5 August 2019

Liability for Defamation by Body Corporate Committee Members

Mark Jones
Mark Jones Litigation Lawyer

More and more frequently body corporate committee members are becoming embroiled in lengthy and often expensive defamation proceedings.  Serving as a member of a body corporate committee is an honorary position and body corporate committee members need to remember that the laws of defamation can have serious repercussions in relation to their communications in that capacity.

Individuals who serve as members of a body corporate often ignore or overlook the ramifications of making defamatory statements or publications. There also appears to be a common misconception among many who serve on body corporate committees that they are entitled to make defamatory statements with impunity or they are immune from actions for defamation by virtue of the provisions of the Body Corporate and Committee Management Act 1997.

The essence of a claim for damages for defamation is the utterance or written publication of defamatory words of or concerning another person, to a third party.  A publication is said to be defamatory if it is likely to cause ordinary reasonable persons to think less of the plaintiff or to shun, ridicule, despise or avoid him.  Words are said to be defamatory when an ordinary reasonable person would interpret them as having a tendency to cause damage to the plaintiff’s reputation or standing within the community.  It is important to note that a defamatory imputation need not have an actual adverse effect upon a person’s reputation.  The law looks only to its tendency and damage is presumed.  In other words, there is no requirement to show actual or direct financial loss in order to establish or sustain a cause of action in defamation.

All that a plaintiff must prove in order to bring defamation proceedings is:

    1. that he/she is identified in the words or other material complained of;
    2. that his/her reputation has been damaged as a consequence; and
    3. that the words or material complained of has been published (i.e. to one or more other persons).

It is irrelevant that the utterance of words or the publication of them was not intended to be defamatory.  Whilst a lack of intention to cause harm may have some relevance to the assessment of damages arising from a defamation, it is not a defence to such a cause of action.

The Body Corporate and Committee Management Act 1997 contains provisions which afford body corporate committee members some limited protection.

On its face Section 111A, entitled, “Protection of body corporate and committee from liability for defamation” would seem to offer reasonable protection.  However, on closer examination the protection afforded by this section is very limited.  The section is expressed in the following terms:

111A   “Protection of body corporate and committee from liability for defamation”

  1.   This section applies if:
    1.   The committee for the body corporate for a community titles scheme publishes required material for a general meeting of the body corporate under the regulation model applying to the scheme; and
    2.   The required material contains defamatory matter.
  2.   Each of the following is not liable for defamation by the publication of the defamatory matter as mentioned in subsection (1):
    1.   the body corporate;
    2.   the committee, or a member of the committee, other than a member of the committee who submitted the motion or explanatory note containing the defamatory matter.     (our emphasis added)
  3.   In this section –

committee or member of the committee, for a Community Titles Scheme for which a body corporate manager is engaged to carry out the functions of a committee for the body corporate and each of its executive members, means the body corporate manager.

 required material, for a general meeting of the body corporate, means any of the following required under the regulation model applying to the community titles scheme to publish for the general meeting –

    1. a motion submitted other than by or for the committee for the general meeting;
    2. the substance of a motion mentioned in paragraph (a);
    3. an explanatory note for a motion mentioned in paragraph (a) prepared by the submitter of the motion”.

This section therefore affords very little protection to a member of a body corporate committee who is responsible for the submission of a motion containing a defamatory imputation or explanatory note pertaining to the same.

Section 101A   “Protection of committee members from liability” similarly does little to protect the interests of individual committee members.  It provides as follows:

101A   “Protection of committee members from liability”

  1. A committee member is not civilly liable for an act done or omission made in good faith and without negligence in performing the person’s role as a committee member.
  2. In this section –

act done or omission made, does not include the publication of a defamatory matter as mentioned in section 111A(1)”.

The Act however does contain provision which provides protection to those who become involved in an adjudication process as contemplated under the dispute resolution processes provided for under Chapter 6 of the Act.  Section 296(2) of the Act provides as follows:

  1.   Subject to subsection (3), the like privilege that exists with respect to defamation for a proceeding before the Supreme Court, and a document produced in the proceedings, exists for:-
    1.   an adjudication or a department conciliation session, specialist conciliation session or specialist mediation session; or
    2.   a document or other material:
      1.   sent or given to a person, or produced at a place –
        1.   for enabling a dispute resolution recommendation to be made; or
        2.   for an adjudication or a department conciliation session, specialist conciliation session or specialist mediation session; or
      2. produced in an adjudication or at a department conciliation session, specialist conciliation session or specialist mediation session; or
    3.   a statement made to the commissioner or a dispute resolution officer:
      1.   for enabling a dispute resolution recommendation to be made; or
      2.   for an adjudication or a department conciliation session, specialist conciliation session or specialist mediation session
  2. The privilege conferred by subsection (2) does not extend to a publication made otherwise than:
    1. at an adjudication or a department conciliation session, specialist conciliation session or specialist mediation session; or
    2. as provided by subsection (2)(b) or (c)”.

In serving as an individual member of a body corporate committee it should be borne in mind that the Body Corporate and Committee Management Act affords very little protection in the event of a defamation claim.

In the event of a claim for damages for defamation, persons who in their capacity as members of a body corporate committee publish material which contains a defamatory reference to another lot owner or others must look to defend themselves pursuant to the defence provisions as provided under the Defamation Act or under common law. In those circumstances a defence of “substantial truth” under Section 25 or qualified privilege under Section 30 of the Defamation Act 2005 may potentially afford some protection.

If as a member of a body corporate committee you have concerns that what is intended for publication could potentially be construed as being defamatory it is strongly recommended that you seek advice from us prior to publication.  In doing so you potentially could save yourself significant personal and financial stress.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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