Gough v Squillacioti

[2021] NSWDC 411

District Court

New South Wales

Medium Neutral Citation:

Gough v Squillacioti [2021] NSWDC 411

Hearing dates:

7-9, 11 and 15 June 2021

Date of orders:

20 August 2021

Decision date:

20 August 2021

Jurisdiction:

Civil

Before:

J Smith SC, DCJ

Decision:

The proceedings are dismissed.

The plaintiff to pay the defendant’s costs.

Catchwords:

DEFAMATION – Defamatory matter – Defamatory capacity of imputations – Disparagement of reputation – Qualified privilege – Strata committee

Legislation Cited:

Defamation Act 2005

Strata Schemes Management Act 2015

Cases Cited:

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Cassell & Co Ltd v Broome [1972] AC 1027

Chief Commissioner of State Revenue v Adams Bidco [2019] NSWCA 34

Cush v Dillon (2011) 243 CLR 298

Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716

Gulic v Boral Transport Ltd [2016] NSWCA 269

Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981

Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652

JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467

KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28

Lewis v Daily Telegraph [1964] AC 234

Murray v Raynor [2019] NSWCA 274

Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460

Roberts v Bass (2002) 212 CLR 1

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500

Category:

Principal judgment

Parties:

Janette Marie Gough (Plaintiff)
Pietro Squillacioti (Defendant)

Representation:

Counsel:
Mr R Rasmussen (Plaintiff)
Mr R Potter SC with Mr B Dean (Defendant)

Solicitors:
Christopher Edwards (Plaintiff)
Carroll O’Dea (Defendant)

File Number(s):

2019/329565

Publication restriction:

Nil

Judgment

1. Introduction

1. The plaintiff and defendant are owners of units in the strata plan at 79-81 Oakland Avenue, The Entrance. In October 2017, they were both elected to positions on the strata committee; the plaintiff as Treasurer and the defendant as Secretary. Within a month the relationship between the parties deteriorated and the plaintiff threatened to resign her position. However, she did not resign and, indeed, although the relationship did not improve, they both nominated themselves for re-election at the Annual General Meeting (AGM) of the Strata Corporation the following year and were re-elected.

2. During this time there was a good deal of email correspondence between the members of the strata committee as well as between members of the committee and other unit owners. While there was a significant level of co-operation between the members of the committee in this correspondence, the rising level of dislike between the plaintiff and defendant (amongst others) was also displayed there.

3. In 2019, the defendant wrote a number of emails to all of the owners of the units which largely concerned the plaintiff. The first of these, sent on 23 July 2019, was sent in the context of a dispute concerning the re-appointment of the strata manager, All Titles Management Services Pty Ltd trading as All Strata Services (All Strata). The following four, dated 27 August, 13 September, 3 October and 5 October 2019 respectively were all sent in the context of the upcoming Strata Corporation AGM which was to be held on 25 October 2019.

4. On 24 October 2019 the plaintiff served the defendant with the statement of claim in these proceedings.

5. The plaintiff claims that the five emails contained numerous defamatory imputations and seeks damages for the resulting impact on her reputation and feelings. The defendant claims that these emails were published on an occasion of qualified privilege and that each imputation relied on was demonstrably relevant to that occasion. In reply, the plaintiff argued that the communications were made with malice, in particular, for the purpose of belittling the plaintiff as part of an ongoing course of bullying, harassment and, in some respects, with knowledge of the falsity of the imputation in them.

6. It is necessary to deal first with each of the many imputations claimed by the plaintiff to determine whether it arises and, if so, whether it is defamatory of the plaintiff.

2. Imputations

2.1 Legal Principles

7. In order to make out the tort of defamation, the plaintiff must establish three matters in respect of any published matter: first, that it was published by the defendant; secondly, that it identified the plaintiff; and thirdly, that it was defamatory of the plaintiff. There was no issue that the first two of these elements were established in respect of each matter complained of.

8. Whether a matter complained of is defamatory raises two separate issues: first, whether the matter conveyed one or more of the imputations pleaded (or not differing in substance to the pleading); and secondly, that the imputations conveyed would make the ordinary reader think less of the plaintiff.

9. The plaintiff bears the onus of proving on the balance of probabilities that the meanings or imputations were conveyed by the defendant’s emails and that those imputations were defamatory. The legal principles to be applied in determining whether the imputations were conveyed by the emails are well-settled and were not in dispute.

10. Those principles were recently summarised by Wigney J in V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 at [41]-[55]. Given the importance of those principles, and the acceptance by the parties of Wigney’s J exposition of them, I will set out that passage from his Honour’s judgment in full.

“41.   An applicant in defamation proceedings in this Court is required to specify and plead the defamatory imputations or “meanings” that are alleged to have been conveyed by the publication or publications in question.  The applicant bears the onus of proving on the balance of probabilities, that those meanings or imputations, or meanings that do not differ in substance from them, were in fact conveyed by the publication or publications in question.

42.   The principles to be applied in determining whether a publication conveyed particular defamatory imputations are well settled.  The lead authorities and the principles established by them were comprehensively considered by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-165, and have in more recent times been considered in this Court in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652 at [63]-[73]; Chau vFairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27]; Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125; Chau v Australian Broadcasting Corporation (No 3) (2012) 386 ALR 36; [2021] FCA 44 at [31]-[39]. The basic principles were also considered by the High Court in Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 at [30]-[32] in the context of an appeal from the summary dismissal of a defamation action.

43.   It is unnecessary to discuss the relevant principles in great detail because for the most part they were not in dispute.  Following is a short summary of the main points drawn from the authorities.

44.   First, the question of whether the defamatory meanings were in fact conveyed is a question of fact.

45.   Second, the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person.  Where the publication is in the form of a television broadcast, the question is what the words used would have conveyed to the ordinary reasonable viewer of such a broadcast.  The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable viewer.  Where the publication is in writing, the Court must similarly put itself in the shoes of the ordinary reasonable reader. 

46.   Third, in this context, the authorities ascribe the ordinary reasonable viewer or reader with certain character traits, qualities or characteristics.  The ordinary reasonable viewer or reader is variously said to be of fair to average intelligence, experience and education.  They are also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, citing Lewis v Daily Telegraph Ltd [1964] AC 234 at 260. As the High Court pointed out in Trkulja at [31], the reality is that ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.

47.   Fourth, the meaning that would be conveyed to the ordinary reasonable viewer or reader is often called “the natural and ordinary meaning”: see, for example, Wing at [15]. In some cases, the natural and ordinary meaning may be obvious from the direct or literal meaning of the words printed or spoken in the publication. More often than not, however, the question turns on what implications or imputations the ordinary reasonable viewer or reader would understand were conveyed by those words, together with any images and, in the case of broadcasts, sounds used in the publication.

48.   Fifth, in determining what implications or imputations the ordinary reasonable viewer or reader would understand or draw from the publication, the authorities suggest that the ordinary reasonable viewer or reader should generally be taken to approach or consider a publication in a particular way or ways.  The ordinary reasonable viewer or reader is, for example, said not to be a lawyer who would examine the publication overzealously, but rather someone who would view publications casually and is prone to a degree of “loose thinking”: Trkulja at [32]. The ordinary reasonable viewer or reader is also said not to live in an “ivory tower”, but is rather someone who can and does “read between the lines” in light of their general knowledge and experience of worldly affairs: Lewis at 258. While the ordinary reasonable viewer or reader does not generally search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they would view or read the entire publication and consider it as a whole, they may take into account the emphasis that may be given by, for example, conspicuous captions or headlines or, in the case of a broadcast, conspicuous images, sounds or manners of speech.

