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Peros v Nationwide News Pty Ltd[2024] QSC 80

Peros v Nationwide News Pty Ltd[2024] QSC 80

SUPREME COURT OF QUEENSLAND

CITATION:

Peros v Nationwide News Pty Ltd & Ors [2024] QSC 80

PARTIES:

JOHN PEROS

(plaintiff)

v

NATIONWIDE NEWS PTY LTD ACN 008 438 828

(first defendant)

AND

HEDLEY THOMAS

(second defendant)

AND

SHANNAH BLACKBURN

(third defendant)

FILE NO:

BS 7796 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

13 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2024

JUDGE:

Applegarth J

ORDER:

  1. 1.Paragraphs 1 and 2 of the amended application filed 20 March 2024 are dismissed.
  2. 2.Pursuant to ss 10A(4) and 10A(5) of the Defamation Act 2005 (Qld) the following issue be determined as soon as practicable before the trial commences:

Whether the publications sued upon, or any of them, have caused, or are likely to cause, serious harm to the plaintiff’s reputation (“the issue”).

  1. 3.The hearing of the issue be listed to commence on 29 July 2024.
  2. 4.There be further directions for the preparation and conduct of that hearing.

CATCHWORDS:

STATUTES – INTERPRETATION – PRESUMPTIONS AS TO  LEGISLATIVE  INTENTION  –  NOT  TO  GIVE EXTRATERRITORIAL EFFECT – where the plaintiff commenced proceedings for defamation in the Supreme Court of Western Australia – where Western Australian law did not require the plaintiff to give a “concerns notice” before starting his proceeding – where the defendants contend that s 12B of the Defamation Act 2005 (Qld) applied to the proceeding and that the plaintiff therefore was required to give a concerns notice before starting his proceeding – whether, as a matter of statutory construction, s 12B of the Queensland Act regulates the conduct of proceedings in the Supreme Court of Western Australia – whether the Queensland Parliament, in enacting s 12B, manifested an intention to exclude the presumption against extraterritorial operation of a State Act – whether s 12B has an extraterritorial operation – whether s 12B should be construed to refer to a “proceeding” in Queensland and not to a proceeding in another State

PRIVATE INTERNATIONAL LAW – CHOICE OF LAW – TORTS AND SIMILAR – GENERAL PRINCIPLES – whether statutory provisions in relation to the resolution of claims before litigation and, in particular, a requirement to give a notice before action are substantive or procedural – whether the notice before action requirement regulates the mode or conduct of court proceedings – whether the provision is part of the mechanism or machinery of litigation – whether it regulates the manner in which pre-existing rights are to be enforced rather than extinguishes a claim

DEFAMATION – where the plaintiff was charged with, and later acquitted of, murder – where the defendant was later found by a coroner to have violently killed the deceased using a bladed instrument – where the coroner’s finding was widely publicised – where the defendants published an investigative podcast into the death of the victim – where an episode of the podcast is alleged to have imputed that he murdered the deceased – where the plaintiff pleads that the episode “caused or is likely to cause serious harm” to his reputation so as to satisfy the serious harm element of the cause of action enacted by s 10A of Defamation Act 2005 (Qld) – where the defendants dispute the “serious harm element” of the plaintiff’s cause of action on the grounds that his reputation had been severely damaged or destroyed by the widespread reporting of the coroners finding – where an application is brought for the determination before the trial of the serious harm issue – where s 10A of the Defamation Act 2005 (Qld) requires the judge to determine the serious harm issue as soon as practicable before the trial commences unless satisfied that there are “special circumstances” justifying the postponement of the determination – whether “special circumstances” justify the postponement of the determination in this proceeding

Acts Interpretation Act 1954 (Qld), s 35(1)

Defamation Act 2005 (Qld), ss 10A, 11(2), 12A, 12B, 14, 18

Defamation Act 2005 (WA), ss 11(2), 14(2)

Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld)

Motor Accident Insurance Act 1994 (Qld)

Personal Injuries Proceedings Act 2002 (Qld), ss 9, 36,

Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238, cited

Alvear v Chetwynd Park Pty Ltd [2014] VSC 214, cited

Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632, cited

Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519, cited

BHP Group Ltd v Implombata (2021) 286 FCR 625, cited

Burstein v Times Newspapers Ltd [2001] 1 WLR 579, cited

Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3) [2015] QSC 295, cited

Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90, cited

Channel Seven Sydney Pty Ltd v Mohammed (2010) 278 ALR 232, cited

Dingle v Associated Newspapers Ltd [1964] AC 371, cited

DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692, cited

Ex parte Iskra, Ex parte Mercantile Transport Co Pty Ltd [1963] SR (NSW) 538, cited

Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346, cited

Georges v Georges [2022] NSWDC 558, cited

Gorton v Australian Broadcasting Commission (1973) 22 FLR 181, cited

Hamilton v Merck And Co Inc (2006) 66 NSWLR 48, discussed

Harding v Lithgow Municipal Council (1937) 57 CLR 186, cited

Hoser v Herald and Weekly Times Pty Ltd (Ruling) [2022] VCC 2213, cited

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, cited

Johnson v Hill [2002] 2 Qd R 486, cited

Kinzett v McCourt (1999) 46 NSWLR 32, cited

Lachaux v Independent Print Ltd [2016] QB 402; [2018] QB 594; [2020] AC 612, cited

Maxwell v Murphy (1957) 96 CLR 261, cited

McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1, cited

Newman v Whittington [2022] NSWSC 1725, cited

Newman v Whittington [2022] NSWSC 249, cited

O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, cited

Peros v Blackburn [2024] FCA 177, cited

Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83, cited

Qu v Wilks [2023] VSCA 198, cited

Randell v McLachlain [2022] NSWDC 506, cited

Reading Australia Pty Ltd v Australian Mutual Provident Society (1990) 240 FCR 276, cited

Seaegg v The King (1932) 48 CLR 251, cited

Selkirk v Hocking (No 2) [2023] FCA 1085, cited

Solomons v District Court of NSW (2002) 211 CLR 119, cited

Teh v Woodworth & Anor [2022] NSWDC 411, cited

Vickers v Queensland Building and Construction Commission [2019] QCA 66, cited

Wickham Freight Lines Pty Ltd v Ferguson (2013) 83 NSWLR 162, cited

Young v Keong [1999] 2 Qd R 335, cited

COUNSEL:

R W Potter SC and D J Helvadjian for the plaintiff/ respondent

D R Sibtain SC and P Morreau for the defendants/applicants

SOLICITORS:

Rostron Carlyle Rojas Lawyers for the plaintiff/respondent

Thomson Geer for the defendants/applicants

  1. [1]
    The plaintiff sued the defendants in the Supreme Court of Western Australia over a podcast. He says that the defendants imputed that he murdered Shandee Blackburn.
  1. [2]
    Under Western Australian law, the plaintiff was not required to issue a “concerns notice” before starting his proceeding.
  1. [3]
    After certain interlocutory applications in the Supreme Court of Western Australia, the parties consented to a determination pursuant to s 11(2) of the Defamation Act 2005 (WA) that “the substantive law applicable in these proceedings is the law of Queensland”. Also, due to the preponderance of witnesses at any trial being in Queensland, the parties consented to an order transferring the proceeding to this Court under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA).
  1. [4]
    The defendants contend that before the podcast was published, the plaintiff’s reputation had been effectively destroyed or “obliterated” by the widespread reporting of a Coroner’s finding that Shandee Blackburn “died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument”. In essence, the defendants’ case is that prior to the podcast, the plaintiff had a bad reputation for being the person who was found by an independent Coroner, acting judicially, to have violently killed Shandee Blackburn.
  1. [5]
    In those circumstances, and given the state of his reputation before the publication, the defendants contend that the podcast did not cause and is not likely to cause “serious harm to the reputation” of the plaintiff.
  1. [6]
    On this basis, the defendants submit that the plaintiff has not established the “serious harm element” of his cause of action for defamation as required by s 10A of the Defamation Act 2005 (Qld).[1]
  2. [7]
    Determination of the “serious harm” issue is for another day. The present question is whether that day should be “as soon as practicable before the trial commences”, which is the default position under s 10A(5).
  1. [8]
    If the matter proceeds to trial, then the defendants propose to plead a defence of truth, along with public interest and other substantive defences. Any trial will last several weeks. It may be a jury trial.  The mode of trial has yet to be determined.
  1. [9]
    Section 10A(5) provides that on an application such as this, the Court is to determine the serious harm issue “as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial)”. The plaintiff contends that there are such special circumstances.
  1. [10]
    The other question that I am required to decide is whether, despite complying with the Western Australian Defamation Act in commencing his proceeding in the Supreme Court of Western Australia, the plaintiff’s proceeding should be dismissed because he did not serve a concerns notice as required by s 12B(1) of the Queensland Defamation Act.

The two main issues on this application

  1. [11]
    The two main issues for decision relate to the potential application of s 12B of the Queensland Act and the timing of the determination of the separate harm issue. The issues are:
    1. Does s 12B of the Queensland Act regulate the conduct of proceedings in the Supreme Court of Western Australia?
    2. Are there “special circumstances” justifying the postponement of the determination of the issue of serious harm to a later stage of the proceeding?
  1. [12]
    For reasons that I will develop after addressing the background to the matter, I conclude that s 12B of the Queensland Act did not apply to the proceeding the plaintiff commenced in Western Australia.
  1. [13]
    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.
  1. [14]
    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.
  1. [15]
    On the second issue, the plaintiff has not satisfied me that “special circumstances” justify postponing the determination of the special harm issue.

Background

  1. [16]
    In 2014, the plaintiff was charged with the murder of Shandee Blackburn on 9 February 2013. After a trial in 2017, he was found not guilty of that charge by a jury.
  1. [17]
    In 2019, a Coroner conducted an extensive investigation into the death of Ms Blackburn. This included questioning the plaintiff after he initially refused to give evidence on the ground that the evidence would tend to incriminate him. The Coroner compelled the plaintiff to give evidence under the Coroners Act 2003 (Qld). As a result, he was afforded the protections contained in s 39 of that Act against the use of that evidence in other proceedings.
  1. [18]
    On 21 August 2020, the Coroner published findings that remain available online. They include the finding that:

“Miss Blackburn died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument.”

