Tsang v Harle - [2023] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION:

Tsang v Harle [2023] QCA 32

PARTIES:

EDER TSANG
(applicant)
v
RICHARD CRAIG HARLE
(respondent)

FILE NO/S:

Appeal No 7668 of 2022
DC No 2920 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2022] QDC 138 (Porter KC DCJ)

DELIVERED ON:

10 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2023

JUDGES:

McMurdo and Dalton JJA and Gotterson AJA

ORDERS:

1.   Application for leave to appeal refused.

2.   Direct:

(a)   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

(b) 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.

CATCHWORDS:

DEFAMATION – OTHER DEFENCES – HONEST OPINION – where the applicant and respondent are neighbours – where the applicant distributed a letter to other neighbours claiming, inter alia, that the respondent had sexually harassed his wife – where after a two day trial in the Magistrates Court it was ordered that the applicant pay the respondent damages for defamation of $30,000 – where an appeal to the District Court was dismissed – where the applicant now applies for leave to appeal to this Court – where the applicant contends that the primary judge made an error as to the proper application of s 31 of the Defamation Act 2005 (Qld) – whether the primary judge erred in characterising the letter as an expression of fact rather than an expression of opinion – whether the primary judge ‘impermissibly parsed’ the document rather than looking at it as a whole

Defamation Act 2005 (Qld), s 30, s 31
District Court of Queensland Act 1967 (Qld), s 118(3)

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60, cited
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, applied
Stead v Fairfax Media Publications Pty Ltd (2021) 387 ALR 123; [2021] FCA 15, cited

COUNSEL:

A M Nelson for the applicant
R J Anderson KC for the respondent

SOLICITORS:

Slade Waterhouse Lawyers for the applicant
Bennett & Philp Lawyers for the respondent

McMURDO JA: I agree with Gotterson AJA.
DALTON JA: I agree with the orders proposed by Gotterson AJA and with his reasons.
GOTTERSON AJA: The applicant, Eder Tsang, has applied for leave pursuant to s 118(3) of the District Court of Queensland Act1967 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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tsang v Harle

Details

AGLC: Tsang v Harle [2023] QCA 32
Case: [2023] QCA 32
Decision Date: 10 March 2023

CaseChat Overview and Summary

In the case of Tsang v Harle, the applicant, Tsang, sought leave to appeal a decision of the District Court of Queensland which dismissed an appeal against a previous decision of the Magistrates Court. The primary dispute involved a defamation claim by the respondent, Harle, against Tsang, arising from a letter distributed by Tsang to other neighbours, which contained allegations that Harle had sexually harassed Tsang's wife. The Magistrates Court found in favour of Harle, awarding damages of $30,000, a decision upheld by the District Court. The applicant now appeals to the Court of Appeal, arguing that the primary judge erred in characterising certain statements in the letter as factual rather than opinion and in dissecting the document rather than considering it as a whole.

The key legal issue before the Court was whether the primary judge correctly applied section 31 of the Defamation Act 2005 (Qld) by characterising certain statements in the letter as factual assertions rather than expressions of opinion. Tsang argued that the primary judge erred in this regard, leading to an incorrect application of the defences under the Act. The Court had to determine whether the primary judge appropriately considered the document as a whole and whether the characterisation of the statements was consistent with the statutory defences.

In evaluating the appeal, the Court found that the primary judge did not err in characterising the statements in the letter. The Court observed that the primary judge had considered the document as a whole and appropriately identified the factual nature of the statements. The Court held that the primary judge's approach to parsing the document was not erroneous but was rational and appropriate. The statements in question, particularly those regarding sexual assault, were deemed factual as they directly alleged specific acts without the evaluative language that would denote opinion. The Court concluded that the primary judge's characterisation of the statements was consistent with the ordinary meaning and the statutory defences.

The Court of Appeal dismissed the application for leave to appeal. The orders included a requirement for the parties to file and serve affidavit material and written submissions regarding the costs of the application within specified timeframes, and the application was adjourned pending determination of those costs.

Orders

Orders of the court

1. Application for leave to appeal refused.

2. Direct:

(a) 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

(b) 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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][23]Respondent’s Outline of Submissions, para 5(c).Consideration of the primary issue 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. 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. 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. 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. 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.

CITATION:	Tsang v Harle [2023] QCA 32
PARTIES:	EDER TSANG (applicant) v RICHARD CRAIG HARLE (respondent)
FILE NO/S:	Appeal No 7668 of 2022 DC No 2920 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – [2022] QDC 138 (Porter KC DCJ)
DELIVERED ON:	10 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2023
JUDGES:	McMurdo and Dalton JJA and Gotterson AJA
ORDERS:	1. Application for leave to appeal refused. 2. Direct: (a) 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 (b) 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.
CATCHWORDS:	DEFAMATION – OTHER DEFENCES – HONEST OPINION – where the applicant and respondent are neighbours – where the applicant distributed a letter to other neighbours claiming, inter alia, that the respondent had sexually harassed his wife – where after a two day trial in the Magistrates Court it was ordered that the applicant pay the respondent damages for defamation of $30,000 – where an appeal to the District Court was dismissed – where the applicant now applies for leave to appeal to this Court – where the applicant contends that the primary judge made an error as to the proper application of s 31 of the Defamation Act 2005 (Qld) – whether the primary judge erred in characterising the letter as an expression of fact rather than an expression of opinion – whether the primary judge ‘impermissibly parsed’ the document rather than looking at it as a whole Defamation Act 2005 (Qld), s 30, s 31 District Court of Queensland Act 1967 (Qld), s 118(3) Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60, cited McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, applied Stead v Fairfax Media Publications Pty Ltd (2021) 387 ALR 123; [2021] FCA 15, cited
COUNSEL:	A M Nelson for the applicant R J Anderson KC for the respondent
SOLICITORS:	Slade Waterhouse Lawyers for the applicant Bennett & Philp Lawyers for the respondent