379. The emails you wish you’d never sent
Podcast: Play in new window | Download
Subscribe: RSS
A NSW strata manager has been ordered to pay $35,000 in damages to a committee member defamed by three emails the strata manager sent ahead of an AGM. In this episode, I lead you through the key findings in the case, including why the form of an email might matter just as much as its content, and why ignoring the “troublesome” is always a risky move.
Thank you very much for this episode, Amanda. I feel myself as the plaintiff on similar scenario. With my current case going on against the OC whose chairman catapulted himself into his position after our AGM 2020, he felt so empowered to abuse me and dictate the strata management that clung onto him to discredit me from terminating our management agreement and changing such strata management on account of dishonesty and negligence of its duty.
With the reported water damage to one of my bedrooms, the agent and the chairman collude to exclude me from all meetings and deliberations even to the extent of withholding the contractors reports to be provided to me. Emails, and minutes of the meetings I have submitted to NCAT awaiting decision.
This episode inspires me to pursue defamation against the chairman, his external scribe and the agent.
I criticised the former chair of our EC after she harassed us with a noise complaint and a complaint about our heavily anchored balcony umbrella. She responded with a lawyer’s letter but then did not proceed any further.
I just love the references in this case to the omnibus.
Omnibuses; those were the good old days when “men of ordinary prudence” knew where Clapham was.
In the defamation case we see a number of references to “the ordinary reasonable reader”. You have heard of the Canberra bubble; well, there is a bubble of sorts when it comes to Justices and their ideas of what is reasonable and normal comes from within that bubble.
When you read a sentence like that found at para 34 “The ordinary reasonable person reading such an email would understand ….” then you must ask yourself “on what evidence is that assessment based?”
As a quick aside; law is a field that has a statistically proven record for considerable noise in decision making, i.e. error in judgment. See – Noise by Nobel Prize winner D Kahnerman.
I would go as far to say that those who have looked at the noise level would understand that it is an unacceptable level of noise but far be it from the public to ever be allowed to know this because the facade that we can have confidence in the system is paramount and so the hideous noise is rarely on a table, that the public can see, for discussion.
When Judges make such seemingly subjective and arguably baseless assessments that this is what an ordinary reasonable person would think or do or understand then is it just a wig wearers world outlook projected onto the plebs; one might think so given we never see validation for what ‘ordinary reasonable people are”. In fact an “ordinary reasonable person” is somewhat contemporary. Today’s ordinary reasonable person is far from the ordinary reasonable person on a Clapham omnibus who is far from an early Victorian ordinary reasonable person. There was a time when ordinary (reasonable) people, generally speaking, couldn’t even read.
Who is the modern ordinary reasonable person who reads?
He, or she, or whatever woke pronoun we care to use, is who a Judge says it is and there is no need for qualification of who they are.
Again, in the case at para 34, “This would attract the (ordinary reasonable) reader to …..”.
Would it, would it really?
Wig wearers – from a bubble, trained in the “sacred power**” (law) and full of ego* applying what an objective Justice might call fiction.
Kirby J was a big critic of fictions like ordinary reasonable people.
“it is common for courts to invoke the fiction of the reasonable observer, in assessing the impugned action (or neglect of action) on the part of the decision maker. .…
Applicant NAFF of 2002 v Minister for Immigration, Multicultural Affairs (2004) 221 CLR 1
Perhaps what we need to be taking away from this case is that this is a State licensed professional who was trained via a State approved method. Just look at the outcome and note that no amount of podcasts, or websites, or forums seem to be arresting the issues in strata.
I will just mention the following.
At TAFE we see grading in PASS/FAIL units where a student is either “competent” or “not competent”, staffs words not mine.
Hard to distinguish between the acceptable term, i.e. not competent, and incompetent absent the scrutiny of a wig wearer.
What a waste of resources this case is and what a pay day for the lawyers.
I always used to tell the cohort down at the School of Law at UNSW to drag their carcasses up to the Science Buildings and make themselves useful.
He said things.
She said things.
Things were done
Things were not done.
Do I think differently of either party because of it; no!
I guess I am just not reasonable or ordinary enough.
This case is not good reading.
* “Judges like flattery because judges are only former barristers, and the strong egos of barristers require flattery to be applied with a trowel.”
(Former High Court Justice Dyson Heydon)
** R Chenoweth & J Huck, ‘Tribunal Triptychs and Emerging Variations on a Theme: Mutli-Member and Multi-Disciplinary Tribunal Panels’ in R Creyke & J McMillan (eds), Administrative Law: The Essentials, AIAL, 2002
I respectfully disagree that it’s not “good reading”. In my reading of the case, it seems that the Strata Manager (SM) had overstepped the limitations of his role and sought to denigrate the character of Ms Read to deflect attention from his mismanagement. There’s many excellent Strata Managers out there that follow the regulations and behave respectfully and a few that forget that they are employees of the Owners Corporation. I think it’s an interesting case also because it may assist in providing a caution to SMs that are acting poorly. The test of reasonableness, as you say, is always somewhat subjective. But there must be a “test” of how a “reasonable person” would view the behaviour, to judge these Civil cases (and on the balance of probability that the evidence is factual). From my reading of the case it is my opinion is that the SM behaved unreasonably and sought to cause damage to the character of the plaintiff. (See my comment above)
Thank you for raising this important case. Your excellent explanation and points will be very helpful to many, I’m sure. It is important for Owners in a Strata Plan to understand that Strata Managers (SM) are employed by an Owners Corporation (OC) and do not have license to act without instructions of the delegated Committee representatives of the Owners Corporation. They can only act on behalf of an OC under the terms of the Contract with the OC. In this case, Dr Read held all positions in the Strata Committee, and was the go-to person for decisions of the OC. In my opinion, it was a just decision. This case may be a salient reminder to Strata Managers that their obligation is to behave within the parameters of Civil Law and confine their role to carrying out the directions of the OC, their employer. In our Strata Plan we are very fortunate to have an excellent, efficient and knowledgeable Strata Manager. There are many great Strata Managers out there, and full credit to them 🙂 …you just have to do some research to find them.
I have the reverse in my Community Title estate so this has been very timely. I am the Chair of a very large Community Association with over 3000 residents. I have been subjected to defamatory comments on facebook, receiving 250+ emails from one difficult resident. He is persistent in his efforts to imply impropriety to try and make me resign. Any podcasts like this really help. Thank you
I agree this is an important case.
It’s a tangible example of the law imposing a penalty on an individual who has sought to get what he wants (in this case, the ability to do his ‘job’ sloppily and without oversight) by trampling on someone else’s rights and reputation.
Notwithstanding the significant costs of this action (six days of hearings, three barristers…yikes!) I think this is a really important, and relevant, precedent.
It says: you can’t just casually disparage someone and accuse them of wrongdoing and get away with it.
I hope it is referred to frequently, and used to stymie this sort of behaviour.
I know I’m going to keep it handy.
Thanks Amanda!
“Raymond”! Thank Amanda for such steady steering…