GP v Mackenzie
[2019] ACAT 32
•15 March 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GP v MACKENZIE & ORS (Civil Dispute) [2019] ACAT 32
XD 233/2018
Catchwords: CIVIL DISPUTE – defamation – whether material is defamatory – whether the respondents are able to avail themselves of any defences – whether there should be an award of damages under the Civil Law Wrongs Act 2002
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Civil Law Wrongs Act 2002 ss 118, 120, 134-136, 139A, 139B, 139D, 139J
Residential Tenancies Act 1997 standard term 70
Uncollected Goods Act1996
Unit Titles (Management) Act 2011 ss 16, 22, 35, 47, 106, 107, 109; schs 2 and 4
Subordinate
legislation cited: Unit Titles (Management) Regulation 2011 sch 1
Cases cited:Bleyer v Google Inc [2014] NSWSC 897
Bristow v Adams [2012] NSWCA 166
GP v Mackenzie & Ors [2018] ACAT 96
Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495
Islam v Director General of the Justice and Community Safety Directorate [2018] ACTSC 323
Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
Kostov v Nationwide News Pty Ltd [2018] NSWSC 858
Lazarus v Azize & Ors [2015] ACTSC 344
P v Registrar of Firearms [2018] ACAT 74
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
Roberts v Bass [2002] HCA 57
Scott v Sampson (1882) 8 QBD 491
Watney v Kencian [2017] QCA 116
List of
Texts/Papers cited: Kim Gould, ‘Small Defamation Claims In Small Claims Jurisdictions: Worth Considering For The Sake Of Proportionality?’ (2018) 41(4) UNSW Law Journal 1222
David Rolph, Defamation Law (Thomson Reuters, 1st ed, 2016)
Tribunal: Senior Member B Meagher SC
Member E Trickett
Date of Orders: 15 March 2019
Date of Reasons for Decision: 15 March 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 233/2018
BETWEEN:
GP
Applicant
AND:
JOHN MACKENZIE
First Respondent
CAROL SHERMAN
Second Respondent
JOHN DIMITRIOU
Third Respondent
LIAM HAMBRIDGE
Fourth Respondent
DANIEL LESKOVEC
Fifth Respondent
TRIBUNAL:Senior Member B Meagher SC
Member E Trickett
DATE:15 March 2019
ORDER
The Tribunal orders that:
The application is dismissed.
The order and the reasons for decision are to be provided to the parties but, pending an application under Order 3 and subject to Order 4, are not to be disclosed otherwise.
The applicant has leave to apply to restrict the publication of, or otherwise redact details in, the reasons for decision and has 21 days from the date of receipt of these reasons to do so.
In the event that no application is made under Order 3 in that time, Order 2 will cease to apply and the reasons may be published by the tribunal in the usual manner.
….……………………………..
Senior Member B Meagher SC
For and on behalf of the Tribunal
REASONS FOR DECISION
The parties
The applicant, whose name has been anonymised by order of the tribunal, is a resident in Curtin of a unit that she leases from the Commissioner for Social Housing.
The first three respondents (R1, R2 and R3, or Respondents 1-3) are also residents of the same unit complex and were, at relevant times, the only members of the Executive Committee under the Unit Titles (Management) Act 2011 (UTMA) in respect of Units Plan 94 (UP 94), which applied to the complex.
The fourth respondent (R4) is an employee of Link Corporate Services Pty Ltd (Link), a strata management company that manages the complex UP 94. He is the person designated by Link for that purpose.
The fifth respondent (R5) is employed as a body corporate manager by ACT Strata Management Services in respect of the adjacent complex referred to as UP 93.
The claim
The applicant has sued the respondents for defamation by an application dated 28 March 2018 (the application). The claim also refers to malicious prosecution, but there is no other reference or allegation that might warrant such a description. It has not been the subject of argument before the Tribunal and has not been pressed. It can be disregarded.
The applicant seeks damages said to be $25,000 per respondent but had acknowledged, correctly, in earlier interim applications and appeals that the limit of the tribunal’s jurisdiction is $25,000 per application. A comprehensive description of the unfortunate, lengthy interlocutory and appeal proceedings is set out in the judgment of Presidential Member Symons in GP v Mackenzie & Ors [2018] ACAT 96.
In respect of Respondents 1-3, they are sued for publishing to R4 the information in letters (attached to the application), republished by R4 to the Commissioner for Social Housing, dated 9 March 2017 (Document a) and 1 June 2017 (Document b). The application does not separately allege that R4 is liable, but it must be implied that he is said to be liable for the republication, to the Commissioner for Social Housing, of the information in the two letters. It may also be assumed that the applicant alleges that R1, R2 and R3 authorised the letters and as such also were liable for the republication.
The same respondents are sued for a publication and republication to an employee of the Commissioner for Social Housing by R4 by email on 31 July 2017 (Document d).
R1 is also sued for a publication of a handwritten document sent by him to another resident (Document c).
R5 is sued for a letter he wrote to the owners of UP 94 (in which the applicant and Respondents 1-3 lived), care of Link Strata Management (Document e).
It is alleged that Document e was republished to the Commissioner for Social Housing, presumably by R4, but that is not expressly stated. On its face, it seems that the application sues R5 for the publication of Document e to R4 and for its subsequent republication. It is not expressly alleged that R4 is liable for the republication to the Commissioner for Social Housing, but we have assumed that this is intended and R4 has, in his response, dealt with that allegation.
The circulation
The application identifies a few employees of the Commissioner for Social Housing and one other resident (in respect of Document c), as having received these communications apart from the initial publications internally between the respondents.
The matter complained of and the imputations said to arise
In Document a from R4 to the Commissioner for Social Housing, dated 9 March 2017, the following is said of the applicant, who is identified as the resident of the unit rented from the Commissioner for Social Housing:
It has come to our attention that the small access door (ground level) at the end of Block 10 is locked and some of items are being stored underneath by the tenant of [the applicant’s unit number].
Document a further says “[t]he use of this space is a breach of UP94 Rules” and asks that the tenant remove the items. The letter also has a heading that refers to “Unauthorised Activity” by the applicant.
The second document, dated 1 June 2017 — Document b — is called a “Rule Infringement Notice”. It relates to “the behaviour of the resident in [the applicant’s unit number].” It refers to a belief that there is a breach of corporation rules that is likely to be repeated. Document b states “the occupier has continued their behaviour and defied requests to remove items from common areas and [is] carrying out unauthorised alterations to common areas spaces.” It identifies the items to be removed as black soil pots behind Block 12, furniture behind Block 12, and statues and garden pots surrounding Block 12. It identifies alterations to the gardens without approval, a padlock fitted to the gate of a bike shed and a padlock fitted to subfloor access (since removed). It refers to earlier correspondence, said to be attached, but that is not reproduced. The Tribunal was not told what this earlier correspondence was. However, there had been prior correspondence, such as Document a, and such correspondence was tendered in Exhibit A2.[1]
[1] Exhibit A2 pages 35-36; page 42 (Document a); page 49; page 51; page 53; pages 57-59; page 65; and pages 67‑81.
Document c refers to “concern over the massive amount of earthworks done behind No. 14 and at the end of the street”; states that “the current action by a tenant to obtain access to the body corporate area is likely to have a detrimental impact on our property”; and later states that “it is not in our interests as owners to have a tenant take over the running of our property and the value of our units is likely to plummet.” In a postscript, Document c refers to the issue of keys, and also says “it is likely that all the land to the bus stop will be dug up.”
Document d repeats the rule breach matters and refers to a key to the bike shed and another key, and says that there are still matters not remedied, including removal of items from the stairwell in Block 10.
Document e says:
this particular tenant has been the source of a number of ongoing issues and nuisance at your complex. There are now concerns that the tenant is spreading the nuisance throughout the area, with the possibility of impact on Unit Plan 93 and Unit Plan 95.
