Qu v Wilks

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0098

DORI QU (ALSO KNOWN AS QINGSHI QU, YINGSHI QU AND DORI DENG)	Applicant
v
ROBERT LEWIS WILKS	Respondent

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JUDGES:	BEACH, KENNEDY and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2023
DATE OF JUDGMENT:	25 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 198
JUDGMENT APPEALED FROM:	[2022] VCC 1503 (Judge Clayton)

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DEFAMATION – Serious harm element of cause of action – Whether serious harm element required to be determined before trial – Whether special circumstances existed justifying postponement of determination of serious harm element to trial of proceeding – Whether serious harm element linked to other issues for determination during trial of proceeding – Whether primary judge erred in postponing determination of serious harm element to trial.

PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal interlocutory question of practice and procedure – Proposed appeal not having real prospect of success – Residual discretion to refuse leave to appeal from decision as to practice and procedure where no substantial injustice in leaving decision unreversed – Application for leave to appeal refused.

WORDS AND PHRASES – ‘Serious harm to reputation’ – ‘Special circumstances’.

Defamation Act 2005, s 10A(1), (5) and (6).

Newman v Whittington [2022] NSWSC 249, Soriano v Societe D’Exploitation de L’Hebdomodaire Le Point SA [2022] EWHC 1763 (QB), Carra v Hamilton (2001) 3 VR 114, R v Simpson (2001) 53 NSWLR 704, Beadle v Director General of Social Security (1985) 60 ALR 225, Selkirk v Hocking [2023] FCA 432, RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50 and Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 referred to.

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Counsel
Applicant:		Ms GL Schoff KC with Mr TJ Mullen and Ms H Jager
Respondent:		Mr FJJ Tiernan KC with Mr TJ Sowden
Solicitors
Applicant:	Maddocks
Respondent:	ALT Legal Associates

BEACH JA
KENNEDY JA
WALKER JA:

Robert Lewis Wilks, the plaintiff, has been involved in powerlifting, as a coach and in other capacities, for many years. He was a founding member of the Melbourne University Weightlifting & Powerlifting Club (the ‘MUWPC’). In 2021, Dori Qu,[1] the defendant, was a student and member of the MUWPC who was coached by the plaintiff. The plaintiff is 45 years older than the defendant.
[1]Also known as Qingshi Qu, Yingshi Qu and Dori Deng.
In July 2021, the defendant published two emails described as ‘the PA Email’ and ‘the Melbourne University Email’, and various instant messages described as ‘the First SMS Messages’ and ‘the Second SMS Messages’, in which she referred to the plaintiff. All four publications are the subject of a claim for damages by the plaintiff against the defendant in the County Court. In that proceeding, the plaintiff alleges that the defendant published a number of imputations which are seriously defamatory of him, including that he had sexually harassed and raped the defendant. By her defence,[2] the defendant admits that each of the publications was defamatory of the plaintiff. Additionally, she admits that the impugned publications conveyed the imputation that the plaintiff sexually harassed her, but denies that any of her publications conveyed the imputation that he raped her.
[2]A defence filed pursuant to an order made on 20 May 2022 which required the defendant ‘to file and serve a defence to the allegations in paragraphs 1 to 9A of the second amended statement of claim but otherwise until further order [did not require the defendant] to plead to the allegations in the remainder of the second amended statement of claim nor to plead any positive defences to the plaintiff’s claim’.
Section 10A(1) of the Defamation Act 2005 (the ‘Act’) provides that it is an element of a cause of action for defamation that the publication sought to be impugned ‘has caused, or is likely to cause, serious harm to the reputation of [the plaintiff]’. Section 10A of the Act refers to this element as ‘the serious harm element’. In February 2022, the defendant filed a summons in the proceeding seeking an order, pursuant to s 10A(5) of the Act, for the serious harm element to be determined before the trial of the proceeding commences.
The defendant’s application was heard by the judge in charge of the County Court Defamation List, Judge Clayton, on 8 March 2022. On 12 May 2022, her Honour published reasons in which she concluded that the application for the serious harm element to be determined prior to trial should be granted.[3] Her Honour also decided that it was appropriate to determine the question of the meanings conveyed by the impugned publications at the same time.[4] On 20 May 2022, in accordance with the terms of the First Ruling, the judge made orders that eight questions (the ‘questions’) be determined before trial. Broadly speaking, in respect of each of the four publications, the questions asked: first, whether the relevant publication conveyed the meanings alleged by the plaintiff; and, secondly, whether the plaintiff had established the serious harm element in respect of that publication. The questions were fixed for hearing by the Court on 13 and 14 September 2022.
[3]Wilks v Qu (Ruling) [2022] VCC 620, [114] (‘First Ruling’).
[4]Ibid [119].
Prior to the hearing at which the questions were to be determined, the parties filed a number of affidavits upon which they proposed to rely. Each party objected to certain parts of the other party’s proposed affidavits, and those objections were listed for hearing on 9 September 2022. On 12 September 2022 (the second day of that hearing), her Honour delivered an ex tempore ruling in which she concluded that the determination of the serious harm element should be adjourned to the trial of the proceeding.[5] It is from that ruling that the defendant now seeks leave to appeal. Her proposed grounds of appeal are as follows:
1.The primary judge erred in adjourning the determination of the serious harm element to the trial of the proceeding without finding, as she was required to do by sub-s 10A(5) of the Defamation Act, that she was satisfied that there were ‘special circumstances’ justifying the postponement of the determination to trial.
2.Alternatively (if it is to be inferred that the primary judge was satisfied that there were ‘special circumstances’), the primary judge erred in finding that the matters arising under the Civil Procedure Act 2010 (Vic) (CPA) to which she referred (at [18] and [19]), constituted special circumstances for the purpose of sub-s 10A(5).
3.Further, the finding of the primary judge (at [16] and [17], informed by [6]) that there was a real prospect that the truth of the defendant’s ‘allegations’ in the matters complained of may fall to be determined at the serious harm hearing was in error.
[5]Wilks v Qu (Ruling 2) [2022] VCC 1503 (‘Second Ruling’).
For the reasons that follow, leave to appeal will be refused.

