Defamation Concerns Notice is a substantive requirement – WA case dismissed

The Supreme Court of Western Australia recently dismissed a defamation claim brought by a plaintiff who had not given a concerns notice before commencing the relevant proceedings. In dismissing the proceedings, the Court held that the concerns notice requirement under s 12B of the applicable statute, the Defamation Act 2005 (NSW), was a substantive requirement and not a procedural requirement concerning the conduct of the proceedings. A procedural failure can often be remedied or overlooked, if it does not cause significant harm or prejudice. A substantive failure leaves the plaintiff without an essential element of her case.

Aguasa v Hunter [2024] WASC 380 (Aguasa v Hunter)

The plaintiff, Ms Aguasa, commenced proceedings in the Supreme Court of Western Australia alleging that the defendants had defamed her in emails published to a third party located in New South Wales. It was not in contest that the substantive law applicable to the proceedings was the law of NSW as the publication occurred wholly within NSW and due to the operation of s 11(1) of the Defamation Act 2005 (WA) (the WA Act).

The defendants applied for orders dismissing the proceedings as the plaintiff had not issued a concerns notice to the defendants before commencing the proceedings, as required by s 12B of the Defamation Act 2005 (NSW) (the NSW Act). Western Australia is yet to enact the equivalent provision, which formed part of the reform package enacted by most other states in the second half of 2021.

The question was whether the requirement to issue a concerns notice pursuant to s 12B of the NSW Act should be characterised as substantive applicable law or as a mere procedural requirement (and therefore not applicable to the proceedings).

Reasoning

In Aguasa v Hunter, his Honour Justice Tottle considered relevant authorities, including:

• John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 (Pfieffer)
  In the leading case of Pfieffer, the plurality stated that “…matters that affect ‘the existence extent or enforceability of the rights or duties of the parties to an action are matters, that on their face, appear to be concerned with issues of substance, not issues of procedure”.^[1] Relevantly, Tottle J referred to the plurality’s conclusion that the application of any limitation period, and questions about the kinds of damage or the damages amount recoverable, would be taken to be questions of substance.^[2]
• Hamilton v Merck and Co Inc (2006) 66 NSWLR 48 (Hamilton)
  In Hamilton, the NSW Court of Appeal applied the test in Pfeiffer and determined that provisions of the Personal Injuries Proceedings Act 2002 (QLD), which outlined requirements before personal injury proceedings could be commenced, were procedural in nature. Tottle J referred to Spigelman CJ’s observation that legislative provisions which provide for the completion of steps which are conditions precedent to proceedings being commenced could be considered as substantive, with a notable qualification: “if that formulation were employed in a legislative scheme that creates a new right or, as a matter of construction, entirely substitutes a legislative scheme for pre-existing common law right”.^[3]

In addition to the cases above, Tottle J also considered the recent Supreme Court of Queensland judgment in Peros v Nationwide News Pty Ltd [2024] QSC 80 (Peros). In Peros, Applegarth J, in obiter, applied both Pfeiffer and Hamilton and characterised s 12B of the Defamation Act 2005 (QLD) as procedural in nature due to:

• the statutory context of the provision, which formed part of a broader section that encouraged resolution of claims based on pre-existing common law rights; and
• the provision being directed at regulating the mode or conduct of court proceedings rather than affecting the ‘enforceability’ of the cause of action in defamation.

In contrast to the decision in Peros, Tottle J in Aguasa v Hunter concluded, “with some hesitation”, that s 12B of the NSW Act, which provided for the concerns notice requirement, should be characterised as a substantive provision.^[4] In finding that the proceedings should be dismissed, his Honour referred to the following key reasons:

• Interaction between s 12B and s 18 of the NSW Act: a notable difference between Tottle J’s approach and Applegarth J’s conclusion in Peros relates to the treatment of s 18 in the NSW Act and how it informs the characterisation of s 12B. In Aguasa v Hunter, Tottle J held that s 18 creates a substantive right of defence and that the availability of the defence is dependent on the issue of a concerns notice in accordance with s 12B.^[5] In Tottle J’s view, this is a significant consideration which “tips the balance in favour”^[6] of characterising s 12B as substantive so as to not undermine the operation and availability of the s 18 defence.  Tottle J did not agree with Applegarth J’s approach to the significance of the s 18 defence in Peros, in which Applegarth J held that any consequential amendment to s 18 from the introduction of the concerns notice requirement would be insufficient to “transform the procedural character of s 12B” and that s 18 was merely reformulated to account for the procedural change from s 12B.^[7]
• Statutory interpretation and objects of the legislation: s 12B sits within pt 3 of the NSW Act. The objects of this part of the legislation are aimed at quickly resolving civil disputes without recourse to litigation. On this basis, it would be inconsistent with the objects of pt 3 to characterise s 12B as a procedural provision that forms part of the machinery of litigation.^[8]
• Backdrop of uniformity: Tottle J also considered the broader objects of creating uniform national defamation law under the NSW Act and WA Act under s 3 of each regime and concluded that characterising s 12B as procedural would be inconsistent with the promotion of uniformity.^[9]
• Consistency with the Limitation Act 1969 (NSW) s 14B (NSW Limitation Act): further, Tottle J considered that treating s 12B as procedural would also create disconformity in relation to the application of the limitation period under s 14B of the NSW Limitation Act which expressly provides an extension to the limitation period where concerns notices are issued within 56 days of the expiry of the limitation period.^[10]

Key takeaways

• The WA Court has its eye on uniformity, even whilst a number of states, including WA, are well behind schedule in enacting uniform legislation. As discussed above, In Aguasa v Hunter, the Court considered the importance of the promotion of the objective of uniformity in defamation legislation in Australia, which is an express object in the Defamation Act 2005 (NSW).^[11]
• The case serves as a reminder that the mandatory requirement for the aggrieved person to issue a concerns notice is a condition precedent to commencing proceedings, designed to encourage the resolution of disputes without recourse to litigation.^[12]
• First instance cases differ as to whether the requirement to give a concerns notice under section 12B of the Defamation Act 2005 (NSW) and its state equivalents is substantive or procedural.
• In finding that the s 12B concerns notice requirement in New South Wales was substantive and not procedural, the plaintiff’s proceedings could not be maintained due to the contravention of the condition precedent requirement, even in circumstances where WA is yet to adopt the first stage of defamation reforms containing the requirement.