As we know, hindsight has 20-20 vision but I think if anyone else encountered this and wasn’t happy that their alleged breach was on the record and unchallenged, I would be tempted to recommend that they responded by repeating the allegedly “offensive” language and challenging the EC to either take them to the CTTT or issue an apology and withdraw the Notice To Comply.
At least that way there would be either a resolution at the CTTT or a record of the EC’s failure to respond.
I actually think this by-law is way too loose in its wording to have any legal basis and, although there are no Freedom of Speech laws in Australia, I would think that the question of taking offence lies too much within the potential for any given person to be offended to have any real weight.
For instance, if someone at an EC meeting made a comment that I was a typically tight-fisted Scotsman, some might find that amusing while others, especially Scots, might consider it a racist comment (not without reason). Is it offensive language – well,it is to anyone who’s offended by it. (I wouldn’t be – but then my tight fist is multi-functional.)
To take another example, if someone says I made a stupid mistake, and I had, I might take offence on the basis that, while the mistake was mine, I resented any inference that I am stupid. I wouldn’t pursue that because I’m not THAT stupid, but I know people who are less insensitive than I, who would be offended.
This is all part of the cut and thrust of daily politics, which is what being on and dealing with ECs is.
To get back to the original question: should the adjudicator have made a ruling under Section 138 which, according to the CTTT application form is to “To resolve disputes or complaints”. This is a catch-all section for disputes that aren’t covered by other specific sections of the Act. It also specifically refers on the form to ..
… the general power of an Adjudicator to settle a dispute or complaint about the operation, administration or management of a strata scheme, or functions conferred or imposed.
Examples of general disputes or complaints include the following: … Compliance with by-laws
So, regardless of what the plaintiff could or should have done, it was within the remit of the CTTT adjudicator to rule on this. That they chose not to do, left the matter open to an appeal at either a hearing or at the District Court.
However, right now, the simplest thing to do is, if you feel you have been wrongly maligned and you want this on the record, to go back to the point I made at the beginning. Send a letter denying that you have breached the by-law, repeat the allegedly offensive language and defy them to either take you to the CTTT or withdraw and apologise. My bet is they will do neither but at least that’s on the record.
Finally, the current ‘model’ by-law in Schedule 1 is
An owner or occupier… must not use language or behave in a way which might offend or embarrass others using common property.
Note the words “using common property” which are not in the by-law allegedly breached. If you had the time and the inclination you could run a case at the CTTT under Section 159 “to invalidate a by-law because the Owners Corporation did not have power to make it” on the grounds that its terms are too broad and therefore conflict with other areas of the Act that allow owners to express their opinions verbally and in writing under a variety of circumstances.
But please bear in mind that I am not a lawyer and you would be well-advised to talk to someone who is before taking any of the preceding advice.