  1. [19]
    Unsurprisingly, the Coroner’s finding that the plaintiff violently killed Ms Blackburn was widely reported, including by newspapers and broadcasters, and in their online publications. Those publications have remained online since their first publication.
  1. [20]
    On 14 October 2021, the first and second defendants began publishing an investigative podcast called Shandee’s Story into the death of Ms Blackburn.
  1. [21]
    The plaintiff has sued in respect of the publication of Episode 13 of the podcast. That episode included consideration of the plaintiff’s criminal trial in 2017 and the subsequent coronial inquest into Ms Blackburn’s death.
  1. [22]
    The third defendant is Shandee Blackburn’s sister. She was interviewed on 24 May 2021 by the second defendant. The plaintiff sues her over that interview and the republication in Episode 13 of some of the things that she said in the interview. A limitation period issue remains to be resolved in the plaintiff’s case against her.
  1. [23]
    The podcast as a whole examined the nature and quality of the evidence called at the plaintiff’s criminal trial, the coronial inquest, and in particular, deficiencies in the DNA evidence. The second defendant interviewed relevant witnesses, including the third defendant, the deceased’s mother, investigators and experts. Parts of those interviews were published by the podcast. The second defendant’s work on the podcast was instrumental in the calling of a Commission of Inquiry into Forensic DNA testing in Queensland. It found major, systemic failings in the system of DNA testing in this State.
  1. [24]
    Episode 13 was first released to subscribers of The Australian from 17 December 2021, and across other platforms such as Spotify from 10 January 2022.
  1. [25]
    On 12 August 2022, the plaintiff commenced these proceedings in the Supreme Court of Western Australia.
  1. [26]
    Western Australian law does not require a plaintiff to serve a concerns notice (as defined in s 14(2) of the Defamation Act 2005 (WA)) prior to commencing a defamation proceeding.
  1. [27]
    The defendants filed an appearance in the Supreme Court of Western Australia. The plaintiff then filed an application for an extension of the limitation period with respect to his claim against the third defendant.
  1. [28]
    On 24 February 2023, the defendants brought an application to determine the substantive law to be applied in the proceeding. The defendants also sought the summary dismissal of the proceedings by reason of the plaintiff’s alleged failure to comply with s 12B of the Defamation Act 2005 (Qld) or, alternatively, the transfer of the proceedings to this Court.
  1. [29]
    On 28 February 2023, Tottle J extended the time for the defendants to file and serve their defences generally. That order continues to apply.
  1. [30]
    Following correspondence between the parties, on 5 May 2023, the plaintiff consented to the making of a declaration and an order. These were made by Tottle J on 8 May 2023.  The declaration was:

“in answer to the separate question posed by summons issued by the defendants, pursuant to s 11(2) of the Defamation Act 2005 (WA) the substantive law applicable in these proceedings is the law of Queensland.”

The consent order transferred the proceedings to this Court under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA).

  1. [31]
    The defendants have yet to file a defence. If the proceedings are not dismissed, they propose to advance a number of substantive defences including:
    1. truth/justification;
    2. qualified privilege;
    3. honest opinion; and
    4. public interest (s 29A Defamation Act 2005 (Qld)).

This application

  1. [32]
    By their amended application filed in this Court, the defendants seek the following:
  1. summary judgment for the defendants under r 293 of the Uniform Civil Procedure Rules 1999 (Qld), on the basis of the plaintiff’s non-compliance with s 12B(1)(a) of the Defamation Act 2005 (Qld);
  2. alternatively to (a), pursuant to rr 16(e) and 171(2) UCPR, orders setting aside the plaintiff’s claim and striking out the whole of the plaintiff’s amended Statement of Claim filed 6 February 2024 on the basis that it discloses no reasonable cause of action, or is otherwise an abuse of the process of the Court, due to the plaintiff’s non-compliance with s 12B(1)(a) of the Defamation Act;
  3. further or alternatively, an order for the setting down of a separate question to be determined in advance of the trial pursuant to s 10A(5) of the Defamation Act, namely whether the publications sued upon, or any of them, have caused, or are likely to cause, serious harm to the plaintiff’s reputation, and programming orders for that hearing; and
  4. an order that the plaintiff pays the defendants’ costs of this application, and of the proceedings to date.

Relevant provisions

  1. [33]
    The Western Australian Defamation Act is essentially in the same form as the Queensland Defamation Act was before it was amended by provisions that came into effect on 1 July 2021.[2] Similar amendments were not enacted in Western Australia.
  1. [34]
    The amendments included the introduction of a serious harm element for the cause of action for defamation, amendments to provisions about concerns notices (with consequential amendments about the timing of an “offer to make amends”), and the enactment of a new public interest defence in s 29A of the Queensland Act.
  1. [35]
    Of particular relevance for the purpose of this application are ss 10A, 12A and 12B of the Queensland Act.
  1. [36]
    Section 10A is in a division (Division 2 of Part 2) that defines the cause of action for defamation. It 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.
  2. For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.
  3. The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.
  1. Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)—
  1. determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and
  2. make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).
  1. If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).
  1. The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following—
  1. the cost implications for the parties;
  2. the resources available to the court at the time;
  3. the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.
  1. Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.
  2. Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).” (emphasis added)
  1. [37]
    Sections 12A and 12B are in Division 1 of Part 3 of the Act. Part 3 is titled “Resolution of civil disputes without litigation”, whereas Part 4 of the Act concerns “Litigation of civil disputes”. Sections 12A and 12B provide:

“12A Concerns notices

  1. For the purpose of this Act, a notice is a concerns notice if—
  1. the notice—
  1. is in writing; and
  2. specifies the location where the matter in question can be accessed (for example, a webpage address); and
  1. 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; and
  2. 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
  3. 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
  1. 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

  1. For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings can not be used as a concerns notice.
  2. 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.
  3. 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.
  4. 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 can not be commenced without concerns notice

  1. An aggrieved person can not commence defamation proceedings unless—
  1. the person has given the proposed defendant a concerns notice in respect of the matter concerned; and
  1. the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and
  2. the applicable period for an offer to make amends has elapsed.
  1. Subsection (1)(b) does not prevent reliance on—
  1. some, but not all, of the imputations particularised in a concerns notice; or
  2. imputations that are substantially the same as those particularised in a concerns notice.
  1. 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—
  1. the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or
  2. it is just and reasonable to grant leave.
  1. 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.
  2. In this section—

limitation law means the Limitation of Actions Act 1974.”

(emphasis added)

  1. [38]
    Before its amendment in 2021, Part 3 of the Queensland Act made similar provision for the “Resolution of civil disputes without litigation”. Like the current Western Australian law, it provided for a “concerns notice”. Resolution of defamation claims without litigation was encouraged by provisions that required an offer of amends to be made within a limited time. The then s 14(1) provided that an offer of amends “can not be made if:
    1. 28 days have elapsed since a publisher was given a concerns notice by the aggrieved person; or
    2. a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.”
  1. [39]
    Section 14(2) of the unamended Act defined a “concerns notice”. It was defined as a written notice that “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”.
  1. [40]
    New sections 12A and 12B of the Queensland Act were intended to facilitate the greater use of the pre-litigation process in the hope that parties may settle their differences without the need to proceed to court.[3]
  2. [41]
    The new s 12A made some additions to the requirements of a “concerns notice” as previously defined in s 14(2). The new s 12B, as quoted above, provides that an aggrieved person cannot commence defamation proceedings unless, among other things, the person has given the proposed defendant a concerns notice in respect of the matter concerned.
  1. [42]
    I will return, in connection with the second aspect of the application, to consider s 10A(5) and the meaning of “special circumstances”. For the moment, it is sufficient to observe that the secondary materials confirm the apparent purpose of s 10A(5). They indicate that it was “aimed at encouraging the early resolution of defamation proceedings by enabling the issue to be dealt with as a threshold issue.”[4]

Does s 12B of the Queensland Act regulate the conduct of proceedings in the Supreme Court of Western Australia?

  1. [43]
    A number of authorities hold that a proceeding that is commenced in a jurisdiction in which provisions like ss 12A and 12B apply, such as Queensland, Victoria, or New South Wales, without first serving a compliant “concerns notice” and allowing the applicable period for an offer to make amends to elapse, is liable to be dismissed or struck out.[5]   Western Australia does not, however, have a provision like s 12B and therefore does not require a concerns notice to be given before a defamation proceeding is commenced.
  1. [44]
    The defendants’ application to set aside the claim and strike out the amended statement of claim due to the plaintiff’s alleged non-compliance with s 12B(1)(a) of the Queensland Act begs the question of why the provision of a Queensland law about the commencement of defamation proceedings (presumably defamation proceedings in Queensland because of the presumption against extraterritorial operation of State laws) should apply to the conduct of a defamation proceeding in another State’s courts.
  1. [45]
    Did the Queensland legislature manifest an intention that s 12B should have extraterritorial operation?
  1. [46]
    Expressed differently, does s 12B of the Queensland Act purport to regulate the commencement and conduct of proceedings in the Supreme Court of Western Australia?

The parties’ submissions about s 12B

  1. [47]
    The parties’ written submissions addressed the possible application of s 12B to the commencement of a proceeding in Western Australia in two general respects.
  1. [48]
    The first concerned what may be described as a timing issue and the plaintiff’s contention that he was able to commence a proceeding in Western Australia, the Supreme Court of Western Australia had jurisdiction, and the law of Western Australia regulated that proceeding, at least until an order was made on 5 May 2023 transferring the proceeding to this Court. Expressed in different ways, the plaintiff submits that the declaration of 8 May 2023 made pursuant to s 11(2) of the Western Australian Act that “the substantive law applicable in these proceedings is the law of Queensland” was not retrospective. The order could not fasten s 12B of the Queensland Act onto a proceeding that had been validly commenced.   The order was not a declaration as to the state of law or rights that had always existed, and it did not affect the validity of proceedings that were properly commenced in Western Australia.
  1. [49]
    The plaintiff’s second and alternative argument is that s 12B of the Queensland Act is a procedural rather than a substantive provision, and therefore does not apply to the commencement and conduct of proceedings in Western Australia.
  1. [50]
    The defendants submit in response that one substantive law was to apply to the proceeding from the time of its commencement. They submit that s 12B relates to the substantive law of Queensland in that it alters a plaintiff’s right to sue for defamation, limits the plaintiff’s cause of action to matters identified in a concerns notice, and limits (at least initially) the plaintiff to the imputations specified in that notice. According to the defendants, the declaration about the applicable substantive law means that the proceedings are, and always have been, governed by the substantive law of Queensland, including s 12B.
  1. [51]
    They submit the Court’s declaration that the substantive law of Queensland applies means that the substantive law of Queensland governs the proceedings (not part of the proceedings, or any step taken in the future in the proceedings). The declaration is said to be fatal to the maintenance of the plaintiff’s proceeding because it was not commenced in accordance with the Queensland Act.
  1. [52]
    In my view, it is not particularly helpful to frame the issue, as the plaintiff does, as one about the possible “retrospective effect of an order”. The proceeding was commenced in accordance with the law of Western Australia because the Supreme Court of Western Australia had jurisdiction and the plaintiff was not required under Western Australian law to first give a concerns notice. It is necessary for the defendants to explain how the law of Queensland operates so as to conclude that the proceeding was not validly commenced.
  1. [53]
    Therefore, before one turns to the issue of whether s 12B is a “substantive law” (within the meaning of s 11B(2) or for the purpose of choice of law) or a law about procedure, there is a fundamental question. Did the Queensland Parliament manifest an intention that s 12B should have extraterritorial operation?

