Background
Dailymail.com Australia Pty Ltd published an online article about Simon Charles Dorante-Day, who alleged that the article and associated reader comments defamed him. On the day of publication, Dorante-Day sent the publisher a document describing the article as defamatory and demanding its removal and an apology. He later responded to a request for particulars, but neither communication identified the defamatory imputations he said the article conveyed.
Dorante-Day commenced Supreme Court proceedings six days after publication, alleging defamation, criminal defamation and breach of copyright concerning photographs used in the article. The primary judge struck out portions of his pleading, entered judgment for the respondents on specified parts of the claim, dismissed his interlocutory application and ordered him to pay costs. On appeal, Dorante-Day alleged errors concerning the Defamation Act 2005 (Qld), bias, procedural unfairness and the treatment of his McKenzie friend.
The Court’s Holding
The Court of Appeal held that Dorante-Day had not given a valid concerns notice under s 12A of the Defamation Act because his communications did not identify any defamatory imputations. The statutory precondition to commencing defamation proceedings was therefore unsatisfied, and the defamation claims were properly summarily dismissed. The Court did not need to decide whether the proceedings were also liable to dismissal because they had been commenced before the statutory offer-to-make-amends period expired.
The Court rejected the allegations of actual bias, apprehended bias and denial of procedural fairness. Although it was irregular in a civil proceeding to require Dorante-Day to obtain leave before his wife could assist him privately as a McKenzie friend, leave was granted, she remained and assisted him, and the irregularity did not deprive him of a reasonable opportunity to present his case. The primary judge was also entitled to continue after Dorante-Day failed to return following the lunch adjournment.
The appeal was dismissed with costs, but the primary orders were varied. The Court substituted strike-out orders for the judgment entered on parts of the claim and granted Dorante-Day leave to amend paragraph 5 so he could seek damages or other relief arising from the alleged copyright breach pleaded in paragraph 3.
Key Takeaways
- A purported concerns notice that entirely fails to identify the alleged defamatory imputations does not satisfy s 12A of the Defamation Act 2005 (Qld).
- Defamation proceedings commenced without a compliant concerns notice are liable to summary dismissal.
- In civil proceedings, a self-represented litigant may receive quiet assistance from a McKenzie friend, although the friend has no general right to address the court or act as an advocate.
- Strike-out orders aimed at defective defamation claims should not inadvertently extinguish a separately pleaded copyright claim or related relief.
Why It Matters
The decision underscores that Queensland’s pre-litigation concerns-notice regime is a substantive gateway to a defamation action. Merely identifying an article and asserting that it is defamatory is insufficient; the claimant must identify the imputations said to arise from the publication.
It also illustrates the distinction between procedural irregularity and appealable unfairness. An error concerning a McKenzie friend will not justify appellate relief where the litigant ultimately received the assistance and retained a reasonable opportunity to present the case.