AGUASA -v- HUNTER [2026] WASCA 37 | Case summary

[3]

Each of the respondents applied to have the proceedings dismissed on the ground that the appellant had failed to issue a concerns notice as required by s 12B of the NSW Act prior to commencing the proceedings, and the proceedings therefore could not be maintained.
The primary judge found that s 12B of the NSW Act should be characterised as a substantive law. As the appellant had not issued a concerns notice prior to commencing the proceedings, the primary judge held they should be dismissed.[1]
The issue raised by this appeal is whether s 12B of the NSW Act forms part of the substantive law that is applicable in New South Wales for the purposes of s 11 of the WA Act, so that a concerns notice was required prior to the commencement of the primary proceedings.
For the reasons which follow, s 12B of the NSW Act is properly characterised as a substantive, as opposed to a procedural, provision. Section 12B applied to the primary proceedings by operation of s 11(1) of the WA Act. While we would grant leave to appeal, the appeal must be dismissed.

AGUASA -v- HUNTER [2026] WASCA 37 | Case summary | Zoe

[18]

Under the NSW Act, following receipt of a concerns notice, a publisher may make an 'offer to make amends' in accordance with s 13 to s 15.
The amendments to s 14 of the NSW Act introduced the concept of 'the applicable period'. As amended, s 14(1) of the NSW Act provides that an offer to make amends cannot be made if the applicable period for an offer to make amends has expired, or if a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.
The applicable period is defined by s 14(2) of the NSW Act, as amended, to be the period of 14 days since the date the publisher was given the further particulars requested by the publisher from the aggrieved person in accordance with s 12A(3), or 28 days in any other case.
When the 2020 amendments were enacted, the Limitation Act 1969 (NSW) was amended to extend the one‑year limitation period for an action for defamation where a concerns notice is issued within 56 days before the limitation period expires.[12] Where that occurs, the limitation period is extended for 56 days less the number of days remaining after the date of the notice and the end of the one‑year limitation period.[13]
As s 14(2) of the NSW Act requires that any offer to make amends is to be made within 28 days of the receipt of a concerns notice and s 15(1)(b1) of the NSW Act requires that an offer to make amends be open for acceptance for at least 28 days commencing on the day the offer is made, the amendments to the limitation period ensure that the 56‑day period in which the NSW Act contemplates a concerns notice is to be issued and any offer to make amends be open for acceptance is not reduced by what would otherwise be the expiration of the limitation period.
If an offer to make amends is accepted and performed, s 17 of both Acts provide that the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question.
Prior to the 2020 amendments, s 18 of the NSW Act provided, as s 18 of the WA Act still does, that if an offer to make amends was made but not accepted, the making of the offer was a defence to an action for defamation if the publisher made the offer as soon as practicable after becoming aware that the published matter was or might be defamatory. As amended, s 18 of the NSW Act now provides:
1. Effect of failure to accept reasonable offer to make amends

[34]

The 2020 amendments to the NSW Act, considered as a whole, implemented important changes to an aggrieved person's right to commence proceedings for defamation, such that they constituted a legislative package which substantially altered the common law right to commence proceedings for defamation. In our judgment, there is no distinction to be drawn in principle between a legislative package or scheme which is intended to substantially alter the existence and enforceability of a litigant's rights and the two situations identified by Spigelman CJ in Hamilton to which reference is made at [34] above.
Although the appellant submits that the proper characterisation of s 12B is to be approached by considering the section in isolation, in our opinion the interrelationship between the various provisions introduced by the Defamation Amendment Act 2020 (NSW) is such that they are to be regarded as a single scheme, intended to make substantive changes to the existing law.
That is so for a number of reasons.
First, the enactment of s 10A(1) of the NSW Act introduced a new element of the cause of action for defamation, so that an aggrieved person may now only commence proceedings where he or she has suffered, or is likely to suffer, serious harm to his or her reputation as a consequence of the publication.
Secondly, the introduction of the provisions governing concerns notices, being s 12A and s 12B, and the consequences which flow from non‑compliance with s 12B, further restrict the right to commence proceedings for defamation. In Cavar v Campbelltown Catholic Club Ltd[26] the New South Wales Court of Appeal held, in the context of refusing a self‑litigant leave to replead and consistent with the text of s 12B(1)(a) of the NSW Act, that an aggrieved person who does not give a concerns notice is not entitled to commence defamation proceedings.[27]
Additionally, the right to commence proceedings is restricted to those imputations particularised in the concerns notice and those imputations which are to substantially the same effect.[28]
As the court lacks power to excuse non‑compliance with s 12B(1)(a) or to permit reliance upon imputations not identified in the concerns notice in accordance with s 12B(1)(b) as explained by s 12B(2)(b), each of those provisions concern the 'existence, extent and enforceability' of the aggrieved person's right to commence proceedings for defamation.[29]
For that reason, it is unnecessary to distinguish Hamilton on the basis that the court there had a discretion to excuse non‑compliance with each of the pre‑conditions to the institution of proceedings identified in that case. In our judgment, s 12B(1)(a), s 12B(1)(b) and s 12B(2) are substantive in character, as those provisions operate to curtail the extent of an aggrieved person's right to commence defamation proceedings.
Thirdly, the amendments to the Limitation Act 1969 (NSW) extend the limitation period to ensure both that the publisher have time to consider a concerns notice issued close to the expiration of the limitation period, and the aggrieved person time to consider any offer to make amends arising from it. Consistent with John Pfeiffer, provisions dealing with limitation periods are ordinarily to be characterised as substantive, rather than procedural.
Significantly in this regard, the power to grant leave to commence proceedings before the applicable period for an offer to make amends has lapsed, conferred by s 12B(3), is limited to circumstances where the court is satisfied that it is either just and reasonable to do so[30] or the proceedings will be statute‑barred once that period has expired.[31]
Finally, the availability of the complete defence to any defamation proceedings provided by s 18 of the NSW Act is conditioned upon the issue of a concerns notice by the aggrieved person. The text of s 18 does not leave scope for a publisher to rely upon the defence where the publisher has not received a concerns notice.
That is to be expected, once it is understood that the failure to issue a concerns notice has the consequence that the commencement of proceedings against the publisher is prohibited by s 12B(1)(a) of the NSW Act. The situation where a publisher is required to defend a claim where the aggrieved person has not given the requisite notice should not arise.

[36]

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 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.

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.

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.

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.

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. (original emphasis)

[41]

Although his Honour's views on the characterisation of s 12B were obiter, they constitute persuasive authority of considerable weight. However, as with the primary judge, we are regretfully unable to agree with aspects of his Honour's reasoning, nor the view to which he came as to whether s 12B of the Queensland and NSW Acts is procedural in nature.
First, as stated above, in our judgment the 2020 amendments to the NSW Act are to be considered as a coherent legislative scheme or package, so that consideration is to be given not only to s 12B in isolation, but also to s 10A(1) and s 18 of the NSW Act and the amendments to the Limitation Act 1969 (NSW), in considering the proper characterisation of s 12B.
We note that his Honour does not appear to have considered whether the extension of the limitation period resulting from the issue of a concerns notice within 56 days of the end of the one‑year limitation period bore upon the characterisation of the section, although he noted the existence of the Queensland equivalent to s 14B of the Limitation Act 1969 (NSW) provision.[41]
Secondly, although this may overlap the first point, for the reasons set out above at [39] to [43], in our judgment s 12B(1) and (2) operate to materially restrict the right of an aggrieved person to commence proceedings for defamation, and are therefore not limited to the mode in which the existing common law right may be enforced.
Finally in this regard, a construction of s 12B that does not result in the substantive defence afforded by s 18 being unavailable because of the failure to issue a concerns notice is to be preferred. In our judgment, the approach taken by the primary judge,[42] in which weight is given in the process of construction to the s 18 defence only being available where a concerns notice is issued, is to be preferred to a construction of s 12B of the NSW Act which rests in part upon the rarity of the circumstances in which a party might be deprived of the defence otherwise available under s 18. That approach is supported by the view taken by Callinan J in BHP Billiton Ltd v Schultz,[43] where his Honour regarded the deprivation of a defence as a matter of substance, such that a law which had that effect should be characterised as substantive.[44]
In this regard, the appellant submitted that the defence under s 18 of the WA Act would still be available to the defendants, notwithstanding that s 11(1) of the WA Act has the effect that the substantive law of NSW applies to the proceedings, because s 18 of the NSW Act does not purport to apply to proceedings commenced in Western Australia, and s 18 of the WA Act would always apply in proceedings commenced in Western Australia.
We reject that submission as being inconsistent with the clear text of s 11(1) of the WA Act. It is implicit in s 11(1) of the WA Act that, where the section applies, the defence provided by s 18 of the WA Act will not be available. That is because s 18 of the WA Act is a substantive provision, since it creates a statutory defence to defamation proceedings, and will not form part of the substantive law of the Australian jurisdictional area in which the relevant publication occurs. Nor does, contrary to Applegarth J's views in Peros, the substantive law of NSW apply extraterritorially in proceedings commenced in Western Australia to which s 11(1) of the WA Act applies due to any decision on the part of the New South Wales legislature as to whether s 12B, or for that matter, s 18, of the NSW Act is to operate extraterritorially. In enacting s 11(1) of the WA Act, the Western Australian legislature determined that the substantive law applicable to such claims would be the law of the area of publication, such that the substantive laws of New South Wales are given effect in Western Australia by operation of the WA Act, and not otherwise.

