A concerns notice is a formal, written document which is prepared and issued under s. 14 of the Defamation Act 2005 (WA), the purpose of which, is to put a publisher of defamatory material on notice of:

• A defamatory statement that they may have made, including the content of the statement, when it was made and how it was made;
• The meanings (referred to as ‘imputations’) that the defamatory statement is said to convey; and,
• What the publisher is demanded to do to remedy the situation, which may include, the retraction of the material, a formal apology and payment of monetary compensation in terms of both loss to reputation and legal costs of preparing the concerns notice). 

If a ‘concerns notice’ has been issued, the recipient of the concerns notice may respond with an ‘offer to make amends’.

A defamation lawyer can assist you to prepare a concerns notice which adequately sets out the defamatory content in a way that is both clear and compliant with the provisions of the Defamation Act 2005 (WA). 

At Vogt Legal, we offer a discounted concerns notice preparation service in the sum of $880.00 (inclusive of GST).

For further information, read some of our articles.

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The contents of a valid offer to make amends are set out in s. 15 of the Defamation Act 2005 (WA), which requires the offer:

• To be in writing: s. 15(1)(a).
• To confirm that the document is an offer to make amends for the purposes of the Defamation Act 2005 (WA): s. 15(1)(b).
• To confirm that if the offer to make amends does not relate to all imputations of concern, state which imputations it relates to: s. 15(1)(c).
• To include an offer to make a reasonable correction of the material which was defamatory: s. 15(1)(d).
• To offer to take reasonable steps to tell persons who may have received the defamatory material that it was defamatory of the aggrieved person: s. 15(1)(e).
• To offer to pay the aggrieved persons reasonable expenses before the issue of the offer, including, costs of considering the offer: s. 15(1)(f).

In addition to the above requirements, the offer to make amends can also include terms of action which the publisher is prepared to take to redress the harm caused by the publication of the defamatory material. Such action may include:

• The publication of an apology to the aggrieved person: s. 15(1)(g)(i).
• An offer to pay compensation in respect of damage sustained (both economic or non-economic): s. 15(g)(ii).
• The inclusion of particulars of the proposed correction or apology or any other action taken before the offer was made: s. 15(g)(iii).

An offer to make amends must be made within 28-days of the date of the receipt of a concerns notice: s. 14(1).

When should I consider making an ‘offer to make amends’?

The ‘offer to make amends’ regime exists as a means to help parties to resolve defamation disputes before they commence. Defamation disputes are costly forms of litigation, irrespective of whether you are a defendant or a plaintiff.

If you do not have the means or the appetite to engage in defamation proceedings, it may be prudent to consider making an offer to make amends as an alternative to such disputation.

Alternatively, it may become apparent after consultation with a defamation lawyer that there are no defences available to you, or, that there are substantive issues in respect of potential defences. If this is the case, you should give strong consideration toward the making of an offer to make amends to avoid or at least mitigate your liability in respect of any claim that may be made against you.   

What are the benefits to me to make an offer to make amends?

Aside from the potential benefit of avoiding costly litigation, there are numerous benefits to making an offer to make amends:

• If the offer is made, accepted and carried out, it is a defence to any prospective proceeding that may be commenced in respect of the relevant material: s. 17.
• If an offer is made, not accepted and proceedings commenced, you may rely on the offer to make amends as a defence to the proceedings if:
• The offer was made as soon as practicable after becoming aware that the material was defamatory;
• The offeror was ready, willing and able to carry out the terms of the offer; and,
• The offer was reasonable.

(s. 18(1) of the Defamation Act 2005 (WA))

For further information, read some of our articles.

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In defamation cases, once the plaintiff establishes:

• That a publication has occurred;
• That the publication identifies the plaintiff; and,
• The publication is defamatory;

the law will presume both falsity and damage to reputation. If no defences are deployed or if the defences fail, the defendant will be found liable in defamation, subject to an assessment of the damages by the Court.

Common defences

There are numerous defences available to a defendant under both the Defamation Act 2005 (WA) and those which have been recognised by the Court.

Common defences include:

• Truth or justification – where a defendant is able to prove that the imputations are either true or substantially true;
• Honest opinion or fair comment – where a defendant is able to prove:
• that the imputation was a statement of the publishers opinion or a comment;
• the matter related to a matter of public interest;
• the imputation was based on proper material which is true or published under circumstances of qualified privilege (explained below); and,
• the objectively fair or proper material is stated or indicated in the publication or sufficiently notorious.
• Qualified privilege – this defence serves to protect communication where there is a reciprocal duty on the person publishing the matter and on the recipient to receive the material. This defence tends to fail where there are potentially large audiences where the requisite relationship becomes more tenuous, or, if the publisher was actuated by malice. 

