Defamation law in Western Australia: how it differs from the rest of Australia

For fifteen years Australia had genuinely uniform defamation legislation. Since 1 July 2021 that has not been true. Every state and territory other than Western Australia has enacted the Stage 1 Model Defamation Amendment Provisions, and all except WA and, in part, South Australia have since enacted the Stage 2 provisions dealing with digital intermediaries. Western Australia’s Defamation Act 2005 remains in its original form, and a member of the WA Court of Appeal has described the result as a fragmentation of the uniformity of Australian defamation law.¹

This article explains what that means for anyone publishing in, or defamed in, Western Australia: which pre reform rules still apply, how the surviving triviality defence works, how limitation periods run, and how the choice of law rule deals with publications that cross the border.

Status of reform in WA

The WA Attorney General said in October 2026 that work to implement the Stage 1 reforms and the Stage 2 Part A reforms (the part of Stage 2 dealing with digital intermediaries, as distinct from Part B, which extended absolute privilege to reports to police) was under way and that legislation would be introduced once finalised, with the reforms to be consistent with the Model Defamation Provisions adopted elsewhere, including a serious harm test and a single publication rule.² No bill had been introduced to the WA Parliament when this article was written. Until legislation passes and commences, the position described below continues, and even after commencement the new provisions will almost certainly apply only to publications made after the commencement date, as they did in the other jurisdictions.

What has not changed in WA

The Defamation Act 2005 (WA) is still the Act as passed in 2005, with no amending Acts listed in its compilation table.³ The practical consequences are these.

There is no serious harm element. A WA plaintiff need only prove publication of defamatory matter identifying them; damage is presumed. In the reformed jurisdictions s 10A requires the plaintiff to prove the publication has caused, or is likely to cause, serious harm to reputation, and the Full Court of the Federal Court has confirmed that this is a substantive element to be assessed by reference to the plain meaning of “serious”.⁴

There is no mandatory concerns notice. In the reformed jurisdictions s 12B prohibits commencing proceedings until a concerns notice complying with s 12A has been given and the 28 day period for an offer to make amends has expired. In WA, Part 3 of the Act still contains the offer to make amends regime, and a concerns notice remains relevant because s 14 provides that an offer cannot be made once 28 days have elapsed since a concerns notice was given, or once a defence has been served.⁵ Concerns notices are therefore still routinely sent in WA, but a plaintiff who sues without one has not breached any statutory precondition.

Contextual truth retains its original wording. Section 26 of the WA Act requires the defendant to prove that the matter carried, in addition to the imputations complained of, one or more contextual imputations that are substantially true, and that the plaintiff’s imputations do no further harm because of them.⁶ The 2021 amendments elsewhere allowed a defendant to rely on the plaintiff’s own imputations as contextual imputations, reversing case law that had prevented this. In WA that case law still applies.

There is no public interest defence and no peer review defence. Sections 29A and 30A do not exist in the WA Act. The statutory qualified privilege defence in s 30 retains its original list of ten reasonableness factors, which include the extent to which the matter was of public interest, the sources of the information and whether the plaintiff’s side of the story was sought.⁷ A WA media defendant relying on s 30 is therefore arguing under a provision that still has public interest journalism in view. The historical difficulty is that mass media publishers have rarely satisfied the reasonableness test.

The triviality defence survives, as discussed below.

The damages cap works differently. Section 35(1) of the WA Act caps damages for non economic loss (compensation for injury to reputation and hurt feelings, often called general damages) at the declared maximum, and s 35(2) permits the court to exceed the cap if, and only if, it is satisfied that the circumstances of the publication warrant an award of aggravated damages.⁸ The declared amount in WA from 1 July 2026 is $520,000, the same figure as in the other jurisdictions.⁹ The Victorian Court of Appeal held in Bauer Media Pty Ltd v Wilson (No 2) that under this wording, once aggravated damages are warranted the cap becomes inapplicable altogether, so that the court may award more than the cap for both ordinary and aggravated compensatory damages.¹⁰ The 2021 amendments elsewhere reversed that outcome by providing that the cap applies as a scale with the maximum to be awarded only in “a most serious case” and aggravated damages assessed separately; the Full Court of the Federal Court applied that reformed mechanism in Latham v Greenwich, where the capped award for non economic loss and the separate aggravated damages were assessed under s 35(2A) and (2B) of the NSW Act.¹⁷ In WA, Bauer still represents the law, so that once aggravated damages are warranted the cap falls away.

There is no single publication rule. Each download of online material is a fresh publication with its own limitation period.

None of the Stage 2 provisions exist. There are no exemptions for caching, conduit, storage or search engine services, no complaints based defence for digital intermediaries, no express power to make orders against intermediaries that are not parties, and no absolute privilege for complaints to police. Online intermediaries in WA remain subject to the general law and the innocent dissemination defence in s 32.³

The triviality defence

Section 33 of the WA Act provides that it is a defence if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.¹¹ The reformed jurisdictions repealed this defence in 2021 because the serious harm element made it redundant. In WA it remains the main statutory tool for defending trivial or very limited publications.