The presumption against extraterritorial operation

  1. [54]
    Legislation is presumed to not apply to persons and matters outside the territory in which the legislation is enacted.[6]
  2. [55]
    The presumption that legislation does not have an extraterritorial operation should not be confused with the question of whether a State is able to legislate in relation to a thing that is outside its jurisdiction. The distinction is between the power to legislate with extraterritorial effect and whether the legislature had an intention to do so. The two different inquiries were noted by Brereton J in Ex parte Iskra, Ex parte Mercantile Transport Co Pty Ltd.[7] The latter inquiry is:

“… whether from the object or subject-matter or history of the enactment an intention so to do clearly appears so as to rebut the presumption raised by the common law cannon of construction.”[8]

  1. [56]
    The leading judgment of Leeming JA in DRJ v Commissioner of Victims Rights (No 2)[9] and the concurring reasons of Bell CJ in the same case provide an authoritative exposition on the presumption against extraterritorial operation and the task of statutory construction. A variety of language is used including the “central conception”, “central focus”, “hinge” and “central concern” of the legislation. As Leeming JA states, the Court has regard to the purpose of the statute, its subject matter and its scope. This is done “with a regard to internal indications and to avoiding improbable and absurd outcomes”.[10]
  2. [57]
    The presumption against extraterritorial operation is subject to a contrary intent. Vickers v Queensland Building and Construction Commission[11] is an example of when the presumption was rebutted by a clear contrary intention.
  1. [58]
    One manifestation of the presumption against extraterritorial operation is that references in State legislation to matters such as “proceedings”, “officers”, and “offences” are to be construed as references to such things of that State, not to any other State or the Commonwealth.[12]

Does the purpose, subject matter,text or history of s 12B of the Queensland Actmanifest an intention to rebut the presumption against extraterritoriality?

History

  1. [59]
    The defamation laws that were enacted by the States and Territories in 2005 built on existing laws governing jurisdiction, procedures and rules, including existing laws governing the commencement of proceedings and their conduct in State and Territory courts. One object of the 2005 laws was to enact provisions to promote uniform laws of defamation in Australia. However, this objective did not require or deliver uniform laws about the jurisdiction of courts or how proceedings for defamation might be commenced and conducted in accordance with rules about civil procedure. The 2005 laws addressed to a limited extent judge and jury issues and costs. They also addressed limitation periods in defamation actions.
  1. [60]
    The 2005 reforms did not contemplate that future reforms in certain jurisdictions would necessarily find favour in another jurisdiction or would not be delayed in being enacted. This is what transpired in 2021 and it is consistent with each jurisdiction deciding what its defamation law should be.
  1. [61]
    The absence of uniformity may be a matter for regret or an indication that each State and Territory makes its own defamation laws, the contents of which are not dictated by another State or a majority of other States. To take an example, if State A did not implement the serious harm element, then a person might commence a proceeding in that State without being required to plead and prove that the publication caused, or is likely to cause, serious harm to the person’s reputation. If, however, the tort of defamation had been committed in State B, so that the substantive law was the law of State B (the lex loci delicti) then the proceeding might be determined in a court in State A, provided it had jurisdiction. If State B had enacted a serious harm element as an element of the cause of action for defamation, then the plaintiff in State A would be required to prove serious harm in a proceeding.
  1. [62]
    Such a circumstance would not deprive the court in State A of jurisdiction to hear and determine the claim. Instead, it would apply the substantive law of State B to the cause of action that was being pursued.
  1. [63]
    Section 11 was enacted in 2005 to overcome the problems confronting courts in defamation cases involving multiple publications of the same matter in different states with different substantive laws.[13] Prior to uniform substantive defamation laws being enacted in 2005, a plaintiff in a single proceeding might succeed in relation to publications in Queensland and New South Wales where truth alone was not a defence, but fail in relation to publications in Victoria and other “common law states” where truth alone was a defence. The plaintiff might defeat a qualified privilege defence that applied to publications in State A and fail to defeat a qualified privilege defence that applied to the publication of the same matter in State B. Section 11 was intended to avoid these complexities by adopting a choice of law rule in defamation cases involving the multiple publication of a matter in more than one Australian jurisdiction.
  1. [64]
    Section 11(2) provides that in such a case the substantive law applicable in the jurisdiction where “the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication”.
  1. [65]
    Relevantly, s 11 would have been unnecessary if the States and Territories had envisaged that their substantive laws of defamation would always remain uniform.
  1. [66]
    A provision like s 11(2) is about a choice of law in relation to the substantive law. Neither it nor other provisions of the laws passed in 2005 purport to affect the laws of another jurisdiction about the conduct of defamation proceedings, including the courts in which proceedings may be commenced, the mode of commencing proceedings, pre-proceeding notices, pleadings, mode of trial, or evidence.
  1. [67]
    These differences between jurisdictions may be significant. For example, a plaintiff for tactical reasons may choose to file in a jurisdiction that does not have civil juries in defamation cases, or that has a no-jury rule as its default setting. Reforms to defamation laws over the last 20 years have not disturbed such a significant and non-uniform aspect of defamation litigation. Decades ago, politicians and other public figures suing media organisations took a well-worn path to the Supreme Court of the Australian Capital Territory to avoid a jury trial. These days they go to the Federal Court instead. State defamation laws do not seek to affect the commencement and conduct of defamation proceedings in other jurisdictions, leaving such matters to the determination of the legislature of each State and Territory.
  1. [68]
    The history of amendments to Australian defamation laws in recent decades shows that while there is an aspiration to achieve uniformity in substantive laws, the choice of what the substantive defamation law should be in each jurisdiction is that of its legislature. Section 11 contemplates that there may be differences in the substantive law of defamation between Australian jurisdictions.
  1. [69]
    The history is one of each State and Territory passing laws that apply only in its jurisdiction, rather than laws that purport to have extraterritorial operation.
  1. [70]
    The absence of an intent to apply substantive laws of defamation beyond their borders is manifest. So is the absence of an intent to legislate so as to apply one jurisdiction’s laws about courts and defamation procedure to another jurisdiction.
  1. [71]
    Queensland’s 2005 laws about the resolution of defamation disputes without resort to litigation, concerns notices, offers to make amends and related matters presumptively applied only to those matters in Queensland. Laws about those matters in other States and Territories were left to their legislatures.
  1. [72]
    History shows that Part 3 of the Queensland Act (resolution of civil disputes without resort to litigation), as enacted in 2005, was not intended to have an extraterritorial operation. It therefore would be surprising if amendments in 2021 to Part 3 were intended to have an extraterritorial operation.
  1. [73]
    Something would need to be apparent in the terms of the 2021 amendments, possibly confirmed by admissible extrinsic material like Explanatory Memoranda and speeches in the Parliament, to reach this conclusion.

The terms of the Queensland Act

  1. [74]
    The Act does not purport, at least not clearly, to govern the conduct of proceedings in other State and Territory Courts. Mention was made during oral argument to s 5 which states that the Act “binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States”. This provision is apt to bind the Crown in its different capacities. It is not apt to suggest that the Queensland Parliament intended that a conversation in Sydney, Perth, London, New York or Berlin is governed by the defamation law of Queensland.
  1. [75]
    The substantive law of Queensland in terms of the elements of a cause of action in defamation, defences, damages and other substantive matters may end up being applied in some circumstances by a provision like s 11(2) in another State. However, this concerns the operation of another State’s choice of law provision in applying the substantive law of Queensland, in circumstances where Queensland is the jurisdiction with which the harm occasioned by the publication as a whole has its closest connection.   It is not an instance of the Queensland Act purporting to have an extraterritorial operation.

The subject matter of the provision

  1. [76]
    Each Australian jurisdiction has its own laws governing the resolution of defamation disputes without litigation and what may or must be done before an aggrieved person commences a defamation action. The defamation laws of Western Australia contemplate the giving of a concerns notice as a process that may trigger an offer to make amends and avoid litigation.   It also contemplates an “offer to make amends” being given in the absence of a concerns notice. Western Australian law does not require a concerns notice to be given before commencing defamation proceedings.
  1. [77]
    Since 2021, Queensland law, in the form of s 12B, imposes such a requirement.
  1. [78]
    In Queensland, a failure to give a concerns notice before commencing a defamation proceeding may lead to the proceeding being dismissed or the initiating document being struck out. The Parliament of Western Australia chose not to enact a law that had such consequences.
  1. [79]
    The enactment of s 12B necessitated consequential amendments concerning the timing within which to make an offer to make amends and a slight recasting of the defence in s 18 which arises in the event there has been a failure to accept a reasonable offer to make amends. I return to those topics in later considering submissions about whether s 12B is a substantive law.
  1. [80]
    Part 3 of the Queensland Act relates to dispute resolution processes that the Queensland legislature encourages or requires before defamation cases are commenced in Queensland courts.
  1. [81]
    The subject matter of pre-litigation processes in other States and Territories is not one that one would assume the Queensland Parliament intended to regulate.

The consequences of s 12B having an extraterritorial operation

  1. [82]
    If accepted, the defendants’ contention that, upon its proper interpretation, s 12B of the Queensland Act applies to a proceeding commenced in another State, would have surprising and apparently unintended consequences.
  1. [83]
    The point of statutory interpretation does not depend on the facts of this case, where there was a relatively early consent determination in terms of s 11(2) of the jurisdiction that is “the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection”. The statutory interpretation point must be considered more generally, including cases in which the jurisdictional area with which the harm has its closest connection is uncertain or may change over time.
  1. [84]
    The harm that is occasioned by a “multiple publication”[14] may continue and increase for a variety of reasons. The matter may be re-broadcast or re-published, or there may be continuing publication as online material, such as a podcast, is downloaded.[15] The defamation may spread on the grapevine, either quickly or slowly.
  1. [85]
    The grapevine may eventually reach the community in which the plaintiff has moved to live and work and thereupon do great harm to his or her reputation in that jurisdiction. The harm may be such that this is the jurisdiction with which the harm occasioned by the publication has its closest connection.
  1. [86]
    A publication that has a limited initial circulation in State A, but a large initial circulation in State B, may mean that State B is the relevant jurisdiction at one time for s 11(2) purposes. However, if its circulation in State A then vastly increases, State A may become the relevant jurisdiction for s 11(2) choice of law purposes. One might take, for example, a person who is defamed in a television drama like the original Underbelly television series that was initially viewed by few people in Victoria due to an injunction on it being broadcast in that State and by large audiences in other States.   There might be other reasons as to why a broadcast in one State is delayed. At an initial stage, New South Wales might be the relevant jurisdiction for s 11(2) purposes. However, after the program is broadcast in Victora, being the State in which the plaintiff lives and works, Victoria becomes the jurisdiction with which the harm occasioned by the multiple publication has its closest connection.
  1. [87]
    In a more common case, it is possible to imagine circumstances in which a plaintiff commences a defamation proceeding in Western Australia where the publication has occasioned significant harm, and the plaintiff also suffers harm in many other States, including Queensland. A number of States, including Western Australia, may be the jurisdiction with which the harm has its closest connection. Which one has the closest connection may remain uncertain. If the matter proceeded to trial in Western Australia and the Court found that Queensland was the relevant jurisdiction for s 11(2) purposes, then, on the defendants’ argument, the proceeding would need to be dismissed by the Western Australian Court at trial because of non-compliance with s 12B of the Queensland Act in connection with the commencement of the proceeding some years earlier. Time and costs would be wasted.
  1. [88]
    The same adverse consequences would apply in a proceeding that was well-advanced and close to trial by the time it became evident that Queensland was the relevant jurisdiction for s 11(2) purposes. By then, the plaintiff probably would be out of time to commence a fresh proceeding in Queensland. The plaintiff’s claim might be a meritorious or even overwhelming one.
  1. [89]
    In my view, it is unlikely that the Queensland Parliament would have intended those kind of serious consequences for a proceeding in another State’s courts when it enacted ss 12A and 12B in 2021. It seems more likely that it did not intend those sections to have an extraterritorial operation.

