice under section 12A(3), and the aggrieved person fails to provide reasonable further particulars within 14 days, the concerns notice is deemed not to have been given at all.

In either case, the claimant will be barred from commencing proceedings until a compliant concerns notice is served and the statutory waiting period has elapsed.

This procedural rigidity reflects the legislature’s intention to promote early, non-litigious resolution, but it also means that even a meritorious claim may fail if the notice is not properly particularised.

Relevant Defamation Case Law

Recent judicial consideration of the concerns notice regime under the Defamation Act 2005 (Uniform Law jurisdictions) reveals a growing body of case law grappling with the scope, content, and formal requirements of valid notices. Courts have diverged in their interpretation of what amounts to sufficient particularisation, especially post-2021 reforms that introduced a serious harm threshold and made pre-litigation notices mandatory under section 12B of the Act.

In Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726, the Federal Court adopted a substantive, purposive approach, holding that a notice need not mirror pleadings in formality. A single concerns notice may encompass multiple or substantially similar publications, provided the imputations and alleged harm are meaningfully described.

This contrasts with the more rigid approach in Teh v Woodworth [2022] NSWDC 411, where the District Court struck out proceedings due to the failure to specify the publication sued upon and the lack of serious harm particulars, viewing section 12B compliance as strict and publication-specific.

Other decisions, such as Stevens v Birtic [2024] QDC 160 and Kelly v UNSW [2025] NSWDC 24, reaffirmed that a bare assertion of harm is insufficient. Courts have required the notice to identify not just the defamatory content and its location, but to articulate a causal link between the publication and the reputational or financial harm suffered.

In Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991, the Federal Court again favoured a practical, common-sense application of s 12A, holding that substantial compliance—without pleading-level precision—was enough to validate a concerns notice, particularly where the recipient was able to understand the alleged defamatory sting and consider offering amends.

Across these authorities, a clear theme emerges: while courts remain alert to the remedial and resolution-focused purpose of the concerns notice provisions, a minimum threshold of detail is required. Specifically, the notice must:

1. Identify the publication and its location.
2. Outline the imputations said to arise.
3. Articulate how the harm is serious, with at least some factual grounding.

The following case summaries analyse how these principles have been applied in specific factual contexts, highlighting the evolving judicial approach to compliance and procedural fairness in modern defamation litigation.

Teh v Woodworth & Anor [2022] NSWDC 411

In the case of Teh v Woodworth & Anor [2022] NSWDC 411, the plaintiff issued identical concerns notices to both defendants on 19 June 2022, referencing:

1. The defendants wrote two letters to the Blue Mountains City Council (dated 27 August 2019 and 20 February 2020).
2. The notices identified imputations arising from statements in those letters.
3. The notice also alleged verbal remarks and slander, but failed to specify any dates or content.

The key failures in the concerns notices that the Court considered were:

1. No mention of the allegedly defamatory publication on 16 June 2022.
2. Failed to provide particulars of serious harm – only a bare statement – “You have caused and are likely to continue to cause further serious harm to me.”
3. No particulars of causation between any specific publication and harm.
4. Imputations were interspersed with argument and difficult to follow.

The court found the concerns notice invalid because:

• It did not identify any post-1 July 2021 publication.
• It failed to particularise serious harm, which is mandatory under s 12A(1)(a)(iv) for post-1 July 2021 publications.

No further particulars notice under s 12A(3) was issued.  However, even if such a notice had been issued, the concerns notice would still be invalid due to the absence of serious harm particulars and lack of reference to the relevant publication date.

The court emphasised the mandatory nature of s 12A and s 12B, particularly after the 2021 amendments:

A mere “bare assertion” of serious harm is not enough.

English cases like Soriano and Tewari were also referenced to support the requirement for identifiable causation between publication and harm.

Judge Gibson held at [32]:

This is not a case where the body of the concerns notice identifies harm in any readily identifiable way.

The standard required is more than technical compliance; it must reflect the purpose of a concerns notice – to give the publisher a genuine opportunity to make amends.

Serious harm particularisation must go beyond mere reference to “serious harm”. It must include the nature of the harm (e.g., reputational loss, emotional distress) and a connection between publication and harm.

Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726

In Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726, the relevant concerns notice was a letter sent by the applicant’s solicitor to the editor of The Age on 23 December 2022. The respondents accepted that this letter constituted a valid concerns notice under s 12A of the Defamation Act 2005 (Tas).