This began with an outdoor table and chair setting … on Government land to create an area that everyone can use for community events. Following this the tenant has also attempted to add more plants to this area and areas managed by Unit Plan 95 which has been halted by the caretaker … following vast tirades of verbal abuse from the tenant.
Since this table setting arrived, residents and contractors working on the grounds of Unit Plan 93 have reported finding broken glass and syringes … A number of brawls [are also complained of].
Imputations/allegations
In paragraph l on the last page of the application, the following imputations are said to arise from the publications:
a) The applicant had breached UP 94 rules.
b) The applicant breached government requirements regarding approval required to erect structures and make alterations.
c) The applicant was abusive.
d) The applicant was like a wombat.
e) The applicant’s conduct was unlawful.
f) The applicant was unreasonable.
g) The applicant was a pest as opposed to a beneficial insect.
No attempt was made to say which imputation arose from each document, and not all arose from each. For example, it can be seen that the breach of the rules is stated in Documents a, b and d, but not in the other two documents.
There is no obvious reference in any of the documents to breaching government requirements. It emerged from evidence that R2 had contacted the relevant government body, then known as Territory and Municipal Services (TAMS), about gardening and furniture on government land in the area immediately adjacent to the units. This is referred to in the application in paragraph f, and is said to be a reason for making the claim. It is not, however, expressed as the defamation complained of. There was some evidence led about it, and it seems to go to the merits of any prospective defence such as reasonableness or perhaps malice in relation to qualified privilege. In any event, there was no pleading identifying exactly what was said that was capable of giving rise to such an imputation.
It was said the applicant was verbally abusive in Document e but not in the other documents.
There is no wombat reference in any of the documents. From paragraph e of the reasons on page 7 of the application, this is supposed to arise from Document c, and presumably it refers to a tendency to dig up gardens. Also, it is said that Document c discriminated on the basis that the applicant was a tenant: there was a reference to not letting a tenant run the place.
There are no references to unlawfulness apart from not complying with the rules.
It is implicit in all the documents that the respondents think the conduct of the applicant had been unreasonable.
There are no references to pests as such, but Document e says the applicant is spreading a nuisance and we will assume that this is said to be defamatory.
In paragraph k of the reasons on page 8 of the application, the applicant says that all of this showed that the applicant was a person of ill repute, and had an inferior social standing as not being an owner.
Imputations as re-expressed in a document filed on 14 August 2018
Extensive directions were made in this matter, including that the applicant identify the imputations relied upon. It should be said that none of the parties provided witness statements as directed, but all gave evidence orally. This made the hearing longer than it might otherwise have been. It seems the parties thought references to witnesses in the directions meant someone other than themselves.
The imputations were subsequently made somewhat clearer and were expressed as follows:
(a)The letter of 9 March 2017 – Document a – said the applicant’s activities were unauthorised and that she had breached the rules. Clearly this is right. It is said that the imputations from this are that the applicant:
(i)Knowingly failed to comply with default rules;[2]and
[2] This is a reference to the default rules under the UTMA
(ii)Was engaging in unauthorized activity; and was
(iii)An undesirable tenant and neighbour and member of the community; and was
(iv)Irresponsible and bringing her landlord into disrepute.[3]
[3] Exhibit A2 — ‘Imputations’ paragraph 1
(b)Document b (Attachment b to the application) was alleged to say the applicant was “a recidivist rule breaker” and “had breached rules 4 and 5 of the default rules.”[4] By way of comment, Document b does not use the word ‘recidivist’ but does say that it is thought the breaches are “likely to be repeated.” It does refer to the particular rules as being breached. The imputations said to arise from this are that the applicant:
[4] Exhibit A2 — ‘Imputations’ paragraph 2
(i)[was] a recidivist rule breaker; and
(ii)Didn’t comply with territory laws requiring planning approval;[5] and
[5] This is not said but we understand that the applicant thinks there is a reference here to activity on public land that might require approval
(iii)Was defiant; and was
(iv)Engaging in unauthorized behaviour; and was
(v)Unreasonable and inconsiderate; and
(vi)Was a bad tenant; and
(vii)Was an unworthy member of the community and bad neighbour and was irresponsible.[6]
[6] Exhibit A2 — ‘Imputations’ paragraph 2
(c)Document c (Attachment c to the application) was identified as being addressed to Mr Matthew Gibbins, who gave evidence in the matter and is a resident in the same block as the applicant. Document c is said to allege that the applicant was responsible for “massive earthworks behind No. 14”[7] and that the applicant’s conduct was detrimental to the property of UP 94 and would be responsible for the value of the units falling. Document c is said also to allege that the applicant was dishonest such that she was no longer able to have a key to the storeroom and was likely to dig up land all the way to the bus stop. From this it is said that the imputations are that the applicant was:
[7] One of the blocks in UP 94,; the Applicant was in Block 10
(i)Unreasonable and inconsiderate; and
(ii)Dishonest and untrustworthy; and
(iii)Was an unworthy member of the community and an undesirable neighbour.[8]
[8] Exhibit A2 — ‘Imputations’ paragraph 3
By way of comment, the Tribunal notes that the word ‘dishonest’ was not used in Document c.
(d)In respect of Document d (Attachment d to the application), the only matter complained of is the reference to items left in the stairwell as the “unauthorized” storing of items in the stairwell. The letter refers to a number of other matters. It is common ground that the items in the stairwell were in fact owned by Mr Gibbins. The respondents say they assumed the items were the applicant’s, but later found out the correct position. It should be pointed out that this is one of a number of complaints to the Commissioner of Social Housing of a similar nature that seem now to not be the source of complaint. It is said that from this the imputations are that the applicant was:
(i)Unreasonable; and
(ii)Inconsiderate; and
(iii)Messy; and
(iv)A recidivist rule breaker ; and
(v)Was using the complex as a tip; and
(vi)Was a bad tenant; and
(vii)Was a bad neighbour and;
(viii)Was an unworthy member of the community and;
(ix)Was irresponsible.[9]
[9] Exhibit A2 — ‘Imputations’ paragraph 4
(e)The matters identified in Document e are that the applicant was the source of a nuisance at UP 94 and was spreading the nuisance, had verbally abused the caretaker[10] and was responsible for unpleasant feelings. By way of comment, the Tribunal notes that the last matter was not expressed in the letter. It is said that from this the imputations are that the applicant:
[10] Being a caretaker of UP 93
(i)[was] A nuisance or causing a nuisance and continually and defiantly breached rules; and was
(ii)Verbally abusive; and was
(iii)Inconsiderate and unreasonable; and was
(iv)An unworthy and unhelpful member of the community; and was
(v)Irresponsible; and was
(vi)A bad and undesirable neighbour and tenant and member of the community; and
(vii)Caused suffering.[11]
The responses
[11] Exhibit A2 — ‘Imputations’ paragraph 5
The responses of R1 and R2 are short and say they agree with the response of R4.
The response of R3 attaches a long but lucid handwritten document disputing that the alleged imputations in respect of Documents a, b, d, e; saying that the content of Document c was not said by him; and saying that what is said in Documents a, b, d and e was true (explaining why).
R4 provided a longer response, explaining the history and raising defences. Reference is made to section 47 of the UTMA. It is said that the Owners Corporation, not Respondents 1-3, are liable, if at all.
On page 6 of R4’s response, specific defences are raised as follows:
(a)truth;
(b)qualified privilege;
(c)contextual truth;
(d)honest opinion; and
(e)triviality.
R5 has also filed a separate response, which is described later.
Some relevant legislation
The following are excerpts from the Civil Law Wrongs Act2002 (emphasis added):
118 Tort of defamation
(1) This chapter relates to the tort of defamation at general law.
(2) This chapter does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).
(3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if this chapter as [sic] in force immediately before the commencement of this section had never been enacted.
