Tsang v Harle[2023] QCA 32

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Gotterson AJA.
2. [2]
   DALTON JA:  I agree with the orders proposed by Gotterson AJA and with his reasons.
3. [3]
   GOTTERSON AJA:  The applicant, Eder Tsang, has applied for leave pursuant to s 118(3) of the District Court of Queensland Act 1967 to appeal against a judgment of Judge Porter KC given on 6 June 2022.  By an order made on that date,^[1] his Honour dismissed with costs an appeal instituted on 9 November 2021 against a decision given by Acting Magistrate Turra on 15 October 2021.  By that decision, the Acting Magistrate ordered that Mr Tsang, the defendant in the proceeding in the Magistrates Court, pay to the plaintiff, Richard Craig Harle, damages for defamation of $30,000 together with the interest from the date of publication of the defamation to the date of judgment at the rate of 3 per cent per annum and costs calculated on an indemnity basis to be agreed or as assessed.
4. [4]
   Mr Harle commenced the proceeding in the Magistrates Court at Brisbane in 2015.  After an exchange of pleadings which underwent extensive amendment over time, the claim was ultimately tried on 11 and 12 May 2021.  It had arisen in the following circumstances.

Factual circumstances and the claim based on them

5. [5]
   In May 2015, Mr Harle and Mr Tsang were neighbours in Mansfield Place, Mansfield.  Mr Harle lived in a house owned by his parents (including his father, “Bob”), while Mr Tsang lived with his wife, Jennifer, and daughter, ST, in their house next door.
6. [6]
   On 21 May 2015, Mr Tsang composed a three page document which he distributed by letterbox drop in the neighbourhood surrounding 10 Mansfield Place.  The document, a copy of which was tendered as Exhibit 1 at the trial, was typed.  It was headed:

“IMPORTANT:  Message from 10 Mansfield Place, Mansfield” and addressed “Dear Neighbours”.

7. [7]
   In defence to the principal argument advanced by the applicant in this Court, I propose to set out the rest of the document in its entirety.  It continued:

“As you may be aware there was a threating work outside our front fence (the new fence we put up after moved in) at the right corner next to No.6.  A large hole was dug right beside our fence post concrete which makes in-ground concrete section exposed and large amount of water was filled in to the hole in the last couple of weeks which may cause the soil base loose and damage then fence (please see photo attached).  All these were done without any notification to us or our consent.  We regard this is a very selfish activity and regardless of our community harmony.  The hole was restored yesterday before the last minute we starting to take legal actions, but there may be already damages caused to our fence base in ground which we do not know at this stage, as the soil base may already become loose after 2 weeks of heavy watering.  Furthermore two dangerous metal bars are still left in the ground deeply in front of the fence which may already cause damage to the base and also a safety

hazard to pedestrians and kids.

Restored the hole, but 2 metal steel are still deeply in ground.

In the last few months, this person who put hole in there has been giving a lot of provocative incidents to our family, including...

1. Sexual harassment to Jennifer.  At around 3.20 pm 20th May 2015, when Jennifer was working in the front garden, he just suddenly appeared and took photos of Jennifer, who was in a short skirt ... As soon as Jennifer realised this, she chased him to his drive way and asked for the photos back.  However this person was threating Jennifer if she did not get out of his property, he would report to the police since she had entered his territory (Law of sexual harassment, Australia https://www.humanrights.gov.au/our-work/sexdiscrimination/guides/sexual-harassment).
2. The back dividing fence in our backyard between Bob and us has been cut off at the bottom, which could allow access to anyone from Bob's property to ours.

3. This person who had never ever been seen doing these job in the last 3 years since we moved here, is trimming the bush along the dividing fence in Bob's driveway every second day or even every day recently which makes unnecessary noise and dusts to us, and we have to close our window all the time.
4. Intentional damages to our front fence, digging large holes, excessive water to the soil base of our fence posts.
5. This person do not control his plants growing to our property and left their garden waste in our yard after trimming.

These incidents have happened more than one month.  We have attempted to solve the problems with the owners (this person's parents) but it looks like it is getting more worse and lose of control especially when the owners not at home.

We are a small family with 3 members, inc1uded my little kid, ST and my wife, Jennifer and we cannot bear these threating any more.

We have been seeking police advice and will setup a 24 hours security camera at our house.  The monitoring areas would be our backyard, right hand side of the house (not Maria side) and our front yard.

We have no choice, I need to protect my family and I need an evidence for a legal purpose just in case.