Section 10A of the Act

Section 10A was inserted into the Act by s 21 of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020. It commenced operation on 1 July 2021. Relevantly, it provides:
10A Serious harm element of cause of action for defamation
(1)It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
...
(3)The judicial officer (and not the jury) in a defamation proceeding is to determine whether the serious harm element is established.
(4)Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer's own motion) —
(a)determine whether the serious harm element is established at any time before the trial for the proceeding commences or during the trial; and
(b)make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceeding if satisfied the element is not established).
(5)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 proceedings (including during the trial).
(6)The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following —
(a)the cost implications for the parties,
(b)the resources available to the court at the time,
(c)the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceeding.
(7)Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.

The First Ruling

The judge commenced her analysis by considering what needed to be shown to establish the serious harm element. After referring to the UK Supreme Court’s decision in Lachaux v Independent Print Ltd,[6] the judge said:
A statement was not defamatory unless it had caused, or was likely to cause, harm that was serious. The inherent tendency of the words must be considered in conjunction with the actual impact on those to whom they had been communicated, including those who had never heard of the claimant at the time. In respect of ‘likely to cause harm’, the phrase refers to ‘probable’ future harm rather than an inherent tendency to cause harm.[7]
[6][2020] AC 612; [2019] UKSC 27.
[7]First Ruling, [25].
The judge said that s 10A (which she described as ‘the new legislation’) envisaged that there would be some cases where the serious harm element could be determined on the pleadings; but that s 10A(5) envisaged that there would also be cases where a hearing must be held.[8] The judge then said:
The legislation is not confined to trivial and frivolous cases. The inherent tendency of the words is insufficient to establish serious harm. A plaintiff’s desire for vindication of reputation is not enough to justify the use of public resources to achieve that end. The imposition of an additional element that must be established ‘up front’ by a plaintiff is unusual and ought not be too readily displaced by arguments about efficiency.[9]
[8]Ibid [26]–[27].
[9]Ibid [27].
Next, the judge rejected a submission made by the plaintiff that the phrase ‘as soon as practicable’ in s 10A(5) creates a threshold question as to whether it would be ‘practicable’ to determine the serious harm element. The plaintiff’s submission was that, unless it was ‘practicable’ to determine the serious harm element, that element could not be determined before trial or at some point close to trial. In rejecting this submission, her Honour said that the relevant question was whether there were special circumstances justifying the postponement of the determination of the serious harm element; and, that in the absence of special circumstances, the court was required to determine the serious harm element as soon as practicable.[10]
[10]Ibid [29]–[34].
The judge then referred to Sackar J’s decision in Newman v Whittington.[11] In Newman, Sackar J said that the issue of serious harm would normally be determined before trial unless special circumstances suggested otherwise.[12] Her Honour said that this observation added weight to the view that ‘it is the special circumstances and not the practicability of deciding the serious harm element which will determine its timing’.[13]
[11][2022] NSWSC 249 (‘Newman’).
[12]Ibid [35].
[13]First Ruling, [36].
Next, the judge rejected a submission made by the plaintiff that the court ought have regard to the principles to be applied when determining whether there should be a separate trial of a question pursuant to r 47.04 of the County Court Civil Procedure Rules 2018.[14] In rejecting that submission, her Honour said that ‘the usual test for determination of a preliminary point must be approached with caution’;[15] before saying that:
The legislature has prescribed the only exception to the requirement to determine serious harm before trial is the existence of special circumstances. The considerations applied to applications under r 47 are not relevant to this application.[16]
[14]See also the identical r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015.
[15]First Ruling, [37].
[16]Ibid [39].
Her Honour then turned to consider the phrase ‘special circumstances’, noting that it was a phrase commonly used in statutes and regulations. Her Honour observed that sometimes, but not always, what constitutes special circumstances is specified in the legislative provision, before saying that, in the present case, the definition of ‘special circumstances’ is ‘left open, though some guidance is provided by s 10A(6)’.[17]
[17]Ibid [40].
The judge referred to a statement in Hogben and Secretary, Department of Social Services (Social Services Second Review) that ‘[s]pecial 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.’[18]
[18][2020] AATA 985, [158] quoted in First Ruling, [42]. See also Kirkbright v Secretary, Department of Family & Community Services (2000) 106 FLR 281, 288 [28]; [2000] FCA 1876.
Her Honour then made the following observations about the relevance of the serious harm element to the application before her:[19]
Whilst the serious harm element of the tort is not to be determined in this application, it nevertheless requires at least some consideration. It is likely to be linked, to some extent, to the matters that might constitute special circumstances.