120 Single cause of action for multiple defamatory imputations in same matter
A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than 1 defamatory imputation about the person is carried by the matter.
134 Scope of defences under general law and other law not limited
(1) A defence under this division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.
(2) If a defence under this division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.
135 Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
136 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
139A Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a)the recipient has an interest or apparent interest in having information on some subject; and
(b)the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes, on reasonable grounds, that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account —
(a)the extent to which the matter published is of public interest; and
(b)the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c)the seriousness of any defamatory imputation carried by the matter published; and
(d)the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)the nature of the business environment in which the defendant operates; and
(g)the sources of the information in the matter published and the integrity of those sources; and
(h)whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i)any other steps taken to verify the information in the matter published; and
(j)any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
139B Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b)the opinion related to a matter of public interest; and
(c)the opinion is based on proper material.
(2) It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
(b)the opinion related to a matter of public interest; and
(c)the opinion is based on proper material.
(3) It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
(b)the opinion related to a matter of public interest; and
(c)the opinion is based on proper material.
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a)in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
(b)in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or
(c)in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a)is substantially true; or
(b)was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(c)was published on an occasion that attracted the protection of —
(i)a defence under this section, section 138 (Defence for publication of public documents) or section 139 (Defences of fair report of proceedings of public concern); or
(ii)the defence of fair comment at general law.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper matter if the opinion might reasonably be based on such of the material as is proper material.
139D Defence of triviality
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
139J Damages for multiple causes of action may be assessed as single sum
If the court in defamation proceedings finds for the plaintiff as to more than 1 cause of action, the judicial officer may assess damages in a single sum.
Reliance is also placed on section 47 of the UTMA which provides as follows:
Executive members—protection from liability
(1)An executive member is not civilly liable for conduct engaged in honestly and without recklessness—
(a)in the exercise of a function under this Act; or
(b)in the reasonable belief that the conduct was in the exercise of a function under this Act.
(2) Any civil liability that would, apart from this section, attach to the executive committee attaches instead to the owners corporation.
(3) In this section:
"conduct" means an act or omission to do an act.
It can be seen that the concept of malice at common law is relevant in respect of the qualified privilege defence. There is a helpful explanation of what that is in Roberts v Bass.[12] It is not possible to state what amounts to malice in a few words but, essentially, without excluding other formulations, it will be found where the dominant purpose of the publication was not to advance the basis of the protection (as here purportedly to remedy perceived problems arising from the activities of the applicant) but a wish to injure the applicant.
[12] [2002] HCA 57 [8]-[15], [75]-[104] and [289]-[293]
It is also clear that the defence of qualified privilege is available separately at common law and is not exactly the same as the statutory defence.[13]
Facts asserted in the responses that are raised in support of the defences and further explanation of the defences
[13] David Rolph, Defamation Law (Thomson Reuters, 1st ed, 2016) (Rolph) ch 11
The main document considered by the Tribunal in this context is R4’s response.
R4’s response refers to rules 4 and 5, which are the default rules in Schedule 4 to the UTMA.[14] They provide:
[14] See also section 106 of the UTMA
4 Erections and alterations
(1) A unit owner may erect or alter any structure in or on the unit or the common property only—
(a)in accordance with the express permission of the owners corporation by unopposed resolution; and
(b)in accordance with the requirements of any applicable territory law (for example, a law requiring development approval to be obtained for the erection or alteration).
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) Permission may be given subject to conditions stated in the resolution.
5 Use of common property
A unit owner must not use the common property, or permit it to be used, to interfere unreasonably with the use and enjoyment of the common property by an owner, occupier or user of another unit.
In other parts of R4’s response, reference is made also to rule 7 of the default rules which provides:
7 Use of unit—nuisance or annoyance
(1) A unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner, occupier or user of another unit.
(2) This rule does not apply to a use of a unit if the executive committee has given an owner, occupier or user of the unit written permission for that use.
(3) Permission may be given subject to stated conditions.
(4) Permission may be withdrawn by special resolution of the owners corporation.
Reference is also made to a special privilege that might be given to a unit holder under section 22(1) of the UTMA which provides:
22 Special privileges relating to common property
(1) An owners corporation for a units plan may, if authorised by an unopposed resolution, grant a special privilege, other than a sublease, for the enjoyment of the common property, or any part of the common property, to—
(a)a unit owner; or
(b)someone else with an interest in a unit.
(2) A grant under subsection (1) may be terminated, in accordance with a special resolution, by written notice given by the owners corporation to the person to whom the grant was made.
It is said that is the effect of permission under rule 4.
Reference is also made to Schedule 2 to the UTMA, section 2.4, which provides:
2.4 Approving use of common property
The executive committee of an owners corporation may approve an application by a member of the corporation to use the common property if—
(a) the use applied for is minor; and
(b) the use will not unreasonably interfere with the reasonable use and enjoyment of the common property by other members of the corporation.
R4’s response says written grants have been largely restricted to air conditioners and TV antennae.
Sections 16 and 35 of the UTMA give the Executive Committee the responsibility and power to enforce the rules.
Section 109 of the UTMA deals with breach of the rules. It says:
109 Breach of rules—rule infringement notice
(1) This section applies if the executive committee of an owners corporation reasonably believes that—
(a) the owner or occupier (the person) of a unit has contravened a provision of the corporation’s rules; and
(b) the circumstances of the contravention make it likely that the contravention will continue or be repeated.
(2) The owners corporation may, if authorised by an ordinary resolution of the executive committee, give the person a notice (a rule infringement notice) requiring the person to remedy the contravention.
(3) A rule infringement notice must state the following:
(a)that the owners corporation believes the person is contravening, or has contravened, a provision of the rules;
(b)the provision of the rules the owners corporation believes is, or was, contravened;
(c)details sufficient to identify the contravention;
(d)if the owners corporation believes the contravention is continuing—the period (which must be reasonable in the circumstances) within which the person must remedy the contravention;
(e)if the owners corporation believes the contravention is likely to be repeated—that the person must not repeat the contravention;
(f)if the person does not comply with the notice—
(i)the person commits an offence; and
(ii)the owners corporation may, without further notice, apply to the ACAT for an order in relation to the failure to comply with the notice.
Section 107(2) of the UTMA provides:
(2) An occupier of a unit (who is not the owner of the unit) is bound by each rule of the corporation as if the occupier were the owner of the unit, unless the rules provide otherwise.
There is a description of a background to the use of garden beds and gardening on the common property or on public land around the common property.[15]
[15] Exhibit R1 pages 7-8
R4’s response explains that for the last seven years there had been informal allowance (but not written permission) for a number of very small vegetable gardens on the common property. There were nine: three kept by owners and six by tenants. The applicant was shown two small areas behind Block 10. She planted some grasses, which are shown in photos 7735 and 7740.[16] She also extended it beyond what had been informally allowed by adding two more grasses, as seen in the photo.
[16] Exhibit R1 page 8
In the last nine months, the garden beds of all residents (except those of the applicant) have been removed as they have been expanding in size without any formal permission and many were abandoned. They also, in some instances, covered subfloor air vents. In 2010, there was a minor upgrade approved after the drought in 2009 and some enhancements were implemented by the Executive Committee after an Annual General Meeting.
R4’s response says it is true that the applicant breached UP 94 rules and alleges three breaches.