There are other defences available. A defamation lawyer should be engaged for the purposes of identifying all applicable defences and providing you with advice as to their merits.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone conversation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Our team has over 25 years of experience providing legal advice in commercial disputes arising from building and construction matters.

Throughout this time many decisions Will and the team have been involved in have been reported in the decisions databases of the Building Disputes Tribunal (now Building Commission), Magistrates Court, District Court and Supreme Court.

These disputes generally involve construction delays, price increases, workmanship issues and other major contractual disputes.

Our team appears frequently in the State Administrative Tribunal. We have also acted for clients in the Supreme Court, District Court and Magistrates Court in relation to these kinds of disputes.

From our many years of experience we resolve construction disputes including:

• delay damages including liquidated damages claims
• claims for extension of time
• payment disputes, including in respect of retention monies
• practical completion and defective workmanship issues
• disputes concerning the scope of works or standard of works
• rectification Works Claims
• advising on Latent Defects
• variations to a building or construction contract
• Building Commission complaints
• corresponding with a builder/customer in respect to matters arising during the course of the contract
• reviewing, negotiation and amendment of a building or construction contact.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone conversation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

In constructions projects, it is common for certain elements of the work to require rectification, whether before or after practical completion. While some rectification work may be relatively minor, in other cases, the required rectification work can be far more costly. Regardless of the scale of the issue, we are equipped to assist.

Typically, most residential construction contracts include a provision for a defects liability period. This is a useful mechanism to be incorporated into a building contract, however, the defects liability period usually only lasts 6-12 months. This might be a cause for concern when defects begin to manifest after the defects liability period has expired.

Fortunately, homeowners can also rely on their statutory rights, in addition to their contractual entitlements.

At Vogt Legal, our experienced litigation team can assist you in:

• Evaluating the merits of your claim and providing strategic advice in relation to the most appropriate forum for pursuing it.

• Engaging high-quality and trustworthy experts to provide reliable evidence in support of your claim.

• Representing you in a range of jurisdictions, including Commercial Arbitrations, the Building Commission or the State Administrative Tribunal, based on your needs.

• Negotiating with the opposing party to resolve your matter quickly, with the aim of reaching a settlement before initiating any formal legal proceedings.

If you require guidance in relation to defective workmanship or rectification works, please contact us for a free initial phone consultation.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), individuals who are affected by building services have the right to lodge a complaint with the Building Commissioner.

At Vogt Legal, we offer expert legal services in the preparation and management of Building Commission claims, including those that are escalated to the State Administrative Tribunal (SAT) for further resolution.

Our services cover:

• Advising on any entitlement to lodge a complaint with the Building Commission.

• Handling all aspects of preparing a claim to be lodged with the Building Commissioner, including ensuring that all necessary documentation is correctly submitted, and all legal requirements are met.

• If a matter is referred from the Building Commission to the SAT, we provide guidance and representation throughout the entire process, advocating for your best interests and ensuring a thorough presentation of your case.

• In addition to assisting homeowners, we also represent builders and construction companies in defending claims brought against them, both at the Building Commission and before the SAT. We work to protect your business and minimise any potential legal or financial exposure.

If you need assistance with a Building Commission claim or representation in the SAT, contact us to discuss how we can help you navigate these processes effectively.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

We provide expert advice on all home building disputes under the Home Building Contracts Act 1991 (WA) and offer representation before the Building Commission, as well as the State Administrative Tribunal.

If you are involved in a home building dispute, please contact us for a free initial telephone consultation.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Commercial arbitration is a dispute resolution process whereby parties to a contract have agreed that an independent individual, acting as a private judge, finally determines the parties’ dispute and that determination is to be binding upon and enforceable by the parties.

For over 25 years we have protected the reputational and financial interests of our clients, mainly construction companies by ensuring their legal disputes are decided by private arbitrators. We have conducted hundreds of successful arbitrations in that time.

Our clients’ commercial disputes must be resolved quickly and confidentially. We achieve these goals by using, sometimes insisting on, the arbitration process instead of the courts and tribunals procedures.

