Defamation in Strata
June 3, 2019
Most of our articles are Queensland centric. This one is effectively national, because while defamation is something that our constitution deems a State issue, each State has adopted the same defamation legislation.
So, while this case was decided in NSW, its implications and findings are national.
Defamation has been in the media a lot lately, particularly with Rebel Wilson, Alan Jones and Geoffrey Rush.
This dispute isn’t quite at the same level, but in a strata context it is very interesting.
The facts are (distilled down) very simple:
- Both chairperson and tenant lived in a strata building;
- There were two instances of letterbox theft;
- The chairperson believed that if letterboxes were locked that these thefts would be less likely;
- The tenant did not always lock their letterbox.
At the core of the case is an email the tenant sent to 16 people other than the chairperson on 25 May 2017. That email then attached five emails from the chairperson, dated 24 May, 5 May, 27 April and 10 April 2017 and one from 31 August 2016, all effectively asking the tenant (politely) to lock their letterbox.
Importantly, none of the chairperson’s earlier emails were sent to anyone other than the body corporate manager and the committee. They were not sent to all owners like the tenant’s was. This was the first time many other occupants had even heard of the issue.
What the chairperson alleged
The chairperson said that he had been defamed by the rather intemperate terms of email in terms of it being imputed that:
he unreasonably harassed the tenant by consistently threatening her by email.
he acted menacingly towards the tenant by consistently threatening her by email.
he was a malicious person who sent threatening emails to the tenant and copied in other residents for the express purpose of publicly humiliating the tenant.
he was a small-minded busybody who wasted the time of residents on petty items concerning the running of the building.
This last one is something that lots of people in strata can probably relate to. What this case says is that while it might be fine to think it, it is very dangerous to write and circulate it.
What the court found
The Court found that each of these claims were made out. In summary:
Harassment – the inclusions as attachments of the five previous emails proved that the chairperson was on a campaign.
Menace – the chairperson was an older man. The tenant was a younger woman. Age did add to this one in the context of the imputation and the use of the word ‘fixation’ by the tenant.
Maliciousness – the tenant said that idiocy was the worst that could be conveyed but the Judge disagreed. The fact that it had happened over many months was a killer here.
The busybody line – the Judge said, ‘The sneering tenor of this email portrays the [chairperson] as a pathetic figure with fixations, requiring careful explanations of such simple things as how to get bank statements by email instead of embarking on “Mission Impossible” style fantasies about thieves attacking the Watermark building. A picture is painted of everyone else in the building being “delightful” while he is, by inference, harassing not only the defendant but also the other residents by copying them in on emails about something as trivial as mailbox break-ins.’
So the Judge said the chairperson had been defamed.
As always these things happen over time and there are usually some matters of fact that the Court has to determine. It would be very rare for anyone to keep a diary note of a conversation that took place in the foyer just after it happened in passing if there was no legal threat on foot.
Some of that came out here and the dangers of Court proceedings were again laid bare.
The Judge found of the chairperson:
‘The [chairperson] is a retired man of 78 years of age who needed two walking-sticks to get into the witness box. His credit was attacked on the basis that he at times appeared contradictory or vague.’
But none of that meant that he was not being truthful in terms of how he felt.
And of the tenant:
‘The [tenant’s] demeanour in the witness box, which included reluctance to answer questions …did not create the impression of a witness who gave thoughtful and considered responses or who was endeavouring to assist the court by giving honest and straightforward evidence. The whole of her evidence was coloured by exaggerated language, groundless suspicions and hostility.
The defendant is not a witness upon whom reliance can be placed.’
And the tenant’s partner
‘[He] was a less angry witness but was clearly there to support the [tenant]. To do so, he volunteered his opinions on a number of issues, including matters of an expert nature concerning security [and] calling the plaintiff’s concerns about copying the mailbox lock “ludicrous”. He sought to advocate the defendant’s case at every opportunity.
[He] is not a witness upon whose evidence any reliance can be placed.’
The tenant’s defences
If defamation is made out, it is then a question of whether there are any defences. These can be numerous (not the least of which is that what was said was true).
The tenant raised four defences:
The email was justified
The Judge had to run through each imputation here and at the end of the day held that none of the chairperson’s correspondence was anything other than reasonable or proportionate. The tenant’s use of the very strong adjectives was designed to embarrass the chairperson.
‘Leaving a letterbox unlocked is not a trivial matter when there are two mailbox break-ins and, as the police noted in their public warnings, while mail theft might appear petty, it should be taken seriously because of the potential for criminal activity ranging from credit card misuse to identity theft involving crime syndicate activity.’
The email was honest opinion
Was what the tenant said fact or opinion? The only matter that was held to be opinion was the imputation that the chairperson was a busybody. The other elements (harassment, menace and malice) were all statements of fact made by the tenant in the email.
