Tsang v Harle[2022] QDC 138

DISTRICT COURT OF QUEENSLAND

1. [1]
   This an appeal from a judgment of the Magistrates Court given at Brisbane on 15 October 2021 by which it was ordered that the defendant pay to the plaintiff damages for defamation in the sum of $30,000 plus interest and that the defendant pay the plaintiff’s costs on an indemnity basis. 
2. [2]
   The proceedings arise out of the circumstance that the defendant/appellant decided to ventilate neighbourly disputes with the plaintiff/respondent in a document delivered to six or seven close neighbours.  The plaintiff sued for damages for defamation.  He pleaded three defamatory meanings or imputations arising out of the document.
3. [3]
   The plaintiff pleaded that, by its ordinary and natural meaning, the document meant that the plaintiff;

   1. (a)
      sexually harassed the defendant’s wife;
   2. (b)
      had intentionally and inexcusably damaged the defendant’s property; and
   3. (c)
      had engaged in bullying and threatening behaviour and sexual harassment such that he was a threat to the safety of women and children in his local community.

4. [4]
   Those defamatory meanings were admitted at trial.  The trial therefore was concerned primarily with two defences; the defence of qualified privilege and the defence of honest opinion.  Both defences were rejected by the trial judge.

Background

5. [5]
   The factual background was set out in his Honour’s reasons which were delivered ex tempore, though after some delay.^[1] His Honour made his own assessment of the defamatory meanings and concluded, consistent with the concessions at trial, that those defamatory meanings emerged from the document and that the gravity of the meanings conveyed by the publication were serious.

6. [6]
   He then analysed the evidence of the witnesses, primarily the evidence of the plaintiff, his sister, the defendant and his wife.  His Honour’s analysis of the key witnesses reflects careful consideration of the evidence.^[2]  His assessment of credit and reliability was nuanced, and in some respects, it was critical of the plaintiff and the plaintiff’s character, at least as a witness in this proceeding.  However, his Honour accepted the plaintiff over the defendant where their evidence conflicted and found the defendant to be an unreliable witness.  His Honour does so, in respect of the defendant, with reasons which, in my view, explain his conclusions on credit and reliability.^[3]
7. [7]
   There is a particular burden on an appeal by way of rehearing in persuading an appeal court to go behind findings on credit by a trial Judge.  The appellant made some effort to do so in respect of some specific matters raised by his Honour, but I was not persuaded that a proper basis was made out to go behind his Honour’s findings on credit. This was largely because the submissions failed to grapple with the burden imposed on a party that seeks to do so on appeal.^[4] 

Defence of qualified privilege

8. [8]
   Section 30 Defamation Act 2005 (the Act) as at the date relevant to this case provided;

30  Defence of qualified privilege for provision of certain information

1. (1)
   There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

1. (a)
   the recipient has an interest or apparent interest in having information on some subject; and

2. (b)
   the matter is published to the recipient in the course of giving to the recipient information on that subject; and
3. (c)
   the conduct of the defendant in publishing that matter is reasonable in the circumstances.

   2. For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
   3. In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

   1. the extent to which the matter published is of public interest; and
   2. the extent to which the matter published relates to the performance of the public functions or activities of the person; and
   3. the seriousness of any defamatory imputation carried by the matter published; and
   4. the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
   5. whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
   6. the nature of the business environment in which the defendant operates; and
   7. the sources of the information in the matter published and the integrity of those sources; and
   8. whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
   9. any other steps taken to verify the information in the matter published; and
   10. any other circumstances that the court considers relevant.

   4. For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
   5. However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

9. [9]
   It can be seen from section 30(1) that the defence turns on establishing three conditions, set out in s. 30(1)(a), (b) and (c).  His Honour found, expressly or by necessary implication, in favour of the appellant in respect of the issues raised by section 30(1)(a) and (b), that is, that the recipient or recipients (in this case, the neighbours) had an interest or apparent interest in receiving information on some subject, and the defamatory matter was published to the recipient in the course of giving the recipient information on that subject.
10. [10]
    There was some criticism that his Honour may have misapprehended that whether information was true was a relevant consideration in determining whether the requirements of s. 30(1)(a) were made out.  In broad terms, I think it is right that it is not, however, if his Honour did make that error, (and I can think of other explanations for the couple of the lines of the judgment that are referred to by the appellant) it had no role in his Honour’s determination of the case. This is because his Honour decided the two preconditions I have identified, in favour of the appellant.  At trial, and on appeal all the excitement surrounded the third requirement (s. 30(1)(c)) that the conduct of the defendant, in publishing the defamatory matter, was reasonable in the circumstances.
11. [11]
    His Honour decided that the publication of the document was not reasonable in the circumstances.^[5]  The gravamen of the appeal is pithily summarised by Mr Nelson for the appellant at paragraph 11 of his outline, where he says:

As to ground (A), the appellant contends that the Magistrate found that it was necessary to prove the truth of what had been written in order that it be a matter of interest or apparent interest, and in order to make the publication of the leaflet reasonable for the purposes of the statutory defence.

