Khan v Hassan (Ruling)
[2023] VCC 852
•31 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Defamation List |
Case No. CI-21-05334
| NURUL KHAN | Plaintiff |
| v | |
| MOHAMMAD HASSAN | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 May 2023 | |
DATE OF RULING: | 31 May 2023 | |
CASE MAY BE CITED AS: | Khan v Hassan (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 852 | |
RULING
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Subject:DEFAMATION
Catchwords: Preliminary issues – concerns notice requirements – Court’s discretion to allow improperly commenced proceedings if “just and reasonable”
Legislation Cited: Defamation Act 2005 (Vic), s12, s14, s44; Interpretation of Legislation Act 1984 (Vic), s45; County Court Civil Procedure Rules 2018, r 6.11; Evidence Act 2008 (Vic), s160
Cases Cited:Mannai Investment Co Ltd v Eagle Star Assurance [1997] AC 749; Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328
Ruling: The plaintiff did not give the defendant a concerns notice for the purposes of s12B(1) of the Defamation Act 2005 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Castelan | SR Lawyers |
| For the Defendant | Mr J P Wheelahan | Gadens Lawyers |
HER HONOUR:
Introduction
1Mr Nurul Khan, the plaintiff, has sued the defendant, Mr Mohammad Hassan, for defamation in relation to comments posted on or about 11 September 2021 on a Facebook page known as the Bangladeshi Broadsheet (“the post”). The post was made by an anonymous user with the profile name “Nahid Rains”. The defendant was the administrator of the Bangladeshi Broadsheet at the time.
2Whilst there was an issue between the parties as to when the post was visible between 11 and 13 September 2021, it was agreed that it was finally removed on 13 September 2021.
3The plaintiff commenced this proceeding on 15 December 2021.
4The defendant alleged that the proceeding was commenced in breach of s12A and s12B of the Defamation Act 2005 (“the Act”). He submitted that he had not been “given” a concerns notice, and/or the applicable period for an offer to make amends had not elapsed prior to this proceeding being commenced. He said that the proceeding is therefore an abuse of process and this Court does not have jurisdiction to hear it.
5The plaintiff contended that:
(a) the defendant was given a concerns notice by email on 16 November 2021, and the provisions of s12A and s12B of the Act were complied with;
(b) alternatively, in the event the Court were to find as a matter of fact that the defendant received a concerns notice before 15 December 2021, such receipt ought to be treated as the concerns notice being “given” to the defendant for the purpose of the Act;
(c) if a concerns notice was given to the defendant, but the applicable period for an offer to make amends had not elapsed prior to the commencement of the proceeding, the plaintiff ought to be granted leave nunc pro tunc pursuant to s12B(3)(b) of the Act on the grounds that it is “just and reasonable” to do so.
6The trial of the proceeding was due to commence on 23 May 2023. However, in circumstances where separate determination of these discrete issues could contribute to the saving of time and cost, I ruled that it was appropriate for these matters to be determined as preliminary issues.
7The parties agreed the preliminary issues as follows:
“1.In relation to the Second Purported Concerns Notice dated 16 November 2021 (Concerns Notice), has the plaintiff proved that he has given the defendant the Concerns Notice for the purposes of section 12B(1) of the Defamation Act2005 (Vic) (the Act)?
2.To that end, has the plaintiff proven for the purposes of sections 12B(1) and 44 of the Act:
(a)That the plaintiff sent the Second Purported Concerns Notice by post to the residential or business address of the defendant last known to the plaintiff for the purposes of section 44(1)(a)(ii) of the Act?;
— and/or
(b) Did the defendant specify the email address ###@gmail.com for the giving or service of documents for the purposes of section 44(1)(a)(iv) of the Act, to which the plaintiff sent the Concerns Notice on 16 November 2021?
If the answer to both 2(a) and 2(b) is ‘No’ the plaintiff cannot commence proceedings.
3.If the Court were to find as a matter of fact that the Applicant was otherwise put on notice of the concerns notice before 15 December 2021, could such a finding be treated as the Concerns notice being given to the defendant for the purpose of s 12B(1)(a) of the Act?
4.If the answer to 2 (a) and/or 2(b) or 3 is ‘Yes’, did the plaintiff wait for the applicable period of 28 days for an offer to make amends to elapse from the giving or service of the Concerns Notice before he issued proceedings on 15 December 2021 for the purposes of section 12B(1)(c) of the Act?
5.If the answer to 4 is ‘No’, then:
(a) Does the Court have power to grant leave to the plaintiff as a proposed plaintiff to commence this proceeding nunc pro tunc from 15 December 2021 on the grounds that it is just and reasonable to grant leave for the purposes of section 12B(3)(b) of the Act?