Did the Queensland Parliament in enacting s 12B intend to rebut the presumption against the extraterritorial operation of its laws?

  1. [90]
    What in the terms, context, or purpose of s 12B of the Queensland Act discloses an intent to rebut the presumption against the extraterritorial application of State laws? Why should s 12B be interpreted as if the Queensland Parliament intended to regulate the conduct, including pre-proceeding notice requirements, of proceedings in another Australian jurisdiction? In my view, there is an insufficient basis to conclude that it intended to rebut the presumption in relation to s 12B. To reach the opposite conclusion would be to conclude that the Queensland legislature intended to force on a State like Western Australia its own view about the rules that should apply to the resolution of civil proceedings without litigation and the pre-conditions to commencing a defamation action.  This seems unlikely.
  1. [91]
    The enactment in 2005 of the choice of law provisions in s 11(2) does not disclose an intention that a later enacted provision such as s 12B should regulate the conduct of defamation litigation in other State Courts. Section 11(2) dictates how courts in Queensland should address a choice of law issue in a case involving multiple publications in more than one jurisdiction.
  1. [92]
    The enactment of s 12B does not manifest an intention that it should have an extraterritorial operation. The Queensland Parliament may have hoped that Western Australia, like many other Australian jurisdictions, would adopt a provision like s 12B. One should not readily conclude that it gave up hope and intended, instead, to purport to dictate how proceedings in the Supreme Court of Western Australia should be commenced and conducted. Having regard to the history, the subject matter and terms of the legislation, I decline to reach that conclusion.
  1. [93]
    The Queensland Act does not purport to govern the jurisdiction of the courts of other States and the Territories or the conduct of proceedings in those courts. The presumption against extraterritorial operation of a State Act applies to such matters.
  1. [94]
    Applying that presumption, when s 12B(1) refers to “defamation proceedings” it refers to defamation proceedings in Queensland, not defamation proceedings in another jurisdiction.
  1. [95]
    In summary, the Queensland Parliament in 2005 and in 2021 did not manifest an intention to regulate the conduct of defamation litigation in other States’ Courts, including regulating when notices should be given before a proceeding is commenced.

Conclusion on the first issue

  1. [96]
    Consistently with the laws governing the commencement and conduct of proceedings in the Supreme Court of Western Australia, the plaintiff was able to commence proceedings without first giving a concerns notice. Western Australian law did not require him to do so. The jurisdiction of the Supreme Court of Western Australia was engaged.
  1. [97]
    The terms of s 12B of the Queensland Act refer to “defamation proceedings”. As a matter of statutory construction and in accordance with the provisions of the Acts Interpretation Act, the reference is to a proceeding in Queensland, not a proceeding in some other part of Australia or another part of the world.
  1. [98]
    The Western Australian Act and other Western Australian laws, rather than s 12B of the Queensland Act, governed the commencement and conduct of the proceeding in the Supreme Court of Western Australia. Section 12B of the Queensland Act therefore did not have the effect for which the defendants contend. It does not apply so as to mean that the Western Australian proceedings were commenced in breach of s 12B of the Queensland Act.
  1. [99]
    Prior to the order transferring the proceeding to this Court, the proceeding was within the jurisdiction of the Supreme Court of Western Australia and was regulated by Western Australian law in relation to its commencement and conduct. Had the plaintiff’s proceeding remained in Western Australia, for example, because there was no application to cross-vest it, then following the consent determination pursuant to s 11(2) of the Western Australian Act, the Supreme Court of Western Australia would have applied the substantive law of Queensland to determine each cause of action for defamation based on the publication complained of, including the substantive law of Queensland that requires a plaintiff to prove the element of substantial harm.
  1. [100]
    Instead, the proceeding having been transferred to this Court pursuant to the cross-vesting order, Queensland law now applies to the conduct of the litigation.
  1. [101]
    For example, on 29 April 2024 I ordered the plaintiff to provide particulars of what was simply pleaded as “the reputation of the plaintiff” prior to the publication of the podcast.[16] I did so in accordance with Queensland rules governing pleadings and particulars and the efficient conduct of civil litigation in accordance with the Uniform Civil Procedure Rules 1999 (Qld) and irrespective of what pleading practice may apply in Western Australia. Because of the consent declaration made by the Supreme Court of Western Australia in the proceeding, this Court will also apply the substantive law of Queensland in determining whether the plaintiff has a cause of action for defamation based on the multiple publication of the podcast throughout Australia.

Is s 12B a substantive or procedural provision?

  1. [102]
    My conclusion that s 12B of the Queensland Act does not apply, as a matter of statutory interpretation, to proceedings that were commenced in the Supreme Court of Western Australia, is sufficient to dispose of the first part of the defendants’ application. However, for completeness and because I had the benefit of extensive argument, I will address the second question as to whether s 12B should be characterised as a substantive, rather than a procedural provision.
  1. [103]
    The plaintiff submits that s 12B is a procedural provision. This is because it concerns, in the words of Mason CJ in McKain v R W Miller & Co (South Australia) Pty Ltd,[17] a rule that is directed to “governing or regulating the mode or conduct of court proceedings”.
  1. [104]
    The defendants submit that s 12B is a substantive provision in that it alters a plaintiff’s right to sue for defamation and limits the plaintiff’s cause of action to matters identified in a concerns notice, and limits (at least initially) the plaintiff to the imputations specified in that concerns notice.
  1. [105]
    The issue is one of characterisation. Neither the Queensland Act nor any other Queensland legislation purports to declare which provisions of the Queensland Act are substantive, and which are therefore procedural for the purposes of choice of law or for any other purpose (such as the presumption against retrospectivity). For example, s 11(2) does not define what is meant to be “the substantive law” that must be applied “to determine each cause of action for defamation” based on a multiple publication. Therefore, the issue is resolved by common law rules.
  1. [106]
    The leading authority is John Pfeiffer Pty Ltd v Rogerson.[18] The High Court in Pfeiffer observed that the application of the principles stated in that case would require further elucidation.[19] Further elucidation was provided for present purposes by the decision of the New South Wales Court of Appeal in Hamilton v Merck And Co Inc,[20] which considered the principles and relevant authorities, including two decisions of the Queensland Court of Appeal about notice requirements.
  1. [107]
    The plaintiff derives considerable support from Hamilton for the proposition that a requirement to give notice before commencing a proceeding in the context of a scheme that seeks to resolve claims without litigation is procedural. Such a provision governs or regulates “the mode or conduct of court proceedings” and is part of the “mechanism or machinery of litigation”.[21]
  2. [108]
    The formulation put forward by Mason CJ in McKain that “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural was adopted in the joint judgment in Pfeiffer.[22]
  1. [109]
    Hamilton concerned the provisions of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) which provided:
  1. (in s 9) that before starting a proceeding in a court based on a claim “a claimant must give written notice of the claim, in the approved form”; and
  2. (in s 36) that before starting a proceeding in a court based on a claim, there “must be a conference of the parties (the ‘compulsory conference’)”.
  1. [110]
    Spigelman CJ (with whom Tobias JA agreed) analysed the relevant provisions and principles before concluding that the relevant PIPA provisions were clearly designed “to encourage the earliest possible settlement of disputes before the institution of legal proceedings”.[23]   The relevant provisions in Division 1 of Part 1 of Chapter 2 of PIPA were concerned with “pre-court procedures”. They concerned the regulation of the mode or conduct of court proceedings and constituted part of the mechanism or machinery of litigation. Spigelman CJ added that the scheme for compulsory conferences under Division 4 had the same character. Therefore, they were procedural provisions according to the formulation adopted by Mason CJ in McKain and approved in Pfeiffer. The Chief Justice added that the provisions, in their context, did not affect “enforceability” in the sense that term was used in Pfeiffer.[24]
  2. [111]
    Handley JA (with whom Tobias JA agreed) also concluded that the provisions were procedural. According to Handley JA, the relevant provisions of PIPA “do not prevent a cause of action in tort accruing as soon as damage is suffered, and time running from that date”.[25] Therefore, “the relevant provisions are procedural because they appoint or regulate ‘the manner in which [those rights] are to be enforced or their enjoyment is to be secured by judicial remedy’”.[26] This was so despite the fact that the proceedings “cannot be commenced until they have been complied with”.[27]
  3. [112]
    Hamilton concerned a different statutory scheme to Division 1 of Part 3 of the Defamation Act 2005 (Qld). Attention is therefore required to its terms. Still, the relevance of Hamilton is not simply by way of analogy with a statutory scheme that seeks to resolve claims before proceedings are commenced and prohibits the commencement of a proceeding until a certain notice has been given. Its relevance lies in its elucidation of what is meant by a provision or provisions that are “directed to governing or regulating the mode or conduct of court proceedings” and the sense in which “enforceability” was used in the joint judgment in Pfeiffer.

John Pfeiffer Pty Ltd v Rogerson

  1. [113]
    Before turning to the judgments in Pfeiffer, I note the observation of Handley JA in Hamilton about the need to not decide cases of this kind “on a literal interpretation of [the] statement of principle [in Pfeiffer] as if it were a statutory formula”.[28]
  1. [114]
    The joint judgment in Pfeiffer observed that it is very hard, if not impossible, to identify some unifying principle which assists in making the distinction between substantive law and procedural law in a particular case.[29] One guiding principle is that:[30]

“… 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 with 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.”

