Overview of what a 'concerns notice' is in defamation law in Western Australia

Uniform defamation legislation is in place across Australia to promote speedy and non-litigious methods of resolving defamation disputes (Defamation Act 2005 (WA) s 3(d)).

   The first step in a defamation proceeding is for the victim of defamation to issue what is known as a concerns notice.

   The issuing of a concerns notice provides an avenue for the parties to resolve the matter without resorting to formal legal proceedings.

   A concerns notice is the document which outlines exactly what defamatory statements are alleged to have been made, when the statements were made, who they were published to, what defamatory imputations can be drawn from the publication, and what amends are requested.

   The purpose of a concerns notice is to set in motion the offer to make amends set out in Part 3 of the Defamation Act 2005 (WA).

For a notice to be a concerns notice:

1. It must be in writing (Defamation Act s 14(2)(a)); and

2. It must inform 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 (Defamation Act s 14(2)(b)).

    When a person receives a concerns notice they may request particulars of the defamatory imputations if they either haven’t been provided or haven’t been provided adequately (Defamation Act s 14(4) & (5)).

    Alternatively, a statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2) (Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [92]).

   Once a person has been issued with a concerns notice then the publisher has 28 days to make an offer to make amends (Defamation Act s 14(1)(a)).

   It is implicit in the construction of s 14(1) of the Defamation Act that a person has a reasonable period of time to respond to the content of a concerns notice (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   In some cases, it may be that after the expiry of a reasonable period of time to respond, the person in receipt of the concerns notice can be taken to have been aware of the existence of the alleged publications, and the concerns notice could even function as evidence to that effect (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   If the person could put a stop to ongoing publication (by another person), then an inference may be drawn in certain circumstances that the person then either acquiesced or participated in the publication from that point on. 

Being self-aware when making decisions in a legal case

Decisions are hard to make. 

They are extra hard in the context of a legal dispute, because the decisions usually involve a lot of uncertainty and trying to predict the behaviour and the decision-making of other people (such as an opponent or a Judge/Magistrate).

I was impressed with the analysis about decision-making in an article I read on The West Australian online edition the other day.

It struck me how we can, and should, be more deliberate and self-aware with our decision-making.

This is the link to the article:

https://thewest.com.au/lifestyle/health-wellbeing/are-you-suffering-from-decision-fatigue-ng-b88331446z

I especially liked this quote:

“There are numerous psychological functions working together in making decisions: Will, mood, thought process, perception, orientation, concentration, memory, insight and judgment.”

Forecaster says iron ore could fall into $US20s in 2016 before rebound

Iron Ore in the $US20s will mean more bankruptcies and insolvencies in Western Australia.

Our boom-bust economy will be in serious trouble.

Any creditors or debtors in need of advice should email me: rgraham@vogtgraham.com.au

"I think we’re going through a massive structural change in Perth at the moment"

Structural change in the real estate market is a "breeding ground" for disputes.

These include:

• Buyers deciding not to follow through at settlement
• Misleading representations being made about rezoning proposals
• Issues about what should happen to a deposit if the buyer does not settle on the contract
• Off-the-plan disputes, where an apartment at settlement does not match what was described by the developer when the contract was originally signed

I have acted for clients in all of these scenarios, and more, when it comes to disputes about real estate.

Email me if you want to discuss how I can help with your real estate dispute: rgraham@vogtgraham.com.au

See me if you need a loan repaid

I read this news article today:  Perth leads nation for falling house prices in 2015.

In a downwards economy, formal avenues for credit tighten up.

People lose their jobs, but at the same time, see the price of their home and investment properties falling.

They often find it hard to make ends meet, but now cannot easily borrow against real estate to cover the shortfall.

Their next port of call becomes family and friends - and then what if you are that family or friend and you have loaned money (say, tens of thousands of dollars) and not been paid back?

Unfortunately, and sadly, you may need to take formal steps.  This at least might put you ahead of other creditors.

I am very experienced in disputes of this kind.  You should email me so we discuss your options.

"Figures compiled by CoreLogic-RP Data show that the proportion of WA properties selling at a loss has doubled over the past year"

Changes in the real estate market always lead to more law suits between buyers and sellers.

Falling and rising markets (we seem to be falling now) create: (a) incentives; (b) changes in circumstances, which mean contracts can often get terminated before settlement.

This leaves questions about:

• who gets the deposit, and

• whether to sue for the difference in price under the old contract and what the house will now get sold for under a new contract, with a new buyer. 

Vogt Graham Lawyers has acted in many real estate disputes in the past.  

Contact us if you would like to speak about how we can help.

New District Court decision about Inactive Cases List in the Magistrates Court

In my opinion her Honour misdirected herself by focusing exclusively on how she anticipated the appellant was likely to conduct the case in the future, rather than how the case could be conducted under the court's auspices.

Judge McCann at [78] in THORPE -v- SCHULZ [2015] WADC 149.

State faces $39 billion in debt

• "The biggest revenue shock a government, State or Federal, has experienced in Australia since the Great Depression in the 1930s": Mike Nahan, WA Treasurer.
• The changes this economy is experiencing will lead to more debtors to manage, insolvencies, bankruptcies and lawsuits.
• Contact me if you need representation or advice:  rgraham@vogtgraham.com.au