Wilks v Qu (Ruling No 4)
[2024] VCC 1009
•5 July 2024
| 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 | Defendant |
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JUDGE: | Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2024 | |
DATE OF RULING: | 5 July 2024 | |
CASE MAY BE CITED AS: | Wilks v Qu (Ruling No 4) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1009 | |
RULING
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Subject:DEFAMATION – CIVIL PROCEDURE
Catchwords: Pleading summons - strike out – whether pleading of abuse of process must be subject of interlocutory application – whether contextual imputations more serious than pleaded imputations – whether elements of rape sufficiently pleaded – whether allegations of post publication conduct relevant
Legislation Cited: Defamation Act 2005; County Court Civil Procedure Rules 2018; Crimes Act 1958
Cases Cited:Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228; Fairfax Media v Kermode [2011] NSWCA 174; Faruqi v Latham [2018] FCA 1328; Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299l Jago v District Court of NSW (1989)168 CLR 23; John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; ;; Joseph & Ors v Spiller & Anor [2012] EWHC 2958; Lehrmann v Network Ten Pty Ltd [2024] FCA 369; McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196; Pamer v McGowan [2021] FCA 430; Wright v McCormack [2023] EWCA Civ 892; Rush v Nationwide News Pty Limited (No 2) [2018] FCA 550;
Ruling: Defendant granted leave to amend pleadings in relation to consent to March and Sydney conduct. Plaintiff’s application otherwise dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | T Sowden | ALT Legal Associates |
| For the Defendant | T Mullen & M Jager | Maddocks |
HER HONOUR:
1The plaintiff makes application that the defence be struck out. In the alternative he applies for parts of the defence to be struck out.
2At the hearing, the plaintiff reiterated his application that the defence be struck out. In the event that the entire defence was struck out, he did not oppose an order that the defendant be given leave to replead. However, he submitted that certain parts of the defence could not be repleaded in any acceptable form and he would resist a grant of leave in relation to those parts.
3The plaintiff’s complaints about the defence can be summarised as follows:
(a) Abuse of process:
(i)The defendant’s pleading that the plaintiff engaged in an abuse of process is not part of a defence. If it is to be pursued it ought to be an interlocutory claim. Pleading abuse of process in a defence is productive of confusion and embarrassment;
(ii)Specific allegations in the defence of misconduct are not allowed and it is improper to plead those in the defence;
(iii)Allowing the allegations to remain will require the plaintiff to respond to each allegation which will unnecessarily complicate and lengthen the trial.
(b) Contextual truth:
(i)In order to succeed the contextual truth allegations must overwhelm the defamatory imputations;
(ii)While it is permissible to “plead back” imputations, such conduct is open to abuse and must be approached very cautiously;
(iii)The contextual truth allegations so profoundly expand the issues in dispute in circumstances where they are so incidental and so unlikely to overwhelm the defamatory imputations, that they cannot be allowed to stand.
(c) Rape and Sexual Assault Allegations:
(i)The way in which the defence of justification is pleaded does not meet the elements required to prove rape. In particular:
(ii)there is no pleading of penetration and no pleading of no consent for the 31 March 2021 conduct;
(iii)there is no pleading of no consent for the Sydney conduct.
(d) Annexure A and Annexure C and “floating particulars”:
(i)Parts of Annexure A, in particular paragraphs 97 and 100, and all of Annexure C cannot stand;
(ii)They are mischievous and non-responsive;
(iii)It is not clear from the pleading that the matters dealt with go to the question of serious harm.
Abuse of Process
4At paragraph 13 of his third further amended statement of claim (“TFASOC”), the plaintiff pleads:
By letters dated 16 September 2021 and 28 February 2022 the solicitors for the Plaintiff; ALT Legal Associates, sent Concerns Notices to the defendant in terms of Section 12 of the Defamation Act 2005 (Vic)
5The defendant pleads in response:
She admits the allegations in paragraph 13 but says further, for the avoidance of doubt, that Wilks did not send a compliant concerns notice to her or wait the applicable period prior to commencing proceeding CI-21-02903 (which are the proceedings that became the subject of publicity in the media), which proceedings were an abuse of process and/or commenced for the ulterior purposes of:
(a) preventing or frustrating any investigation of the allegations made by the defendant against Wilks;
(b) retribution against the defendant; and/or
(c) silencing the defendant and others who might make similar allegations against Wilks.