For example in a claim where serious harm is highly likely to be established, the costs involved in having a preliminary hearing might constitute special circumstances, even if the costs themselves are not excessive. Similarly, using Court resources to determine an element separately that would simply add to the Court’s burden and have no potential to reduce the issues in dispute, or the time taken at trial, could constitute special circumstances.
In this ruling I make no findings about the likelihood of the plaintiff establishing the element of serious harm. However, I do consider the parties’ arguments that touch on the prospect of serious harm being established, because it factors into the analysis I am required to undertake. ‘Special circumstances’ must be based on ‘the facts at hand’[20] and those facts must be unusual, uncommon or out of the ordinary.[21] This is not a case in which it is so obvious that serious harm will be established that having a separate hearing will be a waste of time, costs and Court resources. Nor is it so obvious that serious harm will not be established so as to enable a determination of the element on the pleadings.
The words ‘frivolous’ or ‘trivial’ are not included in the legislation, as one might expect if the serious harm element was only to be determined prior to trial in such cases. A lack of triviality or frivolity is insufficient to qualify for ‘special circumstances’.
[19]First Ruling, [43]–[46] (footnotes in original).
[20]See for example in an indemnity costs context, IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 38 VR 303, 391–2 [335]–[336]; [2011] VSCA 248, recently cited in Winslow Constructors Pty Ltd v Head, Transport for Victoria (Costs) (2021) 64 VR 200; [2021] VSC 74.
[21]See for example in the context of special circumstances relating to a tax debt, Hogben and Secretary, Department of Social Services (Social Services Second Review) [2020] AATA 985, [158], citing Groth v Secretary, Department of Social Security [1995] FCA 1708, [12]; Dranichnikov v Centrelink (2003) FCAFC 133, [33].
Under the headings, ‘Costs’, ‘Resources of the Court’ and ‘Extent to which establishing serious harm is linked to other issues for determination during trial’, the judge dealt with the matters referred to in sub-ss (6)(a)–(c) of s 10A of the Act.[22]
[22]First Ruling, [47]–[95].
In relation to the costs implications for the parties,[23] the judge identified the respective positions of the plaintiff and the defendant as follows:
(1)The plaintiff estimated that a serious harm hearing would take four to five days, cost around $150,000 and involve up to ten witnesses. The judge making the determination would likely have to make findings on credit about both the plaintiff and the defendant, and therefore would not be able to hear any subsequent trial. There would be a significant duplication of evidence and an onerous costs burden.[24]
(2)The defendant observed that the costs of the serious harm hearing would be significantly less than the costs of a full trial, and that there would be no full trial if she succeeded on the serious harm issue. Even if the plaintiff was successful in establishing serious harm, the costs would not be wasted: evidence given at the hearing could stand at the trial; the issues between the parties would likely be narrowed; and the serious harm hearing might facilitate the resolution of the dispute.[25]
[23]See s 10A(6)(a) of the Act.
[24]First Ruling, [48].
[25]Ibid [47].
The judge identified three possible outcomes of a serious harm hearing:
(1)If the serious harm element is not made out in relation to any of the publications, the entire case would fall away.
(2)If the serious harm element is made out in relation to all publications, then the cost saving involved in not having to adduce evidence about the serious harm issue at trial would ‘likely be insignificant compared with the additional costs involved in having two hearings’.
(3)If the serious harm element was made out in relation to some but not all of the publications, then this could result in a significant reduction in the length and complexity of the trial, ‘which can then focus on the publications where serious harm has been proved, thereby reducing some of the cost of the trial’.[26]
[26]Ibid [50].
The judge described the defendant’s submissions about the way in which a serious harm hearing could be determined as possibly being ‘overly optimistic’; and the plaintiff’s projection of calling up to ten witnesses and incurring enormous expense as possibly being ‘overly pessimistic’.[27] The judge thought it was likely that everything other than publication would be in dispute at trial and that, given the likely defences, it would not be unreasonable to estimate that a trial would take at least ten sitting days.[28] The judge concluded her analysis of the cost implications as follows:
There will inevitably be duplication and overlap. Accepting for the moment the plaintiff’s estimate of a four-day hearing, if serious harm is established and the matter proceeds to trial, at least a day or two would be added to the overall time taken increasing the overall cost burden. This is to be compared with a potential cost saving of more than seven days if the serious harm element is not established for any of the publications.
This is an inexact balancing exercise, but in assessing whether the costs could amount to ‘special circumstances’ one must assess the potential increase caused by setting the matter down before trial with the potential savings available if serious harm is not established. There is nothing particular about the likely costs involved in a preliminary hearing in this case that would amount to special circumstances which would justify postponing determination of the issue of serious harm.[29]
[27]Ibid [51].
[28]Ibid [52].
[29]Ibid [53]–[54].

