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James is the best he has helped me beyond belief. Thankyou I give 5 stars ⭐️⭐️⭐️⭐️⭐️!
Upon reviewing the Defamation Lawsuit Wizard, I must say that the automation at Blue Ocean is both legally insightful and technically smooth... I particularly like the detailed legal aspects (e.g., claim elements and limitation period logic, etc.) you have incorporated 👍🏽
An up-and-coming, innovative firm that does things differently. Blue Ocean takes an interdisciplinary approach to its personal + commercial law practice to ensure you’re getting what you + your company needs. It has a growing list of [200+] automated 24/7 personal + business legal documents with Embedded Lawyer-Logic™ …
We needed a really good lawyer and after doing our research we decided to contact Blue Ocean Law Group. James runs a very efficient service and has extensive knowledge of Defamation Law. Nothing was a problem. James would follow up with me regarding issues that had arisen. He dealt with each issue in a professional and ethical manner. James would explain every detail on the phone and the process could not have been easier!
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Mar 2023
Blue Ocean Law Group's website has plenty of information in easy, layman's language that explains how Defamation Law works in Australia and from there, it was really easy to book an appointment online. James is a thoroughly professional Lawyer and it was a pleasure dealing with him. Keep up the good work, James! Cheers! ⭐️⭐️⭐️⭐️⭐️
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Mar 2023
James has been great to work with. I called him on a Monday and by Tuesday he had a formal [19-Page] Concerns Notice sent to a person defaming me and my business. He stayed in touch throughout the day, kept me updated regularly and was diligent to ensure we were exercising all of my rights under the law. Thanks, James!
Uniform Defamation Laws were introduced across all Australian States and Territories in 2005 (commencing operation during 2006).
Uniform Defamation Laws provide for a streamlined approach aimed towards resolving disputes without the need to commence litigation by encouraging speedy settlements.
Under MDAP, if you have been defamed you MUST give the publisher of the Defamatory Statement/s a "Concerns Notice" before* commencing court action.
IMPORTANT NOTE:
This Defamation Lawsuit Wizard is designed to fully comply with both:
⚖️ The original non-amended WA and NT Uniform Defamation Laws; as well as
⚖️ The Model Defamation Amendment Provisions (MDAP) effective from 1 July 2021 adopted by Victoria, New South Wales, South Australia, Queensland, Tasmania and the ACT.
We recommend you contact our legal team if you are still unsure after using the Defamation Lawsuit Wizard to determine which Defamation Laws apply to your matter.
According to the Uniform Defamation Laws in Australia, a notice is a Concerns Notice if it is:
✅ In writing, and
✅ Specifies the location where the matter in question can be accessed (for example, a webpage address); and
✅ 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
✅ 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
✅ For an aggrieved person that is an Excluded Corporation--also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question, and
✅ A copy of the matter in question is, if practicable, provided to the publisher together with the notice.
If this is not practicable the following particulars should be included within the Concerns Notice:
1️⃣ The defamatory statements;
2️⃣ The date they were made; and
3️⃣ The party/parties/public they were published to.
⚖️ An Individual; or
⚖️ An "Excluded Corporation".
Individual plaintiffs must now establish that a publication has caused, or is likely to cause, ‘serious harm’ to their reputation.
For corporations entitled to sue in defamation, they must demonstrate ‘serious financial loss’.
The threshold in some respects replaces the now abolished ‘triviality’ defence and is intended to prevent the litigation of trivial or frivolous defamation claims, but arguably is more onerous a test.
Key considerations in determining whether the applicable threshold is met will include:
⚖️ The scale and extent of the publication(s) in issue; and
⚖️ The gravity of the statements made.
The threshold can be considered as a preliminary hearing on the application of the defendant.
Therefore, close consideration needs to be given to the threshold when considering the merits of the claim at the outset of any defamation matter.
If you have any queries please contact our legal team to seek more information and additional assistance.
❌ An injunction will not normally be available in cases of Defamation Claim (made on its own) due to the overriding public policy interest in freedom of speech.
The general rule under s. 9 of the Uniform Defamation Laws in Australia is that a corporation, whether local or foreign (other than an "Excluded Corporation") has no cause of action in relation to the publication of defamatory material about the corporation.
The corporation may still have a claim for Injurious Falsehood (refer below).