  1. [115]
    Kirby J, drawing on Canadian authorities, stated that procedure concerns rules that “will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties”.[31]
  2. [116]
    Callinan J stated:[32]

“[W]hat should be regarded as procedural are the laws and regulations which are reasonable and necessary, in the lexi fori for the conduct of the action only; that is to say the law and rules relating to procedures such as the initiation, preparation and the prosecution of the case, the recovery processes following judgment and the rules of evidence.”

(emphasis added)

  1. [117]
    The statement of Mason CJ in McKain, endorsed by the joint judgment in Pfeiffer, that “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural should not be read too literally. Otherwise, a pre-proceeding notice requirement of the kind considered in Hamilton (and that is required by s 12B of the Queensland Act), would never be procedural because it applies at the pre-proceeding stage. Instead, as Hamilton illustrates, such a requirement, which seeks to resolve claims through settlement before proceedings are commenced by prohibiting the commencement of proceedings until a notice has been given, may be said to regulate the mode or conduct of court proceedings and constitute part of the mechanism or machinery for litigating proceedings.
  1. [118]
    Such a notice provision differs from a limitation period provision (whether one that bans the remedy or extinguishes the right) which Pfeiffer held to be substantive.

The application of Pfeiffer to notice before action provisions

  1. [119]
    The learned authors of Private International Law in Australia distil the position in relation to notice before action provisions as follows:[33]

“A statutory provision that requires a claimant to give notice to the other party before commencing proceedings is best classified as procedural, since it is a means to expedite the resolution of claims. A substantive classification should, however, be adopted where the consequence of non-compliance with a notice provision would result in the extinguishment of the plaintiff’s claim.”

  1. [120]
    The fact that a provision states that a proceeding “must not be commenced” before a certain step is taken cannot itself determine that the provision is substantive rather than procedural. Otherwise, every notice requirement would be substantive:   a result inconsistent with Hamilton and not one for which the defendants contend.
  1. [121]
    The task is one of characterisation of the particular provision in the context of a statutory scheme. The essential issue is whether it is a provision that affects the mode or conduct of proceedings taken to enforce a right. If it is, the provision is procedural. Such a provision differs from the provisions of a statutory scheme that is intended to wholly replace a common law cause of action, or, alternatively, schemes that create a brand new cause of action that have not been recognised at common law.[34]

Hamilton v Merck And Co Inc

  1. [122]
    In Hamilton, Spigelman CJ explained the meaning of “enforceability” in the sense used by the joint judgment in Pfeiffer. The notice provision was not concerned with a new right of action created by statute. It was unlike a limitation provision that “bars the remedy” at a certain time after which the right is not enforceable. The PIPA provisions were said to correspond to the category referred to by Dixon J in Maxwell v Murphy,[35] a case about the procedural/substantive distinction with respect to retrospectivity. Dixon J referred to “rights … which have an existence and a purpose although the remedy be suspended or wanting”. Spigelman CJ stated that such a provision may not fall within the scope of matter affecting “enforceability” as that word is used in Pfeiffer.[36] He continued:[37]

“The formulation found in each of s 9 and s 36, requiring that steps be taken ‘before starting a proceeding in a court’, is capable of constituting a condition precedent that can be characterised as substantive. 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.”

  1. [123]
    The Chief Justice surveyed legislation in New South Wales and Queensland that contained provisions prohibiting the commencement of proceedings. They included Kinzett v McCourt,[38] in which it was observed that the use of the words “no action shall be commenced” was suggestive in that case of a procedural requirement rather than an essential pre-condition.[39] Kinzett relied on Harding v Lithgow Municipal Council,[40] in which Dixon J considered a notice before action provision that was said to do no more than impose a condition upon the assertion or enforcement of a right by judicial process. Such a condition “is a procedural matter not going to the validity of the title to enforce the liability, but only to the mode of enforcing it, or the fulfillment of a preliminary procedural condition”.[41]
  1. [124]
    The judgment of Spigelman CJ also considered and followed two decisions of the Queensland Court of Appeal concerning notice provisions in statutes governing proceedings for damages for personal injury. The first was Johnson v Hill,[42] which concerned the notice requirements of the Motor Accident Insurance Act 1994 (Qld) that were similar to certain provisions of PIPA. Davies JA (with whom McMurdo P and Douglas J agreed) concluded that the relevant provision that required a notice to be given before bringing an action “is a provision with respect to the mode of enforcement of the cause of action or to the fulfillment of a preliminary procedural condition rather than to the validity of the title to enforce it”.[43]
  2. [125]
    The second Queensland authority considered was Young v Keong,[44] in which the court had to consider the characterisation of the same notice requirement of the Motor Accident Insurance Act. McPherson JA stated that the underlying policy of such provisions is “broadly stated, to force the claimant toward negotiating a settlement of the claim before bringing an action ‘in a court’ for those damages”. The object was to encourage the speedy resolution of such claims and the principal purpose or effect of those provisions was said to be “procedural or forensic”.[45] Williams J (as Williams JA then was) likewise concluded that it was “clear that the Queensland legislation requiring the giving of notice before action is a procedural requirement and therefore governed exclusively by the laws of the forum”.[46]
  3. [126]
    In Hamilton, Spigelman CJ rejected a submission that Part 1 of PIPA affected enforceability and, accordingly, constituted a matter of substance. His Honour concluded that its provisions as a whole and the scheme of Division 1 of Part 1 in particular, could not be characterised as either creating a new right or substituting a legislative scheme for common law rights.[47]
  4. [127]
    PIPA had modified the common law in a number of respects, both procedural and substantive, but did not substitute a new regime. The particular provisions under consideration in Hamilton were, as noted, “clearly designed to encourage the earliest possible settlement of disputes prior to the institution of legal proceedings”.[48] The provisions of PIPA in general covered a wide range. Some of them would be clearly classified as substantive for the purposes of choice of law disputes and others would equally clearly be classified as procedural. All of them were individually significant, as was their cumulative effect. However, Spigelman CJ observed that “significance” is not the sole touchstone of whether a particular statutory requirement can be classified as part of the substantive law. Procedural matters are capable of having a significant effect.[49]
  1. [128]
    The Chief Justice went on to consider certain provisions in PIPA that allowed legal proceedings to continue where there had been a failure to comply with a requirement. These included if the respondent either stated that the claimant satisfied a notice requirement or was presumed (after a prescribed period had passed) to be satisfied that such a notice had been given. A respondent might waive compliance with the requirement for a notice. The court had power to declare that a claimant had remedied any non-compliance. It also had a general discretion to authorise the claimant to proceed despite non-compliance. A court might order a party who had failed to comply to take such action to remedy the default within a specified time. Also, it might order a stay in situations in which a claimant had commenced proceedings without having first complied with Part 1.
  1. [129]
    The discretion to grant leave to proceed in certain circumstances was “not equivalent to the power to extend time in a limitation act”.[50] This was a point of distinction with the position in Pfeiffer which rejected an argument that the effect of a power to extend limitation periods led to the conclusion that a limitation provision should be regarded as a matter of procedure.
  1. [130]
    The provisions to which Spigelman CJ pointed also supported the proposition in the context of the relevant provisions of PIPA that, as a matter of statutory interpretation, a proceeding that was commenced despite the provision of a compliant notice was not necessarily a nullity. Doubt already had been expressed about certain earlier authorities that had ruled that when a notice of claim had not been given, the proceedings are a nullity. The better view is that they are not.[51]
  2. [131]
    On the issue of characterisation, following authorities that included Johnson v Hill and Young v Keong, and applying the principles in Pfeiffer, Spigelman CJ concluded the relevant provisions of PIPA were procedural. They were designed to encourage early settlement prior to the institution of legal proceedings. They were not part of a legislative scheme that created a new right or entirely substituted a legislative scheme for pre-existing common law rights. The notice provision in Division 1 concerned the “regulation of the mode or conduct of court proceedings” and constituted part of the “mechanism or machinery of litigation”.[52]
  3. [132]
    Handley JA reached the same conclusion. The relevant provisions were procedural because they appointed or regulated the manner in which rights and liabilities fixed by reference to past facts, matters or events were to be enforced, or their enjoyment was to be secured by judicial remedy.[53]

Hamilton and its implication

  1. [133]
    The judgments in Hamilton support the conclusion that s 12B concerns the regulation of the mode or conduct of court proceedings and is therefore procedural. The judgment of Spigelman CJ, in addition, supports the conclusion that the provisions do not affect “enforceability” in the sense that term was used in Pfeiffer.
  1. [134]
    The term “enforceability” in the sense it was used in Pfeiffer requires consideration of the scheme of the legislation, or more precisely the purpose of the particular provision or provisions under consideration. The relevant notice provision in Hamilton (like s 12B of the Queensland Defamation Act) was in a part of the statute that was designed to encourage the earliest possible settlement of disputes prior to the commencement of legal proceedings.
  1. [135]
    The existence of a statutory prohibition on “commencing a proceeding” unless a notice has been given may be capable in some statutory contexts of constituting a substantive provision.   Whether it does or not depends on the nature and terms of the legislative scheme. The notice provision in s 12B (like the notice provision considered in Hamilton) is not part of a scheme that creates a new right. It regulates the enforcement of a pre-existing common law right.
  1. [136]
    At a certain level, any procedural provision that regulates the commencement or conduct of court proceedings may be said to condition or affect the enforceability of the rights or duties of the parties.   However, Pfeiffer does not state that such an effect on the mode of enforcing rights makes such a provision substantive. On the contrary, provisions that are directed to governing or regulating the mode or conduct of court proceedings are procedural.
  1. [137]
    The judgment of Spigelman CJ in Hamilton also signals the need for caution in concluding that a provision that has a significant effect on the outcome of litigation should be classified as part of the substantive law for the purpose of a choice of law dispute. Many procedural matters are capable of having a significant effect on outcome. Provisions governing pleadings and disclosure and laws of evidence are examples. A provision that a proceeding may not be commenced or may not be continued unless and until the parties participate in a mediation would be another example. Under such a rule, a failure to engage in a mediation may have significant effects on the enforceability of rights, particularly if the proceeding is stayed due to a failure to comply with the requirement. Such a provision would, however, probably be characterised as a procedural one governing the mode or conduct of court proceedings and as constituting part of the machinery of litigation.
  1. [138]
    Hamilton should not be taken too far. I do not treat it as authority for the proposition that only legislation that creates a new right or which entirely substitutes a legislative scheme is substantive in nature, or that any provision that modifies the enforcement of a common law right is procedural. The task in each case is one of characterisation in a particular statutory context. Hamilton does, however, provide the closely analogous context of a pre-proceeding notice provision in a part of a statute that seeks to encourage the settlement of pre-existing rights before the commencement of litigation.

Are there grounds to distinguish Hamilton?

