DEFAMATION NEWS: Wilks v Qu [2022] VCC 620

Parties can make application for the serious harm element to be determined before trial under then new s.10A(5) of the Defamation Act (the Act), however, special circumstances exist under s.10A(6) which may justify postponing the serious harm determination

The case of Wilks v Qu [2022] VCC 620 was the first such matter where an application was made to determine the serious harm element prior to trial. Judge Clayton granted the application on the basis that s.10A(5) “imposes a presumption that the [serious harm] element will be heard prior to trial and the considerations ordinarily pertinent to the trial of a separate question are not applicable.” Thus, the only relevant question was whether the threshold questions under s.10A(6) of the Act pertaining to “special circumstances” had been met to justify postponement of the serious harm determination.

Section 10A(6) of the Act makes reference to cost implication, the court’s resources and whether the determination of serious harm is linked to other issues during a trial being “special circumstances.”

Judge Clayton found that at least some consideration of serious harm was required when determining what might constitute special circumstances. For instance, if on the face of it serious harm is highly likely to be established, the cost of the preliminary hearing may constitute special circumstances, as it would be a waste of the court’s time and resources to have a preliminary hearing. He suggested there were three possible cost implications scenarios in this case, being:

  1. If the serious harm element is made out, then the cost saving will likely be marginal compared with the additional costs involved in having two hearings;
  2. If the serious harm element is not made out, the entire case will fall away, saving both parties substantial trial costs.
  3. If the serious harm element is made out partially, this could result in a significant reduction in the length and complexity of the trial.

Relevant factors to be considered with respect to the court’s resources included “the stage of the proceedings, the proximity of the trial date, and the availability of judicial officers.” Here, he found that the court’s resources did not amount to special circumstances, as the application had been made at the earliest opportunity before the close of pleading, and it was not close to the trial date.

With respect to the link between determining serious harm and other issues during the trial, Judge Clayton held that the issues raised in determining serious harm could be confined to the meanings of the imputations and the cause of harm, and the issues for the trial can be the matters raised in the defence(s), the extent of harm suffered and the assessment of damages. That is, here, the issues in determining serious harm were not inextricably linked to the other issues that they could not disentangled and determined as a preliminary point.

Other matters to consider was how early in the peace the application was made, that is, before a defence being filed, as well as trauma of the witnesses.

In this instance, Judge Clayton granted the application and allowed the serious harm determination to be determined as preliminary point on the papers (via submissions and affidavit evidence), with the right to cross examination being allowed on notice.

Should you have any defamation enquiries, please do not hesitate to contact Danielle Snell and Robert McGirr of Elit Lawyers on (03) 9098 8646.

 

 

Share
Email
Print

Get in touch

With us personally, it is just one more way we’re different.

Danielle Snell

CO-FOUNDER AND MANAGING PARTNER

.

Robert McGirr

CO-FOUNDER AND PARTNER

.

"

"I just wanted to thank you all for the hard work and dedication you put into my Workcover case. A special thanks to Aggie whom I'm glad I chose to support me."

Personal Injury

Shane

I just wanted to thank you all for the hard work and dedication you put into my Workcover case.

A special thanks to Aggie whom I’m glad I chose to support me and give me the step by step instructions on how to go about proving my case for a result in my favour.

Thanks again for all your advice.

"

"Aggie is the best lawyer in Common Law Claims I have ever worked with. Aggie helped me achieve an extraordinary outcome."

Common Law Claim

Ian

Aggie is the best lawyer in Common Law Claims I have ever worked with. Having seen a couple of large Law Firms l felt let down, being quickly shown the front door. Luckily for me a friend suggested seeing Aggie Vlahos (Partner).

Having engaged Aggie Vlahos gave me the confidence to continue with the injuries l knew were caused by heavy physical and repetitive work. I am also indebted to Brendan Johnson (Barrister) for his outstanding efforts!

She explained everything in a way I could easily understand and always got back to me quickly when I had questions even outside her working hours.

Aggie helped me achieve an extraordinary outcome. However, only charged fair fees.

If someone is seeking a legal help, I highly recommend Aggie Vlahos and Elit Lawyers.

P.S. Thanks to you so much Aggie

"

"I had the good luck to be recommended to Aggie Vlahos for handling my Estate Litigation Case. Through Aggie I achieved a very satisfying result."

Estate Litigation

Jan

I had the good luck to be recommended to Aggie Vlahos for handling my Estate Litigation Case. She was always available to me, no matter how big or small my concern was. She was kind, patient, easy to talk to and very understanding regarding my troubles.

The case was resolved within only 5 months, which I was grateful for. Through Aggie I achieved a very satisfying result.

I would have no hesitation in recommending her to others.

 

"

"If you want a safe, caring, professional group of lawyers and company, look no further than Aggie Vlahos and Elit Lawyers."

Family Law Matter

Michael

Thank you to Aggie Vlahos (Partner) and the staff at Elit Law, also James Eley (Barrister). You did a marvelous job in representing me in relation to my family matter and most importantly caring about me and providing a secure environment for me to navigate a very difficult situation.

The result you achieved was nothing short of amazing. The professionalism displayed on the day by Aggie and James blew me away. With their invaluable guidance and support we achieved a extremely favourable result.

If you want a safe, caring, professional group of lawyers and company, look no further than Elit Lawyers.

Great people, Great Service, Great Company.

 

"

"The best of the best plaintiff lawyers against insurance companies. We had a very tough and complex case and Danielle and her team settled with the insurance company for an optimal outcome."

Insurance Policy Holder

Home owner

The best of the best plaintiff lawyers team against insurance companies.

We had a very tough and complex case against insurance company that we lost our home and contents.  After disappointing and frustrating process from another law firm and firing them we found Danielle Snell and her team.

They are very dedicated, knowledgeable, passionate and possess great communication skills.  We couldn’t ask for more and settled with a optimal outcome.

"

"It’s great to be able to confidently refer clients to someone who can help and support them, and to feel that they are receiving the best service."

Senior Adviser

Financial Planner

We are so glad to have you in our referral channel.

It’s great to be able to confidently refer clients to someone who can help and support them, and to feel that they are receiving the best service.

Previous
Next

Can't find what you're looking for?