(b) If ‘Yes’ to 4(a), is it just and reasonable to grant leave to the proposed plaintiff to commence [this] proceeding nun pro tunc from 15 December 2021 for the purposes of section 12B(3)((b) of the Act?”
(sic)
8For the reasons that follow, I have determined that the answers to preliminary issues one, two and three are ‘No’, and therefore issues four and five do not arise.
The relevant provisions of the Act
9Sections 12A and 12B of the Act came into effect on 1 July 2021. They relevantly provide as follows:
“12A Concerns notices
(1) For the purpose of this Act, a notice is a concerns notice if—
(a) the notice—
(i) is in writing; and
(ii) specifies the location where the matter in question can be accessed (for example, a webpage address); and
(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern); and
(iv) informs the publisher of the harm that the person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question; and
(v) …
(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.
Note
Section 12B requires a concerns notice to be given before a proceeding for defamation can be commenced.
(2) For the avoidance of doubt, a document that is required to be filed or lodged to commence a defamation proceeding cannot be used as a concerns notice.
(3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.
(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and the aggrieved person) after being given the notice.
(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.
12B Defamation proceeding cannot be commenced without concerns notice
(1) An aggrieved person cannot commence a defamation proceeding unless—
(a) the person has given the proposed defendant a concerns notice in respect of the matter concerned; and
(b) the imputations to be relied on by the person in the proposed proceeding were particularised in the concerns notice; and
(c) the applicable period for an offer to make amends has elapsed.
(2) …
(3) The court may grant leave for a proceeding to be commenced despite non-compliance with subsection(1)(c), but only if the proposed plaintiff satisfies the court—
(a) the commencement of a proceeding after the end of the applicable period for an offer to make amends contravenes the limitation law; or
(b) it is just and reasonable to grant leave.
(4) The commencement of a proceeding contravenes the limitation law for the purposes of subsection (3)(a) if the proceeding could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.
(5) In this section—
limitation law means the Limitation of Actions Act 1958.”
10The applicable period for an offer to make amends is set out in s14(2) of the Act, which provides:
“(2) For the purposes of this Act, the applicable period for an offer to make amends is—
(a) if the aggrieved person has provided further particulars in response to a further particulars notice about a concerns notice after 14 days have elapsed since the concerns notice was given—14 days since the publisher was given the further particulars; or
(b) in any other case—28 days since the publisher was given a concerns notice by the aggrieved person.”
11Section 44 of the Act makes provision for the giving of notices and other documents. It relevantly provides:
“44 Giving of notices and other documents
(1) For the purpose of this Act, a notice or other document may be given to a person (or a notice or other document may be served on a person)—
(a) in the case of a natural person—
(i) by delivering it to the person personally; or
(ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document; or
(iii) by sending it by facsimile transmission to the facsimile number of the person; or
(iv) sending it by email to an email address specified by the person for the giving or serving of documents;
(b)…
(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.”
12One of the objects of the Act is to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.[1]
[1]Section 3(d) of the Act
13The new requirement to give a valid concerns notice and wait for the expiration of the applicable period for an offer to make amends, restricts an aggrieved person’s ability to commence proceedings. Subject only to s12B(3) of the Act, a plaintiff cannot commence a defamation proceeding without complying with the concerns notice requirements.
14Before considering the submissions of the parties as to the preliminary issues, it is convenient to set out the evidence.
The evidence
15Mr Mark Stanarevic, the plaintiff, Ms Rawnak Jahan, Dr Abu Rayhan Md Muniruzzaman, and the defendant gave viva voce evidence and were cross-examined.
Mr Mark Stanarevic
16Mr Stanarevic, solicitor, of Matrix Legal, acted for the plaintiff at the relevant time.
17On 13 September 2021, Mr Stanarevic drafted a concerns notice (“the first concerns notice”).[2] The first concerns notice was addressed to the defendant at “# Popular Street” and noted on its face that it was sent “By email”. The email address to which it was sent was not noted on the letter.
[2]Court Book (“CB”) 136
18Mr Stanarevic arranged for the first concerns notice to be personally served. This was done on 28 September 2021.[3] He was unable to recall whether the first concerns notice was sent by email and/or post, in addition to being personally served.
[3]CB 449
19On 16 November 2021, the plaintiff’s solicitor drew a second concerns notice (“the second concerns notice”).[4]
[4]CB 376
20Mr Stanarevic said that he emailed the second concerns notice to ###@gmail.com. His evidence as to how he identified the email address to which to send the second concerns notice was:[5]
“Quite simple, the Bangladeshi Broadsheet Facebook page which was operational at the time clearly had a visible email address called ###@gmail.com is my recollection, which is the email I sent it [to] on 16 November 2021.”