49.   Sixth, the mode or manner of publication can often be a relevant consideration in determining what was conveyed to the ordinary reasonable viewer or reader.  It has been said, for example, that the ordinary reasonable reader of a book would tend to read what was written with more care and consideration than the reader of an article in a newspaper, particularly one which is written in sensational and perhaps loose or ambiguous terms. The ordinary reasonable reader of such an article is generally considered to be more likely to engage in “loose thinking”.  Particular considerations also apply in the case of publications in electronic form, such as television or radio broadcasts.  In Marsden, the following was said in that regard (at 166, citations omitted):

Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article, and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material. 

50.   It should, however, be noted in this context that television broadcasts in more recent times are not as transient as they once were.  They are generally made available over the internet, as they were in this case, and can also generally be replayed using a streaming service such as, in the case of the ABC, “iview”.  Although programs ‘expire’ on iview, generally after several weeks, The Final Race is apparently still available on the ABC’s website.

51.   Seventh, the relevant publication has to be read or viewed as a whole.  Each alleged defamatory imputation must be considered in the context of the entire publication.  It does not follow, however, that each part of the publication must be given equal significance.  Particularly striking words or images may stay with the viewer or reader and give the viewer or reader a predisposition or impression that influences all that follows. 

52.   Eighth, the meaning that an ordinary reasonable viewer or reader would attribute to a publication, or the impression that the viewer or reader forms, may be influenced by the overall tone or tenor of the publication in question. 

53.   Ninth, because the meaning is to be determined objectively, the Court must determine a single objective meaning, even though in reality different people may have understood the meanings conveyed by the publication in different ways.

54.   Tenth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant.

55.   Eleventh, the manner in which the publication was actually understood by any individual reader or viewer is also irrelevant in determining what meaning was conveyed to the ordinary reasonable reader or viewer.  The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.”

(Emphasis in original)

11. Similarly, the principles to be applied in determining whether the imputations were defamatory are well settled. They are that the court must consider whether the publication had a tendency to lead ordinary reasonable people to think less of the plaintiff: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 467, [5] and [60] (French CJ, Gummow, Kiefel and Bell JJ).

12. In JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467, Thawley J explained at [387] (citations omitted):

“An imputation is defamatory of a person if it would cause the ordinary reasonable reader to think the less of the person when applying the ordinary reader’s general knowledge and their knowledge of standards held by the general community.”

2.2 Did the imputations arise?

2.2.1   Email dated 23 July 2019

13. This was an email ^[1] with the subject matter “Re: STRATA COMMITTEE – THE OWNERS – STRATA PLAN 73167” addressed to nine email addresses, including that of the plaintiff, belonging to other unit holders. The body of the email reads:

“Janette,

I do not have time now to respond to you rants. But I promise, I will reply to you. It is a big job, it takes time because it is a long reply. It is not a matter of one email or two. You said so much about me without being able to prove anything at all. Just rants and gossips. If you are not able to prove what you have been saying about me, guess what? You only have shown to every one you are a professional liar by nature.

Regards,

Pietro”

(Emphasis added)

1. Exhibit 1, p 123.

14. The plaintiff claims that there are two defamatory imputations in this email. The first is: the plaintiff is a person who rants and gossips without proof of the said rants.

15. The ordinary reader of this email would not read or understand it to convey this imputation. The plain meaning of the words “just rants and gossips” concerned what the plaintiff wrote rather than anything about her.

16. The second imputation claimed is: the plaintiff is a professional liar by nature.

17. While this email is to be considered with a degree of loose thinking on the basis that, as an email, it is likely to be read quickly, I am not satisfied that this imputation is conveyed. The important lead up to the impugned words suggests a hypothetical situation (“If you are not …”) rather than anything presently concrete. The plaintiff submitted that this was not hypothetical, but when read with the preceding sentence (“…without being able to prove anything…”) it was a rhetorical flourish. That is a lawyer’s approach to the email and contrary to the principles set out above.

18. If, contrary to my view, these imputations did arise, I would consider them defamatory. A statement that a person is a liar, or worse, a professional liar, would lower that person in the eyes of the members of the general community. The same applies to a person who rants and raves without proof.

2.2.2   Email dated 27 August 2019 ^[2]

2. Exhibit 1, p 124.

19. The full text of this email is set out as Schedule A to these reasons. The lines are numbered as they appeared in the plaintiff’s written submissions for ease of reference. The plaintiff claims that 21 defamatory imputations were conveyed by the publication of this email.

1. The plaintiff has little respect for the Strata legislation, has a persistent sense of selfishness and has wasted strata monies (page 1, lines 24-25).

   (a)   This imputation consists of three separate, but cumulative meanings, each of which is said to qualify the plaintiff’s character. In light of that, I find that the imputation does not arise. While there is the clear meaning that the plaintiff has little respect for Strata legislation and similarly that she has been persistently selfish, it is not clear at all that the ordinary reader would understand that she has wasted strata monies. The text says that “we” have wasted strata monies. The difference goes to the control over the money and so is one of substance. As one element of the imputation does not arise, the whole imputation as pleaded is not conveyed.

   (b)   If, contrary to my view, the imputation did arise, it would have been defamatory by reason of the inclusion of the plaintiff’s persistent selfishness.

2. The plaintiff (referred to as owner of Unit 8) has performed suspicious and proven breaches of the strata legislation (page 1, line 31).

   (a)   One difficulty with this imputation is that the word “suspicious” is jarring in the context of the reference to “breaches”. There is a latent ambiguity in the word that makes it difficult to understand what is meant by it.

   (b)   A lawyer would easily resolve the question by reading “suspicious” to mean “suspected”: this contrasts logically with the “proven breaches” in the sentence. This is not the only malapropism that appears in the emails and is a matter I will return to in more detail when dealing with the questions of qualified privilege and malice. However, reading the email loosely, the ordinary reader, although perhaps surprised by the word “suspicious” would understand the email to convey the imputation relied on.

   (c)   That said, even though the word “suspicious” carries a negative connotation I do not accept that, in the absence of any details of the breaches, this imputation has the tendency to lower the plaintiff in the eyes of the ordinary reasonable person. The quality and number of breaches would be necessary to be confident of the inference arising from them. Leaving clothes on the communal clothesline is not the same, for example, as persistently parking in the visitors’ car spaces.

3. The plaintiff undertook major renovations to the bathroom of Unit 8 without approval from the Owners Corporation and without a required special resolution (page 1, lines 39-44).

   (a)   The words in the email relied on by the plaintiff are prefaced by the words “It is strongly believed”. Those words may convey no more than a belief and not that the thing believed is true: that depends on the context, see Lewis v Daily Telegraph [1964] AC 234, 285 (Lord Devlin); Favell, 1720 at [12] (Gleeson CJ, McHugh, Gummow and Heydon JJ). While the qualification of the belief “strongly” supports the plaintiff’s contention, I do not think that the imputation pleaded is conveyed. Essentially that is because the balance of the paragraph concerns ongoing investigations into the allegation.

   (b)   If, contrary to my view, the imputation was conveyed, it was defamatory because of the nature of the breach alleged. The word “major” undermines the defendant’s submission that the lack of knowledge of a contravention in the imputation meant that there was no defamatory condition extended to the plaintiff.

1. The said unauthorised renovation was carried out by unlicensed persons as shown by leaking of the shower requiring repair (page 1, lines 46-47).

   (a)   This is an awkwardly framed imputation, again with two elements. The second element (“as it shows …”) merely represents an asserted basis for the major premise (“unlicensed person/s”). Importantly, though, it is not the only basis for that premise, but rather, only one of two: the second being “The same shower started leaking again” after it was repaired. In light of that, the pleaded imputation is not what would be conveyed to the fictional ordinary reader. In any event, it is not defamatory: the fact that an unlicensed person carries out work says nothing about the character of the owner of the unit without something more, especially some knowledge of that fact.

2. The plaintiff allowed her tenant sons to keep a large dog in her unit without approval from the strata committee (page 2, lines 28-29).

