Wilks v Qu

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0095

ROBERT LEWIS WILKS	Applicant
v
DORI QU	Respondent

---

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)

---

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.

---

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 are seriously defamatory of him, including that he had sexually harassed and raped the defendant. By her defence,[5] [Dori Qu] 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.[6]
[5]In footnote 2, the Court described this as ‘[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”’.
[6]Qu v Wilks [2023] VSCA 198, [2].
Pursuant to s 14C of the Supreme Court Act 1986, the Court may grant an application for leave to appeal ‘only if it is satisfied that the appeal has a real prospect of success’. Further, as the Court noted on the previous occasion, 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, and may well refuse leave where the application for leave to appeal is from an order as to practice and procedure where no substantial injustice will be done if the impugned decision continues to stand.[7] In this case, the respondent contended that, even if there were error, there would be no substantial injustice if the interlocutory decision under challenge now were permitted to stand because, even if an appeal were successful, it would neither change the evidence at trial nor narrow any of the issues in dispute.
[7]Qu v Wilks [2023] VSCA 198, [67] (Beach, Kennedy and Walker JJA), citing RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50, [74]–[77] (Weinberg, Whelan and Santamaria JJA) and Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [110]–[113] (Kyrou and McLeish JJA).

The Ruling

As already noted, the applicant’s present application arises out of the judge’s dismissal of his summons for an order that parts of the defendant’s amended defence be struck out. The nature of the applicant’s challenge appears in her Honour’s Reasons.
In the Reasons, the judge held that it was open to the defendant, Dori Qu, to include a pleading concerning a previous proceeding instituted by the plaintiff, Robert Wilks, against her.[8] Her Honour declined to strike out a defence of contextual truth, and what were referred to as ‘the floating particulars’. Her Honour also granted the defendant leave to amend her pleading as to her lack of consent with respect to her pleaded allegations of rape.
[8]This proceeding was discontinued. This was said to have been because the applicant (the plaintiff in this earlier proceeding) failed to comply with the notice provisions in s 12B of the Defamation Act 2005 (‘Defamation Act’).
What follows is a more detailed account of her Honour’s Reasons with respect to each of these issues.

The abuse of process or previous proceeding pleading

In substance, the judge accepted the defendant’s submission that, in describing a previous defamation proceeding instituted by the plaintiff against her as ‘an abuse of process’[9] the defendant was not seeking summary judgment or dismissal. Her Honour explained that:
As I understand it, the words ‘abuse of process’ are being used as shorthand to describe a series of events and a pattern of behaviour that the defendant will rely on to establish that the plaintiff did not suffer serious harm as a result of her publication, or in mitigation of damages to be awarded to the plaintiff.[10]
[9]Amended Defence, [13].
[10]Reasons, [38]. See also Reasons, [42].
The judge understood the defendant’s submission to be ‘that Mr Wilks’ own conduct can and should be examined in relation to questions of serious harm and damages’.[11] Her Honour accepted, correctly, that ‘[t]he conduct of a party in bringing a claim of defamation may be relevant to the assessment of damages and the existence of serious harm’.[12]
[11]Reasons, [17], [30].
[12]Reasons, [32], citing Joseph & Ors v Spiller & Anor [2012] EWHC 2958 (QB), [174]–[178] (Tugendhat J); Wright v McCormack [2023] EWCA Civ 892, [38]–[41], [59]–[61] (Warby LJ, with Singh and Andrews LJJ agreeing); and Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369, [993]–[1008] (Lee J) (‘Lehrmann’).
In particular, the judge accepted that the defendant’s case was that ‘[t]he initial publicity that resulted from the first proceeding is … a cause of much or all of the harm claimed by the plaintiff’.[13] Her Honour noted that the defendant’s pleading also included an allegation that the plaintiff had an ‘ulterior motive’ in commencing the first proceeding. Her Honour accepted that, if this ulterior motive were established, then it might be relevant to the question of serious harm[14] and any assessment of damages.[15]
[13]Reasons, [25], [32].
[14]See s 10A(1) of the Defamation Act 2005, discussed in Qu v Wilks [2023] VSCA 198, [3].
[15]Reasons, [26].
Referring to Lehrmann[16] her Honour stated:
[T]o the extent the plaintiff contends he has a good reputation, previous defamation claims may be relevant. To the extent he claims damages for personal hurt, his experience and use of litigation may be relevant.
The conduct of a party in bringing a claim of defamation may be relevant to the assessment of damages and the existence of serious harm.[17]
[16][2024] FCA 369, [995] (Lee J).
[17]Reasons, [31]–[32] (citations omitted).
Her Honour concluded that ‘[t]hose potentially relevant matters to the sector of the plaintiff’s reputation at issue should be ventilated at trial’.[18] Accordingly, her Honour declined to strike out the ‘abuse of process’ or ‘ulterior motive’ pleading.[19]

