Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    The amended interlocutory application filed on 4 March 2024 be dismissed.

2.    The third respondent pay the applicant’s costs of and incidental to the amended interlocutory application filed on 4 March 2024.

3.    By 4:00pm AEST on 12 September 2024, the parties are to provide the Court with any agreed draft orders providing for the steps to be taken to progress the proceeding to trial.

4.    If the parties are unable to agree on the draft orders referred to in order 3, the proceeding be listed for a case management hearing on a date to be advised administratively.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    Before the Court is an amended interlocutory application by which the third respondent seeks that the proceedings against him, insofar as they relate to the alleged defamation, be dismissed pursuant to s 10A of the Defamation Act 2005 (Vic). In the alternative, the third respondent seeks that the relevant paragraphs of the further amended statement of claim (FASOC) be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

2    By an amended originating application filed on 28 March 2023, the applicant seeks damages against the respondents for contraventions of ss 18 and 37(2) of the Australian Consumer Law (ACL), being Schedule 2 of the Competition and Consumer Act 2010 (Cth), as well as for breach of contract with respect to the first respondent. The applicant also sought injunctive relief and damages in respect of allegedly defamatory publications by the first and third respondents.

3    The third respondent asserted that the application before the Court raises two questions; first, whether the element of serious harm has been established and second, whether the concerns notices are valid. However, throughout his written submissions and over the course of his oral submissions, it became clear that the relief sought by the third respondent at paragraph 2 of the amended interlocutory application was on one, or both, of two bases, either that the pleadings failed to particularise “what [the] serious harm actually is”, or that due to the claimed deficiencies in the concerns notices, they should be struck out as an abuse of process.

4    The third respondent read the following material:

    The amended interlocutory application filed on 4 March 2024;

    The written submissions filed on 12 March 2024;

    The written reply submissions filed on 8 April 2024;

    The FASOC filed on 28 March 2023;

    The third respondent’s defence filed on 23 June 2023;

    The affidavit of Ms Elizabeth Jane Goad filed on 12 March 2024;

5    The applicant read the amended written submissions filed on 2 April 2024, the affidavit of Mr Gregory John Litster filed on 6 March 2023, the orders of this Court made on 7 February 2024 and the interlocutory application filed on 16 February 2024.

6    For the reasons that follow, the interlocutory application is dismissed.

background

7    The third respondent was the sole director and secretary of the first respondent, a company which operated as a boutique Pilates and Barre studio in Ripponlea, a suburb of Melbourne in Victoria (the business). The applicant worked as a manager at the business pursuant to an Option and Service Agreement.

8    In November 2022, the first third respondents are alleged to have published a post on the social media platform, Instagram, about the applicant (Main Post). The applicant alleges that the various statements made in that post carried defamatory imputations including that the applicant had acted deceitfully, dishonourably and in breach of her contract with the respondents, that she had conceived and executed a dishonourable plan to pretend that she was purchasing the respondents’ business when she had no intention of doing so, and, as pleaded in paragraph 46 of the FASOC, that the applicant had “cheated the respondents out of a valuable business with substantial goodwill”. The third respondent pleads that the Main Post was removed approximately 10 minutes after being posted.

9    On 11 November 2022, the applicant sent to the first and third respondents a concerns notice in relation to the Main Post (First Concerns Notice). The applicant did not receive a response to the First Concerns Notice.

10    In January 2023, the first and third respondents further published a number of Instagram posts about the applicant (January Posts). The statements in the posts are alleged to have further defamatory imputations as to the applicant’s character, including that she is a thief, is untrustworthy and deceitful, acted dishonourably and that she unlawfully misused confidential information of the business.

11    On 20 February 2023, the applicant sent the first and third respondents a second concerns notice (Second Concerns Notice). On the same day, the third respondent replied by email as follows:

I reject your letter in its entirety for its characterization of my comments. Everything I have said in my comments was an accurate description of the circumstances of Hayley’s involvement with my business and the events that followed.

12    On 27 February 2023, the applicant filed an interlocutory application seeking injunctive relief for the January Posts to be removed, as well as restraining the first and third respondents from re-publishing the Main Post and January Posts and publishing any material to the same or substantially the same effect as the Main Post and January Posts. On 23 March 2023, the applicant filed an amended interlocutory application seeking orders including that the third respondent be taken to have been served with the interlocutory application filed on 27 February 2023.

13    On 23 March 2023, the interlocutory application was heard. The third respondent did not appear at the hearing.

14    On 28 March 2023, the applicant filed an amended originating application and a FASOC which included the claim regarding the January Posts.

15    On 5 April 2023, the decision regarding the interlocutory injunction application was delivered: Russell v S3@Raw Pty Ltd (Proper Place) [2023] FCA 1014. The respondent was taken to have been served with the interlocutory application on 10 March 2023.

16    By orders made on 6 June 2023, the third respondent was taken to have been served with the originating application on 20 March 2023. Subsequently, on 23 June 2023, the third respondent filed his defence to the FASOC.

17    On 9 August 2023, an interlocutory application was brought by the second respondent, in which a transfer of proceedings to the Victoria Registry was sought. On 22 August 2023, the Court dismissed the application and made programming orders progressing the matter. Those orders were later vacated on 18 December 2023.

18    The defence of the first respondent was struck out and judgment was entered against the first respondent by force of the orders made on 22 August 2023.

19    As submitted by the applicant, a mediation was held on 13 December 2023 but the matter did not resolve.

20    On 29 January 2024, the second and third respondents filed a Notice of Acting – Appointment of Lawyer. Subsequently, on 2 February 2024, the second and third respondent’s solicitors sent a letter to the applicant’s solicitor, which relevantly provided:

Given the clear deficiencies in your client’s Concerns Notices, our clients invite your client to withdraw the defamation claim made against our clients and to withdraw the First and Second Concerns notices. In the event that your client does not do so by 9am on 6 February 2024, our client will seek orders from the court to timetable an application to strike out the Defamation Claim contained at paragraphs 33-71 and 72c of your client’s Amended Statement of Claim at the next Case Management Conference listed for 7 February 2024.

(Emphasis in original.)

21    The letter of 2 February 2024 also referred to purported deficiencies in the amended statement of claim as follows:

On a separate note, even were the correspondences sufficient to constitute a Concerns Note for the purposes of the Act, which is explicitly denied, the Amended Statement of Claim contains no particulars at all of serious harm, but rather simply states, at paragraph 49, that your client “has suffered serious harm”. The next paragraph merely continues to plead alleged aggravation of serious harm, but does nothing to particularise that alleged harm. The defamation claim contained within your client’s amended statement of claim is therefore liable to be struck out in its current form. If ultimately necessary, our client will make application to the Court for the serious harm claim to be properly particularised, failing which we will make application for that claim to be struck out.