[5]Transcript (“T”) 28
21Mr Stanarevic said that he understood the defendant was the sole administrator of the Bangladeshi Broadsheet, and the email address was available to the public at large on the Bangladeshi Broadsheet Facebook page.[6] He agreed that the defendant had not specified that email address to him for the giving or serving of documents upon him.[7]
[6]CB 128
[7]T45
22Mr Stanarevic said that he had also been given the email address by the plaintiff.[8]
[8]T44
23Mr Stanarevic said that his usual practice was to send a concerns notice by post as well as email, and he therefore believed that the second concerns notice would have been sent by post to # Popular Street. Mr Stanarevic said that this was the address that had been given to him by the plaintiff. He acknowledged that there was a typographical error in the address – it should have been # Poplar Street.
24Mr Stanarevic said that he did not believe the second concerns notice had been returned, but acknowledged he was unable to remember “that far back”.
The Plaintiff
25The plaintiff is a legal practitioner. He was born and brought up in Bangladesh, where he was awarded a Bachelor of Laws and Master of Law. He worked in public interest litigation and was selected as an assistant judge. He worked in a court for three months as a trainee jurist.
26The plaintiff migrated to Australia in 2001. In 2015, the plaintiff was awarded a Bachelor of Laws by La Trobe University. He was admitted to practice in February 2016, and has practiced as a solicitor since that time, mainly in property and conveyancing. The plaintiff is not familiar with defamation proceedings, and relied upon Mr Stanarevic to advise him.
27The plaintiff has been active in the Bangladeshi community in Melbourne since migrating to Australia. That community comprises approximately 5,000 people. It is close-knit. The plaintiff was vice president, then president, and thereafter an executive member of the Victorian Bangladeshi Community Foundation (“VCBF”). In 2020, he was given a Lalor Hero award by Joanne Ryan MP for his involvement in the VCBF International Mother Tongue Day event.[9] He was also recognised by his local Neighbourhood Watch for an outstanding contribution to the Bangladeshi community.[10]
[9]CB 197
[10]CB 198
28The plaintiff said that he was distressed and humiliated by the post. Members of the community repeatedly asked him what he was going to do about it, suggesting to him that if he did not act, people would start believing what was said about him in the post. He consulted his general practitioner on 18 November 2021 complaining of severe anxiety, extreme stress, very poor sleep and reduced concentration.[11]
[11]CB 192
29The plaintiff knew the defendant as a member of the Bangladeshi community, and had been to his home previously. That was the address he had given to Mr Stanarevic. He did not realise that Mr Stanarevic had made an error in the address until recently.
30The plaintiff said that he had previously received an email from the defendant from the ###@gmail.com email address in 2016.[12] Otherwise he knew that the defendant was the sole administrator of the Bangladeshi Broadsheet Facebook page, and that email address was available on its Facebook page.
[12]CB 528
31The plaintiff said that before proceedings were issued, he saw an email from the defendant dated 13 December 2021 in which the defendant stated that he had only found the second concerns notice in his email spam folder on 12 December 2021.[13] When asked why the proceedings were issued so shortly after that email, he said:[14]
“Just to protect my reputation and dignity and if I do not take that initial – because it was just like driving me, like, crazy. Still I don’t go anywhere so it is haunting me every day because people talking about it. Our community is different completely because they like to gossip, they like to – you know, the bad thing, it spread so quickly, more than anything. So it’s chasing me all the time and I spend a lot of sleepless nights. I never had a sleeping pill before, I was under medication since 2021, in November, on the sleeping pill because I need to end this. I need to prove to community that’s wrong. That’s to protect my reputation and dignity because when even he came to know, the defendant, he did not even make any offer of anything, not even a simple apology. This is very important, reputation, dignity is very important to me. That’s why I asked to initiate the proceedings to end this matter and so that I can live in the society … .”
(sic)
[13]CB 150
[14]T81-82
Ms Rawnak Jahan
32The plaintiff’s sister-in-law, Ms Rawnak Jahan, told the Court that the plaintiff asked her to make contact with a friend of the defendant on 11 September 2021 to have the post taken down.
33She gave evidence of the plaintiff’s very good reputation in the Bangladeshi community prior to September 2021.
34She said that people in the community began talking about the post and asking whether the plaintiff was going to take any action. She observed the stress caused to the plaintiff by the post, and a change in the way the community treated the plaintiff.
Dr Abu Rayhan Md Muniruzzaman
35Dr Abu Rayhan Md Muniruzzaman (“Dr Munir”) is a program manager at RMIT University, and the defendant’s manager. He told the Court he was made aware of the issue regarding the post when it arose in September 2021, as the defendant had become uncharacteristically pre-occupied.