The contextual truth pleading

[18]Reasons, [35].

[19]This pleading included Annexure C to the Amended Defence.

As the judge observed, the defendant pleaded a defence of contextual truth pursuant to s 26 of the Defamation Act. Her Honour rejected the plaintiff’s attempt to strike out this pleading. Her Honour stated, correctly in our view, that:
The starting proposition is that the court should take the defendant’s case at its highest. …
Further, it is the combined effect of all the established contextual imputations which will ultimately need to be considered. As the court is not to engage in a comparison of individual imputation against individual imputation, the test in a strike out application must be whether the least serious of the plaintiff’s pleaded imputations is more serious that the combined effect of all contextual imputations.
…
The imputations pleaded by the plaintiff that are admitted by the defendant are, in relation to both the PA Email and the Melbourne University Email, that the plaintiff sexually harassed the defendant and that the defendant is a sexual predator in that he emotionally manipulated the defendant at a time when she was vulnerable and isolated in order to procure sexual favours from her. The contextual imputation that the plaintiff raped the defendant is sufficient to match or overwhelm the least serious of the imputations pleaded by the plaintiff.[20]
[20]Reasons, [54]–[58].
Noting the plaintiff’s submission that the contextual imputation of rape ‘pleads back’ an imputation denied by the defendant, her Honour held that ‘the combined effect of the other contextual imputations, excluding the contextual imputation of rape, could match or overwhelm the least serious of the plaintiff’s pleaded imputations, being that the plaintiff sexually harassed the defendant’.[21] This was because the contextual imputation – that the plaintiff sexually assaulted the defendant – was more serious than the plaintiff’s pleading (admitted by the defendant) that the First SMS message and the Second SMS message contained imputations that the plaintiff sexually harassed the defendant.[22]

The rape pleading

[21]Reasons, [59].

[22]Reasons, [60]–[61].

Under this heading, the judge began with a brief summary of the material facts set out in Annexure A of the Defence, which the defendant relied on for her defence of justification under s 25 of the Defamation Act. After referring to the parties’ respective submissions, her Honour identified the issue as the adequacy of the defendant’s pleading that she had been raped on three occasions, described as the ‘31 March 2021 Conduct’, the ‘Sydney Conduct’ and the ‘April 2021 Conduct’.
Referring to ss 35 and 35A(1)(a) of the Crimes Act 1958 (‘Crimes Act’), the judge held that, with respect to the 31 March 2021 Conduct, the defendant’s pleading that ‘the plaintiff touched her genitals with his fingers and tongue’ was ‘sufficient to plead the element of penetration’.[23] Her Honour held, however, that while the defendant’s lack of consent to the 31 March 2021 Conduct and the Sydney Conduct ‘may be inferred from the pleading’, ‘given the serious nature of the allegations, the plaintiff and the court should be left in no doubt as to what is alleged’.[24] Her Honour continued:
If it is alleged that the defendant did not consent to the 31 March 2021 Conduct and the Sydney Conduct, that should be clearly pleaded. The ‘non-consent’ element goes to the defendant’s state of mind. The Court and the plaintiff are entitled to know what the defendant says about her state of mind.
This does not require the defendant to plead ‘active resistance’ or anything approaching that. It simply requires the defendant to plead what she says her state of mind was at the time of the 31 March 2021 Conduct and the Sydney Conduct.
In relation to paragraph 44 of Annexure A,[25] the test set out by Lee J in Lehrmann does not set a boundary on what matters can be pleaded to substantiate an allegation of rape. Paragraph 44 pleads a material fact relied upon to establish that the plaintiff knew the defendant did not consent or did not have a reasonable belief that the defendant consented. Whether that fact is made out and can be supported … will be a matter for evidence and submissions at trial.[26]
[23]Ruling, [75]–[76].
[24]Ruling, [77].
[25]At the time of the Ruling, this paragraph read as follows: ‘At the time of each of the 31 March 2021 conduct, Sydney conduct and April 2021 conduct, the defendant was in a relationship of authority and trust with Wilks, having regard to the circumstances informing the parties’ relationship. Further, for the reasons set out above, Wilks knew the defendant had not consented to any of that conduct, further or alternatively, did not have a reasonable belief that the defendant had consented to any of that conduct.’
[26]Reasons, [78]–[80].
Accordingly, her Honour declined to strike out these pleadings but indicated that the defendant should amend her pleadings to plead her state of mind at the time of the 31 March 2021 Conduct and the Sydney Conduct. In conformity with this, the judge granted the defendant, Dori Qu, leave to amend her pleading in one respect, ‘to reflect’ the Ruling ‘in relation to consent’.[27]

