The Facts
Tenant fails to keep letterbox locked at time of increase in theft of mail
The chairperson of the strata committee and the tenant lived in the same strata building. The tenant had recently moved into the complex and did not always lock her letterbox.
There was an increase of mailbox theft in the area and the chairperson was of the view that if all residents were to lock their letterboxes, it would reduce the chance of theft of mail.
Emails sent to tenant by chairperson of strata committee
The chairperson sent an email direct to the tenant on 31 August 2016, noting that her mailbox was unlocked: “I notice your mailbox has been left unlocked for quite a while?”
On 10 April 2017, when media reports emerged about mail thefts in the area, the chairperson again emailed the tenant directly about her mailbox being open.
Mailboxes broken into and further emails sent to residents
The mailboxes of the complex were broken into on two occasions, first in April and then in May 2017.
On each occasion the chairperson sent an email to all the residents, including the tenant, asking them to keep their mailboxes locked. Attached to one of those emails was an article from the Daily Mail on the potential for fraud originating from stolen mail.
On 24 May 2017, the chairperson sent a further email direct to the tenant, this time copying the email to the managing real estate agent, noting that the mailbox had again been left open for the last few days.
The email went on to suggest that “it is probable that your insistence in leaving the mailbox open during many months is the likely cause [of the break ins]” and that “the Owners Corporation may have to have all the mailboxes rekeyed”.
The email concluded that if that “serious expense” had to be incurred, then there was a “real possibility” that the strata committee “would – and should – seek compensation from [you]”.
Tenant claims she has been menaced, threatened and harassed
On 25 May 2017, the tenant sent an email to the chairperson responding to his email, which she copied to most of the owners of the units in the building (16 residents in total). As part of that email, she pasted in the text of several emails that the chairperson had previously sent to her and complained that she had been “harassed” by his “many emails”.
She also insinuated that perhaps the chairperson himself had been responsible for the break ins, stating:
Did you open the front panel… ? It has not gone unnoticed that the panel to all the mailboxes was opened only following your months of campaigning to have all residents comply with your demands!
The email ended with the following words.
To avoid further harassment, I’ve not replied to your provoking mailbox emails. However, your consistent attempt to shame me publicly is cowardly. It is also offensive, harassing and menacing through the use of technology to threaten me. Please stop.
The chairperson sued the tenant in the District Court of NSW for defamation, seeking significant damages.
Expert commentary on the court's decision
District Court finds tenant guilty of defamation
In handing down its finding in the case Raynor v Murray [2019] NSWDC 189, the District Court found the chairman, Mr Gary Raynor, to be a witness of truth.
The court found that the imputations made in the email of the tenant, Ms Patricia Murray, clearly identified Mr Raynor and affected his reputation in a damaging way. All of the claims of Mr Raynor were proven.
Imputations arising from email sent by tenant
Mr Raynor claimed that several imputations arose from the email that Ms Murray had sent to him and 16 other owners of units in the building:
Court finds imputations capable of being conveyed by tenant’s email
In the view of the court, the inclusion of the text of five of Mr Raynor’s previous emails in the email sent by Ms Murray did indeed give the impression that he was on a campaign of unreasonably harassing her.
The use of the words “fixation” and “menacing”, along with the phrase “months of campaigning”, demonstrated to the ordinary reader a disturbing obsession for a rather minor grievance.
The court agreed that the seriousness of the conduct described in Ms Murray’s email and the depiction of this behaviour as deliberate would indeed be viewed as malicious by the ordinary reader.
The sneering tone of Ms Murray’s email portrayed Mr Raynor as a pathetic figure with fixations, so the imputation that he was a “small-minded busybody” was found to be clearly conveyed and defamatory to Mr Raynor.
In summary, the court found that all four of the imputations were capable of being conveyed by Ms Murray’s email, that the imputations were false and that they defamed Mr Raynor.
Tenant’s defences to finding of defamation
As the defamation was substantiated, it then became a matter of whether any defences exist. The tenant pleaded four defences.
All defences pleaded by tenant fail
The judge determined that Ms Murray failed to establish the justification of any of the four imputations.
She was also found to have known the falsity of the imputations, as demonstrated by her selective editing of the previous emails to create an inaccurate impression of the exchanges between herself and Mr Raynor. This meant that the “honest opinion” defence failed.
Ms Murray’s choice of language and the suggestion that Mr Raynor could have staged the mailbox break ins himself were found to be at odds with the assertion that the matter was trivial.
The qualified privilege defence – that is, that Ms Murray had a legal, moral or social duty to inform the other residents of the building of Mr Raynor’s behaviour – was also dismissed. Ms Murray’s motivation in sending the email was found to be her anger and resentment at being asked repeatedly to lock her mailbox, along with her hostility and ill will towards Mr Raynor.
Consequently, each of Ms Murray’s defences failed.
Credibility of tenant called into question
In its judgment, the court noted that Ms Murray’s conduct had not assisted her case, finding that she and her partner were not “witnesses upon whom reliance can be placed”.
The court described the email from Ms Murray that had led to the defamation action as containing “the strongest adjectives she could find”, in order to embarrass the plaintiff and make him look as if his conduct was criminal, without having any basis for making such allegations.
The judge found that Ms Murray never felt “menaced” by Mr Raynor, but was instead enraged by his request that she keep her mailbox locked.
In its conclusion, the judgment stated that “every sentence of the defendant’s email… struck a blow at the plaintiff, and was intended to ridicule and humiliate him in every way.”
Court awards damages and aggravated damages to chairperson
In proceedings of this nature there must be an “appropriate and rational” relationship between the damages awarded and the harm that was sustained. There was no doubt that the email had a significant effect on the reputation of Mr Raynor, with almost every aspect of the email ridiculing or humiliating him in some way. Given the extent of the damage, the court awarded him $90,000 for general hurt and distress.
On account of Ms Murray’s failure to apologise for the email, the fact that her conduct was “improper, unjustifiable and lacking in bona fides” and the “recklessness of the publication”, the court further awarded an additional $30,000 for aggravated damages.