36Dr Munir said that the defendant contacted him in a panicked state in the first or second week of December 2021, and said that he had just discovered an email sent to him in November 2021 in a spam folder. Dr Munir saw the email in the spam folder. His recollection was that this conversation occurred about a month after the date of the email. He advised the defendant not to move the email from the spam folder, but to contact his lawyer.
The Defendant
37The defendant is a program co-ordinator at RMIT University. He was the administrator of the Bangladeshi Broadsheet Facebook page. He operated it as a hobby.
38The defendant said that he did not receive the first or second concerns notice by post.
39He said that he had never specified the ### @gmail.com account for the giving or service of documents.
40The defendant was served personally with the first concerns notice on 28 September 2021, together with a concerns notice relating to another matter (“the unrelated concerns notice”).
41As the first concerns notice stated that it was also sent by email, he checked the ###@gmail.com email account on 28 September 2021 and found an email dated 13 September 2021 containing the first concerns notice in his spam folder. He did not move the email out of the spam folder.
42The defendant said that he instructed a solicitor, Pervez Rahman, to act for him in relation to the plaintiff’s claim as well as for himself and three others in respect of the unrelated concerns notice.
43The defendant said that he believed that Mr Rahman was acting for him in respect of the plaintiff’s matter until 20 December 2021. He thought that any communication from the plaintiff’s solicitor would be made to Mr Rahman. He thought that an email from Mr Rahman dated 21 October 2021 in which Mr Rahman said that he would no longer act for “you guys” was referring to the unrelated concerns notice.[15]
[15]CB 523
44The defendant said that he discovered the second concerns notice in the spam folder of the ###@gmail.com account on the evening of 12 December 2021. He contacted a friend, Mr Ikbal, and went with him to the plaintiff’s home in order to try and speak to the plaintiff. The plaintiff was not there. That evening, or the following morning, he sought Dr Munir’s help as to what he should do about the email he had found. He then contacted his solicitor, Mr Rahman, who was on holiday, but dictated a response which the defendant sent by way of the email dated 13 December 2021. In it he notified the plaintiff’s solicitor that he had only just found the second concerns notice in his spam folder, and sought time to respond to it.
The submissions of the parties
The Plaintiff
45The plaintiff submitted that the second concerns notice was given to the defendant. It was emailed on 16 November 2021 and sent by post the same day.
46The plaintiff submitted that the defendant’s evidence, that he did not receive the second concerns notice until 12 December 2021, ought not to be accepted. Given that the plaintiff is a “computer professional”, with four Gmail accounts, his evidence that he did not know how Gmail accounts and spam operated was not credible; he gave incredible and inconsistent evidence regarding the frequency with which he checked the ###@gmail.com account; at paragraph 3(b)(iii) of the Proposed Amended Defence dated 28 October 2022, it was alleged on behalf of the defendant that the first concerns notice was received by email on 13 September 2021,[16] and that the defendant gave misleading evidence about an email he sent from the ###@gmail.com account in October 2016.
[16]CB 26
47It was submitted that s12B and s44 of the Act ought not to be construed in “a rigid or inflexible manner”.
48The plaintiff submitted that the use of the word “may” rather than “shall” in s44(1) of the Act meant that it was not being strictly mandated that service must be given in one of those ways.[17] It was submitted that the broad definition of “document” in the Act, lends to a broader construction of how s44 operates.
[17]Section 45(1) of the Interpretation of Legislation Act 1984 (Vic)
49The plaintiff submitted that he had provided his then solicitor with the defendant’s correct residential address. Unfortunately, a typographical error had occurred, leading to the concerns notices being addressed to # Popular Streetrather than # Poplar Street. It was submitted that this was a slip or small error and “all that matters is the objective meaning of the words used”.[18] It was submitted that given there was no Popular Street in that suburb, the Court ought to infer that the correspondence was delivered to the correct address by Australia Post.
[18]Plaintiff’s written submissions, paragraph 9, and Mannai Investment Co Ltd v Eagle Star Assurance [1997] AC 749 per Lord Hoffman
50The plaintiff submitted that the email address to which the second concerns notice was sent was the contact email for the Bangladeshi Broadsheet provided on its Facebook page. The plaintiff submitted that the defendant was the sole administrator of the Facebook page, and the plaintiff had received an email from the defendant from this email address previously. The plaintiff submitted this was sufficient to satisfy the requirement in s44(1)(iv) of the Act that it was an email address “specified by the … [defendant] for the giving or service of documents”.