Individuals associated with a corporation* may still be able to sue for Defamation, even if the corporation is defamed by the same publication as the Individual.
An "Excluded Corporation" is defined as a corporation where:
⚖️ The objects for which it is formed do not include obtaining financial gain for its members or corporators (that is a Charity); or
⚖️ A "for-profit" corporation that is:
✅ Not an associated entity of another corporation;
✅ Has fewer than 10 full-time employees^; and is
✅ Not a Public Body (that is a local government body or other governmental or public authority constituted under the law of any country).
Notes:
* An Individual may include any individuals associated with a corporation (typically directors, officers or managers of the corporation, but it could be anyone associated with the corporation) even if the Defamatory Statements are made in the same publication against both the corporation as well as the Individual.
^ For the purposes of calculating the number of full-time employees:
1️⃣ The employee count is performed as at the date the Defamatory Statement is published;
2️⃣ Any part-time employees are counted as the appropriate fraction of a full-time equivalent employee;
3️⃣ "Employee" in relation to a corporation includes any Individual (Under MDAP, whether or not an independent contractor) who is--
✅ Engaged in the day to day operations of the corporation other than as a volunteer, and
✅ Subject to the control and direction of the corporation.
⚖️ An Individual;
⚖️ A Charity; or
⚖️ A Corporation.
This means that Injurious Falsehood may be claimed in addition to, or in lieu of a Defamation Claim.
It is especially important to consider when a business cannot sue for Defamation under the Uniform Defamation Laws in Australia because it not an Excluded Corporation, it may alternatively sue for Injurious Falsehood, which is also called Malicious Falsehood or Trade Libel.
This Defamation Lawsuit Wizard 🔥 includes Embedded Lawyer-Logic that will assist you to determine which related legal claims you may potentially have.
If the relevant Limitation Periods have not yet expired this process will proceed to create a DRAFT of one or more of the following legal documents to suit your situation:
➲ Concerns Notice* regarding Defamatory Statements 🔥;
➲ Cease and Desist Letter for Injurious Falsehood 🔥 [Step 1 ➲ Warning to Stop!];
➲ Demand Letter for Injurious Falsehood 🔥 [Step 2 ➲ Recover Actual Damages]; and
If applicable you will be directed to contact our legal team to assist you with the preparation, filing and service of an urgent:
➲ Summons for an Injunction 🌊 Restraining Further Publication.
The tort of Injurious Falsehood requires all of the following four elements to be established:
1️⃣ A false statement about the plaintiff's goods or business;
2️⃣ Publication of that statement by the defendant to a third person;
3️⃣ Malice on the part of the defendant; and
4️⃣ Proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
✅ If the above elements can be established, the plaintiff may also consider whether it is prudent to urgently file and serve a summons seeking urgent interlocutory relief, that is an injunction restraining the defendant from continuing to publish the injurious falsehoods.
❌ An injunction will not normally be available in cases of Defamation Claim (made on its own) due to the overriding public policy interest in freedom of speech.
If the Defendant has no address for Service within Australia registered or otherwise, you can still proceed to send a Concerns Notice internationally.
In the event the Defendant does not respond, or disputes the Defamation Claim:
➲ Due to the complexity of international litigation, we strongly recommend you contact our legal team before taking any further steps.
After being given a Concerns Notice, the party who published the Defamatory Statement/s then has the opportunity to avoid a Defamation Claim being pursued further by making an Offer to Make Amends within 28 days.
Please be aware of the following limitation periods by which your Claim must be filed with the Court:
⌛️ 1 year from the date of the most recent publication for a Defamation Claim (non-amended law currently applicable in WA and the NT); or
⌛️ Under MDAP, 1 year from the date of the first publication for a Defamation Claim (However, if the court is satisfied that it is "just and reasonable" to do so, the limitation period may be extended to a period of up to 3 years); and
⌛️ 6 years from the date of publication for an Injurious Falsehood Claim.
💡 Make sure you send the letter by express post and note the tracking number;
💡 Take photos of the front and back of the addressed envelope before it is posted;
💡 Log the post office tracking number number in your records, and take a screen capture or photo of the delivery confirmation, or otherwise save a copy;
💡 Keep these records in case you need these as evidence of proof of delivery in a Court or Tribunal later.
