Supreme Court New South Wales Medium Neutral Citation: Ell v Milne (No 4) [2012] NSWSC 1540 Hearing dates: 10 December 2012 Decision date: 10 December 2012 Before: McCallum J Decision: See [18] of the judgment Catchwords: DEFAMATION - defences - contextual truth - particulars - discovery - no issue of principle Cases Cited: Ell v Milne [2011] NSWSC 645 Ell v Milne (No 2) [2012] NSWSC 259 Ell v Milne (No 3) [2012] NSWSC 985 Category: Interlocutory applications Parties: Robert Ell (plaintiff) Katie Milne (defendant) Representation: Counsel: T Tobin QC (plaintiff) S Molomby (defendant) Solicitors: Stacks/The Law Firm (plaintiff) NLS Law Pty Ltd (defendant) File Number(s): 2010/417226 Publication restriction: None Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation which have come before me on a number of occasions for the determination of interlocutory disputes: see Ell v Milne [2011] NSWSC 645; Ell v Milne (No 2) [2012] NSWSC 259 and Ell v Milne (No 3) [2012] NSWSC 985. The proceedings were re-listed today for argument as to a number of further interlocutory issues informed to some extent by my earlier rulings. 2The first issue brought forward this afternoon is the plaintiff's objection to part of the particulars provided by the defendant in support of her contextual truth defence. In Ell v Milne (No 2), I allowed a contextual truth imputation pleaded by the defendant at paragraph 8(a)(i) of the then proposed amended defence and refused leave to amend to include the contextual imputation pleaded at paragraph 8(a)(ii). Those imputations were: 8(a)(i) that as a developer [the plaintiff] has attempted to buy the favours of State government and the local council by making large donations to political parties and election campaigns. 8(a)(ii) that as a developer [the plaintiff] gave support, by providing $80,000 to Tweed Directions before the 2004 Council elections, to the election of groups of candidates who presented themselves to the public as independents, when they were not independent, he knowing that they were not independent and that the support of Tweed Directions for those candidates was not publicly revealed. 3Since the publication of that judgment, the defendant has provided particulars, including the following paragraph which is the subject of the argument today: The candidates in the groups that received financial support from Tweed Directions advertised themselves as independents when they were not. Nine groups who presented themselves as independents were actually supported by Tweed Directions. The support of Tweed Directions was not revealed to the electors. 4The particulars originally included an additional sentence, as follows: This strategy essentially represented a fraud deliberately foisted on the community. In the face of the plaintiff's objection, the defendant agreed to withdraw that sentence, but that did not meet the objection. 5The plaintiff objects to the defendant's reliance upon those particulars, submitting that they trespass on my earlier ruling, particularly Ell v Milne (No 2) at [17], where I said: Separately, the plaintiff noted that the defendant seeks to rely upon all of the particulars of truth pleaded in support of the second contextual imputation as also establishing the truth of the first. Since the second contextual imputation amounts in effect to an allegation of electoral fraud, Mr Tobin submitted that the defendant's reliance on those particulars creates further confusion as to whether a more serious meaning is conveyed. In light of the conclusion I have reached as to the second contextual imputation, the defendant's reliance on those particulars will have to be revisited. In any event Mr Molomby, who appeared with Ms Goodchild for the defendant, expressly disavowed any reliance on illegal conduct as the meaning of the first contextual imputation. 6Mr Molomby's response to the objection was that the defendant, as there recorded, disavows any reliance upon illegal conduct as the meaning of the first contextual imputation and adheres to that disavowance today. He submitted, however, that the particulars are relevant to another issue, namely, that the fact that funding from Tweed Directions was directed to nine separate apparently independent groups may be seen as a strategy designed to secure the success of those groups in the election, and thus a step on the path to obtaining the favour of whichever those groups succeeded in having a member elected to the council. Mr Molomby submitted that the material objected to is relevant to establishing that proposition, quite apart from its previous role also in supporting the now disavowed conclusion of fraud. 7With great respect to Mr Molomby, I think that submission is unconvincing. It seems to me that securing the success of those groups or any group in an election is an immutable aspect of every election campaign and no more relevant in the case of the Tweed Directions campaign than any of the other political donations the subject of the defence. 8In my view, the proposed particulars do, as submitted by Mr Tobin, raise a false issue and one which is expressly precluded by my earlier ruling. Allowing the particulars to stand carries the risk of unravelling the effect of that ruling and the benefit the plaintiff has of it. Accordingly, I would propose to strike out that paragraph of the particulars. 