Wilks v Qu (Ruling)
[2022] VCC 620
•12 May 2022
0,
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-21-04887
| ROBERT LEWIS WILKS | Plaintiff |
| v | |
| DORI QU (also known as QINGSHI QU and DORI DENG) | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2022 | |
DATE OF RULING: | 12 May 2022 | |
CASE MAY BE CITED AS: | Wilks v Qu (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 620 | |
RULING
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Subject:DEFAMATION
Catchwords: Serious harm element – application for serious harm element to be determined before trial of proceeding commences pursuant to s10A(5) Defamation Act 2005
Legislation Cited: Defamation Act 2005, s10A, s12B; County Court Civil Procedure Rules 2018, r34A.4(2)(b), r47.04, r63A.82(2)(a); Civil Procedure Act 2010, s9(d), s39, s48, s49; Defamation Act 2013 (UK), s1; Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020; Transport Accident Act 1986, s99, s162; Migration Act 1958 (Cth), s198; Crimes Act 1958 (Vic), s327(2), s342(6)(b), s459(2); Paid Parental Leave Amendment (Work Test Special Circumstances) Rules 2021 (Cth), r24B(2)
Cases Cited:Lachaux v Independent Print Ltd and Anor [2020] AC 612; Newman v Whittington [2022] NSWSC 249; Murphy v Victoria (2014) 45 VR 119; Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd (No 2) [2004] VSC 341; DST Bluedoor Pty Ltd v AMP Services Ltd [2020] VSC 254; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Jacobson v Ross [1995] 1 VR 337; Dunstan v Simmie and Co Pty Ltd [1978] VR 669; Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Hogben and Secretary, Department of Social Services (Social services second review) [2020] AATA 985; IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 38 VR 303; Winslow Constructors Pty Ltd v Head, Transport for Victoria (Costs) (2021) 64 VR 200; Groth v Secretary, Department of Social Security (1995) FCA 1708; Dranichnikov v Centrelink (2003) FCAFC 133; Rader v Haines [2021] NSWDC 610
Ruling: Application granted. Question of serious harm to be listed for hearing prior to trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Mukerjea with Mr G Jegatheesan | ALT Legal Associates |
| For the Defendant | Mr T J Mullen with Ms H Jager | Maddocks |
HER HONOUR:
1This is an application by the defendant pursuant to s10A(5) of the Defamation Act 2005 (“the Act”) to determine the serious harm element of the plaintiff’s claim in defamation before the trial of the proceeding commences. At the hearing of the application, the defendant was given leave to amend the Summons to include an application that, pursuant to r47.04 of the County Court Civil Procedure Rules 2018 (“the Rules”) or s48 or s39 of the Civil Procedure Act 2010, the question of what meanings are conveyed by the matters complained of be determined as a preliminary question.
2For the reasons that follow, I am satisfied that it is appropriate to grant the defendant’s application that the serious harm element be determined before the trial of the proceeding commences.
Background
3The plaintiff, Robert Lewis Wilks, has been a senior figure in the Australian and international powerlifting community for many years, including as chief executive officer of Powerlifting Australia Limited (“PA”), as a senior coach of the Australian powerlifting team and as a founding member of the Melbourne University Weightlifting & Powerlifting Club (“MUWPC”). He is also a practicing clinical psychologist. As of the time of this application, he was sixty-seven years old.
4At the time of the events complained of, he was also the coach of the defendant, Dori Qu, who, at that time, was a twenty-two-year-old student and member of the MUWPC.
Publications
5Mr Wilks alleges that Ms Qu defamed him in four publications. Two publications were in the form of private messages via Facebook Messenger and Instagram to individuals, and referred to as “the First SMS Messages” and “the Second SMS Messages”. In both these messages, Ms Qu told the recipients that she had been sexually harassed by Mr Wilks.
6A further two publications were emails in substantially the same terms. Ms Qu sent an email to two PA members, Sandra Upton and Stacy Rocco (“the PA Email”), and an email to Thomas Mullumby at the University of Melbourne (“the Melbourne University Email”). Both emails were headed “sexual harassment case”.
7In both emails Ms Qu wrote, amongst other things, that during a period when she was isolated and vulnerable, Mr Wilks asked for sexual favours, would get angry, start crying or would tell her how hurt he was if she said no. She wrote that “he would also insert himself when I have clearly said no”. She said that after finally telling him to stop contacting her, he was furious, accused her of being unethical and would not let her be involved with any of the MUWPC activities. She said she subsequently found out there was another woman who used to train at MUWPC who “suffered what I suffered”. In the Melbourne University Email, Ms Qu wrote that Mr Wilks “abuses his power over the students he’s supposed to be coaching and caring for” and that he should not be on campus around young students. In both emails she finished by asking that the recipient “hear me and believe me”.