51In the alternative, the plaintiff submitted that on the defendant’s own case, he received the second concerns notice on 12 December 2021 and it ought to be taken to have been “given” to him on that day. Whilst a concerns notice is not a court document, it was submitted that there is no reason why the giving of such a notice under the Act ought to be treated in a manner that is more strict than for service of a court document under Rule 6.11 of the County Court Civil Procedure Rules 2018 (Vic).
52In the event that the Court determined that proceedings were commenced after the defendant was given the second concerns notice but prior to the expiration of the applicable period for an offer to make amends, the plaintiff submitted leave ought to be granted nunc pro tunc for the proceeding to be commenced pursuant to s12B(3)(b) of the Act. The plaintiff submitted it was just and reasonable to grant leave because:
(a) After 13 September 2021, the defendant was at all times aware that the plaintiff was claiming that he had been defamed by the publication;
(b) The publication was a serious defamation in a small community;
(c) There is significant evidence of the impact that the defamation had on the reputation of the plaintiff;
(d) When the defendant was served with the first concerns notice, he told the process server that service of the process on him was illegal;
(e) The defendant could have made an offer of amends any time after receiving the first concerns notice but did not;
(f) If the second concerns notice was validly posted, the proceeding was only issued a few days before the expiration of the 28-day applicable period;
(g) The plaintiff always believed he gave the correct address for the defendant to his solicitors;
(h) The defendant admitted receiving the second concerns notice on 12 December 2021, and on his evidence, did not open the email, seeking to avoid knowing of its contents;
(i) The defendant knew Matrix Legal acted for the plaintiff, and the subject of the email was “Defamation Notice”;
(j) The defendant could have made an offer to amends in his email of 13 December 2021;
(k) The defendant’s request for time to consult his lawyer in his email of 13 December 2021 was misleading, as he knew his lawyer was not then acting for him;
(l) The defendant’s request for an extension of time to respond to the second concerns notice to “most likely in February 2022” was an unacceptable delaying tactic, and there was no indication the defendant was going to make any offer of amends;
(m) The plaintiff needed to act urgently to vindicate his reputation in the Bangladeshi community;
(n) The defendant had no complaint about the contents of the concerns notice.
The Defendant
53The defendant submitted that the proceeding was issued without compliance with the concerns notice provisions, and it is therefore an abuse of process. The defendant took no issue with the form of the second concerns notice, the issue related only to the giving of it.
54The defendant said that he did not specify any postal address for the giving or serving of documents. Further, the address to which the plaintiff sent the second concerns notice was not a valid address. On that basis, posting the second concerns notice to # Popular Street, was not service in accordance with s44(1)(a)(ii) of the Act.
55The defendant said that he did not specify any email address for the giving or serving of documents. On that basis, sending the second concerns notice to ###@gmail.com was not service in accordance with s44(1)(a)(iv) of the Act.
56The defendant submitted that as the second concerns notice was not given to the defendant for the purposes of s12B(1) of the Act, the discretion to grant leave pursuant to s12B(3)(b) was not enlivened. Even if it were, the defendant submitted it was not just and reasonable to grant leave nunc pro tunc.
Findings of fact
57The controversy on the facts centred upon the credibility of the defendant’s evidence. In particular, whether and when he received the two concerns notices.
58Whilst there were some unsatisfactory aspects to the defendant’s evidence, I am satisfied that his account of how and when he received the two concerns notices is reliable. This is because his evidence in relation to these matters is consistent with the other evidence in the case.
59I accept the defendant’s evidence that he did not receive either concerns notice by post. This finding is consistent with the uncertainty as to whether the first concerns notice was posted, as well as the evidence that Matrix Legal used an incorrect address for the defendant.
60At all relevant times, the plaintiff knew the defendant’s correct address. I find that he had given the correct address to Matrix Legal. It appears that a typographical error occurred at Matrix Legal.
61On 28 September 2021, the first concerns notice was personally served on the defendant at his home Poplar Street by a process server. This was the correct address – not Popular Street.
62In his evidence, Mr Stanarevic was unable to recall whether the first concerns notice was sent by email. However, I find that it was, in light of the evidence from the defendant that on 28 September 2021, he found an email in his spam folder dated 13 September 2021 with the first concerns notice attached. I further accept that the defendant did not move the email from the spam folder. He looked for the email as the first concerns notice (which was personally served) stated on its face that it had been sent “By email”. It was only after this time that the defendant instructed Mr Rahman to act for him in relation to this matter.
63By letter dated 11 October 2021, Mr Pervez Rahman, solicitor, of O’Halloran Davis, sought further particulars from the plaintiff’s solicitor of the serious harm being alleged by the plaintiff.[19]
[19]CB 153 and 331
64It is to be noted that the plaintiff did not provide further particulars within 14 days of the defendant’s request for further particulars of the first concerns notice. By the operation of s12A(5) of the Act, the plaintiff was therefore taken not to have given the defendant a concerns notice for the purpose of s12A of the Act.