If the Defendant responds to your reminders, polite calls or Concerns Notice claiming a defence or dispute regarding your Defamation Claim / Injurious Falsehood Claim, then your next step is to consider whether the Defendant's defence or dispute has any merit and if so whether to attempt to commence Settlement Negotiation.
Please refer to our article: How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations.
For further reading + to access our curated links + resources on Australian Media + Defamation Law click this link to our free ➲ Media + Defamation Law -> Smart List
Footnotes:
* Under MDAP, Defamation Proceedings cannot be commenced without first providing the proposed defendant with a Concerns Notice in respect of the matter concerned. See s.12B Defamation Act 2005 (NSW).
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The identity of the Debtor and their address for service (incl. email +/or fax) should already be clearly specified in the agreement, or provided by the Debtor as part of your standard business processes.
We also assume that the terms of your agreement will provide permission to serve notices via email or fax (if required).
You will need to consider whether you already know the actual identity of the Debtor/Defendant and their address for notices/Service.
The Debtor/Defendant may not be the person with whom you made the original agreement, or the person who actually published the defamatory statement.
The person you might consider is the Debtor/Defendant may have been acting/dealing as an agent or employee of another person, the actual owner/s of the business, a sole trader, partnership, unincorporated association, company, etc.
If you only have the name of the business, you can start by conducting a free ASIC business names index + business names holder organisation/person searches to determine the owner of the business name, followed by a paid ASIC search to determine a valid + current address for Service.
Before sending a Letter of Demand/Statutory Demand/Concerns Notice to a Debtor company, we strongly recommend you conduct a paid current ASIC Company Search (min. cost $9) to confirm that:
✅ The Debtor/Defendant company is not currently under administration/in liquidation; and to
✅ Ascertain the companies current registered office address for service.
If you have any questions regarding the above please contact our legal team to discuss.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
By the time you approach a lawyer to assist with your civil legal dispute you may have already discussed the matter in detail or sent text messages/emails to the other party, their agent, insurance company or lawyers.
Whilst you might think you are progressing the matter:
➲ This is generally a mistake!
Most people [unless they are experienced in litigation or legal dispute resolution] will unknowingly proceed to make these communications with the other side on an "open” basis.
This means that everything that is said or written might be capable of being used by the other parties in any subsequent legal proceedings.
It is generally known that in any criminal matter, you have the “right to remain silent …” as this is well-covered territory on TV/Movie Legal Dramas and in the media.
When it comes to civil disputes we recommend you adopt the same position.
Our advice may be spot on when it comes to large $$ civil disputes.
When the matter is only a minor one, you may not want to go to the time and/or expense of engaging legal advice specific to your situation.
Q: How then can you proceed?
A: Very carefully, and with the assistance of some very specific legal phraseology which you may or may not have seen before.
Please refer to our blog article “How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations." for more information.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Please read our FAQ: What are the downsides to delaying 1️⃣ Informing the other side of my claim against them; or 2️⃣ Filing my claim with the Court?
We strongly recommend you obtain legal advice + assistance regarding:
✅ Determining whether the Debtor has the potential financial means to ultimately pay the debt + interest + legal costs should you be successful in your claim;
✅ If the Debtor is an individual, conducting a Bankruptcy Search;
✅ If the Debtor is a company, conducting a Bankruptcy Search;
✅ Determining whether the Debtor has been or is currently involved in other legal proceedings;
✅ The legal merits of your claim; and
✅ Ensuring you understand that it is extremely rare to recover your legal costs in litigation; and
✅ The inherent Litigation Risk of potential liability for the Debtor's legal costs in commencing legal proceedings in a Court, as opposed to a Tribunal;
✅ The cost + availability of litigation funding, +/or litigation insurance.
The requirements for valid + effective Service of a Filed Application or Statement of Claim vary depending on the relevant Court or Tribunal.
We strongly recommend you obtain legal advice + assistance regarding:
✅ The selection of the appropriate Court or Tribunal to bring suit; as well as
✅ The drafting of the required Application/Statement of Claim; and
✅ The compliant Service of same on the Debtor once legal proceedings have been filed.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
In late 2016, Aon announced the first Australian “After the Event” (ATE) policy for claimants looking to protect themselves against a loss at trial through underwriter Ironshore Australia Pty Ltd.
