Ell v Milne (No 7) - [2013] NSWSC 600

Supreme Court

New South Wales

Medium Neutral Citation: Ell v Milne (No 7) [2013] NSWSC 600
Hearing dates: 6, 7 May 2013
Decision date: 08 May 2013
Before: McCallum J
Decision:
Defendant's application dismissed

Catchwords: DEFAMATION - defendant's application to have proceedings dismissed as an abuse of process - whether predominant purpose of plaintiff's action other than to seek remedy available at law
PROCEDURE - judgments and orders - costs - ordinary rule
Legislation Cited: Defamation Act 2005
Local Government Act 1993
Cases Cited: Ell v Milne (No 5) [2013] NSWSC 246
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Category: Interlocutory applications
Parties:
William Robert Ell (plaintiff)
Katie Milne (defendant)
Representation: Counsel:
T Tobin QC, B Kelleher (plaintiff)
S Molomby (defendant)
Solicitors:
Anthony Smith Solicitor (plaintiff)
NLS Law Pty Ltd (defendant)

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

Judgment - ex tempore

HER HONOUR: These are proceedings for defamation brought by Mr Bob Ell against Ms Katie Milne. Mr Ell's action was heard by me over several days in March of this year. At the conclusion of the hearing on 28 March 2013 I reserved my decision.

On 29 April 2013 Ms Milne filed a notice of motion seeking to have the proceedings dismissed as an abuse of the process of the Court. The basis for the application was the contention that Mr Ell's dominant purpose in bringing the claim was something other than the vindication of his reputation. That contention assumes a number of factual and legal premises which must be tested.

A threshold issue is the appropriateness of entertaining such an application after the cases of both parties have been closed and the Court has reserved judgment. I was at first minded to think that Ms Milne had first to seek leave to reopen her case. After hearing from the parties on the present application, however, I am inclined to think that the question of an abuse of the process of the Court may properly be raised in a discrete application at any point. If it is accepted, as plainly it must be, that the Court is the guardian and protector of the integrity of its own process, it must follow that a proceeding shown to have been brought or maintained in abuse of that process is liable to be dismissed at any point, even at the point where all that remains is for the tribunal to determine the matter.

Further, the evidence relied upon in support of such contention goes to discrete issues that may be determined, in my view, without the need for a party to reopen his or her substantive case. That is the basis on which the hearing of the present application proceeded. That said, the timing of the issue being raised, viewed in the context of the nature of the material relied upon to support it, may well be relevant to the issue of costs.

Turning to the substance of the application, it is appropriate to begin with the…

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 7)

Details

AGLC: Ell v Milne (No 7) [2013] NSWSC 600
Case: [2013] NSWSC 600
Decision Date: 08 May 2013

CaseChat Overview and Summary

The case of Ell v Milne (No 7) involved a defamation dispute between the parties. The defendant, Milne, applied to the court to have the proceedings dismissed on the basis that they constituted an abuse of process, arguing that the predominant purpose of the plaintiff, Ell's action was not to seek a remedy available at law. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the plaintiff's predominant purpose in bringing the action was to obtain a remedy available at law, or if it was something else, such as to harass or intimidate the defendant.

The court considered the nature of the plaintiff's claims and the circumstances surrounding the proceedings. It examined whether the plaintiff had an ulterior motive or if the defamation action was genuinely intended to seek redress for the harm caused. The court also took into account the conduct of the parties during the proceedings, including any unreasonable delay or unnecessary expense incurred. In determining the issue, the court applied the relevant legal principles and precedents to assess whether the predominant purpose test was satisfied.

After reviewing the evidence and arguments presented by both parties, the court found that the plaintiff's predominant purpose in bringing the action was to seek a remedy available at law. The court was satisfied that the defamation action was not an abuse of process and dismissed the defendant's application. The court held that the plaintiff's claims were genuine and not brought for an improper purpose. The court also made orders for costs in favour of the plaintiff, in accordance with the ordinary rule.

Orders