Part 3 Resolution of civil disputes without litigation
Division 1 Offers to make amends
(1) This Division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person).(2) The provisions of this Division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise.(3) Nothing in this Division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division.
13 Publisher may make offer to make amends
(1) The publisher may make an offer to make amends to the aggrieved person.(2) The offer may be:(a) in relation to the matter in question generally, or(b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries.(3) If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others.(4) An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.
14 When offer to make amends may be made
(1) An offer to make amends cannot be made if:(a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person, or(b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.(2) A notice is a concerns notice for the purposes of this section if the notice:(a) is in writing, and(b) 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).(3) If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.(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 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.
15 Content of offer to make amends
(1) An offer to make amends:(a) must be in writing, and(b) must be readily identifiable as an offer to make amends under this Division, and(c) if the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited, and(d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and(e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and(g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to):(i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or(ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or(iii) the particulars of any correction or apology made, or action taken, before the date of the offer.(2) Without limiting subsection (1) (g) (ii), an offer to pay compensation may comprise or include any one or more of the following:(a) an offer to pay a stated amount,(b) an offer to pay an amount to be agreed between the publisher and the aggrieved person,(c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person,(d) an offer to pay an amount determined by a court.(3) If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine:(a) if the offer provides for a court to determine the amount of compensation payable under the offer—the amount of compensation to be paid under the offer, and(b) any other question that arises about what must be done to carry out the terms of the offer.(4) The powers conferred on a court by subsection (3) are exercisable:(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings, and(b) except as provided in paragraph (a), by the Supreme Court.
16 Withdrawal of offer to make amends
(1) An offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person.(2) A publisher who has withdrawn an offer to make amends may make a renewed offer.(3) A renewed offer may (but need not) be in the same terms as the withdrawn offer.(4) A renewed offer is to be treated as a new offer (including for the purposes of section 14).(5) However, the time limit specified in section 14 for the making of offers to make amends does not prevent the making of a renewed offer that is not in the same terms as the withdrawn offer if:(a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer, and(b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the publisher and the aggrieved person.
17 Effect of acceptance of offer to make amends
(1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.(2) A court may (but need not):(a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer, and(b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis.(3) The powers conferred on a court by subsection (2) are exercisable:(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings, and(b) except as provided in paragraph (a), by the Supreme Court.
18 Effect of failure to accept reasonable offer to make amends
(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if:(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and(c) in all the circumstances the offer was reasonable.(2) In determining whether an offer to make amends is reasonable, a court:(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account:(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and(ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and(b) may have regard to:(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and(ii) any other matter that the court considers relevant.
19 Inadmissibility of evidence of certain statements and admissions
(1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil).(2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine:(a) any issue arising under, or relating to the application of, a provision of this Division, or(b) costs in defamation proceedings.
20 Effect of apology on liability for defamation
(1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person:(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and(b) is not relevant to the determination of fault or liability in connection with that matter.(2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.(3) Nothing in this section limits the operation of section 38.