(Emphasis added.)

22    By orders made by consent on 7 February 2024, the applicant was to provide a response to this letter by 12 February 2024. Further, the second and third respondents were required to file any application to dismiss paragraphs 33 to 71 and 72C of the FASOC by 16 February 2024. On 12 February 2024, in compliance with the orders made, the applicant sent a response to the letter, which relevantly provided:

The Concerns Notices are not defective and there is no basis to strike out the defamation claim:

…

The Third Defendant has pleaded to the ASOC without raising any complaint about the particularisation of any particular allegations in it.

If the Third Defendant now considers that he is somehow unable to conduct his case in response to the defamation claim without further particulars of some specific allegation in the ASOC, then we invite you to identify, with some precision, why this is the case, and the nature of the particulars actually sought.

However, at present, it seems to us that the appropriate time for further particulars to be provided – if any – is following the completion of discovery and lay evidence.

23    The third respondent filed an interlocutory application on 16 February 2024, seeking:

1.    That the Concerns Notices dated 11 November 2022 and 20 February 2023 be struck out.

2.    That paragraphs 33 to 71 and 72c of the Further Amended Statement of Claim dated 28 March 2023 be struck out.

3.    That the Applicant pay the Third Defendant’s costs of and associated with or relating to the Concerns Notices dated 10 November 2022 and 20 February 2023, the costs of the Defamation claim the subject of this proceeding, and this Application.

24    Subsequently, on 4 March 2024, the third respondent filed an amended interlocutory application, seeking the following relief:

1.    That, pursuant to s 10A of the Defamation Act 2005 (Vic), the proceedings against the Third Defendant be dismissed insofar as they concern alleged defamation.

2.    That, alternatively to paragraph 1, pursuant to rule 16.21 of the Federal Corut Rules 2011 (Cth), paragraphs 33 to 71 and 72c of the Further Amended Statement of Claim dated 28 March 2023 be struck out.

3.    That the Applicant pay the Third Defendant’s costs of and associated with this Application.

25    On that same day, orders were made staying the proceeding against the first respondent pursuant to s 471B of the Corporations Act 2001 (Cth), noting the first respondent is in liquidation.

26    On 12 March 2024, the third respondent filed his written submissions in chief and the affidavit of Ms Elizabeth Jane Goad. As will be discussed further below, the third respondent’s written submissions in chief did not directly address an application brought under s 10A(5), however, part of the provision was set out including s 10A(5).

determination of serious harm

Legal Framework

27    Section 10A of the Act provides as follows:

10A Serious harm element of cause of action for defamation

(1)    It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

(2)    For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

(3)    The judicial officer (and not the jury) in a defamation proceeding is to determine whether the serious harm element is established.

(4)    Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)—

(a)    determine whether the serious harm element is established at any time before the trial for the proceeding commences or during the trial; and

(b)    make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceeding if satisfied the element is not established).

(5)    If a party applies for the serious harm element to be determined before the trial for the proceeding commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding (including during the trial).

(6)    The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following—

(a)    the cost implications for the parties;

(b)    the resources available to the court at the time;

(c)    the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceeding.

(7)    Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.

(8)    Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss a defamation proceeding (whether before or after the trial commences).

28    While “serious harm” is not defined in the Act, in Rader v Haines [2022] NSWCA 198, Brereton JA (Macfarlan JA agreeing) set out the following principles as they related to the similar provision in the Defamation Act 2013 (UK) at [28]:

(1) In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.

(2) “Serious” harm involves harm that is more than merely substantial, though it need not be grave.

(3) The requirement for serious harm to reputation is concerned with actual or likely reputational damage – that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.

(4) A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.

(Emphasis in original.)

29    The provision was introduced to “weed out trivial or frivolous defamation claims” and to facilitate the early resolution of such matters: Selkirk v Hocking [2023] FCA 432 at [3]. The provision, in effect, places the onus on the applicant to prove, at the outset, that the publication has caused or is likely to cause serious harm to the applicant’s reputation: Newman v Whittington [2022] NSWSC 249 at [47], [69].

Submissions

30    In respect of the Main Post, the applicant pleaded at paragraphs 33, and 44 to 53 of the FASOC as follows:

On or about and after 10 November 2022, S3@Raw and Joshua Norris-Ongso published on a worldwide social media platform, namely on the lnstagram account of S3@Raw, the following matter of and concerning the Applicant:

(a)    A post, in Annexure 1 (the Main Post);

(b)    Two excerpts from a WhatsApp message from the Applicant to Joshua Norris-Ongso sent on 3 November 2022, which are Annexure 2.

…

The natural and ordinary meaning of the Main Post, including by use of the words "unbeknownst to us, @hayley.russell has been working behind our back" conveyed the defamatory imputation that the Applicant had, in her dealings with the Respondents and the Landlord at the S3 Ripponlea Business, acted deceitfully, dishonourably and in breach her contract with the Respondents (First Defamatory Imputation).

The natural and ordinary meaning of the Main Post also carried the defamatory imputation that the Applicant had conceived and executed, over a lengthy period of five months, a devious and dishonourable plan (Second Defamatory Imputation), the elements of which were:

(a)    to pretend falsely that she would purchase the S3 Ripponlea Business, having no intention of doing so;

(b)    to force the Respondents to close down the S3 Studio when they otherwise would never have done so;

(c)    to take over their profitable business without paying for goodwill.

The ordinary and natural meaning of the Main Post also conveyed the defamatory imputation that the Applicant had cheated the Respondents out of a valuable business with substantial goodwill (the Third Defamatory Imputation).

The ordinary and natural meaning of the Main Post, including by the contention that Joshua Norris-Ongso never imagined that the Applicant would execute a lease of the premises, which he knew to be false, also conveyed the defamatory imputation that the Applicant is a spiteful and vindictive person, willing to act to frustrate the legitimate business dealings of others.

That Joshua Norris-Ongso knew that his contention that he never imagined that the Applicant would execute a lease of the premises was false is to be inferred from her offer to the Respondents, on 3 November 2022, to acquire the asset of the Ripponlea Business, pleaded in sub-paragraph 24(c).

As a result of the publication of the Main Post, including the four defamatory imputations, the Applicant has suffered serious harm.

The harm suffered by the Applicant as a result of the defamatory imputations was aggravated by:

(a)    The false and misleading statements referred to in paragraphs 34 to 43;

(b)    As to the Fourth Defamatory Imputation, by the gratuitously false statement that the Applicant has executed at lease of the premises for the S3 Ripponlea Business merely to spoil the sale by the Respondents of the S3 Ripponlea Business to a third party.

The Main Post:

(a)    Was published on the Instagram social media platform, used by more than one billion users;

(b)    Was published internationally and in the Territories of Australia;

(c)    Appeared in the Instagram applications held by approximately 5,000 followers of the Instagram account of S3@Raw;

(d)    Was read on or soon after 10 November 2022 by many of those 5,000 followers;

(e)    Has been republished by many of those persons to other persons.