In relation to court resources,[30] the judge observed that the Civil Procedure Act 2010 already required the court ‘to further the overarching purpose of that legislation by having regard to the efficient use of judicial and administrative resources’.[31] The judge then said:
Factors that may be taken into account in weighing up the appropriate use of Court resources include the stage of the proceedings, the proximity of the trial date, and the availability of judicial officers, particularly if the plaintiff’s submission that different judicial officers would be required to hear the serious harm element and the trial were to be accepted.
In this case, the application has been made at the earliest opportunity, before the close of pleadings. The matter is not well progressed or close to trial, and the application of judicial resources to the determination of this question would, in those circumstances, be entirely appropriate. Therefore, I am not satisfied the use of Court’s resources would amount to special circumstances which justify postponing determination of the issue of serious harm.[32]
[30]See s 10A(6)(b) of the Act.
[31]First Ruling, [55].
[32]Ibid [56]–[57].
In relation to the question of whether establishing the serious harm element was linked to other issues in the proceeding,[33] after setting out the parties’ submissions at length,[34] the judge said:
I am satisfied that in the present case, publication will not be in dispute. The meanings are in issue, though the distinction might be between, on the one hand, sexual harassment, and on the other, rape. Whilst that is a significant distinction, there is no doubt that either would have the capacity to cause serious harm to a person’s reputation. There will be a contested issue about the extent of publication and the impact of the grapevine effect and, in particular, whether the consequences of the grapevine effect can fairly be said to arise from the publication, or are more likely to have arisen from publicity generated by the plaintiff issuing legal proceedings.
However, at the serious harm stage, this would not require the evidence of multiple witnesses which might be relevant to an assessment of damages. The plaintiff has already put in evidence of the operation of the grapevine effect, and the defendant does not dispute both its operation and extent. What will be in issue, and would be in issue whenever the serious harm element is determined, is whether the ‘pile on’ occurred as a natural and probable consequence of the defendant’s publication, or as the consequence of the plaintiff’s subsequent action.
Also in issue is whether the damage to the plaintiff’s reputation resulted from the imputations.
The serious harm element is inextricably linked to the question of meaning.
The issues for determination on the serious harm question will be confined to the meanings of the imputations and the cause of harm suffered by the plaintiff. The issues for determination at the trial will be the defences raised, the extent of harm suffered and the assessment of damages.
I am 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’.[35]
[33]See s 10A(6)(c) of the Act.
[34]First Ruling, [58]–[89].
[35]Ibid [90]–[95].
Under the heading ‘Other Considerations’, the judge considered three further submissions made by the parties, namely:
(a)a submission made by the defendant that a serious harm hearing might obviate the need for witnesses to give evidence of a traumatic nature unrelated to the determination of the serious harm question;[36]
(b)a submission by the plaintiff that the fact that every aspect of the cause of action would need to be determined in a preliminary hearing without the court having the benefit of a substantive defence, in the circumstances of this case, constituted special circumstances;[37] and
(c)a submission by the plaintiff that the serious harm element included harm that is likely to be caused, which harm is ongoing and not yet quantifiable, and that this fact constituted special circumstances justifying the postponement of the determination of the serious harm element.[38]
[36]Ibid [96]–[98].
[37]Ibid [99]–[102].
[38]Ibid [103]–[105].
The judge accepted that trauma to witnesses was a consideration to be weighed in favour of granting the defendant’s application. She said, however, that this consideration did not outweigh matters which might otherwise amount to special circumstances.[39] In relation to the plaintiff’s submissions, the judge did not consider that the absence of a defence was a factor that tended towards establishing special circumstances;[40] and, similarly, did not think that the possibility that serious harm might not yet exist, but could exist in the future, could amount to special circumstances.[41]
[39]Ibid [98].
[40]Ibid [102].
[41]Ibid [105].
Having made findings about each of the matters referred to in s 10A(6)(a)–(c) and the additional matters referred to by the parties, the judge turned to consider whether, in all of the circumstances, special circumstances existed. The judge accepted a submission made by the plaintiff that the threshold for special circumstances ‘should not be unduly high’, saying that the court was not concerned with ‘exceptional circumstances’.[42] The judge concluded her analysis of special circumstances, saying:
Nevertheless, ordinary considerations such as the possible duplication of some costs, or the potential overlap of issues which would occur in any defamation proceeding should not be enough to satisfy the requirement for special circumstances, or s 10A(5) of the Act would be rendered nugatory.
An appropriate balance must be struck between giving effect to the intention of the legislation, and the requirements to ensure, as is the Court’s obligation, the just, timely, efficient and cost-effective disposition of the real issues in dispute.
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.[43]
[42]Ibid [111].
[43]Ibid [112]–[114].
Finally, the judge returned to the issue of the imputations conveyed by the publications, saying that in circumstances where there will be a preliminary hearing to determine the serious harm element, it was appropriate to determine the question of the meanings conveyed by the publications at the same time.[44] Thus, as we have already noted, on 20 May 2022, the judge made an order that questions determining the meanings conveyed by the publications and the serious harm element in respect of each publication be determined before trial.
[44]Ibid [119].