We also would like to pass on this warning message to all our neighbours, to be aware of any suspect who could take photos of you or your kids on purpose without your notice.

From family prospective,

I need to protect my family.

I cannot tolerant my kid is scared to return home and crying because of this threats.

I cannot tolerant any bully and sexual harassment to my family member

I cannot tolerant any forms of damage to my property on purpose

We have notified this person's parents (the property owner) in regards to these issues and asked if they could return all Jennifer's photos he has taken.  However the parent insists that was not a sexual harassment, he would find a third party for the justification, but reject our offer to get either police or street representative as the third party, it has to be someone he chooses.

Eventually, the owners didn't show up at the scheduled discussion yesterday without a word and none of Jennifer's photos has been returned yet at this stage.

I have discussed this issue with Maria and we agree we need to pass this message on to our neighbours around us to alert you about these issues especially for safety of all kids, teenage and women.

Thank you very much for your time an attention!

From Eder Tsang

10 Mansfield Place, Mansfield”

8. [8]
   Mr Harle contended that the document, and certain meanings it conveyed, defamed him.  He claimed damages, including aggravated and special damages, interest and costs.
9. [9]
   Mr Tsang defended the claim.  His defences included that Mr Harle was not named in, or capable of being identified by, the document, and reliance upon the defences of “qualified privilege” set out in s 30 of the Defamation Act 2005 (Qld) (“the Defamation Act”) and the defence of “honest opinion” for which s 31 thereof provides.  It is the latter statutory defence that features in this application.

Section 31

10. [10]
    At the relevant time, s 31 of the Defamation Act provided:

“31 Defences of honest opinion

3. (1)
   It is a defence to the publication of defamatory matter if the defendant proves that—

1. (a)
   the matter was an expression of opinion of the defendant rather than a statement of fact; and

2. (b)
   the opinion related to a matter of public interest; and

3. (c)
   the opinion is based on proper material.

3. (2)
   It is a defence to the publication of defamatory matter if the defendant proves that—

1. (a)
   the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and

2. (b)
   the opinion related to a matter of public interest; and

3. (c)
   the opinion is based on proper material.

3. (3)
   It is a defence to the publication of defamatory matter if the defendant proves that—

1. (a)
   the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and

2. (b)
   the opinion related to a matter of public interest; and

3. (c)
   the opinion is based on proper material.

3. (4)
   A defence established under this section is defeated if, and only if, the plaintiff proves that—

1. (a)
   in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or

2. (b)
   in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or

3. (c)
   in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

3. (5)
   For the purposes of this section, an opinion is based on proper material if it is based on material that—

1. (a)
   is substantially true; or

2. (b)
   was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

3. (c)
   was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

3. (6)
   An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material”.

The findings of the Acting Magistrate

11. [11]
    The Acting Magistrate found that, on the evidence, the document was published to at least three persons in the neighbourhood and that, although he was not mentioned by name in the document, Mr Harle was clearly identifiable from “markers” in it, as the person to whom it referred.^[2]  As well, the Acting Magistrate found that by its natural and ordinary meaning, the published document meant that Mr Harle had “sexually harassed the defendant’s wife, Jennifer”; that he had “intentionally and inexcusably damaged the defendant’s property”; and that he had “engaged in threatening behaviour and sexual harassment such that he was a threat to the safety of women and children in the local community”.^[3]  He also found that these meanings were defamatory of Mr Harle.^[4]
12. [12]
    The Acting Magistrate rejected both statutory defences.  As to qualified privilege, he found that Mr Tsang’s conduct in publishing defamatory matter about Mr Harle was not reasonable in the circumstances.
13. [13]
    With respect to honest opinion, the Acting Magistrate found that the defamatory matter that was published was apt to be characterised as a statement of fact and not as an expression of opinion.  This defence was therefore not available.  In approaching the characterisation of the defamatory matter, the Acting Magistrate first cited an observation of Gleeson CJ in Channel Seven Adelaide Pty Ltd v Manock^[5] concerning identification by a reader of comment in a communication.
14. [14]
    The following analysis by the Acting Magistrate ensued:

“Whether a statement is one of comment or opinion, rather than fact, is to be assessed by reference to the ordinary reasonable reader.  I do not consider that an ordinary reasonable reader would understand the publication is opinion rather than fact.  I accept the plaintiff's submission that the letter is a classic statement of fact.  The letter commences with:

As you may be aware, there was threatening work outside our front fence.