Those to whom the Main Post was published included hundreds of persons:

(a)    Personally known to the Applicant;

(b)    Who had received tutelage and instruction from the Applicant during her time at the S3 Ripponlea Business; and

(c)    many of whom are potential customers of the Applicant in her new business, The Body Crew.

Further, the Main Post continues and will continue to be circulated on the Instagram platform and in other media.

(Emphasis in original.)

31    As to the January Posts, the applicant pleaded at paragraphs 54 to 71 of the FASOC as follows:

On 25 January 2023, S3@Raw and Joshua Norris-Ongso published on a worldwide social media platform, namely his Instagram account of joshua.s3, further matter of and concerning the Applicant a post, being Annexure 3, called the Second Post.

On 26 January 2023, S3@Raw and Joshua Norris-Ongso published on a worldwide social media platform, namely his Instagram account of joshua.s3, further matter of and concerning the Applicant a post, being Annexure 4, called the Third Post.

On 25 January 2023, S3@Raw and Joshua Norris-Ongso published on a worldwide social media platform, namely his Instagram account of joshua.s3, further matter of and concerning the Applicant a post, being Annexure 5, called the Fourth Post.

The Second Post, the Third Post and the Fourth Post are called, collectively, the January Posts.

The January Posts remain published on the Instagram account of his Instagram account of joshua.s3.

The natural and ordinary meaning of the Second Post conveyed:

(a)    the defamatory imputation that that the Applicant is a thief, guilty of the serious crime of stealing under the sections 72 and 74 of the Crimes Act 1958 (Vic);

(b)    the defamatory imputation, which follows necessarily from the words used, namely that, being a thief, the Applicant is dishonest; and

(c)    the defamatory imputation, which also necessarily follows from the words used, namely that, being guilty of stealing, the Applicant is liable to be charged with the indictable offence under section 74 of the Crimes Act, which carries a penalty of imprisonment for a maximum of 10 years, to which the Applicant is liable,

(together, the Fifth Defamatory Imputation).

The Third Post, by the introductory words, contained statements to the effect that the Applicant had been disseminating false statements about Joshua-Norris-Ongso and the S3 Business (‘misinformation’ and ‘gossip’ and these proceedings) and that it was consequently necessary for Joshua Norris-Ongso to correct that false information, by the words published in the Third Post and the Fourth Post.

In the premises, the natural and ordinary meaning of the Third Post and the Fourth Post conveyed the defamatory imputation that:

(a)    the Applicant is an untruthful person;

(b)    who had been spreading false statements and gossip about her dealings with the Respondents; and

(c)    the words published in the Third Post and the Fourth Post were necessary to rebut the false statements with Ms Russell had been publishing,

(collectively, the Sixth Defamatory Imputation).

Further, the statement, in the Third Post, that ‘[the Applicant] continues to spread misinformation about me and my former business’ was, as Joshua Norris-Ongso well knew, false, in that the Applicant had not and has not published on any social media site or otherwise in writing any statement at all about any of the respondents or her dealings with them.

Further, because of the statement in the Third Post that it was necessary to remove the Applicant "from any involvement and access to our business records" in the context in which these words were written, and in any event by their ordinary and natural meaning, they gave rise to an imputation that the Applicant is an untrustworthy and deceitful person, who had acted unlawfully in relation to the business records of the S3 Business (Seventh Defamatory Imputation).

The natural and ordinary meaning of the Third Post also conveyed a repetition of the Fourth Defamatory Imputation, that the Applicant is a spiteful and vindictive person, willing to act to frustrate the legitimate business dealings of others.

Further, by juxtaposing, in the Third Post, the description of Ms Krezel and Mr McKay as "open and honest with Hayley" with the Applicant's conduct, in the context in which these words were written, and in any event by their ordinary and natural meaning, they gave rise to an imputation that the Applicant is not open or honest in her business dealings (Eighth Defamatory Imputation).

Further, in the context of the statement in the Third Post that it was "time for me to speak" and that he "[needed] to set the record straight because Hayley Russell continues to spread misinformation about me and my former business", the reference towards the end of the Fourth Post that this proceeding is being defended, and in any event by their ordinary and natural meaning, they gave rise to an imputation that these proceedings are based on falsehoods by the Applicant (Ninth Defamatory Imputation).

Further, in the context of the whole of the Third Post and the Fourth Post, by their ordinary and natural meaning, they gave rise to an imputation the Applicant has acted dishonourably in stealing the goodwill of the S3 Business and has, in doing so, wrongly taken possession of all of the "business records" which she has used "for the purpose of contacting [S3’s] former clients" (Tenth Defamatory Imputation).

Further, by the closing words of the Fourth Post, in which Joshua Norris-Ongso wrote that the Applicant had misused personal information and contact details; and that he ‘will refer this to the Privacy Commissioner’, both from their ordinary and natural meaning and in the context of the January Posts, gave rise to the imputation that the Applicant has unlawfully misused confidential information of the S3 Business, by contravening the National Privacy Principles (Eleventh Defamatory Imputation).

In the premises of paragraphs 59 to 68, Joshua Norris-Ongso published the January Posts on his own behalf and for and on behalf of S3@Raw.

As a result of the publication of the January Posts, including the Fifth to Eleventh Defamatory Imputations, the Applicant has suffered serious harm, aggravated by:

(a)    the gratuitously false portrayal of the Third Post and the Fourth Post that they were merely a response to false statements by the Applicant;

(b)    the falsity of the January Posts, including the false statements alleged in paragraph 62 above;

(c)    the continued publication of the January Posts;

(d)    the correspondence by Joshua Norris-Ongso, since publication of each of the January Posts, on the S3 Instagram page, in Comments under each of the January Posts, in which he responded positively to expressions of sympathy and support he had engendered as a result of the January Posts;

(e)    the refusal of the respondents to offer to make amends or to make amends at all, despite the Applicant’s Concerns Notices in her solicitors’ letters dated 11 November 2022 and 20 February 2023.

In the premises, Joshua Norris-Ongso and S3 intend, unless restrained, to repeat their publications of matter to the effect of the defamatory imputations pleaded above.

(Emphasis in original.)

32    By his written submissions in chief, the third respondent contended that the applicant has failed to establish serious harm as she has not adequately pleaded the element of harm caused to her reputation, rather she has raised “hurt feelings.” The third respondent also argued that the pleading does not identify persons to whom the publications were made, particularly given the Main Post was live for only 10 minutes. The third respondent relied on Massarani v Kriz (2022) 400 ALR 178; [2022] FCA 80 wherein Katzmann J stated at [53]:

An inference that a publication has been downloaded will not be drawn from the mere fact that the material has been posted on the internet. A person who claims to have been defamed by such material must plead and prove facts which establish that the material complained of has been downloaded and viewed by someone. See Sims v Jooste (No 2) [2016] WASCA 83 at [18] –[20] (Martin CJ, Buss JA and Mitchell J).

