A letter that names the article, gives the link, and says the piece is defamatory and inaccurate is not a defective concerns notice. On the Court of Appeal’s construction it is not a concerns notice at all. The distinction decides whether the further particulars machinery in s 12A(3) of the Defamation Act 2005 (Qld) can rescue the document, and with it whether the plaintiff was entitled to commence the proceeding he did, on the notice he gave.
In Dorante-Day v Dailymail.com Australia Pty Ltd [2026] QCA 167, delivered on 4 September 2026, Doyle JA (Mullins P and Bond JA agreeing) dismissed an appeal against orders striking out and entering judgment on the defamation parts of a self-represented plaintiff’s claim. The orders below were varied: entry of judgment was replaced by strike-out, and paragraph 5 of the Claim was struck out with leave to amend for relief consequential on the alleged copyright breach. The appeal itself failed and costs followed.
The useful part is narrow: the line the Court drew between a notice that particularises badly and a document that is not a notice at all, and what follows on each side of it.
What the Court decided
| Question | How it arose | What the Court held | Status |
|---|---|---|---|
| Does a letter identifying no imputation satisfy s 12A(1)(a)(iii)? | The respondents’ application under r 293 of the UCPR | No. It “does not satisfy the language of s 12A(1)(a)(iii)”, at [73] | Held. Dispositive |
| Is such a document a notice that “fails to particularise adequately” under s 12A(3)? | The consequence of the first answer | No. A notice with no identification of the imputations “cannot be said to be one where there is a failure to adequately particularise” them, at [82] | Held |
| Must a publisher ask for particulars to cure a deficient notice? | The structure of s 12A(3) | No. It “does not obligate the publisher to seek particulars to cure a deficiency”, at [81] | Held |
| Did the letter satisfy the serious harm limb in s 12A(1)(a)(iv)? | Same application | Doubted, then “assuming, without deciding, that this is a sufficient compliance”, at [75] | Assumed, not decided |
| Are proceedings commenced inside the s 12B(1)(c) period liable to summary dismissal? | The respondents’ alternative basis | The scheme supports a construction that they are “capable of being summarily dismissed”, at [87] | Considered obiter. “[U]nnecessary to determine”, at [86] |
| Can leave under s 12B(3) be granted after the event to validate proceedings already on foot? | Arising from the timing point | Not decided. “I would leave open determination”, at [88] | Expressly left open |
| Was it an irregularity to require leave for a McKenzie friend at the bar table? | Ground 10 | Yes, “an irregularity”, though the friend had “no right of appearance”, at [42] | Held. Immaterial on the facts, at [43] |
The line between a bad notice and no notice
Section 12B(1) bars an aggrieved person from commencing defamation proceedings unless a concerns notice has been given, the imputations to be relied on were particularised in it, and the applicable period for an offer to make amends has elapsed. Section 12A defines the notice: it must be in writing, specify where the matter can be accessed, inform the publisher of the defamatory imputations the person considers are or may be carried, and inform it of the harm the person considers to be serious harm.
The document here did the first two things and not the third. It quoted the headline, gave the web address, and asserted that the article was “defamatory, inaccurate, and tarnishes my reputation publicly”, at [6]. It identified no imputation. The Court was blunt about how low the bar is: “The requirements of s 12A(1) are not onerous. The notice is to be in writing and specify the location where the published matter can be accessed. That was done in this case”, at [71]. What the letter never did was inform the publisher of the imputations, at [73].
The interesting question is what follows. Section 12A(3) contemplates a notice that “fails to particularise adequately” the required information and lets the publisher ask for further particulars; s 12A(5) then deems a person who does not supply them not to have given a notice. That machinery looks like a cure, and the argument was that the letter was at worst an inadequately particularised notice nobody had properly asked to have fixed.
The Court declined to read it that way. At [82] it held that s 12A(3) “ought to be construed in such a way that a purported notice where there is no identification of the imputations cannot be said to be one where there is a failure to adequately particularise the imputations”. Such a document does not fall within the subsection at all. The test applied is substantial compliance: “I would not characterise a document which does not substantially comply with those requirements as a concerns notice as referred to in the Act”, also at [82]. In that respect the Court agreed with the remarks in Gayed v Virgin Mary & St Markorious Coptic Orthodox Church [2024] NSWSC 1232 at [46].
That is easy to over-read, so it is worth saying what it does not decide. The decision does not say any defect in a notice is fatal: s 12A(3) exists precisely for a notice that particularises inadequately. The line is drawn at substantial non-compliance with the requirement to identify the imputations.
What the publisher does not have to do
The practical corollary sits at [81]: “Section 12A(3), however, does not obligate the publisher to seek particulars to cure a deficiency in the purported concerns notice”.
Three situations need to be kept apart, and only the first was decided. Where the document identifies no imputation at all, it is not a concerns notice and the publisher’s silence changes nothing, because s 12A(3) never applied to it. Where a recognisable notice merely lacks particulars and the publisher does ask, the Court said at [83] that the document with the particulars might arguably then comprise a notice. Where a recognisable notice lacks particulars and the publisher asks for none, the Court said the section “leaves unspecified” what follows, at [81]. Here the respondents did ask for particulars, but of the parts of the article said to be inaccurate, not of the imputations; the Court noted at [74] that no request for particulars of the imputations was made and none were provided in any event.