6In written submissions, the plaintiff also complains about paragraphs 108 to 110 of Annexure A, although in the filed Amended Defence Annexure A ends at paragraph 100. I assume that that submission refers to an earlier draft version of the Amended Defence.
7The plaintiff says that allegations of abuse of process are more appropriately the subject of an interlocutory application. If they remain in the defence, is it unclear what the Court is required to do with the pleading. The first proceeding was commenced improperly as the concerns notice provisions had not been complied with. A costs order was made on the discontinuance of that proceeding. The allegation that it was commenced for an ulterior purpose will require the court to grapple with the question of whether it was reasonable for the plaintiff to issue proceedings to protect his reputation.
8This would significantly expand the scope of issues that are before the Court, and unreasonably require the plaintiff to respond to the allegations.
9The defendant says, whether the words “abuse of process” are struck out from paragraph 13 is neither here nor there. She is not pleading abuse of process as a “defence”. Instead, she relies on Annexure C and the allegations therein in response to the plaintiff’s “novel serious harm allegation” at paragraph 9B of the TFASOC.
10That novel allegation is the plaintiff’s claim that, by reason of the “falsity and gravity” of the imputations, it was imperative and reasonable for him to take immediate steps on 15 July 2021 to protect and vindicate his reputation by issuing defamation proceedings against the defendant. That proceeding, CI-21-02903 (“the first proceeding”) was improperly commenced because no concerns notice had been served and the applicable period had not passed.
11The plaintiff alleges the first proceeding then became the subject of publicity in the media “through no fault of the plaintiff”. The effect of the publicity has been to further and more widely publicise the imputation and, thereby, cause serious harm to his reputation. The plaintiff says that, regardless of whether he had issued the first proceeding, or whether he had only issued the present proceeding, publicity would have resulted, causing serious harm.
12In Annexure C, the defendant sets out in detail the allegations made, and the material facts relied on to substantiate her claim in relation to the plaintiff’s conduct in issuing and threatening defamation proceedings.
13The defendant says she is entitled to respond to the plaintiff’s allegation that:
(a) a cause of the serious harm he suffered was the media publicity;
(b) the media publicity resulted from his issuing a proceeding;
(c) issuing the proceeding was both imperative and reasonable;
(d) issuing the proceeding was a natural and probable consequence of the defendant’s publication.
14Striking out paragraph 13, or those parts of paragraph 13 that refer to abuse of process, would achieve nothing because she is still entitled to rely on the particulars in Annexure C in responding to the TFASOC. Paragraph 13 merely responds to paragraph 13 of the TFASOC. Paragraph 13 simply alleges that a concerns notice was sent, which is no part of the cause of action and is irrelevant. If paragraph 13 of the defence is to be struck out, paragraph 13 of the TFASOC should also be struck out.
15At paragraph 30(d) the defendant pleads that she will rely on matters directly relevant to the context in which the matters complained of were published and allegedly republished in mitigation of damages. She says that the matters particularised in Annexure C affect the relevant sector of the plaintiff’s reputation, namely his reputation and conduct as a powerlifting administrator.
16At paragraph 30(e) the defendant pleads she will rely on the plaintiff’s misuse of the Court’s processes and abuse of process in mitigation of damages. Annexure C particularises the misuse and abuse she alleges.
17The defendant says her characterisation of the plaintiff’s conduct and the timeline of events as an “abuse of process” does not mean she is pleading a defence of abuse of process, or seeking a determination from the court that the first or present proceeding amounts to such an abuse. She is not seeking summary judgment, a stay or for the TFASOC to be struck out. She is relying on those allegations and the material facts pleaded for a different purpose, that is, in relation to serious harm and mitigation of damages.
