The District Court of New South Wales decision in Raynor v Murray1 provides another recent example of the susceptibility of strata board disputes escalating into defamation claims, and also highlights the care needed in preserving emails as evidence.
The plaintiff, Mr Raynor and the defendant, Ms Murray, were both tenants in a residential block of flats in Manly, New South Wales known as ‘the Watermark Building’.
Mr Raynor was also the chair of the building’s Strata Committee.
Ms Murray had only recently moved into the building. The evidence was that she left her mailbox open most, if not all, of the time.
The building’s mailboxes were located on the street. They were broken into twice in the space of a few months.
At that time there had been local media coverage about mail fraud, with local criminals known as “boxers” stealing mail. They would keep any credit cards found in the stolen mail for their personal use and sell other mailed out documents to international crime syndicates for the purpose of identity theft. The police advised residents to secure their mailboxes and strata managers to think about the design and secure placement of their buildings’ letterboxes and CCTV.2
Mr Raynor sent a number of emails to Ms Murray noting that her mailbox was unlocked,3 as well as emails to all of the building residents asking them to remember to keep their mailboxes locked and warning them of the danger of ‘boxers’.4
In response, Ms Murray sent an email to around 17 people, being the other tenants and owners of units in the building, in which she accused Mr Raynor of “consistently choosing the public email option”, sending “threatening requests”, which were “offensive, harassing and menacing”, that he had a “fixation” about the issue with “months of campaigning” and that his “consistent attempt to shame me publicly is cowardly”.5
Mr Raynor subsequently commenced proceedings alleging that this email was defamatory.
The District Court upheld Mr Raynor’s defamation claim. In the reasons for decision, her honour Judge Gibson found that Ms Murray’s email imputed that Mr Gaynor:
The use of the word “menacing”, combined with the suggestion Mr Raynor had a “fixation” with Ms Murray and spent months campaigning against her contributed to this finding as the court opined it would be vivid and disturbing to the ordinary reasonable reader.7
Her Honour rejected Ms Murray’s argument that her email suggested idiocy rather than malice. This was due to the serious and deliberate nature of Mr Gaynor’s conduct which she alleged in her email; multiple emails, a months’ long campaign, menacing and offensive behaviour, even going so far as suggesting that Mr Raynor had faked the break ins. Her Honour found that to an ordinary reasonable reader, it conveyed an imputation of malicious conduct by a thwarted man against a female resident.8
Ms Murray argued she was only suggesting Mr Raynor’s overreaction to mailboxes was misguided, not that he was a busybody or small-minded. This argument failed with Her Honour commenting:
“The sneering tenor of this email portrays the plaintiff 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”.9
Ms Murray raised the defences of justification, honest opinion, triviality and common law qualified privilege.10 None of those defences were found to be sufficiently made out by the judge.11
There was some confusion in the case as to the full extent of the emails sent because emails tendered as evidence had been copied and pasted and were missing details of the addressees, copy and blind copy recipient lists.12
Her Honour emphasized that care needs to be taken with electronically-based publications in defamation proceedings to ensure that the parameters of the publication are clearly identified.13 In this case, recipient lists are important for establishing who had actually read the defamatory material and whether it had actually been ‘published’. 14
In one part of the judgment, her Honour considered one of the emails which ended: “Please stop”, followed by a signature line with “Trish Murray”, and then nine lines of blank space before attachments but where the text of the email made no reference to any attachments. Her Honour commented that:
“…it may be that in those circumstances the question is whether, like a hyperlink, the ordinary reasonable reader was encouraged to keep reading, or whether, like an internet publication, actual evidence of a reader having gone on to read the rest of the publication is required to be proved”.15
Her Honour awarded Mr Raynor $90,000 in general damages, and noted that:
“[i]t 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”.16
Mr Gaynor was also awarded $30,000 in aggravated damages due to evidence that was accepted that showed Ms Murray’s conduct in publishing the email complained of was improper, unjustifiable and lacking in bona fides.17
Instances of strata board disputes spilling over into formal defamation cases have not been confined to New South Wales. In 2017 the Supreme Court of Western Australia dealt with a defamation claim in a strata setting in Accommodation West Pty Ltd v Aikman [2017] WASC 157.
In the Aikman case, the parties were strata lot owners in a beachside resort complex in Mandurah, south of Perth. A dispute arose as to the freedom of a lot owner choosing their own strata lot manager. Some strata lot owners used the defendant’s strata management services rather than those offered by the first plaintiff, Accommodation West. (The second plaintiff was the sole director of Accommodation West and the third plaintiff was its only employee).
The plaintiffs alleged that 180 defamatory imputations were conveyed by six publications made by the defendant. The publications complained of were emails between lot owners and included a forensic accountant’s report into the financial records of the strata company, emails sent by Ms Aikman, Ms Aikman’s verbal comments made at the strata company’s 2015 AGM.
His Honour Kenneth Martin dismissed 178 of the plaintiffs’ pleaded 180 imputations finding they were not defamatory, or not conveyed by the publications, were imprecise or ambiguous. The imputations found to have been made out were that Accommodation West was unfit to be strata manager because it had been fired twice from other Seashells’ locations, and that Mr Rakich had bullied strata lot owners. His Honour found those imputations to be inconsequential.
Ms Aikman succeeded on her defences of statutory and common law qualified privilege, trumping the plaintiffs’ contention that she had been publishing the communications of concern with malice.
His Honour observed that Ms Aikman and other lot owners were legitimately aggrieved about the management of the strata company and entitled to speak freely, discuss their concerns and circulate the forensic report. This was irrespective of the clash of perspectives over conflicts of interests and management issues. His Honour’s noteworthy comments18 pertinent to the case were that:
The present action raises an underlying policy issue as to the exercise of free speech in Australia - in particular, the freedom of strata lot owners to candidly express their genuinely held views and render robust criticisms, albeit as a minority, about the quality and performance of their strata management regime.19
Interestingly, his Honour considered the nominal damages he would have awarded had the plaintiffs’ assertion that the defendant acted with malice succeeded. For example, for one email to three strata owners sympathetically aligned to Ms Aiken, his Honour would have awarded $3 - one dollar for each recipient.
The two different outcomes in the NSW and WA strata environment cases highlight how no two cases are ever the same; they will always turn on their own facts and individual set of circumstances. But both serve as important notice to people involved in the strata living environment about the need to take care when communicating, and ensuring that one’s language and tone is measured and thoughtful and that only those who have a relevant interest in the content are included as recipients.
The decision in Raynor v Murray emphasizes the importance of correctly saving and storing emails that might potentially be defamatory to ensure that the recipient lists are visible. This will overcome possible hurdles in establishing the scope of publication if future legal proceedings are to be issued.
Note: A spokesperson for Ms Murray has been reported in the media saying Ms Murray was preparing to appeal the decision.20
Raynor v Murray – Judgement in Full
Accommodation West v Aikman – Judgement in Full
[1] [2019] NSWDC 189.
[2] At [5] of the Raynor decision.
[3] Ibid [4].
[4] Ibid [5-9]..
[5] Ibid [9, 42-44].
[6] Ibid [17].
[7] Ibid [51].
[8] Ibid [55-58].
[9] Ibid [61].
[10] Ibid [225, 230, 236, 241, 263, 280, 290].
[11] Ibid [380].
[12] Ibid [14, 15].
[13] Ibid [30], [31].
[14] Ibid [15].
[15] Ibid [35].
[16] Ibid [348].
[17] Ibid [349].
[18] At [10] of the judgment.
[19] Ibid [10].
[20] ‘Mother to appeal $120,000 defamation judgement’, The Daily Telegraph (23 May 2019).
