WA’s Defamation Law Gap and What It Means for Your Claim

If you have been defamed by a publication originating in New South Wales, Victoria, or another reformed jurisdiction, you might think filing proceedings in Western Australia could let you avoid the defamation act concerns notice requirement. WA is now the only Australian jurisdiction that has not adopted the Stage 1 uniform defamation reforms. On the surface, that looks like an opportunity. In practice, a provision known as the “no advantage” rule closes it, and the WA Court of Appeal has now confirmed exactly how.

Understanding how this works can save you from having your proceedings dismissed before they even get started.

Overview of Stage 1 Reforms and WA’s Status

In 2021, most Australian states and territories enacted changes to the uniform Defamation Act 2005. These changes included:

  • A serious harm threshold, requiring plaintiffs to prove that the publication caused or was likely to cause serious harm to their reputation.
  • A mandatory concerns notice process, meaning you must serve a valid concerns notice on the publisher and wait a specified period before you can file proceedings in court.
  • A public interest defence for responsible journalism.
  • A single publication rule affecting limitation periods for online content.

New South Wales, Victoria, Queensland, South Australia and the ACT commenced these reforms on 1 July 2021, with Tasmania following from 12 November 2021. The Northern Territory adopted the reforms with effect from 11 August 2025. Western Australia now stands alone. It still operates under the original 2005 version of the Act, without the serious harm requirement or the mandatory concerns notice regime.

This creates a discrepancy. Where there is a discrepancy in defamation law between states, the “no advantage” rule applies.

The ‘No Advantage’ Rule: Section 11 of the Defamation Act

Section 11(1) of the Defamation Act 2005 exists in every Australian state and territory, including WA. It provides that if a publication occurred wholly within another Australian state or territory, the substantive law of that place applies to determine the defamation claim, regardless of where the proceedings are filed.

The purpose is clear. A plaintiff should not gain a substantive advantage by choosing to sue in one state rather than another. If the defamatory material was published in NSW, the substantive defamation law of NSW applies to your claim, even if you bring proceedings in Perth.

This is the “no advantage” principle. It prevents forum shopping, where a plaintiff picks the most favourable court to gain a legal edge.

Settled Law: Concerns Notices Are Substantive

This is a pivotal issue. WA does not have a concerns notice requirement, whereas NSW, Victoria and every other Australian jurisdiction now do. Therefore, if you file proceedings in WA regarding a publication that occurred in NSW, the court must determine whether the NSW concerns notice requirement applies.

The answer depends on whether the concerns notice process under sections 12A and 12B of the reformed Act is classified as substantive law, which follows the publication, or procedural law, which belongs to the court where you file.

The WA Court of Appeal has now settled the question. In Aguasa v Hunter [2026] WASCA 37, the Court unanimously held that the mandatory concerns notice requirement in section 12B of the NSW Act is substantive law for the purposes of section 11(1) of the WA Act. The plaintiff had sued in the Supreme Court of Western Australia over emails published wholly in New South Wales, without serving any concerns notice. The proceedings were summarily dismissed at first instance, and the Court of Appeal upheld that outcome. The Court declined to follow earlier Queensland obiter in Peros v Nationwide News Pty Ltd [2024] QSC 80, which had suggested the requirement was merely procedural.

The reasoning reflects the substance of the regime. The requirement is not a mere filing formality. It restricts the right to commence proceedings, the court has no power to excuse non-compliance, and it is bound up with the substantive defence that arises where a publisher makes a reasonable offer to make amends. A plaintiff who has not served a valid concerns notice, and allowed the required response period to pass, has not satisfied the preconditions to bring the claim.

The practical consequence is that if the defamatory material was published in a reformed jurisdiction, you must comply with that jurisdiction’s concerns notice regime, even if you are suing in WA.

What This Means If You Are Considering a Claim

If you live in Western Australia or are considering filing proceedings there, you need to work out where the publication occurred. In defamation law, publication occurs where the material is read, heard or downloaded, not where the author sits. This determines which version of defamation law applies to your case.