[45]

The appellant commenced defamation proceedings against the respondents in the Supreme Court of Western Australia on 29 November 2023. The proceedings concerned publications made by the respondents to a third party by various emails on 18 August 2023. It is an agreed fact that the third party was located in New South Wales.
It was also an agreed fact that the appellant gave no notice, whether a concerns notice within the meaning of the NSW Act or otherwise, to either respondent prior to service of the writ of summons in the primary proceedings.
The respondents made applications, by letter, to the primary judge (Tottle J) as case manager to dismiss the proceedings. It is unclear whether the applications were made pursuant to O 16 r 1 or O 20 r 19 of the Rules of the Supreme Court 1971 (WA). In substance, however, the respondents sought summary dismissal of the defamation proceedings. Accordingly, the better view is that the applications were made pursuant to O 16 r 1. In this respect the Court of Appeal in New South Wales has held that it is clearly correct to summarily dismiss a defamation claim commenced in contravention of s 12B(1) of the NSW Act: Cavar v Campbelltown Catholic Club Ltd.[48]
The respondents invoked s 12B(1) of the NSW Act and said that, as the primary proceedings were commenced in contravention of the prohibition in s 12B(1)(a) of the NSW Act, they could not be maintained.
The appellant accepted that, pursuant to s 11(1) of the WA Act, the substantive law applicable in New South Wales was to be applied to determine the causes of action for defamation based on the publications in issue. But the appellant contended that the prohibition in s 12B(1)(a) of the NSW Act should be charactered as a procedural law rather than a substantive law. On that basis s 11(1) of the WA Act did not pick up s 12B(1)(a) of the NSW Act. Accordingly, the content of 'the substantive law that is applicable' in New South Wales was in issue. In particular, the respondents asserted, and the appellant disputed, that the s 12B(1)(a) requirement in the NSW Act to issue a concerns notice prior to commencement of defamation proceedings formed part of the relevant substantive law that is applicable in New South Wales and was to be applied pursuant to s 11(1) of the WA Act.
In written reasons the primary judge concluded that s 12B of the NSW Act should be characterised as a substantive law and the primary proceedings should therefore be dismissed: Aguasa v Hunter.[49]
The primary judge reached that conclusion with 'some hesitation' given the weight of authorities to which his Honour referred and the decision of Applegarth J in Peros v Nationwide News Pty Ltd:[50] Aguasa v Hunter [57]. I will come back to Peros. Counsel for the appellant relied heavily on Peros in the appeal. In Peros, in a conclusion that is strictly by way of obiter dicta, Applegarth J found that the Queensland equivalent to s 12B(1)(a) of the NSW Act should be characterised as a procedural law rather than a substantive law determining the cause of action for defamation: Peros [14]. Accordingly, the conclusion reached in the primary decision is contrary to the obiter view of Applegarth J in Peros.
Before referring to the appellant's single ground of appeal it is necessary to develop the statutory framework.

[46]

The WA Act was enacted in 2005 and commenced on 1 January 2006. It enacted uniform model provisions in relation to the law of defamation following agreement in November 2004 by the Attorneys General of the States and Territories to support uniform model provisions. At the time of the agreement each State and Territory had different laws governing the tort of defamation. The NSW Act was also part of the uniform defamation law adopted by the States and Territories at around this time. Accordingly, as originally enacted the WA Act and the NSW Act were in substantially the same terms.
More recently, however, the uniformity in defamation law in Australia has fragmented insofar as Western Australia is yet to adopt changes recommended by a New South Wales led law reform process. The initial tranche of those amendments was introduced by the Defamation Amendment Act 2020 (NSW). There have since been further amendments to the uniform defamation laws that are not material to the proper disposition of this appeal.
Among other things, the amendments effected by the Defamation Amendment Act 2020 (NSW) provided for:
1. A requirement that a plaintiff establish that the publication of defamatory matter has caused or is likely to cause 'serious harm' to his or her reputation (NSW Act, s 10A).
2. A single publication rule (Limitation Act 1969 (NSW), s 14C).
3. A new defence of 'publication of matter concerning issue of public interest' (NSW Act, s 29A).
4. The removal of the defence of triviality (NSW Act, repealed s 33). (This change was consistent with the introduction of the 'serious harm' requirement - the onus being on a plaintiff to prove serious harm the defence of triviality became redundant.)
5. Changes to the evaluation of damages (NSW Act, s 35(1) and (2)).
6. A mandatory 'concerns notice' regime (NSW Act, pt 3 div 1 - esp. s 12A, s 12B and s 14(2) and (3)).
The joint reasons of Mitchell JA and Cobby J reproduce many of the key provisions of the WA Act and the NSW Act that must be considered for the purpose of the appeal. I will not repeat all of the provisions of the WA Act and the NSW Act as found in the joint reasons. My reasons should be read with the joint reasons so far as the joint reasons reproduce the other key legislative provisions. It is, however, necessary that I explain the substance and effect of the provisions so far as they are relevant to my reasoning.

[53]

Section 11(1) of the WA Act evinces a legislative choice that it is undesirable that a plaintiff should receive an advantage - in terms of altering substantive legal entitlements - by suing in one forum rather than another. Section 11(1) of the WA Act eliminates the potential for a plaintiff to obtain one form of possible advantage by ensuring that, where the provision operates, the substantive law of the State or Territory in which the alleged defamatory matter was published is applied in determining subsequent defamation proceedings if they are commenced in Western Australia instead of the other State or Territory.
Consideration must then be given to what is meant by the term 'substantive law'.
The distinction between substantive laws and procedural laws - often expressed in terms of questions of substance and questions of procedure - is well established. It is true that, relatively recently, when considering the presumption against retrospective operation, Keane, Gordon, Edelman and Gleeson JJ stated that the distinction is not a stable basis for deciding whether to apply a presumption against retroactivity: Stephens v The Queen.[54] But it is still the case that as a matter of history the distinction of substance and procedure has been 'accepted and applied again and again': Maxwell v Murphy.[55] See also John Pfeiffer Pty Ltd [97]; Stephens [30]. In any case, whatever difficulty arises in distinguishing between 'substantive law' and 'procedural law', the distinction is one that the Western Australian Parliament has adopted in s 11(1) of the WA Act.
As the term 'substantive law' has acquired a technical legal meaning under the general law, and no contrary intention appears from the text, context or purpose of s 11(1) of the WA Act, the term should be interpreted conformably with that technical legal meaning: Attorney‑General (NSW) v Brewery Employes Union of New South Wales.[56] In any event that technical legal meaning is consistent with the ordinary meaning of the text of s 11(1) of the WA Act read in context and having regard to the purpose of s 11(1) of the WA Act.
The adoption of the technical legal meaning of the term 'substantive law' is consistent with available extrinsic materials. Consideration may be given to extrinsic materials to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of s 11(1) of the WA Act: Interpretation Act 1984 (WA) s 19(1)(a). In that respect the Explanatory Memorandum to the Bill that became the WA Act provided as to the proposed s 11(1):

[55]

It ought therefore be accepted that the legislature used the term 'substantive law' in s 11(1) of the WA Act in accordance with its technical legal meaning. In particular, the legislature had in mind the sense in which the concept of a substantive law was explained in John Pfeiffer Pty Ltd.
It will be necessary, later in these reasons, to expand on the nature and character of a 'substantive law' so as to determine whether s 12B(1)(a) of the NSW Act is a substantive law applicable in the State of New South Wales. For now it is convenient to return to the relevant provisions of the WA Act. It remains to consider relevant provisions within pt 3 dealing with the resolution of civil disputes without litigation.
The joint reasons reproduce s 12 of the WA Act (see [14] above). This provides, in effect, that the provisions of div 1 of pt 3 as to offers to amend may be used instead of other provisions in any rules of court or other laws. There is an equivalent provision in the same terms in the NSW Act. Section 13 of the WA Act provides that a publisher may make an offer to make amends. Again there is an equivalent provision in the same terms in the NSW Act. The content of an offer to make amends is prescribed (WA Act, s 15; NSW Act, s 15). There are minor differences between the two provisions dealing with the content of an offer to make amends. Relevantly, the NSW Act requires the offer to make amends to be open for acceptance for at least 28 days (NSW Act, s 15(1)(b1)). That was a change introduced by the Defamation Amendment Act 2020 (NSW). Even so, under the NSW Act, as with the WA Act, an offer to make amends may be withdrawn before it is accepted by notice in writing (WA Act, s 16; NSW Act, s 16). The effect of acceptance of an offer to make amends is dealt with in s 17 of the WA Act and the NSW Act in effectively the same terms. Where the publisher carries out the terms of an offer to make amends, as accepted, the aggrieved person cannot assert or continue any action against the publisher in relation to the matter in question (WA Act, s 17(1); NSW Act, s 17(1)).
It will be seen that an aggrieved person's failure to accept a reasonable offer to make amends may provide the publisher with a defence under both the WA Act and the NSW Act (see [105] ‑ [106] and [127] below). However, since the coming into effect of the Defamation Amendment Act 2020 (NSW), there are differences in the two defences.
It would be unusual for a publisher to offer to make amends without some form of anterior complaint by an aggrieved party alleging that the publisher has published matter that is, or may be, defamatory of the aggrieved person. Both the WA Act and the NSW Act recognise this in providing for the concept of a 'concerns notice'. In this respect s 14 of the WA Act relevantly provides:

[69]

The 56 days in s 14B(3) of the Limitation Act 1969 (NSW) is referrable to the 28 days ordinarily comprised in the applicable period for an offer to make amends (see [116] above) together with the 28 days that s 15(1)(b1) of the NSW Act requires an offer to make amends be open for acceptance (see [100] above). Accordingly, the additional period is aimed at allowing a proposed defendant time to consider a concerns notice and allowing the aggrieved person to consider any offer to make amends. Thus the extension to the limitation period facilitates the regime for resolution of civil disputes without litigation by means of concerns notices and offers to amend as contemplated by div 1 of pt 3 of the NSW Act.
These limitation laws of the State of New South Wales are picked up as part of the substantive law to be applied in Western Australia in determining the appellant's claim by operation of s 5 of the Choice of Law (Limitation Periods) Act read with s 11(1) of the WA Act (see [89] above).
The requirements for a 'concerns notice' under the NSW Act are specified in s 12A (see [18] above). They are, as mentioned, different to the requirements for a concerns notice under the WA Act (compare s 14(2) of the WA Act at [102] above). A concerns notice under the NSW Act is a written notice that: (1) specifies the location where the allegedly defamatory material can be accessed (eg a website address); (2) informs the publisher of the defamatory imputations that the aggrieved person believes are or may be carried by the publication; (3) informs the publisher of the alleged serious harm to the aggrieved person's reputation caused or likely to be caused as a result of the publication of the allegedly defamatory material; and (4) if practicable, attaches a copy of the allegedly defamatory material. See NSW Act, s 12A(1).
Section 12A(2) of the NSW Act clarifies, for the avoidance of doubt, that a document required to be filed or lodged to commence defamation proceedings cannot be used as a concerns notice. That is evidently intended to overcome the decisions in Zoef v Nationwide News Pty Ltd[57] and Mohareb v Booth.[58]
The specification of the imputations of concern has added significance given s 12B(1)(b) of the NSW Act: an aggrieved person cannot commence defamation proceedings unless the imputations to be relied on in the proposed proceedings were particularised in the concerns notice (see [113] above).
Where a concerns notice fails to provide adequate particulars the NSW Act contemplates a request that the aggrieved person provide reasonable further particulars (NSW Act, s 12A(3) ‑ (5)). The applicable period for an offer to make amends is extended where the aggrieved person provides such further particulars (NSW Act, s 14(2)(a)).
The NSW Act, like the WA Act, contemplates the publisher making an offer to make amends to the aggrieved person (NSW Act, s 13). An offer to make amends cannot be made if, among other things, the applicable period for an offer to make amends has expired (NSW Act, s 14(1)). The content of an offer to make amends is prescribed (NSW Act, s 15). Among other things, s 15(1A) of the NSW Act provides:

[76]

There is a single ground of appeal. The appellant alleges that the primary judge erred in fact and in law in holding that s 12B of the NSW Act formed part of the substantive law to be applied under s 11(1) of the WA Act. The reference to the primary judge having erred 'in fact' is odd. There were no factual disputes before the primary judge. This appeal is solely concerned with whether the primary judge erred in law in concluding that the s 12B(1)(a) prohibition in the NSW Act is a substantive law that is applicable in New South Wales for the purpose and within the meaning of s 11(1) of the WA Act.
The single ground is supported by eight sub‑paragraphs, including some 10 sub‑sub‑paragraphs, that wander over five pages. The appellant's written submissions describe these as '6 [sic] sub‑grounds ... which particularise the error of the "substantive characterisation"' (par 8). I will not reproduce this aspect of the ground of appeal. The appellant's approach to the drafting of a ground of appeal should not be emulated. In no way does it satisfy a litigant's obligation to state concise particulars of a ground succinctly: Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(b).
In oral submissions, despite having particularised the alleged error at length in writing, counsel for the appellant advanced further arguments in support of the ground of appeal. For example, it was said that, even if s 18(1) of the NSW Act was part of the substantive law applicable in the State of New South Wales, a defendant publisher in Western Australia could treat a pleading as a concerns notice and make an offer to make amends after proceedings had been commenced (appeal ts 46 ‑ 49).
It is unclear to me where that argument fits within the particulars to the ground of appeal. Nevertheless, the argument is misconceived: the defence in s 18(1) of the NSW Act is predicated on the aggrieved person having issued a concerns notice for the purpose and within the meaning of the NSW Act. By necessary implication such a concerns notice must be issued before the commencement of proceedings (see NSW Act, s 12B(1)(a)). That is particularly so where the scheme of s 12A and s 12B of the NSW Act contemplates that the imputations to be relied on in proposed proceedings must be particularised in the concerns notice (NSW Act, s 12A(1)(a)(iii) and s 12B(1)(b)).
But, in any case, this argument - and other arguments that exceed the particulars to the ground of appeal - need not be further considered. They are outside the scope of the single ground of appeal.
Broadly speaking, by the particulars to the ground of appeal, the appellant commences by alleging a number of process errors. For example, the primary judge is alleged to have erred in failing to follow Peros (par 1.1) as well as the weight of authority including by distinguishing Hamilton v Merck and Co Inc[59] and failing to consider and follow Allan J Panozza & Co Pty Ltd v Allied Interstate (Qld) Pty Ltd[60] and Hodgson v Dimbola Pty Ltd[61] (par 1.2). The primary judge is also said to have erred in approaching the characterisation question primarily in terms of whether s 12B(1) of the NSW Act has the capacity to affect the enforceability of rights (par 1.3) and in failing to characterise the real issue under consideration including by considering s 18 of the NSW Act, failing to consider Wickham Freight Lines Pty Ltd v Ferguson[62] adequately and characterising s 12B of the NSW Act as part of a legislative package (par 1.4).
This is an appeal to which the correctness standard applies. The complaints of alleged methodological error in the primary judge's reasoning process take the appeal nowhere. It is for the appellant to persuade the court that, as a matter of law, s 12B(1)(a) of the NSW Act is not a substantive law that is applicable in New South Wales for the purpose and within the meaning of s 11(1) of the WA Act. While, where appropriate, the contentions underlying the matters complained of in pars 1.1 ‑ 1.4 to the ground of appeal ought to be considered to the extent that they bear on the question raised by the appeal, the individual complaints of alleged error in pars 1.1 ‑ 1.4 need not be determined in isolation.
It should, however, be said that the appellant is quite wrong to suggest that the primary judge erred in failing to characterise the real issue under consideration. To the contrary the primary judge correctly distilled the issue that arose for determination: Aguasa v Hunter [2]. Similarly, it is fallacious to insist that the primary judge is in error by not following decisions such as Hamilton, Allan J Panozza & Co Pty Ltd, Hodgson and Wickham Freight Lines Pty Ltd. Those decisions concern different statutory provisions and different statutory regimes to the provision and regime provided for by s 12B(1) and pt 3 of the NSW Act. With the exception of Peros, to which I will come, the earlier decisions relied on by the appellant provide at the most useful illustrations and outworkings of principle for the purpose of distinguishing between a substantive law and a procedural law. None of the earlier decisions relied on by the appellant compelled the primary judge as a matter of precedent to conclude that the s 12B(1) prohibition in the NSW Act was not a substantive law.
The appellant goes on to contend that:

[79]

The primary judge erred in considering the object in s 3(a) of the NSW Act in circumstances where the Western Australian Parliament has not adopted the New South Wales led reforms to the uniform defamation laws (par 1.7). 2. The primary judge erred in not holding that, by reason of s 79 and s 80 of the Judiciary Act 1903 (Cth), the law applicable in federal jurisdiction mandated application of pt 3 of the WA Act to the exclusion of pt 3 of the NSW Act (par 1.8).
The argument raised by par 1.8 of the ground of appeal, as summarised at [140](4) above, was abandoned at the appeal hearing (appeal ts 36 ‑ 37).
The argument raised by par 1.5 of the ground of appeal (see [140](1) above) is another alleged process error. It is, however, appropriate when characterising s 12B(1)(a) of the NSW Act to do so in the context of pt 3 of the NSW Act as a whole. Beyond that nothing needs to be said as to par 1.5.
It is difficult to understand the other arguments. It is obviously appropriate to consider the objects in the NSW Act when construing the provisions of the NSW Act so as to determine whether the s 12B(1)(a) prohibition is a substantive law, rather than a procedural law, applicable in the State of New South Wales. The fact that the Parliament of Western Australia has not adopted the reforms to the uniform defamation laws cannot affect the nature and character of s 12B(1)(a) of the NSW Act in the context of the objects of the NSW Act. There is no merit in par 1.7 of the ground of appeal.
The argument raised by par 1.6 of the ground of appeal concerns an alleged failure to recognise the availability of a s 18(1) defence. Three different strands of argument are apparent. First, the appellant says that the defence in s 18(1) of the WA Act will still apply. This is because, according to the appellant, s 18(1) of the WA Act will always apply in defamation proceedings commenced and conducted in Western Australia whatever the applicable substantive law (appellant's submissions pars 69 ‑ 81). In substance, according to the appellant, s 18(1) of the WA Act is a mandatory law of the forum in the sense described in Huntingdale Village Pty Ltd v Corrs Chambers Westgarth.[63]
Second, in the alternative, if s 18(1) of the NSW Act is part of the applicable law in a Western Australian court, the appellant says that the term 'concerns notice' in s 18(1) of the NSW Act is to be construed and understood by reference to its meaning in the WA Act rather than under s 12A of the NSW Act (appellant's submissions pars 82 ‑ 84). This contention should be rejected peremptorily as being entirely without merit. There is no foundation in the text, context or statutory purpose of s 18(1) of the NSW Act to construe the reference to 'concerns notice' in s 18(1) of the NSW Act disconformably with the concept of a concerns notice as defined and elaborated upon in s 12A of the NSW Act. That is particularly so where the conception of a concerns notice under the NSW Act is calibrated to the terms of the New South Wales legislation - the NSW Act contemplates that a concerns notice will address the serious harm element as introduced into the NSW Act.
Third, the appellant says that a s 18(1) defence under the WA Act will still be available applying the choice of law provision in s 11(1) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW) and provisions in equivalent cross‑vesting schemes (appellant's submissions pars 85 ‑ 89).
I will come to the first and third strands of the appellant's argument in support of par 1.6 of the ground of appeal in a moment. Before doing so the point ought to be made that these suggested issues are no more than an attempt to deflect the court from the real issue on the appeal. The true issue on the appeal is whether the s 12B(1)(a) prohibition in the NSW Act is a substantive law that is applicable in New South Wales. That issue is not answered by determining whether a defence under s 18(1) of the WA Act might be available where, as here, defamation proceedings are being conducted in Western Australia but the substantive law applicable in New South Wales is to be applied due to the operation of s 11(1) of the WA Act.
The appellant seeks to argue that the defence under s 18(1) of the WA Act is available as if that provides some forensic antidote to the defence under s 18(1) of the NSW Act being rendered nugatory in the absence of a concerns notice under s 12A of the NSW Act. Why that might be the case went unexplained. However, in my opinion, it does not follow that any availability of a defence under s 18(1) of the WA Act answers the point that the respondents made based on the availability and the operation of the defence under s 18(1) of the NSW Act. That point, which in my view is largely dispositive of the appeal, is developed further below.
The defence under s 18(1) of the NSW Act might be closely related to, but is still not the same as, the defence under s 18(1) of the WA Act. Whether the s 12B(1)(a) prohibition in the NSW Act is a substantive law that is applicable in New South Wales is to be determined as a matter of principle, based on the proper construction of the NSW Act as it applies in the State of New South Wales, rather than whether there might be an equivalent or closely related defence under the WA Act. Thus, even if there is merit in the remaining propositions that underpin par 1.6 of the ground of appeal, that alone is insufficient to uphold the appeal. It remains necessary to determine the true issue as previously described.
So far as, for these reasons, the point raised by par 1.6 of the ground of appeal is no more than a distraction, it is best to dispel the remainder of the appellant's argument by par 1.6 before turning to the real issue on the appeal.
There is no merit in the appellant's argument that s 18(1) of the WA Act is a mandatory law of the forum. That could only be the case if, despite s 11(1) of the WA Act, a legislative intention to that effect can be gleaned by implication from the subject matter or context of s 18(1) of the WA Act: Huntingdale Village Pty Ltd [130]. The appellant points to the speedy and non‑litigious dispute resolution object in s 3(d) of the WA Act and asserts that s 18(1) of the WA Act serves that dispute resolution object. The appellant says that s 18(1) of the WA Act is of public importance to the State - being intended to relieve the pressure on the courts of Western Australia - such that it has a territorial connection with Western Australia and is mandatory in character. The appellant also says that s 18(1) of the WA Act is a procedural law; and, insofar as s 18(2) refers to a 'court' and s 18(1) a 'defence', it should be construed as referring to a court of Western Australia and a defence filed in such a court.
Section 18(1) of the WA Act is referring to a 'defence' in the sense of an answer to a claim rather than a document filed in a court. There is nothing in the text, context or statutory purpose of s 18(2) of the WA Act to suggest that the term 'court' is confined to a court of Western Australia. The defence is found in s 18(1) rather than s 18(2). In context the reference to 'court' in s 18(2) is to any court that is tasked with determining whether an offer to make amends is reasonable rather than being confined to a court of Western Australia. I do not accept that the sole or even the predominant object of s 18(1) of the WA Act is to benefit the State of Western Australia by relieving the pressure on the courts of Western Australia. Section 18(1) of the WA Act benefits the publishers of alleged defamatory material by providing those publishers with a potential defence; s 18(1) of the WA Act also tends to benefit an aggrieved party by increasing the likelihood that the publisher will make a reasonable offer to make amends. It may be accepted that there is a potential for collateral benefit though the reduction of curial proceedings. But the primary beneficiaries of s 18(1) of the WA Act are the publishers of allegedly defamatory material and, to a lesser extent, persons aggrieved by allegedly defamatory material.
Nor, contrary to the central tenet of the appellant's thesis in support of this aspect of par 1.6 of the ground of appeal, is the statutory defence under s 18(1) of the WA Act to be characterised as a procedural law. It is a substantive law for the same reasons that the defence in s 18(1) of the NSW Act is a substantive law (see [243] ‑ [246] below). Once this point is reached it cannot be concluded that the necessary legislative intent ought to be implied as contended for by the appellant. To do so would be incompatible with the express words of s 11(1) of the WA Act - this, in circumstances such as the present, requires the application of the substantive law of another State or Territory to the exclusion of the substantive law of Western Australia.
The point that the appellant seeks to raise based on s 11(1) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW) and provisions in equivalent cross‑vesting scheme statutes is obscure. Section 11(1) provides:

[85]

It was expressly observed that these principles may require further elucidation in subsequent decisions: John Pfeiffer Pty Ltd [100].
The appellant submits that two alternative formulations of the distinction are identified in John Pfeiffer Pty Ltd. First, as to substantive laws, are those matters that affect 'the existence, extent or enforceability of the rights or duties of the parties'. Alternatively, as to procedural laws, are those rules directed to 'governing or regulating the mode or conduct of court proceedings'. The appellant says that the latter formulation, based on what was said by Mason CJ in McKain, is preferable. Five reasons are advanced in support of that contention. The appellant accuses the primary judge of error in focusing on the question of matters affecting the existence, extent or enforceability of the rights or duties of the parties. See appellant's submissions pars 41 ‑ 53; appeal ts 42 ‑ 43.
I do not accept that in John Pfeiffer Pty Ltd the plurality were providing alternative formulations of the distinction between substantive laws and procedural laws. It is not, contrary to the appellant's submission, necessary to decide which of two alternative formulations is preferable. If it were necessary to do so then it is not obvious that the appellant is correct to contend that the latter formulation is preferable. The plurality were sufficiently inclined towards the first formulation to go on in John Pfeiffer Pty Ltd to reiterate that 'laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws' [102].
Nothing is served by expressing a preference for one so‑called 'formulation' over the other. The plurality in John Pfeiffer were not offering a dictionary or statutory definition. Cases of the present kind should not be decided on a literal interpretation of the statements of principle in John Pfeiffer Pty Ltd as if their Honours were providing a statutory formula: Hamilton [128].
In John Pfeiffer Pty Ltd the plurality were explaining the conceptual distinction between substantive laws and procedural laws. The two formulations are descriptions - one is directed to the essence of a substantive law and the other is directed to the essence of a procedural law. The two formulations should not be considered as alternatives but rather should be considered together as part of the characterisation task that arises. That is implicit in the plurality's recognition that the principles may require further elucidation in subsequent decisions. It also follows from the accepted wisdom that in drawing the distinction between substance and procedure regard should be had to the purpose for which the distinction is being used and the consequence of the decision in the instant context: Lord Collins et al, Dicey, Morris & Collins on the Conflict of Laws (16th ed, vol 1, 2022) [4‑004]; Garsec Pty Ltd [111], [116].
The joint reasons of Mitchell JA and Cobby J discuss the facts and the outcome in John Pfeiffer Pty Ltd. A plaintiff sued in the Supreme Court of the Australian Capital Territory for damages for personal injury suffered in New South Wales. Part 5 of the Workers Compensation Act 1987 (NSW) limited the damages that could be awarded for non‑economic loss. The law of the Australian Capital Territory imposed no limit. A question arose as to whether the applicable law for the assessment of damages was New South Wales law or the law of the Australian Capital Territory. The High Court held that the limitation on damages was a matter of substance, rather than procedure, of the law of the place where the tort occurred. Consequently, the New South Wales law limiting the damages was the applicable law.
It can be seen from this brief description of John Pfeiffer Pty Ltd that it did not concern a 'notice before action' type requirement. Both in the appellant's single ground of appeal and in her written and oral submissions there was reference to the weight of authority in relation to such notice before action cases (the appellant seeking, at bottom, to analyse s 12B(1)(a) of the NSW Act as no more than a 'notice before action' requirement). This echoed the primary judge's acknowledgment that the weight of authority favoured characterising as procedural in nature notices and other pre‑action statutory requirements designed to encourage and facilitate the settlement of disputes: Aguasa v Hunter [52].
The second respondent warns against characterising s 12B(1) of the NSW Act as a 'notice before action' provision. The second respondent says that this is a self‑fulfilling oversimplification that ignores the differences in the NSW Act's legislative scheme when compared to the earlier decisions (second respondent's submissions par 35). I agree that care must be taken in applying and using the label. It is, however, convenient to use the terminology of 'notice before action' provided that it is understood that this label is not determinative of whether s 12B(1)(a) of the NSW Act is a substantive law that is applicable in the State of New South Wales.
In any event, the respondents seemingly acknowledge the weight of authority as asserted by the appellant and found by the primary judge (see eg first respondent's submissions par 16). It finds support in the work by Mortensen R, Garnett R and Keyes M, Private International Law in Australia (5th ed, 2023):

[91]

However, neither the scheme of the relevant division of the Personal Injuries Proceedings Act 2002 (Qld), nor the Act as a whole, created a new right or substituted a legislative scheme for common law rights [67]. Spigelman CJ stated that whether the pre‑commencement legislative requirements were substantive or procedural was not a matter which his Honour had found easy to determine [100]. Indeed, there had been 'some fluctuation of view' [104]. The Chief Justice's conclusion was, however, that the provisions did not affect 'enforceability' but rather concerned the 'regulation of the mode or conduct of court proceedings' and constituted part of the 'mechanism or machinery of litigation' [102], [104].
Spigelman CJ observed that 'significance' was not the sole touchstone of whether a particular statutory requirement could be classified as part of the substantive law - procedural matters are capable of having a substantive effect [92]. More material conclusion to Spigelman CJ's conclusion was that: (1) the legislative scheme assumed that some steps might have been taken in legal proceedings despite the apparent prohibition [93]; and (2) the legislative scheme indicated that some steps might be taken in legal proceedings despite the apparent prohibition [94] ‑ [95] (see also [97]).
In Wickham Freight Lines Pty Ltd the Court of Appeal in New South Wales held that s 134AB(1) and (2) of the Accident Compensation Act 1985 (Vic) were substantive in nature. By s 134AB(1) the recovery of damages for non‑pecuniary loss in respect of work‑related injuries was precluded unless sought in conformity with the section. By s 134AB(2) recovery of damages for such an injury was permitted in respect of 'a serious injury'. In s 134AB(3) and (4) qualifications were imposed on the right of recovery in respect of a serious injury (among other things precluding the bringing of proceedings) and means were specified by which it was to be determined whether 'a serious injury' had been suffered. The issue of importance for the present appeal was whether the latter statutory provisions stipulating the steps to be taken to determine whether an injury was a 'serious injury' applied to proceedings in a court of New South Wales.
Macfarlan JA (the other members of the court agreeing) held that s 134AB(1) and (2) were substantive as they were concerned with 'the kinds of damage, or amount of damages, that may be recovered' [12]. His Honour went on to reject a further submission that, even if those provisions were substantive, the subsections that followed providing for determination of whether an injury was a 'serious injury' were procedural. Macfarlan JA stated:

[98]