Orders made on 20 May 2022

On 20 May 2022, in addition to ordering that the questions be determined before trial, the judge:
(a)set down the hearing of the questions for 13 September 2022;
(b)directed the hearing to be heard by the judge who would hear any subsequent trial;
(c)directed that the evidence-in-chief of witnesses called at the hearing would be given by way of affidavit;
(d)made an order that the evidence at the hearing would stand as evidence in any subsequent trial; and
(e)gave directions for the filing and serving of affidavits, objections to evidence and outlines of opening submissions.

The Second Ruling

As we have already observed, it is the Second Ruling and the order made consequential upon that ruling which is the subject of the present application for leave to appeal. Before summarising the relevant parts of the Second Ruling, however, it is necessary to describe the circumstances and context in which it was made.

Circumstances and context of the Second Ruling

On 9 September 2022, the judge commenced to hear the parties’ submissions as to the admissibility of various parts of the affidavits they sought to rely upon at the hearing of the determination of the serious harm element. On the second day of the hearing (12 September 2022), the judge raised with the parties an issue about one of the ways the plaintiff put his case on the serious harm element.
The defendant had submitted that any damage to the plaintiff’s reputation caused by media publicity was the result of stories in the media about the fact that the plaintiff had commenced a defamation proceeding against the defendant. The defendant submitted that any harm to the plaintiff’s reputation caused by that publicity was not caused by the defendant’s publications.
In answer to that submission, the plaintiff contended that if a person makes baseless allegations against another person, then they ought to know, or it is reasonably foreseeable, that the person against whom those baseless allegations were made could or would be likely to commence legal proceedings — so that any damage to such a person’s reputation by the reporting of those proceedings was a natural and probable consequence of the publication of the original baseless allegations.
Having summarised aspects of the way in which the plaintiff put his case on the serious harm element, including this argument, the judge said to counsel:
But it seems to me that the question of what the natural and probable consequences are, may well turn on whether the defendant was telling the truth or not. So if the defendant knows that she is making baseless allegations then that could have a bearing on the question of what she ought reasonably to consider would be the natural and probable consequences.
…
So all of that gives rise in my mind this concern which is that I might be in a position where I can’t properly determine the serious harm element without also making findings in relation to the truth or otherwise of the allegations. And that seems to me to present a problem because that’s really determining a defence in the case and that would seem to me to be a special circumstance if I could put it that way pursuant to 10A(6)(c) of the Defamation Act.
A little later in argument, the judge raised with counsel for the defendant the question of whether reporting of the proceeding in the media might cause harm to the plaintiff’s reputation that satisfies the serious harm element. Counsel for the defendant replied: ‘It may, Your Honour’. A little later, counsel for the defendant said:
Where your Honour has to determine whether there — this is a factor which goes to natural and probable consequence or to the likelihood of serious harm, then your Honour may determine to pull the pin [on the hearing of the determination of the serious harm element] at that point in time and we stop at that stage. And if your Honour had of raised this in February, and this is no criticism whatsoever, I could understand with determining that matter as at that time and saying we go to hearing in the usual process, but it seems to us on a CPA[45] perspective there would be benefit in going ahead.
[45]A reference to the Civil Procedure Act 2010.
At the conclusion of argument on 12 September 2022, the judge delivered ex tempore reasons (the Second Ruling) for adjourning the determination of the serious harm element to the trial of the proceeding.

The terms of the Second Ruling

After setting out the history of the proceeding leading to the Second Ruling, the judge identified her concern that the determination of the serious harm element ‘might require a finding of fact in relation to the defendant’s allegations’.[46] Her Honour said that if such a determination was required, ‘a hearing of the serious harm element would not be the appropriate forum for such a finding’.[47]
[46]Second Ruling, [6].
[47]Ibid.
Next, the judge recorded the defendant’s concession that, if the defendant’s submissions on causation were not accepted and the plaintiff’s submissions on serious harm caused prior to any media publication were also not accepted, ‘the Court might have to consider the truth of the allegations [made by the defendant against the plaintiff]’.[48] The judge also recorded the defendant’s submission that, ‘this was a very unlikely prospect, and that, given the considerable work done in preparation, the hearing should proceed’.[49] The judge noted that the defendant’s position was that, in the ‘unlikely event’ the judge was required to determine the truth of the plaintiff’s allegations, a decision could then be made pursuant to s 10A(5) to postpone the determination of the serious harm element until trial.[50]
[48]Ibid [8].
[49]Ibid.
[50]Ibid [9].
Having set out the parties’ submissions, the judge commenced her analysis by saying that what had occurred was ‘an unfortunate turn of events that [had] arisen as a result of [her] earlier ruling’.[51] Her Honour then said:
The determination that now falls to me is to consider, having regard to the overarching purpose and obligations of the Civil Procedure Act 2010 as to where the interests of justice lie. I must give effect to the overarching purpose of ensuring the timely, cost effective, efficient and just disposition of the real issues in dispute.
There is a prospect that, if the serious harm hearing proceeds, it can be finally determined. If it is determined in the defendant’s favour, it is dispositive of the entire proceeding. If it is determined in the plaintiff’s favour, the serious harm element does not need to be revisited at trial which will provide some cost and time savings.
However there is also a risk that the serious harm element proceeds and cannot be determined, resulting in a waste of time and money. If the serious harm hearing does not proceed on 13 September 2022, at least some of the costs that have gone into preparation, including the work done in dealing with objections on 9 September 2022, are likely to be wasted. The primary consideration, however, has to be the just determination of the issue.[52]
[51]Ibid [12].
[52]Ibid [12]–[14].
In the following passage (the second and third paragraphs of which are referred to in proposed ground 3, and the fourth and fifth paragraphs of which are referred to in proposed ground 2), the judge concluded that the appropriate course to be taken was to adjourn the determination of the serious harm element to the trial of the proceeding. The judge said:
Despite the superficial attractiveness of the defendant’s proposition that we proceed with the hearing on 13 September 2022 and, essentially see what happens, I ultimately do not think that is the just course.
It is unsatisfactory to embark on a hearing knowing at the outset that a determination may not be able to be reached. I am not satisfied that that prospect is remote or so unlikely as to not be something I ought seriously consider. At this stage I simply do not know.
This is an unusual case and is likely to turn on its own facts and circumstances. The authorities can provide assistance but may not provide the answer, and cannot reassure me at this stage that there is no prospect, or only a very remote prospect, that the truth of the allegations will fall to be determined.
If I am unable to reach a determination after a hearing on the serious harm element, that will undoubtedly cause additional delay and would not be in keeping with my obligations to conduct a timely and efficient trial.
If I am unable to reach a determination, the parties are also in the unsatisfactory position of having tendered evidence which has not been the subject of any findings, and leaving open the question of what use is to be made of that evidence at trial.[53]
[53]Ibid [15]–[19].