Findings:
18The Court has an obligation to ensure that it’s processes are not used to produce unfairness[1] .
[1] Jago v District Court of NSW (1989)168 CLR 23
19Abuse of process might arise where the court’s powers are invoked for an illegitimate purpose, the use of the court’s powers is unjustifiably oppressive to one of the parties, the use of the court’s process would bring the administration of justice into disrepute, or where a court process is used for a purpose other than its intended purpose.
20Order 23 of the County Court Civil Procedure Rules 2018 (“the Rules”) provides specific power to the Court to stay or dismiss a proceeding or a claim in a proceeding that is an abuse of the process of the Court,[2] or to strike out a pleading that is “otherwise an abuse of the process of the court”.[3]
[2] County Court Civil Procedure Rules 2018 Reg 23.01
[3] Ibid Reg 23.02
21In Faruqi v Latham[4], the defendant pleaded a defence entitled “Abuse of Process”. That defence contained a series of factual allegations which were said to support the conclusion that Mr Faruqi and his solicitors commenced the proceeding against Mr Latham for purposes that were ulterior, collateral, illegitimate and improper. Mr Latham had not applied to have Mr Faruqi’s claim struck out or summarily dismissed on the basis that it was commenced for an improper purpose.
[4] [2018] FCA 1328 at [184]
22Mr Latham maintained that it was open to him to raise an abuse of process in defence of a claim. He cited various authorities to support the proposition that a form of abuse of process, so-called “Anshun estoppel” may be pleaded as a defence. This submission was dismissed by the court as without merit. Wigney J held that if Mr Latham wished to pursue allegations of abuse of process, he should do so, not as part of his defence, but by way of an interlocutory application seeking summary judgment or the striking out of Mr Faruqi’s claim. If Mr Latham could establish that the proceedings were commenced for the ulterior, collateral, illegitimate and improper purposes he alleged, there would be little doubt that he would be entitled to summary judgment in his favour.[5] The Court found that raising collateral issues concerning the reasons for the commencement of the proceedings at trial as part of a defence was likely to cause confusion, embarrassment and delay.
[5] Ibid at [186]
23Further, the Court held that the matters pleaded by Mr Latham did not raise a reasonable defence to Mr Faruqi’s claim. It was an allegation that was not akin to a claim of Anshun estoppel, nor a claim of “unclean hands” which could reasonably be said to defeat Mr Faruqi’s claim to an injunction. Even if there are cases in which pleading an abuse of process as a defence might be acceptable, his Honour found that it was plainly not an appropriate course in that proceeding. Accordingly, the defence of abuse of process was struck out.[6]
[6] Ibid at [188]
24In the present case, the defendant says she is not seeking a finding that the proceedings amount to an abuse of process that would render them liable to be struck out.
25The defendant characterises the plaintiff’s initial haste in issuing the first proceeding prior to compliance with the concerns notice procedure prescribed in s12A of the Defamation Act 2005 (“the Act”) as an “abuse of process”. The defendant is not now in a position to seek that that first proceeding be struck out or otherwise dismissed, as that proceeding was subsequently discontinued by the plaintiff. However, its characterisation as an abuse may, in the defendant’s submission, be relevant to the question of the damage that flowed from it. The initial publicity that resulted from the first proceeding is, on the defendant’s case, a cause of much or all of the harm claimed by the plaintiff. Whether that is a sustainable contention, or whether, as the plaintiff says, the harm would have flowed regardless of the timing of commencing proceedings, is a matter that will be the subject of evidence and submissions on the serious harm element.
26Further, the defendant contends that the first proceeding was otherwise an “abuse of process” because the plaintiff had an ulterior purpose in commencing proceedings. That contention cannot now be the subject of an interlocutory hearing, as it has since been discontinued. Whether that proceeding was commenced for an ulterior motive, and, if so, what that ulterior motive was, and what consequences flow from findings on that issue, may be relevant to questions of serious harm. An ulterior motive, for example to stifle an investigation or to pressure a party into withdrawing an allegation, might also impact the ultimate assessment of damages.