33    The third respondent’s written submissions in chief did not address s 10A(5) of the Act, save for setting out parts of the provision including subsection (5). No reference was made to the determination of serious harm prior to the hearing as is disclosed in the correspondence set out at paragraphs 20 and 21 above. The written submissions in chief were in respect of the failure to establish serious harm in the pleadings.

34    By the applicant’s written submissions, she noted that the amended interlocutory application fails to seek orders for the serious harm element to be determined before trial, nor had such an application been foreshadowed to the parties or the Court before timetabling orders were made. At the hearing, counsel for the applicant submitted that the first time it was appreciated that such an application was being pursued is upon the receipt of the third respondent’s written submissions. Therefore, the applicant submitted, s 10A(5) of the Act is not engaged.

35    Further, the applicant contended that the third respondent had not made submissions as to whether s 10A(5) of the Act is picked up by s 79 of the Judiciary Act 1903 (Cth) so as to be applicable in defamation proceedings in this Court, which is a question of real doubt; Selkirk at [19] – [43]; Hun v Aljazeera International (Malaysia) SDN BHD [2023] FCA 1103 at [2], [32] – [33]; Peros v Blackburn [2024] FCA 177 at [2].

36    The third respondent only dealt with s 10A(5) in his reply and oral submissions. In that regard, as to whether s 10A(5) is picked up by the Judiciary Act, the third respondent contended that the views expressed in the cases to which the applicant referred were obiter. He argued that s 79(1) of the Judiciary Act picks up the text of the Act and applies it as Commonwealth law, except as otherwise provided by the Constitution or another Commonwealth law, relying on Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [63], [83]-[84]. He argued that there is no Commonwealth law which appears to be inconsistent with the relevant provision of the Act. He did however, in the context of Selkirk, acknowledge the relevance of ss 37M, 37N and 37P of the Federal Court of Australia Act 1967 (Cth) and r 30.01 of the Rules but maintained that no inconsistency existed between those provisions and s 10A(5) and (6) of the Act.

37    The applicant submitted that even if s 10A(5) was engaged and applicable in defamation proceedings in the Federal Court, there are “special circumstances” which would justify the postponement of the question of the serious harm element to be determined at trial. To that end, the applicant referred to the following circumstances:

(1)    As the third respondent did not indicate to the Court at any time that he would be seeking the early and final determination of the serious harm element, the applicant did not have the opportunity to seek appropriate timetabling orders to put on evidence for the purpose of establishing serious harm.

(2)    As the defamatory imputations in paragraphs 44, 45, 46, 59, 61, 63, 65 to 68 of the FASOC are denied and truth allegations are made, the Court would need to determine the truth of the allegations, which has been recognised as a special circumstance: Qu v Wilks [2023] VSCA 198 at [63]. In that regard, the applicant also submitted that the timetabling orders made in respect of this application, including the length allowance of written submissions and the hearing time, “were not made in contemplation of having to resolve substantive questions relating to the existence of the imputations and the positive allegations of truth.”

(3)    This is an application which is brought late in the proceedings, after the hearing of other interlocutory applications and case management hearings. Having regard to the purpose of s 10A(5) and the stage in the proceedings, the issue of serious harm would be more efficiently and effectively dealt with at trial.

38    The third respondent rejected that any of those circumstances are sufficient to be “special circumstances” such as to justify the postponement of the determination of serious harm. Counsel for the third respondent submitted, with respect to the timing of the application, that a mediation took place in December 2023, and that deferring to bring interlocutory applications until after a mediation is a “sensible approach”. Counsel for the third respondent also noted that his client was unrepresented until after the mediation.

Consideration

39    As a threshold matter, it is appropriate to first consider whether s 10A(5) of the Act is picked up by s 79 of the Judiciary Act.

40    Section 79(1) of the Judiciary Act provides:

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

41    The purpose of this provision was explained by Bell, Gageler (as his Honour then was), Keane, Nettle and Gordon JJ in Rizeq at [63]:

The incapacity of a State Parliament to enact a law which governs the exercise of federal jurisdiction by a court, whether it be a federal court or a State court, explains the necessity for s 79 of the Judiciary Act and is the key to understanding the nature and extent of its operation. Section 79 is a law, enacted under s 51(xxxix) of the Constitution, which serves to ensure that the exercise of federal jurisdiction is effective. The section fills a gap in the law governing the actual exercise of federal jurisdiction which exists by reason of the absence of State legislative power. The section fills that gap by picking up the text of a State law governing the exercise of State jurisdiction and applying that text as a Commonwealth law to govern the manner of exercise of federal jurisdiction. The section has no broader operation.

42    In Selkirk, an application was brought by the respondents seeking that the serious harm element be determined prior to trial. O’Callaghan J considered that it is “sufficiently unclear” as to whether ss 10A(5) and (6) of the Act give rise to any potential inconsistency, referring to ss 37M, 37N and 37P of the Federal Court Act: Selkirk at [35] and [43]. While his Honour ultimately considered that it was not necessary to resolve that matter (at [43]), his Honour stated the following at [37] – [42]:

Sub-section 10A(5) requires a judge to determine whether the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person “as soon as practicable before a trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding (including during the trial)”.

The matters that a judge may take into account in deciding whether there are “special circumstances” are defined in s 10A(6) to include, but are not limited to, the cost implications for the parties; the resources available to the court at the time; and the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceeding. As to the last of those considerations, the “other issues for determination” may include whether the alleged defamatory imputations were conveyed in the first place, because under s 10A “serious harm” is an additional element of the cause of action. See Rader v Haines [2022] NSWCA 198 at [17] (Brereton JA, with whom Macfarlan JA and Basten AJA agreed).

On one view, those non-exhaustive matters are not aptly described as “special” circumstances. They seem to me, on the contrary, to require the giving of attention to what are nowadays run-of-the-mill case management considerations, which are matters that a judge of this court may, and routinely does, take into account in giving directions about practice and procedure under s 37P of the Federal Court Act. Viewed that way, there would be no inconsistency between ss 10A(5) and (6) of the Defamation Act and s 37P of the Federal Court Act. On the contrary, to use Bromwich J’s word, the former would be “complementary” to the latter, and not involve any inconsistency within the meaning of s 79 of the Judiciary Act.