12. [12]
    The appellant, having made that core point, went to on to contend that various findings by his Honour that various statements in the document were untrue could not be sustained.  In respect of that, I reject those contentions.  As I have said, I did not consider that a persuasive basis to go behind the findings on credit and reliability was made out.  Further, the appellant contended that his Honour also erred in his approach to s. 30(1)(c) by failing expressly to consider other matters relevant to whether the conduct was reasonable in the circumstances, including the extent of the publication (a matter that was raised in the defence specifically).
13. [13]
    As to the first contention which focused on whether the statements were in fact true or not, in addition to the point I made in respect to the question of going behind his Honour’s findings, I perceive two principal flaws in the appellant’s argument.
14. [14]
    First, his Honour’s language in the part of his reasons that I have identified might, on occasions, have been infelicitous.  But, in my view, on a fair reading of his Honour’s judgment, it was not correct that he erred in adopting the view that whether the conduct was reasonable or not was determined by whether the defamatory matter and the statements in it were in fact true.
15. [15]
    In my respectful view, on a fair reading of his reasons, his Honour reached that conclusion and then moved on to consider that conclusion in the context of s. 30(3)(d). Section 30(3)(d) provides that whether conduct, in publishing a matter, is reasonable, consideration is to be given to the extent to which the matter published distinguishes between suspicions, allegations and proven facts.  It was to that statutory proposition that his Honour referred and, reading it as a whole, that is how his Honour considered that his findings about whether the facts alleged were true were relevant to his resolution of whether the defence of qualified privilege arose.
16. [16]
    The second flaw in the appellant’s argument is that his Honour was invited by the defendant’s pleading to consider the truth of the defamatory matter.^[6] His Honour’s analysis in determining the truth of certain facts asserted in the document therefore involved deciding the material facts in dispute on the pleadings of the defendant that were said to be directly relevant to establishing the reasonableness of the publication.  The appellant cannot now he heard to say his Honour erred in doing so.
17. [17]
    Further, the appellants submit that his Honour failed to carry out the balancing of different considerations as is contemplated by s. 30(3) to determine if the conduct in publishing was reasonable.  There are a number of reasons why I am not persuaded that his Honour’s judgment was in error in this regard. 
18. [18]
    First, the real question is, as articulated in s. 30(1)(c), whether the conduct of the defendant in publishing the matter was reasonable in the circumstances.  Section 30(3) identifies facts which the Court may take into account.  It does not, in express terms or by reference to any authority, require a judge to consider all the matters which are raised and expressly weigh them up.
19. [19]
    Second, his Honour did not confine his analysis only to the whether the statements distinguished between facts, suspicions and opinion.  His Honour went on to consider the defendant’s allegation in the defence about the defendant attempting to obtain the respondent’s side of the story and related allegations in the defence to that.  That is, of course, relevant to s. 30(3)(h). It is fair to say that his Honour concluded, and, I agree, that the question of whether the defendant had sought to obtain and present the plaintiff’s side of the story told against being satisfied of the defence that the evidence was that the parents of the plaintiff had said that, in response to the alleged conduct involving the appellant’s wife being brought to their attention, that certain photographs which were said to have been taken of the appellant’s wife while wearing a short skirt as a form sexual harassment had not been taken. In that regard, his Honour found that the document said that the parents had said that there was no sexual harassment.  It did not go on to say that the parents had said that there were no photographs taken.  The allegation that photographs were taken of the appellant’s wife in a short skirt was at the heart of the statement that the plaintiff had committed acts of sexual harassment.  (In my view, the facts told to the appellant by his wife could not possibly have justified the allegation of sexual harassment in any event, but I digress.)
20. [20]
    His Honour found that in respect of s. 30(3)(h), those events, which were raised in the pleading, told against being satisfied of the third element of the defence.  The only other matters raised in the defence were that the appellant did not name the person, did not state the address of the person, did not use extravagant, offensive or disparaging language in the document, and that it was limited in its distribution.  His Honour did not specifically refer to those matters raised in the pleading in this part of his judgement. However, those matters were not persuasive once his Honour had found as a fact that the first two matters were not relevant because the publication, in the context that it was disseminated, did not have to name the person or state his address to make it clear that the neighbour is to whom the document was referring. 
21. [21]
    As to appeal ground C, although his Honour did not deal with that submission, I can consider it because, in my respectful view, the language was extravagant, offensive, or disparaging.  And finally, his Honour noted at the beginning of the judgement the limited distribution.  I do not think it means there is an error just because he did not refer to it at this stage. 
22. [22]
    For those reasons, I am unpersuaded that any error has been shown in his Honour’s rejection of the defence of qualified privilege.

