Aguasa v Hunter
[2024] WASC 380
•17 OCTOBER 2024
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 contend) and be applied in the current proceedings. The issue must be resolved in accordance with the applicable common law principles.
For the reasons developed below I have concluded that s 12B of the NSW Act should be characterised as a substantive law. Thus, because the plaintiff commenced the proceedings in contravention of s 12B(1) the proceedings should be dismissed.
Relevant legislative framework
The Uniform Defamation Law
The Defamation Act 2005 (WA) and the Defamation Act 2005 (NSW) formed part of the Uniform Defamation Law, a nationally agreed measure aimed at achieving uniformity of defamation law across the States and Territories. The 2005 Acts were in substantially the same form until the New South Wales legislation was amended by the Defamation Amendment Act 2020 (NSW).[1] The amendments included, among other things, the introduction of a serious harm element to the cause of action,[2] amendments to provisions about concerns notices with which this application is concerned,[3] the introduction of a new public interest defence[4] and the removal of the defence of triviality.[5] Similar amendments were not made to the WA Act.
The WA Act
[1] Further amendments have been made to the Defamation Act 2005 (NSW) since the commencement of these proceedings but they are not material to the issues in this application.
[2] Defamation Act 2005 (NSW) s 10A.
[3] Defamation Act 2005 (NSW) s 12A, s12B, s 14(2) and (3).
[4] Defamation Act 2005 (NSW) s 29A.
[5] Defamation Act 2005 (NSW) s 33.
It is convenient to begin by setting out the material provisions of the WA Act.
The objects are stated in s 3 as follows:
3Objects of the Act
The objects of this Act are —
(a)to enact provisions to promote uniform laws of defamation in Australia;
(b)to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance;
(c)to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and
(d)to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.
Part 2 of the WA Act sets out some general principles. Division 3 is entitled 'Choice of Law'. It contains provisions governing the choice of law where an action is brought in a Western Australian court in relation to the publication of defamatory matter that occurred wholly or partly in another 'Australian jurisdictional area'.[6] Section 11(1) provides:
11Choice of law for defamation proceedings
(1)If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication.
[6] Defamation Act 2005 (WA) s 11(1).
New South Wales is an 'Australian jurisdictional area' for the purpose of s 11.[7]
[7] Defamation Act 2005 (WA) s 4.
Part 3 of the WA Act is entitled 'Resolution of civil disputes without litigation'. Division 1 is entitled 'Offer to make amends'. Section 12 provides:
12.Application of Division
(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.
Section 13 provides that a publisher may make an offer to make amends to an aggrieved person.[8]
[8] Defamation Act 2005 (WA) s13(1).
Section 14(1) provides that an offer to make amends cannot be made in two circumstances: if 28 days has elapsed since the publisher was given a concerns notice by the aggrieved person, or if a defence has been served. For a notice to be a concerns notice for the purposes of the WA Act it must be in writing and it should inform 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.[9]
[9] Defamation Act 2005 (WA) s 14(2).
Under the WA Act it is not mandatory for the aggrieved person to give a concerns notice to a publisher.[10] Thus, an aggrieved person may commence defamation proceedings instead of giving a concerns notice.
[10] Defamation Act 2005 (WA) s 13(1).
Section 15 specifies the requirements of an offer to make amends. The specified requirements do not include a requirement that the offer to make amends be open for acceptance for a minimum period. Section 16 sets out the circumstances in which an offer to make amends may be withdrawn and when a 'renewed offer' may be made. Section 17 sets out the effect of an acceptance of an offer to make amends.
Section 18 provides that a failure to accept a reasonable offer to make amends may provide a defence. Section 18(1) provides:
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;
(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.
Division 2 of pt 3 is concerned with apologies. Section 20(1) provides that an apology does not constitute an express or implied admission and is not relevant for the purposes of determining fault or liability. Section 20(2) provides that evidence of an apology in connection with a defamatory matter is not admissible as evidence of fault or liability in connection with the matter.
Part 4 of the WA Act is entitled 'Litigation of civil disputes'. It governs general procedural matters, defences, remedies and costs. Part 5 of the WA Act is entitled 'Miscellaneous' and governs various miscellaneous matters.
The NSW Act
The objects of the NSW Act are set out in s 3 and are identical to the objects of the WA Act.[11]
[11] Defamation Act 2005 (NSW) s 3; Defamation Act 2005 (WA) s 3.
Section 10A was introduced by the Defamation Amendment Act 2020. It is found in div 2 of pt 2 that defines the cause of action for defamation. Section 10A(1) provides:
10A Serious harm element of cause of action for defamation
(1)It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
As in the WA Act, pt 3 of the NSW Act is entitled 'Resolution of civil disputes without litigation'. Section 12 is in the same terms as s 12 of the WA Act. Sections 12A and 12B were introduced by the Defamation Amendment Act 2020. They provide:
12A Concerns notices
(1)For the purpose of this Act, a notice is a concerns notice if—
(a)the notice –
(i)is in writing, and
(ii)specifies the location where the matter in question can be accessed (for example, a webpage address), and
(iii)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
(iv)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
(v)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
(b)a copy of the matter in question is, if practicable, provided to the publisher together with the notice.
