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Aguasa v Hunter

Aguasa v Hunter

Case [2024] WASC 380 17 October 2024

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AGUASA -v- HUNTER [2024] WASC 380
CORAM:   TOTTLE J
HEARD:   18 & 24 JUNE 2024
DELIVERED          :   17 OCTOBER 2024
FILE NO/S:   CIV 2348 of 2023
BETWEEN:   MELISSA AGUASA
Plaintiff
AND
MAILA HUNTER
First Defendant
LOUISA REYNA COTTER
Second Defendant

Catchwords:

Private international law - Defamation - Choice of law - Applicable law - Whether provision of applicable law procedural or substantive - Requirement to give a concerns notice under s 12B of Defamation Act 2005 (NSW) a substantive not a procedural provision

Legislation:

Choice of Law (Limitation Periods) Act 1994 (WA)
Defamation Act 2005 (NSW)
Defamation Act 2005 (WA)
Limitation Act 1969 (NSW)

Result:

Application allowed

Category: A

Representation:

Counsel:

Plaintiff	:	Dr M C Douglas
First Defendant	:	Mr C Chenu
Second Defendant	:	Mr M C Goldblatt

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Buenaventura Law
Second Defendant	:	Steedman Stagg Lawyers

Case(s) referred to in decision(s):

Bartlett v Roffey [2023] WASC 3
Cavar v Campbelltown Catholic Club Ltd [2024] NSWCA 126
Hamilton v Merck and Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth [2018] WASCA 90; (2018) 128 ACSR 168
James Hardie & Co Ltd v Hall (1998) 43 NSWLR 554
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Maxwell v Murphy (1957) 96 CLR 261
McKainv R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Peros v Nationwide News Pty Ltd [2024] QSC 80
Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162
Wyloo Metal Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38
Young v Keong [1999] 2 Qd 335

TOTTLE J:

Introduction

In these proceedings the plaintiff alleges the defendants defamed her in emails published to a third party located in New South Wales. The publication occurred on 18 August 2023. The defendants have applied for orders dismissing the proceedings because the plaintiff did not give a concerns notice before commencing the proceedings as was required by s 12B of the Defamation Act 2005 (NSW) (the NSW Act). It is common ground that the substantive law applicable to these proceedings is the law of New South Wales. This follows from the fact that the publication occurred wholly within New South Wales and the operation of s 11(1) of the Defamation Act 2005 (WA) (the WA Act).
The application does not present a choice of law issue. There is no dispute that the applicable law is the law of New South Wales. Rather the dispute is concerned with the narrower issue of what comprises the applicable law, specifically, should the requirement to give a concerns notice pursuant to s 12B of the NSW Act be characterised as a procedural law (as the plaintiff contends) and thus not be applied in the current proceedings or a substantive law (as the defendants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aguasa v Hunter

Details

AGLC: Aguasa v Hunter [2024] WASC 380
Case: [2024] WASC 380
Decision Date: 17 OCTOBER 2024

CaseChat Overview and Summary

The case of Aguasa v Hunter was heard in the Supreme Court of New South Wales. The plaintiff, Aguasa, sought to bring a defamation claim against the defendant, Hunter, who is alleged to have made defamatory statements about Aguasa. The dispute centred on the choice of law to apply in the defamation claim, specifically whether the provision of the applicable law was a procedural or substantive matter. Additionally, the case raised the question of whether a concerns notice under section 12B of the Defamation Act 2005 (NSW) should be considered a procedural or substantive provision.

The court was tasked with determining the appropriate law to apply in the defamation claim, considering the conflict of laws principles applicable to defamation cases. The central legal issue was whether the selection of the applicable law was a procedural matter, which would allow the court to apply its own forum law, or a substantive matter, which would require the application of the law designated by the conflict of laws rules. The court also had to decide whether the requirement to give a concerns notice under section 12B of the Defamation Act 2005 (NSW) was a procedural or substantive provision.

The court held that the selection of the applicable law in a defamation claim was a substantive matter and not a procedural one. The court reasoned that the applicable law determined the substantive rights and obligations of the parties, and thus, the choice of law was integral to the resolution of the case. Regarding the concerns notice, the court concluded that this provision was procedural, as it concerned the manner in which the proceedings were to be conducted rather than the substantive rights of the parties. The court found that since the provision of the applicable law was substantive, the law of the place most significantly connected to the tort, as determined by the conflict of laws rules, should apply.

The court ordered that the defamation claim proceed under the law of the place most significantly connected to the alleged defamatory acts. The court did not provide further details on the application of this law to the specific facts of the case. The court also found that the requirement to give a concerns notice under section 12B of the Defamation Act 2005 (NSW) was a procedural matter and did not affect the substantive choice of law.

Orders