Breach 1
Breach 1 relates to a subfloor area under Block 10. There are photos[17] that show the door to it, and the inside with and without the applicant’s belongings. Essentially, it is complained that she stored her belongings there without permission and that it was an inappropriate place to do this as it was sprayed with pesticide; had a dirt floor; had gaps in the wooden floor above, allowing vision into the unit of another resident, Mr Gibbins; and had no lighting. It was described as a place where residents might hurt themselves. This space had a lock placed on it by the Owners Corporation to prevent access so that children and residents would not be hurt. The screws in the metal plate for the lock became loose and it was planned to replace it when all the buildings were to be painted. Before this happened, one of the Executive Committee members (in evidence revealed to be R1) noticed the applicant coming out of there. It was then seen that the applicant had a large amount of her belongings in the subfloor space. She had also put her own padlock on the door, so the Owners Corporation could not get access to it. Photo 6082 shows the padlock of the applicant, as well as some security tape that would show the applicant if anyone had been in there.
[17] Photographs 6082, 6024 and 7662
It is said that this was a breach of rule 5 by use of the applicant’s own padlock and excessive storage of goods in a dangerous area. Reasonable use, it was said, was limited to use by tradespeople. It became apparent during the hearing that R4 also strongly believed that putting the padlock on was an alteration contrary to rule 4. The applicant disagreed. If, as Respondents 1-3 and R4 assert, this is a breach of a rule then the letters alleging a breach of rules, assuming that is defamatory, are true.
It is asserted in R4’s response that it was appropriate to write to the owner of the unit as the owner was in breach by reason of the tenant’s conduct. It might be observed that, assuming there is a breach, this is correct, although there is power to write to the tenant as well as can be seen from the provisions of the UTMA set out above. A reply was received from a representative of the applicant’s landlord. It is reproduced at page 10 of R4’s response. It says that a Housing officer attended on 27 March, removed the lock and said she was working with the tenant to remove the goods. This later happened, as can be seen from Photo 7662.
Breach 2
There is evidence that the Owners Corporation had arranged for painting during this time and wanted to get the place ready for this work. It was decided to conduct a clean‑up as there were an excessive number of items left on common property which restricted the use for other residents and contactors. The clean-up notice, dated 5 May 2017, was sent by R4 on behalf of the Owners Corporation and with the authorisation of Respondents 1-3. It is on page 11 of R4’s response and is addressed to owners and residents of UP 94. It is also at page 70 of Exhibit A2. It refers to the storage of goods on common property. It says that all unauthorised items left in common areas, subfloor access areas, and storage sheds, other than bikes in bike sheds or stairwells will be removed and disposed of if still there on 16 May 2017. It includes furniture, statues and pot plants that have not been authorised by the Executive Committee. It states that it is enforced by the UP 94 House Rules and the Unit Titles Regulations Schedule 1 clause 5. No doubt the Uncollected Goods Act1996 was intended to be relied on, as stated on the first page of Attachment A to R4’s response. The House Rules are in evidence and appear at pages 55 and 56 of Exhibit A2: a different version of the House Rules is Exhibit A1. The reference to the Regulations in this notice appears to be a mistake. It seems that, unless otherwise expressly authorised, whatever was now left was unauthorised. The House Rules refer to leaving items in the laundry or stairwells and require a landlord to return such items to tenants. As will be seen later, there was a lot of evidence about what was authorised and what was not, but it seems clear that from this date nothing more was authorised, and it was made clear to the applicant that her particular uses were no longer authorised, if they ever had been. There has been debate about the respondents’ entitlement to do this and what the Rules might mean.
In any event, R4’s response alleges that the tenant had been storing many items in the caretaker’s room under Block 10. During oral evidence, one of the respondents explained that this was situated on another side of the building from the underfloor area in Breach 1 and was somewhat larger in area. The clean-up notice was intended to refer to these items. The applicant left a note in the caretaker’s room saying any of her items would be removed by 17 May 2017. This is in photo 6097. On 26 May 2017 the lock on the room was changed by the Executive Committee. At this time, the applicant’s items were still there. Proceedings were brought in the tribunal about this (the earlier proceedings). An order was made some time later allowing access for the goods to be removed. The response says this amounted to a lie by the applicant.
Photo 6096 shows hoses and bookshelves in the room, said to be the applicant’s, and was taken on 16 October 2017. These items were removed on 12 April 2018 when access was granted after orders were agreed in the earlier proceedings.
This was the genesis of Document b, the Rules Infringement Notice dated 1 June 2017. However, it was aimed at a number of issues arising from gardening in common areas and on public land around the buildings of UP 93 and 94. It included a reference to items in a stairwell in Block 10, which were later established to belong to Mr Gibbins. They had not been placed there by the applicant. It was not just directed at the caretaker’s room but also to “dangerous furniture”[18] placed by the applicant on common areas said to expose the Owners Corporation to liability for damage that might be caused. This appears to refer to large barrels of plants shown in photo 6122. They were at the end of Block 12, not 10, where the applicant lived. It was feared that they might topple and injure children. There is also apparently extensive gardening depicted in photos 6125 and 6060. These photographs were said to have been sent to the landlord. It is said that the applicant removed topsoil and put down sand for these gardens. This is said to be a breach of rules 4 and 5. By way of comment, clearly using common property in a manner not approved that was more than a reasonable use might breach rule 5, but it is stretching it to say removing soil is a breach of rule 4. As will be seen, it is also complained that the gardening did not stop at common property but extended to public land, so those rules are not relevant. There was an assertion that this was a nuisance in breach of rule 7. The trouble with that is that rule 7 applies to use of the unit, not of public land near it. Obviously, the spirit of the rule was to stop one occupant from affecting adversely the amenity of another and it might be argued that the rule extends that far. Whether it is a breach of rule 7 or not, such a use might well amount to the tort of nuisance, at least once it was pointed out to the applicant that it was a problem.
[18] Exhibit R1 page 12
It was said that the conduct complained of referred to paragraph (1)(a) of rule 4, not paragraph (1)(b) and was not alleging a breach of government rules. Arguably the reference to the whole rule might carry with it such an imputation, whatever the intention. We will have to decide whether it does objectively.
Breach 3
This alleged breach concerns the use of bike sheds. The applicant was given a key to bike shed 10 so she could put her bike in it. She managed to get a key to bike shed 12 as well by telling an Executive Committee member that another family wanted to use it. She was given the key to pass on. In fact, it was used by the applicant to store bikes of her grandchild and herself. In January 2017, bike shed 10 was broken into by a thief. This was done by sawing off the metal to which the padlock was attached. The Owners Corporation replaced it. The thief returned and repeated the theft in the same manner, but sawed the rest of the metal, preventing the lock being reattached. The applicant, however, reported to an Executive Committee member that the thief had taken the lock, which had been picked, but that nothing else was taken. The applicant said she had put on her own lock to secure it. The Executive Committee then changed the locks on this shed and the caretaker’s room, and gave access to bike shed 12 to the family that was meant to have it. It is said that the lock on bike shed 12 was a breach of rule 5, because it excluded access to others. Photos 6079, 6148, 6149, 6152 and 6129 are provided and show a note left on shed 12 by the applicant that says “This property has not been abandoned. Please contact [the applicant] before removal.” There are boxes and other items as well as bikes in the shed.
The above is directed at the claim that the rules were breached and is intended to show they had been. The response, then, is directed to the imputation that the applicant had breached government requirements (at page 14 of R4’s response). It is said that to issue Document b, all that is required, under section 109 of the UTMA, is a reasonable belief. The Notice does refer to a belief, but then makes statements as facts, not beliefs. Whilst the Notice sets out rule 4 in full, none of the particulars refer to public land, so it is not apparent from the document alone that there is such an imputation. The evidence revealed that much of the gardening was, in fact, on government land and for those in the know this may have been understood to have been part of the complaint. The point is made that the owner, the Commissioner for Social Housing, is just as liable as the tenant, so it was appropriate to tell the owner. It is denied that this Notice complained of a breach of government requirements.