Floating particulars

[27]See Order dated 24 July 2024.

The judge declined to strike out the particulars to paragraph 1(c) of the Amended Defence and the particulars at paragraph 100 of Annexure A.
Contrary to the plaintiff, the judge held that Annexure A (including paragraph 100) was not required to be ‘responsive to 1(c) of the TFASOC’.[28] Rather, Annexure A was relevant, so her Honour held, to the defendant’s defence of justification and contextual truth. Her Honour explained:
To the extent that [1(c) of the Amended Defence] incorporates some of the matters identified at 1(c) [of the TFASOC] that is because the contextual imputations open up a number of matters, and in any event the matters particularised at paragraphs 97 and 100 [of Annexure A] are relevant to the question of serious harm.[29]
[28]Third Further Amended Statement of Claim.
[29]Reasons, [83].
The judge accepted that the plaintiff claimed damage in ‘a directly relevant sector of his reputation’, and that the particulars to paragraph 1(c) of the Amended Defence and paragraphs 97 and 100 of Annexure A were allegations of fact on which the defendant relied to establish the plaintiff’s actual reputation, which might become relevant in an assessment of damages, and to the plaintiff’s claim for serious harm.[30] Accordingly, her Honour declined to strike out the particulars at paragraphs 97 and 100 of Annexure A and at paragraph 1(c) of the Amended Defence.
[30]Reasons, [88].
The result was that, apart from granting the defendant leave to amend to plead non-consent further in connection with the 31 March 2021 Conduct and the Sydney Conduct, her Honour dismissed the plaintiff’s summons, with costs.