65By email dated 18 October 2021, the plaintiff’s solicitor asked the defendant’s solicitor if he had instructions to accept service.[20]
[20]CB 152
66On 21 October 2021, Mr Rahman emailed the defendant to advise him that he would not continue to act for him. I accept the defendant’s evidence that he believed Mr Rahman’s email which addressed “you guys” was referring to the unrelated concerns notice matter, not the plaintiff’s claim.[21]
[21]CB 523
67A few minutes later on 21 October 2021, the defendant’s solicitor emailed the plaintiff’s solicitor as follows:[22]
“Please be advised that I will not continue to act in this matter. Please liaise with the respondent directly as I have not agreed to accept service. Thanks.
Please do not hesitate to contact me should you have any queries.”
[22]CB 151
68It is to be noted that no address or email address was specified by Mr Rahman to Mr Stanarevic for the purpose of service of documents upon the defendant.
69The second concerns notice was addressed to the defendant at “# Popular Street” and noted on its face that it was sent “By email”. The email address to which it was sent was not noted on the letter. Mr Stanarevic said he believed the second concerns notice was posted, as this was his normal practice. I accept that evidence. I also accept the evidence that Mr Stanarevic had decided not to arrange for personal service of the second concerns notice so as not to incur the expense of a process server.[23]
[23]CB 201
70In the second concerns notice, the plaintiff said he was withdrawing the first concerns notice and issuing the second concerns notice in its place. The remainder of the second concerns notice was in similar form to the first concerns notice, save that the alleged imputations were changed somewhat, and particulars were provided of the harm that the plaintiff considered to be serious harm.
71There is no issue that the second concerns notice was sent to the ###@gmail.com email address on 16 November 2021.
72The defendant said that he first became aware of the second concerns notice on 12 December 2021 when he found it in the spam folder of the email ###@gmail.com. I accept his evidence about this. I do so because that better accords with his actions and presentation on 12 and 13 December 2021 and the form of the email he sent to Matrix Legal on 13 December 2021.
73On 13 December 2021, the defendant emailed the plaintiff’s solicitor as follows:[24]
“Dear Sir,
In response to your initial concern notice, please note that my lawyer promptly answered. As a result, I did not anticipate receiving an email from you directly, as our communication was conducted through my lawyer. I only received your email yesterday in my spam folder. You appear to have unilaterally withdrawn the first notice and failed to inform my lawyer of your withdrawal. Furthermore, you have sent a second notice, which is generally expected to be delivered to my lawyer because my lawyer handled the response to your initial notice. I confirmed with my lawyer that no communication has been sent to him since our last response. However, I will consult with my lawyer about the consequences of your first notice’s withdrawal and respond to your second notice accordingly.
Because we are approaching the holiday season, I would request an extension so that I can provide an adequate legal response through my lawyer as soon as possible, most likely in February 2022.
… .”
[24]CB 150
74The plaintiff’s lawyer did not respond to the defendant’s email.
75On 15 December 2021, this proceeding was commenced.
Has the Plaintiff proven, for the purposes of section 12B(1) and section 44 of the Act, that he sent the second concerns notice by post to the residential or business address of the Defendant last known to the Plaintiff for the purposes of section 44(1)(a)(ii) of the Act?
76I am satisfied that the second concerns notice was sent by the plaintiff’s then solicitor by post on or about 16 November 2021. The postal address to which it was sent was # Popular Street. However, the defendant’s postal address was # Poplar Street.
77There was no issue between the parties that there was no street named Popular in that suburb.
78I am not persuaded that I should infer that the copy sent by post was delivered, despite the error in the address. I accept that it is possible that Australia Post might deliver an envelope addressed to # Popular Street, to # Poplar Street. However, on the evidence, to reason in that way is not to draw a valid inference but to speculate or guess. Even if that were a valid inference, I am unable to find that this is the more probable inference on the facts in circumstances where the inference is sought to be drawn by the plaintiff who bears the burden of proof.[25] I am unable to conclude that it could reasonably be considered to have a greater degree of likelihood than any competing inference.
[25]Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88 at 101
79Where an article is sent by prepaid post addressed to a person at a specified address in Australia, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been received on the seventh working day after having been posted.[26]
[26]Section 160 of the Evidence Act 2008 (Vic)
80I accept the defendant’s evidence that he did not receive the second concerns notice by post and that his correct postal address was # Poplar Street. I find that evidence would have been sufficient in any event to raise doubt about the presumption of receipt of the second concerns notice pursuant to s160 of the Evidence Act 2008 (Vic).