On page 15 of R4’s response, there is an attempt to justify that the applicant was abusive. None of the letters from Respondents 1-3 or R4 said that she was. Document e, from R5, did and is based on reports from the gardener. Document e was sent by R4 to the Commissioner for Social Housing. It does not refer to other examples of abuse. On pages 15 to 23 of R4’s response, there are photos of letters or notes that are said to be abusive. Pages 1 to 3 of R4’s response are also referred to. In the second bullet point on page 1 is an allegation that the applicant had, “since at least March 2017, engaged in a sustained campaign of threatening, bullying, intimidation, abuse and harassment” of Respondents 1-3. A letter of 8 May 2017 addressed to R4 is reproduced on page 2 of R4’s response. It is certainly direct and forceful and challenges his power to issue a clean-up notice. It may well be seen subjectively as confronting, but it does not contain extreme language that might be described as abuse. We will not reproduce this material in detail as none of it is abuse, but it is evidence of a degree of belligerence and a determination not to cooperate with the decisions of the Executive Committee in its task of managing the complex. Reference is also made to the gardener of UP 94 as having been abused. He was never called to give evidence, but the Tribunal accepts that he had complained to Respondent’s 1-3 and R4 that he had been in a verbal stoush with the applicant. The only reference in the matters complained of to abuse is in Document e, and that is based on a report by the gardener of UP 93 to either R5 or to a member of the Executive Committee of UP 93. The gardener of UP 93 was not called to give evidence either.
Next, the wombat imputation is refuted. Clearly Document c does suggest that the applicant had had some involvement in extensive earthworks on public land. Photos are provided, being numbers 6083, 6084, 6154, 6155, 6156 and 6078.[19] They show a lot of earthworks on what is said to be land behind Block 14, in the direction of a bus stop. It is said that the applicant had denied this in a letter (at page 25 of R4’s response). She certainly denies having dug up the bank behind Block 14. In her evidence, however, she admits to having done a lot of work in that area.
[19] Exhibit R1 pages 26-27
R4’s response denies there was an imputation that her conduct was unlawful.
R4’s response refers to the material already mentioned as demonstrating that the applicant was unreasonable. A lot of the correspondence between the applicant, the Commissioner for Social Housing and R1 and R4 has been introduced into evidence.
The pest imputation is said not to have been made.
In respect of Document d, it is said that there were still lots of items belonging to the applicant on common property and Respondents 1-3 and R4 believed these items included items in the stairwell in Block 10. They soon realised that they were wrong, and Mr Gibbins has given evidence making it clear the items in the stairwell were his. He got into trouble with the Executive Committee and eventually removed them. It is said that, given the continued problem with other property, the defence of contextual truth and triviality is available. Document e complains about the other items as well.
In respect of Document e, the respondents say that residents of UP 93 lived very close to an outdoor table that the applicant had placed on public land near both complexes. As she has said, she did so to provide some amenity for residents and to encourage some community interaction. It seems to have attracted the ire of a resident of UP 93 as it was seen as attracting undesirables and it was said that there were syringes and bottles there as well as noise at night. R1 saw bottles and the respondents say they accepted that what was in the letter (Document e) was true. They also say that the applicant was causing a nuisance by expanding her activities on public land by earthworks that might cause injury to cyclists and others, and generally carrying on work without limit and in defiance of the wishes of others including the Executive Committee. There was evidence that youths would gather near an underpass that was near the complexes and the table was an attraction for them. There is correspondence about the table being moved back and forth by the applicant and R1, and eventually it was removed by the City Rangers Office. Reliance is placed on standard term 70(c) in Schedule 1 to the Residential Tenancies Act 1997, which provides that a term of the applicant’s lease is not to interfere with the quiet enjoyment of nearby premises.
Response of R3
R3’s response does not add anything to the above but seeks to analyse the application and makes clear the submissions he would make.
Response of R5
R5’s response asserts that the tenant was not identified. This same point was made about Document c by Respondents 1-3 and R4. It is true that the applicant was not named, but she was clearly the only person about whom the remarks could have been made and they were so understood. This is not an arguable point. It was true that the applicant had placed the table and chairs on government land, so that is a justified statement and so established by her own notes.[20] This is not an issue. R5 says he is writing as a conduit for the Executive Committee of UP 93 and is not expressing his own views. Clearly this misunderstands the relevant issues, but it might be assumed[21] that what is intended is that he has the same defences as Respondents 1-3 and R4.
[20] The applicant had written notes that she left on the tables and chairs, saying that they were hers
[21] None of the parties are legally represented and only the applicant has legal training
It should be pointed out that what might be regarded as defamatory is the reference to the person being a nuisance and abusive.
The documentary evidence
The applicant’s documents
In reading the transcript, it has become evident to the Tribunal there has been some confusion about the numbering of exhibits in this matter. To the extent it is not clear; the following numbering should be used.
(a) Exhibit A1 is the document entitled “For the Guidance of Residents of Units Plan 94”, described as ‘House Rules’ of UP 94. This document also appears at pages 28 to 30 of the documents filed by the applicant on 23 October 2018 (Exhibit A4).
(b) Exhibit A2 is the bundle of documents filed by the applicant on 14 August 2018. Pages 55 to 56 of Exhibit A2 are a different set of ‘House Rules’.[22]
(c) Exhibit A3 is the bundle of documents filed by the applicant on 16 October 2018. It should be noted that these documents were originally filed on 18 September 2018, but some of them needed redacting to maintain anonymity and the set that became Exhibit A3 are those filed on 16 October 2018.
(d) Exhibit A4 is the bundle of documents filed by the applicant on 23 October 2018. It includes an index to photographs and 82 colour photographs.
The documents of Respondents 1-3 and R4
[22] Transcript of proceedings 25 October 2018 page 37
It should be noted that there is no necessary correlation between the numbering of the respondents documents and the numerical order of the parties: for example, Exhibit R1 was not necessarily tendered by R1. The respondent’s exhibits are numbered as follows:
(a)Exhibit R1 is referred to at page 101 of the transcript. Whilst it might be confused for R3 below in the description it was in fact the response of R4 and was tendered during the course of R4’s evidence.
(b)Exhibit R2 is the bundle of documents filed by R5 on 21 September 2018.[23]
(c)Exhibit R3 is the bundle of documents filed by Respondents 1-3 and R4 on 3 October 2018.[24] Some photos (34) were provided as well, on 12 August 2018, and have numbers that are also in their joint response.
[23] Transcript of proceedings 25 October 2018 page 131
[24] Transcript of proceedings 25 October 2018 page 101
In addition, the Tribunal was provided with documents filed by R3 on 24 August 2018. These documents were not made an exhibit. There are two lots of written pages, one numbered ‘1’ through ‘7’ and the other numbered ‘1’ through ‘3’, as well as a one-page typed letter.
Oral Evidence
All parties gave evidence. The applicant also called Mr Matthew Gibbins, a resident of Block 10.
Reply
Because time ran out at the hearing, held on 25 and 26 October 2018, the applicant was given leave to file her evidence in reply by affidavit and she has done this by an affidavit dated 16 November 2018. It repeats much of her earlier evidence.
Observations on witnesses
As all parties were self-represented, the manner of giving evidence and cross‑examination was unorthodox. The applicant has a legal background and was able to present her case in a regular manner but the respondents, in different degrees, had some difficulty doing so. Having said that, the manner of giving evidence and the demeanour of the witnesses did not lead the Tribunal to think that anyone was doing anything other than honestly recounting what they believed to be true. There are some areas where there are differences between the parties about what happened and if we need to resolve them, we have relied on probabilities and the specificity in which the evidence is given, rather than preferring one witness over another by reason of credibility.
The applicant’s evidence
The applicant moved into the unit in about 2011 and stated that she had not lived in a unit complex before. She was provided with a copy of the House Rules and notes that she received two copies of the Rules early on which were different from each other.
She obtained documents from the Commissioner for Social Housing about her tenancy following a Freedom of Information request and relies on these documents, including emails and letters.