Ground 1: Abuse of process – previous proceeding

Parties’ submissions

In written submissions, the applicant contended that the judge erred in applying Lehrmann[31] and Wright v McCormack[32] in support of her conclusion that the respondent was entitled to raise an allegation of abuse of process in relation to the applicant’s previous proceeding against her. The applicant argued that while an abuse of process might be a basis for summary judgment or a strike out application, it was not a defence to a claim in defamation and was likely to be ‘productive of significant confusion, embarrassment and delay’.[33]
[31][2024] FCA 369.
[32]Wright v McCormack [2023] EWCA Civ 892.
[33]Citing Faruqi v Latham [2018] FCA 1328, [186] (Wigney J).
The applicant accepted that ‘litigation misconduct’ of the kind referred to in those cases might be taken into account in an assessment of damages provided it affected that sphere of the plaintiff’s reputation at issue in the proceeding. In this case, however, there was no alleged misconduct in the proceeding before the judge. Rather, the defendant’s claim concerns misconduct in another proceeding, and such conduct, according to the applicant, was not before the court. The applicant added that even if the alleged abuse of process were properly before the court, such misconduct did not ‘go to the area of the plaintiff’s reputation at stake here or to the question of serious harm’. The applicant submitted that if the respondent were permitted to raise an abuse of process from an earlier proceeding in her defence, then many hours of court time would be wasted on an irrelevant matter.
At the hearing, counsel for the applicant further submitted that the judge was wrong to hold that the applicant’s conduct in the previous litigation went to the issues of mitigation and serious harm. In his submission, such post-publication conduct did not bear on the question of mitigation because it did not ‘directly link in with the defamatory sting at stake in the proceeding’. That is, in his submission, ‘[t]here is nothing that would connect the imputations with the allegation of an abuse of process’. Counsel for the applicant further submitted that the judge’s finding that the conduct was relevant to the issue of serious harm was erroneous because there was no distinction between the first and second proceeding in this regard. In his submission the relevant pleading was entirely irrelevant, and would lead to unnecessary complexity.
In written submissions, the respondent submitted that there was no practical utility in the application for leave to appeal because it would not change the evidence to be led at trial. This was because much of the evidence relevant to contextual truth was also relevant to the serious harm issue. In the respondent’s submission, leave should be refused on that basis alone.
The respondent also submitted that, as the judge below stated, the term ‘abuse of process’ was used by the respondent ‘to describe a series of events and a pattern of behaviour that she proposed to rely on to establish that the plaintiff did not suffer serious harm as a result of her publication, or in mitigation of damages to be awarded to the plaintiff.[34] In the respondent’s submission, the applicant’s submissions ignored the respondent’s plea and the trial judge’s findings about serious harm.
[34]Reasons, [38].
Further, the respondent submitted that the ‘abuse of process’ plea was included at paragraph 9B(b) of the Amended Defence (and Annexure C) as a shorthand description as part of the plea in response to the applicant’s serious harm allegation in paragraph 9B of his Third Amended Statement of Claim, which seeks to attribute legal responsibility for the negative media publicity arising from the applicant’s previous proceeding to the respondent.

Finally, in written submissions, the respondent noted that she had admitted that media publicity caused serious harm to the applicant’s reputation but that she had denied that she is legally responsible for such harm. The respondent’s position is that it was the commencement of the first proceeding (in contravention of s 12B of the Defamation Act) that was the legally relevant cause of that harm. The respondent noted that this argument has already been the subject of extensive submissions both prior to the serious harm application and on the application for leave to appeal to this Court in 2023.[35] To the extent that the applicant was proposing that the respondent’s causation argument in response to his serious harm pleading should be determined against the respondent in this application, the respondent noted that this Court had already found that the respondent’s argument has a prospect of success, and that it was inappropriate for it to determine the issue as an interlocutory issue before the trial.[36]
[35]Qu v Wilks [2023] VSCA 198.
[36]See Qu v Wilks [2023] VSCA 198, [69]–[70] (Beach, Kennedy and Walker JJA). The respondent also referred to Amersi v Leslie [2023] EWHC 1368, [150]–[159] (Nicklin J), and particularly [155]; Greenwich v Latham [2024] FCA 1050, [164] (O’Callaghan J); Miller v Turner [2023] EWHC 2799, [70]–[75] (Collins Rice J).
At the hearing, counsel for the respondent denied that the respondent had expanded her case. Rather, counsel submitted that the evidence relating to the ‘abuse of process’ conduct was relevant on various bases (including in response to the applicant’s contention of serious harm, in respect of her contextual truth defence, and in mitigation of damages). Referring to Peros v Nationwide News Pty Ltd (No 3)[37] and Lehrmann, counsel submitted that the respondent was entitled to raise this post-publication conduct (including in a different proceeding) as an alternative causal hypothesis in response to the applicant’s adumbrated argument on serious harm and where it could rationally affect the judgment on damages. Counsel contended that the touchstone for the admissibility of such post-publication evidence was whether the evidence went to the relevant sector of the plaintiff’s reputation, and in this case the applicant’s reputation in the powerlifting community was expressly pleaded.
[37][2024] QSC 192.
In this context too, counsel also referred to Pamplin v Express Newspapers Ltd[38] in support of the ‘rule of practicality’ that where, as in this case, the dispute concerned matters evidently relevant to an issue in the case and would be before the trial judge in any event, it was a matter for the trial judge to form a view as to whether that evidence could rationally affect the assessment of damages.

Consideration

[38][1988] 1 WLR 116, cited in Lehrmann [2024] FCA 369, [985] (Lee J) and Wright v McCormack [2023] EWCA Civ 892, [60] (Warby LJ, with Singh and Andrews LJJ agreeing).

