Milne v Ell

[2015] NSWSC 569

Supreme Court

New South Wales

Medium Neutral Citation:	Milne v Ell [2015] NSWSC 569
Hearing dates:	10 April 2015
Date of orders:	10 April 2015
Decision date:	10 April 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application to compel plaintiff to plead additional remarks refused. Application to strike out imputation for ambiguity refused. Application for leave to interrogate the second defendant as to conversation relied upon for the first matter complained of granted.
Catchwords:	DEFAMATION – procedure – pleadings – application to compel plaintiff to plead additional remarks in matter complained of – application to strike out imputation for ambiguity – oral application for leave to interrogate the second defendant as to conversation relied upon for the first matter complained of
Cases Cited:	Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101
Category:	Procedural and other rulings
Parties:	Katie Milne (Plaintiff) William Robert Ell (First Defendant)
Representation:	Counsel: T Molomby SC (Plaintiff) K Tobin QC with G Kelleher (Defendants) Solicitors: NLS Law Pty Ltd (Plaintiff) Pikes & Verekers Lawyers (First Defendant) Banki Haddock Fiora (Second Defendant)
File Number(s):	2015/54216
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by Ms Katie Milne, a Greens councillor, against Mr William Ell, a property developer. The proceedings come against the history that, in earlier proceedings in this Court, Mr Ell sued Ms Milne for defamation. He was successful in those proceedings in obtaining a verdict in the sum of $15,000.

2. The matter complained of by Ms Milne in the present proceedings relates to remarks allegedly made by Mr Ell to a journalist regarding his success in those earlier proceedings. The statement of claim pleads, as the first matter complained of, that Mr Ell said to a journalist, "She's not a fit and proper person to be a councillor." It is further alleged those words were then published within an article published in the Gold Coast Bulletin on 13 March 2014. Ms Milne seeks to hold Mr Ell responsible for the reproduction of those words within that article.

3. Separately, Ms Milne sues on a second matter complained of, being publication of the whole of the article by the proprietor of the Gold Coast Bulletin. Mr Ell is not a defendant to that separate claim.

4. The proceedings have come before the Court today for the first listing in accordance with the Practice Note SC CL 4. The argument brought forward by the defendant sought two rulings from the Court. First, it was submitted the plaintiff should be compelled to plead, in addition to the words presently pleaded as the first matter complained of, other remarks attributed to Mr Ell in the second matter complained of. Those remarks are the following quotes attributed to him: first, that Ms Milne "got what she deserved" after the Court ruled in his favour in the defamation proceedings; secondly, the remark already pleaded that "she's not a fit and proper person to be a councillor"; and thirdly, a remark not in quotation marks but attributed to him that "he hoped speculation that the payments would bankrupt her were true, so that she would not be able to retain her place as a councillor."

5. The difficulty with the strike-in application, in my view, is that it seeks to compel the plaintiff to plead, as a single publication, a collection of quotes attributed to Mr Ell in a publication written by somebody else. In my view, there is no basis on which the Court could have any confidence that the collection of those quotes would produce a sensible or reliable account, as a single publication, of the words published to the journalist by Mr Ell. In the face of that uncertainty, I do not think it is appropriate for the Court, at this stage, to compel the plaintiff to plead a publication in that form.

6. Indeed, in other proceedings in this List where a plaintiff had adopted that course of selecting and collating the words attributed to a person based on their appearance in a newspaper article, the Court was persuaded to strike out the pleading of that as a single slander publication: see Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 at [16] to [25].

7. Accordingly, the strike-in application must be refused, in my view.

8. The second ruling sought from the Court falls with the first. Mr Tobin made an objection to the imputation pleaded as arising from the first matter complained of, which is that the plaintiff is not a fit and proper person to be a councillor. In the circumstance of the failure of the strike-in application, in my view, that imputation must be permitted to stand at this stage. In any event, I do not accept that the imputation is ambiguous. In my view, it adequately distils the condition attributed to the plaintiff by the words alleged to have been published by the defendant. Accordingly, the objections raised by the defendant today are rejected.

9. During the course of argument, in the light of my indication as to my proposed rulings, Mr Tobin made an oral application for leave to interrogate the second defendant, the proprietor of the Gold Coast Bulletin, as to the terms of the conversation relied upon for the first matter complained of, subject to the defendant bringing in an appropriate form of interrogatory. I would be minded to accede to that application.

10. I will stand the proceedings over to the Defamation List on 24 April 2015.

11. I order the defendant to pay the plaintiff's costs of the argument determined today.

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Decision last updated: 15 May 2015