  1. [139]
    The defendants seek to distinguish Hamilton and some of the authorities upon which it relied, such as Harding v Lithgow Municipal Council, on the basis that the provisions in those cases gave the court a power to forgive non-compliance, whereas there is no similar provision to dispense with compliance with s 12B.
  1. [140]
    I am not persuaded that this is a compelling point of distinction. The existence of a discretion to grant leave to proceed notwithstanding non-compliance with a notice provision did not form part of the reasoning of Handley JA (with whom Tobias JA agreed). That feature was not essential to the conclusion reached by Spigelman CJ. The Chief Justice found the possibility that a proceeding might continue notwithstanding a failure to comply with a notice provision was different to the power to extend the limitation period in the Limitation of Actions Act. In addition, the provisions noted by Spigelman CJ suggested that, as a matter of statutory interpretation, the requirement of notice and the requirement for a compulsory conference were not an essential pre-condition to the validity of proceedings. On this basis, and contrary to earlier authorities, the provisions were not substantive but were procedural.
  1. [141]
    I am not persuaded that a statutory provision that prohibits the commencement of a proceeding unless a compliant notice has been given, and which also contains provisions permitting a court to address a case of non-compliance, is materially different for present purposes from one that simply prohibits the commencement of a proceeding unless there has been a notice.   The substance of the prohibition in both cases is the same. Unless and until there is a dispensation with compliance, the prohibition has the same effect.
  1. [142]
    The fact that the Queensland Act does not confer a general power for the court to excuse non-compliance with s 12B[54] is not, in my view, a sufficient basis to distinguish Hamilton. It is unnecessary to decide whether, for example, a defendant may waive or be taken to have waived compliance with s 12B. Similarly, it is unnecessary to decide whether a proceeding that is commenced without compliance with s 12B is a nullity. In some statutory contexts, a failure to comply with a procedural condition will invalidate the proceeding. The proceeding will be a nullity.   In other circumstances, failure to comply with a procedural provision will be an irregularity that may be waived. The issue is one of statutory interpretation and is not resolved by characterising the provision as mandatory or directory. The fact that the Defamation Act does not regulate when compliance s 12B(1) is taken to be waived does not preclude the conclusion that a defendant might waive non-compliance with s 12B. The present issue is not whether a proceeding commenced without complying with s 12B is a nullity, although Hamilton would suggest that it is not.
  1. [143]
    The present issue is whether s 12B is a substantive law or a procedural law for the purposes of a choice of law dispute. The absence of an express provision by which the court may dispense with compliance with s 12B is not a basis upon which to distinguish Hamilton.
  1. [144]
    The next basis upon which the defendants seek to distinguish Hamilton and contend that s 12B is a substantive law is that failure to provide a compliant notice has implications for a discreet statutory defence in relation to an offer to make amends.
  1. [145]
    The enactment of ss 12A and 12B prompted consequential amendments to the applicable period after which an offer to make amends cannot be made (s 14) and the wording of s 18 concerning the effect of a failure to accept a reasonable offer to make amends. Prior to the 2021 amendments, s 14 provided that an offer to make amends could not be made if:
  1. 28 days had lapsed since the publisher was given a concerns notice; or
  2. a defence had been served.
  1. [146]
    The enactment of ss 12A and 12B prompted an amendment to s 14 about the applicable period after which an offer to make amends cannot be made. The “applicable period” is either a period of 14 days since the publisher is given a further particulars notice about a concerns notice or, in any other case, 28 days “since the publisher was given a concerns notice by the aggrieved person”. It remains the case that an offer to make amends cannot be made if a defence has been served. The difference is that, as a result of the amendments, an offer to make amends cannot be made if the “applicable period” as defined in s 14(2) has expired.
  1. [147]
    Incidentally, this does not prevent a publisher from making “an offer to make amends” in a case in which a concerns notice has not been given. In such a case there is no “applicable period”.
  1. [148]
    Prior to its amendment, when there was no requirement to give a concerns notice, s 18 formulated the “failure to accept reasonable offer to make amends” defence by reference to a different state of affairs. The first element of the defence in s 18(1)(a) was that “the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory”.
  1. [149]
    The introduction of a compulsory concerns notice before commencing proceedings led to a consequential amendment to s 18. Section 18(1) provides that if an offer to make amends is made but is not accepted, it is a defence in relation to the matter if, among other things, 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)”.[55]
  2. [150]
    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.
  1. [151]
    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 s 18 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 s 18 defence. It was content to not be given a concerns notice.
  1. [152]
    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 s 18 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.
  1. [153]
    In summary, the consequential amendment to s 18 is insufficient to transform the procedural character of s 12B.
  1. [154]
    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.[56] 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.
  1. [155]
    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.

Conclusion on the characterisation of s 12B

  1. [156]
    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.
  1. [157]
    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.
  1. [158]
    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.
  1. [159]
    I respectfully follow the approach in Hamilton in characterising a similar notice before action provision in the present statutory context.
  1. [160]
    I conclude that s 12B is properly characterised as a procedural provision.

Are there “special circumstances” to postpone determining the serious harm issue?

  1. [161]
    The question of whether the serious harm element of the cause of action is established is a matter for a judge and not a jury to determine.[57] A judge may make any orders the judge considers appropriate about determining that issue, including dismissing the proceedings if satisfied the element is not established.[58]
  2. [162]
    If, as here, a party applies for the serious harm element to be determined before the trial commences, the judge is to determine the issue as soon as practicable before the trial commences “unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial)”.[59]
  3. [163]
    The words “special circumstances” in s 10A(5) mean what they say.[60] The section reflects a legislative policy that the serious harm issue normally will be determined before the trial.[61]
  4. [164]
    Therefore, s 10A(5) displaces the position that normally applies in deciding whether to order the separate trial of an issue in advance of other issues under a provision like r 483 of the Uniform Civil Procedure Rules 1999.[62] Section 10A(6) states that the matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of s 10A(6) include (but are not limited to) the following:
    1. the cost implications for the parties;
    2. the resources available to the court at the time; and
    3. the extent to which establishing the serious harm element is “linked to other issues for determination during the trial of the proceedings”.
  1. [165]
    As to (c), the fact that the nature and extent of the plaintiff’s reputation and the extent of injury to it will be an issue at trial concerning the quantum of any damages awarded would rarely constitute “special circumstances” in a case in which liability is an issue because of substantive defences. Damages are an issue in most defamation proceedings in which liability is contested and sometimes entail issues concerning the aggravation of damages due to the conduct of the trial by the defendants. Therefore, the fact that the serious harm element of the cause of action may be “linked” to the assessment of quantum in the event of success on liability is unlikely to constitute “special circumstances” in a case such as this.

The anticipated special harm hearing

  1. [166]
    The defendants submit, and the plaintiff does not contest, that if the matter proceeds to trial, having regard to the defences that will be advanced, including truth/justification, it is likely that the trial will occupy in excess of six weeks’ hearing time.
  1. [167]
    By contrast, the separate hearing of the serious harm issue is expected to take two to three days. The defendants will seek to tender documentary evidence of the criminal proceedings, the coronial proceeding, and the publicity surrounding them as set out in the affidavits that already have been filed by it in support of this application. The defendants anticipate, having regard to the plaintiff’s particulars of serious harm, that the only evidence that would be tendered by the plaintiff will be a transcript of the podcast and evidence to establish the extent of its publication. The possibility exists of reputation witnesses being called by the plaintiff. However, the plaintiff accepts that the hearing is likely to take three days or less.
  1. [168]
    The hearing of the serious harm element will entail consideration of legal issues, including:
    1. the “rule in Dingle’s case”;[63]
    2. the application of that rule to the determination of “serious harm”;[64]
    3. whether the rule applies to “quasi judicial” findings;[65]
    4. the admissibility of evidence of the reporting of the Coroner’s finding as evidence of bad reputation prior to and at the time of the thirteenth episode of the podcast;[66] and
    5. the admissibility of evidence of the criminal proceedings against the plaintiff and the coronial proceedings and reporting of them as “directly relevant background material” to the publication of the podcast.[67]
  1. [169]
    While I have had the benefit of submissions and an abundance of authorities on these points, it is unnecessary to explore them in this judgment. The parties do not invite me to decide them on this application which is about the timing of the determination of the serious harm issue.

Has the plaintiff demonstrated “special circumstances”?