At the hearing, the respondent confirmed that, as her Honour found, the expression ‘abuse of process’ was intended as ‘a shorthand description of events and a pattern of behaviour’ relating to the applicant’s previous proceeding against the respondent. The result is that much of the plaintiff’s argument falls away. It is clear beyond argument that, as the judge below said, the expression ‘abuse of process’ is not intended to invoke ideas of summary judgment or the like. Rather, the expression is intended to refer to certain events and behaviours attributable to the plaintiff associated with the previous proceeding instituted by him against the respondent. The respondent confirmed that she will rely on those events and behaviours to establish that the applicant did not suffer serious harm as a result of the impugned publications made by her. Rather, her case will be that any harm to his reputation was of his own doing, arising as it did from the events and behaviours disclosed in connection with that previous proceeding. The respondent confirmed that she intended to rely on these circumstances not only in answering the plaintiff’s case on serious harm but also in mitigation of damages.
It seems to us that it is open to the respondent to rely on the post-publication events and conduct of the kind that she maintains is disclosed in connection with the applicant’s previous proceedings against her in support of an alternative causal hypothesis to the applicant’s case of serious harm, providing the evidence speaks to the relevant sector of the plaintiff’s reputation, as it seems it may well do.[39] It will be for the trial judge to determine whether the respondent’s alternative hypothesis should be accepted.
[39]Cf Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192, [246] [256] (Applegarth J).
As a practical matter, since the evidence will be before the court in any event, whether this evidence of post-publication conduct could also rationally affect a judgment on damages is best left to the trial judge to determine in due course.[40] Similarly, we consider the trial judge is best placed to determine the relevance, if any, of that evidence to the respondent’s contextual truth defence.
[40]See Pamplin v Express Newspapers Ltd [1988] 1 WLR 116; also Lehrmann [2024] FCA 369, [985] (Lee J) and Wright v McCormack [2023] EWCA Civ 892, [60] (Warby LJ, with Singh and Andrews LJJ agreeing).
Accordingly, we can discern no error in the her Honour’s ruling on the ‘abuse of process issue’ or previous proceeding issue. The first of the applicant’s proposed grounds has, in our view, no real prospect of success.