This is a statement of fact. on page 2, the first dot point is:

Sexual harassment to Jennifer.

This is not qualified or ambiguous.  It is a statement of facts which is coupled by another statement of fact:

The person took photos of Jennifer.

This is not an opinion, it is a statement of fact, which I found is not supported by the evidence.  There was no reasonable basis for this assertion.  There are further statements of fact, not opinion, that are not supported by the evidence.  Those statements regarding trimming of the hedge every second day, intentional damage to our front fence, not controlling his plants.  The ordinary reasonable reader must also look at the contextual circumstances of the publication.  The letter was headed on bold red type:

Important Message From 10 Mansfield Place.

This highlights the gravity or seriousness of the message.  It is addressed to:

Dear Neighbours,

And states that:

We regard this as a very selfish activity and regardless of our community harmony.

So the statements of fact are made within the context of an important message of warning to the immediate community.  The defendant goes on to say that the reader should:

Pass this message to all your neighbour to be aware of any suspect who would take photos of you or your kids on purpose without your notice.

This is a definitive statement that this activity is occurring, that again, the evidence neither supports it – that it occurred, nor that the defendant could hold that opinion.  There was no suggestion that kids were being photographed…”^[6]

15. [15]
    The Acting Magistrate assessed damages to compensate for harm caused to Mr Harle by the publication and allowed for circumstances of aggravation.  It is unnecessary for present purposes to detail the findings relevant to the assessment of damages or for the award of costs on an indemnity basis.

The appeal to the District Court

16. [16]
    On appeal to the District Court, Mr Tsang sought to challenge findings made by the Acting Magistrate with respect to both statutory defences and the award of aggravated damages.  His Honour rejected all grounds of appeal.  In the present context, reference need be made only to the honest opinion defence.
17. [17]
    As to it, Judge Porter KC set out the text of s 31 and summarised the appellant’s contention as being that the Acting Magistrate erred “by failing to correctly draw a distinction between assertions of opinion and assertions of fact contained in the document”.^[7]
18. [18]
    His Honour rejected that contention.  He did so by means of the following reasoning:

“[27] It is important to be clear as to the basis upon which his Honour rejected the defence.  His Honour found that he did not consider that an ordinary reasonable reader would understand the publication to be opinion rather than fact.  His Honour’s comment focusses on the document being the defamatory matter rather than specifically on the imputations as called for by the terms of the statute itself, which focusses on the defamatory matter.  It is important to keep in mind that his Honour did not go on to consider the other two elements of the defence because of his conclusion the document could not be characterised as an expression of opinion, rather than a statement of fact.

[28] The gravamen of the appellant’s challenge to his Honour’s conclusion on the first element was that his Honour failed to distinguish between those parts which were expressions of opinion and those which were statements of fact or alleged fact which demonstrated proper material upon which the opinions were based.

[29] I do not agree his Honour erred in reaching his conclusion on the first element in that way.  First, and most fundamentally, the appellant’s argument fails to grapple with the characterisation of the document as a whole, being the defamatory matter referred to by the statement statute.  While a skilled lawyer receiving that document from a neighbour might read it carefully to distinguish between defamatory statements which are conclusory or opinion – or otherwise characterised as opinion, and other content of the letter which seems to provide the basis for the defamatory statements, I do not think a fair-minded reader, not even an attentive and skilled reader, would have read the document in that forensically subtle manner.

[30] Take for example the allegation the plaintiff sexually harassed the defendant’s wife.  That statement is made as a standalone assertion.  It then details the sexual harassment, including a reference to his wife wearing a short skirt while photos are taken.  The document also says on the third page, “we would also like to pass on ...that there was sexual harassment of the defendant’s family [member]”.

[31] The tenor of the document is that the plaintiff was a sexual harasser, and it alleges that he provides a risk to the safety of “all kids and women”.  Examples of that kind can be multiplied.  Ultimately, I agree with Mr Anderson QC who appeared for the respondent in his submissions on this issue at paragraph 24;