The article allegedly imputed that the applicant helped AFL players avoid vaccination; triggered an AHPRA investigation; caused serious reputational harm and a 40% downturn in referrals.

The specific harm alleged included:

1. Emotional distress from a regulatory investigation.
2. Financial loss (drop in referrals).
3. General reputational harm from a large readership.

It did not expressly refer to the online version of the article (published 17 February 2022).

The statement of claim pleading relied only on the online article, raising questions of compliance with s 12B.  No formal further particulars notice under s 12A(3) was issued.

The respondents challenged the sufficiency of the concerns notice. They argued it was defective because it did not refer to the online version of the article.

They did not request further details under s 12A(3), and the court did not consider such a request necessary for them to raise concerns about the notice’s scope.

Justice McElwaine applied a substantive, not overly technical standard to the requirements under s 12A and s 12B.

The key points raised in this case were:

1. The notice need not perfectly articulate every separate publication or cause of action.
2. A single notice can be valid for multiple publications of the same or substantially the same matter.
3. The requirements of s 12A(1)(a)(ii)–(iv) must be met in substance, but not with the formal precision of a pleading.

The Judge rejected the strict approach taken in Teh v Woodworth [2022] NSWDC 411, noting:

It is contrary to [the] purpose [of early resolution] to draw rigid distinctions that turn on how many causes of action exist and which must be identified in a concerns notice.

The court accepted that serious harm was sufficiently particularised, especially as reputational and financial impacts were clearly described.

Justice McElwaine emphasised the purpose of the concerns notice – to allow an informed response and possible resolution, not to serve as a formal pleading.

Staged Plus Pty Ltd & Ors v Yummi Fruit Ice-Creamery Pty Ltd & Ors [2024] QDC 88

In Staged Plus Pty Ltd & Ors v Yummi Fruit Ice-Creamery Pty Ltd & Ors [2024] QDC 88, the Court discussed:

1. Particulars in a concerns notice.
2. Further particulars notices.
3. Standard of particularisation in a concerns notice.
4. What must be particularised.

The concerns notice in this case was dated 17 July 2023, addressed to the second defendant, and expressly stated it was issued under s 12A of the Defamation Act 2005 (Qld).

Key contents of the concerns notice:

1. Thirteen alleged defamatory publications were included, though not all were linked to imputations in the table provided.
2. A table detailed the defamatory statements and corresponding imputations for 10 of the 13 posts. The remaining 3 were not addressed in the table.
3. The imputations alleged were identical across all entries: dishonesty, untrustworthiness, contractual non-compliance, etc.
4. It contained a section titled “Defamatory Meanings and Imputations” and a section on “Adverse Effects”, alleging serious harm.

No further particulars notice under s 12A(3) was issued by the defendants. The judgment notes [at 58] that where a further particulars notice is not issued, a lower standard of initial particularisation is acceptable.

The court engaged in significant analysis of how strictly a concerns notice must be particularised, especially regarding serious harm.

The plaintiff’s concerns notice was criticised because the relevant paragraph on serious harm was poorly worded and somewhat incoherent, but the court interpreted its intended meaning.

Despite this, the court held that a modest standard applies for particularisation in a concerns notice.  The court explicitly rejected the stricter approach taken in M1 v R1 [2022] NSWDC 409, where a higher degree of particularisation was required.

His Honour, Porter KC DCJ stating at [58]:

In my respectful view, absent a failure sufficiently to respond to a request for further particulars notice under s. 12A(5), a concerns notice will be a valid concerns notice in respect of a matter if it, expressly or by implication, informs the publisher of harm. So long as the concerns notice meets that modest standard, particularisation, (much less particularisation akin to a pleading), is not required for the notice to be a valid concerns notice in respect of matter under s. 12B(1)(a).

The court adopted the approach from Cooper v Nine Entertainment Pty Ltd [2023] FCA 726, which emphasised substance over technical form in interpreting the adequacy of a concerns notice.

The concerns notice must inform the publisher of the nature of the harm and the sting of the defamatory matter, but not to a level of pleading precision.

The judge also emphasised the remedial and pre-litigation resolution purpose of concerns notices, discouraging overly technical objections.

Stevens v Birtic [2024] QDC 160

In Stevens v Birtic [2024] QDC 160, the plaintiff issued a concerns notice before commencing proceedings, as required under ss 12A and 12B of the Defamation Act 2005 (Qld). However, the court found that the notice failed to comply with statutory requirements because:

1. It only made a general assertion of harm, without elaboration.
2. It did not explain how, why, when, or where the alleged serious harm manifested.
3. It contained phrases like “great anxiety and stress” and “tendency to cause serious harm,” but lacked specific, factual detail.
4. While it mentioned customers questioning product quality and some ceasing to purchase from the plaintiff, there was no concrete information about causation or business impact.