27Paragraph 13 of the defence describes only the first proceeding as an abuse of process, having been commenced for an ulterior purpose. Annexure C sets out a background timeline of events. Paragraph 30(d) of the defence does not refer to abuse of process but says that, if the defendant is liable for damages, she will rely on matters which are directly relevant to the context in which the matters complained of were published and republished and other matters relied on to claim serious harm and damages. The matters that will be relied on are those in Annexure C. At paragraph 30(e) of the defence, the defendant specifically pleads that she will rely on “Wilks’ misuse of the Court’s processes and/or abuse of process” in mitigation of damages. It is not clear whether she is referring only to the first proceeding as being an abuse of process, or both proceedings.
28If the pleading at paragraph 30(d) and (e) is intended to encompass both the first proceeding and the present proceeding and characterise them both as arising from a misuse of court processes, or an abuse of process, then I accept the submission of the plaintiff that this invites the court to make a determination on the question of whether an “abuse of process” has occurred.
29A proceeding that is an abuse of process would be liable to be stayed, summarily dismissed or struck out.
30However, as I understand the submission, what the defendant really intends to plead is that Mr Wilks’ own conduct can and should be examined in relation to the questions of serious harm and damages.
31I accept the submission that, to 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.
32The conduct of a party in bringing a claim of defamation may be relevant to the assessment of damages[7] and the existence of serious harm.[8]
[7] Joseph & Ors v Spiller & Anor [2012] EWHC 2958
[8] Wright v McCormack [2023] EWCA Civ 892
33In Lehrmann v Network Ten Pty Ltd[9] Lee J identified that the ability to stay or dismiss proceedings was a core mechanism by which courts guard against proceedings being converted into instruments of injustice or unfairness where there is an abuse of process. In that case the alleged abuse of process was said to be “more than a case involving dishonesty about some aspect of a claim – it is dishonesty at the very core of the claim”.[10]
[9] [2024] FCA 369 at [995]
[10] Ibid at [993]
34In Lehrmann, however, Lee J noted that the alleged abuse of process was not raised as a disentitlement to continue using the Court’s processes as an instrument of oppression, but raised a different question of whether a court should grant relief where it’s processes had been inappropriately used to seek that relief. In that case he posed the question as to what was to be done with evidence of misconduct on the part of Mr Lehrmann when the misconduct is relevant to his true reputation but if a defence of justification or substantial truth had not been made out. In answer to his own question, Lee J held that the evidence may be considered on the question of damages, to the extent that it is directly relevant to the subject of the defamatory matters in the relevant “sector” of reputation.[11]
[11] Ibid at [999]
35Those potentially relevant matters to the sector of the plaintiff’s reputation at issue should be ventilated at trial. It would not be appropriate to strike out those allegations, and the material facts upon which the defendant relies, from the pleading.
36I accept that no interlocutory application of the kind envisaged by Wigney J in Faruqi is available to the defendant in relation to the first proceeding. The defendant submits that she is not inviting or requiring the Court to now make a determination that either the first or the present proceeding are or were an abuse of process.
37It may only be a semantic distinction, but using a term of art such as “abuse of process” in paragraph 13 and at paragraph 30(e) appears to have given rise to confusion about what the defendant is seeking.
38As 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.
39In Lehrmann the Court held that an assessment reflecting an appropriate and rational relationship between the harm sustained and the quantum of damages does not occur “in blinkers”.[12] If the misconduct alleged is relevant to the sector of reputation impugned, evidence going directly to reputation that is otherwise admissible should be considered to ensure that the damages are awarded in accordance with s34 of the Act. That is, that they reflect the true state of the successful plaintiff’s reputation.
[12] Ibid at [1008]
40The plaintiff has pleaded that he is recognised within the powerlifting community worldwide as the leader of and “face” of Powerlifting Australia (“PA”) and that he has a substantial reputation built over the course or more than 40 years within the International Powerlifting Community as both an administrator and coach.