Ground 2: Justifying an imputation of rape

Parties’ submissions

In written submissions, the applicant submitted that, with respect to the 31 March 2021 Conduct, the respondent failed to plead material facts to show that he engaged in an act of sexual penetration without the respondent’s consent. The applicant submitted that the trial judge erred in holding that the statutory definition of ‘vagina’ in s 35 of Crimes Act was broad enough to support an allegation of penetration on the facts pleaded[41] and that this holding was inconsistent with the reasons of Lee J in Lehrmann.
[41]Reasons, [75]–[76]; Crimes Act 1958, s 35 (definition of ‘vagina’ includes the external genitalia).
The applicant also contended that the respondent’s Amended Defence[42] did not provide the requisite ‘insight into the respondent’s mind’ with respect to the 31 March 2021 Conduct or the Sydney Conduct. In the applicant’s submission, it was not enough for the respondent to plead that she did not consent to the relevant conduct and that her conduct was involuntary.[43]
[42]The Amended Defence was filed pursuant to the Orders of Judge Clayton on 12 February 2024. A Further Amended Defence was filed pursuant to the Orders of Judge Clayton on 22 July 2024.
[43]Rush v Nationwide News Pty Ltd (2018) 359 ALR 473, 483 [52] (Wigney J); [2018] FCA 357 (‘Rush’).
At the hearing, counsel for the applicant relied on the approach to a rape allegation in a defamation proceeding adopted by Lee J in Lehrmann. He submitted that the court was required to determine whether an ordinary reasonable person would understand a rape to have occurred through a ‘threefold test’ of penetration, no consent and knowledge of no consent. Counsel contended that in the context of the respondent’s ‘very serious allegations’ of rape, the pleadings had to be articulated with sufficient particularity. Counsel submitted that the respondent’s pleading could not support her allegations of rape and did not assist the plaintiff to understand the case he was required to meet.
Counsel for the applicant submitted that the trial judge was incorrect in finding that ‘licking and touching’ was sufficient to constitute penetration for the purposes of the respondent’s defence to the applicant’s claim for defamation. Counsel submitted that the judge had ‘nailed her colours to the mast’ on the penetration issue in finding that the pleadings were sufficient, in circumstances where her Honour might also preside over determination of the issue at trial.
Furthermore, counsel for the applicant submitted that the applicant could not ascertain the case he was required to answer on the third element, absence of consent, because the respondent had not pleaded any communication of ‘no consent’ and relied only on references to the differential in age and authority of the parties.
In written submissions, the respondent submitted that there was no practical justification in the applicant bringing his leave application in respect of the challenged interlocutory decision. In the respondent’s submission, this was because it was open to the applicant to make these arguments at trial. Regarding the issue of penetration, the respondent submitted that:
[T]the argument is far from clear, and it is an arid debate until the respondent’s evidence is given, not only because the evidence might or might not come out exactly that way at trial, but also because, even if the conclusion that this conduct amounts to ‘rape’ was struck out (which it should not be), the same particulars would still be relevant to the plea of substantial truth in relation to the applicant’s other imputations (e.g., sexual predation) and the contextual imputations (e.g., sexual assault and harassment). Therefore, there is no practical benefit to this argument, as the factual allegations would remain in the Amended Defence, along with two other allegations of rape.
The respondent submitted that the applicant’s submissions, concerning her absence of consent pleading, misrepresented the pleading. The respondent relied on the explanation set out in a letter from her solicitor to the applicant’s solicitor. This letter stated:
At [77] of the Ruling, the Court found that “the non-consent element” of rape could be inferred from the old form of the pleading, but it should be expressly pleaded. The Court also found at [79] of the Ruling that this element of rape went to our client’s state of mind and that it did not require her to plead “active resistance” or anything like that; all it required her to do was “plead what she says her state of mind was at the time of the 31 March 2021 conduct and the Sydney conduct”. Our client has now done that, expressly pleading that she “did not want the … [relevant] conduct to occur and therefore did not voluntarily consent or consent to [that] conduct”.
The only reason our client has included the words “voluntarily consent” in addition to the existing “consent” is because this reflects the language used in Lehrmann and our client’s submissions concerning the natural and ordinary meaning of the term rape, as opposed to the Crimes Act definition of rape which simply uses the term “consent”: see e.g. Lehrmann [569] and [577] (noting your client expressly submitted that was appropriate at [5] of his written submissions), which was the subject of [27] of our client’s written submissions. Insofar as your email suggests that our client appears to assert that our client “did by her actions consent” we disagree. We also note that you appear to have conflated the allegations in respect of the “non-consent element” (contained in the first sentences of paragraphs 23 and 32 respectively), with the allegations in respect of the “knowledge element” (contained in the sentence and paragraphs that follow thereafter).
The respondent submitted in writing that it was not a matter of how much information was given, but whether what she had said had put the applicant on notice of her case on each element of the offence;[44] and she submitted that the Amended Defence did this. As to consent, she pleaded that she did not want the conduct to occur.
[44]Rush (2018) 359 ALR 473, 483 [52] (Wigney J); [2018] FCA 357.
At the hearing, counsel for the respondent emphasised that the same allegations with respect to the imputations as to sexual misconduct, sexual assault and sexual predation would also be made with respect to rape. This meant that ‘all of this will be in there anyway’. The respondent also submitted that there was no basis for a strike out where an arguable allegation of rape would remain.
Counsel for the respondent further submitted that the defence had been amended consistently with the directions in the Ruling and that the applicant had misrepresented the respondent’s case in respect of the consent issue. In fact the applicant’s conduct was pleaded and the respondent’s case was not that she had resisted or embraced the circumstances but that ‘[i]n effect, she froze’. The respondent’s counsel submitted that the question of whether the pleaded conduct constituted penetration was to be decided on the evidence at trial, and the conduct would be before the Court in any event. Counsel referred specifically to Faruqi v Latham[45] regarding the proper approach to strike out applications based on insufficiency of particulars of a justification event, in support of the contention that there was no practical benefit in making a determination at this stage of what ‘penetration’ meant and that this was a matter best left to the trial.
[45][2018] FCA 1328, [101]–[102] (Wigney J), citing Rush (2018) 359 ALR 473, 481–3 [47]–[50] (Wigney J); [2018] FCA 357.
On the ‘no consent’ element, counsel for the respondent noted that the defence had been amended to plead the relevant state of mind in accordance with the construction of consent in the Crimes Act applicable at the time and the current version, reflecting affirmative consent laws. It was submitted that the reference to ‘voluntary consent’ in the pleadings reflected the contemporary legislative approach to consent and the decision in Lehrmann[46] that consent requires ‘free and voluntary agreement,’ and that this concept was adopted in the pleadings. Counsel for the respondent submitted that this would also support the pleaded proposition that a lack of reasonable belief as to consent could also be constituted by reckless indifference to the existence of that consent. Counsel submitted that ‘it would be a remarkable proposition’ for the judge at first instance and the Court of Appeal to find that a matter pleaded consistently with the definition of consent (or lack of consent) in the Crimes Act was not capable of argument.

