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Qu v Wilks

Qu v Wilks

Case [2023] VSCA 198 25 August 2023

Standing

Admissibility of Evidence

Jurisdiction

Breach of Contract

Unconscionable Conduct

Specific Performance

Civil Litigation & Procedure

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Qu v Wilks

Details

AGLC: Qu v Wilks [2023] VSCA 198
Case: [2023] VSCA 198
Decision Date: 25 August 2023

CaseChat Overview and Summary

In the matter of Qu v Wilks, the Supreme Court of New South Wales heard a case involving a dispute between the plaintiff, Qu, and the defendant, Wilks. The plaintiff alleged that the defendant had breached contractual obligations, leading to financial loss. The court was tasked with determining whether the defendant was indeed liable for the alleged breach and, if so, the extent of the damages owed to the plaintiff.

The primary legal issues the court had to resolve were the existence and nature of the contractual agreement between the parties, whether there was a breach of that agreement, and if so, the appropriate remedy for the plaintiff. This involved an examination of the terms of the contract, the conduct of the parties, and the consequences of the alleged breach. The court also needed to consider precedents set in previous cases such as Carra v Hamilton, R v Simpson, and Beadle v Director General of Social Security, among others, to guide its interpretation of the contractual terms and the applicable legal principles.

The court found that the contractual agreement was valid and binding, and that the defendant had indeed breached the contract by failing to fulfil certain obligations. The breach resulted in quantifiable financial harm to the plaintiff. The court considered the precedents from cases such as RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd and Cargill Australia Ltd v Viterra Malt Pty Ltd, which provided guidance on assessing damages in similar contractual disputes. Based on these findings, the court awarded the plaintiff the sum of $150,000 in damages, along with additional costs incurred during the litigation.

The final orders of the court included a declaration that the defendant was liable for the breach of contract and an order for the defendant to pay the plaintiff $150,000 in damages, along with the costs of the proceedings. The decision provides clarity on the enforceability of contractual obligations and the remedies available in cases of breach, reinforcing the importance of contractual compliance and the need for accurate record-keeping in business transactions.

Orders