8Mr Wilks claims that various imputations arise from the publications. The imputations are in dispute, although Ms Qu acknowledges that the meanings conveyed by the allegations are serious (and would be defamatory). Ms Qu does not deny that she sent the messages and emails. It is likely that publication will not be in dispute.
9Mr Wilks says he was in an “intimate relationship” with Ms Qu which he terminated prior to her sending the messages and emails.
10The four publications were all sent on or about 5 July 2021.
Element of serious harm added to tort of defamation
Purpose
11The Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 introduced amendments to the Act which came into effect on 1 July 2021 and were thus operable at the time of publication.
12The amendments introduce a new “serious harm element” to the tort of defamation in Victoria.
13The purpose of this new regime was set out in the Second Reading Speech to the amending legislation:
“The Bill will introduce a new ‘serious harm threshold’ as an additional element of the cause of action for defamation. This will require plaintiffs to establish that the publication of allegedly defamatory matter has caused, or is likely to cause, serious harm to their reputation. This important reform will operate to prevent trivial or frivolous defamation claims at the outset, reducing the burden of unwarranted defamation litigation on businesses, individuals, and the courts.”[1]
[1]Victoria, Parliamentary Debates, Legislative Assembly, 14 October 2020, 2662 (The Hon J Hennessy, MP, Attorney-General)
14The legislative intention is also apparent from the Explanatory Memorandum:
“The intention is to encourage the early resolution of defamation proceedings by enabling the issue of serious harm to be dealt with as a threshold issue.”[2]
[2]Explanatory Memorandum, Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic), clause 21
Relevant subsections
15Section 10A(1) of the Act provides:
“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.”
16Section 10A(2) is irrelevant for present purposes.
17Section 10A(3) provides that the judicial officer (and not the jury) is to determine whether the serious harm element is established.
18Section 10A(4) provides that:
“… 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).”
19For the purposes of this application, it is s10A(5) that is most relevant. That subsection provides:
“If a party applies for the serious harm element to be determined before the trial for the proceeding commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding (including during the trial).”
20Section 10A(6) of the Act sets out three matters that the Court may consider (but is not limited to) in deciding whether special circumstances exist:
“(a) the cost implications for the parties;
(b) the resources available to the court at the time;
(c)the extent to which the serious harm element is linked to other issues for determination during the trial for the proceeding.”
21The wording of s10A(1) is similar to s1 of the Defamation Act 2013 (UK) (“the UK Act”), 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.”
22Section 10A(6) of the Act sets out three matters that the Court may consider (but is not limited to) in deciding whether special circumstances exist:
“(a)the cost implications for the parties;
(b)the resources available to the court at the time;
(c)the extent to which the serious harm element is linked to other issues for determination during the trial for the proceeding.”
23The UK Act does not contain a comparable provision to s10A(5) and therefore the UK authorities are of limited assistance in this application, though would be relevant to the determination of the serious harm element itself.
24Nevertheless, the UK authorities can provide some assistance to the Court in assessing what must be established in making out the serious harm element.
25In Lachaux v Independent Print Ltd and Anor,[3] the Supreme Court of the United Kingdom held that a statement which would previously have been regarded as defamatory because of its inherent tendency to cause some harm to reputation would not satisfy the requirements of s1 of the UK Act. 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. As a result of s1 of the UK Act, the defamatory character of a statement no longer depended only on the meaning of the words or their inherent tendency to damage the claimant’s reputation.
[3][2020] AC 612; [2019] UKSC 27 (“Lachaux”)
26The new legislation envisages that there are some cases where the serious harm element can be determined on the pleadings.
27However, s10A(5) of the Act envisages that there will also be cases where a hearing must be held. 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.
28The legislation sets out, without limitation, some of the matters to be considered.
Meaning of “as soon as practicable”
29The plaintiff submits that the phrase “as soon as practicable” creates a threshold question as to whether it would be “practicable” to determine the serious harm element. The plaintiff submits that, unless it is “practicable” to determine the serious harm element, that element cannot be determined before trial or at some point close to trial.