A few examples:

  • Defamatory emails sent to a recipient in NSW. The publication occurred wholly in NSW. The NSW concerns notice regime, serious harm threshold and available defences all apply, even if you sue in WA. These were the facts of Aguasa v Hunter.
  • A defamatory article on a Sydney-based news website. Online material is read wherever readers access it, so publication usually occurs in multiple states. The court applies the law of the jurisdiction with the closest connection to the harm, which is often where you live and where your reputation suffered.
  • A defamatory Google review posted by someone in Melbourne targeting a WA business. The review is read mainly by a WA audience and the harm is felt in WA, so the closest connection will likely be with WA. WA law would then apply despite the poster’s Victorian location.
  • A defamatory Facebook post made by a WA resident, to a WA audience, about a WA person. WA law applies. No concerns notice is required under the current WA Act.

Where the publication crosses state boundaries, the analysis becomes more complex. The Defamation Act includes a separate choice of law rule for multi-state publications under section 11(2), where the court applies the law of the jurisdiction with which the harm has its closest connection, considering matters such as where you ordinarily reside, the extent of publication in each state and the extent of harm in each state. Working out which state’s law applies in cross-border cases requires careful legal analysis.

Do Not Skip the Concerns Notice

If you get this wrong, the consequences are serious. A court can summarily dismiss your proceedings if you have not served a valid concerns notice when one was required. That is what happened in Aguasa v Hunter. A dismissal on this ground is not a decision on the merits, so you may be able to serve a compliant notice and start again, but only if the limitation period has not expired. Defamation claims must be brought within one year of publication. Serving a concerns notice within the final 56 days of that year extends the period by up to 56 days, and a court can extend the period to a maximum of three years, though the tests for extension are strict. In practice, a dismissed claim close to the limitation deadline may be a claim you cannot revive.

The concerns notice itself must meet specific content requirements. It must be in writing, identify where the publication can be accessed, set out the defamatory imputations you say it carries, and explain the serious harm you have suffered or are likely to suffer. A letter that simply says “you defamed me, take it down” will not satisfy the statutory requirements. The imputations matter: in any later proceedings you are generally confined to the imputations set out in the notice or ones substantially the same.

After serving the notice, you must allow the publisher a reasonable opportunity to respond, including through an offer to make amends. Only after that process has played out can you commence proceedings.

The Bigger Picture: WA’s Growing Divergence

WA’s decision not to adopt the reforms creates real complications for anyone involved in defamation disputes that cross state lines. The disparity is widening. Stage 2 reforms addressing digital intermediary liability, which clarify the law in light of the High Court’s findings in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 and Google LLC v Defteros [2022] HCA 27, commenced in NSW and the ACT from 1 July 2024, in Victoria from 11 September 2024, in the Northern Territory from 11 August 2025, and in Queensland and Tasmania later in 2025. South Australia has adopted only part of the Stage 2 package. WA has adopted none of it.

For businesses that operate nationally, or individuals defamed online where publication can reach every state simultaneously, the choice of law question demands attention at the very start of the process. Getting it wrong does not just weaken your case. It can end it.

What You Should Do Now

If you believe you have been defamed and are unsure which state’s law applies, or whether you need to serve a concerns notice before commencing proceedings, get proper legal advice early. A defamation lawyer in Melbourne or elsewhere who understands the interplay between state jurisdictions can identify the applicable law and ensure your claim is properly set up from day one.

At Sutton Laurence King Lawyers, we assess defamation claims from across Australia and provide fixed fee quotes where possible. We can help you work out the correct jurisdiction, prepare and serve a compliant concerns notice if one is required, and pursue your claim through the appropriate court. Contact us at [email protected] to discuss your situation.

This is general information only, not legal advice. You should obtain independent legal advice about your specific circumstances.