   (a)   This meaning is not conveyed by the text of the email. The clear import of the text is that she, as owner, did not get approval before allowing her sons to keep a large dog in the unit. The pleaded imputation extends well beyond that and the extended meaning is not conveyed.

   (b)   If I am wrong about that, I would find that it was defamatory. The real sting is in the description of the dog as large. To allow this, without approval, suggests an anti-social attitude that would tend to lower the plaintiff in the eyes of the hypothetical ordinary person.

3. The plaintiff allowed her tenant sons to physically subdivide her car space and keep one side padlocked for a year (page 2, lines 31-32).

   (a)   This imputation is the ordinary meaning of the text, however there is nothing defamatory about it. There is no suggestion in it that it was in breach of rules or was suggestive of any characteristic of the plaintiff that might lead the reasonable reader applying general community standards to think less of her.

4. The plaintiff met with Strata without inviting other members of the strata committee and began a collusion, corruption or conflict of interest between Strata and herself (page 2, lines 43-45).

   (a)   The reference here to “Strata” is to the Strata Manager, All Strata. The difficulty with the pleaded imputation is the disjunction between the three critical words “collusion, corruption, or conflict of interest”. That disjunction creates a number of ordinary meanings conveyed by the text and means that I cannot be satisfied of the single meaning conveyed.

   (b)   If I am wrong about that, the imputation is clearly defamatory.

5. The plaintiff and the Strata Manager, Jenny Maughan are two misleading people and are responsible for wasting $3,880 of strata monies (page 2, lines 57-58).

   (a)   The words relied upon are prefaced by a reference to a statement by the plaintiff concerning the qualifications required to handle fire resistant material and then by the words: “Until (the plaintiff) … give me this response I consider”. The detail in the prefatory material makes the implication of fact rather than opinion quite clear; however, there are two quite distinct imputations: misleading and responsible for wasting. That makes it difficult to ascertain a single meaning and even more difficult to find a defamatory meaning. I do not think that either, or both, qualities of misleading and wasting money would tend to make the ordinary person think less of the plaintiff in this context.

6. The plaintiff is fully responsible for wasting $8,005 of strata money for the bathroom renovation (page 3, lines 1-3).

   (a)   This imputation is not conveyed by the text because it omits the condition or the words relied on:

   “… unless Janette can show evidence of approval by the OC for the bathrooms renovation”.

   The plaintiff argued that this imputation was defamatory because wasting money is something a member of the strata committee should not be doing. However I do not accept that the ordinary reader would understand that inference from the imputation, even with the loosest of thinking. There is no suggestion anywhere, implicit or otherwise, that the purported renovations occurred when the plaintiff was a member of the committee. If it was conveyed, the imputation was not defamatory.

7. The imputation was not pressed.

8. The imputation was not pressed.

9. The plaintiff has failed to disclose the name of a resident who is accessing footage of the security camera and passing it on to her agent (page 3, lines 14-15).

   (a)   While this imputation is conveyed by the words relied on, it is not defamatory. The plaintiff submitted that the defamatory nature of the imputation arose from the obligation to disclose matters of such importance as security and that the failure to comply with that obligation suggested a collusion, cover up or involvement in keeping the identity concealed when one should not. That is, as counsel for the plaintiff conceded, a long way from the pleaded collusion and I am not satisfied that the ordinary reader would take it that way and so think anything less of the plaintiff.

10. The plaintiff lied about receiving advice from The Entrance Police that the defendant should not be included in the distributed emails (page 3, lines 21-22).

    (a)   The critical words in the text are “I must conclude that Janette lied”. The clear implication from that is that the plaintiff did lie. However, lying about the reason for blocking someone’s emails is so trivial that, while it might cause someone to raise their eyebrows, it would not have the tendency to make the ordinary person to think less of her.

11. The plaintiff has wilfully and consistently breached the Strata legislation and pursued her own interest at the expense of the owners’ committee.

    (a)   Contrary to the defendant’s submission, this imputation is about the plaintiff, albeit by reference to her conduct. The implication clearly arises and given the qualities of “wilfulness and consistency attached to the breaches”, the imputation is defamatory.

12. The plaintiff has colluded with the Strata Management by passing to Jenny Maughan (Strata Manager) conversations with strata committee members (page 3, lines 26-27).

    (a)   While this imputation arises, it is not defamatory. The sting in the fact of collusion is denuded of any negative implication by the fact that it is to be understood as being only to the extent of passing on conversations. The ordinary reader would see nothing wrong with that, given that the recipient was the strata manager. The plaintiff argues that it is defamatory because it is part of the wilful and considered breach of strata legislation; however, it is not pleaded that way and the connection is not conveyed on the ordinary meaning of the text.

13. This was not relied on by the plaintiff.

14. This was not relied on by the plaintiff.

15. The plaintiff has scant regard for body corporate rules and wilfully acts in breach of them (page 3, lines 24-25).

    (a)   The further amended statement of claim alleges that this imputation arises from the text at page 1, lines 24-26 of the email: “due to little respect …”. The imputation is not conveyed by that text as there is nothing there about wilful breaches. Perhaps in recognition of that, without seeking leave to amend, the plaintiff submitted orally that the imputation came from the “magic passage” stating “I persecute you, Janette” which formed the basis for imputation number (xiv). As no leave was sought to amend, I reject the amendment. If leave were either granted or unnecessary, this imputation clearly arises in the same way (and from the same text) as number (xiv) and is defamatory for essentially the same reason.

16. The plaintiff is colluding with the Strata Manager to mislead people and waste strata money (page 2, line 57 to page 3, line 3).

    (a)   While the text clearly conveys the meaning of misleading and the wasting of money, there is nothing in it, even reading between the lines, that suggests collusion. Further, there is a disjunction between the passage at the bottom of page 2 and the passage at the top of page 3 in that the latter concerns only the plaintiff and says nothing about the strata manager. I disagree with the plaintiff’s submissions that that is only how a lawyer would read it.

    (b)   Read fairly, quickly and loosely, the ordinary reader would understand that the reference to the fire seal services at page 2, line 60 introduces a new topic, quite distinct from the strata manager.

    (c)   If I am wrong, the imputation would be defamatory because “collusion” here suggests underhandedness and secrecy.

17. This was not pressed.

18. The plaintiff is a liar and has lied about receiving advice from the police concerning the defendant (page 3, lines 19-22).

    (a)   The imputation is not conveyed. The ordinary person would understand that the plaintiff is said to have lied, but not that she is, in general, a liar. If I am wrong, it is defamatory.

    2.2.3   Email dated 13 September 2019 ^[3]

    3. Exhibit 1, p 164.

20. This email from the defendant was headed “Motions to be tabled for discussion at the AGM on 25/10/2019”. It was addressed to the Strata Manager, Jenny Maughan, and sent to her and the owners of the other units in the strata plan. There are 27 motions in the email, each with an explanatory note.

21. The plaintiff pleaded that there were 13 defamatory imputations conveyed by the email but did not press two of them at the hearing (iii) and (vi).

1. The plaintiff undertook major waterproofing works to the bathrooms soon after she took ownership of unit 8 without approval of the owners’ corporation (Motion 1, page 1).

   (a)   The pleaded imputation was amended at trial with leave, omitting the words “should be required to show evidence of approval” and inserting “without approval …. corporation". The imputation, as amended, is not conveyed. What is conveyed, reading between the lines, is that there is a suspicion that no approval was given to work undertaken by the plaintiff. Without more, that imputation is not defamatory. There is no suggestion anywhere that the plaintiff was a member of the Executive Committee at the time the work was undertaken, or that she knew that approval was required but went ahead anyway.

2. It is highly probable the waterproofing works abovementioned may have been incorrectly executed or even carried out by an unlicensed person (Motion 2, page 1).

