Enter your email Address

LookUpStrata

Strata Information Leading to Open Discussion

  • The Strata Magazine banner
  • Subscribe to LookUpStrata banner
Australia's Top Property Blog Dedicated to Strata Living
  • Home
  • What is strata?
    • Strata Legislation – Rules and ByLaws
    • What is Strata?
    • Glossary of NSW Strata Terms and Jargon
    • Understand Strata Management with this Five-Minute Guide
    • Cracking the Strata Fees Code
    • Strata Finance
  • Strata Topics
    • Strata Information By State
      • New South Wales
      • Queensland
      • Victoria
      • Australian Capital Territory
      • South Australia
      • Tasmania
      • Western Australia
      • Northern Territory
    • Strata Information By Topic
      • COVID-19
      • By-Laws & Legislation
      • Smoking
      • Parking
      • Noise & Neighbours
      • Insurance
      • Pets
      • Your Levies
      • New Law Reform
      • Maintenance & Common Property
      • Committee Concerns
      • NBN & Telecommunications
      • Building Defects
      • Renting / Selling / Buying Property
      • Strata Managers
      • Building Managers & Caretakers
      • Strata Plan / Strata Inspection Report
      • Apartment Living Sustainability
    • Strata Webinars
      • NSW Strata Webinars
      • QLD Strata Webinars
      • VIC Strata Webinars
      • ACT Strata Webinars
      • SA Strata Webinars
      • WA Strata Webinars
    • Upcoming Strata Events
  • Blog
    • Newsletter Archives
  • The Strata Magazine
    • The NSW Strata Magazine
    • The QLD Strata Magazine
    • The VIC Strata Magazine
    • The WA Strata Magazine
  • Advertise With Us
    • Site Sponsors
  • About Us
    • Testimonials for LookUpStrata
  • Help
    • Ask A Strata Question
    • Q&As – about the LookUpStrata site
    • Sitemap
Home » Bylaws » Bylaws NSW » NSW: “You Can’t Say That!” – Defamation Reforms and Strata Schemes

NSW: “You Can’t Say That!” – Defamation Reforms and Strata Schemes

Published September 19, 2023 By Allison Benson, Kerin Benson Lawyers Leave a Comment Last Updated October 2, 2023

Share with your strata community

0 shares
  • Share
  • LinkedIn
  • Email

This NSW article is about defamation reforms and strata schemes.

Lannock Feb 2024 Webinar NL Promo

GET NOTIFIED WHEN WE PUBLISH NEW Q&AS, NEWS AND ARTICLES TO THE SITE

Living in a Strata Scheme, Neighbourhood Scheme or Community Association can be challenging – especially so when tempers flare and fingers fly (over a keyboard). Many people vent their frustrations about their neighbours, their owners corporation, committee or strata manager in public forums, such as mass emails and social media. A lot of the time, these statements are what most people would consider defamatory – hurting the reputation and public standing of the person whom the statement is about.

In Australia, the legal system is rife with defamation lawsuits – and some have even been related to strata. For instance, the case of Murray v Raynor [2019] NSWCA 274, which we discussed in an earlier article the link to which is here: Defamation and owners corporations: be careful in your communications.

As a recap, in that case Mr Raynor, the chairman of a strata committee, brought a defamation suit against Ms Murray, a tenant in the building they both lived at Manly. Mr Raynor sent a number of emails to the tenant and expressed concerns about the security of mailboxes, forming the view that Mr Murray’s unlocked mailbox increased the risk of theft from all letterboxes in the building. Ms Murray sent an email to Mr Raynor and copied the other 16 lot owners in the building, claiming that she had been harassed him. At first instance, the primary judge found Ms Murray had defamed Mr Raynor – and awarded the Chairman $120,000 in damages. On appeal, this decision was reversed – the NSW Court of Appeal found that the defence of qualified privilege applied and that the damages awarded were “manifestly excessive”.

In case you are wondering, qualified privilege means that people in a certain relationship to each other, in certain circumstances, can say things to each other that would, in any other circumstance, be considered defamatory. In Murry v Raynor, this relationship was the Chairman of the Strata Committee and a tenant of the scheme, and the circumstances of the communication were the security of the mailboxes, which is a topic which is in the purview of all the lot owners and occupiers of the building.

Because of how many defamation cases are brought, reforms have recently been taking place in this area of law. In mid-2021, a new element of defamation was legislated – the “serious harm test”. This new element abolished the common law presumption that the defamed person has suffered damage upon the publication of defamatory material. Now, you have to show that the publication of defamatory matter about you has caused, or is likely to cause, serious harm to your reputation.

The Defamation Act 2005 (NSW) does not define “serious harm”, but the case law throughout the last 18 months has fleshed this out for us. The courts have taken into consideration factors such as:

  • Causation (establishing a causal link between the alleged imputations of defamatory publications and serious harm to reputation);
  • Duration of accessibility to the publication (with the level of harm diminished if the publication was only accessible for a short time); and
  • Audience (if the audience is small or do not believe the statement, it is less likely to be defamatory).

This sets the bar much higher than it used to be for people to bring an action in defamation – which was the intent of the reforms.

So, what does this mean for people in Strata Schemes and Community Associations who have been defamed? Likely, you will need to look elsewhere for your remedy.