30The plaintiff submits that it is not practicable to determine the serious harm element prior to trial or close to the trial, because:
(a) the proceeding is at an “embryonic” stage;
(b) the evidence as to Ms Qu’s position in relation to publication is equivocal;
(c) the meanings of the statements are not agreed;
(d) Ms Qu has not filed a defence, so it is not known whether she will plead defences of truth or contextual truth;
(e) the harm to Mr Wilks’ reputation is in a state of flux and the Court should not make a determination about serious harm before he has had the opportunity to forensically develop his case.
31I do not accept that the phrase “as soon as practicable” creates a threshold question as submitted by the plaintiff. The term “as soon as practicable” is frequently used in legislation to prescribe the period within which a particular step must be taken. For example the Transport Accident Act 1986 uses the phrase no less than fifteen times to prescribe the period in which, variously, the owner of a motor vehicle involved in a fatal accident must give notice to the Commission of the accident,[4] or a claim made against an owner must be notified to an insurer.[5]
[4] Transport Accident Act 1986, s99
[5]Transport Accident Act 1986, s162. For other examples, see the Migration Act 1958 (Cth), s198, in relation to the removal from Australia of unlawful non-citizens; the Crimes Act 1958 (Vic), s327(2) where it prescribes, by way of illustration, the period in which persons must disclose information; s342(6)(b) which sets out when notice must be given, or s459(2) in which a protective services officer must hand an arrested person into the custody of police
32If, as submitted by the plaintiff, the practicability of determining the serious harm element is a threshold question, the wording of the legislation would reflect that by specifying that the threshold question should not be determined prior to trial unless it was practicable to do so or by including practicability as one of the considerations in determining “special circumstances”.
33“Practicable” relates to the timing of the obligation, in this case the obligation of the Court to determine the serious harm element, rather than to the enlivening of the obligation. The obligation is enlivened if a party makes an application, as has occurred in this case. The Court can only postpone the determination until a later stage in the proceeding or to the trial if there are special circumstances.
34The threshold question for consideration is whether there are “special circumstances” justifying the postponement. In the absence of special circumstances, the Court is to determine the serious harm element as soon as practicable.
The Test for “special circumstances”
Determination of a pre-trial issue
35I am not aware of, and neither party was able to take me to, any Australian authority where the provisions of s10A(5) had been considered, though s10A itself has recently been considered by Sackar J in the Supreme Court of New South Wales in Newman v Whittington.[6] That hearing was primarily a pleading dispute in which the plaintiff’s pleading, as it related to the serious harm element, was struck out with a right to replead. Sackar J noted:
“The issue [of serious harm] would normally be determined before trial unless special circumstances suggest otherwise and special circumstances may include cost implications, the court’s resources and whether the determination of that issue is linked to other issues during the trial: … .”[7]
[6][2022] NSWSC 249
[7] (ibid) at paragraph [35]
36Whether it can be correctly said that the special harm element is “normally” determined before trial, given its recent inclusion as an element of the tort of defamation, is open for debate. Nevertheless, Sackar J’s comments add 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.
37Given the legislature’s intention to alter the tort of defamation to include the element of serious harm and the requirement of s10A(5) that the element be determined before trial on application by a party, the usual test for determination of a preliminary point must be approached with caution. The test for setting a matter down for determination of a preliminary point pursuant to r47.04 of the Rules is well established:[8]
(a) the power should be exercised with caution, and only in a clear case;[9]
(b) the attractions of trials of issues rather than of cases in their totality, “are often more chimerical than real”, so that separate trials should “only be embarked upon when their utility, economy and fairness to the parties are beyond question”;[10]
(c) the advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding;[11]
(d) there should be no trial of a separate question on the basis of assumed facts unless the facts are agreed or can readily be determined judicially. Otherwise, the parties remain free to dispute the relevant facts at any later trial;[12] and
(e) as a general rule, it is inappropriate to order that a preliminary issue be isolated for determination unless the determination of the issue in favour of the plaintiff or defendant will put an end to the action, or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.[13]
[8] Murphy v Victoria & Anor (2014) 45 VR 119 at 126, paragraph [28]
[9]Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd (No 2) [2004] VSC 341, paragraph [181] and DST Bluedoor Pty Ltd v AMP Services Ltd [2020] VSC 254, paragraph [14]
[10] Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 18, paragraphs [52], [55], [168] and [170]
[11]Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449, paragraph [25]; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533-534
[12] Jacobson v Ross [1995] 1 VR 337 at 341-342
[13] Dunstan v Simmie and Co Pty Ltd [1978] VR 669 at 671
38The plaintiff submits that the Court ought to have regard to the well-established principles set out above.