   (a)   The imputation conveyed by this motion is largely that there is a suspicion that works may have been carried out by an unlicensed person, not that they were. No basis is given for that suspicion and so the imputation does not rise to one of fact. In any event, there is no imputation of knowledge pleaded (or one that is conveyed) and so the imputation is not defamatory. Absent a mental element, it is unlikely that anyone would think less of a person who undertakes work that happens to have been carried out by an unlicensed person.

3. Not pressed.

4. The plaintiff should reimburse $2,145 to redo waterproofing leaks because she did not use a licensed plumber who would have a guarantee and “played for time” so that the strata manager would pay the invoice (Motion 5, page 2).

   (a)   Although only motion 5 is pleaded as the text conveying the imputation, the plaintiff in fact relies on the explanatory note. The imputation arises from neither. First, the rolled up nature of the pleaded imputation makes it difficult to be satisfied that that is the single meaning conveyed by the text. Secondly, the purposive element in the imputation “ …so…” does not clearly arise. In truth, the explanatory note itself is difficult to make sense of. It starts with an assertion that the water leak was not a strata problem, then goes to question whether the leak was repaired at all, or reading between the lines, if it was repaired, it was repaired by an unlicensed plumber. Then there was the unexplained assertion of “playing for time” before ending with the further assertion that the invoice for fixing it was only approved by the plaintiff. Even reading this closely I do not understand it. Very loosely read, the words convey the sense that the plaintiff had a leak that was not a strata issue, did not fix it for a year and then strata paid for it to be fixed. That meaning has no defamatory tendency.

5. The plaintiff should be ordered to disclose the name of a resident who is accessing footage of the security camera and passing it on to her agent because this is a serious matter of concern to the Owners Corporation and the occupants of the Scheme (Motion 13, page 5).

   (a)   Again, this imputation relies on both the motion and the explanatory note to it. Although this imputation arises it is not defamatory for the reasons given in respect of 2.2.2(xii) above.

6. Not pressed.

7. The plaintiff should be declared ineligible by the Owners Corporation to be a member of the strata committee (Motion 17, page 6).

   (a)   The imputation is simply a repetition of the words used and is the meaning conveyed by them. It would be more accurate, though, to frame it as “the plaintiff is ineligible …”, which is substantially the same. However, neither the formulations carry any defamatory sense. Even if, as contended by the plaintiff, the ineligibility is given colour by the two examples of breaches set out in the explanatory note, it is not something that may tend to make the ordinary person think less of the plaintiff. There is no mental element to the breaches, or the ineligibility: see 2.2.2(ii)(c). A person may be ineligible for election to the federal parliament because she holds dual citizenship but the ordinary person would not think less of them because of that.

8. The plaintiff allowed her tenant sons to keep for years a large dog in her unit without prior permission from the Owners Corporation (Explanatory note (1) to motion 17, page 6).

   (a)   This meaning is not conveyed by the text of the email. The clear import of the text is that she, as owner, did not get approval before allowing her sons to keep a large dog in the unit. The pleaded imputation extends well beyond that and the extended meaning is not conveyed.

   (b)   If I am wrong about that, I would find that it was defamatory. The real sting is in the description of the dog as large. To allow this, without approval, suggests an anti-social attitude that would tend to lower the plaintiff in the eyes of the hypothetical ordinary person.

9. The plaintiff “…has erected, or allowed to erect a physical structure in the middle of unit 8 car bay for which she did not have the approval by the OC, that was not constructed to any standard and was partially blocking the ventilation in the basement” (Explanatory note (2) to motion 17, page 6).

   (a)   This imputation is the ordinary meaning of the text, however there is nothing defamatory about it. There is no suggestion in it that it was in breach of rules or was suggestive of any characteristic of the plaintiff that might lead the reasonable reader applying general community standards to think less of her.

10. The plaintiff breached the Strata legislation multiple times by omitting to apply for the approval from the Owners Corporation for the major waterproofing works carried out in her Unit 8, for which was mandatory a special resolution be passed (Motion 19, Explanatory note, pages 6-7).

    (a)   This imputation is not conveyed. First, motion 19 itself, to which the text relied on, simply requests “that all reports and invoices related to works carried out in unit 8 … be tabled at the AGM”, secondly, the explanatory note is prefaced by the words “it is strongly believed”. The clear meaning to be drawn from the note is that while there is a reasonable suspicion of breaches of the legislation, more is needed to determine the issue one way or another.

11. The plaintiff carried out unauthorised works to her unit which caused leaks and damage and wrongfully caused the strata manager to pay for the damage from the Owners Corporation funds (Motion 2, page 1 and motion 5, Explanatory note, pages 2-3).

    (a)   This pleaded imputation is patched together from two separate motions which deal with work undertaken in respect of a water leak in the plaintiff’s unit. The first motion (2), is the subject of a separately pleaded imputation, number (ii), which I have already dealt with. The problem with that imputation is compounded by a number of matters. First, the second motion (5) consists of a series of assertions that are difficult to make sense of. Secondly, even if the separate assertions conveyed a particular meaning, taken together, they do not matter. They carry a series of imputations.

    (b)   Most importantly, given the separation of the two motions, there is no imputation that the words referred to in motion 5 were “unauthorised”. That is inconsistent with the assertion in that motion that “we do not have any records that the water leak was repaired by the owner of unit 8”.

12. The plaintiff is wrongfully failing to assist the Owners Corporation in relation to unauthorised surveillance footage (Motion 13, page 5).

    (a)   This motion is the subject of 2.2.3(v) above. There is no imputation of wrongdoing here. Rather, the meaning conveyed is simply that it would be in the interests of the Owners Corporation and the occupants for the plaintiff to reveal what she knows about access to the security camera footage.

13. The plaintiff needs to disclose the basis for the statements about Owners Corporation issues because she cannot be believed unless she provides proof to support it (Motion 14, page 5).

    (a)   This imputation is not carried. The meaning of the text is that the author could not find anything to support an assertion made by the plaintiff about the qualifications necessary for handling fire resistant material. That meaning says nothing about the plaintiff’s character.

    2.2.4   Email from defendant dated 3 October 2019 ^[4]

    4. Exhibit 1, p 187.

22. The “plaintiff has breached the Strata legislation and the by-laws of the scheme multiple times”.

1. While this imputation is conveyed, it says nothing about the plaintiff that would lower her reputation under general community standards. As I have explained above, statements of breaches of laws and by-laws, without more, are not generally held as something going to a person’s character.

2.2.5   Email from defendant dated 5 October 2019

23. This email relates to “documented history shows [the plaintiff] has breached the Strata legislation and the by-law of the scheme several times”.

1. For the reasons given in respect of 2.2.4(i), this is not defamatory.

3. Qualified Privilege

24. The next issue is whether the publications by the defendant were each made on an occasion of qualified privilege. If it was, there is a question whether the publication was actuated by malice.

25. The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it: Roberts v Bass (2002) 212 CLR 1 at 26, [62]; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at 372-373 [9]-[10] (Gleeson CJ, Hayne and Heydon JJ), 385 [53] (McHugh J), 416 [136]-[137] (Gummow J). This protection is known as qualified privilege. The privilege afforded to these publications is qualified by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protect the making of the statement: Roberts loc.cit.

26. The first step in considering a defence of qualified privilege is to identify the privileged occasion: KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28 at [39] (Payne JA, Basten JA and White JA agreeing); Murray v Raynor [2019] NSWCA 274 at [22] (Payne JA, Macfarlan JA and Emmett AJA agreeing).

27. The defendant identified the relevant occasions here as being a communication concerning the management and administration of the property at Lakeside, The Entrance, New South Wales. There is no question that a member of the strata committee of an Owners Corporation has an interest in the strata title or that the other owners of lots in the title have a corresponding interest: Murray. The question is whether each communication was sufficiently connected to that relevant occasion to give rise to the defence of qualified privilege: Bashford at [27]-[30] (Gleeson CJ, Hayne and Heydon JJ), [191]-[196] (Gummow J). This is an objective test and one in which a narrow view should not be taken: Cush v Dillon (2011) 243 CLR 298 at [22].

