Tweed Shire Mayor gets revenge threefold – Milne v Ell [2017] NSWSC 555

Mr Ell, defendant in 2016, plaintiff in 2014.

Mr Ell, defendant in 2017, plaintiff in 2014.

Property developer, William Robert Ell sued Tweed Shire Councillor, Katie Milne in defamation in 2014. He sued over a letter to the editor which Ms Milne had written about a contentious building development conducted by Mr Ell. While Mr Ell did not attend the trial, he won the case and was awarded damages of $15,000 plus costs. The decision was handed down on 7 March 2014.

You would think that one defamation trial was enough for the parties, but no, there is more. After his win, Mr Ell was contacted by a journalist from the Gold Coast Bulletin. He told the journalist that Ms Milne was not a “fit and proper person to be a councillor” and that he also hoped that the judgment and costs that she had to pay would bankrupt her. On 13 March, the Gold Coast Bulletin played down the result in typical Gold Coast fashion: “KATIE LOSES BILLIONAIRE BOB BATTLE ‘I HOPE THIS SENDS HER BROKE” on the front page.

Ms Milne sued Ell for the statement to the journalist and also for the article that appeared in the paper. She also sued the Gold Coast Bulletin, although she ultimately settled with it on the basis that it published an apology and paid some costs.

The trial ran and Ms Milne gave evidence of how, as a member of the Tweed Shire Council, she got the record number of votes that had ever been recorded in the Shire and since the Gold Coast Bulletin article, she had been elected Mayor. She pleaded that the article meant that she was “not a fit and proper person to be a councillor”, which Justice Rothman held was carried by the article and was defamatory of her.

Mr Ell relied on the defence of honest opinion or fair comment. His Honour stated that the imputation could be either one of fact or opinion, depending on the context. The context was that the imputation was not based on her conduct in defaming Mr Ell, but was a statement of fact to justify the indirect consequence of the previous defamation case and her inability to meet the costs of those proceedings and the damages. At [54], His Honour then concluded it was a statement of fact. This must have been a close run thing.His Honour then concluded that Mr Ell was liable for the republication in the Gold Coast Bulletin because it was the

Katie Milne, plaintiff in 2017, defendant in 2014.

Katie Milne, plaintiff in 2017, defendant in 2014.

natural and probable consequence of him speaking to the journalist. No issue there. In assessing damages, His Honour was at pains to make the point that the earlier defamation proceeding was irrelevant to that issue, but there was no evidence that Ms Milne had been shunned or avoided and indeed since the publication, she had become Mayor. In all though, His Honour noted that it was hard to escape the suspicion that the case was a “tit for tat” exercise [83], but that too was not relevant. After considering all of the principles, His Honour settled on a figure for damages: $45,000 plus costs.

No doubt the Gold Coast journalists contacted Ms Milne for her reaction…..

This entry was posted in Damages, Defamatory meaning, Honest opinion, Publication, Trial and tagged , , . Bookmark the permalink.

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