  1. [170]
    The plaintiff points out that a number of the issues that I have just noted have yet to be fully argued in an Australian court in the context of the serious harm element. He emphasises the complexity of determining the serious harm issue when “the majority of time will be devoted to the determination of the admissibility questions which are yet to be finally decided in Australia”. His submissions note that any one of the points may become a topic for appeal. They also compare the plaintiff’s resources to those of a media organisation like the first defendant that has the resources to pursue an issue on appeal. In that context, they remind me that Fairfax Media Publications Pty Ltd v Voller[68] started as a separate determination of a discrete issue.
  1. [171]
    The defendants respond that these matters, alone or in combination, do not constitute “special circumstances” that justify postponing the determination of the separate harm issue until the trial.
  1. [172]
    I agree.
  1. [173]
    The complexity of the legal issues, including questions of admissibility, will not be reduced by the time of any trial. The admissibility of evidence that is said to be relevant to the serious harm issue is best determined at the separate hearing of that issue rather than at a trial of all issues where the evidence may be relevant to other issues.
  1. [174]
    In my view, the legal issues that I have identified and questions of admissibility of evidence in determining serious harm should not be postponed to a later stage of the proceedings, and should not be postponed for determination during the trial. The issues will not be any less complex at a later stage, and their agitation during a trial is likely to complicate rather than simplify matters.
  1. [175]
    More generally, postponing the determination of the serious harm issue until trial is an unattractive course in terms of costs and convenience.   By the time of the trial, the parties will have incurred substantial financial and emotional costs in preparing for a trial that is expected to last several weeks.
  1. [176]
    If the separate harm issue is determined in accordance with the default position under s 10A(5) and is determined in the defendants’ favour (and that determination is confirmed on any appeal), then there will be substantial savings of costs and time in avoiding the costs of a long trial on all issues. If, on the other hand, the substantial harm issue is determined in the plaintiff’s favour (and that determination is confirmed on any appeal), then there will be one less issue (and an admittedly complex one) for the trial judge to deal with at the start of the trial or in the course of a demanding trial.
  1. [177]
    If the serious harm determination, one way or the other, is reversed on appeal, the parties will also have the benefit of an early determination about an essential element of the cause of action in defamation. If that determination is in the plaintiff’s favour, there will be one less issue at trial.
  1. [178]
    The inequality of arms between the plaintiff and the first defendant was something that the plaintiff must have appreciated when he threatened to sue it and when he commenced this proceeding. Before the proceeding was filed, the solicitors for the defendants signalled that any proceeding would be defended, including by reliance upon substantive defences.   The plaintiff must have known that he would face a long and expensive trial. He consented to a choice of law determination that means that he must prove the serious harm element in order to establish his cause of action.
  1. [179]
    The plaintiff has not shown that there would be efficiencies in determining the serious harm issue at trial, along with all other issues, such as a reduction in the estimated time of two to three days to hear evidence and argument about the serious harm issue. Therefore, postponing the issue will not seemingly achieve any significant cost saving for a plaintiff who has fewer resources than a media defendant.
  1. [180]
    The inequality of resources is something of a two-way street. If the defendants succeed on the serious harm issue, but the determination of that issue is postponed to the trial of all issues, then the defendants will presumably be awarded all or a substantial part of the costs of the proceedings, which by then will be the costs of preparing and conducting a trial that is expected to last several weeks. If, at that stage, the plaintiff lacks the resources to pay his own legal expenses associated with a trial of all issues and whatever costs he is ordered to pay the defendants, the defendants’ success at the trial on the serious harm issue will be a hollow victory. Any costs order in its favour is likely to prove empty.
  1. [181]
    Also, there is the possibility (and I put it no higher than that having not heard full argument on the serious harm issue) that the defendants will halt the proceeding after a determination of the serious harm issue in their favour. In that event, not postponing the determination of the serious harm issue will save witnesses from having to give evidence about the death of Shandee Blackburn, including the violent circumstances under which she was killed. The possibility of relieving the many witnesses who might be expected to give evidence at a trial of the distress and inconvenience of giving evidence is a factor that supports maintaining the default position.
  1. [182]
    While the possibility of more than one appeal in a proceeding (with potential delays in the listing of the trial) is a factor that is often taken into account in deciding whether to order a separate trial in the context of provisions like r 483, it is not always decisive in such a setting.   There may be utility, and it may be in the interests of justice, in that different statutory or rule-base setting in having an issue, particularly a legal issue involving limited evidence, determined at an early stage, even at the risk of there being more than one appeal.
  1. [183]
    The present statutory context is, however, different.[69] The default position under s 10A(5) is for the separate and early determination of the serious harm issue. The court must be satisfied that there are special circumstances before it displaces that position. That may be contrasted with the usual position in civil proceedings of having all issues determined at trial, unless a case is made out for the separate and prior determination of a defined issue.
  1. [184]
    The position stated in s 10A(5) has been enacted in circumstances in which the legislature must be taken to have into account the possibility of an appeal from such a determination, particularly if the determination results in a proceeding being dismissed because the serious harm issue is not established.
  1. [185]
    Further, the trial of other liability issues and quantum in this matter is not imminent. A trial lasting several weeks will be listed when those issues are ready for trial. Provisional trial dates may be allocated for that purpose. The early determination of the serious harm issue will not necessarily delay the trial of other issues, even taking into account the possibility of an appeal in relation to that determination.
  1. [186]
    Voller was a different case, but the question of law that was determined in the plaintiff’s favour in that case, and upheld on appeal, provided the foundation for him to settle his claims against various media organisations without a trial.
  1. [187]
    The possibility that the serious harm determination in this matter will be the subject of an appeal, irrespective of its outcome, is a fact that cannot be avoided.
  1. [188]
    I turn to consider the matters mentioned in s 10A(6).
  1. [189]
    The cost implications for the parties favour the default position under s 10A(5). The parties will face the costs of litigating the serious harm issue sooner or later.
  1. [190]
    The court presently has the resources to hear the serious harm issue and has made arrangements for it to be listed for a hearing commencing on 29 July 2024 before me. This course avoids the resource implications of “double-handling” of the serious harm issue by another judge who has not had the benefit of the introduction to the factual and legal issues that I have had in hearing the present application.
  1. [191]
    I do not anticipate being asked to make credit findings about the evidence of any witness at the hearing of the separate harm issue. In any event, I do not expect to be the trial judge.
  1. [192]
    As in many cases in which serious harm arises as an issue, that issue may be said to be “linked” to the issue of damages. This is not a case, however, in which the only substantial issues are serious harm and the quantum of damages, and where there would be a basis to achieve efficiencies and cost savings in having a single trial in which evidence about reputation and evidence about harm to reputation are considered.
  1. [193]
    The serious harm issue is not linked to the substantive defences that will arise for determination at a lengthy trial.
  1. [194]
    Therefore, the matters referred to in s 10A(6) do not support postponing the determination of the separate harm issue.
  1. [195]
    Directing that the serious harm issue be determined as soon as practicable will enable any trial of other liability issues to focus on the substantive defences upon which the defendants intend to rely.
  1. [196]
    Overall, the plaintiff has not satisfied me that there are special circumstances justifying the postponement of the determination of the separate harm issue to a later stage of the proceedings, and in particular, to postpone it for determination during the trial.
  1. [197]
    The parties have indicated the availability of their counsel to appear at a serious harm hearing commencing on 29 July 2024. I will grant the order sought in paragraph 3 of the amended originating application and make agreed directions for the preparation of the hearing of the separate harm issue.

Disposition of the application and preliminary view on costs

  1. [198]
    I propose to:
    1. dismiss paragraphs 1 and 2 of the defendants’ amended originating application;
    2. grant paragraph 3 of that application; and
    3. make directions to facilitate the determination of the separate harm issue.
  1. [199]
    As to costs, the parties have had mixed success on the application. The plaintiff succeeded in resisting the defendants’ s 12B application. The defendants succeeded in obtaining the order that they sought under s 12(5) over the plaintiff’s opposition.
  1. [200]
    My impression is that a substantial part of the costs associated with the material that was relevant to the application, particularly the affidavits and the authorities, are related to the part of the application concerning serious harm. Much of those costs would have been incurred in any event for the purpose of the determination of separate harm issue, and so were not incurred simply for the purposes of the s 10A(5) application. Still, substantial costs were incurred in preparing a contested application for an order under s 10A(5).   The starting point under the rules is that the costs of the s 10A(5) application should follow the event.
  1. [201]
    As to the costs of the s 12B application (the relief sought in paragraphs 1 and 2 of the amended originating application), the starting point is that those costs should follow the event. That would result in two separate costs orders and two separate assessments.
  1. [202]
    I apprehend that it will be a difficult and complicated exercise to dissect the costs of solicitors and counsel in respect of each part of the application.   I am not presently in a position, and am unlikely to be in a well-informed position, to make a single order as to costs taking into account the costs that were incurred on each issue. The number of paragraphs of written submissions, the number of authorities related to each issue and the amount of time taken at the hearing may not be a sure guide as to an appropriate allocation of costs.
  1. [203]
    My determination of the s 12B issue is significant. Had I granted the defendants’ application, the proceeding would have stopped in its tracks. The s 10A(5) application also has significant practical consequences and may result in significant cost savings.
  1. [204]
    A substantial part of the costs incurred in relation to the s 10A(5) application, including legal research and the preparation of written submissions on points of law, will have utility at the hearing of the serious harm issue. It differs from an interlocutory application, such as a dispute over disclosure, where the interlocutory issues will not be revisited at a trial.
  1. [205]
    In the circumstances, there might be something to be said for making the costs of at least the s 10A(5) application costs in the proceeding or reserving them to await the determination of the serious harm issue. However, given the practical challenges in dissecting costs between each aspect of the application, my preliminary view is that the costs of the application should be the parties’ costs in the proceedings or be reserved.
  1. [206]
    I encourage the parties to agree a suitable costs order, failing which I will hear them on the issue of costs on a date to be fixed.

Footnotes

[1] The Defamation Act 2005 (WA) does not include a serious harm element as part of the cause of action for defamation.

[2] Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld), s 2.

[3] Explanatory Notes, Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld), pp 4-5.

[4] Second Reading Speech, Hansard, 15 June 2021 (Attorney-General), p 1796.

[5] See, for example, Randell v McLachlain [2022] NSWDC 506 at [15], Teh v Woodworth & Anor [2022] NSWDC 411 at [26]-[27]; Hoser v Herald and Weekly Times Pty Ltd (Ruling) [2022] VCC 2213 at [83], [109]-[110]. On one view, commencing proceedings in breach of the provision could amount to an abuse of process: Hoser at [16], [109]. Alternatively, the action will be struck out for a failure to comply with a provision such as s 12A or s 12B: Randell at [15]. See also Georges v Georges [2022] NSWDC 558 at [55], when there was a finding of compliance. C.f. Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at 112 [121] in the context of a proceeding that was commenced outside the limitation period and without first obtaining leave to do so.

[6] P Herzfeld and T Prince Interpretation Thomson Reuters (2nd Ed) (2020) [9.250]; Pearce Statutory Interpretation in Australia (10th Ed) (2024) LexisNexis, [5.15-518].   The Acts Interpretation Act 1954 (Qld), s 35(1)(b) reflects this presumption.

[7] [1963] SR (NSW) 538.

[8] At 553, and see generally, DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692 on the issues of extraterritorial competence and statutory interpretation.

[9] (2020) 103 NSWLR 692.

[10] At 732 [157].

[11] [2019] QCA 66. See also BHP Group Ltd v Implombata (2021) 286 FCR 625 at 634 [43]–635 [44]; (2022) 405 ALR 402 at 407 [23]–409 [32]; 417 [59]–419 [63] concerning representative proceedings under Part IVA of the Federal Court Act 1976 (Cth) and their application to non- residents.

[12] P Herzfeld and T Prince Interpretation at [9.270] citing Seaegg v The King (1932) 48 CLR 251 at 255; Solomons v District Court of NSW (2002) 211 CLR 119 at 130 [9].

[13] As to the choice of law rule that applied prior to the enactment of s 11 in relation to multiple publications in multiple jurisdictions, see Gorton v Australian Broadcasting Commission (1973) 22 FLR 181; Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 at 241, Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519, and Davies, Bell, Brereton and Douglas JJ Nygh’s Conflict of Law in Australia 10th Ed, 2020, LexisNexis 20.14 – 20.16.

[14] Defined in s 11(5) as “publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons”.

[15] This applies notwithstanding the enactment of the single publication rule for Limitation Act purposes.

[16] Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83.

[17] (1991) 174 CLR 1 at 26–27 (“McKain”).

[18] (2000) 203 CLR 503; [2000] HCA 36 (“Pfeiffer”).

[19] Pfeiffer at 544 [100].

[20] (2006) 66 NSWLR 48; [2006] NSWCA 55 (“Hamilton”).

[21] Hamilton at 66 [102].

[22] Pfeiffer at 543-4 [99].

[23] Hamilton at 64 [91].

[24] Hamilton at 66 [104].

[25] Hamilton at 72 [143].

[26] Hamilton at 72-73 [143].

[27] Hamilton at 73 [143].

[28] Hamilton at 70 [128].

[29] Pfeiffer at 542 [97].

[30] Pfeiffer at 543 [99] (footnote omitted).

[31] Pfeiffer at 554 [133].

[32] Pfeiffer at 574 [192].

[33] R Mortensen, R Garnett & M Keyes, Private International Law in Australia (5th Ed) 2023 LexisNexis at [11.51] citing Hamilton.