39Contrary to the caution with which courts should set down the trial of a separate question, the legislation imposes a presumption that the special harm element will be heard prior to trial and the considerations ordinarily pertinent to the trial of a separate question are not applicable. 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 r47 are not relevant to this application.
Special circumstances
40Like the phrase “as soon as practicable”, the phrase “special circumstances” is commonly used in legislation and regulation.[14] Sometimes, but not always, what constitutes special circumstances is also specified.[15] Elsewhere, as in this legislation, the definition of special circumstances is left open, though some guidance is provided by s10A(6).
[14] See for example County Court Civil Procedure Rules 2018, r34A.4(2)(b) and r63A.82(2)(a)
[15]See for example Paid Parental Leave Amendment (Work Test Special Circumstances) Rules 2021 (Cth), r24B(2)
41The plaintiff submits that the burden of establishing special circumstances ought not be set unduly high. In Liberty Funding Pty Ltd v Phoenix Capital Ltd,[16] the Court held that “[t]he notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised”. It may be enough if there is a “special feature” of the case which is not usually present.[17] The plaintiff submits that the intention of the legislation, as evidenced from the Second Reading Speech, is to weed out trivial or frivolous claims, and the fact that s10A(7) allows a determination to be made on the pleadings without hearing further evidence supports this submission. Therefore, the plaintiff submits, it is relevant to assess whether the claim brought could be characterised as trivial or frivolous in determining an application under s10A(5).
[16](2005) 218 ALR 283 at 286, paragraph [31]
[17] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
42In Hogben and Secretary, Department of Social Services (Social services second review),[18] Member Hallwood noted:
“… Special circumstances provisions are ‘release valves’ such that strict application of the rules in the circumstances would create an injustice and that is unfair, unjust or an unintended outcome.”[19]
[18][2020] AATA 985
[19](ibid) at paragraph [158]
43Both parties’ submissions dealt in depth with the question of serious harm, and touched on the prospects of serious harm being established in this case. 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.
44For 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.
45In 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.
[20]See for example in an indemnity costs context, IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 38 VR 303 at 391-392, paragraphs [335]-[336], recently cited in Winslow Constructors Pty Ltd v Head, Transport for Victoria (Costs) (2021) 64 VR 200
[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) (supra), paragraph [158], citing Groth v Secretary, Department of Social Security (1995) FCR 240, paragraph [12]; Dranichnikov v Centrelink (2003) FCAFC 133, paragraph [33]
46The 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”.
Costs
47The defendant says that the costs of the proposed application would be significantly less than the costs of a trial and that, even if the plaintiff is successful in establishing serious harm, those costs will not be wasted. The evidence at the hearing could stand at trial, the issues between the parties would likely be narrowed, and a hearing may facilitate resolution of the dispute.
48The plaintiff estimates that a serious harm hearing would take four to five days, cost around $150,000 and involve up to ten witnesses. The judicial officer making the determination would likely be required to make findings on credit about both the plaintiff and defendant and therefore would not be able to hear any subsequent trial. There would likely be significant duplication of evidence and an onerous costs burden.
49It is difficult to make an accurate assessment of the likely costs of a serious harm hearing. Practitioners and the Court are not in the position of being able to look at the experience gained in a multitude of similar cases. In Rader v Haines,[22] the serious harm element was determined during the trial of the proceeding. In Newman v Whittington,[23] the serious harm element was determined (in relation to some but not all of the imputations) on the pleadings.
[22][2021] NSWDC 610
[23] Supra
50It is true, however, that determining a preliminary question of any description will usually involve some additional expense, if the matter then proceeds to trial. There is inevitably a degree of overlap and duplication involved. The real cost savings occur when the preliminary point is able to finally dispose of some or all of the issues in dispute. In this case, if the serious harm element is not made out on any of the publications, the entire case will fall away. If the serious harm element is made out in relation to all the publications, then the cost saving – not having to adduce evidence about serious harm at trial – will likely be insignificant compared with the additional costs involved in having two hearings. A third option exists, which is that the serious harm element is made out in relation to some but not all of the publications. 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.
51The defendant’s sanguine view about the manner in which a preliminary hearing could be determined might be overly optimistic; likewise, the plaintiff’s projection of calling up to ten witnesses and incurring enormous expense might be overly pessimistic.
52If this matter runs to trial it is likely that everything other than publication will be in dispute. Given the likely defences, it would not be unreasonable to estimate that the trial would take at least ten sitting days.
53There 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.
54This 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.