Note-
Section 12B requires a concerns notice to be given before proceedings for defamation can be commenced
(2)For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings cannot be used as a concerns notice.
(3)If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.
(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.
12B Defamation proceedings cannot be commenced without concerns notice
(1)An aggrieved person cannot commence defamation proceedings unless—
(a)the person has given the proposed defendant a concerns notice in respect of the matter concerned, and
(b)the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and
(c)the applicable period for an offer to make amends has elapsed.
(2)Subsection (1)(b) does not prevent reliance on—
(a)some, but not all, of the imputations particularised in a concerns notice, or
(b)imputations that are substantially the same as those particularised in a concerns notice.
(3)The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—
(a)the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law, or
(b)it is just and reasonable to grant leave.
(4)The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.
(5)In this section—
limitation law means the Limitation Act1969.
It is apparent from their terms that s 12A and s 12B were introduced to encourage and facilitate the object specified in s 3(d) ‑ the promotion of 'speedy and non-litigious methods of resolving disputes about the publication of a defamatory matter'.
Section 14 was amended by the Defamation Amendment Act 2020.[12]The amendment introduced the concept of 'the applicable period'. Section 14(1) provides that an offer to make amends cannot be made if the applicable period for an offer to make amends has expired or if a defence has been served. The applicable period for an offer to make amends is either a period of 14 days since the publisher is given the 'further particulars' if the aggrieved person has provided further particulars in response to a further particulars notice after 14 days have elapsed since the concerns notice was given or, in any other case, 28 days 'since the publisher was given a concerns notice by the aggrieved person'.[13]
[12] Defamation Amendment Act 2020 (NSW).
[13] Defamation Act 2005 (NSW) s 14(2).
Section 15 of the NSW Act, which governs the content of an offer to make amends, was amended by the Defamation Amendment Act 2020 in a number of respects but most significantly, in its amended form s 15 requires an offer to make amends to be open for acceptance for at least 28 days commencing on the day the offer is made.[14]
[14] Defamation Act 2005 (NSW) s 15(1)(b1).
The introduction of a mandatory requirement to give a concerns notice and the concept of the applicable period for an offer to make amends led to consequential amendments to s 18(1). As amended s 18 provides:
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 reasonably practicable after the publisher was given a concerns notice in respect of the matter (and, in any event, within the applicable period for an offer to make amends), and
(b)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.
As mentioned earlier pt 4 of the NSW Act was amended by the introduction of a public interest defence (s 29A) and the removal of the defence of triviality formerly provided for in s 33.
Limitation Act 1969 (NSW)
The provision of the Limitation Act 1969 (NSW) governing the limitation period for defamation actions was also amended by the Defamation Amendment Act 2020. Section 14B(1) provides that the limitation period for a cause of action in defamation is one year from the date of the publication of the matter complained of. Section 14B was amended by the introduction of the following additional subsections:
(2)The 1-year limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires.
(3)The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1-year limitation period expires.
Example - Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days.
(4)In this section—
concerns notice has the same meaning as in the Defamation Act 2005.
date of publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.
Choice of Law (Limitation Periods) Act 1994 (WA)
Section 5 of the Choice of Law (Limitation Periods) Act 1994 (WA) provides:
5.Characterization of limitation laws
If the substantive law of another place being another State, a Territory or New Zealand, is to govern a claim before a court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.
Substantive or procedural provisions – the authorities and relevant principles
John Pfeiffer Pty Ltd v Rogerson
In the leading case of John Pfeiffer Pty Ltd v Rogerson,[15] the issue before the High Court was whether provisions of the Workers Compensation Act 1987 (NSW), which limited the amount of damages that could be awarded for non-economic loss and provided that a court might not award damages contrary to those limits, were procedural or substantive. In the course of their reasons the plurality observed that it is hard, if not impossible, to identify some unifying principle which would assist in making the distinction between a question of procedure and a question of substance.[16] In this respect, their Honours cited with approval what had been said by the majority in McKain v R W Miller & Co (SA) Pty Ltd:[17]
Though the dividing line is sometimes doubtful or even artificial, the need to distinguish between substantive law and procedural law is clearly recognised for a number of forensic purposes.
[15] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503.
[16] John Pfeiffer Pty Ltd v Rogerson [97].
[17] McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, 40.
The plurality went on to state that:[18]
… 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. Or to adopt the formulation put forward by Mason CJ in McKain, 'rules which are directed to governing or regulating the mode or conduct of court proceedings' are procedural and all other provisions or rules are to be classified as substantive. (footnotes omitted).
[18] John Pfeiffer Pty Ltd v Rogerson [99].