Consideration

[46][2024] FCA 369, [567] (Lee J).

It is for the trial judge, having heard all the evidence, to determine whether or not the evidence is sufficient to establish the truth of the respondent’s rape allegations. As Lee J stated in Lehrmann, the judge’s inquiry will be ‘focused upon the natural and ordinary meaning’ of the word ‘rape’ and on ‘what rape means in contemporary Australia’.
The respondent’s pleading clearly informs the applicant of her case with respect to rape. Her allegations with respect to lack of consent are clear. Counsel for the respondent described her case aptly when he said that on occasion ‘[i]n effect, she froze’. That is, the respondent is not alleging that she vigorously physically resisted the applicant or that she made statements on each occasion that forcefully expressed her objection to his conduct. Her case is that she did not give her consent. In our view, it is for the trial judge, having heard all the evidence and the parties’ submissions, to determine whether the evidence is sufficient to establish the truth of the respondent’s rape allegations, including with respect to the absence of consent and the applicant’s knowledge thereof and/or reckless indifference thereto.
Further, we do not consider it helpful to attempt to define, in advance of the trial, the nature of the evidence that is required to satisfy the elements of an allegation of rape. In particular, we accept that, as counsel for the respondent submitted, whether the pleaded conduct constituted penetration in the relevant sense was properly to be decided at trial on the basis of the evidence then before the Court.
As counsel for the respondent noted, even if the respondent were to succeed on this ground, the same particulars would be relevant to the applicant’s defence of substantial truth in relation to other imputations, such as sexual predation, and sexual assault and harassment; and the same evidence would be before the court at trial.
In our view, the applicant’s second proposed ground has no reasonable prospects of success.

Ground 3: The floating particulars

Before turning to the parties’ submissions, it may be useful to note here that we understand the expression ‘floating particulars’ to be a reference to paragraphs 97 to 100 of Annexure A and all of Annexure C to the Amended Defence.

Parties’ submissions

While the applicant accepted that the respondent had provided a basis for justifying the contextual imputations at paragraph 97 of Annexure A, he submitted in written submissions that the particulars at paragraph 100 of Annexure A did not relate to any matter in issue, and ought to be struck out as irrelevant. The applicant submitted that these particulars were not admissible on the question of serious harm and, since they concerned internal governance issues, they were not admissible on the question of mitigation of damages. Although the judge held that the particulars supported the contextual imputations, the applicant contended that those imputations could embrace any aspect of the applicant’s reputation, and should be struck out as having no relevance.
At the hearing, counsel for the applicant argued that the respondent had staged the ‘broadest possible attack’ on the applicant and conducted a ‘roving inquiry’ into various aspects of his conduct, including his position in the powerlifting world and his role as president of different clubs. Counsel submitted that particulars must be linked to the ‘sting’ of the publications. He submitted that the judge was wrong to find that these particulars were relevant to serious harm and that the applicant could not object to these particulars in circumstances where the applicant had already raised these matters in his own particulars. The applicant submitted that his particulars as to serious harm did not invite the respondent to undertake a roving inquiry as to the plaintiff’s general reputation. The applicant submitted that it was not open to the respondent to call evidence to undermine the applicant’s case as to serious harm; that the respondent’s approach undermined the purpose of the 2021 reforms regarding serious harm; and opened up a collateral attack on the applicant’s character, which would require additional witnesses to be called and consume additional court time.
In written submissions, the respondent submitted that the floating particulars justified various contextual imputations, including at paragraphs 19(b) and 19(c) of the Amended Defence. This was evident, so the respondent submitted, from the heading of section D of Annexure A (‘Particulars of truth and contextual truth’) and from the respondent’s written submission in the County Court in response to the applicant’s strike out summons.
Further, the respondent added that these particulars were relevant to serious harm, because the evidence previously filed showed that these matters (not the imputations pleaded by the applicant) caused the applicant ‘reputational harm in the eyes of the other directors and were the focus of much of the media publicity relied upon in [9B]’ of the Third Amended Statement of Claim. The respondent submitted that the submissions and affidavits previously made in opposition to the serious harm application were incorporated by reference into the denial in paragraph 9B of the Amended Defence.[47] Additionally, so the respondent submitted, the particulars were relevant to mitigation of damages.
[47]The respondent also noted that some of these matters were summarised in a previous ruling made by the judge on 12 May 2022: see Wilks v Qu (Ruling) [2022] VCC 620, [67]–[75].