41The matters set out in Annexure C, which include the allegations in relation to his role on the board of PA and with the Melbourne University Weight and Powerlifting Club (“MUWPC”), are within the relevant sector of his reputation as an administrator and coach.
42The alleged “abuse of process” is not raised as a defence, and a finding that the proceedings, or one of them, is an “abuse of process” such that it is liable to be struck out or stayed, is not required and in any event would be largely irrelevant.
43If, contrary to the submission made by the defendant, and my understanding of the pleading, the defendant seeks a ruling from the court that the first proceeding or the current proceeding constitutes an “abuse of process” then she would need to bring an interlocutory application pursuant to r23.01 or r23.02 of the Rules.
44In the absence of such an application, the pleading, including Annexure C, stands.
Contextual truth
45The defendant pleads a defence of contextual truth pursuant to s26 of the Act.
46The Act provides:
26(1) It is a defence to the publication of defamatory matter if the defendant proves that –
(a) The matter carried one or more imputations that are substantially true (contextual imputations); and
(b) Any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
(2) The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complaints.
47The defendant pleads a number of contextual imputations in relation to the PA Email and the University of Melbourne Email including that:
(a) Wilks raped the defendant (if each of the PA email and the Melbourne University Email are found to have carried that imputation);
(b) Wilks is a sexual predator who targets petite young Asian women he coaches;
(c) Wilks misuses his position to groom young women with the intent of getting sexual favours from his athletes;
(d) Wilks is a disgraceful person because he engaged in a sexual relationship with a student in circumstances where there was a significant power imbalance between them, and thereby abused his position of trust for his own sexual and personal gratification, causing her harm.
48The defendant pleads contextual imputations in relation to the First and Second SMS messages that:
(a) Wilks sexually assaulted the defendant;
(b) Wilks sexually harassed the defendant;
(c) There are reasonable grounds to suspect Wilks is a serial sexual harasser, in that he sexually harassed the defendant and there are reasonable grounds to suspect he sexually harassed another female athlete under his tutelage;
(d) Wilks has engaged in repeated sexual misconduct.
49The defendant pleads the contextual imputations are substantially true and that each of the plaintiff’s imputations that are found to be conveyed and defamatory and not substantially true do no further harm to Wilks’ reputation. The defendant sets out the particulars of her truth and contextual truth defence at Annexure A.
50The plaintiff says the defendant’s pleading of contextual truth must be struck out as none of the contextual imputations, either singly or in combination, can match or overwhelm the plaintiff’s contended imputations.
51Allowing the contextual truth pleading to stand allows for a roving inquiry into the plaintiff’s fitness to hold office which would expand the scope of the trial significantly.
52The defendant submits that what is required, in a strike out application, is for the plaintiff to establish that the least serious of the defamatory imputations of which he complains and that are admitted, is more serious than, or not swamped by, the combined effect of all of the contextual imputations.
53The possibility that a contextual truth defence will not be made out, or will not provide a complete defence, does not mean it should be struck out at an interlocutory stage.
Findings
54The starting proposition is that the court should take the defendant’s case at its highest.[13] It is not possible in a strike out application to determine whether the plaintiff will ultimately establish that all of the pleaded imputations have been conveyed. The court should, therefore, compare the pleaded contextual imputations with the least serious of the plaintiff’s pleaded imputations.[14]
[13] McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 at [22]
[14] Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [28]
55Further, it is the combined effect of all the established contextual imputations which will ultimately need to be considered.[15] 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 than the combined effect of all the contextual imputations.[16]
[15] Fairfax Media v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [79]
[16] John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434 (2001); 53 NSWLR 541 at [4]-[6]
56In Palmer v McGowan [2021], Lee J noted cautioned that a court should be particularly circumspect before striking out contextual imputations whose combined effect will have to be considered.[17]
[17] FCA 430 at [30]
57While the facts, matters and circumstances relied upon to establish the truth of the contextual imputations must bear a reasonable relationship to both the contextual imputation and to the published material relied on by the plaintiff, this does not derogate from the requirement that the court be circumspect in striking out such imputations.