81The plaintiff has not proven that the second concerns notice was sent by post to the residential or business address of the defendant last known to the plaintiff for the purposes of s44(1)(a)(ii) of the Act.
Has the Plaintiff proven, for the purposes of section 12B(1) and section 44 of the Act, that the defendant specified the email address ###@gmail.com for the giving or service of documents for the purposes of section 44(1)(a)(iv) of the Act, to which the Plaintiff sent the second concerns notice on 16 November 2021?
82I am satisfied that the second concerns notice was sent by the plaintiff’s then solicitor to ###@gmail.com on 16 November 2021.
83That email address was identified as a means of contact for the Bangladeshi Broadsheet on its Facebook page. However, I find that something more is required before that email address could be said to be “an email address specified by the … [defendant] for the giving or service of documents”. The descriptor “specified” requires more than an email address which belongs to the relevant person. It requires an email address that has been identified as one for the giving or service of documents.
84The plaintiff has not proven that the defendant specified the email address ###@gmail.com for the giving or service of documents for the purposes of s44(1)(a)(iv) of the Act.
Was the Defendant otherwise put on notice of the second concerns notice before 15 December 2021, and, if so, can that be treated as it being ‘given’ to the Defendant for the purpose of section 12B(1)(a) of the Act?
85I accept the defendant’s evidence that he received the second concerns notice on 12 December 2021 when he found it in the spam folder of the ###[email protected] email account. He notified the plaintiff that he had received the document on 13 December 2021.
86The methods of service or giving set out in s44(1)(a) of the Act are designed to ensure, so far as possible, that there can be confidence that the document or notice will come to the attention of the natural person to whom it is directed.
87Section 44(1)(a)(iv) of the Act specifies the means by which a notice or document may be served or given by email. Insofar as a person wishes to effect, for the purposes of the Act, the giving or service of a notice or document by email, it must be to an email address “specified by the person for the giving or service of documents”.
88The legislature has prescribed the means by which email service may be effected and the conditions and restrictions which must be observed when doing so in affirmative words. This excludes some other means of email service which might otherwise have been permitted in accordance with the operation of general expressions in the Act.[27]
[27]Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J)
89In the circumstances, I am not persuaded that the actual receipt of the second concerns notice by email on 12 December 2021 amounts to the second concerns notice being ‘given’ to the defendant on that date for the purpose of s12B(1) of the Act.
Does the Court have power to grant leave to the Plaintiff to commence this proceeding nunc pro tunc on 15 December 2021? If yes, ought leave be granted on the grounds it is just and reasonable to do so?
90If, contrary to my findings above:
(a) the second concerns notice is taken to have been received seven days after posting on 16 November 2021 and thus ‘given’ to the defendant; and/or
(b) the fact of actual receipt of the second concerns notice by the defendant on 12 December 2021 ought to be treated as the second concerns notice being ‘given’ to the defendant on that date;
this proceeding was commenced before the expiration of the 28-day offer to make amends period.
91If there was valid postal service, the second concerns notice would be presumed received on 26 November 2021 (the seventh working day after having been posted). This proceeding was therefore commenced approximately seven days before the expiry of the 28-day period for an offer to make amends.
92If there was valid service of the second concerns notice by email on 12 December 2021, this proceeding was commenced within three days of the start of the 28-day period for an offer to make amends.
93In each circumstance, the plaintiff would have complied with s12B(1)(a) and (b) of the Act, but not s12B(1)(c) of the Act.
94In that event, the plaintiff seeks leave nunc pro tunc to commence the proceeding on the ground that it is “just and reasonable” to do so.
95Section 12B(3) of the Act provides that the Court may grant leave for a proceeding to be commenced despite non-compliance with ss12B(1)(c) in two circumstances. The plaintiff submitted that the applicable circumstance here was that it was “just and reasonable” to grant leave nunc pro tunc.
96In the event that I am wrong regarding service of the second concerns notice, I am satisfied that there is power to grant leave pursuant to s12B(3)(b) of the Act.
97Section 12B(3) envisages an application by a “proposed plaintiff”. I must consider whether the plaintiff has satisfied the Court that it is “just and reasonable” to exercise the discretion to grant the plaintiff leave to commence this proceeding nunc pro tunc. In exercising such a discretion, I must be satisfied that I am doing now what would have been done if the application had been made by the plaintiff prior to the issue of the proceeding.
98Recently, in Roman Catholic Trusts Corporation for the Diocese of Sale v WCB,[28] the Court held that the phrase “just and reasonable” is of broad ambit, and should not be understood in isolation, divorced from the legal context in which it was enacted. It was necessary to understand and take into account the historical context in which the provision was enacted so as to properly understand its purpose and effect.