Applying these principles the plurality stated the application of any limitation period, whether barring the remedy or extinguishing the right would be taken to be a question of substance as would all questions about the kinds of damage, or amount of damages that may be recovered.[19]
[19] John Pfeiffer Pty Ltd v Rogerson[100].
In his reasons, Kirby J made some observations (on which the defendants relied) which emphasised the need to analyse the issue from the perspective of both parties: His Honour said:[20]
It may be reasonable to recognise the right of a litigant to choose different courts in the one nation by reason of their advantageous procedures, better facilities or greater expedition. However, it is not reasonable that such a choice, made unilaterally by the initiating party, should materially alter that party's substantive legal entitlements to the disadvantage of its opponents. If this could be done, the law would no longer provide a certain and predictable norm, neutrally applied as between the parties. Instead, it would afford a variable rule which particular parties could manipulate to their own advantage. Such a possibility would be obstructive to the integrity of a federal nation, the reasonable expectations of those living within it and the free mobility of people, goods and services within its borders upon the assumption that such movement would not give rise to a significant alteration of accrued legal rights.
And:[21]
[The Canadian Supreme Court] explained that 'the purpose of substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties'. This Court should adopt a similar principle whilst recognising that there is no bright line between 'substance' and 'procedure'. Doing so will, in turn, contribute to reducing the capacity of the parties to affect adversely the rights of others merely by electing to bring a claim in the courts of one law area of the nation rather than another. (footnotes omitted)
Hamilton v Merck and Co Inc
[20] John Pfeiffer Pty Ltd v Rogerson [129].
[21] John Pfeiffer Pty Ltd v Rogerson [133].
In Hamilton v Merck and Co Inc,[22] the issue before the New South Wales Court of Appeal was whether provisions of the Personal Injuries Proceedings Act 2002 (Qld) (the PIPA), which introduced requirements that had to be observed before a claimant seeking damages for personal injuries could start proceedings, were procedural or substantive. The pre-action requirements were the giving by the claimant of written notice of the claim in the approved form to the person against whom the proceeding was proposed to be started (s 9) and the attendance by the parties at a compulsory conference (s 36). As part of the statutory context, it was relevant that s 4 of the PIPA provided that PIPA's main purpose was to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury (s 4(1)). This purpose was to be achieved generally by, among other things, providing a procedure for the speedy resolution of claims for damages for personal injury to which [the PIPA Act] applies, promoting settlement of claims at an early stage wherever possible, ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial and minimising the costs of claims (s 4(2)(a), (b), (c) and (e)). Section 18 of the PIPA made provision for what was to occur if proceedings were started without giving notice of a claim – the claimant was prevented from proceeding further unless certain conditions were satisfied. Further, s 35, s 48 and s 59 contained provisions that addressed what was to occur in the circumstances referred to in those sections if proceedings had been commenced and progressed notwithstanding non-compliance with pre-action requirements.
[22] Hamilton v Merck and Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48.
Spigelman CJ (with whom Tobias JA agreed) identified the issue to be determined as 'whether each of [the PIPA] provisions satisfies the common law test for a substantive rule, most relevantly, does it affect the "enforceability of rights or duties"'.[23]
[23] Hamilton v Merck and Co Inc [12].
His Honour considered that a prohibition upon the institution of proceedings was capable of satisfying the test for a substantive law expressed in terms of 'enforceability' as set out in John Pfeiffer and that it was arguable that the PIPA provisions were analogous to the limitation provisions found to be substantive in John Pfeiffer. His Honour considered it could be said that denying the plaintiff the right to institute proceedings at all is, as a matter of substance, similar in its effect to a statute of limitation provision which denies the remedy.[24]
[24] Hamilton v Merck and Co Inc [39] ‑ [40].
In a subsequent passage, Spigelman CJ observed that a provision requiring steps to be taken before proceedings were commenced which constituted a condition precedent could be characterised as substantive but added the qualification:[25]
That would be the correct conclusion 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 rights.
[25] Hamilton v Merck and Co Inc [61].
His Honour gave the Compensation to Relatives Act 1897 (NSW) considered by the High Court in Maxwell v Murphy[26] as an example of an Act that created a new right,[27] and the New Zealand no fault liability scheme considered in James Hardie & Co Pty Ltd v Hall[28] as an example of a legislative scheme that substituted a new right for pre‑existing common law rights.[29]
[26] Maxwell v Murphy (1957) 96 CLR 261.
[27] Hamilton v Merck and Co Inc [57].
[28] James Hardie & Co Ltd v Hall (1998) 43 NSWLR 554.
[29] Hamilton v Merck and Co Inc [62] ‑ [63].
In the course of his reasons, Spigelman CJ referred to the Queensland Court of Appeal decision, Young v Keong,[30] which was concerned with whether s 37 of the Motor Accident Insurance Act (Qld), which imposed a pre-action notice requirement in terms not materially different from s 9 of the PIPA. His Honour cited what had been said by McPherson JA in that case to the effect that the underlying policy of provisions like s 37 was to force the claimant towards negotiating a settlement of the claim before bringing an action and that given one of the objects of the Motor Accident Insurance Act was to encourage the speedy resolution of claims, the principal purpose or effect of the provision was procedural.[31]
[30] Young v Keong [1999] 2 Qd 335.
