Wilks v Qu (Ruling 2)
[2022] VCC 1503
•12 September 2022
| 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: | 12 September 2022 | |
DATE OF RULING: | 12 September 2022 | |
CASE MAY BE CITED AS: | Wilks v Qu (Ruling 2) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1503 | |
EX TEMPORE RULING
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Subject:DEFAMATION
Catchwords: Serious harm element; likely and probable consequences of publication; whether determination of serious harm element will require findings about truth of allegations; obligations to ensure timely, cost effective, efficient and just disposition of issues in dispute
Legislation Cited: Defamation Act 2005; Civil Procedure Act 2010
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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 | Maddocks |
HER HONOUR:
1As a result of my ruling dated 12 May 2022,[1] the serious harm element of this proceeding was fixed for determination prior to trial. That determination is listed for 13 and 14 September 2022.
[1] Wilks v Qu (Ruling) [2022] VCC 620.
2Ahead of that hearing and in compliance with my orders, parties have filed a number of witness affidavits upon which they seek to rely. Each party objected to certain parts of the other party’s proposed affidavit evidence and those objections were listed for hearing on 9 September.
3In the course of that hearing, a question on the admissibility of certain paragraphs of the plaintiff’s affidavit was raised. The particular paragraphs deal with allegations about the defendant’s conduct and the conduct of other people prior to her publication of the allegations the subject of the proceeding.
4The defendant objected to the admissibility of that evidence on the basis of its relevance to any issue in the application, that the matter is scandalous, and that some of it is opinion evidence.
5The plaintiff submitted that it was relevant to the question of the likely and probable consequences of the defendant’s publication. In short, the plaintiff says the defendant’s allegations are baseless and that, in assessing the likely and probable consequences of the publication, it is, or may be, a relevant matter that the allegations are baseless and the defendant knew them to be so.
6This raised a concern in my mind that the determination of the serious harm question might require a finding of fact in relation to the defendant’s allegations. If such a determination was required, a hearing of the serious harm element would not be the appropriate forum for such a finding.
7In response to this concern the defendant submitted that there are a number of pathways by which the Court could determine the serious harm element without having to consider or determine the truth of the underlying allegations.
8The defendant conceded that if her submissions on the application of the law in relation to causation were not accepted, and the plaintiff’s submissions on the serious harm caused prior to any publication of the allegations in the media were also not accepted, the Court might have to consider the truth of the allegations. The defendant submitted that this was a very unlikely prospect, and that, given the considerable work done in preparation, the hearing should proceed.
9If, during or after the hearing, it became apparent that the unlikely had occurred and I formed the view that I did have to determine the truth of the allegations, at the point the decision could be made, pursuant to s10A(5) of the Defamation Act 2005 to postpone the determination of the serious harm element until trial. The advantage of such an approach is to minimise the risk that time and money spent preparing for the hearing would be wasted.
10The plaintiff submits that this proposal ought not be accepted. The plaintiff submits that the Court is not in a position to know, on the basis of either party’s submissions, whether or not the circumstance will arise where it needs to determine the truth of the allegations. The Court cannot make a determination about the truth of the allegations in the absence of all the evidence.
11If the hearing proceeding, this would require the parties and the Court to embark on a hearing knowing that, at the end of it, a determination may not be possible. This may cause further delay, as it might not be until after the hearing and when considering all the submissions and determining a path of reasoning that it becomes apparent to me that I cannot make such a determination. The plaintiff submits I ought not proceed on the basis of educated guesses about what will transpire during the hearing or as a result of the hearing.
Finding
12This is an unfortunate turn of events that has arisen as a result of my earlier ruling and through no fault of the parties. The determination that now falls to me is to consider, having regard to the overarching purpose and obligations of the Civil Procedure Act 2010 as to where the interests of justice lie. I must give effect to the overarching purpose of ensuring the timely, cost effective, efficient and just disposition of the real issues in dispute.
13There is a prospect that, if the serious harm hearing proceeds, it can be finally determined. If it is determined in the defendant’s favour, it is dispositive of the entire proceeding. If it is determined in the plaintiff’s favour, the serious harm element does not need to be revisited at trial which will provide some cost and time savings.
14However there is also a risk that the serious harm element proceeds and cannot be determined, resulting in a waste of time and money. If the serious harm hearing does not proceed on 13 September 2022, at least some of the costs that have gone into preparation, including the work done in dealing with objections on 9 September 2022, are likely to be wasted. The primary consideration, however, has to be the just determination of the issue.
15Despite the superficial attractiveness of the defendant’s proposition that we proceed with the hearing on 13 September 2022 and, essentially see what happens, I ultimately do not think that is the just course.
16It is unsatisfactory to embark on a hearing knowing at the outset that a determination may not be able to be reached. I am not satisfied that that prospect is remote or so unlikely as to not be something I ought seriously consider. At this stage I simply do not know.
17This is an unusual case and is likely to turn on its own facts and circumstances. The authorities can provide assistance but may not provide the answer, and cannot reassure me at this stage that there is no prospect, or only a very remote prospect, that the truth of the allegations will fall to be determined.
18If I am unable to reach a determination after a hearing on the serious harm element, that will undoubtedly cause additional delay and would not be in keeping with my obligations to conduct a timely and efficient trial.
19If I am unable to reach a determination, the parties are also in the unsatisfactory position of having tendered evidence which has not been the subject of any findings, and leaving open the question of what use is to be made of that evidence at trial.
20Accordingly, the appropriate course is to adjourn the determination of the serious harm element to the trial of the proceedings.
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