Since the Stage 1 defamation reforms took effect in most Australian jurisdictions on 1 July 2021, serving a valid concerns notice has been a mandatory precondition to commencing defamation proceedings. Section 12B of the Defamation Act 2005 is unequivocal: an aggrieved person cannot commence defamation proceedings unless they have given the proposed defendant a concerns notice, the imputations to be relied on in the proceedings were particularised in that notice, and the applicable period for an offer to make amends has elapsed.
The consequences of non-compliance are severe. Courts have repeatedly dismissed defamation claims where no valid concerns notice was given — and as recently as March 2026, the Western Australian Court of Appeal upheld the dismissal of a defamation suit on precisely this basis, confirming that the concerns notice requirement is a substantive requirement, not merely a procedural one that can be overlooked or cured after the event.
This guide sets out the statutory requirements for a valid concerns notice under s 12A, the key timelines, what to include about serious harm, and the most common drafting errors that get claims thrown out.
What Is a Concerns Notice?
A concerns notice is a formal written notice from an aggrieved person to the publisher of alleged defamatory matter. It serves a dual purpose under the legislative scheme: it gives the publisher notice of the complaint and an opportunity to resolve the matter without litigation (including by making an offer to make amends), and it establishes the mandatory precondition to commencing court proceedings.
The concerns notice regime was introduced as part of the Model Defamation Amendment Provisions 2020, which have been adopted in New South Wales, Victoria, Queensland, South Australia, the ACT, Tasmania, and the Northern Territory. Western Australia has not yet enacted the concerns notice provisions, although the WA Court of Appeal has confirmed that when the substantive law of another state applies (for example, because the publication occurred in NSW), the concerns notice requirement of that state must be satisfied.
The Section 12A Checklist
Under s 12A(1) of the Defamation Act 2005, a notice is a "concerns notice" if it meets all of the following requirements:
1. The Notice Must Be in Writing
This is straightforward but essential. An oral complaint — a phone call to the publisher, a verbal demand at a meeting — does not constitute a concerns notice, no matter how forcefully expressed. The notice must be a written document.
2. Specify the Location of the Publication
The notice must specify where the defamatory matter can be accessed. For online publications, this means the URL of the webpage, social media post, or Google review. For print publications, it means the name, date, and page of the newspaper or magazine. For broadcast material, it means the program name, date, and time of broadcast.
Practitioners should capture and preserve this evidence before sending the concerns notice. Online content can be edited or removed at any time. Screenshots with timestamps, web archive links, and full-page captures should be obtained as soon as the defamatory material is discovered.
3. Identify the Defamatory Imputations
The notice must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried by the publication. This is the most technically demanding element of the concerns notice and the one most frequently done badly.
An "imputation" is the meaning — express or implied — that the ordinary reasonable reader would understand the publication to convey. Imputations should be drafted as specific propositions of fact about the plaintiff. For example:
- Correct: "The Article carries the imputation that Mr Smith defrauded his clients by misappropriating trust funds."
- Incorrect: "The Article is defamatory of Mr Smith and damages his reputation."
The second formulation is not an imputation — it is a bare assertion that does not identify the specific defamatory meaning. A notice that fails to particularise the imputations will be deficient, and the publisher will be entitled to request further particulars under s 12A(3).
Critically, s 12B(1)(b) provides that the imputations relied on in any subsequent proceedings must have been particularised in the concerns notice. If you intend to plead an imputation in court that was not included in your concerns notice, the court may refuse to allow it. Draft your imputations carefully and comprehensively from the outset.
4. Particularise the Serious Harm
The notice must inform the publisher of the harm that the aggrieved person considers to be serious harm to their reputation caused, or likely to be caused, by the publication. Since the 2021 reforms, serious harm is a substantive element of the cause of action — the plaintiff must prove it to succeed.
The level of detail required in the concerns notice has been the subject of divergent judicial approaches. In Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd [2024] QDC 88, the Queensland District Court held that a concerns notice which set out the elements of defamation and stated that the publications had caused serious harm went "well beyond" what was required by s 12A(1)(a)(iv). This represents a less demanding approach than some practitioners had expected.
Nevertheless, best practice is to include specific particulars of the harm suffered or likely to be suffered. This may include:
- Loss of clients, customers, or business opportunities
- Damage to professional standing or community reputation
- Distress, anxiety, or other personal consequences
- The nature and size of the audience who received the publication
- Evidence of ongoing harm from the continued availability of online content
5. Financial Loss (Excluded Corporations Only)
If the aggrieved person is an "excluded corporation" — a corporation with fewer than 10 employees, a not-for-profit corporation, or a corporation that is not a public body — the notice must also inform the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication. This is an additional requirement for corporate plaintiffs under s 12A(1)(a)(v).
6. Attach a Copy of the Publication
A copy of the defamatory matter must be provided to the publisher together with the notice, where practicable. For online material, this means attaching a screenshot or printout. For broadcast material, a transcript or recording. The word "practicable" allows some flexibility — but best practice is always to include a copy.
How to Serve a Concerns Notice
Section 44 of the Defamation Act 2005 prescribes the methods of service. A concerns notice may be given to a natural person by:
- Personal delivery
- Post to the person's specified, residential, or business address
- Fax to the person's fax number
- Email to an email address specified by the person for service of documents
The email service option requires care. The email address must be one specified by the person for the giving or service of documents. A general contact email address published on a website may not satisfy this requirement. In Aguasa v Hunter [2024] WASC 380, the court considered whether service by email to an address not specified for that purpose was valid — a point that goes directly to whether the concerns notice was properly "given" under the Act.
For corporate publishers, service must be effected in accordance with the applicable corporations legislation (generally, by leaving it at or posting it to the registered office of the company).