58The 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.
59However, noting the plaintiff’s concern that the contextual imputation of rape “pleads back” an imputation denied by the defendant, notwithstanding that such a form of pleading is allowed under s26 of the Act, I am also satisfied 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.
60The imputations pleaded by the plaintiff that are admitted by the defendant in relation to the First SMS message and the Second SMS message are that the plaintiff sexually harassed the defendant.
61The contextual imputation that the plaintiff sexually assaulted the defendant is more serious than the pleaded imputation that plaintiff sexually harassed the defendant.
62Accordingly, the contextual imputations will not be struck out.
Rape pleading
63Annexure A particularises the material facts relied on by the defendant to substantiate her defence of justification pursuant to s25 of the Act.
64Those particulars refer to three defined sets of conduct: the “31 March 2021 conduct”; the “Sydney conduct”; and the “April 2021 conduct”.
65The defendant pleads that at the time of each conduct, the plaintiff knew that the defendant had not consented to any of the conduct, or did not have a reasonable belief that the defendant had consented to any of the conduct.
66The defendant says that, in each conduct, the plaintiff raped the defendant within the ordinary meaning of that term and within the meaning of s38(1) of the Crimes Act 1958, or sexually assaulted the defendant within the ordinary meaning of that word and within the meaning of s40(1) of the Crimes Act 1958.
67The plaintiff submits that defamatory meaning is determined by what an ordinary reasonable reader would make of the publication and that the term rape is not necessarily anchored to statutory instruments applying at the time. The plaintiff relies on the formulation in Lehrmann that the term rape, in its natural and ordinary meaning, has three elements which must be proved on the balance of probabilities. Those elements are that the plaintiff:
(a) Engaged in an act of sexual penetration;
(b) Without the consent of the victim; and
(c) Knowing that the victim was not consenting.
68The plaintiff says the particulars fall short of what is required. In relation to the 31 March 2021 conduct there is no allegation of penetration and no allegation that the defendant did not consent. The plaintiff says that silence could not satisfy the test that the plaintiff knew the victim did not consent.
69In relation to the Sydney conduct the plaintiff says the defendant has not pleaded that she did not consent, and silence cannot satisfy the knowledge test.
70The plaintiff also submits that the particulars at paragraph 44 of Annexure A should be struck out as forming no part of the test as laid down by Lee J in Lehrmann.
71The defendant says the 31 March 2021 conduct does effectively plead penetration as it is alleged that Wilks touched her genitals with his fingers and tongue.
72The defendant otherwise says that the lack of consent by the defendant is apparent from the pleading that the defendant did not say or do anything to consent to the 31 March 2021 conduct or the Sydney conduct, and that the plaintiff knew the defendant had not consented to that conduct.
73Paragraph 44 alleges that, by reason of the circumstances of their relationship, the plaintiff knew the defendant did not consent.
74The defendant submits that it is open to the Court to find that:
(a) the ordinary reasonable reader would consider that a man raped a woman if he inserted his finger into a young woman’s vagina or anus without taking active steps to confirm that she was voluntarily consenting in circumstances where the man was:
(i)much older;
(ii)in a position of trust and power;
and the woman;
(iii)was not previously in a sexual relationship with him; and
(iv)was a young vulnerable athlete that he coached; and
(v)had not previously shown any sexual interest in, or any desire for anal penetration.
Findings
75The 31 March 2021 conduct meets the definition of penetration under s35A of the Crimes Act 1958 which provides that:
(1)A person (A) sexually penetrates another person (B) if -
(a)A introduces (to any extent) a part of A’s body or an object into B’s vagina.
76At s35 “vagina” is defined to include external genitalia. The defendant pleads, in the 31 March 2021 conduct, that the plaintiff touched her genitals with his fingers and tongue. This is sufficient to plead the element of penetration.