24. The plaintiff argues that, even if the statement were made on occasions, they were actuated by malice and so are not protected by the privilege. That is a serious allegation and the onus on the plaintiff is a heavy one: KSMC Holdings at [61]. It was explained by the plurality in Roberts at [76]:

“Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motives than duty or interest for making the publication. If one of those matters is proved, it usually provides a pressure for inferring that the defendant was activated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was motive is ordinarily conclusive evidence that the publication was activated by an improper motive. But, leaving aside the specific case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence on the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and activated the publication.”

29. Before turning to the facts concerning the claim of qualified privilege it is useful to note briefly the statutory context.

30. Strata schemes such as the one relating to the property at The Entrance are governed by the Strata Schemes Management Act 2015 (SSMA). The SSMA provides that the owners of the lots in a strata scheme constitute a body corporate (“Owners Corporation”: s 8) which is responsible for the management of the Scheme for the benefit of the owners, and amongst other things, is responsible for managing the finances of the scheme and maintaining and repairing the common property of the scheme: s 9. The Owners Corporation may be assisted in carrying out that responsibility by the strata committee and a strata managing agent: s 11. Lot owners may be elected as members of the strata committee at each AGM of the Owners Corporation (s 30). Decisions of the strata committee are taken to be decisions of the Owners Corporation (s 36).

31. Each member of the strata committee has a duty to carry out his or her functions for the benefit of the Owners Corporation and with due care and diligence: s 37.

32. Strata managing agents are provided for in Pt 4, Div 2 of the SSMA. Notably, the SSMA provides that the Owners Corporation may delegate all, some or any of its functions to a strata managing agent (s 52). Anything done by the strata managing agent under such a delegation is taken to have been done by the Owners Corporation: s 53.

33. An AGM of the Owners Corporation for the property was held on 20 October 2017. At that meeting the defendant and plaintiff were both elected to the strata committee together with the owner of unit 9, Mario Nikoletic. They (together with a number of other unit owners) were re-elected to the strata committee at the AGM held in 2018 and remained on as members throughout the period to 25 October 2019. The strata managing agent acting for the Owners Corporation at that time was All Strata. The employee conducting the managing role was Jenny Maughan.

34. Against that statutory and factual background, the broad context of each of the publications was that the defendant and plaintiff were both owners in the strata plan at The Entrance and members of the strata committee in respect of that plan.

35. The more particular context of each of the emails in which the impugned statements were published was as follows.

23 July 2019

36. On 4 July 2019, All Strata wrote to the unit owners informing them that its management agreement expired on 4 October 2019, prior to the next scheduled AGM. It explained that, for that reason, it called a meeting of the strata committee to determine whether to extend the agreement up to the date of the AGM. All Strata indicated that its re-appointment would then be an item for consideration at the AGM.

37. There followed some email correspondence about this before the defendant wrote to All Strata saying that it was a matter for the committee to decide when to call meetings, not All Strata. After a response from All Strata, the defendant wrote indicating he would vote against the proposal and try to convince the Owners Corporation to self-manage the scheme. One of the reasons he gave was that there was a lack of transparency on the part of All Strata.

38. On 19 July 2019 the defendant than purported to call a meeting of the strata committee to consider a number of motions including to reject All Strata’s notice of meeting. Over the course of that day there was email correspondence between the plaintiff and defendant (the defendant copying in the other strata committee members) about the legality of the defendant’s notice. The plaintiff increased the broadcast of emails to include other unit holders and All Strata (email at 1:50pm).

39. When the defendant asked why she did this (at 4:18pm) the plaintiff replied on 23 July at 3:05pm, that he could not dictate whom she emailed. In the same email she went on to make allegations about what the defendant was doing concerning matters relating to the strata committee and the management of the scheme in particular. It was in reply to this email that the defendant wrote to the plaintiff, copying in the other unit owners but not including All Strata, (the email of 23 July 2019) which was complained of as defamatory.

40. That context shows that there was a direct and immediate connection between the email and the management of the strata scheme. The very issue dealt with was whether the scheme should be continued to be managed until the AGM (or at all) by All Strata.

27 August 2019

41. This email followed from the issues just dealt with. By the time it was sent, the AGM had been set to take place on 25 October 2019. All Strata had had its management contract extended until 4 January 2020 and its further engagement was an issue for decision at the AGM.

42. On 26 August 2019, Julian Saltmarsh, another member of the strata committee, emailed the defendant (copying in the other members) asking him to organise a meeting to discuss matters to be raised at the AGM. The email complained of was sent then, in anticipation of the AGM where the management of the scheme was to be decided and, in particular, the issue of who was to manage the scheme. After an introduction referring to the AGM, the email has a heading “Then why is the levy so high?” Under that heading the email effectively states that the plaintiff’s actions and attitude has led to this by wasting strata money. Each of the statements made in the email relates to that assertion. Understood that way, there is a direct connection between the occasion of privilege and each of the statements made in the email now complained of.

43. The fact that the email raised the past issues (the dog and the garage) does not sever that connection. Those, too, concerned issues of management and in those instances, went to who should be in control of it.

13 September 2019

44. This email was sent to All Strata with a request that the motions in it be included in the Agenda for the AGM on 25 October 2019. It was sent to the unit owners as well. While there was an issue at the hearing with one of the addresses ([email protected]), the plaintiff’s own pleadings allege that this email was sent to “the plaintiff and other unitholders” and I am satisfied that this address was no more than a business address for one of those other owners.

45. Most of the motions directly concern the question of strata expenses and so thus follow on from the previous email. The motions concerning the plaintiff’s dog and garage were also raised in the previous email and, for the reasons I have given above, this whole email falls legitimately within the scope of the privileged occasion.

3 October 2019

46. On 26 September 2019 All Strata wrote to the members of the strata committee (except the defendant) forwarding an advice it had received about the defendant’s email of 13 September 2019. This advice came from Dr Adrian Carr who opined that the defendant’s email may be defamatory. It is not clear what expertise Dr Carr had to give that opinion. In any event, a majority of the members of the strata committee (other than the defendant) appear to have decided to direct All Strata not to include the motions in the AGM’s Agenda and on 3 October 2019, All Strata informed the defendant of this.

47. On the same day another owner and member of the strata committee, Julian Saltmarsh, replied all to the defendant’s email. In his reply, Mr Saltmarsh expressed concern that prospective purchasers may be concerned by the motions and gave his opinion (without alteration):

“…

I just don’t believe the agm in the arena. You have these concerns which is great. Your motions are for an arbitrator like NCAT to investigate and make judgement. …”

48. He then encouraged the other owners to express their views. The defendant’s email of 3 October 2019 was a response to Mr Saltmarsh’s email. It directly addressed the question of the appropriate forum for his complaints as raised by Mr Saltmarsh.

49. In that context, this email falls well within the protected occasion of communications regarding the management of the strata scheme.

5 October 2019

50. On 4 October 2019 the plaintiff sent an email addressed “To all owners” of units in the Strata Scheme. In it she responded to comments in the defendant’s previous emails which are described as “defamatory remarks toward myself Mrs Janette Gough of unit 8, with his main focus for contention being the renovations of the bathrooms”.

51. Ms Gough asserted that she had not renovated the bathrooms since she purchased the property and attached photographs which she said were taken in 2005 and 2006. Finally she requested the defendant to withdraw his motions “in an attempt to mitigate damages” and asked the defendant to attend a meeting prior to the AGM.

52. The defendant’s email of 5 October 2019 is a response to this email. In it he states:

“I just want to state no one should breach the Strata Law or the By-Law of the scheme or take advantage of the kitty. We should all look after the financial affairs of our Strata account and keep a close eye/query all expenses in order to maintain a healthy account.”