Defendant’s submissions in this Court on whether leave should be granted

The defendant accepted that her proposed appeal concerns matters of practice and procedure, and that that provides a discretionary basis for this Court to refuse to grant leave. However, she contended that her proposed appeal raises important points of principle in relation to the proper construction and application of s 10A of the Act, and that the proper construction and application of that section raises matters of public importance. She submitted that appellate guidance on these issues would be of benefit to trial judges generally, and to the trial judge in this particular case, ‘even if her consideration of the serious harm element ultimately occurs at trial’.
The defendant submitted that the judge’s decision under s 10A(5) was not a discretionary decision, although it was an evaluative one. Accordingly, she submitted, House v The King[54] has no application in this case. The defendant also submitted that granting leave to appeal would not increase the delay or costs associated with the resolution of the primary proceeding, and that she would suffer an injustice if she were required ‘to endure a 10-day trial (and perhaps an appeal), when the matter could be disposed of entirely by way of a serious harm hearing’.
[54][1936] 55 CLR 499; [1936] HCA 40.
Finally, the defendant submitted that the claim that media publicity in this case had been caused by her publication of any of the four impugned publications has no real prospect of success — and so there was no realistic basis for the concern expressed by her Honour in the Second Ruling, nor any basis for adjourning the determination of the serious harm element to the trial of the proceeding.

Consideration

A central issue in respect of the defendant’s proposed appeal is the requirement in s 10A(5) of the Act for there to be special circumstances justifying the postponement of the determination of the serious harm element to the trial of the proceeding. As this issue is relevant to each of the defendant’s proposed grounds of appeal, we will commence our analysis with a consideration of it.

Special circumstances

The expression ‘special circumstances’ is frequently used in legislation, and must, in each case, be considered in the context in which it has been used.[55] As Spigelman CJ said in R v Simpson, they are ‘words of indeterminate reference and will always take their colour from their surroundings’.[56] In a number of different statutory contexts, the words have been held to require circumstances that are not of general application, or not common or not ordinary.[57] That said, in Beadle v Director General of Social Security, the Full Court of the Federal Court said that the phrase ‘special circumstances’, although lacking precision, was ‘sufficiently understood in our view not to require judicial gloss’.[58]
[55]Carra v Hamilton (2001) 3 VR 114, 119 [24] (Balmford J); [2001] VSC 215 (‘Carra’).
[56](2001) 53 NSWLR 704, 717 [59]; [2001] NSWCCA 534 (‘Simpson’).
[57]See, for example, Re Hunter; Ex parte Exclusive English Imports Ltd (in liquidation) [1954] NZLR 746, 752 (F B Adams J); Carra (2001) 3 VR 114, 119–21 [24] (Balmford J); [2001] VSC 215; Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2002) 194 ALR 138, 139–140 [5] (Hamilton J); [2002] NSWSC 851; DJ v DPP (WA) [2022] WASC 303, [62] (Smith J).
[58](1985) 60 ALR 225, 228 (Bowen CJ, Fisher and Lockhart JJ) (‘Beadle’).
In Selkirk v Hocking,[59] O’Callaghan J was required to consider the issue of ‘special circumstances’ in s 10A(5) of the Act. His Honour described the non-exhaustive matters referred to in s 10A(6) of the Act as being matters which were ‘not aptly described as “special” circumstances’. His Honour said that, to the contrary, the matters referred to in s 10A(6) seemed to require the giving attention to of what are ‘nowadays run-of-the-mill case management considerations’.[60] His Honour, however, went on to observe that it might be thought that the requirement of ‘special circumstances’ was to be given content by the literal meaning of those words ‘because the draftsperson presumably chose the words to be meaningful’.[61] Ultimately, in the circumstances of the dispute then before him, it was not necessary for his Honour to form a concluded view about the proper construction of the expression ‘special circumstances’ in s 10A(5) of the Act.
[59][2023] FCA 432 (‘Selkirk’).
[60]Ibid [39].
[61]Ibid [40].

Having reviewed the authorities, we favour the approach of the Full Federal Court in Beadle that the phrase ‘special circumstances’ does not require any judicial gloss. That said, we think the phrase, as used in s 10A(5) of the Act, encompasses circumstances which are not routine or run-of-the-mill. Additionally, we would endorse what Spigelman CJ said in Simpson that there will be circumstances which, either alone or in combination with other factors, justify a conclusion that ‘special circumstances’ are made out on the facts of a particular case; and it will be ‘comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a “special circumstance”’.[62]

Proposed ground 1

[62]Simpson (2001) 53 NSWLR 704, 717–8 [60] (Mason P agreeing at 723 [95], Grove J agreeing at 723 [96], Sully J agreeing at 723 [97] and Newman AJ agreeing at 724 [103]); [2001] NSWCCA 534.