Ultimately, the court held the notice did not go beyond a bare assertion of harm and was thus invalid.

Although the plaintiff argued the defendant should have issued a further particulars notice under s 12A(3), the court rejected this:

1. The defendant’s reply to the concerns notice challenged its adequacy, stating it failed to establish serious harm.
2. The court found that the defendant was not obliged to use the statute’s specific language to invoke the need for particulars.
3. The judge held that the defendant’s response was sufficient to raise the concern, and there was no requirement that he had to issue a further particulars notice to preserve his right to challenge the claim.

Judge Clarke DCJ held that while a concerns notice does not require pleading-level precision, it must do more than assert harm.

The court endorsed the view from Staged Plus v Yummi that there must be “modest or minimal compliance”—enough detail so the publisher can understand the alleged harm and consider offering amends. Clarke DCJ said at [18]:

Following the analysis of cases in other Australian jurisdictions by Porter KC DCJ in Staged Plus Pty Ltd & others v Yummi Fruit Ice-Creamery Pty Ltd and others [2024] QDC 88, I am prepared to accept that the concerns notice does not necessarily need to identify the ‘serious harm’ caused with the same precision required by pleadings, but nevertheless needs to identify the harm, so that there is at least modest or minimal compliance with the requirement to give a valid concerns notice.

A mere formulaic reference to “serious harm” without factual context or consequences does not meet the standard.

The decision reinforces the requirements under s 12A(1) of the Defamation Act 2005 (Qld). A valid concerns notice must include:

1. The nature and extent of reputational harm
2. Whether the harm is past or future
3. The causal connection between the publication and any lost customers or reputational damage
4. The impact on business operations or social standing.

The concerns notice and pleadings did not adequately specify any of these, and so the proceedings were dismissed under s 12B, finally deciding at [36]:

Taking the plaintiff’s case at its highest and having regard to the nature of the defamatory imputations, I am satisfied the plaintiff has not given a compliant or valid concerns notice to the defendant.

Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991

In Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991, the court was asked to consider the sufficiency of concerns notices when no further particulars notice had been given.

The respondent did not issue a formal notice under s 12A(3) (requesting further particulars). Instead, they sent a letter on 2 February 2024 arguing that the concerns notices were invalid and threatened to bring an application to strike out the defamation claim if they weren’t withdrawn.

The court did not treat this as a formal request for further particulars under s 12A(3), but acknowledged it as part of the procedural history.

The judgment adopts a flexible, substance-over-form approach to compliance with s 12A.  The key principles that were raised in this case were:

1. Concerns notices do not need to have the precision of pleadings.
2. They must identify the publication, imputations, and serious harm, but substantial compliance is sufficient.
3. The court may draw inferences from the context of the notice, even if not perfectly articulated.

Judge Meagher stated:

While the concerns notices may not have been perfectly expressed, they were sufficiently clear to inform the recipients of the publications, imputations, and nature of the harm alleged.

This reflects the position in earlier authorities like Staged Plus v Yummi and Cooper v Nine Entertainment.

The court held that the notices were valid for the purpose of s 12B and did not constitute an abuse of process, stating at [72] and [73]:

In my view, the First Concerns Notice is valid. There is quite a distinction between a concerns notice that makes bare assertions as to the serious harm to the person’s reputation without any basis and a concerns notice such as the one which was provided in this case. In Teh, the concerns notice merely stated “[y]ou have caused and are likely to continue to cause further serious harm.” This is not the case here. The harm which the applicant considers to be serious harm can reasonably be inferred by the references to the applicant’s business and the fact that the publication was made to the potential customers of her business.

With respect to the Second Concerns Notice, I consider that the applicant has provided enough information to make it plain that her integrity has been impeached as a result of the publications. When fairly read, it is clear that this impeachment must go to the applicant’s reputation, particularly in the business context.

Kelly v UNSW [2025] NSWDC 24

In a more recent case of Kelly v UNSW [2025] NSWDC 24, the Court considered:

1. Particulars in a concerns notice.
2. Further particulars notices were given.
3. Standard of particularisation in a concerns notice.
4. What must be particularised.

The plaintiff attached four documents labelled as “concerns notices” to his statement of claim, but the court found they failed to meet the statutory requirements under s 12A of the Defamation Act 2005 (NSW).