53. This passage in the email is important. It reiterates the main concern expressed in each of the matters complained of: the expenses of maintaining the strata scheme including the management of those expenses by the managing agent. This email is closely connected to the privileged occasion.

4. Malice

54. In her amended reply, the plaintiff relies on the following matters to establish malice: inflammatory language, extravagant allegations made, failure by the defendant to verify the accuracy of information in each of the matters complained of prior to publication and that each publication was part of a campaign of denigration and persecution, the purpose of which was to bully, harass and injure the plaintiff in her feelings and her reputation.

55. Some of this is repetitive of the matters arising in respect of the issue of whether qualified privilege arose. However, as the point here is different, some repetition is necessary.

56. In respect of the first matter complained of, the plaintiff argues that the following phrases were inflammatory language:

1. “I do not have time now to respond to your rants”;

2. “just rants and gossip”;

3. “you only have shown to everyone that you are professional liar by nature”.

57. The plaintiff relies on the following expressions of the second matter complained of:

1. “due to little respect for Strata Legislation and for the By-law of the scheme”;

2. “her persistent sense of selfishness”;

3. “suspicious and proven breaches of the strata legislation”;

4. “waited about one year, to navigate her breach of Strata Legislation at the expenses of OC”;

5. “Australia Post has been complaining bitterly when trying to deliver medical supplies”;

6. “not mention what could have happened if emergency services personnel required to have urgently access to a specific unit”.

58. In respect of the third matter she relies on the following:

1. “Motion 1: That the owner of unit 8, Ms Janette Gough, shows evidence of approval by the Owners Corporation for the major waterproofing works she undertook in the bathrooms soon after she took ownership of the unit”;

2. “Motion 2: That it is highly probable that the waterproofing works above mentioned may have been incorrectly executed or even carried out by an unlicensed person”;

3. “Motion 3: That the owner of unit 8, Ms Janette Gough, shows evidence of the plumbing report and invoice issued by the persons who have carried out the installation of the spa, the shower in the en suite and the bath tub in the bathroom”;

4. “Motion 4: That the owner of Unit 8, Ms Janette Gough, shows evidence of the waterproofing works referred to the owner of unit 8, as non Strata problem, following an investigation by AMPS Plumbing on 20/01/2017 and 22/01/2017”;

5. “Motion 4: That the owner of unit 8, Ms Janette Gough, reimburse the amount of $2,145.00 related to invoice No: 193, dated 04/09/18”;

6. “Motion 13: That the Owner of unit 8, Ms Janette Gough, reveal the name of the resident who is accesses (sic) the footage of the security camera of the scheme and passes it on to her real estate agent”;

7. “Motion 14: That the Owner of unit 8, Ms Janette Gough, tells the OC where she learnt that to handle fire resistant material it is mandatory to possess a specific qualification”;

8. “Motion 17: That the Owners Corporation declares ineligible as a member of the Strata Committee the owner of unit 8, Ms Janette Gough”;

9. “Motion 19: That all reports and invoices related to works carried out in unit 8, from the time Ms Janette Gough took ownership of her unit, be tabled at the AGM”.

59. With the exception of the language in the first matter and the reference to “persistent sense of selfishness” in the second matter, none of this is inflammatory language and even that is relatively mild. The highest that this point goes is that the language could have been more tempered and temperate.

60. In final submissions, the plaintiff did not press the arguments that malice was shown by the extravagance of the above statements or the fact that she failed to verify the truth of the assertions the defendant made. However, she did maintain the argument that a series of emails established that the matters complained of were part of a campaign of denigration and persecution of the plaintiff by the defendant.

1. Email dated 13.11.17, 8.37pm to plaintiff and Mario Nikoletic

This is a comment to the other strata committee members on an email and other complaints about the plaintiff secured by the defendant from other owners. It does no more than state a view about the way that the strata committee operates.

2. Email dated 27.2.18, 7:34pm to plaintiff and Mario Nikoletic

This email followed from a complaint from owners about the fact that a number of trees had been cut down to nothing more than stumps (as shown in Exhibit 4). In a remarkable series of emails the plaintiff responds quite extravagantly to being criticised, revealing amongst other things that she keeps a “folder of victimisation”. In contrast, the defendant’s email is “tempered and temperate” and does little more than reflect the attitudes of the owners whose units were affected by the pruning.

3. Email 20.3.18, 5:14pm to plaintiff and Mario Nikoletic

This email is a response to the plaintiff’s email where she insists that the minutes of the December 2017 meeting show that the pruning was approved and asserts that “previous committees have not followed strata legislation” in this respect. She finishes by accusing the defendant of wasting her time and strata money, both unfounded allegations. The defendant apologises in his email for overlooking the excerpts of the minutes (not realising, as it turned out in evidence, that the minutes did not show any approval). The balance of the email addresses the strata legislation issue raised by the plaintiff. Notably, this includes a reminder to the plaintiff of the smell of the dogs in the unit complex that had been complained of by owners for some time. As a responsive email, this hardly constitutes a course of bullying and harassment. If there was any of that occurring at this stage, it was coming from the plaintiff.

4. Email 20.3.18, 8:32am to Mr and Mrs Barwick

The plaintiff placed significant weight on this email in oral submissions, where it was given as an example of the defendant’s efforts to “belittle her, to show his ill-will towards her, to embarrass her, to drag up as much dirt as possible, old dirt too …”.

The email is a response to the Barwicks’ email of 25 March 2018 in which they express concern about the infighting between committee members and owners about the pruning of trees and “obvious personal conflict from years gone by” (clearly a reference to the dog smell). The purpose of the email was that the pruning was approved and done, so should be left behind and focus returned to important matters such as why the sinking fund has no money. In his reply email, the defendant suggests (correctly) that the committee did not approve the pruning of the “very useful and beautiful trees to a trunk”. In a direct response to the Barwicks’ concern about the fund, the defendant writes that they are not the only ones. At this point he gratuitously explains that, while the plaintiff was now worried, she was not so worried earlier and indeed was responsible for “the smell of urine and turds of her tenants big dog kept in her unit for years with her consent”.

This email shows that there was a high level of animosity between the plaintiff and the defendant. It went both ways. However, I am not satisfied that this actuated either this email or any other email. This was a direct response to the Barwicks, not an unsolicited attempt to “poison the well” against the plaintiff as she contends.

Importantly, even the gratuitous criticism of the plaintiff is directly relevant to the management of the strata scheme. It was not just an unrelated personal slur aimed at nothing more than belittling the plaintiff in the eyes of the other unit holders.

5. Email 6.9.18 to All Strata and Mario Nikoletic

In this email the defendant seeks access to the plaintiff’s unit “for inspecting bathroom works currently in progress or recently completed”.

The plaintiff argues that this shows malice because it asks for something that the plaintiff has no right to know about. I disagree. The defendant, as chair of the strata committee of a scheme that is significantly short of funds, has every right to know about the way in which strata funds are spent. One issue addressed here was whether the strata was responsible for the plumbing expenses incurred in respect of the bathroom in Unit 8. The defendant was not entitled to access the unit without permission, but he was asking for that permission.

6. Email 11.9.18 to All Strata

All Strata’s response to the 6 September 2018 email was that waterproofing of unit 8 was approved in “March 2018 but was not carried out until now due to lack of funds”.

In the 11 September 2018 email, the defendant queries a perceived difference in the treatment of invoices concerning Unit 8 and asks for all invoices for repairs to Unit 8.

The plaintiff’s argument that this was part of a campaign against her ignores the fact that the request is for all invoices concerning the unit, not just those in the period when the plaintiff owned Unit 8. That, added to the fact that there was a genuine issue about the finances of the scheme, is not suggestive of any ongoing campaign to belittle the plaintiff.

