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Milne v Ell

Milne v Ell

Case [2017] NSWSC 555 8 May 2017

Defamation

Compensatory Damages

Defamation

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Milne v Ell [2017] NSWSC 555
Hearing dates: 08 – 10 February 2016
Date of orders: 08 May 2017
Decision date: 08 May 2017
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Judgment for the plaintiff in an amount of $45,000;

(2) The defendant shall pay the plaintiff’s costs of and incidental to the proceedings, as agreed or assessed;

(3) Liberty is reserved to the parties for any different or special order as to costs. Such liberty may be exercised by making an application within seven days of the judgment herein by a submission of no more than three pages, accompanied by any document upon which the application relies that is not otherwise in evidence. Any party affected by any such application may respond within a further seven days by a submission of no more than three pages accompanied by any documents upon which the submission relies that are not already in evidence or attached to the application itself;

(4) Any application of the kind referred to in the immediately preceding paragraph may be made by email directly to the chambers of the Judge issuing these orders;
(5) Otherwise, the proceedings are dismissed.
Catchwords: DEFAMATION – allegation that Councillor not fit and proper person – imputation held to be fact not comment – defamatory – sufficiently specific – defendant liable for republication of statement to journalist – damages awarded
Legislation Cited: Defamation Act 2005 (NSW)
Cases Cited: Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217; [1996] HCA 47
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; BC9001671
Ell v Milne (No 8) [2014] NSWSC 175
Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; [1910] HCA 66
John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Tort Reports 81-789; [2005] NSWCA 164
Joseph v Spiller [2011] 1 AC 852 at [5]; [2010] UKSC 53
Richards v State of New South Wales [2004] VSC 198
Sims v Wran [1984] 1 NSWLR 317
Slipper v British Broadcasting Corporation [1991] 1 QB 283
Speight v Gosnay (1891) 60 LJQB 231
Timms v Clift [1998] 2 Qd.R. 100
Texts Cited: Professor Alastair Mullis et al (eds), Gatley on Libel and Slander, (12th edition 2013, Sweet & Maxwell)
Category: Principal judgment
Parties: Katie Milne (Plaintiff)
William Robert Ell (Defendant)
Representation:
Counsel:
T Molomby SC/ L Goodchild (Plaintiff)
T K Tobin QC/B Kelleher (Defendant)
Solicitors:
NLS Law Pty Ltd (Plaintiff)
Pikes & Verekers Lawyers (Defendant)

File Number(s): 2015/54216

Judgment

HIS HONOUR: The plaintiff, Ms Katie Milne, sues the defendant, Mr William Robert Ell, for damages arising from allegedly defamatory comments he made to a journalist which were…

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 Milne v Ell

Details

AGLC: Milne v Ell [2017] NSWSC 555
Case: [2017] NSWSC 555
Decision Date: 08 May 2017

CaseChat Overview and Summary

In the case of Milne v Ell, the plaintiff, a local government councillor, sued the defendant for defamation over a statement made during a council meeting. The defendant claimed that the plaintiff was not a fit and proper person to hold office, an allegation which was subsequently published in a local newspaper. The matter was heard in the Supreme Court of Victoria, where the plaintiff sought damages for defamation.

The primary legal issues in this case were whether the imputation in question was a fact or merely an opinion, and if it was defamatory. The court needed to determine whether the statement was capable of lowering the plaintiff’s reputation in the eyes of right-thinking members of the community. Additionally, the court had to decide whether the defendant’s republication of the statement to a journalist constituted a further publication, thus making the defendant liable for damages.

The Supreme Court of Victoria found that the statement was defamatory, holding that the imputation that the plaintiff was not a fit and proper person was a factual assertion rather than a mere opinion. The court ruled that the statement was sufficiently specific to be defamatory and could lower the plaintiff’s reputation in the eyes of the community. Furthermore, the court held that the defendant was liable for republication of the statement to a journalist, as this constituted a further publication of the defamatory material. The court awarded the plaintiff damages for the defamation suffered.

Orders