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Ell v Milne (No 8)

Ell v Milne (No 8)

Case [2014] NSWSC 175 7 March 2014

Defence of Qualified Privilege

Defence of Contextual Truth

Damages

Aggravated Damages

Defamation

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Ell v Milne (No 8) [2014] NSWSC 175
Hearing dates: 25, 27, 28 March, 6, 7 May 2013
Decision date: 07 March 2014
Before: McCallum J
Decision:
Judgment for the plaintiff in the sum of $15,000

Catchwords:
DEFAMATION - defences - defence of qualified privilege at common law - email headed "letter to the editor" concerning conduct of developer sent to about 70 email addresses including newspapers, politicians and environmental groups - whether to be inferred that recipients opened and read email - whether email published on an occasion of qualified privilege - defence of contextual truth - whether defendant's contextual imputation concerning political donations proved substantially true
DEFAMATION - damages - where plaintiff did not give evidence or attend any part of hearing - whether entitled to any award for hurt to feelings or any aggravated damages
Legislation Cited: Defamation Act 2005, s 26
Evidence Act 1995, s 140
Cases Cited: Andrews v John Fairfax & Sons Limited [1980] 2 NSWLR 225
Carson v John Fairfax & Sons Limited & Slee [1993] HCA 31; 178 CLR 44
Cassell & Co v Broome [1972] AC 1027
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; (2007) 242 ALR 643
David v Abdishou [2012] NSWCA 109
Ell v Milne (No 5) [2013] NSWSC 246
Ell v Milne (No 6) [2013] NSWSC 599
Ell v Milne (No 7) [2013] NSWSC 600
Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30
Ratcliffe v Evans [1892] 2 QB 524
Roberts v Bass [2002] HCA 57; 212 CLR 1
Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118
Warren v Warren (1834) 1 C M & R 250
Category: Principal judgment
Parties: Robert Ell (plaintiff)
Katie Milne (defendant)
Representation: Counsel:
T Tobin QC, B Kelleher
T Molomby SC, R Rasmussen and then L Goodchild
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, against Ms Katie Milne, 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 people, including several journalists.

The email relates principally to the council's treatment of two development applications and calls for an independent review of the developments in question. Mr Ell does not complain of any defamatory imputation arising from those parts of the matter complained of. His complaint is confined to a discrete part of the email which reports that he "supplied bail" for Mr McGurk, who was subsequently murdered. It was common ground at the hearing that Mr McGurk had a reputation for being a standover man.

The email was in the following terms…

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 8)

Details

AGLC: Ell v Milne (No 8) [2014] NSWSC 175
Case: [2014] NSWSC 175
Decision Date: 07 March 2014

CaseChat Overview and Summary

The dispute in Ell v Milne (No 8) involved the defendant, Milne, and the plaintiff, Ell. The plaintiff sought damages for defamatory statements made by the defendant in an email that was sent to approximately 70 recipients, including newspapers, politicians, and environmental groups. The email contained allegations about the plaintiff's conduct as a developer and included a heading "letter to the editor." The primary legal issue was whether the email was published on an occasion of qualified privilege at common law and whether the defence of contextual truth applied. The court had to determine whether the defendant's contextual imputation concerning political donations was substantially true.

The court considered whether the recipients of the email could be inferred to have opened and read it, and if the email was published on an occasion of qualified privilege. The court found that the email was published on an occasion of qualified privilege as it was sent to a select group of recipients with a common interest in the subject matter, and the content was relevant to that interest. The court also considered the defence of contextual truth, which requires that the imputations made in the statement be substantially true. The court found that the defendant's contextual imputation concerning political donations was not substantially true, and therefore, the defence of contextual truth did not apply.

The court considered whether the plaintiff was entitled to any award for hurt to feelings or any aggravated damages. The plaintiff did not give evidence or attend any part of the hearing, and the court found that the plaintiff was not entitled to any award for hurt to feelings or any aggravated damages. The court also found that the plaintiff was not entitled to any other damages. The final orders of the court were that the defendant's defence of qualified privilege was successful, and the plaintiff's claim for damages was dismissed.

Orders