7. Email 18.9.18 to Executive Committee members to access unit 8 to inspect

This is another email from the defendant concerning the works on the bathroom in Unit 8. At the end of the email, the defendant writes:

“Zac, as Janette apparently blocked my emails and Mario seems to ignore everything and everyone, would you please forward this email to Janette? Thanks.”

The plaintiff claims that this shows malice because it is an attempted effort to avoid direct contact with him and is done through a person who is not a member of the committee. I reject that argument. It is a matter for the plaintiff whether she blocks the defendant’s emails (as she had done since mid-March 2017), but the defendant is entitled to make an effort to ensure that communications about committee matters are conveyed to her. It makes no difference that it was through Zak and not All Strata, as he is an owner and, as is apparent from the email, other channels are not successful.

8. Email 20.12.18, 11:12am re camera and the plaintiff

This is an email to the strata committee members about security cameras. The first part of it deals with the complaint by the plaintiff that someone has accessed the footage for personal use. The defendant’s request is that the plaintiff tell them who it is. I see nothing unreasonable, vindictive or belittling about that request.

9. Email 6.6.19, 1:25pm to All Strata

This is a reply to an email that does not appear to be in the evidence. In light of that, it is difficult to understand the precise context in which it was sent. However, the subject heading “EXT” suggests that it concerns the proposed motion to extend All Strata’s contract. That is supported by the subject matter of the email which predominantly addresses All Strata’s conduct. Although the email mentions the plaintiff, it does not address her conduct but that of All Strata. I can find nothing in it to suggest that it is part of a course of conduct directed at the plaintiff.

10. Email 10.7.19, 11:59am to plaintiff

On 7 and 9 July 2019 the plaintiff wrote to All Strata asking it to check certain matters about the electrical contracting. On 10 July 2019, the defendant wrote:

“Janette,

Do you know how much monies the OC has wasted because of your useless requests? Are you working for Strata or the OC?”

It is not clear whether this was sent to anyone other than the plaintiff. It is clear that it was not a tempered response and showed ill-will and loss of patience. However, the plaintiff’s reply was equally barbed, accusing the defendant of wasting money. This was sent to the members of the executive committee and All Strata.

11. Email 10.7.2019, 8pm to plaintiff

This is the reply to the plaintiff’s reply to the defendant’s email sent at 11:59am on 10 July 2019. As such, where the threat to “expose [the plaintiff’s] irresponsible attitude” certainly shows ill-will, it is in the context of a two way slanging match rather than an ongoing course of bullying and harassment.

12. Email 19.7.19

This is a response to the plaintiff’s email (said to have been on legal advice) that a meeting called by the defendant was invalid. In it, he suggests that All Strata (which proposed a meeting to extend its contract) was conflicted in any advice it might give. There is an underlying ill-will apparent in the tone of the email, but nothing is said to belittle or humiliate the plaintiff.

13. Email 23.7.19 (1^st matter complained of)

Once again, as I have explained above, this email is in response to accusations made by the plaintiff about the defendant. It shows ill-will but that is not the actuating motive of the email.

14. Email 27.8.19 (2^nd matter complained of)

The plaintiff says that the true purpose of this email was to injure the plaintiff and that this is revealed by the third last paragraph:

“I persecute you Janette, because you have wilfully and consistently breached the strata legislation … your credibility reached basement level long time ago.”

Certainly, the use of the word “persecute” is strong; however, it is equally indicative of a misunderstanding of the word. The evidence from the plaintiff was that the defendant’s accent made him difficult to understand. The reference from that is that English was not his first language. That reference is supported by other oddities in his writing (e.g. It is like to ask a fox the question: did you ate the chickens? ^[5] ).

5. Exhibit 1, p 119 and “suspicious breaches” at Exhibit 1, p 24.

In light of that, I am not satisfied that this paragraph reveals that the said motive for the email was anything more than a concern for the running of the strata scheme.

15. Email 1.9.19 to owners in strata plan

This email was a follow up to the previous email and concentrated on the conduct of the managing agent and the defendant’s concern that they had wasted a lot of the owners corporation money. To the extent that the plaintiff is mentioned, it is ancillary to this main concern. Given the focus of the email, it was clearly actuated by the concern for the management of the scheme rather than any malice.

16. Email 13.9.19 to All Strata and owners in strata plan (third matter complained of)

In this email the defendant asks All Strata to include a number of motions in the agenda for the AGM. The plaintiff argues that the motions are so “high and mighty as to be ridiculous”. The fact that two of them concern the matters of the dog and the garage (old issues) reveal that the defendant is trying to poison and attack the plaintiff at every opportunity, that this was nothing about management of the scheme but rather about venting his ill-will and spite. I do not accept any of those submissions. It is true that the motions are drafted oddly (eg “That it is highly probably that …”), but the defendant is no lawyer and is using a language that is not his first.

Further, some of these issues may be old, but the defendant has raised them by point for some time and has had no resolution of them. Persistence does not equate to bullying and harassment in those circumstances. The references to the dog and garage, too, are old, but as I have already found, they are explanatory of the motion to have the plaintiff declared ineligible to be a member of the strata committee. Clearly enough, what he meant was that she not be re-elected and the reason is that she disregards the strata law. They are legitimate reasons for the defendant’s suggested motion and something he thought sufficiently serious as to raise it for formal consideration at the AGM.

17. Email 3.10.19 to owners in strata plan (fourth matter complained of)

The email of 13 September 2019 set in train a series of emails between the plaintiff and others not including the defendant. Some of this correspondence concerned the legality of the defendant’s conduct. As already mentioned, on the morning of 3 October, All Strata informed the defendant that a majority of the strata committee (obviously not including the defendant who was unaware of any vote) had decided not to include his motions in the agenda for the AGM. Then on the same day one of the members of the strata committee who had been involved in the correspondence, Julian Saltmarsh, wrote to the defendant by email. Mr Saltmarsh also copied in the other unit owners. In it, he suggested amongst other things that an AGM was not the appropriate forum for the defendant’s complaints.

The present email (sent a number of hours later) was a response to this email, and is addressed to Mr Saltmarsh (and copied to the other recipients).

The email repeats the concerns that drove the proposed motions and then directly addresses the way in which the motions were dealt with. In other words, this was not actuated by anything other than the defendant’s legitimate desire to ventilate his concerns about the management of the Strata Scheme.

18. Email 5.10.19 (fifth matter complained of)

On 4 October 2019 the plaintiff emailed the unit owners saying that the defendant had defamed her, principally because of the bathroom renovations. She attached two photographs with date stamps showing the bathrooms in the condition when she bought them and, by implication, in the same condition at the time of the email (and a third photograph, being a brochure). The email of 5 October 2019 relied on for malice is in response to that email. The plaintiff says that the defendant’s failure to apologise and withdraw his motions in this email are indicative of the overwhelming and driving desire to belittle the plaintiff. That is plainly not the case.

The defendant does not back down from his assertions of strata law breaches but the photographs were not sufficient, by themselves, to compel him to. The defendant had never been in the plaintiff’s unit and did not know what the bathrooms looked like. His request had been denied. All he had were invoices for work done to the bathrooms including to repair leaks. In any event, the text of the email plainly states the real concern of the defendant insofar as it concerns the plaintiff (and anyone else): breaches of the strata laws. He wrote:

“I just want to state no one should breach the Strata Law or the By-law of the scheme...”

19. Email 11.10.19 to owners in the strata plan

In this email the defendant wrote:

“Following your email with the three photos, the two bathroom and the brochure with date of purchase, I immediately have initiated new investigation regarding the related issue.

It wasn’t you who may have breached the strata legislation but the owner whom you bought the unit from, whose name is Janette as well.

So my sincere apology about this incident.”