[31] Hamilton v Merck and Co Inc [86]; Young v Keong (336 ‑ 337).
Spigelman CJ noted that, while the PIPA modified the common law in a number of procedural and substantive respects, it did not substitute a new regime. In expressing his reasons for concluding that the provisions concerned the 'regulation of the mode or conduct of court proceedings' and were part of 'mechanism or machinery of litigation'[32] his Honour referred to the cumulative effect of a number of considerations. In summary, those were as follows. First, while the provisions were all individually significant, significance was not the sole touchstone of whether a particular requirement could be classified as substantive. Procedural matters were also capable of having a significant effect on the affordability of insurance.[33] Second, s 18 assumed that a proceeding commenced without a notice of claim having been served could be progressed to some degree.[34] Third, there were 'a number of aspects of the legislative scheme which indicated that steps may be taken in legal proceedings despite the apparent prohibition',[35] this was exemplified by the fact that PIPA conferred general power on a court to authorise a claimant to proceed with a claim notwithstanding non-compliance with the requirement to serve a notice of claim and a power to dispense with a compulsory conference.[36]
[32] Hamilton v Merck and Co Inc [102].
[33] Hamilton v Merck and Co Inc [92].
[34] Hamilton v Merck and Co Inc [93].
[35] Hamilton v Merck and Co Inc [94].
[36] Hamilton v Merck and Co Inc [95].
Handley JA also concluded that the PIPA provisions were procedural. In his reasons his Honour referred to the distinction drawn between substantive and procedural rules in the context of considering the presumption against the retrospective operation of legislation. His Honour developed the point as follows:[37]
The High Court considered the distinction between substantive and pro-cedural matters in Maxwell v Murphy (1957) 96 CLR 261 in connection with the presumption that an Act affecting substantive rights is not retrospective. The Act in question extended a limitation period and the question was whether it applied where the former period had expired. Dixon CJ said (at 267):
'… given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities … notwithstanding that before the change in the law … the accrual or establishment of the rights [or] liabilities …was complete and rested on events or transactions that were otherwise past and closed … The distinction [between matters of substance and matters of procedure] is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application … In [some] cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance.'
The preliminary steps mandated by the relevant provisions, in the words of Dixon CJ, appoint or regulate the manner in which the rights and duties of the parties are to be enforced or their enjoyment secured by judicial remedy. The question of characterisation may be tested by considering whether the Court would apply the presumption against retrospectivity to their repeal. It seems to me to be self evident that their repeal, without transitional provisions, would allow plaintiffs with accrued causes of action to commence proceedings without further ado.
Rights and liabilities fixed by reference to past facts, matters or events not only identify a matter of substance; they also define a cause of action. Compliance with the relevant provisions is not part of a plaintiff's cause of action and a plaintiff is not required to allege it in his statement of claim. Prima facie therefore time commences to run in respect of causes of action for personal injury torts governed by Queensland law as soon as damage is suffered.
Wickham Freight Lines Pty Ltd v Ferguson
[37] Hamilton v Merck and Co Inc [132] ‑ [134].
In Wickham Freight Lines Pty Ltd v Ferguson,[38] the provisions under consideration were contained in s 134AB of the Accident Compensation Act 1985 (Vic). Section 134AB precluded the institution of proceedings in specified circumstances without compliance with certain steps. The headnote summarised the issue and the relevant provisions as follows:
On appeal it was agreed that the trial judge's reasons for dismissing the motion were wrong. This left, however, two issues to be decided, namely whether those parts of s 134AB with which the respondent to the appeal had not complied were merely procedural and not substantive, and, if that was not so, whether, pursuant to s 134AB(16)(b) of the Act, he could take steps to comply with those provisions in the future so as to make the proceedings competent and thereby avoid having his statement of claim struck out.
Section 134AB of the Act provided that, by subs (1), the recovery of damages for non-pecuniary loss in respect of work-related injuries was precluded unless sought in conformity with the section and, by subs (2) recovery of damages for such an injury was permitted in respect of 'a serious injury'. In the other subsections qualifications were imposed on the right of recovery in respect of a serious injury and means were specified by which it was to be determined whether 'a serious injury' had been suffered.
One of those subsections, s 134AB(16)(b), provided that if an assessment, pursuant to another section of the Act, of the degree of impairment of the worker as a result of his or her injury was less than 30%, no proceedings for the recovery of damages in respect of that injury could be brought by that person unless a court, other than the Magistrates' Court, on the worker's application made within 30 days after either of two specified events, gave leave to bring such proceedings.
[38] Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162.
