Defamation Case Overturned – When winning is losing and costs you a fortune

December 10, 2019

The art of civility appears to be dying.

When people are willing to sue each other over a bad date, or even over the length of a sandwich, the urge to hit speed-dial to call in the lawyers has never been greater.

Earlier this year we reported on a defamation case that cost a tenant $120,000 for an email that was critical of a body corporate chairman which she copied to 16 residents of the Watermark building in Manly, New South Wales.

The tenant appealed that decision and won.  If you want to know why read on.


This is yet another decision which proves why everyone should try to avoid litigation.

The outcomes are always that one party wins and the other loses. There is no middle ground with Courts.  Litigants are not in control of the outcome.

The other thing is the inherent uncertainty. This is especially the position when you are arguing subjective matters of interpretation, which is what defamation usually is about.

And everyone knows how expensive it is.

Anyway, any celebration from the chairperson after the first decision was premature ­– the Court of Appeal has now overturned the original judgement, ruling that while the email from the tenant may have been defamatory, there was a defence available to the tenant which meant that no award of damages should have been made.

And the Court has awarded costs against the body corporate chairman, not just for the original case but for the appeal as well. So not only has his defamation payment gone up in smoke, he’s now facing a hefty legal bill.

All over a single email.

The whole dispute centered around building security and the issue of residents keeping their mailboxes locked.

The detail of the original case and the appeal can be read here, but in summary the appeal judges found that the email communication was an occasion of privilege, for which a defence of privilege arose. That defence was that the recipients of the email had a legitimate interest in the topic of the email: the management of the building including the security of mailboxes.

Putting all the legal argument to one side, the big takeaway from this case for people living in strata communities is to only call in the lawyers as a last resort.

When tempted to send off a terse email, use the 24-hour rule.

By all means, draft a response, but let it sit in drafts. Don’t respond immediately. In almost every circumstance, sitting on it for 24 hours will mean you send something far more considered, if at all.

Avoid copying people into an email if they don’t need to see it. In very general terms, defamation is largely making statements to others about someone else that are not true. If there was no one else copied in, there could have been no defamation.

Ultimately, people in apartment buildings live in a community. A calm chat over a cup of tea can solve many problems and avoid one of the most expensive problems of all: calling in the lawyers.


This article was contributed by Frank Higginson, Partner – Hynes Legal.

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