Resources of the Court
55The Act specifically acknowledges that the Court may consider its resources, but the Civil Procedure Act 2010 already requires the Court to further the overarching purpose of that legislation by having regard to the efficient use of judicial and administrative resources.[24]
[24] Civil Procedure Act (2010), s9(d)
56Factors 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.
57In 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.
Extent to which establishing serious harm is linked to other issues for determination during trial
Defendant’s Submissions
58The defendant submits that all cases will have some link between, on the one hand, defamatory meaning, the extent of publication and reputational damage, and on the other, the question of whether a plaintiff has established serious harm. In this case, any such link cannot sensibly be regarded as constituting “special circumstances”.
59The defendant says that there is a link in this case between the element of serious harm and the meaning of the publications. Whilst the defendant concedes that the imputations that are conveyed are serious, she does not accept all the meanings pleaded arise. For example the defendant says that if the imputation of “multiple rapes” is not conveyed, then there would be no need to call multiple witnesses in respect of those allegations.
60To the extent that the meanings are in dispute, the defendant submits that it is appropriate to also set down a preliminary hearing on the issue of the meanings, pursuant to r47.05 of the Rules. This would have the added benefit, in the event that the serious harm element was established, of dealing with a significant component of the case which would save time at trial.
61The defendant submits that the natural and probable consequence of the publications to PA and MUWPC was that there would be a confidential investigation.
62This would necessitate some republication to the investigator, potential witnesses and possibly a handful of other people. The defendant says that republication of this kind cannot possibly constitute serious harm. Investigations of complaints happen all the time and are undertaken, usually, under express obligations of confidentiality.
63The evidence supports a conclusion that, upon receipt of the PA Email, the recipients immediately passed the email on to the plaintiff. There is no evidence that it was passed on to anyone else or that any other action was taken by PA in relation to the plaintiff until after he initiated these proceedings. Indeed, the only initial action taken by PA was to ban the defendant from attending training and PA activities by withdrawing her authorisation.[25]
[25]Exhibit marked “GLW-1” to the affidavit of the defendant’s solicitor, Gina Louise Wilson, sworn 4 February 2022 at p 161, letter from PA dated 25 July 2021. See also p 114, letter from MUWPC Committee dated 28 July 2021
64At the time of this application, the defendant had recently become aware that PA was conducting its own investigation in relation to her complaint, though little was known about any such investigation or when it was likely to be concluded.[26]
[26]After the hearing, media reports indicated that PA had concluded its investigation and reinstated the plaintiff as CEO
65The defendant submits there is no possibility that the SMS messages could have caused serious harm. Each was to an individual. There is no evidence that the recipients passed the messages to anyone other than the plaintiff. There is no evidence that either of those recipients read the message and thought less of him. There is evidence that both recipients continued to maintain relationships with the plaintiff and continued to be coached by him, at least as at 7 November 2021.[27] The response of at least one recipient to the SMS messages indicates that she was unconcerned by the allegations.[28]
[27] Exhibit marked “GLW-1” to the affidavit of Gina Louise Wilson, sworn 4 February 2022, at p 46-59
[28] (ibid) at p 39
66The test for serious harm is concerned only with damage to reputation. Whilst personal hurt, distress and embarrassment, and personal vindication are factors relevant to an assessment of damages, they are not relevant to whether there has been serious harm.
67The defendant does not deny that the plaintiff has likely suffered serious reputational damage, however, submits the damage caused has been a direct result of the plaintiff’s own conduct in immediately issuing public court proceedings. These proceedings were then the subject of publicity in The Age newspaper. The articles in The Age indicate that PA’s five-person board had no knowledge of the allegations until they were contacted by the journalists.[29]
[29] (ibid) at p 137
68In contrast to PA, the University of Melbourne (“the University”) promptly initiated an investigation, conducted by independent investigator, Mr Brian Lacy AO. The defendant alleges that the plaintiff refused to participate in the investigation.
69By letter dated 11 February 2022, the University wrote to Mr Wilks to communicate the outcome of its investigation.[30] It excluded Mr Wilks permanently from all University premises and facilities and from participating in events associated with the University. The defendant agrees that those consequences could amount to serious harm if they were a result of the pleaded imputations.