Under proposed ground 1, the defendant observed that the judge ‘made scant reference to sub-section 10A(5) or whether there were special circumstances’. She submitted that her Honour ‘did not engage in a process of reasoning directed to whether there were special circumstances’, noting that no express finding was made to that effect in the Second Ruling.
The defendant complained that the Second Ruling focused almost exclusively on the Civil Procedure Act, rather than the requirements of s 10A(5). She submitted that the general provisions in the Civil Procedure Act had to give way to the more specific provision in s 10A(5) of the Act. Additionally, she submitted that none of the provisions of the Civil Procedure Act permitted the judge to disregard the clear words of s 10A(5), or to adjourn the determination of the serious harm element because she considered it to be ‘the just course’.
There is no substance in proposed ground 1. While the defendant correctly observed that the Second Ruling ‘made scant reference to sub-section 10A(5) or whether there were special circumstances’, the question of whether the judge properly considered s 10A(5) and the requirement for there to be special circumstances justifying the postponement of the determination of the serious harm element cannot be considered by looking at the Second Ruling in isolation. The Second Ruling was the culmination of an ongoing dispute between the parties, which commenced more than six months earlier, about the way in which the court should deal with the determination of the serious harm element. In the course of that dispute, the parties had made voluminous and extensive submissions, both in writing and orally. The terms of the First Ruling showed that her Honour had an acute appreciation of the issues governing the defendant’s application to have the serious harm element determined prior to trial.
Moreover, an examination of the transcript of the argument on 12 September 2022, leading to the delivery of the Second Ruling later that day, shows that her Honour had a continuing understanding that special circumstances needed to be established to justify adjourning the determination of the serious harm element to the trial. Properly understood, the Second Ruling set out her Honour’s reasons for concluding that ‘the serious harm element [was] linked to other issues for determination during the trial of the proceeding’[63] — namely, the truth of the defendant’s defamatory statements — and that this constituted special circumstances within the meaning of s 10A(5) of the Act.
[63]See s 10A(6)(c) of the Act.
While her Honour did not expressly state in the Second Ruling that she was satisfied that there were special circumstances justifying the postponement of the determination to trial, in the circumstances in which the matter unfolded before her Honour and to which we have referred, there can be little doubt that her Honour so concluded. In any event, having examined in detail the written submissions filed by the parties in the court below and the transcripts of the multi-day argument that occurred before the judge, we are not persuaded that her Honour made the error asserted in proposed ground 1.
It follows from the above that proposed ground 1 has no prospects of success.

Proposed ground 2

Under proposed ground 2, the defendant submitted that none of the matters referred to in Second Ruling [16]–[19] were capable of constituting, or constituted, special circumstances. Section 10A(5) required the court to be satisfied that there actually were special circumstances in existence before the court could postpone the determination of the serious harm element to the trial. Put another way, the mere concern that there was a possibility that special circumstances might arise later was not sufficient to justify the postponement of the determination of the serious harm element.
We are not persuaded that there is any merit in proposed ground 2. Essentially, her Honour concluded that there were special circumstances justifying the postponement of the determination of the serious harm element to trial because of the interlinking of that issue with the issue of the truth of the defendant’s defamatory statements.
Having come to the conclusion that these issues were linked, s 10A(6)(c) of the Act permitted her Honour to take that matter into account in determining that there were special circumstances within the meaning of s 10A(5). That does not mean that there was any error in her Honour referring to provisions of the Civil Procedure Act in the Second Ruling. Section 10A(6) provided that the matters the judge could take into account in determining the defendant’s application included, but were not limited to, the matters set out in s 10A(6). Applying the reasoning of Spigelman CJ in Simpson,[64] the judge was entitled to consider the Civil Procedure Act matters to which she referred as forming part of the matters giving rise to special circumstances within the meaning of s 10A(5). We are not persuaded that her Honour made any error in so doing.
[64]Simpson (2001) 53 NSWLR 704, 717–8 [60].
It follows from the above that proposed ground 2 has no prospects of success.

Proposed ground 3

Under proposed ground 3, the defendant contended that the judge erred in concluding that there was a prospect that it would be necessary to determine the truth of the defamatory imputations in order to determine the serious harm element. The defendant submitted that the serious harm element is concerned with reputational harm caused by a defendant’s publication itself, not with any consequential harm for which a plaintiff may be able to claim damages. In making that submission, the defendant relied upon a passage in Soriano v Societe D’Exploitation de L’Hebdomodaire Le Point SA, as follows:
Section 1(1) [of the Defamation Act 2013]^[[65]] uses the language of causation prominently (caused or is likely to cause). The ‘serious harm’ component of libel therefore contains an important causation element. The starting point, as with any other tort, is that an individual defendant is responsible only for harm to the claimant’s reputation caused by its own publication — that is, the effect of the specific statement complained of in the minds of the readership of that statement. A claimant therefore has to establish a causal link between the item he sues on and serious harm to his reputation, actual or likely.[66]
[65]Which provides:
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
[66][2022] EWHC 1763 (QB), [10] (emphasis in original).
The defendant submitted that, impermissibly, the matters relied upon by the plaintiff in his pleading in relation to the falsity of the imputations are concerned, not with the publications made by her and the harm to reputation caused by them, but rather with his decision to bring a proceeding, which was said to have led to the harm caused by publicity in the media about the proceeding.
Next, the defendant submitted that, ‘as a matter of logic and statutory construction’, a plaintiff could not rely on media publicity (actual or likely) about a defamation proceeding to complete his or her cause of action: a cause of action must be complete prior to commencing a proceeding. The defendant then contended that s 10A(1) of the Act created a new and distinct element of the cause of action, which would not be complete until the serious harm element was satisfied.
The defendant also submitted that the effect of ss 12A and 12B of the Act was that a plaintiff cannot even commence a proceeding unless he or she has properly particularised the serious harm element in a concerns notice. She submitted that it would be incongruous and contrary to the clear policy intent of s 10A(1) for a plaintiff to be able to comply with this obligation by stating in a concerns notice: ‘I intend to sue you for defamation, the media publicity that will follow is likely to cause serious harm to my reputation, and therefore I can satisfy the serious harm element of the cause of action’.
Proposed ground 3 turns on the proper construction and application of s 10A(1) of the Act; that is, the defendant’s argument was that the truth or falsity of the imputations could not be relevant to whether the respondent’s publication had caused, or was likely to cause, the plaintiff serious harm, within the meaning of that section. That is a large proposition, raising complex and novel questions of statutory interpretation. In our opinion, it is not a proposition that the judge was required to determine prior to having heard the evidence that her Honour considered might be relevant.

