Plaintiff Opposes Determination of Serious Harm Element
Wilks v Qu (Ruling) [2022] VCC 620 (12 May 2022)
The defendant filed for an application for the serious harm element to be determined before trial of proceeding commences. The plaintiff submits that the serious harm element is so inextricably linked to the issues of defamatory meaning, extent of publication and reputational damage. The Court, in determining whether there are special circumstances justifying the postponement of the determination of serious harm to a later stage of the proceeding, relied upon relevant jurisprudence and the Defamation Act 2005.
Facts:
The plaintiff, Robert Lewis Wilks, has been a senior figure in the Australian and international powerlifting community for many years, including as chief executive officer of Powerlifting Australia Limited (“PA”), as a senior coach of the Australian powerlifting team and as a founding member of the Melbourne University Weightlifting & Powerlifting Club (“MUWPC”).
At the time of the events complained of, he was also the coach of the defendant, Dori Qu, who, at that time, was a twenty-two-year-old student and member of the MUWPC. Mr Wilks alleges that Ms Qu defamed him in four publications. Two publications were in the form of private messages via Facebook Messenger and Instagram to individuals, and referred to as “the First SMS Messages” and “the Second SMS Messages”. In both these messages, Ms Qu told the recipients that she had been sexually harassed by Mr Wilks.
Ms Qu sent an email to two PA members, Sandra Upton and Stacy Rocco (“the PA Email”), and an email to Thomas Mullumby at the University of Melbourne (“the Melbourne University Email”). Both emails were headed “sexual harassment case”. Ms Qu wrote, amongst other things, that during a period when she was isolated and vulnerable, Mr Wilks asked for sexual favours, would get angry, start crying or would tell her how hurt he was if she said no. In the Melbourne University Email, Ms Qu wrote that Mr Wilks “abuses his power over the students he’s supposed to be coaching and caring for” and that he should not be on campus around young students.
Mr Wilks claims that various imputations arise from the publications. The imputations are in dispute, although Ms Qu acknowledges that the meanings conveyed by the allegations are serious (and would be defamatory).
Mr Wilks says he was in an “intimate relationship” with Ms Qu which he terminated prior to her sending the messages and emails. The plaintiff submits that the serious harm element is so inextricably linked to the issues of defamatory meaning, extent of publication and reputational damage that there are special circumstances justifying the postponement of the determination of serious harm to a later stage of the proceeding. However, under that the threshold question should not be determined prior to trial unless it was practicable to do so or by including practicability as one of the considerations in determining “special circumstances
Issue:
Whether or not there are “special circumstances” justifying the postponement.
Applicable law:
Defamation Act 2005, s10A - provides that “If a party applies for the serious harm element to be determined before the trial for the proceeding commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding (including during the trial).”
Civil Procedure Act 2010 - requires the Court to further the overarching purpose of that legislation by having regard to the efficient use of judicial and administrative resources.
Defamation Act 2013 (UK), s1 - provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 - introduced amendments to the Act which came into effect on 1 July 2021 and were thus operable at the time of publication.
Migration Act 1958 (Cth), s198 - relied upon in relation to the removal from Australia of unlawful non-citizens.
Crimes Act 1958 (Vic), s327(2) - prescribes, by way of illustration, the period in which persons must disclose information.
Lachaux v Independent Print Ltd and Anor [2020] AC 612 - the Supreme Court of the United Kingdom held that a statement which would previously have been regarded as defamatory because of its inherent tendency to cause some harm to reputation would not satisfy the requirements of s1 of the UK Act.
Murphy v Victoria [2014] VSCA 238; (2014) 45 VR 119 - established the test for setting a matter down for determination of a preliminary point pursuant to r47.04 of the Rules.
Tepko Pty Ltd v Water Board (2001) 206 CLR 1 - provides that the attractions of trials of issues rather than of cases in their totality, “are often more chimerical than real”, so that separate trials should “only be embarked upon when their utility, economy and fairness to the parties are beyond question."
Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449 - provides that the advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding.
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 - provides that there should be no trial of a separate question on the basis of assumed facts unless the facts are agreed or can readily be determined judicially. Otherwise, the parties remain free to dispute the relevant facts at any later trial.
Jacobson v Ross [1995] VicRp 24; [1995] 1 VR 337 - provides that as a general rule, it is inappropriate to order that a preliminary issue be isolated for determination unless the determination of the issue in favour of the plaintiff or defendant will put an end to the action, or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 - the Court held that “[t]he notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised”.
Hogben and Secretary, Department of Social Services (Social services second review) [2020] AATA 985 - provides that "Special circumstances provisions are ‘release valves’ such that strict application of the rules in the circumstances would create an injustice and that is unfair, unjust or an unintended outcome.”
IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; (2011) 38 VR 303 - provides that “Special circumstances” must be based on “the facts at hand”.
Analysis:
The plaintiff submits that the serious harm element includes harm that is “likely” to be caused. At this stage, the “harm” is ongoing and not yet quantifiable. The idea that serious harm might not yet exist, but could exist in the future, and that this could amount to special circumstances, would appear to be contrary to the intention of the legislation which provides strict time limits for defamation claims, and the overarching obligations of the Civil Procedure Act.
The imputations were serious, and included that the plaintiff had stalked and tried to strangle his ex-wife. The publications were to the plaintiff’s parents. There was a small grapevine effect but those who heard of the allegations from the plaintiff’s parents did not believe them and the judge was satisfied that no one other than the plaintiff’s parents had read the publication. The evidence was, at its highest, that the parents were angry and suspicious about the plaintiff for a number of weeks.
However, there was no evidence of lurking doubt and the plaintiff’s mother apologised to him for having doubts about him. In this case there has been harm to the plaintiff’s reputation. A number of members of the PA board resigned, and the University banned him. What is not yet established is whether those consequences arise from the imputations.
Conclusion:
The Court is not persuaded that the issues raised in determining serious harm are so inextricably linked to other issues that disentanglement is impossible or undesirable, or that the link between serious harm and other issues amounts to “special circumstances”. The various matters that arise in this case do not amount to special circumstances such as to obviate the requirement of the Court to determine the serious harm element as soon as practicable. Accordingly, the application is granted and the question of serious harm will be listed for hearing prior to trial.