I would add that, in applying these principles to determine whether a legislative requirement is substantive or procedural, regard should be had to the purpose for which the distinction is being used and the consequence of the decision in the instant context (see [164] above).
The appellant devoted considerable energy to insisting that the primary judge should have followed Peros unless convinced that the decision was plainly wrong (and, according to the appellant, Peros was plainly correct rather than being plainly wrong) (appellant's submissions pars 14 ‑ 27; appeal ts 11 ‑ 12, 37 ‑ 38, 44, 50). Peros was concerned with the Defamation Act 2005 (Qld) (Queensland Act). The salient provisions of the Queensland Act are relevantly identical to the NSW Act. Nevertheless, whether the primary judge should have followed Peros is not to the point in this appeal. This court is not bound by the decision in Peros. It may be accepted that it is appropriate to consider the reasoning in Peros. Ultimately, however, the issue for determination on the appeal must be addressed at the level of principle rather than whether the primary judge should have followed Peros.
The joint reasons deal with Peros at length (see [50] ‑ [58] above). Save in one respect I will not repeat the extracts from Applegarth J's reasons in Peros that can be read in the joint reasons. In Peros the plaintiff commenced defamation proceedings in Western Australia without first giving a concerns notice. The proceedings were transferred to the Queensland Supreme Court. The defendants sought summary dismissal based on the omission to give a concerns notice. It was common ground, and the parties consented to a declaration, that the substantive law applicable in the proceedings was the law of Queensland. Applegarth J held that the commencement and conduct of the proceedings in the Supreme Court of Western Australia was not regulated by s 12B of the Queensland Act. This was because, in enacting s 12B, the Queensland Parliament did not manifest an intention that the provision should have extraterritorial operation [13], [90] ‑ [98], [102].
The extraterritoriality point that was determinative in Peros does not arise in the present appeal. If, as a matter of law, the s 12B(1)(a) prohibition in the NSW Act is a substantive law that is applicable in New South Wales for the purpose and within the meaning of s 11(1) of the WA Act, it applies in Western Australia by operation of the WA Act. See [90] ‑ [91] above. In that respect the appellant's submission that the procedural characterisation in Peros was an elaboration on the extraterritoriality ratio of the decision is not to the point (compare appellant's submissions par 17; appeal ts 38 ‑ 41).
The question whether the Queensland Parliament manifested an intention that s 12B should have an extraterritorial operation was an anterior issue arising before the substantive/procedural characterisation question [53]. However, notwithstanding that the extraterritoriality issue was determined in favour of the plaintiff, Applegarth J went on to consider whether s 12B of the Queensland Act should be characterised as a substantive provision or a procedural provision [102]. Accordingly, as the primary judge correctly observed, the conclusion arrived at by Applegarth J is obiter: Aguasa v Hunter [42].
Applegarth J concluded that the notice procedure in s 12B of the Queensland Act should be characterised as a procedural law rather than a substantive law [14], [160]. Applegarth J's detailed reasons for that conclusion are largely reproduced at [55] ‑ [58] above. In summary:
1. Section 12B was in a part of the statute designed to encourage the settlement of disputes prior to the commencement of legal proceedings and had that purpose [134], [156], [158]. In that respect, s 12B regulated the commencement and conduct of defamation proceedings as part of provisions that were clearly designed to encourage early settlement prior to the institution of proceedings [156].
2. The enactment of s 12A and s 12B, and the consequential amendments to s 14 and s 18, did not affect the 'enforceability' of the cause of action for defamation in the sense discussed by the plurality in John Pfeiffer Pty Ltd: Peros [156], [158]. The notice provision in s 12B was not part of a scheme that created a new right [135]. Nor was it part of a scheme that extinguished or modified a pre‑existing common law right to sue for defamation [156]. Instead s 12B regulated the enforcement of a pre‑existing common law right and was a provision related to the conduct of litigation being 'directed to governing or regulating the mode or conduct of court proceedings' [135], [156], [158].
3. The absence of an express provision by which the court might dispense with compliance with s 12B was not a basis on which to distinguish Hamilton: Peros [143].
4. The consequential amendment to the s 18(1) defence did not require s 12B to be characterised as substantive rather than procedural [144] ‑ [153]. While, in this respect, Applegarth J acknowledged that in a situation such as the present case a defence under s 18(1) would not be available, his Honour stated that:

[101]

The requirement in s 12B(1)(b) that the imputations relied on in the proceedings as filed be particularised in the concerns notice was distinctly procedural [154].
Applegarth J stated that he respectfully followed the approach in Hamilton in characterising what his Honour said was a 'similar notice before action provision' [159].
Before I leave the authorities I will briefly mention Allan J Panozza & Co Pty Ltd and Hodgson. I do so only because, by par 1.2 of the ground of appeal, the appellant alleged error in the primary judge failing to consider and follow these decisions. Any cursory examination of the decisions ought to have dissuaded even the most optimistic litigant from this submission.
Allan J Panozza & Co Pty Ltd was decided well before John Pfeiffer Pty Ltd. The proper law of a contract was Queensland law but the claim was being brought in New South Wales. The appellant asserts that the relevant Queensland statutory provision in Allan J Panozza & Co Pty Ltd is 'directly comparable' to s 12B of the NSW Act (appellant's submissions par 35). It is not. The statutory provision in Allan J Panozza & Co Pty Ltd did not provide for an absolute prohibition on commencement of proceedings without prior notice. The failure to do so might be excused where the court considered it was just that the claim should be enforceable due to death, incapacity or exceptional cause. Street CJ held that this saving clause was referable only to a Queensland court; thus it was a procedural stipulation (196). Reynolds JA also interpreted the word 'enforceable' as meaning enforceable in a Queensland court - it applied only to a court subject to the power of the legislature enacting the provision (197). Glass JA agreed with both Street CJ and Reynolds JA (198).
The court in Allan J Panozza & Co Pty Ltd was not called upon to characterise a notice before action requirement which interacted with other parts of a legislative package that had been introduced by amendment to vary a pre‑existing legislative regime. The legislative provision that arose for consideration was different from s 12B of the NSW Act. The result in Allan J Panozza & Co Pty Ltd has no bearing on the proper disposition of the present appeal.
Hodgson is the decision of a master in the Supreme Court of the Australian Capital Territory. The master held that a prefiling statement under relevant New South Wales legislation was procedural only. The master's reasons on the issue occupy a single paragraph [24]. There is no analysis of the relevant statutory provision, its context or the statutory purpose revealed by the provision. The most that can be said is that the master considered that this conclusion followed from the reasons given by Spigelman CJ and Handley JA in Hamilton. The decision is of no assistance in determining the question arising in the present appeal.
Nothing in Allan J Panozza & Co Pty Ltd or Hodgson demonstrates any error in the primary judge's reasoning process. Nor do those decisions, standing alone, provide any reason to doubt the primary judge's conclusion.

[102]

In contending that s 12B(1) of the NSW Act is a procedural law, not a substantive law applicable in the State of New South Wales, the appellant submits that (appellant's submissions par 32):
1. Section 12B of the NSW Act does not affect the enforceability of the cause of action for the tort of defamation in the sense discussed in John Pfeiffer Pty Ltd.
2. Section 12B of the NSW Act encourages the resolution of claims without resort to litigation like the Personal Injuries Proceedings Act 2002 (Qld) provisions considered in Hamilton.
3. Section 12B of the NSW Act is not part of a scheme that extinguishes or modifies a pre‑existing common law right. Nor does it substitute a legislative scheme for pre‑existing common law rights.
In doing so the appellant echoes, and evidently asks this court to accept, the analysis of Applegarth J in Peros [156], [158]. In oral submissions counsel for the appellant further argued, conformably with the extraterritoriality aspect of Peros, that s 12B(1)(a) of the NSW Act should be construed as only prohibiting the commencement of defamation proceedings in a New South Wales court without having given a concerns notice. Counsel also suggested that the territorial scope of the provision was a strong indicator of the procedural character of the provision (appeal ts 38 ‑ 41).
The appellant also seeks that the court approach the characterisation exercise conformably with what the appellant says is the weight of authority (referring to Hamilton, Allan J Panozza & Co Pty Ltd and Hodgson). It will be apparent from what I have already written that the appellant's reliance on Allan J Panozza & Co Pty Ltd and Hodgson is misplaced. The appellant's reliance on Hamilton, and its contribution to what counsel for the appellant refers to compendiously as the 'weight of authority', is better understood by reference to the more detailed arguments summarised at [191] above. In any case, while acknowledging the weight of authority characterising as procedural a 'notice before action' requirement, it remains necessary to examine the text, context and statutory purpose of s 12B(1)(a) of the NSW Act rather than to simply categorise the requirement as a notice before action provision.
In a related argument to the more detailed arguments summarised at [191] ‑ [192] above, the appellant submits that s 12B(1) of the NSW Act is procedural as its purpose is to serve case management objectives of the courts of New South Wales by minimising the burden of avoidable defamation litigation (appellant's submissions par 51). In addition the appellant says, conformably with par 1.4 of the ground of appeal, that the real issue for the primary judge was whether s 12B(1) of the NSW Act was substantive. This, according to the appellant, did not require construction of provisions of the NSW Act not in issue. In particular, as there was not a codified scheme, a provision specific approach was preferable in characterising s 12B(1) as substantive or procedural (appeal ts 44 ‑ 45, 49 ‑ 50; appellant's submissions pars 54 ‑ 61).
In the latter respect the appellant points to the discussion in Garnett R, Substance and Procedure in Private International Law (2012) as to whether foreign legislation should be classified in terms of individual provisions or as a package. The appellant's counsel drew attention to the statement that:

[106]

