Peros v Nationwide News Pty Ltd & Ors

In this case, the plaintiff sued the defendants for defamation in the Supreme Court of Western Australia over a podcast which the plaintiff claimed imputed that he murdered Shandee Blackburn. The plaintiff then subsequently consented to transfer the proceeding to Queensland. The law of Western Australia did not require the plaintiff to serve a concerns notice prior to commencing his proceeding. Under s 12B Defamation Act 2005 in Queensland a plaintiff is required to issue a concerns notice prior to commencing a proceeding for defamation in Queensland. The defendants contended that the proceeding should be dismissed since the plaintiff had not served a concerns notice as required by s 12B(1) of the Queensland Act. His Honour held that properly construed, s 12B was not intended to apply extra-territorially.

Applegarth J

13 May 2024

The plaintiff alleged that by publishing a podcast, the defendants had imputed that he murdered Shandee Blackburn. [1]. Proceedings were initially commenced in the Supreme Court of Western Australia, but were then transferred to Queensland under s 5(2) Jurisdiction of Courts (Cross-vesting) Act 1987. [3]. The defendants raised two issues. First, the defendants argued that the proceeding should be dismissed because the plaintiff had not issued a concerns notice. [10]. Second, they argued that he had not established the “serious harm element” of his cause of action for defamation as required by s 10A Defamation Act 2005. [4]–[6].

The possible application of s 12B to the commencement of a proceeding in Western Australia

In considering the merits of the defendants’ contention that, upon its proper interpretation, s 12B of the Queensland Act applies to a proceeding commenced in another State, his Honour observed that if accepted it “would have surprising and apparently unintended consequences”. [82]. In his view, it was more probable that the Queensland Parliament did not intend s 12B to have an extraterritorial operation. [89], [92].

His Honour noted that no aspect of the Queensland Act discloses an intent to rebut the presumption against the extraterritorial application of State laws as concerns s 12B. To reason otherwise would be to conclude that the Queensland legislature intended to force upon other jurisdictions its own position regarding the rules that should apply to the resolution of civil proceedings without litigation and the pre-conditions to commencing a defamation action. [90].

His Honour also clarified that the choice of law provisions in s 11(2) do not disclose an intention that a subsequently enacted provision (such as s 12B) should regulate the conduct of defamation litigation in other State courts. [91]. He concluded that, properly construed, the reference in s 12B(1) to “defamation proceedings” is confined to defamation proceedings in Queensland, not defamation proceedings in another jurisdiction, observing:

“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. …”. [92].

Were the pre-action requirements of s 12B Defamation Act 2005 procedural or substantive?

His Honour also considered whether s 12B is a substantive law or a procedural law for the purposes of a choice of law dispute. His Honour noted the parties’ differing views, with the plaintiff contending that s 12B is a procedural provision since it is a rule that is directed to “governing or regulating the mode or conduct of court proceedings” (see McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1, 26–27), [103], whilst the defendants argued that it was a substantive provision. [104]. His Honour resolved the issue by considering s 12B in its statutory context as part of procedural provisions that promote claims resolution based on pre-existing common law rights, [158], accordingly characterising it as a procedural provision. [160].

His Honour was not persuaded that regard should be had to the fact that the failure to give a concerns notice before commencing the action eliminated any possibility of a defence under s 18 concerning the effect of a failure to accept a reasonable offer to make amends. [152]. When the introduction of a compulsory concerns notice was introduced that resulted in a consequential amendment to s 18. [149]. But his Honour held that “the consequential amendment to s 18 is insufficient to transform the procedural character of s 12B”. [153]. The stipulation in s 12(1)(b) that a concerns notice be provided is clearly procedural. [154]–[159].

The s 10A Defamation Act 2005 issue and when it should be determined

It was not in dispute that the substantive law of Queensland includes the requirement in s 10A(1) Defamation Act 2005 that “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”. Section 10A(5) provides that 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 argued that there were such special circumstances. [9]. Conversely, the defendants argued that the serious harm element should be determined as soon as practicable before the trial.

His Honour was not persuaded that there were special circumstances justifying the postponement of the determination of the serious harm issue to a later stage of the proceedings. [196]. He directed that it be determined as soon as practicable, noting that that would place the parties in the position of focussing on the substantive defences upon which the defendants intended to rely at trial. [195].

Disposition

The Court ordered that:

1.Specific paragraphs of the amended application filed 20 March 2024 be dismissed.

2.Pursuant to ss 10A(4) and 10A(5) Defamation Act 2005 the issue of whether the publications sued upon, or any of them, have caused, or are likely to cause, serious harm to the plaintiff’s reputation, be determined as soon as practicable before commencement of the trial.

3.The hearing of the issue be listed to commence on 29 July 2024.

4.There be further directions for the preparation and conduct of that hearing.

A Jarro