However viewed, the leaflet clearly was making assertions that certain matters had occurred – not that it was the appellant’s opinion that they had (derived from inference, for example) or that certain facts lead to other conclusions.  It is clear from even a cursory consideration of the language used (remembering that it is the publication in its defamatory sense that is relevant – here, consideration is given therefore to the publication insofar as it concerns the allegations that are the subject of the two admittedly defamatory meanings: ‘intentional and inexcusable damage to property’ and ‘bullying and threatening behaviour and sexual harassment’).  The publication starts with the assertion that it is an IMPORTANT message and then commences, “As you may be aware there was a threat[en]ing work outside our front fence”; “A large hole was dug … which makes in-ground concrete section exposed”; “All these were done without any notification to us or our consent”; “two dangerous bars are still left in the ground deeply in front of the fence which may already cause damage to the base and also a safety hazard to pedestrians and kids”; “in the last few months, this person who put hole in there has been giving a lot of provocative challenges to our family, including … sexual harassment to Jennifer”; “the back dividing fence in our backyard … has been cut off at the bottom”; “intentional damage to our front fence”; “we cannot bear these threating any more… we have been seeking Police advice”; “I cannot tolerate any bully and sexual harassment to my family member”.  Of course the publication must be read in its entirety but it is clear, it is submitted, that it was not an opinion piece concerned with an assessment of neighbourly conduct and relations, but a factual account of matters that were of concern to the appellant, and which were false, and which unjustifiably defamed the respondent.”

19. [19]
    Judge Porter KC then adverted to two further arguments advanced on behalf of Mr Harle against the availability of this defence, namely, that the appellant before him had not demonstrated that the characterisation as statement of fact adopted by the Acting Magistrate was not open and that even if characterised as expression of opinion, the matter was not based on proper material as s 31(2)(c) required for the defence to be available.  Whilst expressing preliminary views favouring those arguments,^[8] his Honour did not subject them to final determination or base his decision upon them, as it was unnecessary for him to do so.

Principles relevant to the granting of leave to appeal

20. [20]
    In McDonald v Queensland Police Service,^[9] this Court summarised, at [39], principles relevant to appeals to it from the District Court in its appellate jurisdiction.  Relevant to this application are the following principles:

“(c) this Court’s discretion to grant or refuse leave to appeal is unfettered, exercisable according to the nature of the case, but leave to appeal will not be given lightly, given that the applicant has already had the benefit of two judicial hearings;

4. (d)
   the mere fact that there has been an error, or that an error can be detected in the judgment is not ordinarily, by itself, sufficient to justify the granting of leave to appeal – leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected;…

8. (h)
   the appeal to this Court is not limited to errors of law.”^[10]

21. [21]
    Consistently with these principles, the applicant, Mr Tsang, must, in the first place, satisfy the Court of error on the part of Judge Porter KC.

The errors advanced as justifying a grant of leave to appeal

22. [22]
    The application for leave to appeal^[11] stated that leave to appeal was sought on three grounds.  They contended that Judge Porter KC had erred in law in three separate respects.  One of them concerned the defence of qualified privilege (s 30); and the others, the defence of honest opinion (s 31).  These same grounds were repeated in the proposed Notice of Appeal to this Court.^[12]
23. [23]
    However, the Outline of Submissions filed on behalf of Mr Tsang, as applicant, articulated “the arguable error” below as being one “as to the proper application of s 31”.^[13]  This disparity with the grounds of appeal was noted at the commencement of the hearing of this application.  The parties agreed that the application ought to proceed on the basis of the Outline of Submissions unrestricted by those grounds of appeal.^[14]
24. [24]
    Two errors were advanced in the applicant’s Outline of Submissions.  The first was “failure to find that the Subject Document was an expression of opinion”.^[15]  The second related to a view expressed obiter by Judge Porter KC with regard to the need for a rational linkage between an opinion held and material on which it is said to be based.  The Outline of Submissions then sought to demonstrate, on the footing that the defamatory matter was an expression of opinion, that the requirements for the availability of a defence under s 31 were otherwise satisfied.^[16]
25. [25]
    It will be apparent from the foregoing that the primary issue in this application is whether Judge Porter KC erred with regard to characterisation of the defamatory matter circulated by Mr Tsang.  His counsel so described it at the hearing of the application.^[17]  I now turn to that issue.