Key problems with the concerns notice were identified as:

1. Publications not identified with specificity – references were made to “all claims” or “everything”.
2. No copies of the publications were provided, except vague mention of a report by the third defendant.
3. No imputations pleaded or described.
4. No address or location of publication identified.
5. Statements such as “your publications destroyed my future” were not enough to constitute serious harm particulars.

The first defendant issued a further particulars notice under s 12A(3) on 18 October 2024, requesting the plaintiff to provide:

1. Copies of the publications
2. Dates, addressees, subject matter
3. Details of serious harm.

The plaintiff did not respond but instead prepared and posted a statement of claim before the 28-day period had expired.

Because of this, the court held (under s 12A(4)) that he has not served a valid concerns notice at all.

The court applied a strict view of the statutory requirements in contrast to the broader view.  Gibson DCJ stating at [59]:

I consider that, where a concerns notice is so manifestly inadequate, as is the case here, a recipient should be entitled to ignore it: Russell v S3@Raw Pty Ltd [2024] FCA 991.

The Court decided that the following key standards are required:

1. Identification of each publication with enough specificity.
2. Clear statement of imputations said to arise.
3. Particularisation of serious harm, including the connection between publication and harm and the causation of reputational or economic loss.
4. Provision of copies or descriptions of the matter complained of.

The court held the notices failed on all these fronts and were not merely technically deficient, but substantively void.

Further Particulars Notice – Key Takeaways

A valid concerns notice is essential for defamation proceedings to proceed in Australia. It must be clear, specific, and sufficiently detailed regarding the publication, defamatory imputations, and serious harm or financial loss. The purpose is to facilitate early resolution and prevent litigation over trivial matters.

Further particulars notices are a critical procedural safeguard for publishers, ensuring they are not ambushed by vague or deficient complaints. However, they cannot demand evidence or extend beyond the statutory requirements.

Ultimately, the courts favour substantive compliance and discourage overly technical objections, yet they will not tolerate purely formulaic or vague concerns notices.

Legal practitioners must strike a balance between clarity and pragmatism, ensuring that concerns notices are robust, accurate, and procedurally compliant to avoid delays, dismissals, or cost consequences in defamation disputes.

Further Particulars Notice – FAQ & Answers

Below are some of the most frequently asked questions about concerns notices, and further particulars notices under Australian defamation law.

These answers provide clear, concise guidance on legal requirements, common pitfalls, and best practices.

What is a concerns notice in defamation law?

A concerns notice in defamation law is a written document that an aggrieved person must send to a publisher before commencing court proceedings. It is mandatory under the Defamation Act 2005 (as amended) in every Australian state and territory. The notice must identify the defamatory matter, outline the alleged imputations, and assert serious harm. It gives the publisher a chance to respond or make amends before litigation starts.

What must a valid concerns notice include?

A valid concerns notice must include the location of the defamatory content, the specific defamatory imputations, and a statement of serious harm. If the complainant is an excluded corporation, it must also include details of serious financial loss. A copy of the publication should be attached if practical. These elements are required under section 12A(1)(a) of the Defamation Act 2005.

What is a further particulars notice?

A further particulars notice is a written request from the publisher asking the aggrieved person to clarify aspects of a concerns notice. It is issued when the concerns notice is vague, incomplete, or lacks mandatory information. The notice must specify which elements are inadequate under the relevant defamation legislation. It cannot be used to harass or demand evidence — only to request clarification.

When can a further particulars notice be issued?

A further particulars notice can be issued if the concerns notice fails to properly identify the publication, the imputations, the serious harm, or — for corporations — the financial loss. These criteria are set out in section 12A(3) of the Defamation Act 2005. The publisher has the right to seek clarification only on these points. If the concerns notice is otherwise valid, no further particulars notice is needed.

Is a concerns notice a court pleading?

A concerns notice is not a court pleading and does not require the same level of formality. It is a pre-litigation step aimed at resolving disputes before court action is taken. While it must include specific information, it need not be written in legalese or with the precision of a statement of claim. However, it still must meet statutory requirements to be valid.

What happens if a concerns notice is invalid?

If a concerns notice is invalid, the aggrieved person cannot commence defamation proceedings. The courts may strike out any claim based on a defective notice. The claimant must then serve a compliant concerns notice and wait the required 14 days before taking further action. Invalid notices often fail due to vague imputations or an inadequate serious harm statement.

