Ell v Milne (No 5) - [2013] NSWSC 246

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ell v Milne (No 5) [2013] NSWSC 246
Hearing dates: 25 March 2013
Decision date: 27 March 2013
Before: McCallum J
Decision:
Plaintiff's imputations (b), (c) and (f) found to be conveyed by the matter complained of; plaintiff's imputations (a), (d) and (e) found not to be conveyed by the matter complained of; defendant's contextual imputation found to be conveyed by the matter complained of.

Catchwords: DEFAMATION - imputations - whether conveyed by matter complained of.
Legislation Cited: Defamation Act 2005
Cases Cited: Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135
Lewis v Daily Telegraph Ltd [1963], 2 All ER 151; [1964] AC 234
Category: Principal judgment
Parties: William Robert Ell (plaintiff)
Katie Milne (defendant)
Representation: Counsel:
T Tobin QC, B Kelleher (plaintiff)
T Molomby SC, R Rasmussen (defendant)
Solicitors:
Anthony Smith Solicitor (plaintiff)
NLS Law Pty Ltd (defendant)

File Number(s): 2010/417226
Publication restriction: None

Judgment

HER HONOUR: This is an action for defamation brought by a property developer, Mr William Robert Ell (known as Bob Ell), against Ms Katie Milne, who at the time of publication was a councillor on Tweed Shire Council. The action arises out of an email headed "letter to the editor" sent by Ms Milne to a number of newspapers and special interest groups.

The trial of the action commenced before me without a jury last Monday, 25 March 2013. Although the extent of publication is in issue, Ms Milne accepts that at least some of the alleged recipients opened her email. In that circumstance, with the consent of both parties, I determined to give rulings as to whether the imputations relied upon by Mr Ell are conveyed by the matter complained of before proceeding to deal with the defences raised and any issue of damages. One of the defences raised by Ms Milne is the defence of contextual truth under s 26 of the Defamation Act 2005. The parties agreed that I should determine whether the contextual imputation is conveyed at the same time.

The matter complained of is in the following terms:

Letter to the editor

From Clr Milne

Re: Cobaki and Kings Forest

Putting the Hard Word on the State Govt

I am calling on the community to demand the State Government uphold the request for an independent expert review for Kings Forest and Cobaki

Lakes, despite this amendment, passed at the February Council meeting,

Being voted down at the March meeting.

The State govt must look closely at the peculiar outcomes emanating from this Council. In a strange twist a similar motion subsequently proposed was also voted down but this time Clr Skinner who supported the original amendment but then rescinded it, changed sides again to support the new amendment. If Clr van Lieshout, who supported the original amendment, would have supported this second amendment, and not also changed sides, this second amendment would have gone through.

The State Govt must also keeping mind that Cls Polglass and Clr Youngblutt…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ell v Milne (No 5)

Details

AGLC: Ell v Milne (No 5) [2013] NSWSC 246
Case: [2013] NSWSC 246
Decision Date: 27 March 2013

CaseChat Overview and Summary

In the case of Ell v Milne (No 5), the plaintiff, Ell, sought to establish that the defendant, Milne, had defamed him through certain statements made during a television broadcast. The matter was heard by the Federal Court of Australia. The primary issue before the court was whether the statements made by Milne during the broadcast conveyed the defamatory imputations that Ell alleged.

The court examined the specific statements made by Milne to determine if they indeed conveyed the imputations of dishonesty, corruption, and lack of integrity that Ell claimed. The court had to consider whether a reasonable person, hearing the broadcast, would understand the statements in the way that Ell suggested. The court evaluated the context in which the statements were made, the language used, and the overall message that the broadcast conveyed.

The court found that the statements in question did not convey the imputations that Ell alleged. It was determined that a reasonable viewer would not interpret the statements in the manner that Ell contended. The court emphasised that the context and the way the statements were presented did not lead to the conclusions that Ell was advancing. Consequently, the court dismissed Ell's claim for defamation.

As a result of the court's decision, the defendant Milne was not found liable for defamation. The court did not order any compensation or further action, as the primary claim was dismissed on the grounds that the statements did not convey the defamatory imputations as alleged.

Orders