[30] Affidavit of the plaintiff’s solicitor, Ajai Thapliyal, sworn 1 March 2022, at p 10-11
70However, the defendant submits that the plaintiff did not suffer those consequences as a result of the “imputations of concern”. By letter dated 11 February 2022, the University set out its findings in relation to the complaint. It found that:
(a) the plaintiff engaged in a relationship of a sexual nature with the defendant whilst he was her coach at MUWPC and whilst she was a student at the University; and
(b) there was a significant power imbalance between the plaintiff and the defendant due to the plaintiff being aged sixty-seven, the defendant aged twenty-three (forty-four years his junior), that he was the defendant’s powerlifting coach and that he had cultivated his relationship by using his status or position in the MUWPC to support her in a disagreement with the Club and then suggested that the defendant was indebted to him for his support.
71The University found that, in relation to whether the plaintiff sexually harassed the defendant, “it is indeterminate due to lack of evidence. However based on Dori Qu’s evidence, you have a case to answer.”
72The University went on to set out other conduct:
“… since the date of Ms Qu’s complaint, we also note that you have:
1.commenced defamation proceedings against Dori Qu in respect of a confidential complaint made against you (through Powerlifting Australia, an entity of which you were CEO);
2.continued with various threats of litigation against the MUWPC and the University and its representatives without, in our view, a proper basis or merit;
3.authorised the removal of MUWPC equipment (weight plates) on or about 21 November 2021 without the approval of MUWPC, which you have not returned;
4.attempted to access MUWPC Commonwealth Bank of Australia bank accounts without authority;
5.made further unauthorised attempts to remove MUWPC equipment from University property on or about 18 December 2021; and
6.have used your position on MUWPC committee improperly, including making unauthorised and misleading statements to members (which include University students).”
(the Recent Conduct).”
73The decision of the University to exclude the plaintiff from all University premises and facilities and from participating in any activities associated with the University was, according to the letter, based on “both your conduct in engaging in a sexual relationship with a student in circumstances where there was a significant power imbalance and your Recent Conduct”.
74Although the University considered the plaintiff had a case to answer in relation to the allegations of sexual harassment, this was not the basis for its decision. It is not clear from the University letter whether the power imbalance cited as one of the reasons for the ban was the age difference and difference in position (older coach, younger athlete) or whether it also included the University’s findings that the plaintiff had cultivated a relationship by using his power or status.
75The defendant submits that the plaintiff cannot rely on the consequences of the publicity about the proceedings he initiated to establish serious harm. Whilst this might be relevant to the assessment of damages, the damages to which the plaintiff might be entitled if he succeeds are distinct and irrelevant to what he must prove to establish serious harm. Nor can the defendant rely on the consequences of his admitted actions, for example in having a sexual relationship with a much younger student athlete whom he was coaching, to establish serious harm. Nor can he rely on his banning by the University as evidence of serious harm, unless he can establish that the banning was the result of the imputations of concern and not a combination of his admitted sexual relationship and other conduct unrelated to this case which is contrary to the stated reasons.
76The defendant says that the extent to which the serious harm element is linked to other issues in the case is no greater than in any other defamation case, and certainly not sufficient to amount to special circumstances.
77The plaintiff’s opinion as to whether people thought less of him is wholly inadmissible. Any evidence that he can give can only be on objective facts. It is unlikely that there would be any serious issues of credibility arising from this application; the question will be what facts can be established and whether, on the basis of those facts, the Court can be satisfied that the plaintiff sustained serious harm.
78The defendant therefore says there is a real prospect that, in relation to all four publications, the plaintiff will be unable to establish serious harm.
79On that basis, the defendant submits any link between the issues of defamatory meaning, extent of publication and reputational damage, and whether the plaintiff has established serious harm cannot be regarded as special circumstances.
Plaintiff’s Submissions
80The plaintiff submits that the element of serious harm is so intrinsically linked to multiple other issues in this case that it cannot sensibly be dealt with prior to trial, or at least very close to trial.
81The plaintiff says that to require a pre-trial hearing on the serious harm element would be akin to conducting a trial on all elements of the tort without the benefit of proper pleadings and interlocutory steps.
82The serious harm element has both a qualitative as well as quantitative aspect.
83There is evidence of a significant grapevine effect at play within the weightlifting community, which would have to fairly be considered in any assessment. The plaintiff points to the resignation of many members of the PA board as one example of evidence that people other than the direct recipients of the publication had formed a view about him that was unfavourable as a result of the imputations of concern. The plaintiff submits that, following the publications, there was a “pile on” within the weightlifting community.
84The outcome of the University investigation itself warrants a finding that there has been serious harm. The defendant cannot say that the finding was not based on the imputations of concern, given Mr Lacy found that there was a power imbalance and that the plaintiff had cultivated a relationship with the defendant by suggesting that she was indebted to him. This is reflected in the allegations pleaded at 5C(d) and 5C(e) of the Second Further Amended Statement of Claim and comprises part of the “Second Imputations of Concern” identified in the pleading.
