IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Defamation List

Case No. CI-21-02902

ROBERT LEWIS WILKS	Plaintiff	
		
v		
		
VICTOR LIU	Defendant	

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JUDGE:	Her Honour Judge Clayton	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 June 2022	
DATE OF RULING:	8 June 2022	
CASE MAY BE CITED AS:	Wilks v Liu (Ruling)	
MEDIUM NEUTRAL CITATION:	[2022] VCC 813		

RULING
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Subject:	PRACTICE AND PROCEDURE
Catchwords: 	Discovery – Application for specific discovery – Documents sought not relevant to issues in dispute on pleadings.
Legislation Cited:	County Court Civil Procedure Rules 2018.
Ruling:	Application dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Thapliyal (solicitor)	ALT Legal Associates	
			
For the Defendant	Mr D Mence	Lamplugh McIntosh Lawyers	

HER HONOUR:

1	By summons dated 19 May 2022, the plaintiff, Mr Robert Wilks, seeks specific discovery of a number of documents from the defendant, Mr Victor Liu.  At the hearing of the application, two categories of documents sought were dealt with ex tempore, the application being dismissed.
2	I reserved my decision on a third category of documents.  The documents sought in that category are documents evidencing communications passing between Mr Liu, and Ms Dori Qu relating to and/or evidencing:
(i)	Any discussions and communications regarding Mr Wilks sexually harassing a former member of the Melbourne University Weightlifting and Powerlifting Club named ‘Hannah’;
(ii)	Mr Liu’s knowledge of and participation in Ms Qu making sexual harassment claims against Mr Wilks in July 2021; and
(iii)	Correspondence between the solicitors for Ms Hannah Tan, Sanicki Lawyers, and Mr Liu from 17 June 2021 to ‘the current date’.
Background
3	Mr Wilks pleads that Mr Liu defamed him in a publication dated 17 June 2021.  Mr Wilks says the publication conveys various imputations including that he:
(a)	has engaged in corrupt conduct in his role in leadership of Powerlifting Australia (‘PA’);
(b)	has engaged in conduct in breach of the PA Code of Conduct and otherwise acted unethically;
(c)	has disregarded the interests of PA and others in favour of his own interests in pursuit of a personal vendetta against the defendant;
(d)	has engaged in misleading, deceptive or fraudulent conduct;
(e)	is only concerned with protecting his own personal interests and reputation at the expense of the athletes he is supposed to represent; and
(f)	is of dissolute, questionable and unscrupulous character.
4	At paragraph one of his statement of claim, Mr Wilks sets out the various positions he holds within the sport of powerlifting, including as the CEO of PA.  
5	In response to that paragraph of the statement of claim, Mr Liu makes certain admissions.  He provides the following particulars:
(a)	the plaintiff resigned from the executive committee of the International Powerlifting Federation (‘IPF’), and the General Assembly of the IPF resolved to exclude the plaintiff, Oceania Powerlifting Federation and PA from the IPF in November 2017; and
(b)	The Age newspaper reported allegations of sexual harassment made by Ms Qu against the plaintiff and the plaintiff subsequently stood down from his role as CEO of PA and commenced separate defamation proceedings against Ms Qu.
6	Separately, pursuant to a claim in mitigation, Mr Liu alleges that Mr Wilks’ ‘general bad reputation’ will mitigate any damages he might be entitled to.  
7	Mr Liu alleges that Mr Wilks’ bad reputation is that of a person who: 
(a)	would use his position and influence to ‘intimidate, harass and threaten’ people with opposing views in the powerlifting community;
(b)	is a bully; and 
(c)	is not deserving of a good reputation.
8	Mr Wilks relies on an affidavit of his solicitor, Mr Ajai Thapliyal, dated 19 May 2022.  Mr Thapliyal says that on 5 July 2021, Ms Qu lodged a complaint against the plaintiff with PA.  In her complaint to PA, Ms Qu says ‘…what really pushed me into contacting you is this – I recently got in touch with another girl who suffered what I suffered.  Her name is Hannah and she used to train at MUWPC as well.’
9	Around that time Ms Qu had an exchange on social media with another person, Ms Rose Li.  That conversation occurred in Chinese.  A translation has been provided as an exhibit to Mr Thapliyal’s affidavit: 
 Ms Qu: Do you know that there was a female student who left MU after being sexually harassed by Wilks
	Ms Li: Who
	Ms Qu: This happened quite a while ago.  I have also just heard of it
	Ms Li: Who did you hear it from
	Ms Qu: Victor
10	The conversation continues and Ms Li then identifies the female student as ‘Hannah’.
11	On Friday 10 July 2021, Mr Thapliyal wrote on behalf of Mr Wilks to a person called Hannah Tan in the following terms:
 It has come to the attention of my client that you have falsely and maliciously said of my client that he sexually harassed you whilst you were a member of the Melbourne University Weightlifting and Powerlifting Club (‘the defamatory comment’).  You made this defamatory comment to Victor Liu, who has disseminated this information to a third party, Dori Qu, who has passed it on to other third parties.
12	The letter goes on to inform Ms Tan that the defamatory comment is false, was ‘knowingly put forward’ to ‘reduce the standing and reputation of my client’ and has ‘gravely injured’ his client’s credit and reputation.  Ms Tan is invited to ‘make an offer’ to make amends by Monday 15 July 2021.  Mr Thapliyal demanded that Ms Tan provided an apology, confirmation that ‘my client has never harassed you’ and an undertaking to make no future comments by Monday 12 July 2021. Mr Thapliyal also demanded Ms Tan send an email to Mr Liu ‘demanding that he immediately cease and desist from telling any person that you were sexually harassed by my client’ by 12 July 2021.  Mr Thapliyal concludes his letter, ‘Whether legal action is commenced against you will depend on how you respond to this letter’.
13	On the evidence provided by Mr Thapliyal, Ms Tan has never made a complaint against Mr Wilks and through her solicitors denied making the defamatory comment as alleged.  Ms Tan’s solicitors informed Mr Thapliyal that they would ‘be shortly writing to Mr Liu and Ms Qu to request that they cease and desist from making false allegations about our client’.
14	Mr Wilks submits:
(a)	Mr Liu published false information to Dori Qu regarding the plaintiff having sexually harassed Hannah; 
(b)	the false information was the catalyst for Dori Qu making a further defamatory publication to PA; and
(c)	the complaint to PA in turn caused the plaintiff to step down from his position as CEO of PA.
15	Mr Wilks says Mr Liu relies on these events to challenge his reputation within PA and by way of mitigation of damages ‘founded upon the allegation that the plaintiff is a person not deserving of a good reputation’.
16	As a result, Mr Wilks says the documents sought are ‘directly relevant’ to the pleading of mitigation.
17	However Mr Liu does not rely on Mr Wilks stepping down from PA in his pleading of mitigation.  He includes particulars about The Age article in response to paragraph one of the statement of claim in which Mr Wilks sets out the positions he holds.  Mr Liu alleges that Mr Wilks had resigned and been excluded from the IPF and had stood down from PA.
18	These particulars do not go to Mr Wilks’ reputation but rather to his pleading about the positions he holds and the reasons he no longer holds some of those positions.  Mr Liu alleges the reasons he no longer holds those positions do not relate to the publication the subject of this proceeding.
19	In relation to mitigation, Mr Liu relies on Mr Wilks’ ‘general bad reputation’.  Mr Liu must establish that Mr Wilks’ reputation was generally bad.  No reliance is placed on specific instances demonstrating a bad reputation.This would presumably be contrary to the pleading that Mr Wilks’ reputation was ‘generally bad’.  
20	There is nothing in this pleading that alleges Mr Wilks’ reputation is bad because he sexually harassed Hannah, Ms Qu or other women.
21	Mr Wilks does not plead that his reputation was damaged by reason of false allegations made by Mr Liu to Ms Qu.  Mr Wilks does not plead Mr Liu caused or induced Ms Qu to publish defamatory allegations. 
22	For a document to be discoverable, it must be relevant to the issues in dispute on the pleadings.  Ms Qu’s allegation against Mr Wilks is the subject of a separate proceeding.  In this proceeding, it does not arise on the pleadings.  
23	Even if the dispute between Ms Qu and Mr Wilks was relevant on the pleading, there is no evidence that any statement by or information from Mr Liu caused Ms Qu to make the complaint.  On the evidence before the Court, Ms Qu made the complaint after making contact with a person called Hannah.
24	In a text message exchange with Ms Li, Ms Qu says she has heard about a student who was sexually harassed by Mr Wilks.  She identifies ‘Victor' as the person who told her there was such a student.  It is Ms Li who identifies this person as Hannah, not Ms Qu.  It is not at all apparent that Ms Qu was aware of the identity of the person ‘Victor’ told her about.  It is not at all apparent that ‘Victor’ was referring to Hannah.  It is not at all apparent that any documents are or would have been in existence evidencing Mr Liu’s communication with Ms Qu in relation to ‘Hannah’.  There is no evidence that Mr Liu had any knowledge of or participation in Ms Qu’s complaint against the plaintiff.
25	The plaintiff is engaging in an impermissible fishing exercise.  Accordingly, the application for specific discovery in relation to category (c) of the plaintiff’s summons is dismissed.
26	The plaintiff has been wholly unsuccessful in his application for specific discovery and should pay the costs of the defendant on a standard basis, to be taxed in default of agreement.