The New South Wales Court of Appeal recently allowed an appeal in a defamation proceeding concerning a tenant’s email regarding a strata committee chair, concluding the defence of common law qualified privilege defeated the claim.
- the application of the defence of common law qualified privilege to emails sent in a strata setting; and
- the assessment of damages in defamation.
The appellant, Ms Murray, rented a unit at the Watermark apartment building in Manly (‘the complex’). The respondent, Mr Raynor, owned and occupied a unit in the complex and was the chair of the strata committee (‘the committee’). In that capacity, Mr Raynor sent several emails to Ms Murray and other residents of the building about his concerns that mailboxes in the complex were being left open or unlocked. Mr Raynor wrote an email to Ms Murray, copying in the agent of the unit’s owner, insisting that she lock her mailbox or else the committee might re-key the mailboxes and seek compensation from her landlord.
Ms Murray responded with an email which was copied to 16 of the complex’s unit owners. Mr Raynor commenced proceedings against Ms Murray alleging her email contained several defamatory imputations that he: (1) had unreasonably harassed her (2) acted menacingly toward her (3) was a malicious person who sent threatening emails and copied in other residents to publicly humiliate her and (4) was a small-minded busybody.
The Decision at Trial
The primary judge found Ms Murray’s email was defamatory, then went on to consider the defence of common law qualified privilege. In short, the defence arises where a person with a duty to publish a statement does so to a person with a reciprocal interest in hearing that statement (the ‘privileged occasion’), as long as the publication was not actuated by malice. Her Honour concluded the email was intended to humiliate, insult and belittle Mr Raynor rather than for reasons which made the occasion privileged, and therefore the defence did not apply. Mr Raynor was awarded $120,000.
The Issues on Appeal
The issues the Court addressed were (1) whether the defence of qualified privilege applied and (2) the primary judge’s assessment of damages.
The Decision on Appeal
The Court considered the primary judge should have held that a privileged occasion arose concerning communications to Watermark’s residents about the building’s management (including mailbox security). The imputations were relevant to this occasion because each concerned how Mr Raynor communicated with the complex’s residents on this subject. There was no basis to conclude that Ms Murray’s email was motivated by malice, hence the primary judge should have found the defence of qualified privilege was made out. This was notwithstanding that the Court considered the 'reply to attack' sub-set of the defence was not available as, although there had been an 'attack', Ms Murray’s 'reply' was too broad because she copied in persons who were not on the committee.
Although it was not necessary to decide the issue of damages, the Court described the award at first instance was manifestly excessive; and that no more than $25,000 should have been awarded.
Implications for you
The Court of Appeal’s decision provides useful guidance on the defence of common law qualified privilege in a strata context, and suggests that even if a person’s manner of communication on a strata issue is abrupt, insulting or rude, the defence may still apply.