Milne v Ell

[2014] NSWCA 407

Court of Appeal

New South Wales

Case Title:

Milne v Ell

Medium Neutral Citation:

[2014] NSWCA 407

Hearing Date(s):

28 November 2014

Decision Date:

28 November 2014

Before:

McColl JA at [1];
Basten JA at [2];
Leeming JA at [33]

Decision:

(1) Dismiss Ms Milne's application for leave to appeal, with no order as to the costs of the application.

(2) Dismiss Mr Ell's application for leave to cross-appeal, with no order as to the costs of the application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DEFAMATION - imputations - innuendo - extrinsic facts - whether the reputation of a third party can constitute an extrinsic fact relied on to support an innuendo absent proof that the reputation is based on fact

PRACTICE AND PROCEDURE - costs - defamation proceeding - no order as to costs - whether successful plaintiff properly deprived of costs - whether defendant should have received costs on the basis of a timely apology which was not accepted - whether either party should have leave to appeal against no costs order

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Ell v Milne (No 5) [2013] NSWSC 246
Ell v Milne (No 7) [2013] NSWSC 600
John Fairfax Publications v Rivkin [1999] NSWCA 164
Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632

Category:

Principal judgment

Parties:

Katie Milne (Applicant/Cross-Respondent)
William Robert Ell (Respondent/Cross-Applicant)

Representation

- Counsel:

Counsel:
Mr T Molomby SC/Ms L Goodchild (Applicant/Cross-Respondent)
Mr TK Tobin QC/Mr BA Kelleher (Respondent/Cross-Applicant)

- Solicitors:

Solicitors:
NLS Law (Applicant/Cross-Respondent)
Pikes & Verekers Lawyers (Respondent/Cross-Applicant)

File Number(s):

2014/137391

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

McCallum J

- Citation:

Ell v Milne (No 8) [2014] NSWSC 175; Ell v Milne (No 9) [2014] NSWSC 489

- Court File Number(s):

2010/417226

JUDGMENT

1. McCOLL JA: I agree with Basten JA.

2. BASTEN JA: The applicant, Ms Katie Milne was, in 2010, a councillor on the Tweed Shire Council. On 30 March 2010 she distributed an email, in the form of a "letter to the editor", to a number of newspapers (though none published the offending passages) and to a number of individuals. The thrust of the email was to invite readers to lobby the State government to establish an independent inquiry into two developments occurring in Tweed Shire. The developer was the respondent, Mr Robert Ell.

3. The broad thrust of the letter was to cast doubt on the behaviour of certain members of council. However, there was also a passage in the letter which referred directly to Mr Ell. He sued the applicant in…