NSW: “You Can’t Say That!” – Defamation Reforms and Strata Schemes

This NSW article is about defamation reforms and strata schemes.

Living in a Strata Scheme, Neighbourhood Scheme or Community Association can be challenging – especially so when tempers flare and fingers fly (over a keyboard). Many people vent their frustrations about their neighbours, their owners corporation, committee or strata manager in public forums, such as mass emails and social media. A lot of the time, these statements are what most people would consider defamatory – hurting the reputation and public standing of the person whom the statement is about.

In Australia, the legal system is rife with defamation lawsuits – and some have even been related to strata. For instance, the case of Murray v Raynor [2019] NSWCA 274, which we discussed in an earlier article the link to which is here: Defamation and owners corporations: be careful in your communications.

As a recap, in that case Mr Raynor, the chairman of a strata committee, brought a defamation suit against Ms Murray, a tenant in the building they both lived at Manly. Mr Raynor sent a number of emails to the tenant and expressed concerns about the security of mailboxes, forming the view that Mr Murray’s unlocked mailbox increased the risk of theft from all letterboxes in the building. Ms Murray sent an email to Mr Raynor and copied the other 16 lot owners in the building, claiming that she had been harassed him. At first instance, the primary judge found Ms Murray had defamed Mr Raynor – and awarded the Chairman $120,000 in damages. On appeal, this decision was reversed – the NSW Court of Appeal found that the defence of qualified privilege applied and that the damages awarded were “manifestly excessive”.

In case you are wondering, qualified privilege means that people in a certain relationship to each other, in certain circumstances, can say things to each other that would, in any other circumstance, be considered defamatory. In Murry v Raynor, this relationship was the Chairman of the Strata Committee and a tenant of the scheme, and the circumstances of the communication were the security of the mailboxes, which is a topic which is in the purview of all the lot owners and occupiers of the building.

Because of how many defamation cases are brought, reforms have recently been taking place in this area of law. In mid-2021, a new element of defamation was legislated – the “serious harm test”. This new element abolished the common law presumption that the defamed person has suffered damage upon the publication of defamatory material. Now, you have to show that the publication of defamatory matter about you has caused, or is likely to cause, serious harm to your reputation.

The Defamation Act 2005 (NSW) does not define “serious harm”, but the case law throughout the last 18 months has fleshed this out for us. The courts have taken into consideration factors such as:

• Causation (establishing a causal link between the alleged imputations of defamatory publications and serious harm to reputation);
• Duration of accessibility to the publication (with the level of harm diminished if the publication was only accessible for a short time); and
• Audience (if the audience is small or do not believe the statement, it is less likely to be defamatory).

This sets the bar much higher than it used to be for people to bring an action in defamation – which was the intent of the reforms.

So, what does this mean for people in Strata Schemes and Community Associations who have been defamed? Likely, you will need to look elsewhere for your remedy.

Ashley Howard & Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.

This post appears in Strata News #664.

Have a question or something to add to the article? Leave a comment below.

Embed

Read next:

• NSW: Q&A Defamation in Owners Corporations Communication
• NSW: Q&A Which ByLaws Apply to Our Strata Scheme?

This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyer website.

Visit our Strata By-Laws and Legislation OR NSW Strata Legislation pages.

Looking for strata information concerning your state? For state-specific strata information, take a look here.

Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.

After a free PDFof this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.