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An owner in my building is constantly harassing me and sending out defamatory emails about me to other owners. They are also singling me out and blaming only me for decisions made jointly by our strata committee this person doesn’t agree with. What can be done to stop this?
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OK, first of all, let’s get defamation out of the way. Back in 2019 a tenant in a block in Manly sent notes to everyone in the building saying the chair of the committee was a “small-minded busybody” because he had been constantly pursuing her to lock her letterbox. A district court awarded the chairman $120,000 in defamation damages.
However, that was overturned by the NSW Court of Appeal which found that her email was protected by common law “qualified privilege” because it was sent to other residents about a matter of legitimate interest—the building’s mailbox security—and there was no evidence of malice.
The Court of Appeal’s decisions create legal precedent, so this is significant, as is the detail of the finding, which said, on the question of malice: “Proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some improper motive is insufficient of itself to establish that malice actuated the publication”.
So forget a legal action for defamation – it’s too high a bar to cross.
However, if you can show that sending out insulting, hurtful and erroneous messages to other owners is an attempt to harrass or bully you, you may be able to get an Apprehended Personal Violence Order (APVO).
An APVO is not a criminal conviction but ignoring such an Order is an offence so it may be the best way to shut the abuse down. If you want to explore that option, these websites may help
https://www.police.nsw.gov.au/safety_and_prevention/crime_ prevention/online_safety/ online_safety_accordian/ cyberbullying If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
Thanks very much Jimmy for your response but according to Stonegate Legal Litigation Lawyers, qualified privilege can be defeated. They say on their website the following:
“Malice is a crucial element in Australian defamation law, as it can defeat key legal defences such as qualified privilege and honest opinion.
Unlike general hostility or recklessness, malice requires proof that the dominant purpose behind a defamatory statement was improper, dishonest, or intended to cause harm.
If malice is established, it removes legal protections, increases the severity of damages, and holds defendants fully accountable for reputational harm.”
So I wouldn’t be rushing to “forget” defamation if one can prove the above. If a defamer had knowledge that their comments were false or they showed reckless disregard of whether it was false or not, and you can prove there was no legitimate reason to publish these defamatory comments, I would go for it. But perhaps with legal counsel by your side.
The Court of Appeal’s decisions create legal precedent, so this is significant, as is the detail of the finding, which said, on the question of malice: “Proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some improper motive is insufficient of itself to establish that malice actuated the publication”. So forget a legal action for defamation – it’s too high a bar to cross.
That’s what I actually wrote and perhaps I should have said that I would forget defamation, because I think it’s too high a bar.
That said, the Court of Appeal – the highest court in the state – stated that proof of ill-will and lack of belief in truth is insufficient evidence that the comments were initiated due to malice. The finding also cited the fact that the emails in question referred to an issue that was relevant to the management of the strata scheme – the matter of letterbox security.
The fact that reference to such a relatively trivial matter expunged malice would be a red flag for me if I was considering rolling the dice on a defamation case. BTW, it does not surprise me one jot that defamation lawyers are encouraging potential clients to consider such action.
The real question is what the OP wants – the abuse to stop or to punish the abuser (or both). Perhaps threatening defamation action (but not taking it) might stop the abuse but the abuser is just as capable of trawling the internet for case studies as anyone else. And maybe stopping the abuse would be a punishment in itself, since the abuser is clearly getting some sort of satisfaction from their tirades.
Having witnessed a strata-related defamation action at close quarters, I can tell you that all it resulted in was distress for the defendants and a $300,000 legal bill for the plaintiff, mainly because they failed to prove malice even though one defendant had used strong language – “f*** him” – in an email. Everyone lost – except the defamation lawyers who did quite nicely, thank you very much.
IMHO the OP might do well to take the easiest route and get an APVO. Leave defamation to the likes of Donald Trump and Ben Roberts-Smith, both of whom have big bucks behind them.
You can read the Court of Appeal findings on the Manly defamation case HERE. Its decisions are far-reaching – don’t forget that it was its ruling that changed the laws on pets in apartments for the whole country.
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My overpriced 2 cents appraisal of the malice issue discarded above might suggest the writer’s had reason to contact the others, in this case all lot owner’s mailbox security, and the writer was assessed as not to be just firing off a personal rant for no real reason. It’s a bit wobbly but if that’s the case I can see the difference.
I agree. It won’t be the only criterion but if the abuser says the OP is a liar and a thief, then that sounds like malice, but if they say their target lied in a letter to the committee, or misappropriated strata funds, that might undermine the malice argument.
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I can assure everyone that the emails sent to me, owners, the strata committee, and the strata manager were not “an issue that was relevant to the management of the strata scheme”. They were malicious in their intent and designed to cause me great harm.”
“Truth, though powerless and always defeated in a head on clash with the powers that be, possesses a strength of its own; whatever those in power may contrive, they are unable to discover or invent a viable substitute for it. Persuasion and violence can destroy truth, but they cannot replace it.”
Hannah Arendt, historian, philosopher, and author. Also a “hero” to Donald Trump.