What follows from giving no notice is summary termination. At [80] the Court held that “[t]he failure to give a concerns notice means the proceedings are liable to be struck out”, citing Cavar v Campbelltown Catholic Club Ltd [2024] NSWCA 126 and Aguasa v Hunter [2026] WASCA 37. So there was no entitlement to commence, at [84], and the defamation parts of the claim were rightly dismissed summarily, at [85].
The timing prohibition, and what was left open
The respondents had a second string: the proceeding was commenced before the applicable period for an offer to make amends had elapsed, contrary to s 12B(1)(c). The Court did not need it, saying at [86] that it was “unnecessary to determine” that alternative basis.
What it went on to say is considered obiter rather than holding. At [87] the section “does not explicitly provide that proceedings commenced in contravention of that prohibition are a nullity”, but the scheme of Part 3 and the object of promoting non-litigious resolution support a construction that such proceedings are “capable of being summarily dismissed”. Capable of, not automatically.
The genuinely open question is the next one. Section 12B(3) allows leave despite non-compliance with the timing limb, but it speaks of a “proposed plaintiff”, and the Court observed that it “does not in terms contemplate leave granted to validate proceedings already commenced”. It then reserved the point: “I would leave open determination of whether that leave (had it been sought) could be granted nunc pro tunc”, at [88]. None was sought here, so no error arose from the primary judge not engaging s 12B(3), at [91].
The one point the appellant established
The appellant ran bias and procedural fairness grounds, including about the treatment of his wife as his McKenzie friend. He established something, and it did him no good.
The Court set out Coffey v State of Queensland [2010] QCA 291, where Fraser JA adopted Lord Tenterden CJ’s formulation that a friend may attend, take notes, quietly make suggestions and give advice but cannot demand to take part as an advocate, and said at [38] that “[t]hat remains the general rule in civil proceedings”. Applying it, the Court held at [42] that “[i]t was therefore an irregularity” to require leave for the friend to sit at the bar table and assist privately, while holding that the primary judge “was correct that, in the substantive hearing, the McKenzie Friend had no right of appearance”.
The irregularity was immaterial: leave was granted, the friend stayed and assisted, and “[i]t cannot be said that the effect was to deprive the appellant of an opportunity to present his case”, at [43]. Every other procedural ground failed.
Questions this raises
Does one defect in a concerns notice sink the claim?
It depends on the defect. Section 12A(3) is built for a notice that particularises inadequately, and the Court described the s 12A(1) requirements as “not onerous”, at [71]. What was fatal here is narrower: a document that does not substantially comply with the requirement to identify the imputations is not a concerns notice at all, at [82].
Can a publisher’s silence save a defective notice?
It depends which kind of defect. Where the document identifies no imputation at all, silence cures nothing: that document is not a concerns notice, and s 12A(3) never applied to it. That was the decided case. Where a recognisable notice merely lacks particulars, the position is unresolved. A publisher is not obliged to seek particulars, at [81], but the Court expressly left unspecified what follows if it does not. Where particulars are sought and provided, it “seems at least fairly arguable” that the original document with the particulars would comprise a notice, at [83], put no higher than that and not necessary to the outcome.
Does the decision say anything about serious harm?
Very little. Section 10A was noted at [59] as part of the statutory background. As to the notice, the Court thought it “doubtful” that the letter satisfied the serious harm limb in s 12A(1)(a)(iv), then assumed compliance without deciding it, at [75]. This is not a serious harm case and should not be cited as one.
Was anything decided about whether the article was defamatory?
No. At [4] the Court recorded only that the appellant alleged the article was defamatory of him. The claim about third-party comments on the publisher’s page, run on Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346, went the same way: proceedings “may not be commenced because of the operation of s 12B” and the non-compliance, at [103]. The dismissal was on the precondition, not the merits.
Must the notice go to the author as well as the publisher?
This decision does not answer that. The respondents had contended below that the notice was not given to the second respondent at all, but the Court recorded at [62] that the topic “did not feature in the primary judge’s reasons and no issue as to that arises in the appeal”. Anyone serving both a publisher and a named author must look elsewhere.
What remains unsettled
Three things. Whether s 12B(3) leave can be granted after the event to validate a proceeding already commenced is expressly reserved, at [88]. What happens where a notice lacked particulars and the publisher did not ask for them is something the section “leaves unspecified”, at [81]. And whether a notice must be given separately to each proposed defendant did not arise, at [62].
The drafting lesson is duller and more useful than any of them. The imputations go in the notice, in terms, before anything is filed. A notice that gestures at a headline and asserts the article is defamatory leaves the aggrieved person with nothing to commence and no cure provision to fall back on.
The reasons are on AustLII, and the provisions discussed are in the current reprint of the Act.
Related reading
- Colagrande v Kim: an anonymous fake review and the limits of defamation
- SHRL Ventures: joint venture, duress and the oppression remedy
- Contact Fraser Lawyers
Sending or answering a concerns notice? The imputations belong in the notice, and the timetable that follows it is short. Contact Fraser Lawyers to discuss where you stand. |
This article is general information only and is not legal advice. The law referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
Published 7 September 2026.
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