Ell v Milne (No 2) [2012] NSWSC 259

Supreme Court New South Wales

Medium Neutral Citation: Ell v Milne (No 2) [2012] NSWSC 259 Hearing dates: 24 August 201115 September 2011 Decision date: 22 March 2012 Before: McCallum J Decision: Plaintiff's application to have contextual imputation 8(a)(i) struck out refused. Defendant's application for leave to amend contextual imputation 8(a)(ii) refused. Catchwords: DEFAMATION - defences - contextual truth - whether contextual defendant's contextual imputations liable to be struck out - true innuendo - whether capable of sustaining plea of contextual truth Legislation Cited: Defamation Act 1974 Defamation Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Anderson v Mirror Newspapers Limited (No 1)(1986) 6 NSWLR 99 Astaire v Campling [1965] 3 All ER 666 Besser v Kermode [2011] NSWCA 174 Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 Whelan v John Fairfax & Sons Limited (1988) 12 NSWLR 148 Category: Interlocutory applications Parties: Robert Ell (plaintiff) Representation: T Tobin QC with B Kelleher (plaintiff) T Molomby SC with L Goodchild (defendant) Stacks/The Law Firm (plaintiff) NLS Law Pty Ltd (defendant) File Number(s): 2010/417226 Publication restriction: None

Judgment 1HER HONOUR: These are proceedings for defamation arising out of an email sent by Ms Katie Milne, who was at that time a councillor of Tweed Shire Council. The email was sent to a number of newspapers and special interest groups. 2The defendant relies upon the defences of qualified privilege and contextual truth under s26 of the Defamation Act 2005. The defence first filed also included a plea of truth under s25 of the Act but that has since been abandoned. 3On 27 June 2011, I directed the defendant to provide proper particulars of the defence of contextual truth in respect of one of the contextual imputations relied upon. I struck out the other contextual imputation relied upon by the defendant, with leave to replead. 4An amended defence dated 2 September 2011 was propounded in response to those orders. The plaintiff contends that both contextual imputations sought to be relied upon in the amended defence are bad in form and that the plea of contextual truth should be struck out. 5The relevant parts of the matter complained of are set out below: Letter to the editor From Clr Milne Re: Cobaki and Kings Forest Putting the Hard Word on the State Govt I am calling on the community to demand the State Government uphold the request for an independent expert review for Kings Forest and Cobaki Lakes, despite this amendment, passed at the February Council meeting, being voted down at the March meeting.... The State Govt must also keeping mind that Cls Polglase and Clr Youngblutt received massive donations from this developer who donated $80,000 in the 2004 election campaign to the so called Balance Team. There are serious ethical questions about either of these Councillors voting on these developments, despite Clr Youngblutt not being elected for that Council. The entire Council was sacked largely due to the siphoning of such developer funds through this Tweed Directions campaign. It would have been a very different vote for these two mini cities if Clr Polglase and Youngblutt had removed themselves from the vote as called for by the community. Instead they relied on an extremely questionable loophole that excused them from declaring any conflict after 4 years: I ask in what other sphere are people excused from pay back obligations after 4 years for such enormous sums involved. It would also have been a very different outcome even only if Clr Holdom who ran on a community campaign had voted how her supporters have numerously lamented they expect her too (sic). The developer Mr Bob Ell has made massive donations to both the State and Federal Labour and Liberal govts as well as the last Council.