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Defamation in Strata – What is it?

In the middle of a long and expensive piece of litigation I brought on behalf of a stakeholder in a strata scheme who claimed someone on the committee had defamed him, I again asked my client the question that any responsible lawyer would repeatedly raise: “Do you really think the juice is worth the squeeze on this one?

The costs of the litigation had already exceeded any realistic estimate of the likely compensation he could be awarded for the hurtful comments made against him. So was the litigation worth the investment?

He replied: “Yes, because he plays the man, not the ball.” That simple statement explains why people get sued for defamation, and why someone may feel compelled to commit to significant costs to make a claim against them.

What is defamation?

Defamation is the publication of something which tends to lower a person’s reputation in their community. The ‘publication’ can be spoken or written. Whether the publication was defamatory will depend on what an ordinary person would reasonably understand the words to mean; not necessarily the meaning a person sensitive to criticism finds in them.

In other words, defamation does not provide a remedy for those offended by what has been said about them, but a remedy for damage caused to their reputation.

So you can’t say anything negative about someone else?

You can, so long as you have a good defence. Some examples of common defences that arise are:

  • What was said was substantially true.It may damage someone’s reputation to say that they have scant regard for the by-laws. However, that person may find it difficult to sue in defamation for that comment if they are justifiably receiving by-law contravention notices every other day
  • What was said was trivial and unlikely to harm the person’s reputation.When holding a heated discussion in a committee meeting, committee member A tells committee member B that he is being “a clown” over his stance on whether unit 7 should be given approval to keep a pet cat
  • You (usually a body corporate manager) innocently disseminated the defamatory matter, with no capacity to edit it or knowledge that it was defamatory.

A lot owner submits a motion proposing that the body corporate fund the construction of a 12 foot brick wall around townhouse 7, and the explanatory note explains why the residents of that townhouse ought to be caged in. The body corporate is required to circulate that motion and explanatory note by legislation, and cannot change it in any way. A review of the explanatory note might reveal that it was defamatory, but this particular defence is supported by a protection set out in section 111A of the BCCM Act.

  • You (usually a committee member) were giving information to someone else (usually a lot owner) on a subject they had an interest in, and it was reasonable in the circumstances for you to have published the matter (even if it were defamatory), and you did not do it out of malice.

The committee has genuine concerns about the performance of caretaking duties, obtains an expert report revealing the substandard condition the common property attributable to the poor performance of the caretaking duties, and expresses those concerns in minutes circulated to all lot owners.

There are many other defences, but these are the ones I usually see called upon in defamation cases arising out of a strata community.

Where the line usually gets drawn

The difference between success and failure in these types of defamation cases usually comes down to the motives of the defendant / publisher.

If their primary motivation is to properly inform other stakeholders in the community about a concern they have with what someone else has done, and that concern reasonably held and based on proper material, they usually stand themselves in good stead if a defamation claim is made.

People get themselves in trouble if their primary motivation is to damage the reputation of someone else, and they go out of their way to make their peers think less of someone else because of some ulterior motive. So instead of promoting their own qualities that make them suitable to hold the office of chairperson, they will instead tell others why the other candidate is a terrible person for the office. Mud sticks, right?

In the heat of the moment, they might say something they may not have thought through properly, but it felt good to say it at the time. That is when they stopped playing the ball, and started playing the man.

A word of warning for committee members

You should be especially cautious if you feel that hot flush and the need to immediately respond to something you have just heard or read. Most residential strata insurance policies provide cover for office bearers’ liability (if a committee member gets sued for something that happened while they held that office), but a typical exclusion is a defamation claim.

That does not mean a committee member will be denied cover for any defamation claim made against them. Most insurers will assess the claim being made and provisionally confirm indemnity for the defence costs if it has low prospects of succeeding. But you should always err on the side of caution when you feel that hot flush, such as by sleeping on the response you intend to send and running it past others who do not have a vested interest in the argument (such as a lawyer).

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

This article was submitted by Jason Carlson, Partner – Grace Lawyers.

Leave a Reply

  1. Mark Thorburn

    I manage a complex of townhouses and have been subjected to a 3 year long tirade of defamatory statements by one committee member which has damaged my reputation with other owners and has devalued the business and made it difficult to sell.

  2. Ross Anderson

    Jason…thanks for this article. Very informative, and probably good advice for many stakeholders in our strata world.
    Relevantly, I recently conducted a s.205 search of body corporate records (including the correspondence files between committee members) at a complex on the Sunshine Coast.
    These records revealed a large number of e-mails circulated between all members of the committee, including the non-voting members, which contained many defamatory statements about myself over an extended period. Surprisingly, copies were supplied to me without fuss by the BCM, notwithstanding the provisions in s.205.
    I got the sense the committee members who were writing this stuff had no idea these communications can form part of the official records.
    Perhaps it would be useful for you to add a cautionary note to committee members about this misperception?
    And yes, I have referred the materials to a specialist defamation lawyer for appropriate action. Like your client, I too think they should play the ball, not the man.

  3. Bruce Ellen

    i have managed a block of holiday / permanent rental units which unfortunatly uncludes one live in owner who bought into the building in 2001
    since that time I , my wife some trades people have been abused. This occures when no one else is around.
    appears that no one can do anything to stop this with costing a lot of money which we do not have.

  4. Terri Ersoy

    Hi…
    I am a tenant in a small unit complex in Melbourne VIC, it seems acoustically wired to echo, untested by myself, I am hearing cars, doors, keys, babies, footsteps, leaves in the wind etc…

    I hear the distinct voice of my real estate agent gossiping about my private business to most of the neighbours, and im sure I can hear matters of my leas being discussed…

    The deformation of character created by the slanderous remarks could be detrimental to my personal character…

    I am at an impasse, and acting without long thought before I rebut to anything, will be detrimental to my personal character, on my own doing…

    I need a really good source of true legal aid.
    Be it, that of even communication as I am more than content to stand and speak to a judge myself over the matter…

    Is there anyone on here that has any helpful information I can use…?

    Kind Regards

    Terri Ersoy…

  5. Bernie

    Hi I am an owner in a strata and have been since 1994. The neighbour purchased their’s 10 years later. From the time this person moved in, she set about personally targeting me by spreading malicious lies, making disparaging comments, false allegations, that has not only personally affected me, but has had the potential to damage my reputation. These lies and false allegations to others not only within but outside the strata, including being overheard this person, making threats of violence to myself among her friends outside and near common property which can be heard by anyone willing to listen while I am inside my home watching tv. This person continues to make false allegations, not only to her visitors and neighbours, but is now making false allegations to our newly appointed strata manager. She has already previously been sent a legal letter to cease and desist, and it was ignored. I then applied to the state tribunal as an individual due to this and other breaches of by-laws with illegal structures and buildings (prior to the appointment of a professional strata manager) and she treated it as a joke and spent her time laughing about it outside the mediation room. After the threats, I applied for a VRO only to be told by the magistrate to use the “Strata Laws as they are powerful”. She has ignored all directions by both the lawyer and Tribunal and has continued to make these lies and allegations that are detrimental not only to my character but is now, after 12 years of putting up with this, is affecting my health. The strata laws are designed for honest people who are happy to abide by them and not those that rort it and I don’t believe strata laws protect anybody as these laws can be interpreted differently, depending on your strata Manager and individuals as they understand it. While peoples reputations are being ruined, to actually have something officially done, can also financially ruin one in legal fees to formally make a legal complaint.