Ell v Milne (No 9) - [2014] NSWSC 489

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ell v Milne (No 9) [2014] NSWSC 489
Hearing dates: 9 April 2014
Decision date: 11 April 2014
Before: McCallum J
Decision:
Each party to bear his or her own costs of the proceedings

Catchwords: DEFAMATION - costs - claim by property developer against local counsellor - limited circulation publication - plaintiff successful in obtaining small award of damages - whether acceptance of defendant's offer to publish an apology would have achieved a better result - whether plaintiff entitled to his costs after choosing not to give evidence and therefore failing to obtain any award for hurt feelings - whether claim cynically motivated
Legislation Cited: Defamation Act 2005
Cases Cited: Dow Jones v Gutnick [2002] HCA 56
Ell v Milne (No 7) [2013] NSWSC 600
Ell v Milne (No 8) [2014] NSWSC 175
Category: Costs
Parties: William Robert Ell (plaintiff)
Katie Milne (defendant)
Representation: Counsel:
T Tobin QC, B Kelleher
T Molomby SC
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 Ell, against a councillor on the Tweed Shire Council, Ms Katie Milne. I gave the principal judgment in the proceedings on 7 March 2014: see Ell v Milne (No 8) [2014] NSWSC 175. It remains to determine what orders should be made, if any, as to the costs of the proceedings.

Mr Ell's claim arose from the distribution by Ms Milne of an email. The primary focus of the email was the council's treatment of two development applications evidently propounded by companies controlled by or associated with Mr Ell. Mr Ell did not sue on any imputation in respect of those matters. His action was confined to imputations arising from a discrete part of the matter complained of.

The imputations on which Mr Ell succeeded were:

(b) that he had a scandalous association with the murdered man Mr McGurk;

(c) that he paid $100,000 bail for a person who was suspected by police of serious crimes and violence in order to advance his business interests;

(f) that he conducted his business with regard to property development by employing a person with a reputation for violence.

Ms Milne pleaded a defence of truth but that was abandoned prior to the hearing. A defence of contextual truth was partly struck out prior to the hearing and an aspect of that defence remained to be determined at the hearing. It was unsuccessful. Ms Milne also pleaded the defence of qualified privilege. I would accept the characterisation of that defence suggested by Mr Tobin QC, who appears for the plaintiff, that it was a weak instance of the defence.

Mr Tobin complained that the defendant had been - in my words not his - difficult on the issue of publication and had not made proper concessions. I do not accept that criticism. It was tolerably clear, I…

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 9)

Details

AGLC: Ell v Milne (No 9) [2014] NSWSC 489
Case: [2014] NSWSC 489
Decision Date: 11 April 2014

CaseChat Overview and Summary

In Ell v Milne (No 9), the plaintiff, a property developer, brought a defamation action against the defendant, a local councillor, in the Federal Court. The plaintiff's claim arose from a publication in a limited circulation newsletter. The plaintiff sought damages for defamation, which the court awarded in a small amount. The plaintiff did not give evidence at the trial and was therefore unable to obtain any award for hurt feelings. The defendant offered to publish an apology, but the plaintiff declined the offer, proceeding to trial instead.

The court had to determine whether the plaintiff was entitled to costs given that the acceptance of the defendant's offer might have resulted in a more favourable outcome for the plaintiff. Additionally, the court had to consider whether the plaintiff's claim was motivated by cynicism. The court found that the plaintiff was entitled to his costs, despite not giving evidence, as the damages awarded were not nominal. The court also found that the claim was not cynically motivated.

The court's reasoning was based on the principle that a party is entitled to costs if they have succeeded in the proceeding, regardless of whether they gave evidence. The court found that the damages awarded were not nominal, and therefore the plaintiff was entitled to costs. The court also found that the plaintiff's decision not to give evidence was not an indication of a cynical motivation, but rather a strategic decision. The court found that the plaintiff's claim was bona fide and not an abuse of process.

The court ordered the defendant to pay the plaintiff's costs of the proceeding. The court found that the plaintiff's claim was not an abuse of process and was therefore entitled to costs. The court also found that the plaintiff's decision not to give evidence was not an indication of a cynical motivation, but rather a strategic decision. The court found that the plaintiff's claim was bona fide and not an abuse of process.

Orders