The applicant said that initially she was encouraged by R1 to garden, and was shown areas to plant. Some involved public land adjacent to the complex. She also said that when she first arrived, there were vegetables and other plantings by other residents. She believed that what she was doing was permitted by the Executive Committee, as she knew R1 was a member of the Committee and he had said that he had used its money for some of the plants. She also put her own tables and chairs out for the enjoyment of residents and their visitors. This was on public land (and as subsequently described, within eyesight of UP 93).
The first problem arose in 2016, when R2 came out whilst the applicant was gardening and spoke loudly to her.[25] The applicant noted that R2 was hard of hearing, which would explain the volume. On the Tribunal’s observation, R2 was having difficulty hearing a lot of what was said during the hearing.
[25] Transcript of proceedings 25 October 2018 page 18
Later in 2016, there was a difficult conversation with R2, who made it clear she did not want the applicant gardening in the public area at the end of Block 16, which was near where R2 lived. The applicant filed an incident report with the Australian Federal Police (AFP) about this, which is in evidence. That report records “[n]il offences disclosed”.[26] We agree. However, it must have been clear by then that at least one member of the Executive Committee was now opposed to the applicant’s gardening activities and saw them as a nuisance. In addition, the Tribunal’s observation of R2 was that she was a lady in her later years and not an obviously intimidating person. She did not present as an obvious threat. The complaint to the AFP appears to the Tribunal to be an overreaction. Further, the applicant said she lied to R2 about some pots to try and allay her agitation. The applicant denied the pots were hers, but they were. This would not be likely to engender ongoing trust, and might lead the Executive Committee to view the applicant as uncooperative and unreasonable.
[26] Exhibit A2 page 14
Not long after, the applicant fell out with the gardener for the complex about another issue and said he had been rude to her.[27]
[27] Transcript of proceedings 25 October 2018 page 19. On her own evidence, the applicant ignored the gardener’s wishes about some bulbs and appears to have assumed she knew better than him where they might be planted. She may have been less rude than her evidence suggests but it is understandable why the gardener got upset
These incidents only commenced in 2016. The applicant then also got a note from an officer from TAMS and has since ascertained that R2 had complained to TAMS about gardening on public land.[28] The applicant showed the officer where she had been planting and he did not seem to have a problem with it. It is clear that TAMS and its successor have not gotten involved in this matter. At various times, the applicant has referred to TAMS as consenting to or approving what she had done. On the available evidence all that could be said is that it chose not to intervene and the individual ranger may well have said complimentary things about some of the work.[29]
[28] Transcript of proceedings 25 October 2018 page 20
[29] There are some documents relating to it in Exhibit A2 (pages 32-33)
The applicant had an unsatisfactory conversation with R3 in December 2016. R3 in his evidence was clearly offended by it. The applicant was as well. It does not matter what precisely happened, but it must have been even clearer to the applicant that her outdoor activities in the garden were a problem for members of the Executive Committee.[30] It seems the issues may have only concerned public land. The applicant has argued that she is not prevented from activity on public land by the House Rules or the default rules that apply by reason of the UTMA. As there is some difference between the parties about what was said, we accept that R3 did not use the word “tangle” and that the applicant’s impression was not accurate. This does not mean that we do not accept that the applicant perceived that she was being harassed unfairly. It also does not mean that what she perceived is correct. Suffice it to say that the conversation was unsatisfactory for both parties.
[30] Transcript of proceedings 25 October 2018 page 23ff
The applicant then explained the history of putting items in the caretaker’s storeroom. She said she had been given a key by R1. She had understood that she might use it for gardening tools and she noticed that it was used by others, including R1, to store other items. As is apparent from photos, the applicant also used it to store other items. After the gardening problem arose, she was told by R1 that if she did not stop her gardening activity, the locks would be changed and she would not be allowed to use the space for storage.[31] The Executive Committee then changed the locks. The applicant then applied to the tribunal, in the earlier proceedings, trying to get her goods back. That eventually happened in 2017, by consent.
[31] Transcript of proceedings 25 October 2018 page 26, lines 26-28
The applicant then explained the displeasure by an adjoining owner in UP 93 about the table and chairs. She had avoided him when she could as he was gruff. It is clear he wanted her to move the table and chairs.
The applicant gave some evidence about another area under the floor where she kept items.[32] She believed R1 had allowed it and she had kept items there. Her evidence about R1 allowing it is very vague, and R1 is adamant that he had not. The Tribunal accepts he had not, although we also accept that the applicant may have been under the impression that no one minded. Even on her own evidence it was never authorised by the Executive Committee or formally consented to by anyone. It seems to us that it would not have been, if raised at that level, for the reasons explained in the respondents’ responses previously outlined. The applicant accepted that when it was drawn to her attention that she should move the items, she wanted more time. She disputes that she was in breach of rules — or knowingly so — by not having complied with a request to move the items in the time requested. She also wrongly asserted that as a tenant she does not breach the rules but is only bound by the tenancy agreement, which interestingly forbids causing a nuisance to other residents.
[32] Transcript of proceedings 25 October 2018 page 28
The applicant said she had not seen any antisocial behaviour involving the table and chairs. R1 in fact started to move them and she put them back.
The applicant was also asked to move some items in the stairwell but these items belonged to her neighbour. This is accepted, and the respondents say they assumed it was the applicant because of their experience with other items.
It is uninformative to list every piece of evidence that follows from the applicant.
Other evidence
The applicant called her neighbour, Mr Gibbins, who had also been said to be in breach and who complied in moving the items from the stairwell but took some time to do so. Mr Gibbins did not seem to be unduly worried about being said to be in breach.
R1 gave evidence and affirmed the truth of the respondents’ responses. He made it clear that he did encourage the applicant to garden as he thought it would be good for the block, but by the time the trouble started he believed she couldn’t be reined in; he saw the excavations on the public land to be expanding, and the applicant was not amenable to requests to stop. R1 also said that at some point in late 2016 or early 2017 he had stopped trusting the applicant. Apart from lying about the pots, there is some evidence about the bike sheds where further unauthorised storage was occurring. We do not go so far as to say that the applicant told lies about this, but it is clear she assumed a degree of control over a bike shed set aside for someone else and did so knowing she was not really entitled to do so.
The other respondents also gave evidence affirming the facts in the responses. No evidence was called from the disaffected neighbour in UP 93. In the evidence from the respondents, however, the topography of the units was further explained. It seems the units are near an underpass near Yarra Glen, and youths gather there at night and may well be attracted by the table and chairs. It can be seen that whilst the outdoor setting was a nice idea, it may well lead to antisocial activity and was believed to have done so already by the respondents. What was feared was noisy revelling at night, including drug taking and excessive drinking. R1 said he had seen a bottle near the table.
The applicant also gave evidence at the hearing about what she said was the harm she had suffered.[33] She did not say that she had suffered an injury to her feelings or that others had suggested she had lost a reputation or call any evidence to that effect. The loss described was not enjoying the use of the unit because she couldn’t garden and because she thought the other residents were against her. If she was unjustifiably defamed, the damages based on this evidence would not be other than nominal.
[33] Transcript of proceedings 25 October 2018 page 39ff
In her written submissions, the applicant asserts a number of propositions about damages. They are unpersuasive and we reject them. We have not set them all out here, as they are ill directed. An example is that she relies on transcripts in interlocutory hearings where she provoked the respondents, all of whom are unrepresented, to be critical of her. She argues that this aggravates damages. She argues that a failure to apologise adds to the loss. A correct legal submission would be that the damages are not mitigated, not that they are increased.
As the evidence was discursive and given in various degrees of evidentiary admissibility, we will not endeavour to state here every piece of evidence but when dealing with each issue will refer to any evidence that may be relevant and where necessary resolve any issue of fact.
The issues for determination by the Tribunal
The issues for determination by the Tribunal are:
(a)Do all the alleged imputations arise?
