Australia: Was the email defamatory? Which case won?

Last Updated: 6 November 2019
Article by George Koimanos

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.

case a - The case for chairperson

case b - The case for tenant

  • The claim that I sent the tenant "many" emails and copied in all the other residents of the building is not true.
  • I have been depicted as a malicious person who acted menacingly, unreasonably harassing the tenant by consistently threatening her by email. I have never menaced, harassed or threatened the tenant by email or in any other way.
  • The allegation made that I was the perpetrator of the mailbox break-ins paints me as a criminal and a thief. This is clearly defamatory.
  • I was portrayed as a small-minded busybody who wasted the time of residents on petty items concerning the running of a building.
  • The emails I sent were only sent to the tenant, except two general emails that were sent to all of the residents, whereas the tenant sent her email to 16 different people for the purpose of publicly humiliating me.
  • I have been defamed by the unrestrained phrases in the email from the tenant, that clearly identify me and have lowered and harmed my reputation. The court should find the tenant guilty of defamation.
  • When I first took up residence in the building, I received the standard "welcome" email which included information about the building. There was no mention of any need to lock letterboxes in this email.
  • There is no law or bylaw specifying the need to lock letterboxes, so the chairperson had no right to ask me to keep my letterbox locked.
  • The material in my email was substantially true, considering the repeated emails of the chairperson, that were sent solely to shame and humiliate me.
  • The email I sent was an expression of honest opinion as opposed to a statement of fact.
  • The subject matter of unlocked mailboxes is a trivial matter and the tone of my email is light-hearted and jocular. It was only sent to a limited number of people who had already formed their view on the matter and therefore was unlikely to cause harm to the chairperson.
  • I had a social and moral duty to alert the other residents of the apartment block to the behaviour of the chairperson and the court should find that I am not guilty of defamation.

So, which case won?

Cast your judgment below to find out

George Koimanos
Defamation
Stacks Champion

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