Macfarlan JA (with whom Barrett JA and Preston CJ of LEC agreed) held that the provisions of s 134AB(1) and (2) were substantive in nature because they were concerned with 'the kinds of damage, or amount of damages that may be recovered' being issues characterised by the plurality in John Pfeiffer as substantive issues.[39] His Honour did not accept a submission to the effect that even if s 134AB(1) and (2) were substantive in nature, s 134AB(3) and (4), which concerned the determination of whether an injury was a 'serious injury', were procedural because his Honour considered those provisions were an integral part of a scheme enacted in s 134AB limiting common law entitlements to damages. His Honour's reasoning was as follows:[40]
I do not accept this submission so far as it relates to s 134AB(3) and (4) which, for reasons that appear below (see [23]), are the provisions that are critical to the determination of the present appeal. As is apparent from [10] above, these subsections are an integral part of the scheme enacted in s 134AB limiting common law entitlements to damages. In my view it cannot be concluded, as the respondent's argument requires, that the scheme embodied in s 134AB is simply one limiting entitlements to damages to those arising out of 'serious' work-related injuries. In my view the scheme is one limiting damages to those arising from injuries which are determined in accordance with the specifications of the section to be 'serious'. It would be highly artificial, and in my view contrary to the apparent legislative intent of the section, for characterisation of an injury as 'serious' to be made otherwise than by those means.
The conclusion reached by this Court in Hamilton v Merck and Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 is in my view distinguishable. . . . Spigelman CJ (with whom Tobias JA agreed) held that the provisions concerned the 'regulation of the mode or conduct of court proceedings' and constituted part of the 'mechanism or machinery of litigation' (at [102]). Handley JA's view was to similar effect (at [143]). Unlike the legislation considered in the cases to which I have earlier referred, the Queensland statute did not contain a statutory scheme modifying common law rights to damages. Rather, the statute was relevantly concerned only with the procedural means by which those damages could be recovered.
As Spigelman CJ pointed out in Hamilton provisions requiring steps to be taken before court proceedings are commenced are capable of constituting substantive conditions precedent (at [61]). His Honour instanced a legislative scheme that created a new right, such as that contained in the Compensation to Relatives Act 1897 considered in Maxwell v Murphy (1957) 96 CLR 261. In that case, rights to sue wrongdoers in respect of a person's death were given to the deceased person's family but actions were required to be commenced within 12 months. In considering whether the legislative amendment extending the time to sue operated retrospectively, the High Court concluded that the time limitation was substantive in character because it could not be separated from the right to damages (at 269). As Williams J said, '[t]he limited time within which the new right of action may be enforced is of its essence' (at 283).
Spigelman CJ also instanced the New Zealand no fault liability scheme considered by this Court in James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554. In that case, Sheller JA (with whom Beazley and Stein JJA agreed) found that, when read in the context of the Act as a whole, the substantial effect of a prohibition upon commencing proceedings independently of the Act was 'to substitute cover under the Act for the right to recover common law damages' (at 579). His Honour adopted Professor Fleming's description in The Law of Torts 9th ed (1998) LBC Information Services, at 449 of the New Zealand legislative scheme as 'a comprehensive system of exclusive compensation, replacing tort recovery … for all "personal injury by accident", including certain industrial diseases'. Whilst s 134AB of the Victorian Accident Compensation Act does not have this breadth of operation, in my view it is nevertheless also, in effect, a legislative package from which particular elements going to the fundamental character of the scheme cannot be isolated as procedural provisions so as to render them inapplicable when proceedings are brought in interstate courts where the applicable substantive law is Victorian. As subs (3) and subs (4) give effect to the legislative scheme of limiting proceedings for common law damages to situations where there has been serious injury within the meaning of the section, these provisions cannot be characterised as procedural.
Peros v Nationwide News Pty Ltd
[39] Wickham Freight Lines Pty Ltd v Ferguson [12].
[40] Wickham Freight Lines Pty Ltd v Ferguson [15] ‑ [18].
In Peros v Nationwide News Pty Ltd,[41] Applegarth J expressed the view that s 12B of the Defamation Act 2005 (Qld) should be characterised as a procedural provision. The provisions of the Defamation Act 2005 (Qld) are relevantly identical to the provisions of the NSW Act. In Peros the plaintiff commenced proceedings in Western Australia. He had not given a concerns notice in accordance with s 12B of the Queensland Act. The proceedings were transferred by this court to the Queensland Supreme Court under s 5(2) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA). The defendants applied for orders dismissing the proceedings on the ground that the plaintiff had not served a concerns notice. Applegarth J held as follows:[42]
In short, s 12B(1) of the Queensland Act in referring to 'defamation proceedings' is presumed to be referring to defamation proceedings commenced in Queensland, not in another jurisdiction. The Queensland Parliament in enacting s 12B did not manifest an intention that the provision should have extraterritorial operation. It did not manifest an intention that it apply to a proceeding that is commenced in the jurisdiction of another State's courts. The commencement and conduct of proceedings in the Supreme Court of Western Australia is not regulated by s 12B of the Queensland Act. It is regulated by the laws of Western Australia about the jurisdiction of its courts, the process for invoking their jurisdiction, and other court processes.
