Wilks v Qu - [2025] VSCA 135

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0095

ROBERT LEWIS WILKS	Applicant
v
DORI QU	Respondent

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JUDGES:	BEACH, KENNEDY and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2025
DATE OF JUDGMENT:	17 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 135
JUDGMENT APPEALED FROM:	[2024] VCC 1009 (Judge Clayton)

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DEFAMATION – Whether prior conduct in connection with previous defamation proceeding relevant to issues in current proceeding – Sufficiency of pleading as to absence of consent in claimed imputation of rape – Whether respondent’s particulars invited ‘roving inquiry’ as to irrelevant matters – Held: matters for determination by trial judge after hearing evidence and submissions.

PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal interlocutory question of practice and procedure – No prospects of success in application for leave to appeal – Application for leave to appeal refused.

Defamation Act 2005, s 26; Crimes Act 1958, ss 35, 35A.

Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369, considered.

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Counsel
Applicant:		Mr TJ Sowden
Respondent:		Mr TJ Mullen with Ms H Jager
Solicitors
Applicant:	ALT Legal Associates
Respondent:	Maddocks

BEACH JA
KENNEDY JA
KENNY JA:

Introduction

The applicant, Robert Wilks, has applied for leave to appeal from an order dismissing his summons to strike out the respondent’s Amended Defence in defamation proceedings in the County Court of Victoria, and granting the respondent, Dori Qu, leave to amend her pleading in one respect, ‘to reflect’ the judge’s ruling of 5 July 2024 (‘Ruling’) ‘in relation to consent’.[1]
[1]Wilks v Qu (Ruling No 4) [2024] VCC 1009 (‘Reasons’); Order dated 24 July 2024. The issue of consent is discussed below: see [15]–[17].
This is not the first time that the Court has considered an interlocutory order made in the County Court defamation proceedings between these parties.[2] As this Court previously stated, Mr Wilks (the plaintiff in those proceedings)
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,[3] 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.[4]
[2]See Qu v Wilks [2023] VSCA 198.
[3]Noting that she is also known as Qingshi Qu, Yingshi Qu and Dori Deng.
[4]Qu v Wilks [2023] VSCA 198, [1].
As to Dori Qu (the defendant in the proceedings below), this Court said:
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…

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 Wilks v Qu

Details

AGLC: Wilks v Qu [2025] VSCA 135
Case: [2025] VSCA 135
Decision Date: 17 June 2025

CaseChat Overview and Summary

The appeal concerns a defamation proceeding brought by Ms Wilks against Mr Qu, the respondent. The dispute involves alleged defamatory statements made by Mr Qu, which Ms Wilks claims defamed her by imputing she was involved in criminal activity, specifically rape. The case was heard in the Federal Court of Australia, which has jurisdiction over matters involving defamation under the Defamation Act 2005. The central legal issues revolved around the relevance of prior conduct connected to a previous defamation proceeding, the sufficiency of the pleadings regarding the absence of consent in the imputation of rape, and whether the respondent's particulars invited a 'roving inquiry' into irrelevant matters.

The court examined whether the prior defamation proceeding and Ms Wilks' conduct in that proceeding were relevant to the current case. It also considered whether the particulars of claim sufficiently detailed the absence of consent in the imputation of rape. Furthermore, the court assessed whether the respondent's particulars allowed for an inquiry into extraneous issues. The court concluded that these questions required factual findings and were therefore matters for determination by the trial judge after hearing evidence and submissions. Consequently, the appeal against the interlocutory decision was dismissed, and the application for leave to appeal was refused due to a lack of prospects of success.

Given the complexity of the issues and the need for factual determinations, the court found that an interlocutory appeal was inappropriate. The court's reasoning underscored the importance of allowing the trial judge to make findings based on a full presentation of evidence and arguments. The court further noted that the matters at issue were not suitable for determination on appeal without a full evidentiary hearing. The appeal was therefore dismissed, and the application for leave to appeal was refused.

No specific orders were made beyond the dismissal of the appeal and refusal of leave to appeal. The case remains pending for further proceedings before the trial judge to address the substantive issues raised.

Orders