The defendant ends the email by withdrawing motions 1, 2 and 3. Of course, he need not have done that because none of the motions were put on the agenda.

The plaintiff says that this was a naked attempt to hide the fact that there was no basis for complaint against the plaintiff, otherwise he would have withdrawn motions 4, 5, 7 and 19 as well.

Motions 1, 2 and 3 concerned the waterproofing works in Unit 8 and were directly and obviously affected by the photograph and the defendant’s discovery that the work had been carried out earlier. Motions 4 and 5 did not directly concern unauthorised works, but arose from suggestions from a plumber that the damage caused to the ceiling below was not a strata problem. Motion 17 concerned other possible strata law breaches. Motion 19 was directed at the approval issue. While the defendant ought to have addressed that motion, in my view, his failure to do so does not indicate any malice. The plaintiff still had a legitimate, management-focussed reason to move that the plaintiff not be re-elected.

The plaintiff also relies on this email to assert that the defendant knew the matters complained of to be false. I do not accept that that was the case. First, as the earlier correspondence makes clear, the defendant’s concerns were raised by a note from plumbers about waterproofing not being a strata issue. Secondly, his questions about this and requests for clarification, and finally an inspection of Unit 8 were met with significant resistance. Thirdly, the first time he was offered substantial evidence about the bathrooms (the photographs) he investigated and as soon as he did that, he got an answer and immediately apologised. This shows that the defendant did not know that anything he raised was false.

The plaintiff argued that the name of the previous owner was not, contrary to the defendant’s contention, called Janette and that this was a feeble excuse to cover his tracks. Again, I disagree. The defendant was told that that was the name of the previous owner. In fact, there were three previous joint owners, one of them named Janine. Given that the unit was transferred to the plaintiff in 2007, well before the defendant became a unit owner, one can easily understand the confusion. Confusion is a far more likely cause of the defendant’s mistake than malicious dissembling.

5. Conclusion

61. Overall, the emails, read and understood in their context fall well short of a course of bullying and harassment. To the contrary, they reveal an ongoing concern of the defendant to ensure, as the chair of the strata committee, that the strata scheme was properly managed and, in particular, that the strata money was spent appropriately and with the interests of all the owners in mind. His language in the emails may have appeared heated and intemperate on occasion and there is little doubt that the defendant was persistent. However, there is nothing that satisfies me that the matters complained of were sent by the defendant for any reason other than his concern for the management of the scheme. For that reason, even if all of the pleaded imputations arose and were defamatory, the defendant is protected from liability by common law qualified privilege.

62. That conclusion means that the proceedings must be dismissed. However, I will consider briefly the issue of damages in application of the general approach of trial judges in this State: see Chief Commissioner of State Revenue v Adams Bidco [2019] NSWCA 34 [3]; Gulic v Boral Transport Ltd [2016] NSWCA 269 [7]; and Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339 [74]-[75].

6. Damages

63. The plaintiff claims damages as well as aggravated damages. The plaintiff’s pleading of special damages was neither particularised nor specifically addressed in submissions and I will not deal with it. One immeasurable difficulty in assessing either, is that there were many variables in the findings that could have led to a conclusion that the defendant was liable for defamation. Not only were there very many separate imputations relied on by the plaintiff but also numerous matters put forward in rebuttal of the defence of qualified privilege. The success or failure of any one or more of these many matters will have an impact on the assessment of damages, as well as aggravated damages. Given my conclusions on liability, it is not fruitful to examine each possible variation and neither party pressed that course on me. Rather, for present purposes I will assume that each of the matters complained of contained a number of defamatory statements that fell outside an occasion of privilege.

64. The starting point is to note that s 34 of the Defamation Act 2005 requires the Court to ensure that there is an “appropriate relationship” between the harm sustained by the plaintiff and the amount of damages awarded. The remaining principles were summarised by White J in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [446] as follows:

“The parties referred to several of the leading cases containing the principles to be applied in the assessment of damages and, in addition, to Ali v Nationwide News Ltd [2008] NSWCA 183 at [70]‑[78] and to Cripps v Vakras [2014] VSC 279 at [549]‑[563] in which the principles have been summarised recently. Drawing on the various authorities to which counsel referred, the following principles can be identified as being particularly pertinent to the assessments in the present case:

(a)       Damage to reputation need not be proved as it is presumed: Bristow v Adams [2012] NSWCA 166 at [20]‑[31];

(b)       Damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment.  The harm caused to applicants by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them: Cassell & Co Ltd v Broome [1972] AC 1027 at 1125;

(c)       A person publishing defamatory imputations must take applicants as they find them.  Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant;

(d)       The level of damages should reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195, applied in John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291 at [3];

(e)       The circumstance that a respondent has not provided any apology is pertinent: Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263;

(f)       Aggravated damages are a form of compensatory damages.  They are not awarded to punish a respondent.  Exemplary or punitive damages for defamation cannot be awarded: Defamation Act 2005 (NSW) s 37;

(g)       An award of aggravated damages may be made if a respondent has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653;

(h)    The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations: Carson at 78 per Brennan J;

(i)        In awarding aggravated damages, the Court is still compensating applicants for the loss actually suffered by them as a result of the defamation but, in doing so, it may adopt the highest level of damages open as compensatory damages: Cassell at 1085.”

65. There are three purposes for an award of damages: first, consolation for the personal distress and hurt caused by the publication; secondly, reparation for the harm done to the plaintiff’s reputation; and thirdly vindication of that reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60.

66. Here the plaintiff gave evidence that she was very upset by relevant publications and devastated by the defendant’s email of 11 October 2019. She also relied on the “grapevine effect” (see Cassell & Co Ltd v Broome [1972] AC 1027), giving evidence that she had been asked by friends at the local pub about the theft of money and being told that the other owners were talking behind her back.

67. The principles governing the award of aggravated damages were discussed by Wigney J in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [721]-[727]. Critically, such damages may be awarded where the conduct of the defendant is improper, unjustifiable or lacking in bona fides: Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 [245]-[248].

68. While I found the plaintiff was a generally credible witness, I find that she exaggerated the impact of the emails from the defendant on her as well as the impact of what her friends told her in the local pub. Her evidence about this does not sit comfortably with the picture revealed by the objective contemporaneous records such as the email correspondence. In particular, that correspondence, from as early as November 2017 shows that the plaintiff was ready to respond with surprising force to any suggestion that what she was doing was not accepted. She readily attacked the defendant with very little provocation in early 2018 and was quick to seek legal advice and then to block emails from the defendant. That was well before any emails that are now complained of as defamatory. Further, she put herself forward for re-election of the strata committee in 2018 and again in 2019 in spite of what she now complains of as a program of harassment and bullying.

69. In addition to that, there are a number of matters that limit any damages that would be awarded: first, the scope of the publications was very limited. Apart from the unit holders, the defendant’s emails only went to the strata manager. I give little weight to the evidence of the grapevine effect because it was indistinct, bare and nothing in it carried any of the defamatory meanings said to have arisen from the defendant’s emails. Secondly, the imputations themselves were relatively less serious than other cases in which significant damages have been awarded. Thirdly, although the audience for the emails were other unit holders, and the issues raised largely concerned the plaintiff’s suitability for election to the strata committee, she was re-elected in October 2019. Not only that, but the emails between the plaintiff and the other members of the strata committee, which excluded the defendant, showed that, in spite of the defendant’s publication, she had a good deal of support from them and that it was the defendant whose reputation was most affected.

65. I can find no basis in the evidence to warrant an award of aggravated damages; however, if I am wrong, any award would be several thousands of dollars.

66. For those reasons, and having regard to the damages awarded in the cases summarised in the defendant’s schedule as a guide, I would award the amount of $25,000 in respect of damages and increase that to $30,000 on any finding warranting an award of aggravated damages.

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Endnotes

Decision last updated: 20 August 2021