ATE insurance protects claimants, whether a client or a law firm, by partially deferring payment of the premium, and payment is contingent on the success of the claim.
Eden Fletcher, National Financial Lines Placement Manager, Aon Risk Solutions Australia said this was a significant step for the Australian legal system.
“ATE insurance has been established in the UK for some time and Australian clients have been able to access the cover by going abroad. However, the overseas policies are not made with the Australian market and legislative system in mind. By being able to now access the product here, it will give clients comfort the product is fit for purpose, and is commissioned by local lawyers,” he said.
“Australia has become the most likely jurisdiction outside of the USA in which a corporation will face significant class action litigation. The risks and costs of fighting these cases are high, most are settled before they reach the courts. With a local solution now available, this provides solicitors with an opportunity to take on more cases as their client’s representative, given the client will have the protection of this insurance,” Mr Fletcher said.
The intention of this policy is not to encourage litigation, since premiums provide an incentive to settle early rather than progress deeper into trial, with the rate varying according to the stage at which the litigation is settled.
“We believe ATE insurance will be eagerly explored by law firms acting for the claimant, as it will make a higher percentage of potential class actions even more viable than present, subject to the merits of the case. When there is ATE insurance behind the case, it validates the case has a reasonable chance of success given Ironshore’s due diligence and underwriting methodology,” Mr Fletcher said.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Generally speaking, to help ensure you obtain the best possible outcome, it is recommended that as soon as practical you:
1️⃣ Proceed to obtain legal advice;
2️⃣ Instruct your lawyer to inform the other side that you have a claim against them, and attempt to settle the matter; and if this is not successful
3️⃣ Proceed to take steps to enforce your legal rights without any further delay.
Apart from the risk of the lapse of any Statute of Limitations Period, if your claim seeks equitable relief, failure to provide notice to the defendant that you have a claim and intend to enforce it, may open the door to allow the defendant to seek reliance on the equitable defence of laches, or more generally estoppel with the circumstances of the case unfolding in support of these defences the longer the defendant is able to show inaction on your part.
Laches is a defence only available to a defendant in equity, where a plaintiff's lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, is viewed as conduct which allows the defendant to develop a belief that the plaintiff will not be seeking to make any claim and to continue about their life dealing with their affairs in reliance on this belief. Wikipedia
In Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291 at para. [635] per McLure P considered:
"Whether the conduct of the plaintiff amounted to an acquiescence or caused the defendant to alter their position in reliance on the plaintiff’s acceptance of their actions”.
Consequently, a defendant may be able to argue the equitable defence of laches on a much shorter time frame than the relevant statutory limitation period.
In Hourigan v Trustees Executors and Agency Co Ltd (1934) 51 CLR 619 per Rich J:
The Court will not “disregard the election of the party not to institute his claim and treat as unimportant the length of time during which he has slept upon his rights and induced the common assumption that he does not possess any”.
In Gillespie & Ors v Gillespie [2013] QCA 99 MARGARET WILSON J (with whom MARGARET McMURDO P & WHITE JA agreed) at para. [79] of her judgment provided a summary of the applicable law regarding the equitable defence of Laches:
"Laches is an equitable doctrine, under which delay can bar a claim to equitable relief."
Deane J (with whom Mason CJ agreed) observed in Orr v Ford that the ultimate test is that enunciated by the Privy Council in Lindsay Petroleum Co v Hurd –
“… whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable ‘to place him if the remedy were afterwards to be asserted’: see Erlanger v New Sombrero Phosphate Co, and also, per Rich J, Hourigan.”
The learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies posit that there are two types of laches –
(i) delay with acquiescence, where prejudice to others need not be shown; and
(ii) more commonly, delay with prejudice to others.
However, in Fisher v Brooker Lord Neuberger said –
“Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239-240, Lord Selborne LC, giving the opinion of the Board, said that laches applied where ‘it would be practically unjust to give a remedy’, and that, in every case where a defence ‘is founded upon mere delay… the validity of that defence must be tried upon principles substantially equitable’.
He went on to state that what had to be considered were ‘the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy’.”
Trying the validity of the defence on equitable principles involves the balancing of equities.
In Erlanger v New Sombrero Phosphate Co Lord Blackburn said –
“…it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.
The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”
And in Fysh v Page Dixon CJ, Webb and Kitto JJ said –
“If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed.
If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief.”
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
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