Also, s 12B's notice procedure should be characterised as a procedural law, rather than a substantive law determining the cause of action for defamation. Not being a substantive law, it would not govern the conduct of proceedings in the Supreme Court of Western Australia. Western Australian law, being the law of the forum, would govern procedure relating to pre-proceeding notices, the commencement of proceedings and other aspects of procedure in that Court.
[41] Peros v Nationwide News Pty Ltd [2024] QSC 80.
[42] Peros v Nationwide News Pty Ltd [13] ‑ [14].
Applegarth J observed that his conclusion that s 12B of the Queensland Act did not apply to proceedings commenced in Western Australia was sufficient to dispose of the application but he addressed the question of the proper characterisation of s 12B 'for completeness and because [his Honour] had the benefit of extensive argument'.[43] Accordingly, his Honour's views on the characterisation issue were obiter, though of course, they constitute persuasive authority of considerable weight.
[43] Peros v Nationwide News Pty Ltd [102].
In his reasons, Applegarth J referred in detail to the discussion of the applicable principles in John Pfeiffer and Hamilton. It is convenient to set out his Honour's concluding observations first and then return to an aspect of his Honour's reasoning that was the focus of much argument on the present application. His Honour's concluding observations were as follows:[44]
Applying the principles that emerge from Pfeiffer and Hamilton, the amendments to Part 3, particularly the enactment of ss 12A and 12B and consequential amendments to ss 14 and 18, do not affect the 'enforceability' of the cause of action for defamation in the sense discussed by the joint judgment in Pfeiffer. Like the notice provisions considered in Hamilton and other cases, the provisions encourage the resolution of claims without resort to litigation. Section 12B is not part of a scheme that extinguishes or modifies a pre-existing common law right to sue for defamation. Section 12B regulates the commencement and conduct of defamation litigation as part of provisions that are clearly designed to encourage early settlement prior to the institution of proceedings.
It is always possible to characterise a provision that affects or conditions the enforcement of a common law right as substantive. Any pre-proceeding notice provision may be said to alter or modify the right to sue. Yet, as Hamilton and the authorities that it followed illustrate, this does not necessarily render the relevant provision substantive.
In this matter, the characterisation issue is resolved by considering s 12B in its statutory context as part of procedural provisions that encourage the resolution of claims based on pre-existing common law rights. Section 12B is, in the words of Mason CJ in McKain, 'directed to governing or regulating the mode or conduct of court proceedings'. The provisions relate to the conduct of litigation. Like any similar procedural provision that affects the process by which rights are enforced, it may be said to affect the enforceability of rights. However, consistent with the approach in Hamilton and other intermediate appellate court decisions that I should follow, s 12B is a procedural provision that does not affect 'enforceability' in the sense that that term was used in Pfeiffer.
I respectfully follow the approach in Hamilton in characterising a similar notice before action provision in the present statutory context.
I conclude that s 12B is properly characterised as a procedural provision.
[44] Peros v Nationwide News Pty Ltd [156] ‑ [160].
One of the grounds on which the defendants had sought to distinguish s 12B from the provisions of the PIPA considered in Hamilton was that div 1 of pt 3 of the Queensland Act contained the defence of a reasonable offer to make amends in s 18 which could only be raised if a concerns notice had been given. After referring to the amendment made to s 18 flowing from the enactment of s 12A and s 12B Applegarth J reasoned:[45]
In my view, this consequential amendment does not require s 12B to be characterised as substantive rather than procedural. Instead, it involves the reformulation of a statutory defence to take account of a procedural change.
Since its enactment in 2005, Part 3 of the Queensland Act has provided a statutory scheme for the resolution of disputes without litigation. It continues to provide for concerns notices, offers to make amends, their timing, and the effect of a failure to accept a reasonable offer to make amends. The enactment of ss 12A and 12B, with consequential amendments to ss 14 and 18, might be said to deprive, in certain circumstances, a defendant of a defence under s 18 in a case in which a concerns notice has not been given. However, those circumstances are exceptional. Unless a defendant is untroubled by a failure to provide a concerns notice (for example because it has no desire to make any offer of amends and wishes to contest the proceeding), then in any proceedings to which s 12B applies, the failure to give a concerns notice will lead to the proceeding being dismissed or struck out on the defendant's application. No occasion will arise at a trial of the proceeding to consider a defence under s18 because the proceeding will be halted at an early stage. On the other hand, the untroubled defendant who has no intention to make an offer to make amends, and does not make one, can hardly complain about being deprived of a s18 defence. It was content to not be given a concerns notice.
In a rare case, such as this, in which a concerns notice is not required, because s 12B does not apply to a proceeding that is commenced in a jurisdiction that does not require a concerns notice, and no concerns notice is given, a defence under s 18 will not be available. But this is because, as a matter of statutory construction, s 12B does not apply to such a proceeding. The non-availability of a s18 defence is a consequence of s 12B simply not applying in such a case. The s 18 defence was not intended to apply to such a rare case.