Applicant’s submissions on the primary issue

26. [26]
    For Mr Tsang, it was submitted that Judge Porter KC “impermissibly parsed the document rather than reading it as a whole”.^[18]  That his Honour had done so was illustrated by the content of paragraph [30] of his Reasons.^[19]  In oral submissions, counsel for the applicant described his Honour’s approach as “parsing it down, looking at particular sentences and determining that they were phrased as a statement of fact, as opposed to an opinion, rather than looking at the document as a whole”.^[20]
27. [27]
    To illustrate the submission, counsel referred to the paragraph numbered 1 in the document and the observation by Judge Porter KC that the statement at the commencement of it that Mr Harle had sexually harassed Mr Tsang’s wife was “a standalone assertion”, which he found to be a statement of fact.  That characterisation of the statement, it was submitted, ignored the matters of fact within that paragraph which follow it.  It was those facts which gave the initial statement in the paragraph (that Mr Harle had sexually harassed Mrs Tsang) the character of an expression of opinion based on those facts.^[21]  In oral submissions, counsel for the applicant described the initial statement as “a conclusion” that was drawn from the facts which followed.^[22]

Respondent’s submissions on the primary issue

28. [28]
    The respondent submitted that Judge Porter KC evidently understood that characterisation of matter within a document as fact or opinion was to be undertaken by reference to the content of the document overall.  Indeed it was further submitted that “[i]t was not impermissible, indeed it was entirely rational and appropriate for [his Honour] to identify those matters that were important in the consideration of the matter before [him]”.^[23]

Consideration of the primary issue

29. [29]
    In considering the primary issue, I propose first to deal with the illustration advanced by the applicant of an erroneous approach to characterisation adopted by Judge Porter KC and then to compare that approach with the approach endorsed by judicial authority.
30. [30]
    With regard to the illustration, the applicant’s criticism is focussed upon his Honour’s description of the initial statement as “a standalone assertion”.  I do not understand his Honour, by the use of that description, to imply that he had considered the statement’s characterisation in isolation from the sentences that followed it in the paragraph.  The impression I have is that he used the term for the purpose of rejecting the applicant’s contention that the basis for the initial statement was confined to the factual matters referred to in the sentences which followed it in the paragraph.  In other words, he was rejecting the notion that the initial statement was based solely on those factual matters.  In that sense, the statement stood apart from them.  I therefore do not accept the applicant’s criticism as one that is based on an accurate description of his Honour’s approach.
31. [31]
    Moreover, in my view, there are features of the document which would suggest to the ordinary reader that the factual matters in the sentences which followed the initial statement were but an example of what was said in the initial statement.  In the first place, the initial statement precedes the factual matters.  It does not succeed them, as a proposition derived solely from specific factual matters would ordinarily do.  Secondly, later in the document the applicant refers to his intolerance of “sexual harassment to my family member”.  He does not confine it to sexual harassment on the occasion detailed in the paragraph numbered 1.
32. [32]
    However, there is a further and significant difficulty with the criticism.  That is, that even if the initial statement was referenced solely to the factual matters in the sentences that followed, it was, itself, factual in nature in that it stated that Mr Harle had, in fact, sexually assaulted Mrs Tsang.  That statement lacked attributions of evaluation or judgment as typify an expression of opinion or an inference.
33. [33]
    In summary, the illustration advanced by the applicant fails to demonstrate that the approach adopted by Judge Porter KC led to an erroneous characterisation of the initial statement.  More broadly, it fails to demonstrate by analogy erroneous characterisation of other statements in the document.  In this context I refer specifically to the statement that Mr Harle intentionally damaged the Tsangs’ front fence.
34. [34]
    Turning to the approach adopted by Judge Porter KC, I consider that it was consistent with authority for him to have determined whether matter would have been understood by the ordinary reasonable reader as an expression of opinion rather than a statement of fact.^[24]  Furthermore, it was also correct for his Honour to characterise statements in the document distributed by Mr Tsang through the lens of the various defamatory meanings conveyed by it.^[25]  In other words, his Honour did not purport to characterise the document in its entirety as a statement of fact or an expression of opinion.
35. [35]
    For these reasons, I conclude that the applicant has not advanced an arguable case that Judge Porter KC erred with respect to characterisation of the defamatory matter in question.

Disposition

36. [36]
    In the absence of a reasonable argument that there was an error on the part of Judge Porter KC, this application for leave to appeal must be refused.

Costs

37. [37]
    The respondent has sought leave to make submissions as to costs of the application once the substantive order on the application has been made and reasons for it published.  I would make directions that will accommodate that request.

Orders and directions

38. [38]
    I would propose the following orders and directions:

1. Application for leave to appeal refused.
2. Direct:
   1. that within seven days of the publication of these reasons, the parties file and serve any affidavit material on which they propose to rely with respect to costs of the application; and
   2. that within 14 days of the publication of these reasons, the parties file and serve written submissions, not to exceed three pages, with respect to the costs of the application for leave to appeal.
3. Adjourn the application pending determination of costs.