A tenant in a residential apartment building has received a pretty expensive lesson in the value of ‘thinking before sending’ after the District Court of NSW ordered the tenant to pay $120,000 in damages to the strata committee chairman for sending a defamatory email that was seen by several owners and residents in the building (Raynor v Murray [2019] NSWDC 189).

Judge Gibson stated that the tenant failed to prove that any of the defamatory comments were true or that any fact or matter was capable of mitigating damages.

The case also considered whether the matter was an expression of opinion made by the tenant or a statement of fact. The court held that any of the opinions alleged or held by the tenant failed to be true.

The tenant, in pleading the statutory defence of triviality, claimed that the email was ‘light –hearted and jocular’. However, in considering the use and frequency of such words as ‘criminal, stalk/stalking, fixation, thieves, harassing/harassment, offensive and menacing,’ the court concluded that the tenant ineffectively recognised that the email would not cause harm.

Furthermore, the tenant was unsuccessful in qualifying the common law defence of qualified privilege as the nature of the communication failed to warrant or be connected to an occasion of privilege. In reply, the tenant argued that a reply to an attack of a person’s reputation might give rise to a privileged occasion.

The court also reasoned on the established principle that a defence must be a shield and not a sword, as is a response to the attack. The tenant’s reply was disproportionate in content and language to the chairman’s communications.

In addition, the chairman successfully established that the tenant was malicious by reason and that there was prior hostility, ill will and a total disproportion between the matter and the email.

Judge Gibson awarded $90,000 in damages as every sentence of the tenant’s emails ‘struck a blow’ to the chairman and that it ‘intended to ridicule him in every way’. An additional $30,000 was awarded for aggravated damages, as the tenant’s conduct was ‘improper, unjustifiable, and lacking bona fides’.