Defence of honest opinion

23. [23]
    Section 31 of the Act, as it was at the relevant time, provided; 

31 Defences of honest opinion

1. (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.

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

1. the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
2. the opinion related to a matter of public interest; and
3. the opinion is based on proper material.

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

1. 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. the opinion related to a matter of public interest; and
3. the opinion is based on proper material.

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

1. 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. 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. 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.

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

1. is substantially true; or
2. was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
3. was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

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

24. [24]
    The learned Magistrate dealt with the defence of honest opinion.^[7] His Honour summarised the law, briefly, but in a way not cavilled with in substance.^[8] It was not submitted by counsel, that his Honour’s observations about the law were incorrect.
25. [25]
    Further to his Honour’s observations, paragraph 23 of the appellant’s outline referred to Harbour Radio Proprietary Limited v Ahmed, as follows^[9]:

As to ground of appeal C, the appellant was unsuccessful in raising his honest opinion defence because the Magistrate made the finding that the leaflet (the ‘defamatory matter’ for the purpose of s 31) was not an expression of opinion but rather a statement of fact.  This is peculiarly a matter of judgment for the Magistrate.  It is not enough merely to assert that the leaflet could have been understood differently – the error must be manifestly obvious and demand a different result.  Here, it is entirely unsurprising that the Magistrate found the publication to be a statement of fact.  His Honour’s reasoning commences at J9-7 and is entirely orthodox.  Apart from anything else, the appellant himself considered for the purpose of his qualified privilege defence that the leaflet was making assertions of fact – see the matters pleaded at paragraph 5D of the defence for example, restated at paragraph 17 above.

26. [26]
    The appellant contends that his Honour erred in concluding that the honest opinion defence did not apply.  It is submitted that his Honour did so by failing to correctly draw a distinction between assertions of opinion and assertions of fact contained in the document.
27. [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. [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. [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. [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 manor”.
31. [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.

32. [32]
    There are two further arguments to consider on this issue advanced by Mr Anderson.  The first was that the appellant had failed to establish error by his Honour in the manner required. The appellants were required to demonstrate that his Honour’s conclusion was outside the range of proper evaluations of the evidence.  There is merit in that analysis, for the nature of the issues which arises on appeal on that element of the defence in s. 31 in light of the authorities to which I have been referred.  It is unnecessary, however, to decide that matter because I have found that his Honour was not in error in any event.
33. [33]
    The second argument made by Mr Anderson was that even if the appellant could make good the first element, he will not be able to make good the third because key parts of the document are not based on proper material.  The sexual harassment, once again, is a good example.  It may be that the opinion that the appellant was a sexual harasser was genuinely and honestly held by the appellant based on the things that were told to him by his wife about what occurred.  However, the statute requires the opinion to be based on proper material.  It seems to me that this does not just require that an opinion be an honest opinion because an opinion can be honestly but irrationally held by reference to material, and it seems difficult, to read such a circumstance as being an opinion based on proper material.
34. [34]
    In my respectful view, the better construction of the provision is that, not only is the opinion genuinely held but, it is in some way rationally linked to the material.  I agree with Mr Anderson’s submission that the allegations of being a sexual harasser and some of the more extravagant statements that refer to the risk to safety, fail on that that front.  I do not consider that those opinions can be seen to be rationally based, for example, on the material contained in the document which was in the appellant’s submission factual material or factual allegations.  I have subjected that argument to the level of scrutiny I would if it were determinative of the appeal because it is not determinative of the appeal.  The appeal is determined in any event on the first point that I addressed.
35. [35]
    The last point that was raised in the appeal was that his Honour erred on the basis that he concluded aggravated damages were appropriate.  With respect to the counsel for the appellant, the argument involves a subtle but important error in his Honour’s reasoning.  His Honour is characterised by the appellant as having considered that the appellant ran a substantial truth defence.^[10]  That is not what his Honour said.  What his Honour said is the appellant defended on the substantial truth of the statements. There was substantial truth to what his Honour said about that because I have referred to paragraph 5D which did exactly that.  That criticism of his Honour finding, therefore, fails, and in those circumstances the appeal is dismissed.