Section 10A of the Act makes it an element of the cause of action for defamation that the publication of the defamatory matter ‘has caused, or is likely to cause, serious harm’. The inclusion of the words ‘or is likely to cause’ is plainly forward looking: it is capable of encompassing the possibility of a case where, at the time the proceeding was issued, serious harm may not yet have been suffered, but the publication of the defamatory material was likely to cause serious harm at some later point in time. The proposition that those words are not capable of encompassing circumstances where the serious harm likely to be suffered is, or includes, harm occasioned by the reporting of a plaintiff’s proposed defamation proceeding is not self-evident.
In our opinion, in the present case the questions concerning the construction and application of s 10A(1) to the particular facts of this case are such that it was open to the judge to consider that they ought to be resolved in a hearing where all the relevant evidence has been adduced, including evidence as to the truth or falsity of the imputations. That would produce a concrete factual substratum to underpin the court’s consideration of those issues.
Nor do we consider that the plaintiff’s submission that the trial judge could (and should) have resolved the question of serious harm on the assumption that the imputations were false provides an answer to this aspect of the dispute. This was not, in our view, clearly put to the trial judge as a possible pathway for resolving the construction and application of s 10A(1). Those passages in the transcript of the hearing before the judge, to which we were referred in oral argument, were in many respects ambiguous as to what was being proposed, and certainly fell short of clearly identifying all of the relevant facts that might be relevant to a determination of the question.[67]
[67]See discussion in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 357 [50] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); [1999] HCA 9 (‘Bass’); see also Jacobson v Ross [1995] 1 VR 337, 341–2 (Brooking J).
To the extent that the defendant contended that the judge was wrong to act on the basis that there was only a prospect that the truth of the defendant’s allegations would need to be examined when determining the serious harm element (rather than an actual need to determine the truth of those allegations), that submission must be rejected. We see no error in the judge concluding that the prospect that this would occur was sufficient, in all of the circumstances, to establish the special circumstances required by s 10A(5) of the Act. Plainly, embarking on a determination of the serious harm element prior to trial, and then having to abandon that hearing and adjourn the matter to a subsequent hearing, as suggested by the defendant before the trial judge, would have had negative cost consequences for the parties (see s 10A(6)(a) of the Act), as well as involving the consumption of additional court resources (see s 10A(6)(b) of the Act) — matters which s 10A(6) of the Act permitted the judge to take into account when considering the special circumstances issue.
Finally, we note that the defendant sought to rely on certain statements concerning s 10A(1) made by the judge in a subsequent decision, High Quality Jewellers Pty Ltd v Ramaihi.[68] In that case the judge expressly distinguished her decision in this proceeding.[69] Thus her Honour’s views in High Quality Jewellers provide no basis for concluding that her Honour erred in her decision in this case. The statements made by her Honour at [11] and [12] of High Quality Jewellers must be seen in the light of the relevant facts and circumstances of that case.

Should leave to appeal be granted?

[68][2022] VCC 1924, [9]–[12] (‘High Quality Jewellers’).

[69]Ibid [3]–[4].

There are three reasons why leave to appeal will be refused.
First, notwithstanding the prescriptive terms of s 10A(5) of the Act, it must be remembered that the decision from which the defendant seeks leave to appeal was a decision on a matter of practice and procedure.
As has been said many times before, appellate courts are most reluctant to interfere in interlocutory decisions of trial judges.[70] While s 14C of the Supreme Court Act 1986 provides that this Court may grant an application for leave to appeal ‘only if it is satisfied that the appeal has a real prospect of success’, even if an applicant establishes that the proposed appeal has a real (as opposed to fanciful) chance of success, the Court retains a residual discretion to refuse leave.[71] The example frequently given in relation to the exercise of the residual discretion to refuse leave involves applications for leave to appeal from an order as to practice and procedure where no substantial injustice will be done if the decision sought to be impugned remains unreversed. In the present case, we are not persuaded that there would be any injustice — let alone a substantial injustice — in leaving her Honour’s interlocutory decision unreversed.
[70]See for example, FBR Fund Administration Pty Ltd v Chickabo Pty Ltd [2019] VSCA 314, [17] (Whelan, Beach and Niall JJA).
[71]RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50, [74]–[77] (Weinberg, Whelan and Santamaria JJA); Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [110]–[113] (Kyrou and McLeish JJA).
Secondly, in our opinion neither proposed ground 1 nor proposed ground 2 has any real prospect of success, for the reasons explained above.
Thirdly, although ground 3 has some prospects of success, it turns on the proper construction and application of s 10A(1) of the Act. It raises a novel question of law concerning a newly enacted provision that has not been the subject of appellate consideration in Australia, as far as we were informed at the hearing. The trial judge has made no findings of fact relevant to this ground. We were invited to consider it as a question of ‘pure [statutory] construction’. However, in Bass a majority of the High Court warned of the dangers in courts resolving preliminary questions in circumstances where ‘the relevant facts are not identified and the existence of some of them is apparently in dispute’.[72] The majority further observed that special problems can arise where a preliminary question is a mixed question of fact and law.[73]
[72]Bass (1999) 198 CLR 334, 357 [49]; see also 259 [56] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); [1999] HCA 9.
[73]Ibid 357 [53].
In light of these matters, we consider that it is not appropriate for this Court, on an interlocutory appeal in which there have been no relevant findings of fact, no agreed facts, and no formal demurrer, to determine the proper construction and application of s 10A(1). That issue can, if necessary and appropriate, be ventilated on any application for leave to appeal from the judge’s final decision in this matter, in which it will have been necessary for her Honour to reach a conclusion as to whether the plaintiff has proved that element of the cause of action.

Conclusion

Leave to appeal will be refused.
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[2023] VSCA 198

25 August 2023