In contending that the court should approach the issue of characterisation on a stand‑alone basis, in terms of the individual provision, the appellant seeks to emphasise her preferred categorisation of s 12B(1)(a) of the NSW Act as being no more than a 'notice before action' provision.
It is implicit that, in so contending, the appellant eschews any consideration of the legislative context in which s 12B(1)(a) of the NSW Act was enacted or the place and role of s 12B(1)(a) in the NSW Act as a whole. That cannot be right. Whether a statutory provision is substantive or procedural involves an issue of statutory construction that requires consideration of the legislative regime. Modern statutory construction is anchored in text, context and purpose. Context should be regarded at the first stage, not at some later stage, and it should be regarded in its widest sense: SZTAL v Minister for Immigration and Border Protection.[67] So understood there is no basis for the appellant's contention that characterisation of s 12B(1)(a) of the NSW Act as substantive or procedural does not require consideration of the legislative regime of which s 12B is part. To characterise s 12B(1)(a) of the NSW Act as substantive or procedural in isolation would be contrary to principle and potentially productive of error.
Nor, properly understood, was such an approach to classification being suggested in the passage relied on from Substance and Procedure in Private International Law (see [195] above).
The author of that work was not suggesting that individual provisions should be classified divorced from their wider legislative regime. Rather, the author was there discussing whether foreign legislation should be classified in terms of 'individual provisions' or as a 'package'. The author did so by reference to cases in the United Kingdom and Canada (but also footnoted Hamilton as an example of a 'holistic' approach). In some instances there was a 'holistic' or 'global' approach - so, for example, where '[t]he greater part ... is clearly procedural ... those parts which could be arguably regarded as substantive should be treated as procedural as well' [3.04]. Similarly, it might be that the legislative framework could be seriously undermined if a provision was classified in isolation from the remaining provisions of a scheme [3.05]. On other occasions, however, the individual provision approach was more nuanced and capable of precise results [3.05]. Nevertheless, there were circumstances 'where its use is inappropriate' [3.05].
There is, however, no suggestion by the author in the work referred to above that where there is classification by individual provision the characterisation question is to be conducted in a vacuum uninformed by the statutory context. Indeed, one of the examples of the 'individual provision' approach given by the author at [3.04] is the decision of Lord Rodger in Harding v Wealands.[68] It is instructive that in Harding v Wealands his Lordship stated that in any given case the answer to whether a provision is substantive or procedural 'must depend on the construction of the relevant provision in the context of the particular statute' [72] (emphasis added).
The present appeal is concerned with whether s 12B(1)(a) of the NSW Act is to be applied as a substantive law that is applicable in the State of New South Wales. It is, in the circumstances, convenient to approach the task of characterisation by reference to the individual provision. However, this does not mean - as the appellant would have it - that s 12B(1)(a) of the NSW Act is to be evaluated on a stand‑alone basis. To the contrary, s 12B(1)(a) of the NSW Act must be considered in the context of the legislative regime of which it is part.
The immediate statutory context is pt 3 of the NSW Act. It must be accepted, consistent with the appellant's alternative submission, that viewed holistically pt 3 of the NSW Act has attributes that are distinctly more procedural than substantive. The part is concerned with the resolution of civil disputes without litigation. It would undoubtedly be desirable for the resolution of civil disputes without litigation to be informed by the existence, extent or enforceability of the parties' respective rights and duties. There is, however, no necessary correlation. The resolution of defamation disputes without resort to litigation is directed to the parties resolving their differences by agreement or compromise rather than making provision for their respective rights or duties as if there had been a curial adjudication. Part 3 of the NSW Act provides for an extra‑curial means by which an aggrieved person may vindicate his or her existing rights in relation to the publication of a matter that is, or may be, defamatory. In that sense pt 3 of the NSW Act is procedural. Accordingly, in evaluating whether s 12B(1)(a) of the NSW Act is a substantive law or a procedural law, it is material that, viewed in the broad, pt 3 of the NSW Act is distinctly procedural in nature.
Moreover, as Applegarth J correctly observed in Peros, there is an aspect of s 12B(1) itself that is distinctly procedural in nature - the requirement in s 12B(1)(b) of the NSW Act is one that regulates defamation proceedings by confining the pleaded imputation to reflect those notified in the concerns notice: Peros [154].
In concluding that, viewed in the broad, pt 3 of the NSW Act is distinctly more procedural than substantive, I do not overlook the respondents' submissions that s 12B of the NSW Act should be characterised in the context of the package of reforms introduced by the Defamation Amendment Act 2020 (NSW). I accept that many of those reforms involved matters of substantive law. The matters of substantive law provided for in the Defamation Amendment Act 2020 (NSW) include the introduction of the serious harm element to the cause of action for defamation; the removal of the triviality defence; the single publication rule; the issue of public interest defence; and the changes to the evaluation of damages. So too the changes to the Limitation Act 1969 (NSW) are substantive in nature.
While this is so the immediate statutory context in which s 12B(1)(a) of the NSW Act falls to be considered is pt 3 of the NSW Act rather than the wider reforms effected by the Defamation Amendment Act 2020 (NSW). The majority of the wider reforms do not bear on the concerns notice amendments effected by the Defamation Amendment Act 2020 (NSW). Accordingly, as I see it, the critical statutory context is found in pt 3 of the NSW Act rather than the Defamation Amendment Act 2020 (NSW). Put another way, s 12B(1)(a) of the NSW Act is to be evaluated by reference to its place and role within pt 3 of the NSW Act rather than the totality of the amendments effected by the Defamation Amendment Act 2020 (NSW).
I accept, in this respect, the appellant's counsel's submission that s 12B(1)(a) of the NSW Act does not have a meaningful interaction with the new serious harm element provided for in s 10A of the NSW Act (appeal ts 50). A concerns notice, if given, must identify the harm that the aggrieved person considers to be serious harm to the person's reputation (NSW Act, s 12A(1)(a)(iv)). But this is to better inform the publisher of the contended for serious harm so as to facilitate a meaningful offer to make amends. So understood this requirement furthers the purpose of s 12A and s 12B of the NSW Act and the concerns notice regime under the NSW Act, considered more fully below, rather than the amendment effected by the introduction of the serious harm element. Accordingly, the substantive nature of the serious harm element provides no warrant to characterise s 12B(1)(a) of the NSW Act as substantive. In any case the prohibition in s 12B(1)(a) of the NSW Act is one step further removed from the new serious harm element as introduced through s 10A of the NSW Act.
So too, in my opinion, the amendments effected to s 14B of the Limitation Act 1969 (NSW) - although themselves undoubtedly substantive in nature - provide no warrant to characterise s 12B(1)(a) of the NSW Act as substantive.
The extended limitation period provided for by s 14B(2) and (3) of the Limitation Act 1969 (NSW) is provided for in certain circumstances when a concerns notice is given. Accordingly, in this respect, there is a relationship between the giving of a concerns notice and a substantive law. That alone does not mean that s 12B(1)(a) of the NSW Act must be characterised as substantive in nature. The amendment to the Limitation Act 1969 (NSW) is also designed to further the purpose of the concerns notice regime under the NSW Act: it extends the limitation period so that, upon the giving of a concerns notice, there is available time for an offer to make amends and acceptance thereof unimpeded by the potential expiration of a limitation period.
There is no disconformity in characterising s 12B(1)(a) of the NSW Act as procedural while the automatic extension of the limitation period is undoubtedly substantive. The extension arises by operation of law whenever a concerns notice is given in the situation prescribed by s 14B(2) of the Limitation Act 1969 (NSW). The circumstance that the extension may not be required - depending on the characterisation of s 12B(1) of the NSW Act - does not inform let alone control the characterisation exercise. The extension is to facilitate the purpose of the concerns notice regime under the NSW Act rather than the prohibition in s 12B(1)(a) of the NSW Act.

[108]

I have already alluded to the statutory purpose of s 12A and s 12B of the NSW Act in the context of pt 3 of the NSW Act. See generally [112], [207], [209] ‑ [210] above. It is convenient to refer to these provisions, and the associated provisions elsewhere in pt 3, as the 'concerns notice regime'.
My expressed conclusion as to the statutory purpose of the concerns notice regime in the NSW Act has been arrived at in circumstances where, as I have previously recorded, the appellant contends for another, far more limited, statutory purpose. The appellant submits that the concerns notice regime serves the case management objectives of the courts of New South Wales by minimising the burden of avoidable defamation litigation. This, according to the appellant, has two consequences. First, s 12B(1)(a) of the NSW Act should be construed as only applying to a court of New South Wales (see [192] above). Second, s 12B(1)(a) of the NSW Act should be characterised as procedural in nature (see [194] above).
The appellant's contended for statutory purpose is too narrowly expressed having regard to: (1) the content of a concerns notice as prescribed by s 12A of the NSW Act; (2) the terms of s 12B of the NSW Act; and (3) the statutory context found in pt 3 of the NSW Act more generally including the content of and procedure for an offer to make amends (NSW Act, s 13 ‑ s 16), the effect of acceptance of an offer to make amends (NSW Act, s 17) and the terms and effect of s 18 and s 19 of the NSW Act. These provisions, taken together, are a legislative package to promote a scheme for the non‑litigious resolution of disputes about the publication of defamatory matter through the concerns notice regime.
It should be recalled that the purpose of a statute resides in its text and structure. Purpose must be derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of the relevant provisions. In considering purpose it is necessary to identify the purpose of the specific provision rather than the purpose of the enactment as a whole. See Certain Lloyd's Underwriters v Cross;[69] ADCO Constructions Pty Ltd v Goudappel.[70]
The statutory purpose behind the concerns notice regime in the NSW Act is to avoid litigation altogether. The provisions about concerns notices appear in pt 3 of the NSW Act. This is headed 'Resolution of civil disputes without litigation'. Part 3 of the NSW Act, as previously explained, furthers the object in s 3(d) of the NSW Act: it promotes non‑litigious methods of resolving disputes about the publication of defamatory matter. By contrast, pt 4 is headed 'Litigation of civil disputes'. The purpose of the provisions in pt 3 of the NSW Act is to avoid the litigation of civil disputes as provided for in pt 4 of the NSW Act. That will be the result where, following the giving of a concerns notice, an offer to make amends is made, accepted and carried out. See s 17(1) of the NSW Act.
Hence why I say that the statutory purpose behind the concerns notice regime in the NSW Act is to avoid litigation altogether.
It might, therefore, be thought surprising that the prohibition on commencement of defamation proceedings in s 12B(1) of the NSW Act is found in pt 3 rather than pt 4. What at first blush might be thought surprising ceases to be so when it is understood that the prohibition in s 12B(1) of the NSW Act is to further the purpose or object of the concerns notice regime. The prohibition on the commencement of defamation proceedings under s 12B(1) of the Act creates the opportunity for the parties to pursue the mechanism for non‑litigious dispute resolution provided for by pt 3 of the NSW Act - it allows time for the aggrieved party to give a concerns notice (NSW Act, s 12B(1)(a)) and for the proposed defendant to make an offer to make amends (NSW Act, s 12B(1)(c)).
The efficacy of the non‑litigious method for dispute resolution provided for under pt 3 of the NSW Act is dependent on the interlocking statutory provisions enacted in the Part. Specifically the legislative regime contemplates:
1. A concerns notice that provides sufficient information to a proposed defendant (NSW Act, s 12A) to allow the publisher, as proposed defendant, to make a meaningful offer to make amends (NSW Act, s 13 ‑ s 16). The concerns notice/offer to make amends process is central to the mechanism for non‑litigious dispute resolution as provided for by pt 3 of the NSW Act.
2. A prohibition on the commencement of defamation proceedings to allow for and better effectuate the concerns notice/offer to make amends process (NSW Act, s 12B(1)(a) and (c)). In this respect the prohibition in s 12B(1) of the NSW Act acts in aid of and is ancillary to the concerns notice/offer to make amends process. It performs a facilitative role similar in nature to that performed by s 19(1) of the NSW Act in providing for the inadmissibility of statements or admissions in connection with the making or acceptance of an offer to make amends.
3. A defence where an aggrieved person fails to accept a reasonable offer to make amends (NSW Act, s 18). This also acts in aid of and is ancillary to the concerns notice/offer to make amends process. The s 18(1) NSW Act defence provides an incentive to a publisher, as proposed defendant, to make a reasonable offer to make amends; and, at the same time, tends to impel an aggrieved person to accept a reasonable offer to make amends.
4. The aggrieved person no longer being able to assert, continue or enforce an action for defamation where an offer to make amends is made, accepted and carried out (NSW Act, s 17(1)).
While, for these reasons, I agree that the concerns notice regime in pt 3 of the NSW Act has the purpose of promoting a non‑litigious method of resolving disputes about the publication of defamatory matter, and thereby resolving civil disputes without litigation, I do not accept the statutory purpose as contended for by the appellant. This is because the appellant's contended for purpose is tied to the concerns notice regime serving the case management objectives of the courts of New South Wales. Such a specific and targeted purpose does not, in my opinion, emerge from the text or structure of the NSW Act. It is simply a desirable result that suits the appellant's argument. I do not accept that this is the statutory purpose behind the concerns notice regime in the NSW Act.
It follows that I reject the appellant's 'territoriality' based construction of s 12B(1)(a) of the NSW Act - ie that s 12B(1)(a) of the NSW Act should be construed as only applying to a court of New South Wales (see [192] above). That contended for construction relied entirely on the case management objective that the appellant ascribed to the statutory purpose of the concerns notice regime under pt 3 of the NSW Act.
Nevertheless, so far as the statutory purpose behind the concerns notice regime in the NSW Act is to avoid litigation altogether, and s 12B(1)(a) of the NSW Act facilitates that purpose, there is a basis for characterising the provision as procedural in nature. Doing so would be consistent with the approach of McPherson JA in Young v Keong,[71] one of the cases considered by Spigelman CJ in Hamilton. In Young v Keong the Court of Appeal in Queensland had to consider legislation which required a claimant to give written notice of a claim to an insurer before bringing an action in a court for damages for personal injury arising out of a motor vehicle action. McPherson JA stated:

[111]

It will be apparent from the foregoing that, while I have rejected key aspects of other parts of the appellant's submissions, I have effectively accepted the appellant's submission that s 12B(1)(a) of the NSW Act encourages the resolution of defamation claims without resort to litigation.
I do not accept, however, that s 12B(1)(a) of the NSW Act and the other provisions of pt 3 of the NSW Act are on all fours with the 'notice before action' requirement in Hamilton. Section 12B(1)(a) of the NSW Act provides for an absolute prohibition on the commencement of defamation proceedings without exception. In that regard s 12B(1)(a) of the NSW Act may be contrasted with s 12B(1)(c) of the NSW Act. In respect of the latter provision the court may excuse non‑compliance and grant leave to commence proceedings notwithstanding that the applicable period for an offer to make amends is yet to elapse. Likewise, in Hamilton, the legislation contemplated that proceedings might be commenced and proceeded with despite non‑compliance with the notice before action requirement.
The difference between the absolute prohibition in s 12B(1)(a) of the NSW Act and the legislation in Hamilton does not compel a different characterisation to that accepted in Hamilton. It simply means that, contrary to tenor of the appellant's submissions, the result in Hamilton does not require that s 12B(1)(a) of the NSW Act be found to be procedural in nature.
The absolute character of the prohibition in s 12B(1)(a) of the NSW Act must be taken into account. But it cannot be determinative. Applegarth J is correct to observe that, were it otherwise, every notice before action requirement would be substantive rather than procedural: Peros [120]. In any case, as Spigelman CJ's survey of the notice before action authorities in Hamilton demonstrates, a prohibition on the commencement of proceedings in the terms 'no action shall be commenced' has been said to be suggestive of a procedural requirement rather than an essential pre‑condition: Hamilton [74], [76] (referring to Kinzett v McCourt[72] and Harding v Lithgow Municipal Council[73]).
The appellant's submission that s 12B(1) of the NSW Act does not affect the enforceability of the cause of action for the tort of defamation in the sense discussed in John Pfeiffer Pty Ltd (see [191](1) above) asserts a conclusion rather than advancing a convincing reason why the provision ought to be characterised as procedural.
I accept, however, that, standing alone, nothing in s 12B(1)(a) of the NSW Act modifies or extinguishes the general law right to damages in respect of a cause of action for defamation. Section 12B(1)(a) of the NSW Act, standing alone, is concerned only with the procedural means by which a cause of action for defamation is to be commenced. It does, in this respect, 'regulate ... the commencement and conduct of defamation litigation as part of provisions that are ... designed to encourage early settlement prior to the institution of proceedings': Peros [156]. Insofar as s 12B(1)(a) of the NSW Act may be seen as being so directed to governing or regulating the mode or conduct of court proceedings - by governing or regulating the commencement thereof - it meets the description of a procedural law as adopted by the plurality in John Pfeiffer Pty Ltd.
It is also true that, to the extent that s 12B(1)(a) of the NSW Act precludes an aggrieved person from commencing defamation proceedings, it may in some sense be said to affect the enforceability of a right (the relevant 'right' being the cause of action for defamation in relation to the publication of the alleged defamatory matter). But as Applegarth J observed, any notice before action provision 'may be said to alter or modify the right to sue': Peros [157]. This is because it affects the process by which rights are enforced: Peros [158]. There is, however, no impact (and no relevant 'affect') on the existence or extent of the right. And, critically, the enforceability of the right is not extinguished by the prohibition; it is merely modified, by postponement, pending compliance with s 12B(1) of the NSW Act.
The question that then arises is whether in so modifying the aggrieved party's ability to commence defamation proceedings there is a matter that affects the enforceability of an aggrieved person's right in the sense described by the plurality in John Pfeiffer Pty Ltd.
It is not obvious to me that this is what the plurality in John Pfeiffer Pty Ltd had in mind when their Honours referred to matters that 'affect the existence, extent or enforceability' of rights or duties. There is a qualitative difference between such modification, by postponement pending fulfilment of pre‑commencement requirements, and the substantive laws at issue in John Pfeiffer Pty Ltd. Moreover, if such an 'affect' on the 'enforceability' of a right sufficed in all cases to characterise a law as substantive, then all notice before action provisions would be substantive. There are numerous decisions, including intermediate appellate court decisions, that have held to the contrary. Something more than such an affect on the enforceability of a right must be required.
These considerations are perhaps what informed the passage from Spigelman CJ's reasons in Hamilton that I have reproduced at [171] above. A notice before action requirement is only 'capable' of satisfying the description of a substantive law expressed in terms of matters that affect the enforceability of a right. Whether in a particular case it actually does so may be evaluated by reference to one of the ultimate conclusions in John Pfeiffer Pty Ltd: for example, whereas the effect of a limitation provision is to deny a remedy, can it be said that, as a matter of substance, the effect of a notice before action provision is to deny a plaintiff a right to commence proceedings at all?
Plainly that is not so in the present case. To this extent I accept that s 12B(1) of the NSW Act does not affect 'enforceability' in the sense that this term was used in John Pfeiffer Pty Ltd. That, however, is not the end of the enquiry. Hamilton and Wickham Freight Lines Pty Ltd identify other ways in which a notice before action provision is capable of satisfying the test for a substantive law expressed in terms of enforceability in accordance with the reasons of the plurality in John Pfeiffer Pty Ltd. Attention must then turn to whether, notwithstanding the statutory purpose served by the concerns notice regime under the NSW Act and the distinctly procedural nature of pt 3 of the NSW Act considered as a whole, s 12B(1)(a) of the NSW Act constitutes a condition precedent that is to be characterised as substantive as a matter affecting the enforceability of a right conformably with Hamilton [61] or Wickham Freight Lines Pty Ltd [15] ‑ [18].
It was not contended, and nor could it be contended, that s 12B(1) of the NSW Act was being employed in a legislative scheme that created a 'new right'. The relevant right - the cause of action for defamation in relation to the publication of the alleged defamatory matter - arose under the general law rather than the NSW Act. While, as has been discussed, the right was affected by the Defamation Amendment Act 2020 (NSW), those changes are not such as might justify the cause of action for defamation being termed a new right. In any case, as I have explained, to the extent that s 10A of the NSW Act introduced the serious harm element to the tort, there is no meaningful interaction between s 12B(1)(a) of the NSW Act and s 10A of the NSW Act. (It is, however, necessary to come back and examine the interaction between s 12B(1)(a) and s 18(1) of the NSW Act.)
Similarly, the affect on enforceability resulting from s 12B(1)(a) of the NSW Act is not in a context where pt 3 of the NSW Act entirely substitutes a legislative scheme for pre‑existing rights under the general law. There is no available analogy between the example of the New Zealand no fault liability scheme identified by Spigelman CJ in Hamilton and the legislative package providing for the concerns notice regime in the NSW Act.
The considerations raised by Wickham Freight Lines Pty Ltd are wider than the considerations identified in Hamilton. In Wickham Freight Lines Pty Ltd there was, as Macfarlan JA recognised, a legislative scheme that did not have the same breadth of operation as the New Zealand no fault liability scheme instanced in Hamilton: Wickham Freight Lines Pty Ltd [18]. Rather, the legislation at issue in Wickham Freight Lines Pty Ltd imposed qualifications on a worker's right to recover damages in respect of an injury arising out of, or in the course of, employment.
Some of the provisions under consideration in Wickham Freight Lines Pty Ltd were undoubtedly concerned with the kinds of damage, or amount of damages, that might be recovered - thus falling squarely within John Pfeiffer Pty Ltd. The significance for present purposes of Wickham Freight Lines Pty Ltd is that other provisions within the legislative regime - being an integral part of a scheme limiting and thereby modifying existing common law entitlements - were also characterised as substantive laws. This was because, viewed collectively, the provisions as a whole were a 'legislative package' from which particular elements going to the fundamental character of the scheme could not be isolated as a procedural provision. The affect on the enforceability of a right was more than mere postponement pending fulfilment of pre‑commencement requirements. The scheme limited damages to those arising from injuries determined to be serious in accordance with the legislative regime.
Wickham Freight Lines Pty Ltd is an illustration of how the characterisation task sometimes requires that an individual provision be classified conformably with other aspects of the scheme of the legislation (rather than in isolation) as otherwise the legislative regime may be 'seriously undermined' (see [200] above).
The present case is different from Wickham Freight Lines Pty Ltd. Part 3 of the NSW Act is not concerned with the kinds of damage, or amount of damages, that may be recovered. And, unlike Wickham Freight Lines Pty Ltd, the statutory purpose that underlies the concerns notice regime in the NSW Act is to avoid litigation altogether - something that is distinctly procedural in nature. Yet, in one material respect, pt 3 of the NSW Act - and s 12B(1)(a) of the NSW Act in particular - is concerned with and adapted to a substantive law. This arises from the interaction between the provisions in pt 3 of the NSW Act and the defence of failure to accept a reasonable offer to make amends in s 18(1) of the NSW Act.
The interaction between s 12B(1)(a) and s 18(1) of the NSW Act was at the forefront of the respondents' submissions in seeking to uphold the primary judge's conclusion.
It is important, in considering the respondents' reliance on the defence in s 18(1) of the NSW Act, to avoid reasoning in a way whereby the tail wags the dog. That is particularly so where, for reasons already given, pt 3 of the NSW Act is distinctly procedural in nature and the statutory purpose of the concerns notice regime is to avoid litigation altogether. However, it must also be recalled that in the present case the characterisation task is being undertaken for the purpose of determining whether s 12B(1) of the NSW Act is to be picked up and applied in Western Australia to determine a cause of action for defamation based on a matter published wholly within the State of New South Wales. The consequence of the classification, if it is found that s 12B(1)(a) of the NSW Act is a procedural law, will be that the defence in s 18(1) of the NSW Act is unavailable. That outcome is contrary to the 'no advantage' principle evinced by s 11(1) of the WA Act. By the appellant commencing defamation proceedings in Western Australia she will have excluded the potential operation of the defence in s 18(1) of the NSW Act.
The connection between the defence in s 18(1) of the NSW Act and s 12A and s 12B of the NSW Act is obvious. The defence under s 18(1) of the NSW Act is predicated on the giving of a concerns notice in accordance with s 12A of the NSW Act (see [129] ‑ [131] above). And, as I have stated, the prohibition in s 12B(1)(a) of the NSW Act acts in aid of and is ancillary to the concerns notice/offer to make amends process (the failure to accept a reasonable offer to make amends being central to the defence in s 18(1) of the NSW Act). In any case, as I have endeavoured to explain, the non‑litigious dispute resolution method provided for under pt 3 of the NSW Act is dependent on the interlocking statutory provisions enacted in the Part (see [218] above).
It is necessary, at this juncture, to explain why s 18(1) of the NSW Act is a substantive law. In oral submissions counsel for the appellant contended that s 18(1) of the NSW Act was a procedural law not a substantive law. The argument, in effect, was that the purpose of s 18(1) of the NSW Act was to encourage the settlement of defamation disputes; and, in that respect, that the whole of pt 3 of the NSW Act was procedural (appeal ts 45 ‑ 46). I accept that s 18(1) of the NSW Act has such a purpose. It is, however, like the related defence in s 18(1) of the WA Act, primarily for the benefit of the publishers of allegedly defamatory material and persons aggrieved by allegedly defamatory material (see [152] above).
Even accepting, as I must, that the statutory purpose of s 18(1) of the NSW Act and pt 3 of the NSW Act generally is material to the classification task, I reject the appellant's contention that s 18(1) of the NSW Act is not a substantive law that is applicable in the State of New South Wales. Section 18(1) of the NSW Act provides a publisher with a defence to an action for defamation. The deprivation of a defence is a matter of substance. A law which has that effect should be characterised as substantive: BHP Billiton Ltd v Schultz.[74] By parity of reasoning a law which provides a defence, thereby precluding a remedy, is a substantive law. It is not merely a law directed to governing or regulating the mode or conduct of court proceedings. It is a law affecting the existence, extent and enforceability of the rights of the aggrieved party against the publisher.
As Basten JA observed in Garsec Pty Ltd:

[113]

The conclusion that the s 18(1) NSW Act defence is substantive in nature is not impacted by Applegarth J's statement, in Peros, that the amendments to the equivalent to s 18(1) of the NSW Act (as to which see [127] ‑ [128] above) involved 'the reformulation of a statutory defence to take account of a procedural change': Peros [150]. (The words 'procedural change' may be put aside for present purposes: they assume the character of s 12B(1)(a) of the Queensland Act which his Honour was in the course of determining.)
In light of s 18(1) of the NSW Act, the concerns notice regime - and s 12B(1)(a) of the NSW Act in particular - is more than the imposition of a 'notice before action' obstacle to the commencement of defamation proceedings.
It would be one thing if s 12B(1)(a) of the NSW Act and the concerns notice/offer to make amends process did nothing more than further a statutory purpose of avoiding litigation altogether by promoting a non‑litigious method of resolving disputes about the publication of defamatory matter. If that was the case I would accept that s 12B(1)(a) of the NSW Act ought to be classified as a procedural law. In that circumstance, after the regular commencement of defamation proceedings, the notice before action component of the legislative regime in pt 3 of the NSW Act would have no further role. It could not 'affect ... the enforceability' of the rights or duties of the parties. But the operation of the concerns notice regime under pt 3 of the NSW Act is not so limited. Section 12A and s 12B(1)(a) of the NSW Act operate with other provisions in pt 3 to modify - or at least to potentially modify - the rights or duties of the parties to the defamation proceedings. That modification manifests in the defence of failure to accept a reasonable offer to make amends in s 18(1) of the NSW Act. The concerns notice regime has a continuing consequence for the purpose of that substantive defence.
In this way the pre‑commencement requirement to give a concerns notice under s 12B(1)(a) of the NSW Act has a continuing significance due to its operation together with the other components of the legislative regime. It is, so understood, an integral part of a legislative package that has as one of its key features a substantive defence in s 18(1) of the NSW Act that modifies the general law right to damages in respect of a cause of action for defamation.
The fundamental character of the legislative scheme in pt 3 of the NSW Act would be altered if the substantive defence in s 18(1) of the NSW Act was to become unavailable because s 12B(1)(a) of the NSW Act is properly to be characterised as a procedural provision (or 'isolated' as such to use the language of Macfarlan JA in Wickham Freight Lines Pty Ltd).
Thus, while standing alone s 12B(1)(a) of the NSW Act does not modify or extinguish the general law right to damages in respect of a cause of action for defamation, that is not determinative of the characterisation task in which I am engaged. The concerns notice regime - and s 12B(1)(a) of the NSW Act in particular - is inseparable from and ought not be considered in isolation as fulfilling a function distinct from the substantive defence provided for in s 18(1) of the NSW Act. Section 12B(1)(a) of the NSW Act is a substantive law because, in operation with s 18(1) of the NSW Act and the other provisions of pt 3, it may affect the enforceability of the rights or duties of the parties to an action in respect of a cause of action for defamation.
I appreciate that, in so concluding, I am departing from Applegarth J's obiter conclusion that s 18(1) of the Queensland Act does not require s 12B(1) of the Queensland Act to be characterised as substantive rather than procedural: Peros [150] ‑ [153].
Applegarth J's reasons for this conclusion are reproduced in the joint reasons at [58] above and have been summarised earlier in these reasons (see [184](4) above). Ultimately, while acknowledging that the s 18(1) defence will not be available where no concerns notice is given, Applegarth J typified this as a 'rare case': Peros [152]. His Honour explained the unavailability of the defence as being a consequence of s 12B of the Queensland Act not applying: Peros [152].
I do not accept Applegarth J's reasoning on this point. It is, to my mind, grounded in his Honour's earlier determination that the Queensland Parliament did not manifest an intention that s 12B of the Queensland Act should have an extraterritorial operation. Whether or not that is so does not matter for the purposes of this appeal. The present appeal is not concerned with extraterritoriality but rather with whether the prohibition in s 12B(1)(a) of the NSW Act is a substantive law that is applicable in New South Wales (see [182] above). If, however, I have misread Peros on this point, and his Honour was suggesting that s 12B of the Queensland Act did not apply because it was a procedural law, the reasoning is circular.
In my view, contrary to the obiter conclusion reached in Peros, s 18(1) of the NSW Act does require s 12B(1)(a) of the NSW Act to be characterised as a substantive law rather than a procedural law. I would, for this reason, respectfully decline to follow Peros insofar as Applegarth J concluded that the Queensland Act equivalent to s 12B(1)(a) of the NSW Act was a procedural law.
I can well understand the primary judge's expressed hesitation in concluding that s 12B(1)(a) of the NSW Act should be characterised as a substantive law: Aguasa v Hunter [57]. However, in the end I am driven to that conclusion because of the interaction between the concerns notice regime in pt 3 of the NSW Act, of which s 12B(1)(a) of the NSW Act is an integral part, and the substantive defence in s 18(1) of the NSW Act. For that reason the s 12B(1)(a) prohibition in the NSW Act is a substantive law that is applicable in New South Wales for the purpose and within the meaning of s 11(1) of the WA Act. The single ground of appeal fails.

AGUASA -v- HUNTER [2026] WASCA 37 (25 March 2026)

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