Overview
The recent appeal in Wilks v Qu [2025] VSCA 135 follows a series of hearings where the modern ‘serious harm’ requirement in defamation has been thoroughly tested by the Courts.
The plaintiff Robert Lewis Wilks (Wilks) is a senior figure in the powerlifting community who is bringing a defamation action against the respondent Dori Qu (Qu) for publications alleging that the plaintiff had sexually assaulted her.
The current appeal by Robert Wilks considered whether his conduct in bringing a previous claim for defamation could be used by the respondent in answering the serious harm element through demonstrating an ‘abuse of process’; meaning a prior series of events and pattern of events by Wilks which could be relied upon to establish that he did not suffer the serious harm and/or in mitigation of damages.
At First Instance
Wilks v Qu (Ruling No 4) [2024] VCC 1009 stands as one of many interlocutory proceedings between the parties. This particular proceeding involved Wilks attempting to have Qu’s defence struck out. Among other complaints, Wilk’s argued that the pleading of an ‘abuse of process’ within the respondent’s defence was inappropriate and should be instead pursued through an interlocutory proceeding.
The respondent clarified that her pleading of an ‘abuse of process’ is not meant to refer to its general meaning (i.e., in relation to summary judgements or strike out applications), but instead to the conduct of the plaintiff in relation to previous proceedings.
Further, the respondent did not deny that the applicant had suffered serious harm. She instead maintained that the conduct of the applicant could be used to demonstrate that the serious harm resulted not from her publications, but from the applicant’s decision to pursue defamation proceedings.
Judge Clayton agreed with the respondent and held that their pleading of abuse of process and the conduct of the plaintiff in relation to the previous defamation proceeding could be relevant in the assessment of serious harm and/or the mitigation of damages thus should be allowed to stand in her defence.
Appeal to the Supreme Court
In this appeal by Wilks of Judge Clayton’s fourth ruling, Wilks argued that the respondent should not be able to plead in relation to post-publication conduct for previous proceedings as the claim does not relate to the “defamatory sting” at stake in the current proceeding.
The Supreme Court disagreed with these submissions by Wilks. They maintained, based on the respondent’s submissions, that the post-publication conduct of the applicant was indeed relevant to the determination of serious harm:
[32]: “It seems to us that it is open to the respondent to rely on the post-publication events and conduct of the kind that she maintains is disclosed in connection with the applicant’s previous proceedings against her in support of an alternative causal hypothesis to the applicant’s case of serious harm, providing the evidence speaks to the relevant sector of the plaintiff’s reputation, as it seems it may well do.”[1]
Key Takeaways
This appeal shows that post-publication conduct by a plaintiff to a defamation proceeding, prior events, patterns of conduct, and prior proceedings can be relevant in addressing the element of serious harm and or mitigation of damages.
As the matter is still ongoing, it is yet to be seen if Qu will be able to prove that Wilk’s post-publication conduct can be attributed to the serious harm that was caused. This decision by the Supreme Court does however demonstrate that the option will at least be open to defendants going forward.
[1] Wilks v Qu [2025] VSCA 135, [32].
Robert McGirr, Partner & Co-Founder | [email protected] | 0413 944 023.
Danielle Snell, Managing Partner & Co-Founder | [email protected] | 0401 812 885.
Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.