In the case of Raynor v Murray ( NSWDC 189) the District Court of NSW ordered Patricia Murray, a tenant of Manly residential flats known as “Watermark”, to pay damages of $120,000 to the chairman of the building’s strata committee for a defamatory email regarding an unlocked mailbox.
The email was sent to 16 residents of the block, plus the plaintiff.
The plaintiff, Gary Raynor , is a 78-year-old widower, who needed two walking sticks to enter the witness box. Ms Murray’s email gave rise to imputations that the plaintiff unreasonably harassed the defendant; acted menacingly by threatening her with emails; is a malicious person who sent threatening emails; and is a small-minded busybody.
Judge Judith Gibson held that Raynor’s insistence that Ms Murray lock her mailbox was entirely reasonable and proportionate, and the “sneering tenor” of the email sent by the defendant made serious accusations which attacked the reputation of the chairman.
Lock up your mailboxes!
Ms Murray’s mailbox has been mostly unlocked since she moved into the Watermark in July 2016.
In 2016, Ms Murray received three emails from Raynor. The first was a “welcome” email on her arrival and the second was an email stating that residents and strata managers had complained to him about a “noisy, late-night party” in Murray’s flat. The third simply stated, ” Hey Trish, I notice your mailbox has been left unlocked for quite a while?”
In April-May 2017, there were two break-ins to the mailboxes outside the Watermark building. Raynor, as chairman, sent a circular email to all owners and tenants advising of the break-ins, urging residents to lock their mailboxes, and attached a link to a local news article outlining the serious risks of identity theft and fraud using stolen mail.
The defendant replied to this email in “derisive terms” questioning how her mailbox being left open could help a thief break into the Watermark building’s locked mailboxes.
The plaintiff replied with advice he had received from a locksmith that an open mailbox can be used to create a master key and this is the most common way to gain access to these types of mailboxes. However, the plaintiff stated that “we have no way of knowing if this is the case” but that it would be best to keep the mailbox closed and locked in the future.
These emails, which Judge Gibson notes consisted of “a one-sentence inquiry in 2016 to Murray alone and a broader follow-up eight months later in the context of mailbox break-ins and advice from police and locksmiths,” caused the defendant to send a contemptuous email regarding Raynor to the owners and residents of Watermark.
This email portrayed Raynor as a “pathetic figure with fixations” who has conjured a “Mission Impossible style fantasy” about thieves stealing mail and is harassing not only [Ms Murray] but also the other residents by copying them in on emails about something as trivial as mailbox break-ins.
Trivial pursuit or serious allegation?
The defence pleaded justification, honest opinion, triviality and common law qualified privilege. It was asserted that Ms Murray’s email was a response to Raynor’s “repeated harassment … in relation to a trivial matter, namely whether her mailbox was unlocked”.
Judge Gibson was not satisfied that any of the plaintiff’s correspondence was anything other than “reasonable or proportionate”.
“Leaving a letterbox unlocked is not a trivial matter when there are two mailbox break-ins and, as the police noted in their public warnings, while mail theft might appear petty, it should be taken seriously because of the potential for criminal activity ranging from credit card misuse to identity theft involving crime syndicate activity.”
Further, the subject matter of the defendant’s email was held to not simply be about “unlocked mailboxes” but a complaint of harassment. An email regarding Raynor included the terms:
“criminal … stalk/stalking [twice] … fixation … thief/thieves [six times] … harassing/harassment [twice] … offensive … menacing … [and ended with] Please stop!”
Judge Gibson also noted that considering the audience receiving this email, there was a very real possibility of harm to the reputation of the plaintiff.
All the defences were rejected with the judge finding the ultimate purpose of the email was to “humiliate, belittle and insult the plaintiff in the most hurtful way possible, and to do so to other residents in the building”.
In determining the damages, Judge Gibson highlighted three factors. First, she was satisfied that Ms Murray was “well aware of the falsity of her allegations”. She considered defendant’s awareness to be demonstrated by the “selective nature” of “cutting and pasting” certain correspondence from Mr Raynor to accompany her email.
Secondly, Judge Gibson was satisfied that the defendant was motivated by her “hostility and ill will” towards the plaintiff. Gibson found that “every sentence in [the email] conveys contempt and anger. The language is extraordinary, as are the accusations, and the accusations are serious”.
Thirdly, Ms Murray ignored three requests for an apology. Raynor personally placed a request in her (unlocked) mailbox and the other two were issued by his legal team.
Ultimately, Judge Gibson found “it would be fair to say 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”.
Taking into account all the factors the judge believed a substantial award with aggravated damages was called for. She assessed general damages of $90,000 and aggravated damages of $30,000.
Plaintiff: R. Potter and A. Munro, instructed by Goldsmith Lawyers
Defendant: S. Chrysanthou and B. Dean, instructed by Barclay Churchill Lawyers
This report was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.