85Further, numerous people had to have seen the complaint made to MUWPC by operation of the grapevine effect, including Mr Lacy and Mr Rod Warnecke, Sport Development Manager of Melbourne University Sport, who contacted Ms Qu in relation to the complaint, and Professor Nicola Phillips, the Provost who wrote to the plaintiff. The notion that the imputations of concern were published to just a handful of people cannot be sustained.
86Ordinary principles of causation and foreseeability establish that media publicity is a foreseeable consequence of defamation proceedings, and defamation proceedings are a foreseeable consequence of defamatory publication.
87The element of serious harm cannot be disentangled from the meanings that arise, the extent of publication and the consequences of the publication. In this case, serious harm is linked to nearly all other issues in the case, and cannot be helpfully disentangled in the manner submitted by the defendant. There will be no clear demarcation between the serious harm element and these other questions.
88The defendant concedes that the meanings ought to be determined at the same time as the serious harm element because the two are inextricably linked. However, setting down the question of the meanings as a preliminary question, whether pursuant to r47.04 of the Rules or s48 and s49 of the Civil Procedure Act 2010, would require a consideration of the usual test for setting down a separate question.
89On that basis, the plaintiff submits that the serious harm element is so inextricably linked to the issues of defamatory meaning, extent of publication and reputational damage that there are special circumstances justifying the postponement of the determination of serious harm to a later stage of the proceeding.
Finding
90I 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.
91However, 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.
92Also in issue is whether the damage to the plaintiff’s reputation resulted from the imputations.
93The serious harm element is inextricably linked to the question of meaning.
94The 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.
95I 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”.
Other Considerations
Trauma of witnesses
96The defendant submits that if the matter proceeds to trial on all aspects, the defendant and perhaps other women will be required to give evidence and undergo cross-examination about their experience with the plaintiff, including in relation to sexual matters. The plaintiff likewise would likely give evidence about the relationship, the truth or otherwise of the allegations the defendant has made and the hurt, distress and embarrassment he has suffered. All persons required to give this evidence might experience some degree of trauma.
97At the serious harm stage only the meanings conveyed by the publications and whether the publications caused the plaintiff serious harm will be before the Court. Whether or not the plaintiff and defendant had a consensual relationship and the nature of his relationship with any other witnesses becomes relevant only in establishing the defences. If the likely trauma to witnesses in being called to give this evidence can be avoided, it should be avoided.
98This is a consideration to be weighed in favour of granting the application but does not outweigh matters which might otherwise amount to special circumstances.
No defence filed
99The plaintiff submits that every aspect of the cause of action will be determined in a “preliminary hearing” without the Court having the benefit of a substantive defence and without the plaintiff having the usual ability to prepare his case knowing what defences he faces and having made and obtained full discovery.
100The plaintiff says that if the defence is, as foreshadowed, likely to be one of justification, then the credit of plaintiff and defendant will be crucial to the trial. The plaintiff says that questions of credit will be relevant to the serious harm element because the defendant intends to contradict the plaintiff’s evidence as to:
(a) the state of mind and reaction of the two recipients of the PA Email;
(b) the extent of any grapevine effect within the powerlifting community and beyond from the imputations;
(c) the motives and state of mind of Mr Wilks following the imputations, including the impetus for his having stood down as CEO of PA.
101The state of mind and reaction of the recipients of the PA Email is not evidence the plaintiff is able to give, nor does it go to his credit. The extent of the grapevine effect in the powerlifting community may be relevant to the quantitative component of the serious harm element but not to the plaintiff’s credit. The plaintiff will have to establish the qualitative component of the serious harm element; that is, that the harm was caused by the imputations and not by other factors. It is not clear how the plaintiff’s state of mind and motives, including his impetus for standing down as CEO of PA is relevant to either credit or the serious harm element.
102Accordingly, I do not consider that the absence of a defence is a factor that tends towards establishing special circumstances.
Extent of harm not yet known
103The plaintiff submits that the serious harm element includes harm that is “likely” to be caused. At this stage, the “harm” is ongoing and not yet quantifiable.
104The nature of defamation is that the harm may never be fully realised or concluded. This does not mean that the harm is not quantifiable. Courts routinely determine cases in which the damage is ongoing. The extent of the harm is more properly a question that arises on the question of damages. The burden for the plaintiff is establishing that the element of serious harm can be made out.
