Sometimes, we make mistakes and need to correct them. So, here’s my latest correction. Mea cupla and my apologies.
[2.25 minutes estimated reading time, 449 words]
In the words of the modern philosopher, Britney Spears:
Yeah yeah yeah yeah yeah
Yeah yeah yeah yeah yeah yeah
I think I did it again
I made you believe …
It looks like this time, I’m the one that did it again ….
In my article ‘The [Not So] Social Strata Website’ I made a rookie mistake and forgot my own exhortations that decisions in lower Courts are notoriously unreliable by quoting the NSW District Court decision in Raynor v Murray [2019] NSWDC 189 as good law about defamation in strata buildings.
Well, it turns out that decision was appealed by the losing tenant and overturned by the NSW Court of Appeal later in 2019.
In its decision, the NSW Court of Appeal reversed the District Court’s finding that qualified privilege did not apply and rejected the defamation claim saying:
qualified privilege can apply when an appropriate ‘occasion’ exists; namely a duty or interest in the publisher to communicate in relation to the topic, and a reciprocal interest in the recipient in receiving that communication,
when qualified privilege applies, sufficiently connected comments that are reasonably made and published are permissible,
a tenant in the strata building has an interest in the management of the building [including the letterboxes] so there was a special and reciprocal interest,
even though the email may have been very personal it was not malicious [in the legal sense] and it was not proven,
because the email was only circulated to strata owners and residents and in response to the chairperson’s emails, it was a proportionate and limited response staying within the qualified privilege defence,
damages of $120,000 were excessive even if the email was defamatory when it was only circulated to 16 people.
So, whilst the NSW Court of Appeal decision widens the scope of inter strata owner and resident communications that are permissible before they trigger defamation claims. But, I’d still urge caution in managing strata communications since it will be easy for writers and others to stray outside these somewhat artificial and arbitrary legal boundaries.
You can also read the NSW Court of Appeal decision in Murray v Raynor [2019] NSWCA 274 here.
I’ve also updated my original article to reflect the appeal decision and the final outcome.
Thanks to readers
I’d also like to thanks the two readers [and friends] who alerted me to my mistake, the expert strata lawyers, Juliette Nairn or OMB Lawyers in Queensland, and, Mark Atkinson of Atkinson Legal in Western Australia.
I appreciate you legal eagles reaching out.
Compensation
As compensation, I invite you to enjoy Britney’s performance, so enjoy and #freebritney.
September 14, 2021
Francesco …