In summary, the consequential amendment to s 18 is insufficient to transform the procedural character of s 12B.
The requirement in s 12B(1)(b) that the imputations relied on in the proceeding that is filed were particularised in the concerns notice is distinctly procedural. It does not prohibit amendment after the proceedings are commenced. It does not alter or replace the cause of action in defamation. The pleading requirement in s 12B(1)(b) does not alter the cause of action: it remains one based on the publication of defamatory matter rather than a cause of action based on the publication of an imputation. Section 12B(1)(b) regulates a proceeding that is commenced so that its pleaded imputations reflect (at least initially) those that were notified in a concerns notice. It regulates proceedings by a kind of 'no surprises' rule.
A defendant is encouraged to consider making an offer of amends on the basis of imputations that are notified in a concerns notice, knowing that if the matter does not resolve, the pleaded imputations will be those notified, not entirely different ones.
[45] Peros v Nationwide News Pty Ltd [150] ‑ [155].
Outline of the opposing arguments
Intending no disrespect to the helpful and comprehensive submissions prepared by the parties I do not intend to set out the submissions in any detail. The defendants' written outlines filed in support of their application analysed the issues largely by reference to the criteria discussed in Pfeiffer and Hamilton. The plaintiff's responsive submissions relied heavily on Applegarth J's decision in Peros. That decision was handed down the day the defendants' submissions were filed and thus the defendants did not have the opportunity to address the decision in their first set of written outlines. In their responsive written submissions and in their oral submissions the defendants developed their arguments as to why I should not follow Applegarth J's decision in Peros. I have largely accepted the substance of the defendants' submissions.
The oral submissions advanced on the plaintiff's behalf (supported by supplementary submissions) developed further lines of argument. Among other matters, the plaintiff contended that s 18 of the WA Act was a mandatory law of the forum of the nature referred to by Martin CJ in Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth,[46] that applied notwithstanding the substantive law to be applied was the law of New South Wales. Alternatively, it was argued on the plaintiff's behalf that if s 18 of the NSW Act applied, then the 'concerns notice' referred to in the section should be understood to be a concerns notice within the meaning of s 14(2) of the WA Act.
[46] Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth [2018] WASCA 90; (2018) 128 ACSR 168 [116].
Consideration
The issue falls to be determined as a matter of statutory construction. The principles of statutory construction are well-known and need not be recited. The focus is on the text of the provisions having regard to their context and purpose.[47]
[47] Wyloo Metal Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 [200] ‑ [206] (Buss P & Livesey AJA).
Starting with the text, the following observations may be made:
(a)Reflecting its heading, pt 3 of the NSW Act constitutes a regime for 'the resolution of civil disputes without litigation'.
(b)The pt 3 regime is one of the means by which the object specified in s 3(d) ('to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter') is to be achieved.
(c)The object of the promotion of uniform laws of defamation in Australia must be kept in mind when construing the NSW Act.
(d)The requirements of a concerns notice are specified in s 12A in more detail than those contained s 14(2) of the Defamation Act 2005 (NSW) as it existed prior to the 2020 amendments. The evident purpose of the enhanced requirements is to ensure that the publisher is provided with sufficient information as will allow a meaningful offer to make amends, or otherwise facilitate a resolution of the dispute without resort to litigation.
(e)The importance attached to the giving of a concerns notice is emphasised by the inclusion in s 12A(2) of a statement that a document required to be lodged or filed to commence defamation proceedings cannot be used as a concerns notice.[48]
(f)The prohibition in s 12B(1) against the commencement of proceedings unless a compliant concerns notice has been served is expressed in absolute terms. No exceptions are contemplated.
(g)While s 12B(3) provides that the court may grant leave to commence proceedings despite non‑compliance with subsection 12B(1)(c), neither s 12B nor any other provision in the NSW Act contemplates that proceedings may be commenced and continued unless a concerns notice has been served. In this respect the concerns notice procedure and the consequences that follow from non-compliance with it may be distinguished from the provisions of the PIPA considered in Hamilton.
(h)Relatedly, s 18, that provides for the reasonable offer to make amends defence, does not contemplate the possibility that a defamation proceeding may be commenced and maintained unless a concerns notice has been served before the proceedings are commenced. The availability of the reasonable offer to make amends defence is dependent on the giving of a concerns notice.
[48] Defamation Act 2005 (NSW) s 12A(2).
Characterising the requirement to give a concerns notice imposed by s 12B as procedural (a provision regulating the conduct of court proceedings or forming part of the machinery of litigation) is not in harmony either with the fact that s 12B is found in pt 3 of the NSW Act directed to 'the resolution of civil disputes without litigation' or the express statutory object of the promotion of the speedy and non‑litigious methods of resolving civil disputes. Put another way, pt 3 of the NSW Act is not concerned with expediting proceedings or making them more efficient, its purpose is to avoid proceedings.
