Tsang v Harle

[2022] QDC 138

DISTRICT COURT OF QUEENSLAND

CITATION: 

Tsang v Harle [2022] QDC 138

PARTIES: 

EDER TSANG

(Appellant)

V

RICHARD GRAIG HARLE

(Respondent)

FILE NO:

2920/21

DIVISION:

Appellant  

PROCEEDING:

Appeal  

ORIGINATING COURT: 

Brisbane District Court

DELIVERED ON:

6 June 2022

DELIVERED AT:

Brisbane (ex tempore)

HEARING DATE: 

6 June 2022

JUDGE:

Porter QC DCJ

ORDERS:

1.   Appeal dismissed

2.   Appellant pay the respondent’s costs of the appeal

CATCHWORDS:

APPEAL - DEFAMATION – STATUTORY DEFENCES – QUALIFIED PRIVLEDGE – HONEST OPINION – Where the defendant appeals the judgment of the learned Magistrate in a defamation claim – Whether the Magistrate erred in finding that in respect to the qualified privilege defence it was necessary to make a finding on truth of the defamatory material –– Whether it was reasonable for the defendant to publish the defamatory material - Whether the Magistrate erred in finding that the defamatory material comprised of statements of fact rather than of opinion – Whether the Magistrate erred in awarding aggravated damages – Appeal dismissed

COUNSEL:

A. Nelson for the Appellant  

R. Anderson QC for the Respondent

SOLICITORS:

Slack Waterhouse Lawyers for the Appellant 

Bennett & Philip Lawyers for the Respondent

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. 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. The plaintiff pleaded that, by its ordinary and natural meaning, the document meant that the plaintiff;

   (a)sexually harassed the defendant’s wife;

   (b)had intentionally and inexcusably damaged the defendant’s property; and

   (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. 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

1. 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.

   [1] TS2 to 6.17

2. 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,…