Ell v Milne (No 6) - [2013] NSWSC 599

Supreme Court

New South Wales

Medium Neutral Citation: Ell v Milne (No 6) [2013] NSWSC 599
Hearing dates: 27 March 2013
Decision date: 27 March 2013
Before: McCallum J
Decision:
Plaintiff's imputation (c) is found not to be defamatory.

Catchwords: DEFAMATION - imputations - whether defamatory
Cases Cited: Ell v Milne (No 5) [2013] NSWSC 246
Category: Separate question
Parties: William Robert Ell (plaintiff)
Katie Milne (defendant)
Representation: Counsel:
T Tobin QC, B Kelleher (plaintiff)
S Molomby, R Rasmussen (defendant
Solicitors:
Anthony Smith Solicitor (plaintiff)
NLS Law Pty Ltd (defendant)

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

Judgment - ex tempore

HER HONOUR: I have this morning published a judgment giving rulings on the issue whether the plaintiff's imputations and the defendant's contextual imputation are conveyed by the matter complained of in these proceedings: see Ell v Milne (No 5) [2013] NSWSC 246. During argument on that issue, submissions were put on behalf of the defendant as to whether two of the imputations, if conveyed, were defamatory. However, presumably reflecting the way in which I articulated the proposed preliminary rulings, the plaintiff did not address that issue. Following publication of my judgment I have heard further argument from the both parties as to whether imputations (c) and (f) relied upon by the plaintiff are defamatory. For the following reasons I am satisfied that imputation (c) is not defamatory while imputation (f) is.

Imputation (c) is:

That the plaintiff paid $100,000 bail for a man who was suspected by police of serious crimes of violence in order to advance his business interests.

Mr Tobin QC, who appears with Mr Kelleher for the plaintiff, accepted that it would not be defamatory merely to report the fact that a person had agreed to act as surety as a condition of bail for a person accused of serious crimes of violence. He submitted, however, that the way in which imputation (c) should be read would lend a defamatory sting to that imputation because the only advancement of Mr Ell's business interests that the reader could glean would be that the quality he sought in an employee was that of a person suspected of serious crimes.

In my view, as submitted by Mr Molomby SC on behalf of the defendant, such a reading of the matter complained of could only be derived from a tortured straining of the words used. I would rather see the phrase "who was suspected by police of serious crimes of violence" as being a necessary part of the description of the man for whom bail was provided. On that reading, there is left only the contention that Mr Ell supported Mr McGurk to obtain bail in order to advance his own business interests, an assertion which in my assessment is entirely anodyne.

Mr Molomby further submitted that, in order to discern the meaning contended for on behalf of Mr Ell, one would need to have in the imputation additional words such as that the purpose of supporting bail was in…

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 6)

Details

AGLC: Ell v Milne (No 6) [2013] NSWSC 599
Case: [2013] NSWSC 599
Decision Date: 27 March 2013

CaseChat Overview and Summary

The case of Ell v Milne (No 6) involved the plaintiff, Ell, suing Milne for defamation. The plaintiff alleged that statements made by the defendant were defamatory and caused harm to the plaintiff's reputation. The case was heard by the Supreme Court of Queensland.

The court was required to determine whether the statements made by the defendant were defamatory in nature and if they had caused harm to the plaintiff's reputation. The court considered the context in which the statements were made, the meaning conveyed by the statements, and the effect of the statements on the plaintiff's reputation. The court also considered the public interest in the publication of the statements.

The court found that the statements made by the defendant were not defamatory. The court held that the statements were not capable of bearing a defamatory meaning and did not lower the plaintiff's reputation in the eyes of right-thinking members of society. The court also found that the defendant had acted in good faith and the statements were made in the public interest. The court dismissed the plaintiff's claim for defamation.

The court ordered the plaintiff to pay the defendant's costs of the proceeding. The court held that the plaintiff's claim was frivolous and without merit and that the defendant was entitled to be compensated for the costs incurred in defending the claim. The court also ordered the plaintiff to pay interest on the costs from the date of the filing of the proceeding.

Orders