Previous successful published cases in which Will Vogt’s clients have forced the parties to their dispute into the confidential environment of the arbitration process are found here:

• Shakur v Aintree Holdings Pty Ltd T/A Beaumonde Homes [2015] WASAT '12;
• Henderson v Aintree Holdings Pty Ltd [2021] WASAT 113.

Some of the benefits of the arbitration process that are not afforded by the courts and tribunal procedures are:

1. The entire arbitration process is conducted in private and the decision or ‘award’ is confidential;
   The arbitrator’s decision or ‘award' is enforceable in the same way that a decision of a court or tribunal is enforceable;
2. The arbitration process is less formal than the court and tribunal procedures resulting in a faster and cost-effective outcome;
3. The arbitrator is a specialist in the area of law or field of industry (such as building and construction);
4. The parties may agree on who the arbitrator will be;
5. There are usually no limits as to the nature and extent of the claims a party may make, whereas, typically, tribunals have limitations on the nature and extent of the claims brought to the tribunal;
6. The parties may agree on the procedural steps to be followed in preparation for the final hearing of the dispute;
7. The arbitration decision or ‘award’ is final and there is a very limited appeal avenue;
8. The successful party in the arbitration is usually entitled to recover legal costs from the unsuccessful party.

Whether a matter is capable of referral to an arbitrator is determined by the scope of the arbitration agreement in the relevant contract.

The process of arbitration is generally governed by relevant legislation in each state, including:

• Commercial Arbitration Act 2012 (WA);
• Commercial Arbitration Act 2013 (QLD);
• Commercial Arbitration Act 2010 (NSW);
• Commercial Arbitration (National Uniform Legislation) Act 2011 (NT).

Most of the standard residential building contracts in Western Australia have the effect that:

1. the Parties are at liberty to commence proceedings in a Court or Tribunal in relation to the facts which give rise to their dispute; however,
2. in the event that one party commences proceedings against another party in relation to an agreement which contains an arbitration agreement, the other party is at liberty to apply to the Court or Tribunal to refer the matter to an arbitrator up until the other party files its first case statement in those proceedings.

Vogt Legal has vast experience providing legal advice and services in relation to commercial arbitrations, including:

• Advising about the terms of arbitration clauses in contracts;
  Advising in the nomination of an appropriate arbitrator under the terms of the relevant arbitration clause;
• Advising about the necessary expert witnesses (e.g building inspector, engineer, quantity surveyor, architect) to quickly secure to provide expert evidence at the arbitration hearing;
• Representing clients in the arbitration process and final hearing;
• Enforcing a decision or award made by an arbitrator;
• Advising on any appeal of an award made by an arbitrator.

Contact Vogt Legal when you think arbitration may be the dispute resolution process that you require to protect your financial and reputational interests.

The above information is general in nature and should not be relied upon as legal advice. You must obtain legal advice specific to your circumstances.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Do you have any policies for your employees? Or do you have old policies ‘collecting dust’? Vogt Legal can assist.

Proactive employers should maintain up to date workplace policies including as to:

• work health and safety;
• overtime;
• motor vehicle use;
• equal employment opportunity;
• grievance procedure; and,
• sexual harassment.

At Vogt Legal, our experienced employment law team can review, advise, and amend workplace policies to ensure that they comply with current legal requirements.  Workplace policies which are comprehensive, proficient, and maintained up to date:

• reduce the scope for disputes at work;
• ensure that an employer is not held vicarious liable for the unlawful actions of an employee; and,
• protect an employer from investigations and prosecutions commenced by regulators such as the Fair Work Ombudsman.

Employment law

Contact Matthew Humphry today for a free initial telephone consultation.

For further information, read some of our articles.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Are you a Contractor? Do you pay flat ‘above Award’ rates to your employees? Vogt Legal can assist.

If you’re unsure which Modern Award applies to your employees, and unsure of the applicable Award entitlements payable to your employees, you’ll need legal advice.

At Vogt Legal, our experienced employment law team can advise you on Award coverage and compliance.

In our experience, many Contractor employers both pay ‘above Award’ rates and overlook their Award obligations, which exposes them to costly underpayment claims and fines.

Before and after a dispute arises, we can assist employers and particularly Contractor employers to:

• identify the source of their Award obligations;
• assess whether they comply with their Award obligations;
• advise on the purpose and utility of an Individual Flexibility Agreement (IFA);
• draft IFA’s tailored to the particular circumstances; and,
• recommend proportionate and practical measures to remediate Award breaches.

Employment law

Contact Matthew Humphry today for a free initial telephone consultation.

For further information, read some of our articles.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.