The unlocked letterbox -> the
group email -> the defamation suit -> the legal fees
In a victory for freedom of speech, the NSW Court of
Appeal has decided that residents in strata buildings can
freely express opinions about the management of their strata
scheme even though the opinions might be defamatory, because
they are protected by common law qualified privilege.
The decision is Murray v Raynor  NSWCA 274
(13 November 2019) (Payne JA, Macfarlan JA and Emmett AJA
agreeing), Court of Appeal, Supreme Court of New South
Wales, on appeal from the NSW District Court decision of
Raynor v Murray  NSWDC 189 (Gibson DCJ).
The Watermark Apartment Building is premium quality
apartment building overlooking Manly Cove Beach. There are
16 letterboxes, which are standard-sized lockable numbered
boxes. They are outside the building, in a portico on
(photos L to R – the Watermark Apartment Building, the
entry portico, letterbox #9)
Gary Raynor, a retired civil engineer, had been the chair
of the strata committee since 2012.
Trish Murray rented apartment 9 in July 2016.
A chain of emails between Mr Raynor and Ms Murray led to
the defamation suit:
- On 25 July 2016, Mr Raynor sent her a “welcome”
email containing information on Watermark.
- On 31 August 2016, Mr Raynor sent her an email: “I
notice your mailbox has been left unlocked for quite a
- On 13 December 2016, Mr Raynor complained to her
about a party she had held.
- On 10 April 2017, Mr Raynor sent her an email to the
effect that keeping mailboxes open encourages thieves
looking for mail and identity papers, ending: “Would you
mind closing the box.”
- On 21 April 2017, Mr Raynor sent a group email to
owners, residents and agents of Watermark advising “It
appears that during the night of 20/21 April 17, our
mailboxes were opened by potential thieves … please make
sure your mailbox is closed and locked ASAP … and keep
it locked”. A link was included to an article on the
Daily Telegraph about identity theft by letterbox
thieves known as “boxers”.
- On 27 April 2017, Mr Raynor sent her an email which
included the text of his emails of 10 April 2017 and 31
August 2016, and said that “exactly” what he had warned
about had happened and that her “open box may have
contributed to the ease with which the [thieves]
apparently obtained a master key to open the other
- On 2 May 2017, Mr Raynor sent a further group email
to report that 5 mailboxes were broken in overnight on
1/2 May 17.
- On 5 May 2017, Mr Raynor sent her an email to point
out that her mailbox had been open “for the last two
Ms Murray did not reply to these emails.
- On 24 May 2017, Mr Raynor sent her an email copying
in her agent and the landlord. He then forwarded the
email to the group of owners, residents and agents. He
repeated that her leaving the mailbox open “is the
likely cause” of thieves obtaining a skeleton key, that
all boxes may have to be rekeyed, and that compensation
would be sought from the owner of Unit 9.
- On 25 May 2017, Ms Murray replied, copying in the
group. This was the email that Mr Raynor alleged was
defamatory. These are some excerpts:
From: Trish Murray Subject Re: Watermark: Unit 9
Your assertion/s that a single unlocked letterbox has
allowed a criminal milieu to stalk the watermark
building, and spend the time necessary to copy
barrels/locks in order to then construct a master key is
I doubt that thieves would execute a Mission Impossible
scenario on the Watermark building.
Letterbox locks are a deterrent and not fortress
May I suggest, given your email hobby, that ... banking
statements ... [be] provided to you in an e-Statement
rather than a simple knock on my door for a chat in
person … you have consistently chosen the public email
option … alleging that responsibility for the threat and
safety to our home at Watermark is our doing and
threatening to hold us financially responsible.
Your consistent attempt to shame me publicly is
cowardly. It is also offensive, harassing and menacing
through use of technology to threaten me.
- In early 2018, the strata owners corporation took Ms
Raynor to NCAT (the NSW Civil and Administrative
Tribunal) which resulted in a confidential agreement by
Ms Murray to keep her mailbox locked.
- There was no strata by-law which required
letterboxes to be kept locked.
- Ms Murray deliberately kept her letterbox unlocked
to allow the postman to place small packages into the
box which would not fit through the slot.
- No avenues were explored by the strata owners to
address Ms Murray’s needs such as to provide a place for
the postman to leave packages.
- Ms Murray’s lease was not renewed and she moved out
in July 2018.
The defamation suit
In proceedings commenced in 2017, Mr Raynor alleged that
the email of 25 May 2017 contained defamatory imputations,
namely that he:
- Unreasonably harassed and acted menacingly towards
Ms Murray by consistently threatening her by email
- Was a malicious person by sending group emails to
publicly humiliate her
- Was a small minded busybody who wastes the time of
fellow residents on petty items concerning the running
of the Watermark building
The District Court found the defamation was established,
and that the defences under the Defamation Act 2005
of honest opinion and triviality were not established. Nor
was the defence of qualified opinion at common law
The Court awarded Mr Raynor $120,000 in damages,
It would be fair to say that every sentence of [Ms
Murray’s] email struck a blow at [Mr Raynor], and was
intended to ridicule and humiliate him in every way.
The Court of Appeal decided differently.
It found that the common law defence of qualified
privilege applied. The Court relied upon a 185 year old
precedent decision of Toogood v Spyring (1834) 1 Cr M
& R 181 at 193 where Baron Parke said:
If fairly warranted by any reasonable occasion or
exigency, and honestly made, such communications are
protected for the common convenience and welfare of society.
The Court found that the privileged ‘occasion’ was
“communication to residents of Watermark on the topic of
management of the building including the security of
mailboxes”; and that the defamatory statements were
“sufficiently connected” to the privileged occasion, were
not motivated by malice and Ms Murray had no improper
purpose. The Court noted that “ill-will, prejudice, bias,
recklessness, lack of belief in truth or some improper
motive” are insufficient to establish malice.
It is worth noting that Ms Murray’s email was sent only
to the owners of units in the Watermark. The Court noted
that “If, for example, the matter complained of had been
published on an internet platform open to all this may have
been a very different case.”
The NSW Court of Appeal upheld the appeal, set aside the
award of $120,000, and ordered Mr Raynor pay Ms Murray’s
legal costs in the appeal and also in the trial in the
District Court. Mr Raynor is liable to pay his own legal
The outcome is that Mr Raynor not only failed in his
defamation suit but will pay an estimated total of $400,000
in legal costs - $200,000 for Ms Raynor’s legal costs and
$200,000 for himself, for the trial and the appeal.
This decision stands for the proposition that owners and
residents in strata buildings are free to express their
opinions about matters concerning the management of their
building to other residents and owners, without fearing
But there are limits – the opinions cannot be malicious,
and must not be published on social media platforms outside
of a closed group (the owners and residents).
This decision also stands for the proposition that
defamation proceedings should only be considered if the
defamation is clear-cut. Otherwise, the defamed party may
end up paying not only their own but also the other party’s