On another view, it may be thought that the requirement of “special circumstances” is to be given content by the literal meaning of those words because the draftsperson presumably chose the words to be meaningful. As Lord Hoffmann put it in Chartbrook Ltd v Persimmon Home Ltd [2009] 1 AC 1101 at 1112 –13 [17], “[t]he words used as labels are seldom arbitrary. They are usually chosen as a distillation of the meaning or purpose of a concept intended to be more precisely stated in the definition.” If by the inclusion of the word “special”, the legislature is taken to have intended that a separate pre-trial hearing on the question of serious harm must occur unless “exceptional” or the like circumstances are made out, such a provision might very well be said to fetter, and thus be inconsistent with, not only the broad and wide-ranging case management considerations provided for in s 37P of the Federal Court Act, but also the undoubted power under that section (and r 30.01 of the Federal Court Rules 2011 (Cth)) to order that a question arising in a proceeding be heard separately from any other questions.

The courts have long warned of the potential perils of hearing separate trials of issues. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 [168]–[170], for example, Kirby and Callinan JJ said:

… The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties,’ interests.

Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.

Whether and to what extent those considerations may or should be taken into account by a judge of this court in determining whether she or he is satisfied of the existence of “special circumstances” under s 10A(5) of the Defamation Act seems to me to be a further possible source of difficulty.

43    In Hun, McEvoy J considered that there remains a “serious question” as to whether s 10A(4) - (6) of the Act is picked up by s 79 of the Judiciary Act: Hun at [32]. However, in the circumstances of that case, including that the respondents applied under r 30.01 of the Rules, it was unnecessary to resolve that question: Hun at [33].

44    More recently, in Peros, Derrington J, in considering an application for the hearing of a separate question made pursuant to r 30.01 of the Rules, made the following observations in relation to the applicability of s 10A(5) at [2] – [6]:

There is uncertainty in the authorities as to whether the ambulatory effect of s 79 of the Judiciary Act 1903 (Cth) includes s 10A(5) of the Defamation Act and, therefore, whether it is a process available to this Court. It is unnecessary in these proceedings to determine that issue as Ms Blackburn elected to proceed under r 30.01, which relevantly provides that a party may apply to the Court for an order that a question arising in the proceedings be heard separately from any other questions.

However, it should be acknowledged that the outcome of this case may well have been entirely different had it been determined under s 10A(5) of the Defamation Act. That is not only because under r 30.01 of the Rules, Ms Blackburn, as the applicant for relief, bears the onus of establishing that it is appropriate for the question to be heard separately. It is also because the judicially created limitations imposed on r 30.01 have confined its operation to very stark and clearly defined issues. Conversely, the process under s 10A(5) is obviously intended to include much more widely disputed issues.

Whilst the two procedures might be regarded as raising or involving similar issues, it is apparent that, by the insertion of ss 10A(5) and (6) into the Defamation Act, the State legislature has indicated a clear preference that the issue of serious harm to the claimant’s reputation be determined ahead of the trial if an application is made for that to occur. When that occurs, s 10A(5) requires the judicial officer to determine the question of serious harm in advance of the trial, unless satisfied that there are “special circumstances” justifying the postponement of that question. In this way, it might be said that there is effectively a reversal of the onus that is found in r 30.01.

Contrary to some passing suggestions in the authorities: see Hun v Aljazeera International (Malaysia) SDN BHD [2023] FCA 1103 [35] (Hun v Aljazeera International), citing Selkirk v Hocking [2023] FCA 432 [39] (Selkirk v Hocking): r 30.01 of the Rules and s 10A(5) of the Defamation Act should not be considered as providing for the same or similar process. Although the “special circumstances” enumerated in s 10A(6) can be described as procedural or case management considerations which also fall to be considered under r 30.01, that does not give rise to an equivalence between the two provisions. The operation of the two sections shows that they are the complete antithesis to each other — for an application to succeed under r 30.01, the applicant must show that it is appropriate to determine the separate question, whilst an application made under s 10A(5) will lead to the determination of the separate question unless there is a demonstrated reason why that should not occur in the circumstances of the case. In this latter respect, the legislature must be taken as appreciating that the determination of serious harm will often be a factually contested matter which may involve the testing of the evidence adduced by the respective parties. Therefore, its utility ought not be circumscribed by judicially imposed limits as has occurred in relation to r 30.01.

If it is the case that ss 10A(5) and (6) of the Defamation Act are not picked up and included in this Court’s jurisdiction, an amendment to the Rules is required to create an analogous procedure for defamation proceedings in this Court. As the following reasons reveal, the circumstances of this case provide a good example of where an application made under r 30.01 of the Rules fails, but an order under s 10A(5) of the Defamation Act might well have been made.

45    The third respondent contended that no inconsistency arises with respect to the relevant provisions of the Act and referred the Court to Hayson v The Age Company Pty Ltd (No 3) (2020) 280 FCR 139; [2020] FCA 1163. In that case, Bromwich J considered whether the costs provisions of the New South Wales Defamation Act are inconsistent with costs provisions in the Federal Court Act. His Honour found that s 43 of the Federal Court Act is an “enabling provision” which involves the exercise of discretion (at [39]). The third respondent submitted that s 37P of the Federal Court Act and r 30.01 of the Rules are analogous to the costs provision considered in Hayson in that they are enabling provisions with no relevant inconsistency.

46    Section 37P of the Federal Court Act empowers the Court to give directions about practice and procedure in civil proceedings. It provides:

(1)    This section applies in relation to a civil proceeding before the Court.

(2)    The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.

(3)    Without limiting the generality of subsection (2), a direction may:

(a)    require things to be done; or

(b)    set time limits for the doing of anything, or the completion of any part of the proceeding; or

(c)    limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or

(d)    provide for submissions to be made in writing; or

(e)    limit the length of submissions (whether written or oral); or

(f)    waive or vary any provision of the Rules of Court in their application to the proceeding; or

(g)    revoke or vary an earlier direction.

(4)    In considering whether to give directions under subsection (2), the Court may also consider whether to make an order under subsection 53A(1).

(5)    If a party fails to comply with a direction given by the Court or a Judge under subsection (2), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.

(6)    In particular, the Court or Judge may do any of the following:

(a)    dismiss the proceeding in whole or in part;

(b)    strike out, amend or limit any part of a party’s claim or defence;

(c)    disallow or reject any evidence;

(d)    award costs against a party;

(e)    order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.

(7)    Subsections (5) and (6) do not affect any power that the Court or a Judge has apart from those subsections to deal with a party’s failure to comply with a direction.

