The Court of Appeal held that s 12B of the Defamation Act 2005 (NSW), which prohibits commencement of defamation proceedings without a prior concerns notice, is a substantive law for the purposes of the choice of law provision in s 11(1) of the Defamation Act 2005 (WA). Accordingly, where defamatory matter is published wholly within New South Wales, a plaintiff commencing proceedings in Western Australia must comply with the s 12B concerns notice requirement, and failure to do so warrants dismissal. The Court treated the 2020 NSW amendments — including the serious harm element (s 10A), the concerns notice regime (ss 12A–12B), the amended s 18 defence, and the limitation period extension — as a coherent legislative package that materially restricts the right to commence defamation proceedings, rather than merely regulating the mode or conduct of court proceedings, expressly departing from the obiter view of Applegarth J in Peros.
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