Defamation in strata (1)

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

The facts are (distilled down) very simple:

1. Both chairperson and tenant lived in a strata building;
2. There were two instances of letterbox theft;
3. The chairperson believed that if letterboxes were locked that these thefts would be less likely;
4. The tenant did not always lock their letterbox.

The email

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.

Witnesses

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.’

Source: Hynes Legal