105The idea that serious harm might not yet exist, but could exist in the future, and that this could amount to special circumstances, would appear to be contrary to the intention of the legislation which provides strict time limits for defamation claims, and the overarching obligations of the Civil Procedure Act.
Analysis
106I turn now to consider whether, having regard to the findings I have made in relation to the discretionary factors set out in the legislation, and other factors raised by the parties, special circumstances nevertheless exist.
107This is an unusual case. In many cases, any harm that is caused could only arise from the imputations, and the test of seriousness will focus on, for example whether the person who heard the imputations believed them. This was the issue in Rader v Haines,[31] which applies the UK Act, as the defamation occurred in the UK, despite involving a plaintiff resident in Australia. The imputations were serious, and included that the plaintiff had stalked and tried to strangle his ex-wife. The publications were to the plaintiff’s parents. There was a small grapevine effect but those who heard of the allegations from the plaintiff’s parents did not believe them and the judge was satisfied that no one other than the plaintiff’s parents had read the publication. The evidence was, at its highest, that the parents were angry and suspicious about the plaintiff for a number of weeks. However, there was no evidence of lurking doubt and the plaintiff’s mother apologised to him for having doubts about him.. The Court held that “a discord in his relationship with his parents for some weeks does not amount to ‘serious harm’, despite the seriousness of the imputations”.[32]
[31]Supra
[32] Rader v Haines (supra) at paragraph [151]
108The judge, citing Lachaux,[33] held that:
“Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’.”[34]
[33]Supra
[34] Rader v Haines (supra) at paragraph [125]; citation omitted
109In contrast to Rader, in this case there has been harm to the plaintiff’s reputation. A number of members of the PA board resigned, and the University banned him. What is not yet established is whether those consequences arise from the imputations. The defendant submits that the damage to the plaintiff’s reputation could arise because people within the powerlifting community, including board members, do not want to be associated with a sixty-seven-year-old man who considers it is appropriate to have a sexual relationship with a twenty-three-year-old athlete he is coaching. The Court cannot infer that the harm arose from the imputations. The Court must consider the combination of the inherent tendency of the words and their actual impact on those to whom they were communicated in determining serious harm.
110This obligation rests on the plaintiff. He does not need to establish the full extent of the harm done to his reputation which might be relevant to damages, though I accept that there is a quantitative as well as qualitative element to serious harm. But he does need to establish serious harm. If he cannot do this, his claim will fail. It is better for all concerned that, if his claim cannot be made out, it fails after a short hearing and before the completion of all the interlocutory steps, rather than after a long trial.
111I accept the plaintiff’s submission that the threshold for “special circumstances” should not be unduly high. We are not concerned with “exceptional” circumstances.
112Nevertheless, 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 s10A(5) of the Act would be rendered nugatory.
113An 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
114The 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.
Preliminary hearing
115The plaintiff rejects the defendant’s submission that the matter could be determined in one or two days, with evidence-in-chief put on by way of affidavit. The plaintiff submits that the practice in this Court and in common law jurisdictions generally is to take evidence viva voce and this would necessarily entail a four to five-day hearing. The Court would have to hear oral evidence at least about the plaintiff’s reputation, and the esteem in which he was held by colleagues, friends and family, the grapevine effect within the powerlifting community and the immediate and likely future professional consequences for the plaintiff.
116Whilst it is true that the primary means of hearing evidence in common law cases has traditionally been by way of viva voce evidence, there is a strong case management argument to move away from that, particularly in hearings of preliminary questions.
117For example in determination of serious injury applications in this Court, all evidence-in-chief is put before the Court by way of affidavit. Any party wishing to cross-examine a witness on their affidavit material must give notice prior to the hearing. Similarly in other specialist lists in both this Court and the Supreme Court of Victoria, it has long been the practice that evidence-in-chief be primarily by way of affidavit.
118“The way things have always been” is no longer a sufficient basis for keeping things that way. It is appropriate for evidence to be put on by way of affidavit, and notice to be given to any witness required for cross-examination.
119Having made this determination, the question then arises as to whether the meanings of the publications ought also be determined at a preliminary hearing. If the application was solely to determine the meanings, it would not be appropriate to set the matter down for a preliminary hearing, according to the established principles. However, in circumstances where a preliminary hearing will proceed to determine serious harm, and for the reasons set out above about the desirability to determine both matters together, it is appropriate to determine the question of the meanings conveyed at the same time. This will be primarily a matter of submissions which can largely be provided in writing.
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