Ashley Howard & Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990

This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.

This post appears in Strata News #664.

Have a question or something to add to the article? Leave a comment below.

Embed

Read next:

  • NSW: Q&A Defamation in Owners Corporations Communication
  • NSW: Q&A Which ByLaws Apply to Our Strata Scheme?

This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyer website.

Visit our Strata By-Laws and Legislation OR NSW Strata Legislation pages.

Looking for strata information concerning your state? For state-specific strata information, take a look here.

Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.

After a free PDFof this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.

Share with your strata community

0 shares
  • Share
  • LinkedIn
  • Email

About Allison Benson, Kerin Benson Lawyers

Allison is a strata lawyer who has provided general strata advice, acted in strata disputes (including building defect disputes) and worked with clients in preparing and enforcing by-laws and strata management statements, since 2008. From 2012 onwards, Allison has acted exclusively on behalf of owners corporations and lot owners in respect of both strata and community association disputes and building and construction disputes.

Allison has extensive experience in commercial litigation and dispute resolution, having represented clients in contractual claims, interpretation of by-laws and rules, Home Building Act claims and levy recovery claims at all levels of court proceedings, including in the Court of Appeal and in the former CTTT (now the NSW Civil and Administrative Tribunal known as NCAT). Allison’s knowledge across a variety of strata schemes matters enables her to advise owners corporations, lot owners and other interested parties on a range of issues and to represent their interests both informally and before the courts.

Allison is a member of the Australian College of Community Association Lawyers (ACCAL), the Newcastle Law Society and the Society of Construction Law Australia. She holds a Bachelor of Laws (Hons) from Macquarie University and a Bachelor of Business from the University of Newcastle.
Allison's LinkedIn Profile.
Allison is a regular contributor to LookUpStrata. You can take a look at Allison's articles here .

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Search For Strata Articles

  • Advert Stratabox
  • StrataBox Advert
  • Advert: StrataLoans
  • Advert: StrataLoans
  • Advert: StrataLoans
Subscribe Newsletter

TESTIMONIALS

"LookUpStrata should be compulsory reading for every member of a Body Corporate Committee. It provides the most understandable answers to all the common (and uncommon) questions that vex Body Corporates everywhere. Too often Committee members do not understand what Body Corporates are legally able to do and not do. LookUpStrata helps educate everybody living in a Body Corporate environment for free." John, Lot Owner

"It's the best and most professional body corporate information source a strata manager could have! Thanks to the whole team!" MQ, Strata Manager

"I like reading all the relevant articles on important issues on Strata living that the LookUpStrata Newsletter always effectively successfully covers"
Carole, Lot Owner

"Strata is so confusing and your newsletters and website are my go-to to get my questions answered. It has helped me out so many times and is a fabulous knowledge hub." Izzy, Lot Owner

Quick Login

Log In
Register Lost Password

Categories

  • Contact a Strata Specialist on the LookUpStrata Directory
  • Ask Us A Strata Question
  • New South Wales
  • Queensland
  • Victoria
  • Australian Capital Territory
  • South Australia
  • Tasmania
  • Western Australia
  • Northern Territory
  • ByLaws & Legislation
  • Smoking
  • Parking
  • Noise & Neighbours
  • Insurance
  • Pets
  • Levies
  • Law Reform
  • Maintenance & Common Property
  • Committee Concerns
  • NBN & Telecommunications
  • Building Defects
  • Renting / Selling / Buying
  • Strata Managers
  • Building Managers and Caretakers
  • Strata Reports / Plans
  • Sustainability

Recent Comments

  • William Marquand on QLD: What does Strata Insurance cover? What do we need to disclose?
  • Tyrone Shandiman on QLD: What does Strata Insurance cover? What do we need to disclose?
  • Liza Admin on SA: Q&A Strata Regulations About Car Parking Rules
  • Liza Admin on SA: Q&A Rights to have pets for residents in strata
  • Tyrone Shandiman on NAT: Q&A Yearly Increases To Strata Insurance
  • Tyrone Shandiman on NAT: Q&A Yearly Increases To Strata Insurance
  • Tyrone Shandiman on QLD: What does Strata Insurance cover? What do we need to disclose?
  • Robert Budniak on NSW: E-Bike and E-Scooter Battery Fires in Strata on the Increase
  • stephanie nicholls on WA: Q&A What Do Strata Fees Cover? How are Increases Calculated?
  • [email protected] on VIC: Q&A Process to change the Registered Owners Corporation Rules

WEBSITE INFORMATION

  • Privacy Policy
  • Terms and Conditions of Use
  • Terms of Use for Comments and Community Discussion
  • Advertising Disclosure
  • Sitemap

SCA Membership

SCA WA Membership

ASK A STRATA QUESTION

Disclaimer

The opinions and/or views expressed on the LookUpStrata site, including, but not limited to, our blogs and comments, represent the thoughts of individual bloggers and our online communities, and not those necessarily of LookUpStrata Pty Ltd. In all instances, information should not be taken as advice and independent legal advice should be consulted.

CONTACT US VIA EMAIL

Copyright © 2024 · LookUpStrata ® Pty Ltd · All rights reserved