A procedural characterisation of s 12B gives rise to the possibility that proceedings may be commenced (and maintained) in contravention of the prohibition in s 12B in a jurisdiction that does not require a concerns notice but to which the NSW Act applies. The result permitted by the adoption of the procedural characterisation is inconsistent with the object of enacting provisions to promote uniform laws of defamation in Australia. It would make the defamation laws less uniform.
Further, characterising s 12B as procedural would result in a disconformity between the substantive law applicable to the limitation period (s 14B of the Limitation Act 1969 (NSW)) which provides for an automatic extension of the limitation period if a concerns notice is given within 56 days of the expiry of the limitation period and the absence of any requirement to give a concerns notice. While, considered in isolation it is not a point of decisive significance, such a disconformity (as the defendants pointed out) cannot have been intended. Characterising s 12B as a substantive provision avoids this disconformity.
Section 12B imposes a mandatory pre-condition to the commencement of proceedings and bars the right to seek the remedy until the precondition has been met. It has the capacity to affect the enforceability of a plaintiff's rights in the manner described in Pfeiffer. It must be recognised, however, that the weight of authority favours holding statutory provisions, which impose a notice requirement and other requirements that must be observed before proceedings are commenced and which are designed to encourage and facilitate the settlement of disputes, as procedural in nature. It must also be recognised that there are aspects of s 12A and s 12B that are distinctly procedural. Further, pt 3 of the NSW Act did not introduce a legislative scheme of the nature constituted by s 134B of Accident Compensation Act 1985 (Vic) considered in Wickham Freight Lines Pty Ltd v Ferguson. In the language used by Spigelman CJ in Hamilton the provisions of div 1 of pt 3 of the NSW Act do not substitute 'a legislative scheme for pre-existing common law rights'. The elements of the cause of action for defamation do not include the giving of a concerns notice. The cause of action accrues and the limitation period begins on the date of publication.
In my opinion, however, the existence of the reasonable offer to make amends defence in s 18 is a matter that distinguishes pt 3 of the NSW Act from the PIPA and other legislation containing similar pre‑action procedures.
Section 18 creates a right of defence that is more than part of the machinery of litigation. It is a substantive right that has the capacity to defeat a plaintiff's claim. In my view, it can only be regarded as part of the substantive law of New South Wales. That the availability of the defence depends on the giving of a concerns notice in accordance with s 12B is a significant consideration in the construction exercise to be undertaken to arrive at the proper characterisation of s 12B.
I am unable to agree with Applegarth J's approach to the significance of the s 18 defence. In my view, the significance of the reasonable offer to make amends defence cannot be diminished on the basis that the circumstances in which publishers may be deprived of the defence are exceptional or rare. A more coherent construction and one that accords more readily with the express statutory objects and further recognises the substantive nature of the defence is achieved by characterising s 12B as a substantive provision. This avoids the necessity to discount the denial of the defence to a class of publishers, even if the extent of that class was limited. Parenthetically, it does not appear to me that it is exceptional for plaintiffs to commence proceedings in this jurisdiction without giving a concerns notice when the substantive law is the law of a jurisdiction which requires the giving of a concerns notice. This is such a case as was Bartlett v Roffey.[49]
[49] Bartlett v Roffey [2023] WASC 3.
I do not accept the plaintiff's argument that s 18 of the WA Act applies, notwithstanding the operation of s 11(1), because s 18 is to be characterised as a mandatory law of the forum. In my view no support for that characterisation is to be found in the text, context and purpose of the WA Act. Further, I do not accept the plaintiff's contention that if s 18 of the NSW Act is held to be a provision of the substantive law that applies to proceedings commenced in this State then the reference to a concerns notice in s 18 is to be construed as a reference to a concerns notice within the meaning of the WA Act. This would be a strained construction of the legislative framework and characterising s 12B as a substantive provision avoids the need to go to such lengths.
With some hesitation given the weight of authorities to which I have referred and Applegarth J's decision in Peros, I have concluded that s 12B should be characterised as a substantive provision that affects the enforceability and extent of rights. The matter that tips the balance in favour of that characterisation is the existence of the s 18 defence and its dependence on the giving of a concerns notice. Further, for the reasons I have given I consider that such a characterisation is a construction that best accords with the objects in s 3(a) and (d) and the matters to which I have referred in [48] to [51].
In Cavar v Campbelltown Catholic Club Ltd,[50] the New South Wales Court of Appeal held that the primary judge was correct to summarily dismiss the plaintiff's defamation claim as it had been commenced in contravention of s 12B(1). It follows from my conclusion that s 12B is a substantive provision and from the fact that the plaintiff did not give a concerns notice before commencing these proceedings, that the proceedings must be dismissed.
[50] Cavar v Campbelltown Catholic Club Ltd [2024] NSWCA 126.
I will hear from the parties in relation to the form of the orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
17 OCTOBER 2024
12
4