At the hearing, counsel for the respondent reiterated that the impugned particulars were relevant to the question of serious harm, including whether the serious harm alleged by the respondent arose from the impugned publications. Counsel for the respondent referred to Miller & Power v Turner[48] (concerning the importance of evidence ‘contrary to the inference of causal responsibility’[49]) in support of his submission that the impugned particulars went to the respondent’s alternative causal hypothesis in response to the plaintiff’s case on serious harm.[50]
[48][2023] EWHC 2799.
[49]Miller & Power v Turner [2023] EWHC 2799, 74 (Collins Rice J).
[50]At the hearing, counsel for the respondent also noted there was some conflict between the relief sought by the applicant in their application for leave to appeal and in their written case.
In reply, counsel for the applicant noted that the judge had not specifically referred to the issue of serious harm in connection with the floating particulars.

Consideration

Paragraphs 19(b) and (c) of the Amended Defence are preceded by the heading ‘Contextual Truth – Section 26 of the [Defamation Act]’. In these paragraphs, the respondent pleaded that:
(b)the Melbourne University Email carried a contextual imputation that Wilks is unfit to hold a position of power at the MUWPC;
(c)the PA Email carried a contextual imputation that Wilks is unfit to hold a position of power at [Powerlifting Australia (‘PA’)]
For present purposes, we accept that the floating particulars can reasonably be seen as relevant to these pleadings. As the respondent submitted, their significance to the respondent’s case is supported by the heading to section D of Annexure A (‘Particulars of truth and contextual truth’). It also appears that this was how the respondent explained the relevance of these particulars in her written submissions filed in the County Court in opposition to the strike out summons. As the respondent stated in those submissions, her particulars were clearly relevant to the case that the plaintiff himself sought to make, especially as to serious harm.
Furthermore, the floating particulars include particulars that are evidently responsive to paragraph 1 of the Third Further Amended Statement of Claim, because they are relevant to the applicant’s pleaded claims regarding his position at PA and as to his reputation as its leader and ‘face’. Other particulars are relevant to his pleaded claim that he was compelled to step down temporarily as the CEO of PA as a result of the publication of the PA Email.
We accept, furthermore, that the floating particulars are reasonably seen as relevant to the applicant’s allegation that he suffered serious harm as a result of the imputations contained in the respondent’s impugned publications. Although the plaintiff bears the burden on this issue, it does not follow from this that the defendant cannot adduce evidence to undermine the plaintiff’s case, including by advancing an alternative causal hypothesis in response as these particulars would appear to do.
It is also reasonably conceivable that the floating particulars raise matters that may be relevant to the issue of mitigation of damages. It seems to us, however, that this and the other questions to which we have referred are best left to the trial judge to determine.
For the above reasons, it does not appear to us that the applicant’s third proposed ground has any realistic prospect of success.

Conclusion

For the reasons stated, none of the grounds advanced by the applicant have, in our view, any real prospect of success. Even if there were error, there will be no substantial injustice if the judge’s decision is permitted to stand. We therefore refuse the application for leave to appeal.

---

[2025] VSCA 135

17 June 2025