47    In my view, the better construction is that s 10A(5) is not picked up by s 79 of the Judiciary Act. Simply because s 37P is an enabling provision does not mean that it is not inconsistent with s 10A(5). As observed by O’Callaghan J in Selkirk (at [40]), the “special circumstances” referred to in s 10A(5), if given its literal meaning, “might very well be said to fetter, and thus be inconsistent with, not only the broad and wide-ranging considerations provided for in s 37P of the Federal Court Act, but also the undoubted power under that section”. I consider that to be the case. While the considerations set out in s 10A(6) of the Act, as to what the Court may take into account when considering whether the circumstances constitute “special circumstances”, might seem comparable to “run-of-the-mill case management considerations” (Selkirk at [39]), the text of the provision, including the use of the word “special”, requires that the Court determine the issue unless such “special circumstances” arise: Peros at [4]. In Qu, the Victorian Court of Appeal (per Beach, Kennedy and Walker JJA) considered the expression “special circumstances” at [42] – [44]:

The expression ‘special circumstances’ is frequently used in legislation, and must, in each case, be considered in the context in which it has been used. As Spigelman CJ said in R v Simpson, they are ‘words of indeterminate reference and will always take their colour from their surroundings.’ In a number of different statutory contexts, the words have been held to require circumstances that are not of general application, or not common or not ordinary. That said, in Beadle v Director General of Social Security, the Full Court of the Federal Court said that the phrase ‘special circumstances,’ although lacking precision, was ‘sufficiently understood in our view not to require judicial gloss.’

In Selkirk v Hocking, O’Callaghan J was required to consider the issue of ‘special circumstances’ in s 10A(5) of the Act. His Honour described the non-exhaustive matters referred to in s 10A(6) of the Act as being matters which were ‘not aptly described as “special” circumstances’. His Honour said that, to the contrary, the matters referred to in s 10A(6) seemed to require the giving attention to of what are ‘nowadays run-of-the-mill case management considerations’. His Honour, however, went on to observe that it might be thought that the requirement of ‘special circumstances’ was to be given content by the literal meaning of those words ‘because the draftsperson presumably chose the words to be meaningful.’ Ultimately, in the circumstances of the dispute then before him, it was not necessary for his Honour to form a concluded view about the proper construction of the expression ‘special circumstances’ in s 10A(5) of the Act.

Having reviewed the authorities, we favour the approach of the Full Federal Court in Beadle that the phrase ‘special circumstances’ does not require any judicial gloss. That said, we think the phrase, as used in s 10A(5) of the Act, encompasses circumstances which are not routine or run-of-the-mill. Additionally, we would endorse what Spigelman CJ said in Simpson that there will be circumstances which, either alone or in combination with other factors, justify a conclusion that ‘special circumstances’ are made out on the facts of a particular case; and it will be ‘comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a “special circumstance”’.

(Emphasis added and citations omitted.)

48    The fact that s 10A(6) includes a non-exhaustive list of considerations that the Court may take into account when deciding whether there are special circumstances does not change the position that special circumstances must arise for the Court to decide not to determine the serious harm element before trial. In this way, s 10A(5) limits the Court’s discretion to considering “special” or exceptional circumstances. So, while it may be the case that s 37P is an “enabling provision”, it is one which appears to be inconsistent with s 10A(5) of the Act.

49    Further, r 30.01 of the Rules confers on the Court a wide discretionary power to determine whether a question ought to be heard separately from any other questions. Such a discretion appears to be informed by considerations of the overarching purpose of civil practice and procedure, as set out in s 37M of the Federal Court Act. Conversely, as stated above, s 10A(5) of the Act provides that where an application is made for the early determination of the serious harm element, the Court is to determine the issues unless there are special circumstances which would justify its postponement. In that regard, the provision effectively reverses the onus by requiring the Court to determine the issue unless special circumstances arise: Peros at [4]. The provisions therefore cannot be said to be consistent with one another.

50    If I have erred in considering that s 10A(5) is not picked up by s 79 of the Judiciary Act, I consider that in any event there are special circumstances to justify the postponement of the serious harm element until trial. The defamation claim is a factually disputed matter. While the Court, pursuant to s 10A(7) of the Act, may determine this issue without the need for further evidence, I do not consider it in the interests of justice that the element of serious harm be determined prior to trial in this case. I accept that it was not apparent that the third respondent was applying for the element of serious harm to be determined prior to trial until the receipt of written submissions in chief and therefore, the applicant was limited in her ability to respond to the application. As correctly contended by the applicant, the defamatory imputations pleaded in the relevant paragraphs of the FASOC are denied, and some truth allegations are made by the third respondent. The prospect that the truth of the allegations would need to be examined at this stage of the proceedings is a sufficient special circumstance to justify postponement; Qu at [63]. As set out in paragraph 47 above, in Qu at [44], the Victorian Court of Appeal was of the view that the expression “special circumstances” in s 10A(5) of the Act “encompasses circumstances which are not routine or run-of-the-mill”. The Victorian Court of Appeal also considered that “special circumstances” may arise in a number of ways in a particular case, “either alone or in combination with other factors” (at [44]). In this case, the matters to be considered with respect to the defamation claim will be relevant to, or unable to disentangled from, the other claims made in this proceeding.

51    Were the Court to approach this as an application made pursuant to r 30.01 of the Rules, which I note was not urged by the third respondent, the applicant argued that she would need to make further written submissions responsive to the considerations raised by r 30.01 of the Rules. I agree with the applicant in that regard, noting that no application pursuant to r 30.01 of the Rules has been made in the alternative.

pleading of serious harm

52    The application to strike out the relevant parts of the FASOC was brought in the alternative, in the event that the Court did not dismiss the proceedings pursuant to s 10A of the Act. The third respondent’s submissions in relation to the strike out application appeared to be premised on both what he claimed to be the invalidity of the concerns notices and deficiencies in the FASOC as referred to above.

53    The main focus of the third respondent’s submissions in chief is that serious harm has not been established as there is no pleading regarding the serious harm to the applicant’s reputation nor identification of the persons to whom the publications were made.

54    The applicant opposed that argument, contending that the third respondent had pleaded to the FASOC in June 2023 and had not sought further particulars pursuant to r 16.45 of the Rules, notwithstanding an invitation by the applicant to identify the nature of any particulars sought on 12 February 2024, as referred to in paragraph 22 above.

55     The applicant also noted that she had adduced evidence regarding the element of serious harm in support of her application for an interlocutory injunction in March 2023, which was considered sufficient to demonstrate that there was a “serious question to be tried” by the Court: Russell at [34]. The third respondent, despite being on notice of the application for an interlocutory injunction, failed to appear.

56    The applicant submitted that it is necessary only to plead serious harm as an element of the cause of action and that the third respondent’s complaint is thus in relation to the particularisation. The applicant referred to Whittington v Newman [2024] NSWCA 27 wherein Leeming JA, Stern JA and Simpson AJA stated at [48]:

Secondly, Mr Wittington maintained that there was now an obligation in all cases to which s 10A applied for serious harm to “be proved by evidence of the actual impact of the publication”. That goes too far. It will be necessary, for a plaintiff suing on a cause of action to which s 10A applies, to establish that the publication has caused or is likely to cause serious harm to the plaintiff’s reputation. That may be established by evidence, or by admission. Further, actual serious harm, or the likelihood of serious harm, to the plaintiff’s reputation, may also be established by inference from other facts, including the nature of the publication and the imputations it contains. And these are matters to be established at trial. It does not follow that in order for a defendant to meet the plaintiff’s case particulars of the “actual impact” of the publication are required.

