Ell v Milne (No 9)

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.