ARE YOUR COMMITTEE MEMBERS VACCINATED?

Parliament introduced a vaccine into the Body Corporate and Community Management Act (Qld) 1997 to protect committee members from civil liability including defamation.

But, these protections are limited, and committee members must act cautiously to avoid exposure to potentially expensive legal action.

General protection

Section 101A gives committee members general protection from civil liability.

This section does not extend to protect a committee member from criminal liability and is conditional on committee members acting in good faith and without negligence.

In St Minivers [2017] QBCCMCmr 352, Adjudicator Rosemann stated:

“…a liability claim against individual committee members would need to establish some element beyond a simple error or oversight. Considerations might include, for example, that the committee members were on notice that they were not entitled to approve the spending and acted despite that, that they knew the majority did not approve the scaffolding, that they personally benefited from the decision, that the conduct was objectively unreasonable in the circumstances, and/or that the Body Corporate or other owners suffered specific harm as a consequence of the decision.”

The person making the claim will bear the onus of proving the committee members acted negligently and in bad faith.

Specific protection

Section 111A gives committee members protection from liability for defamation.

This protection is limited to when a committee publishes required material for a general meeting of the body corporate and that required material contains defamatory matter.

‘Required material’ is defined to include:

1. a motion (including the substance of a motion) submitted other than by or for the committee for the general meeting;
2. an explanatory note for such a motion that is prepared by the submitter of that motion.

Notably, the protection does not apply to:

1. committee meeting material;
2. general meeting motions submitted by the committee;
3. all material that may be published by a committee, such as an explanatory schedule prepared by the committee and published with the general meeting material.

Defamation Act

Section 24 of the Defamation Act (Qld) 2005 provides that a defence under that Act (including under the general law) is additional to any defence or exclusion of liability available to a person under other law.

This means that, if defamatory matter is published outside of the limited protections offered by section 111A of the body corporate legislation, there may still be a valid defence to a defamation claim.

Insurance

The insurance for a community titles scheme will generally contain a policy covering office bearer’s liability. However, this policy will generally contain an exclusion from protection for defamation.

This means that if a defamation claim is made against a committee member, the insurer will generally not provide cover for any costs incurred defending that claim.

Can the body corporate pay the costs?

There are statutory restraints regarding how a body corporate may apply its funds.

Paying for costs incurred by a committee member defending (or initiating) a defamation claim are not usually considered costs that fall within the functions of a body corporate.

But, in The Glades-Peninsula [2019] QBCCMCmr 37, Adjudicator Rosemann stated:

“There could conceivably be circumstances where it might be reasonable for a body corporate to pay the legal costs of a committee member arising from actions or omissions taken by them in their capacity as a committee member on behalf of the body corporate. However, I am of the view that such circumstances would be limited. For example, if there was a legal claim relating to actions or omissions that were specifically authorised by the committee or were in accordance with specific statutory obligations, it might be appropriate for a body corporate to indemnify the committee member. However, the mere fact that a person was a committee member at the time that they made comments that another person objected to, or that comments were made in a body corporate meeting, would not be sufficient in my view.”

What should committee members do?

There are less protections available to committee members from defamation under the Body Corporate and Community Management Act (Qld) 1997 than may be first thought.

Many people are surprised to learn how broad the concept of defamatory matter is interpreted by the Courts. Accordingly, great care must be exercised before publishing material (either orally or in writing).

Whether you are a committee member or not, it is important that you seek legal advice before publishing any material that may contain defamatory matter as the risk of doing so may result in exposing yourself to a defamation claim with limited protections under the legislation.

This article was contributed by Brendan Pitman, Partner, Grace Lawyers