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Can you use emails for mediation and hearings
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dingo
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19/11/2016 - 3:17 pm
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I am wondering if you can use emails sent by the strata manager at mediation or NCAT. I think that any correspondence sent to the EC or owners corporation by the strtata manager is deemed to be served on the Owners Corporation.But can the emails sent to the EC be used?

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JimmyT
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19/11/2016 - 6:54 pm
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What do you mean by "use".  Emails to the EC in its role as representatives of the Owner Corp are effectively emails to all owners so you can certainly raise them at a hearing . 

However, mediation is an attempt to get agreement between two parties in dispute so "evidence" is only there as background information, pointing to a pattern of behaviour, for instance, to explain your position.  As there is no externally imposed decision or ruling at the end of mediation, the question of proving something through evidence is irrelevant.

However, an adjudication hearing is like a court of law where evidence of behaviour may well influence a Member's decision.  By the way, anything said at a mediation can't be used as evidence in an adjudication. 

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dingo
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20/11/2016 - 1:21 am
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By use I mean use as evidence. The reason I ask is the strata managers emails have a discalimer

The contents of this e-mail and its attachments are confidential and may be subject to legal professional privilege and copyright. It is intended solely for the addressee. Access to this e-mail and its attachment by anyone else is unauthorised. No representation is made that this e-mail or any attachment is free of viruses and other defects. Virus scanning is recommended and is the responsibility of the recipient. If you are not the intended addressee, any disclosure, usage, copying, distribution or any action taken or omitted to be taken in reliance on it, is prohibited. If you have received this communication in error, please advise the sender immediately by reply e-mail and delete this message from your computer. Thank you for your cooperation.

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Sir Humphrey
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20/11/2016 - 11:01 am
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If the mediation is between the EC and the manager and the correspondence that you want to refer to is between those same two parties, I can't see any problem at all. If you later want to use the emails in evidence at a hearing, then I doubt that the disclaimer would carry any weight. I think someone presiding over a hearing would ask the manager: "Well, did you write that to the EC or didn't you?"

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dingo
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20/11/2016 - 3:22 pm
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Hi Peter knowing my strata manager they would probably so no we didnt.

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JimmyT
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20/11/2016 - 7:20 pm
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Just a note here about privacy and privileged access. The strata committee of a building I know very well was recently sued by a former employee for wrongful dismissal.  Evidence was led at the court case of what was effectively a campaign of character assassination.  The former employee won but the chairman and secretary told owners that they couldn't publish the contents of the finding as they were "sealed".

Technically, they were correct.  What they didn't say was that, as they were sued as representatives of the committee and therefore the building, the owners corporation - i.e.

ALL the owners in the building - were parties to the action and entitled to see the sealed contents of the court case. Two owners went to the strata manager and were allowed to view the transcripts and all the evidence after they signed an undertaking not to reveal their contents to anyone who was not an owner.

In other words, if your strata manager's emails were sent to the committee in his role as strata manager, then it's just the same as if they were sent to you so the disclaimer has no effect.

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dingo
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20/11/2016 - 9:55 pm
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Interesting, thanks JimmyT

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