57    As to the claim that the pleading has not identified any person to whom the publications were published, the applicant contended, and I accept, that this was pleaded in paragraphs 51(d) and 70(d) of the FASOC which provides:

The Main Post:

…

(d) Was read on or soon after 10 November 2022 by many of those 5,000 followers;

    …

As a result of the publication of the January Posts, including the Fifth to Eleventh Defamatory Imputations, the Applicant has suffered serious harm, aggravated by:

…

(d) the correspondence by Joshua Norris-Ongso, since publication of each of the January Posts, in which he responded positively to expressions of sympathy and support he had engendered as a result of the January Posts;

58    Rule 16.21 of the Rules provides as follows:

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court

59    I do not consider that any part of the FASOC ought to be struck out on the basis of the pleading of serious harm. In my view, the material facts as set out in the available material disclose a reasonable cause of action, and none of the other bases for striking out arise on the pleadings in their current form. A request for further particulars of the serious harm alleged to have been suffered would be more appropriately sought through a formal request for particulars or an application under r 16.45 of the Rules.

the validity of the concerns notices

Legal Framework

60    Section 12B(1)(a) of the Act provides that an aggrieved person cannot commence a defamation proceeding unless, inter alia, the person has given the proposed defendant a concerns notice.

61    Section 12A(1)(a)(iv) of the Act provides that a concerns notice must inform “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”. If a concerns notice fails to particularise this matter, s 12A(3)-(5) of the Act provides a mechanism by which the publisher may seek and receive further particulars.

62    The purpose of the introduction of a mandatory concerns notice provision was to reduce the number of defamation actions which proceed to trial. In that regard, the purpose of a concerns notice is twofold. First, to provide the publisher with sufficient information to encourage the making of a reasonable offer of amends and secondly, to allow the aggrieved person to consider the threshold of serious harm which is required at an early stage: Georges v Georges [2022] NSWDC 558 at [56] – [59].

63    Rule 16.21(1)(f) of the Rules provides that a party may apply for an order striking out a pleading on the basis that it is an abuse of process. The third respondent argued that the concerns notices provided by the applicant were not valid and it is an abuse of process to commence defamation proceedings without a valid concerns notice, relying on Newman at [30] – [46].

Submissions

64    The First Concerns Notice initially set out the various statements which were made in the Main Publication and the alleged defamatory imputations. The First Concerns Notice does not contain any headings but provides the following seemingly in respect of the serious harm that the applicant alleges she has suffered:

On behalf of Ms Russell, we inform you that she considers that the imputations mentioned above, exacerbated by the falsehoods also mentioned above, have caused and will continue to cause serious harm to her reputation. Apart from the obviously damaging nature and effect of the imputations, you published the matter on an Instagram which you claimed, in the 2021 Business Profile given to Ms Russell on 14 March 2022, has 5,000 followers. These followers are customers or former customers of the business and many of them know Ms Russell personally. Indeed, our client believes that it is obvious that you chose that media for publication, because that would maximise the damage – it would come to the attention of many hundreds of people who know Ms Russell and yet more people who may wish to patronise her new business.

Further, it is difficult to imagine a more serious defamation of a young person commencing her first business than to accuse her, to the audience of potential customers, of devious, dishonourable and dishonest conduct, as you have done in the Main Post.

Our client believes that you yourself recognise that the harm caused by your publication was serious harm, because once you learnt that you had tagged our client in your post and began to receive feedback on it, you took the post down immediately.

…

Because of its sensational content and nature, it is certain not only that the Main Post was seen and read by a substantial number of people but also that it has been widely distributed. Hence, even if it has been taken down, it is inevitable that it will have been shared by many people - particularly people in the fitness and wellness communities in which Ms Russell had been working and is hoping to continue working.

65    The third respondent submitted that the First Concerns Notice fails to particularise why the harm to the applicant’s reputation is serious, the nature of the harm suffered or is likely to be suffered, who had viewed the publications or the effect of the publications on them.

66    Unlike the First Concerns Notice, the Second Concerns Notice contained headings such as “The Second Post” and “The Third Post and the Fourth Post,” detailing in each section the defamatory imputations which are alleged to arise from the publications. The Second Concerns Notices provides the following in respect of the serious harm element:

…The publication of these posts was effected to over 23,000 followers and they attracted many readers and posts by way of reply, several of which demonstrate that you have succeeded in seriously harming Ms Russell’s reputation.

…

The January Posts continue the themes of the Main Post: they refer to Ms Russell and they concern her decision not to exercise her option to acquire the S3 Business and subsequent events, principally that S3@Raw sold its business to a third party (after advising Ms Russell’s successful negotiations with Messrs Mrocki for a lease of S3@Raw’s former premises for a new business later established by Ms Russell.

Any person who read one or more of the January Posts would, from the natural and ordinary meaning of the words used, understand that you were repeating and reinforcing the imputations that arose from the Main Post, namely:

1.    that Ms Russell has, in her dealings with you and the landlord at Ripponlea acted deceitfully, dishonourably and in breach of contract.

2.    that Ms Russell had conceived and executed, over a lengthy period of five months, a devious plan and dishonourable plan, the elements of which were:

(a)    to pretend falsely that she would purchase S3@Raw’s business, having no intention to do so;

(b)    rather to force you to close the studio down when you would never have done so; and

(c)    to take over your profitable business without paying for goodwill;

3.    that our client has cheated you out of a valuable business with a substantial with substantial [sic] goodwill; and

4.    that our client is a selfish, spiteful; and vindictive person, willing to act to frustrate otherwise legitimate business dealings.

Your repetition and reinforcement of the defamatory imputations that arose from the Main Post, by the January Posts, was all the more serious (and caused serious harm to Ms Russell) because:

1.    Ms Russell had offered to settle her claim for damages from the Main Post, for an apology and retraction;

2.    you published the January Posts after you knew Ms Russell had instituted proceedings against you and S3@Raw for damages for defamation (which you mentioned and said that S3@Raw was defending); and

3.    Ms Russell has, since advising you of her decision not to exercise the option, not published a word about you, your husband, S3@Raw or its business - she has maintained a dignified silence in the face of your quite spirited and malicious social media campaign against her, preferring to leave it to the Court to deal with your assaults on her reputation.

…

They have been commented on by others, to all of whom you have replied. This correspondence proves that many people have read the January Posts (and the Main Post) and, to our client’s great distress, many persons have believed the defamatory and untrue statements you have published about her.