The matter was trivial
While the locking of a letterbox may be trivial, the imputations made by the email were not. The Judge said:
‘the use of words such as “criminal”, “stalk”/“stalking” (twice), “fixation”, “thief”/“thieves” (six times), “harassing”/“harassment” (twice), “offensive” and “menacing” do not suggest light-hearted or jocular communication. The addition of suggestions, to persons some of whom could have been the victims of the mailbox break-ins, that the [chairperson] could have staged the break-ins as well as behaved threateningly to a woman tenant, could not in the circumstances of publication mean that there was an absence of the real possibility of harm to the reputation of the [chairperson].’
Common law qualified privilege
This defence is made out where the publication is made in the course of a legal, social or moral duty to a person with a corresponding duty or interest.
In other words, other people with similar potential issues need to know what is going on.
The Judge did not hold back on the tenant here:
‘I am satisfied that the [tenant] was well aware of the falsity of her allegations. She knew that the [chairperson] had not consistently chosen the public option, and that he had not copied in all residents or the defendant’s real estate agent into the prior imputations about which he complained. She knew his emails were not harassing in nature and that she was not being harassed by him.’
‘A significant matter in the list of particulars of malice is prior hostility, personal spite and ill-will towards the [chairperson]. I am satisfied that the [tenant] was angry and resentful at being told to keep her mailbox closed and the fact that two mailbox break-ins occurred, instead of being regarded by her as being an opportunity to reconsider her position, simply made her angrier. She published the matter complained of to humiliate and insult the [chairperson] in the eyes of all the other residents in the building and she was motivated by her hostility and ill-will towards him in doing so.’
The fact that the tenant was held to be malicious defeated this defence.
All of the tenant’s defences failed.
With respect to the damages awarded, the Court must ‘ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.’ These are general damages.
Aggravated damages can be awarded where the circumstances in which the defendant has defamed the plaintiff increased the hurt or humiliation to the plaintiff.
Here, the Court held that:
‘It would be fair to say that every sentence of the defendant’s email in reply struck a blow at the plaintiff, and was intended to ridicule and humiliate him in every way.’
This led to an award of $90,000 for general hurt and distress.
And, noting that, in addition to the tenant failing to apologise despite being asked to:
‘A substantial award of aggravated damages should be made by reason of the strong evidence that the defendant’s conduct was improper, unjustifiable and lacking in bona fides.’
This led to another $30,000.
Now for the reality check
We see this stuff all the time, and if we were consulted by the chairperson before this started our advice would have been:
you are going to spend an almost unquantifiable amount of money to go all the way. The best we could give you as an estimate is a wide ranging ball park;
if you win:
lots, or all of that win, will be soaked up in legal costs, and
you are going to get back (at best) only a proportion of what you have spent on us from your opponent;
if you lose, you still pay our costs plus a proportion of your opponent’s costs;
leaving aside the financial costs and uncertainty, Court proceedings are very stressful. They take a lot of time and the process can get bogged down in minutiae that cost more money. You are not in control of the process and you are going to have lots of sleepless nights;
the opportunity costs of that can be enormous. What else could you be doing with the time you have that will otherwise be devoted to litigation?
getting cross-examined is going to be incredibly stressful. Barristers are usually very smart and very well prepared
you are never guaranteed an outcome in Court – because if you go on the stand you never know who the Judge will believe is more credible (which was very evident in this matter).
What has been spent? Both parties had senior and junior counsel and lawyers for a three-day hearing. A rule of thumb for barristers is that you should do two days of solid preparation for each day of potential hearing. And that is just the hearing. No doubt there were repeated skirmishes all the way though by the lawyers before the matter got to hearing.
We would be very surprised if the chairperson has not already spent what he ended up winning. If (and when) we see costs orders we will update you.
And, as always, there is mention of the tenant appealing the decision.
Use the 24-hour rule
When you get something that upsets you, sit on it for 24 hours. 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.
The tenant’s email here was sent the day after an email from the chairperson, but we would be interested in the time they were sent / received at the tenant’s end. Late night emails after a big work day are usually never good.
Frozen fans know what we mean. For those that don’t, Elsa famously sang, ‘Let it go’.
Does this stuff really matter? The tenant could have responded just to the chairperson (even if they did), with ‘thanks for the advice mate, but no.’ They didn’t need to go as far as they did.
The dreaded cc – and even worse the blind cc
They could have just engaged with the chairperson directly, as he had largely done with them. In one email the chairperson even asked:
‘But I see no point in copying it to all and sundry – unless you wish me to?’
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.
What was the correct legal position anyway?
Can the body corporate make you lock your letterbox? Even more so, can your body corporate make you lock your doors or windows?
It appears that there was an application made by the body corporate with respect to this in the NCAT, which was resolved at mediation. Queensland is the only state that has a specific body (the Commissioner’s Office) which deals specifically with strata disputes.
This all could have been avoided with a fraction more consideration by the tenant in terms of the response.
This article was contributed by Frank Higginson, Partner – Hynes Legal.