(b)Are the imputations that do arise defamatory?
(c)If any of the imputations are defamatory, can the respondents rely on any of the defences?
(d)If the answer to (c) is no, has the applicant made out a case for an award of damages for non-economic loss?
Before embarking on a discussion of each issue, we see this case as raising some fundamental problems for the tribunal and for potential reforms of defamation law. These issues are well explained in an insightful article.[34] The issue of proportionality is, in this case, very significant. In Bleyer v Google Inc,[35] English authority[36] on the issue was endorsed, allowing a case to be dismissed where the injury to reputation was slight and the demand on the resources of the Court – or Tribunal – would be excessive in allowing the case to be litigated. This has been considered in Australia.[37] In the Australian Capital Territory, this approach has yet to be adopted, but it might be argued that there is no reason why it might not, as the legislation in the Supreme Court and in the tribunal appears now to be in terms that would allow it.[38] This course was not followed here for reasons that had been expressed in earlier interlocutory proceedings. This included the fact that without hearing the case it was not clear what the impact might be. Having heard the case, it seems more about owners and tenants and unit management. It is something that might be considered at an early stage in future actions for alleged small defamations.
[34] Gould, Kim, ‘Small Defamation Claims In Small Claims Jurisdictions: Worth Considering For The Sake Of Proportionality?’ (2018) 41(4) UNSW Law Journal 1222
[35] [2014] NSWSC 897; Kostov v Nationwide News Pty Ltd [2018] NSWSC 858
[36] Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
[37] Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495 [30]-[31] per Jagot J. However, its applicability remains uncertain: see Bristow v Adams [2012] NSWCA 166 and Watney v Kencian[2017] QCA 116
[38] Lazarus v Azize & Ors [2015] ACTSC 344; Islam v Director General of the Justice and Community Safety Directorate [2018] ACTSC 323; P v Registrar of Firearms [2018] ACAT 74
Defamation is a complex area of the law. The tort protects a person against the loss of their right to, or interest in, their reputation. That is achieved by the imposition on others of a duty not to infringe that right or interest. In Scott v Sampson,[39] Cave J explained the nature of the right which is concerned in an action for defamation:
Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.
[39] [1882] 8 QBD 491
The range of defences available seeks to strike a balance between the interest in one’s reputation and freedom of speech, in this case to carry out one’s job. The defences in the Civil Law Wrongs Act 2002 in sections 135 to 139J are reproduced in paragraph 34 above. The common law also continues to apply unless excluded by the Act.
Do all the imputations arise and are they defamatory?
An imputation is an act or condition attributed to the applicant and, in order to be defamatory, must be capable of reflecting adversely upon the applicant’s reputation.[40] The test is whether the imputations are capable of being conveyed to the ordinary reasonable reader. If they are, then it must be determined whether in fact they are defamatory, again from the point of view of the ordinary reasonable reader.[41] In some jurisdictions, such as New South Wales, the capacity issue is decided by the judge and the factual issue by the jury. In the tribunal we do both.
[40] Rolph [6.30]
[41] Rolph [6.60]
In Radio 2UE Sydney Pty Ltd v Chesterton, the High Court said in its majority decision, “[a] person’s reputation may … be said to be injured when the esteem in which that person is held by the community is diminished in some respect.”[42]
[42] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 [3]; see also Rolph [6.230]
In addition, where the matter exposes the person to more than a trivial degree of ridicule, or tends to lead the ordinary reader to shun the applicant, it will be defamatory.[43]
Document a
[43] Rolph [6.230]
In our view there is nothing defamatory in this document. The statement that the applicant is in breach of the rules (being the rules of the Body Corporate) is, we think, in the eyes of an ordinary reasonable reader an inevitable part of unit life and unless it was accompanied by a description of obvious antisocial behaviour would not reduce the applicant’s reputation or otherwise defame her. The imputations said to arise from Document a do not arise and we can see no damage to reputation flowing from Document a. The reference to unauthorised activity in context does not convey a defamatory imputation.
Even though we have reached this conclusion, we will also consider the defences that might arise if it was defamatory later. Its circulation was to some officers in the office of the landlord. None of them gave evidence. There are documents from them in Exhibit A2 showing they supported the applicant and helped her get the complaint sorted to some extent.[44]
Document b
[44] Exhibit A2, pages 57-59 and 78
This letter is a Notice under the UTMA and refers to the prospect of the conduct being repeated. This is a requirement under the UTMA. Leaving aside whether that is a correct statement, it is not significantly different to Document a in its nature and effect and we do not think it carries any defamatory imputations as alleged. Again, we will still consider the defences if it were to be defamatory.
Document c
This is the letter from R1 to Mr Gibbins asking him to get on the Executive Committee. As an aside, it highlights the difficulty in getting people to give up their time to take on such responsibilities. It undoubtedly intends to refer to the applicant. It does refer to “getting the key back” and assumes some knowledge, not stated, by Mr Gibbins. Mr Gibbins clearly is and remains on good terms with the applicant. Her reputation is unaffected to him and he is the only recipient of Document c. The reason for getting back the key we know related to stopping the applicant storing her belongings there, and the applicant sees it as a means to get her to curtail her gardening activities. There is no express nor, from what we have been told, inferred dishonesty by the applicant in this. It might well be said that R1 was somewhat exasperated by the applicant and was arguably overstating the amount of gardening work she was doing, but we do not see that complaining of someone being an overly keen gardener is defamatory. There is a possible implication that she was hard to control and was — as a tenant — taking over, but that is not in our view reflective of any reason to think less of her. Again, we will also consider the defences in relation to Document c if it were to be defamatory.
Document d
Here there was a mistake about the particulars in respect of Mr Gibbins’ furniture in the stairwell. It was one of a number of matters. Document d is very similar to Documents a and b. We do not think it is defamatory. It might be argued that, because this was a third letter complaining about problems with the applicant, there was an underlying frustration with what was happening that might suggest that the sender thought the applicant was being unreasonable. We do not think that this is defamatory, but again will consider the defences if it were to be defamatory.
Document e
Document e does say that the applicant was spreading a nuisance and had verbally abused the gardener at the neighbouring complex. In some minutes of meetings of the Executive Committee of the neighbouring block, the applicant is referred to as a “known trouble maker”.[45] This is not in Document e however. If it was, some of the alleged imputations might arise. We think it is defamatory to accuse the applicant of abusing the caretaker and of spreading a nuisance, and will look at the defences. We do not think the other imputations arise.
Defences
Triviality
[45] Exhibit A2 page 141
This is a statutory defence and is judged at the time of publication and prospectively. It is not to the point that there was no harm but rather whether there could have been. The harm is argued to be harm to reputation, not to feelings.[46] In respect of Documents a, b, c and d, we are of the view that this defence does protect the parties in the event that, contrary to our decision, they have published anything defamatory.
[46] Rolph [14.70]-[14.100]
In respect of Document e, we are not persuaded that triviality is a defence here. Whilst looking retrospectively we might hold that there was no harm to the reputation of the applicant, we cannot say that there could not have been.
Qualified privilege at common law and as contained in the Civil Law Wrongs Act 2002
We have set out at length the reasons Respondents 1-3 and Respondent 4 give in their responses as to what facts they rely on to make the statements they have. They have all affirmed the truth of their responses. We believe them to be truthful in doing so. There is no doubt in our mind that the first four respondents believed the matters that they say justified making the statements they did. However, it is still necessary for them to establish that the persons communicated with have a mutual interest in being told the information. As is clear in the UTMA, the conduct of a tenant makes the lessor also potentially in breach, and it was open to the Executive Committee to correspond with both the tenant and the lessor. R4 seemed to believe he could only deal with the lessor and, whilst that is not completely accurate, he certainly was acting appropriately in doing so. At common law, the community of interest is slightly different in the way it operates but equally it was clearly protected. We have earlier described in general terms what constitutes malice. Here we can find no evidence of this.