77The lack of consent to the 31 March 2021 conduct and the Sydney conduct may be inferred from the pleading, however given the serious nature of the allegations, the plaintiff and the court should be left in no doubt as to what is alleged.
78If 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.
79This 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.
80In relation to paragraph 44 of Annexure A, 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 support the proposition propounded will be a matter for evidence and submissions at trial.
Floating Particulars
81Finally, the plaintiff says it is not clear how the particulars at paragraph 100 of Annexure A and at 1(c) of the Amended Defence are responsive to 1(c) of the TFASOC. The plaintiff says the particulars invite the Court to embark on a roving enquiry into the plaintiff’s conduct, including post publication conduct pleaded at paragraph 97 of Annexure A.
82The defendant says that the particulars at 1(c) of the Amended Defence are relevant to her limited admission in response to 1(c) of the TFASOC.
83Annexure A is not required to be responsive to 1(c) of the TFASOC. Rather it is relevant to the defendant’s defence of justification and contextual truth. To the extent that it incorporates some of the matters identified at 1(c) that is because the contextual imputations open up a number of matters, and in any event the matters particularised at paragraphs 97 and 100 are relevant to the question of serious harm.
Findings
84Post publication conduct may be relevant to the assessment of damages. In this case post publication conduct may also be relevant to serious harm. In Lehrmann the post publication conduct was found relevant to the assessment of damages, had Lee J found the justification defence was not made out. There must be a rational relationship between damages awarded and the harm sustained. That rational relationship may require the court to consider the actual reputation at the time damages are awarded which might include post publication conduct.
85The plaintiff has pleaded that he was forced to temporarily step down as CEO of PA. The defendant denies that allegation. The defendant also made a limited admission in relation to the plaintiff’s reputation and pleaded particulars of that reputation.
86In Habib v Nationwide News Pty Ltd the Court noted that the general rule that an imputation must be justified by reference to the facts in existence at the time of publication may be departed from in circumstances where an imputation amounts to a general charge against the character of the plaintiff.[18]
[18] (2010) 76 NSWLR 299 at [313]
87The line of authorities that allows evidence of directly relevant background context in the same sector of reputation also require careful analysis of the facts and circumstances of the particular case. Courts are cautioned against extending too creatively the concept of “directly relevant background” and should subject the proposed facts to close scrutiny.[19]
[19] Rush v Nationwide News Pty Limited (No 2) [2018] FCA 550 at [45]
88I accept that the plaintiff has claimed damage in a directly relevant sector of his reputation, that sector being his reputation as a figure of significance within the worldwide powerlifting community. The allegations contained at 1(c) of the Amended Defence and paragraphs 97 and 100 of Annexure A are allegations of fact relied on by the defendant to establish what the plaintiff’s actual reputation was, having regard to the assessment of damages that must occur at the time of judgment, and whether he is able to make out his claim for serious harm. On his own case, the plaintiff has made post publication conduct relevant.
89The plaintiff claims he sustained serious harm as a result of the publications, including because an inquiry was instituted by Melbourne University and he was suspended from all activities and responsibilities at the MUWPC. He says that it can be inferred that his reputation was seriously damaged in the eyes of persons at Melbourne University who took the decision to suspend him.
90The defendant relies on the background and circumstances including the outcome of the investigation by Melbourne University to establish that the serious harm to reputation was caused by other conduct of the plaintiff, not the publications.
91Ultimately, that will be a matter for evidence and submissions at trial, but the pleading is within a relevant sector of reputation.
92Accordingly, the particulars at paragraph 97 and 100 of Annexure A and 1(c) of the Amended Defence will not be struck out.
Orders:
93The Court makes the following orders:
(a) The defendant has leave to amend her Amended Defence to plead, in relation to the 31 March 2021 conduct and the Sydney Conduct, whether or not she consented to that conduct.
(b) The plaintiff’s application is otherwise dismissed.
94I will hear from the parties on the question of costs of the application.
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