The courts have read the defence narrowly. The Queensland Court of Appeal in Smith v Lucht, considering the identical Queensland provision before its repeal, held that “any harm” in s 33 is confined to harm to reputation and does not extend to hurt feelings, and that the inquiry is directed to the circumstances at the time of publication rather than to what actually happened afterwards.¹² In that case a solicitor was called “Dennis Denuto” in an email and two conversations within a family dispute; the Court upheld the dismissal of the claim on the basis of triviality.¹²

In Western Australia, Le Miere J applied the defence in Armstrong v McIntosh (No 4), concerning text messages sent to a single friend during a family property dispute. His Honour held that the defendant must show the absence of a real chance or real possibility of harm to reputation, found that the defendant had not established this for any of the publications, and the court awarded the plaintiff $6,500, including $1,500 in aggravated damages.¹³ The case illustrates both sides of the defence. It is available where publication is confined to one or two recipients, but it will fail if the defendant cannot exclude a real possibility of reputational harm. Where it fails, the award reflects the limited publication.

Two features distinguish triviality from the serious harm element. The onus is on the defendant, not the plaintiff. And the test is whether harm was unlikely, not whether harm was serious, so publications that would fail the serious harm threshold elsewhere can still succeed in WA.

Limitation periods in WA

The Limitation Act 2005 (WA) provides in s 15 that an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.¹⁴ Under s 40, a plaintiff may apply for leave to commence out of time, and the court must extend the period if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year, subject to an absolute bar once three years have elapsed.¹⁴

That is the original uniform formula. The reformed jurisdictions changed the extension test in 2021 to whether it is “just and reasonable” to allow the action to proceed, added a single publication rule so that time runs from the first publication, and added an automatic extension where a concerns notice is given near the end of the year.¹⁵ None of those changes apply in WA. For online material, the absence of a single publication rule means a WA plaintiff may still be within time for recent downloads of material first posted years earlier, provided WA law governs the claim.

Choice of law: when WA law applies

Section 11 of the WA Act, which is in the same terms in every jurisdiction, provides that if matter is published wholly within one Australian jurisdictional area, the substantive law of that area applies, and if it is published in more than one area, the substantive law of the area with which the harm occasioned by the publication as a whole has its closest connection applies.¹⁶

This rule, not the location of the publisher or the court, decides whether the WA Act or a reformed Act governs. Three situations are common.

A WA publisher whose material was read mainly in another state will be judged under that state’s law. In Aguasa v Hunter, emails sent to a recipient located in New South Wales were, on the agreed facts, published wholly in New South Wales. The plaintiff sued in the WA Supreme Court without giving a concerns notice. The WA Court of Appeal held that s 12B of the NSW Act, which prohibits proceedings without a concerns notice, is a substantive rather than a procedural provision, so that it applied to the WA proceedings through s 11(1) of the WA Act, and the dismissal of the proceedings was upheld.¹ The Court declined to follow the contrary view expressed in Peros v Nationwide News Pty Ltd in Queensland.¹

The consequence is that a complainant in WA who intends to sue over material published in a reformed jurisdiction must comply with that jurisdiction’s pre action requirements, including a compliant concerns notice and the 28 day waiting period, and must be prepared to prove serious harm.

Conversely, a publisher in another state whose material is read mainly in WA may find that the WA Act applies: no serious harm element, the triviality defence available, no public interest defence, and the Bauer approach to the damages cap. For national online publications, where the material is read in every jurisdiction, the court must identify the place with the closest connection to the harm, which usually means where the plaintiff lives and works.

Procedural matters remain governed by the law of the forum. Which rules are substantive and which procedural is not always obvious; Aguasa resolved the question for the concerns notice requirement, but others, such as the mandatory nature of jury elections or costs provisions, may still be contested.

Practical implications

For publishers in WA, the main message is that the WA Act’s protections are thinner than elsewhere. There is no serious harm filter to dispose of weak claims early, no public interest defence for careful reporting, and no statutory safe harbour for online intermediaries. On the other hand, the triviality defence is available for genuinely limited publications, and publishers cannot rely on the absence of a concerns notice as a ground for striking out a claim.

For complainants in WA, the absence of a serious harm element and a mandatory concerns notice lowers the entry barrier to litigation, but the courts remain alert to trivial claims, awards for limited publications are modest, and a claim over material read mainly interstate will be governed by the reformed law of that place whatever court it is brought in.

For both, the position is temporary. Reform legislation has been promised. Anyone with a dispute that may continue into 2027 should consider how the transitional provisions of the eventual WA amendments affect the timing of publication, complaint and proceedings, bearing in mind that those provisions will most likely apply only to post commencement publications.

Getting advice

Because the applicable law depends on where the material was read rather than where the parties are, a Western Australian publication or complainant can be subject to either the old or the new rules, and the differences affect every stage from the first letter to the damages award. Advice on the choice of law question should be obtained before any concerns notice is sent or any proceeding commenced.