[28][2020] VSCA 328 at paragraph [104]
99Here, the context in which the additional concerns notice requirements and the limited leave provisions in s12B were enacted was to strengthen opportunities for informal resolution of disputes, to help and encourage parties to resolve disputes without resorting to litigation, to ease the burden on the courts, and reduce the costs and time taken for individuals to resolve defamation disputes.[29]
[29]See Parliamentary Hansard, Victorian Parliament, 14 October 2020 and Hansard, New South Wales Parliament, 29 July 2020
100The plaintiff must satisfy the Court that if he had applied to the Court for leave to commence this proceeding prior to the expiration of the applicable 28-day period, that application would likely have been granted.
101I note that the relevant post had been removed on 13 September 2021. Further, the plaintiff’s solicitor did not provide the further particulars sought in relation to the allegation of serious harm in the first concerns notice. Instead, the second concerns notice was issued a month or so after the request for particulars was made.
102I do not accept that the matters identified in the plaintiff’s submissions, individually or collectively, amount to circumstances which made it “just and reasonable” to issue proceedings without compliance with the offer to make amends procedure.
103If it were a sufficient circumstance for the Court to grant leave for proceedings to be commenced before the end of the applicable period that the proposed plaintiff was alleging serious harm by reason of a defamatory publication within a small community, then the statutory scheme to encourage non-litigious resolution of disputes could be circumvented in almost every case.
104Contrary to the plaintiff’s submissions, I am not persuaded that issuing this proceeding in January 2022 rather than December 2021 would have materially impacted the harm the plaintiff sustained.
105Significantly, the plaintiff’s then solicitor had received the defendant’s email of 13 December 2021. In it the defendant asserted that he had only just become aware of the second concerns notice and sought time to consult his lawyer and respond. The receipt of this email ought to have alerted the solicitor to the fact that there may have been an issue regarding service of the second concerns notice which required further enquiry. Contrary to the plaintiff’s submissions, the defendant indicated in the email that he intended to consult his solicitor and respond to the second concerns notice.
106In the circumstances, I am not persuaded that there was any particular reason that rendered it “just and reasonable” for this proceeding to be issued urgently and prior to the expiration of the applicable 28-day period.
107Even if it were found that the defendant was given the second concerns notice by post, or on 12 December 2021, the plaintiff has not satisfied the Court that it is just and reasonable to grant the plaintiff leave, nunc pro tunc, to bring this proceeding from 15 December 2021.
Conclusion
108The Court’s findings in relation to the preliminary issues are as follows:
(1) In relation to the Second Purported Concerns Notice dated 16 November 2021 (Concerns Notice), has the plaintiff proved that he has given the defendant the Concerns Notice for the purpose of s12B(1) of the Defamation Act 2005 (Vic) (the Act)?
No;
(2) To that end, has the plaintiff proven, for the purposes of sections 12B(1) and 44 of the Act:
(a) that the plaintiff sent the Second Purported Concerns Notice by post to the residential or business address of the defendant last known to the plaintiff for the purposes of section 44(1)(a)(ii) of the Act?
No
and/or
(b)did the defendant specify the email address ###@gmail.com for the giving or service of documents for the purposes of section 44(1)(a)(iv) of the Act, to which the plaintiff sent the Concerns Notice on 16 November 2021?
No
If the answer to both 2(a) and 2(b) is ‘No’, the plaintiff cannot commence proceedings;
(3) If the Court were to find as a matter of fact that the Applicant was otherwise put on notice of the concerns notice before 15 December 2021, could such a finding be treated as the Concerns notice being given to the defendant for the purpose of s12B(1)(a) of the Act?
No;
(4) If the answer to 2(a) and/or 2(b) or 3 is ‘Yes’, did the plaintiff wait for the applicable period of 28 days for an offer to make amends to elapse from the giving or service of the Concerns Notice before he issued proceedings on 15 December 2021 for the purposes of section 12B(1)(c) of the Act?
Does not arise;
(5) If the answer to 4 is ‘No’, then:
(a) does the Court have power to grant leave to the plaintiff as a proposed plaintiff to commence this proceeding nunc pro tunc from 15 December 2021 on the grounds that it is just and reasonable to grant leave for the purposes of section 12B(3)(b) of the Act?
(b) if ‘Yes’ to 4(a), is it just and reasonable to grant leave to the proposed plaintiff to commence proceeding nun pro tunc from 15 December 2021 for the purposes of section 12B(3)(b) of the Act?
Does not arise.
109I will hear the parties as to the appropriate orders, given the Court’s findings in relation to the preliminary issues.
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