Key Timelines
The concerns notice regime operates within several interlocking time limits:
- 14 days — if the publisher issues a further particulars notice under s 12A(3), the aggrieved person must provide the requested particulars within 14 days (or such longer period as agreed). Failure to comply means the concerns notice is deemed not to have been given (s 12A(5)).
- 28 days — the publisher has 28 days from receipt of the concerns notice (or 14 days from receipt of further particulars, whichever is later) to make an offer to make amends under s 14(2). Proceedings cannot be commenced until this period has elapsed.
- 28 days — an offer to make amends, once made, must remain open for acceptance for at least 28 days (s 15(1)(ba)).
- 1 year — the limitation period for defamation proceedings runs from the date of publication. The concerns notice, waiting period, and any offer to make amends process must all fit within this window — or the plaintiff must obtain an extension from the court.
- 56 days — if a concerns notice is given within 56 days before the expiry of the one-year limitation period, the limitation period is extended to allow the offer to make amends process to run its course (see s 10AA(3) in Victoria and equivalent provisions).
The practical takeaway: serve the concerns notice as early as possible. Delay narrows your options and compresses the time available for the offer to make amends process, negotiation, and (if necessary) the filing of proceedings before the limitation period expires.
Common Mistakes That Get Claims Dismissed
Failing to Issue Any Concerns Notice
The most fundamental error. In Hooper v Catholic Family Services [2023] FedCFamC2G 323, the plaintiff's defamation claim was summarily dismissed because no concerns notice had been served. The court held the deficiency was of "fatal moment" and represented an "incurable" procedural failure. In Aguasa v Hunter [2024] WASC 380, the WA Supreme Court dismissed proceedings on the same basis — a decision upheld on appeal in March 2026.
Failing to Particularise the Imputations
A concerns notice that simply says "the article is defamatory" without identifying the specific imputations is deficient. If the publisher requests further particulars and the aggrieved person fails to provide them within 14 days, the concerns notice is deemed never to have been given. This is not a technical formality — it is a statutory trap that catches the unwary.
Serving by Email to an Unspecified Address
Sending a concerns notice to a general enquiries email address that has not been specified by the recipient for service of documents may not constitute valid service under s 44. If the notice is not properly "given," the precondition in s 12B is not met, and proceedings may be dismissed.
Omitting the Serious Harm Particulars
While the Queensland District Court has taken a relatively lenient view of what is required, omitting any reference to serious harm is a clear deficiency. The safer course is to include meaningful particulars, even if they need not be exhaustive at this stage.
Leaving It Too Late
The one-year limitation period runs from the date of publication, not from the date you discovered the defamatory material. A concerns notice sent eleven months after publication leaves almost no room for the mandatory 28-day offer to make amends period, let alone any time for negotiation or the commencement of proceedings. The earlier you act, the stronger your position.
What Happens After You Serve a Concerns Notice?
Once a valid concerns notice has been served, the publisher has several options:
- Request further particulars — if the notice is inadequately particularised, the publisher may issue a further particulars notice under s 12A(3). You must respond within 14 days or your notice is invalidated.
- Make an offer to make amends — the publisher may make a formal offer under s 13, which must include a reasonable correction and payment of the aggrieved person's reasonable expenses, and may include an apology, payment of compensation, or other steps to redress the harm (s 15).
- Ignore the notice — the publisher may fail to respond at all. Once the 28-day applicable period has elapsed, the aggrieved person may commence proceedings.
- Reject the claim — the publisher may write back denying the claim. Again, once the applicable period has elapsed, proceedings may be commenced.
If the publisher makes an offer to make amends and the aggrieved person accepts it, the matter is resolved without litigation. If the offer is not accepted, the publisher may rely on the offer as a defence under s 18 — but only if the offer was reasonable. The court retains the power to assess damages if the parties cannot agree on the amount of compensation.
For Publishers: Responding to a Concerns Notice
If you receive a concerns notice, act promptly. You have 28 days to respond, and that period goes quickly. Key steps:
- Take the notice seriously. A dismissive or aggressive response can constitute an aggravating factor if the matter proceeds to trial — as demonstrated in Makarios v Morelas [2026] FCA 156, where the respondent's "arrogant and contemptuous" response to the concerns notice was found to warrant aggravated damages.
- Assess the validity of the notice. Does it comply with s 12A? Are the imputations properly particularised? Is the serious harm adequately described? If the notice is deficient, consider issuing a further particulars notice.
- Consider your defences. Is the publication substantially true? Is there a basis for honest opinion, qualified privilege, or another statutory defence?
- Consider making an offer to make amends. An offer under s 13 can limit your exposure. If the offer is reasonable and rejected, it may provide you with a complete defence under s 18.
- Do not make things worse. Continuing to publish defamatory material after receiving a concerns notice, or republishing the original material, is a significant aggravating factor that will increase any damages awarded against you.
How Matrix Legal Can Help
The concerns notice is where defamation cases are won or lost. A well-drafted notice that meets every statutory requirement, identifies the imputations precisely, and sets out meaningful particulars of serious harm puts the plaintiff in the strongest possible position — whether the matter resolves through an offer to make amends or proceeds to litigation. A deficient notice can kill the claim before it starts.
Mark Stanarevic and the Matrix Legal team prepare and respond to concerns notices across all Australian jurisdictions. We act for both plaintiffs and publishers, and we understand the tactical considerations on both sides of the process.
If you need to send or respond to a concerns notice, contact us for a free initial assessment. Time is critical — the limitation period waits for no one.
This article is general information and not legal advice. Defamation risk turns on the precise words used, the publication context, the audience, and available evidence.