Anyone who has had dealings with strata management and bodies corporate will know that in worst-case scenarios, they can become minefields of petty politicking and administrative overkill. Often, relations between managers and owners/tenants can become so acrimonious as to lead to legal action between the parties, as a number of high-profile court cases demonstrate.
The focus of this article is on the legal action of defamation, where either tenants/owners or strata managers have sued for statements they believe damage their personal or professional reputation.
It’s helpful to begin with a quick look at what constitutes defamation and what the law does to protect those who believe they’ve been defamed. Defamation is designed to protect people from false or damaging statements being made about them that may cause harm to their personal or professional reputation. A successful action for defamation can provide compensation for financial and other losses resulting from a defamatory publication of any kind.
What constitutes defamatory material? Emails, articles, blogs, novels, poems, photos, songs, cartoons, drawings, paintings, online reviews, social media posts and more can be defamatory. Material that is defamatory can also be broadcast or spoken, i.e. on a TV or radio show, or in a public presentation.
Case example 1
In Walden v Danieletto, a Queensland case decided in 2018, Mr Walden, a lot owner, owed overdue levies to the body corporate. He paid this online the day before a general meeting of the body corporate but because the amount he paid did not exactly match the amount owing, the system operated by the body corporate manager – Mr Danieletto – did not pick up the payment.
As a result, the body corporate manager declared at the general meeting that Mr Walden was “unfinancial”, a finding also entered into the minutes.
Mr Walden took exception to this declaration on four grounds, saying it imputed that he was a delinquent payer; could not afford to pay his body corporate levies; had financial difficulties; and was insolvent.
Mr Walden commenced defamation proceedings against Mr Danieletto claiming his reputation had been damaged to the amount of $100,000. The action failed in the Magistrates Court, the judge finding that Mr Walden had not been defamed and that, even if he had been, the matter was trivial and the defence of qualified privilege (that is, Mr Danieletto’s acts were committed in the performance of a legal or moral duty, were properly exercised and free from malice) applied. The magistrate found there had not been malice on the part of the body corporate manager, he’d just been doing his job.
“Do people hate or ridicule one another about overdue bills?” posited the magistrate in explaining why Mr Walden had not been defamed. “Do these cause people’s estimations of one another to be lowered where neither the amount, the period they are late, or the reason are known? Clearly not. Ordinary people accept that other ordinary people are neither infallible or perfect.”
Mr Walden appealed the decision and again lost, with the District Court judge upholding the original decision and again finding that:
- Reputational harm could not have occurred because the matter was so trivial.
- The actions of the body corporate manager were reasonable in giving members of the body corporate information about which they had an interest in receiving.
- The owner had commenced numerous proceedings against the body corporate and if other owners were poorly disposed towards him, it was more likely to be because of this than anything the body corporate manager did.
Case example 2
In the 2019 NSW case of Murray v Raynor, apartment block tenant Ms Murray won an appeal against a NSW District Court decision finding that she had defamed My Raynor, chair of the block’s strata committee, in an email she sent to fellow tenants in response to Mr Raynor’s emails to her insisting that she lock her mailbox.
Mr Raynor was awarded $120,000 in defamation damages, including an amount for aggravated damages, after the District Court judge found Ms Murray had no defence to Mr Raynor’s claim that her email implied he was a “small-minded busybody”.
However, this matter went on appeal to the NSW Court of Appeal where the original decision was set aside on the basis that a defence of qualified privilege was available to Ms Murray. The court also found the award of aggravated damages to Mr Raynor was “manifestly excessive” for an email that was addressed to 16 other people. The decision has also cast doubt on the statutory cap on damages for non-economic loss in defamation cases where aggravated damages are awarded.
As is clear from the cases cited here, the bar is quite high in order to prove you have suffered reputational damage in the context of strata matters.
Understanding the most common defences to defamation can help you understand whether commencing an action against someone you believe has published or said something defamatory about you is a good place to start. Legal professionals experienced in this area of the law can help explain these defences, which may include that:
- the publication was an honest opinion, rather than statement of fact;
- the publication was of public concern or substantially true;
- the publication was obligatory for a legal, social or moral reason;
- you are unlikely to have sustained any real harm to your reputation;
- the person you claim defamed you did not know or ought not to have known that the published material was defamatory;
- the publication was made in a privileged context (parliament, a court, a tribunal, etc).
OMB Solicitors has specific experience in acting for both clients who have been defamed and also defending clients that have been accused of defamation. We have a good understanding of the alternative dispute resolution requirements contained in Queensland’s Defamation Act, as well as how to progress a matter through the court system if the matter cannot be resolved through mediation.