[34] Alvear v Chetwynd Park Pty Ltd [2014] VSC 214 at 10 [36]-[37] citing Hamilton at 59 [61] and Wickham Freight Lines Pty Ltd v Ferguson (2013) 83 NSWLR 162 at 168 [16], [18].

[35] (1957) 96 CLR 261 at 269.

[36] Hamilton at 59 [60].

[37] Hamilton at 59 [61].

[38] (1999) 46 NSWLR 32 (“Kinzett”).

[39] Kinzett at 52 [102].

[40] (1937) 57 CLR 186 at 194.

[41] At 195.

[42] [2002] 2 Qd R 486.

[43] At 497 [25].

[44] [1999] 2 Qd R 335.

[45] At 337.

[46]At 341.

[47] Hamilton at 60 [67].

[48] Hamilton at 64 [91].

[49] Hamilton at 64 [92].

[50] Hamilton at 65 [97].

[51] See Hamilton at 60 [69]–61 [73].

[52] Hamilton at 66 [102].

[53] Hamilton at 72-73 [143].

[54] Section 12B(3) provides for leave where delay would result in proceedings being started outside a limitation period.

[55] Defamation Act 2005 (Qld), s 18(1)(a).

[56] Newman v Whittington [2022] NSWSC 1725 at [28]-[30].

[57] Defamation Act 2005 (Qld), s 10A(3).

[58] Defamation Act 2005 (Qld), s 10A(4)(b).

[59]Defamation Act 2005 (Qld), s 10A(5).

[60] Qu v Wilks [2023] VSCA 198 at 12 [44].

[61] Newman v Whittington [2022] NSWSC 249 at [35]; Qu v Wilks [2023] VSCA 198 at 12 [42]-[44].

[62] As to the considerations which this Court applies under a rule like r 483, see the often-cited decision of Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1990) 240 FCR 276; (1999) 217 ALR 495; and Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3) [2015] QSC 295 at [44]-[46].

[63] Dingle v Associated Newspapers Ltd [1964] AC 371 (“Dingle”).

[64] See the leading authority of Lachaux v Independent Print Ltd [2016] QB 402; [2018] QB 594; [2020] AC 612; and the observations of Derrington J in Peros v Blackburn [2024] FCA 177 at [48].

[65] See Channel Seven Sydney Pty Ltd v Mohammed (2010) 278 ALR 232 at 285 [253] in the different context of a judicial finding that is in the public domain, and the observations of Derrington J in Peros v Blackburn [2024] FCA 177 at [56].

[66] See Selkirk v Hocking (No 2) [2023] FCA 1085 at [24]-[26]; O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at 91-93.

[67] As to which see Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 at 658-659, 662-665 and the origins of the phrase “directly relevant background material” in Burstein v Times Newspapers Ltd [2001] 1 WLR 579.

[68] (2021) 273 CLR 346.

[69] Just as it is different to the provision for a separate trial in the Federal Court, as discussed in Peros v Blackburn [2024] FCA 177 at [27]-[31].

Close

Editorial Notes

  • Published Case Name:

    Peros v Nationwide News Pty Ltd & Ors

  • Shortened Case Name:

    Peros v Nationwide News Pty Ltd

  • MNC:

    [2024] QSC 80

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    13 May 2024

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238
2 citations
Jump To
Cite 1 - (1975) 26 FLR 238
Cite 2 - (1975) 26 FLR 238
Alvear v Chetwynd Park Pty Ltd [2014] VSC 214
2 citations
Jump To
Cite 1 - [2014] VSC 214
Cite 2 - [2014] VSC 214
Associated Newspapers Ltd v Dingle (1964) AC 371
2 citations
Jump To
Cite 1 - (1964) AC 371
Cite 2 - (1964) AC 371
Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632
2 citations
Jump To
Cite 1 - (2019) 271 FCR 632
Cite 2 - (2019) 271 FCR 632
Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519
2 citations
Jump To
Cite 1 - (1991) 25 NSWLR 519
Cite 2 - (1991) 25 NSWLR 519
BHP Group Ltd v Impiombato (2022) 405 ALR 402
1 citation
Jump To
Cite 1 - (2022) 405 ALR 402
BHP Group Ltd v Implombata (2021) 286 FCR 625
2 citations
Jump To
Cite 1 - (2021) 286 FCR 625
Cite 2 - (2021) 286 FCR 625
Burstein v Times Newspapers [2001] 1 WLR 579
2 citations
Jump To
Cite 1 - [2001] 1 WLR 579
Cite 2 - [2001] 1 WLR 579
Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3) [2015] QSC 295
2 citations
Jump To
Cite 1 - [2015] QSC 295
Cite 2 - [2015] QSC 295
Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90
2 citations
Jump To
Cite 1 - (2012) 84 NSWLR 90
Cite 2 - (2012) 84 NSWLR 90
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232
2 citations
Jump To
Cite 1 - (2010) 278 ALR 232
Cite 2 - (2010) 278 ALR 232
DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692
3 citations
Jump To
Cite 1 - (2020) 103 NSWLR 692
Cite 2 - (2020) 103 NSWLR 692
Cite 3 - (2020) 103 NSWLR 692
Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346
2 citations
Jump To
Cite 1 - (2021) 273 CLR 346
Cite 2 - (2021) 273 CLR 346
Georges v Georges [2022] NSWDC 558
2 citations
Jump To
Cite 1 - [2022] NSWDC 558
Cite 2 - [2022] NSWDC 558
Gorton v Australian Broadcasting Commission (1973) 22 FLR 181
2 citations
Jump To
Cite 1 - (1973) 22 FLR 181
Cite 2 - (1973) 22 FLR 181
Hamilton v Merck & Co Inc (2006) 66 NSWLR 48
2 citations
Jump To
Cite 1 - (2006) 66 NSWLR 48
Cite 2 - (2006) 66 NSWLR 48
Hamilton v Merck and Co Inc [2006] NSWCA 55
1 citation
Jump To
Cite 1 - [2006] NSWCA 55
Harding v Lithgow Corporation (1937) 57 CLR 186
2 citations
Jump To
Cite 1 - (1937) 57 CLR 186
Cite 2 - (1937) 57 CLR 186
Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling) [2022] VCC 2213
2 citations
Jump To
Cite 1 - [2022] VCC 2213
Cite 2 - [2022] VCC 2213
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
2 citations
Jump To
Cite 1 - (2000) 203 CLR 503
Cite 2 - (2000) 203 CLR 503
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36
1 citation
Jump To
Cite 1 - [2000] HCA 36
Johnson v Hill[2002] 2 Qd R 486; [2002] QCA 52
2 citations
Jump To
Cite 1 - [2002] 2 Qd R 486
Cite 2 - [2002] 2 Qd R 486
Kinzett v McCourt (1999) 46 NSWLR 32
2 citations
Jump To
Cite 1 - (1999) 46 NSWLR 32
Cite 2 - (1999) 46 NSWLR 32
Lachaux v Independent Print Limited [2020] AC 612
2 citations
Jump To
Cite 1 - [2020] AC 612
Cite 2 - [2020] AC 612
Lachaux v Independent Print Ltd (Media Lawyers Association intervening) [2016] QB 402
2 citations
Jump To
Cite 1 - [2016] QB 402
Cite 2 - [2016] QB 402
Lachaux v Independent Print Ltd (Media Lawyers Association intervening) [2018] QB 594
2 citations
Jump To
Cite 1 - [2018] QB 594
Cite 2 - [2018] QB 594
Maxwell v Murphy (1957) 96 CLR 261
2 citations
Jump To
Cite 1 - (1957) 96 CLR 261
Cite 2 - (1957) 96 CLR 261
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
2 citations
Jump To
Cite 1 - (1991) 174 CLR 1
Cite 2 - (1991) 174 CLR 1
Newman v Whittington [2022] NSWSC 249
2 citations
Jump To
Cite 1 - [2022] NSWSC 249
Cite 2 - [2022] NSWSC 249
Newman v Whittington [2022] NSWSC 1725
1 citation
Jump To
Cite 1 - [2022] NSWSC 1725
O'Hagan v Nationwde News Pty Ltd (2001) 53 NSWLR 89
1 citation
Jump To
Cite 1 - (2001) 53 NSWLR 89
Peros v Blackburn [2024] FCA 177
4 citations
Jump To
Cite 1 - [2024] FCA 177
Cite 2 - [2024] FCA 177
Cite 3 - [2024] FCA 177
Cite 4 - [2024] FCA 177
Peros v Nationwide News Pty Ltd [No 2] [2024] QSC 83
2 citations
Jump To
Cite 1 - [2024] QSC 83
Cite 2 - [2024] QSC 83
Qu v Wilks [2023] VSCA 198
3 citations
Jump To
Cite 1 - [2023] VSCA 198
Cite 2 - [2023] VSCA 198
Cite 3 - [2023] VSCA 198
Randell v McLachlain [2022] NSWDC 506
2 citations
Jump To
Cite 1 - [2022] NSWDC 506
Cite 2 - [2022] NSWDC 506
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
1 citation
Jump To
Cite 1 - (1999) 217 ALR 495
Reading Australia Pty Ltd v Australian Mutual Provident Society (1990) 240 FCR 276
2 citations
Jump To
Cite 1 - (1990) 240 FCR 276
Cite 2 - (1990) 240 FCR 276
Seaegg v The King (1932) 48 CLR 251
2 citations
Jump To
Cite 1 - (1932) 48 CLR 251
Cite 2 - (1932) 48 CLR 251
Selkirk v Hocking (No 2) [2023] FCA 1085
2 citations
Jump To
Cite 1 - [2023] FCA 1085
Cite 2 - [2023] FCA 1085
Solomons v District Court of NSW (2002) 211 CLR 119
2 citations
Jump To
Cite 1 - (2002) 211 CLR 119
Cite 2 - (2002) 211 CLR 119
Teh v Woodworth & Anor [2022] NSWDC 411
2 citations
Jump To
Cite 1 - [2022] NSWDC 411
Cite 2 - [2022] NSWDC 411
Vickers v Queensland Building and Construction Commission [2019] QCA 66
2 citations
Jump To
Cite 1 - [2019] QCA 66
Cite 2 - [2019] QCA 66
Wickham Freight Lines Pty Ltd v Ferguson (2013) 83 NSWLR 162
2 citations
Jump To
Cite 1 - (2013) 83 NSWLR 162
Cite 2 - (2013) 83 NSWLR 162
Young v Keong[1999] 2 Qd R 335; [1998] QCA 100
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 335
Cite 2 - [1999] 2 Qd R 335

Cases Citing

Case NameFull CitationFrequency
Peros v Nationwide News Pty Ltd [No 2] [2024] QSC 83 2 citations
Peros v Nationwide News Pty Ltd [No 3] [2024] QSC 192 2 citations
1

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