As we have mentioned above, you did not reply to the concerns notice in our letter to you dated 11 November 2022. You plainly took no notice of it. On the contrary, you have made matters worse by the repetition and reinforcement of the Main Posts in the January Posts; and by the fresh defamatory statements therein. You have made it clear that there is our client [sic] no point seeking to resolve your unlawful defamation of her, by agreement.

67    The third respondent contended that the Second Concerns Notice is afflicted with the same deficiencies as those which he submitted arose with respect to the First Concerns Notice, as well as failing to particularise serious harm as it relates to the reputation of the applicant.

68    As a result, the third respondent argued, both concerns notices are invalid. He referred to a number of cases which provide that the failure to provide particulars as to serious harm renders the concerns notice invalid; Teh v Woodworth [2022] NSWDC 411 at [30]; Randell v Mclachlain [2022] NSWDC 506 at [13] - [17]. In Randell, Gibson DCJ found that the plaintiff’s concerns notice did not sufficiently particularise serious harm. At [25], her Honour observed:

… the gravamen of what Mr Olson is saying is that a plaintiff may choose to describe “serious harm” by simply referring the seriousness of the imputations, the extent of publication, the fact that the plaintiff has a respected position and that the grapevine effect is likely, and that will suffice. There are a number of problems with such an argument:

(a) First, all of the English decisions emphasise that causation between the harm and the publication must be established. This is because a defendant cannot be held to account for damage arising from another unrelated publication: Associated Newspapers Ltd v Dingle [1962] 2 All E R 737, [1964] AC 371 (“Dingle”). For example, the defendant cannot be sued for the serious harm flowing from the Sunday Telegraph article unless there is a pleading that the defendant published (or republished) it.

(b) Second, the lack of specificity as to what the harm is where all that is provided is generalities such as the seriousness of the imputations would render the making an offer of amends that responds to the harm extremely difficult. This would defeat the whole s 10A purpose of early resolution through offers of amends, which is contrary to s 3(d) of the Act.

(c) Third, for the plaintiff to commence proceedings, the ambit of the case needs to be determined. Is it “serious harm” or just “harm”? In the present case, on the particulars given, it is hard to tell what the harm would be.

69    The applicant submitted that the relevant provision does not require that the concerns notice contain particulars of the serious harm, rather it requires that the concerns notice informs the publisher of the harm that the person considers to be serious harm. Accordingly, the applicant contended that both concerns notices are valid, having regard also to Georges wherein Abadee DCJ stated at [76]:

The approach I favour eschews any notion of a ‘one-size-fits-all,’ rigidly prescriptive or formulaic approach for determining the adequacy of a concerns notice, for the purpose of s 12B(1)(a). The approach means that, depending on the circumstances:

•    the Court may draw inferences that adequate information about s 12A(1)(a)(iv) has been given not only from bare assertions of serious harm, but by other matters in the concerns notice requiring articulation, in s 12A(1)(a)(i)–(iii) and (where relevant) (v).

•    it is inappropriate for the Court to fasten only upon that part of the concerns notice specifically earmarked, say, under the sub-heading ‘serious harm;’ however desirable it may be to have such sub-headings or other means of illuminating the discrete requirements in s 12A(1)(ii)–(v).

•    information can be conveyed expressly and/or by implication;

•    whilst it is necessary for an aggrieved person to set out the imputations particularised in the concerns notice, it is unnecessary, in the case where there is multiple publications complained of, for the purpose of s 12A(1), for the aggrieved person to link, connect or tie imputations to specific publications; and

•    it is unnecessary, for the purposes of s 12A(1), for the aggrieved person to specifically identify the serious harm for each and every matter complained of.

70    The applicant also noted that the third respondent did not utilise the statutory mechanism to receive further particulars and that therefore it can be inferred that he did not have any issues with the adequacy of the particulars when the concerns notices were received. As stated by Abadee DCJ in Georges at [73]:

So too with s 12A: if a publisher passes up the opportunity to ask for more in the period in which the amends process is to occur if it takes the view that the information is insufficient of [sic] incomplete in order for it to understand how an aggrieved person asserts that serious harm has been or is likely to be sustained by a publication, then a Court may be entitled to infer that the publisher sufficiently understands the aggrieved person’s ‘concern’ about serious harm having been, or likely to be, sustained by the matter(s) complained of.

Consideration

71    It is convenient to consider each of the concerns notices in turn.

72    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.

73    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.

74    The applicant also submitted that the Second Concerns Notice must be read together with the First Concerns Notice as it is provided to the same person and refers to a continuing course of conduct. It is evident from the text of the Second Concerns Notice, which makes various references to the First Concerns Notice and the Main Post, that that was the intention of the applicant. While the applicant did not take the Court to any cases specifically in support of this submission, I agree that in these circumstances, the concerns notices ought to be read together. This is because, in this case, the Second Concerns Notice explicitly and repeatedly refers to and imports the contents of the First Concerns Notice.

75    If I am wrong in coming to that conclusion, I consider that, in any case, the Second Concerns Notice sufficiently informs the publisher of the harm that the applicant considers to be serious harm to her reputation, in accordance with the principles espoused in Georges. I therefore consider it to be valid.

76    Further, I consider that the failure of the third respondent to seek any further particulars pursuant to s 12A(3) of the Act in relation to either of the concerns notices at the time of their receipt is an impediment to now contending them to be invalid on the bases set out above. This can be contrasted with Randell wherein the defendant had sought particulars before applying to have the pleading struck out. As observed by Porter KC DCJ in Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd [2024] QDC 088 at [72]:

… to adopt a broad reading of the necessary particularisation of harm for a valid notice is likely to have the opposite effect to that intended. It will provide an incentive for a publisher who considers a notice inadequately particularised not to seek to resolve a dispute in the hope or expectation that the publisher will be able to rely on s 12B(1)(a) to defeat any future claim.

77    Accordingly, the relevant paragraphs ought not to be struck out on the basis of the concerns notices.

conclusion

78    For the reasons above, the amended interlocutory application ought to be dismissed. I do not consider that s 10A(5) is caught by s 79 of the Judiciary Act. However, even if it were caught, I consider there are special circumstances in this case which justify the postponement of the serious harm element until trial.

79    With respect to the strike out application, I consider the relevant paragraphs of the FASOC ought not be struck out on the basis that they are an abuse of process. As well, I consider that the FASOC as currently pleaded discloses the requisite causes of action and ought not be struck out.

80    Costs ought to follow the event.

81    Given that the application is dismissed, the matter should now progress to trial. To that end, the parties are requested to confer and provide to the Court any agreed draft orders progressing the proceeding to trial. If no agreement as to the appropriate orders is reached, a case management hearing should be listed.

Associate:

Dated:    29 August 2024