The applicant sought to show that the conduct of these respondents was unreasonable. We can see that she might feel aggrieved by the decisions they reached to ask her to limit her gardening or move her goods from the storage and otherwise, but they thought they were doing the right thing and thought she was in breach of various rules. It may be argued that, strictly, she was not in breach. We can see that in some respects that she is correct. This goes to truth, not qualified privilege. We are convinced that these defences protect the first four respondents, should they have published anything defamatory. The issue of reasonableness does not go to their reasons for thinking the applicant was in breach, but rather whether it was reasonable to publish the material. At common law, the belief has to be honest. In our view it was. We find that R1, R2, R3 and R4 have the defence of qualified privilege both at common law and under the Civil Law Wrongs Act 2002. This applies to Document a, Document b, Document d and, in the case of R1, Document c.
The same defences also apply to R5 in respect of document e. He was acting in accordance with his obligation as the strata manager under instruction from his Executive Committee. He had no reason to doubt the information he was asked to convey and was asked to communicate with R4 in the hope that the owner’s corporation in UP 94, where the applicant lived, could fix it. It is clear from his evidence and his submissions that he believed what he was told by his Executive Committee and was doing his job in writing to R4 in accordance with a direction to do so by his Executive Committee. There is no evidence that he intended that his letter in turn be republished to the lessor of the unit in which the applicant resided, and he could not be liable for its republication. The defence both at common law and statute protects him. Again, there is no malice that might defeat such a defence.
R4 could also be liable as he republished Document e to the lessor. The circumstances in which he did are the same as his publications of Documents a, b and d. He is also so protected.
Defence under section 47 of the UTMA
This defence is clearly also available to Respondents 1-3 in respect of Documents a, b and d. Document c may arguably be within the scope of the defence but this is less clear and we do not hold that it is. There is a strong policy ground for holding that the same defence should be available to the strata managers carrying out their duty in accordance with the decisions and directions of the Executive Committee, but we are not convinced that the current section has that effect.
Truth
In order to decide this issue, we would need to make these reasons even longer than they are. We can see that there is a reasonable argument that every statement that is complained of is true, but that in respect of some they might not be. We do not intend to resolve these arguments bearing in mind the other conclusions we have come to.
As the applicant has invested a lot of time and effort in dealing with this, we should say that we have some sympathy for her. The urge to work in the garden, and to try and make it as nice as she could, is admirable. It is a pity that her efforts came to be less valued. We can see that there are some strong personalities involved that might have always made harmony a problem. There is force in the applicant’s arguments that the rules relied on are not to the point. We can also see that she could benefit from having more space to store things, but she cannot, in the face of a decision of the Executive Committee, do so without regard to their need to maintain some equality and control. We can also see that, as she has said, she has ceased to be as content as she may otherwise have been because she has had these disagreements and she is effectively denied the capacity to enjoy gardening. She showed us a number of photographs that included some of her gardening efforts. Whilst appreciation of such efforts is subjective, she clearly demonstrated a degree of creativity and in at least some photos produced what seemed to be a pleasant effect. It may be that she can be helped to find a more amenable environment by her lessor where she need not answer to a body corporate in a unit complex and where she has more room for her possessions and a capacity to garden. We recognise that there are many demands on the facilities that can be offered by the lessor but to the extent that it can be done we would urge them to consider this.
Other defences — honest opinion and contextual truth
We do not think they assist here.
Damages
There is also the issue of damages. The circulation of the material was limited. There is no evidence of any loss of reputation or any adverse impact on the applicant. She gave no evidence of injury to feelings. Her perceived detriment from this conduct was not from the publication, but from the decisions of the Executive Committee to stop her gardening and storing her belongings, as well as feeling under siege from them. None of that is strictly compensable in defamation.
At best, if the applicant had succeeded she would have got nominal damages.
For the above reasons, the application is dismissed.
R4’s request for costs
In his response to the applicant’s submission filed after the hearing, R4 requested a costs order be made in favour of the respondents for the time and resources spent in managing this matter. The respondents were clearly exasperated and disappointed that the whole matter had evolved as it had over a long time. The management of issues arising among people living in blocks of units is, however, the job of professionals like R4 and R5 and the volunteers on the Executive Committee, being Respondents 1-3, and it is to be expected that some issues will be more challenging to deal with than others. We can see that this matter has been difficult for the respondents in their professional and volunteer roles, which they have carried out in a thorough and methodical way. There is no power to make the order that R4 seeks as costs are governed by section 48 of the ACT Civil and Administrative Tribunal Act 2008.
Non-publication
Finally, the applicant asked that we revisit her request for a non-publication order.
She provided to us some documents regarding her success in having her address on the Electoral Roll suppressed. The precise evidence that led to this is still not clear but we accept that, at least at the time she made the request to the Australian Electoral Commission, there was a reasonable apprehension that she might suffer harm if personal information were to become public knowledge. We had heard this matter in an open hearing room, but no one other than the parties and Mr Gibbins attended. We have anonymised the applicant’s name, and some earlier interlocutory decisions have been published under this condition. We are unclear whether there are any further effective orders we can now make. We will make an interim non-publication order and allow the applicant liberty to apply within 21 days detailing any further orders we could make and providing evidence to establish the grounds on which the applicant says those orders should be made. In the meantime, these reasons will be provided to the parties only but will eventually be published without further change or with some restriction if the applicant can suggest a viable way of doing so and substantiate the need to do so.
Other observations
The case raises the issue of where social housing tenants are seen to be acting in a manner that is seen as inappropriate by an Executive Committee. A tenant has little standing to alter this. The landlord might get on the Executive Committee and seek to steer it in a different manner. However, the Commissioner for Social Housing is unlikely to be minded to do this and it emphasises issues that come up where social housing properties are part of an otherwise privately-owned complex. It is also an example of the problems in attracting unpaid volunteers to serve on an Executive Committee and the largely thankless role they take on.
The default rules are not drafted so as to make clear the extent that the Executive Committee might require a resident to cease or modify activity on public land that is adjacent to the complex. The question of whether changing locks amounts to an alteration of property is also obscure.
Whilst it has not been necessary for the Tribunal to decide, it should be observed that there was no direct evidence that the table and chairs was a nuisance as asserted. There was also no evidence that the gardener of UP 93 was subjected to tirades of abuse. In the absence of such evidence, we could not conclude that these matters were true.
On the other hand, it would seem that the applicant ought not to have continued to store her goods in the underfloor area, the bike sheds, or the caretaker’s room. In the former two areas, she should not have done so to start with.
As to the activity on public land, it is strongly arguable that it constitutes a breach of rules or the House Rules if it impinges on the amenity of the residents of the complex, but it is not as clear as it might be. To the extent that the gardening activity was on the common property and continued after requests were made to stop and to remove any items from it, we think that is a breach.
There was some conflict between the evidence given by R1 and that given by the applicant about whether she had express or implied permission for any of the asserted breaches. To the extent that there is, we record that we found the evidence of R1 more convincing, as he struck the Tribunal as a precise and careful man who had not been adverse to the applicant. He was able to give his evidence clearly about such matters. We regard him as honest and not unfair in his conduct towards the applicant. We found that the applicant’s evidence about such differences of understanding was not explained in the same clear manner and, whilst we do not find that she was other than essentially honest, she was wrong if she thought R1 had given her any permission that R1 disputes.
….……………………………..
Senior Member B Meagher SC
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | XD 233/2018 |
PARTIES, APPLICANT: | GP |
PARTIES, RESPONDENT: | John Mackenzie Carol Sherman John Dimitriou Liam Hambridge Daniel Leskovec |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member B Meagher SC and Member E Trickett |
DATES OF HEARING: | 25 and 26 October 2018 |
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