How much detail should be included in a concerns notice?

A concerns notice should include enough detail for the publisher to identify the publication, understand the alleged imputations, and assess the claimed harm. It must outline the defamatory sting with clarity and link it to reputational or financial damage. Courts require “modest but sufficient” detail, not the precision of a pleading. Vague or generalised assertions will usually not be enough.

What is the purpose of a concerns notice?

The purpose of a concerns notice is to give the publisher a fair opportunity to make amends before a defamation claim proceeds to court. It encourages early resolution and reduces unnecessary litigation. It also ensures that the publisher is aware of the alleged harm caused. The notice serves as a procedural safeguard and legal threshold for defamation claims in Australia.

What is meant by “serious harm” in a concerns notice?

“Serious harm” refers to reputational damage that is more than trivial or fleeting. Under section 10A of the Defamation Act 2005, it is a threshold requirement for all defamation actions. The notice must state that serious harm has occurred or is likely to occur. Some factual context should be included to support the assertion, although proof is not required at this stage.

What is an excluded corporation under defamation law?

An excluded corporation is a company with fewer than 10 employees that is not related to another corporation and is not-for-profit. These corporations can sue for defamation if they also show serious financial loss. The concerns notice must state this loss in clear terms. If not included, the concerns notice will be invalid for that type of plaintiff.

How specific must the defamatory imputations be?

The defamatory imputations in a concerns notice must be clearly stated and logically linked to the publication. Each imputation should be listed separately and written in plain English. Courts expect imputations to reflect how an ordinary reader may understand the material. They should match – or closely resemble – those intended for later use in court pleadings.

What is the consequence of failing to respond to a further particulars notice?

If an aggrieved person does not adequately respond to a valid further particulars notice within 14 days, the concerns notice is deemed not to have been given. This can prevent the claimant from commencing proceedings. The statutory waiting period resets once a valid notice is issued. Failing to respond can significantly delay or derail the defamation claim.

Can a concerns notice refer to multiple publications?

A concerns notice can refer to multiple or substantially similar publications, provided the imputations and harm are clearly described. This is supported by case law, including Cooper v Nine Entertainment. However, the notice must still meet all statutory requirements for each referenced publication. Courts focus on whether the publisher can reasonably understand and respond.

Can the publisher ignore a defective concerns notice?

A publisher may ignore a concerns notice that is so deficient it fails to meet the requirements of section 12A. However, it is generally safer to respond with a further particulars notice. Courts may consider whether the publisher acted reasonably when assessing costs and conduct. Ignoring a borderline-valid notice can carry legal risk if a court later finds it sufficient.

What if the concerns notice lacks a copy of the publication?

If practicable, the concerns notice should include a copy of the defamatory matter. This assists the publisher in identifying the content complained of. While not always mandatory, failure to include the material can weaken the notice’s clarity and effectiveness. Courts may view its absence as a defect if the matter cannot be readily accessed.

What if the publisher sends more than one further particulars notice?

Only the first further particulars notice triggers the 14-day period relevant for calculating time for an offer to make amends. Subsequent notices do not extend or restart the clock. This ensures publishers cannot delay proceedings unfairly by issuing repeated requests. However, additional clarification can still be requested informally.

Does a serious harm statement need supporting facts?

A serious harm statement does not require full evidence, but should be more than a bare assertion. It should briefly outline how the publication has affected reputation, business, or livelihood. Examples might include lost clients, professional backlash, or emotional distress. Courts expect some level of factual grounding to support the threshold.

What does case law say about defective concerns notices?

Australian courts have emphasised that concerns notices must meet a minimum standard of clarity and completeness. Decisions like Teh v Woodworth and Stevens v Birtic highlight that bare assertions are not enough. Conversely, cases like Cooper v Nine Entertainment support a substance-over-form approach. A well-drafted notice improves the chance of early resolution and procedural compliance.

Can a publisher demand evidence in a further particulars notice?

A publisher cannot demand evidence or proof in a further particulars notice. The purpose is to request clarification of missing or vague elements only. It must relate strictly to what is required under section 12A(1)(a)(ii)–(v). Attempts to use the notice to harass or delay may be frowned upon by the court.

What is the risk of using a template or generic concerns notices?

Using a generic or poorly drafted concerns notice may result in it being declared invalid by the court. Courts expect that the notice reflects the specific facts, imputations, and harm alleged. A cut-and-paste approach can miss critical details and cause delays. Tailoring the notice to the situation gives it the best chance of being accepted and acted upon.