9The second issue brought forward this afternoon concerns the categories for discovery requested by the defendant of the plaintiff. The defendant's proposed categories include the following at paragraphs 3 to 7: 3. All records showing donations made, since 1 January 2000 by the plaintiff or any company of which he was a director or shareholder, to political parties, politicians, candidates in elections or organisations involved in the selection or funding of candidates in elections. 4. All records of development proposals, or applications made by the plaintiff or by a company in which the plaintiff was a shareholder or director where such proposals or applications were pending at the times of the donations particularized in the amended defence. 5. The records of the decisions made by the respective local council or state government instrumentality about the development proposals or applications made by the plaintiff or any company of which he was a director or shareholder in 4 above. 6. All records of communications between the plaintiff and the recipients of the donations as particularised in the amended defence during the year before and the year after the date of each donation. 7. All records of attendance by the plaintiff at functions hosted by the recipients of the donations particularized in the amended defence between 1st January 2000 and 30th June 2008. 10The plaintiff has evidently indicated in correspondence with the defendant that he is prepared to give discovery of documents falling within those categories but only from 2003 and only in respect of donations made in New South Wales, not Queensland. The plaintiff submitted that the matter complained of, on its face, plainly refers to the State of New South Wales in the context of elections and, so far as local councils are concerned, the Tweed Shire Council. 11Mr Molomby, who appears for the defendant, accepts that the matter complained of is so confined. He submitted, however, that discovery over a broader territory is relevant to the proof of the truth of contextual imputation 8(a)(i) set out above. It may be noted in that context that the defence itself pleads a list of donations allegedly made by the plaintiff, or companies of which he is a director, including a number of donations made to Queensland political parties. 12Mr Molomby submitted that evidence of donations in Queensland could be admitted at the trial of the proceedings as tendency evidence. Whether or not any such evidence is admissible or should be admitted is not an issue for today. In my view, however, the making of donations outside New South Wales is at least capable of informing the state of mind sought to be established in imputation 8(a)(i), which attributes to the plaintiff the state of mind as a developer of attempting to achieve a favourable outcome by the making of the donations alleged. 13Mr Molomby illustrated his contention with a helpful example, entirely hypothetical but illustrative of the point, of a developer who had made but one donation in the State of New South Wales and 19 in the State of Queensland, where the circumstances of the donations made in Queensland might well inform the state of mind with which the New South Wales donation was made. It may appear to be an ambitious proposition for the proof at the trial, but at the present point I am concerned only with the question whether documents falling within those categories ought properly be required to be discovered based on the pleadings. In my view, they should. 14Mr Tobin submitted that the content of the obligation to give discovery should have "some sort of bound" to it, but I am not persuaded that a territorial bound is appropriate in the context of the issues raised in the present case. 15The plaintiff will be directed to give discovery of the categories listed in paragraphs 3 to 7. 16The third issue brought forward by the argument this afternoon concerns the plaintiff's categories of discovery sought from the defendant. During the course of argument, counsel helpfully agreed to some modification to three of the categories in dispute, resolving any issue in relation to those. I should note those agreements: category 1 it was agreed would be amended to require discovery of "all alternative versions in whole or in part" of the matter complained of; category 2 it was agreed would be amended by the insertion of the word "proposed" before the words "contents of the subject email"; and the objection to category 3 was not pressed. 17The remaining dispute related to category 19, which calls for discovery of "documents showing requests by the defendant for political donations in the period 1 January 2003 to 30 March 2010". That request is made in the context, as will be revealed by the remarks earlier in this judgment, that the defendant has in the proceedings sought to justify her publication of an imputation that the plaintiff, as a developer, has attempted to buy the favours of State government and the local council, by making large donations to political parties and election campaigns. 18Mr Tobin submitted, with some ingenuity (and I say so with the greatest of respect to him), that the discovery of documents of any requests for political donations by the defendant would inform the state of mind with which she published the matter complained of, potentially allowing the plaintiff to establish that, whereas the defendant's email was highly critical of the political donations made by him, she herself is a person who may have requested political donations. That was said to be a matter relevant to the qualified privilege defence relied upon by the defendant. 19In my view, the connection between that proposition and the issues in the proceedings is too remote to warrant the inclusion of that as a category for discovery. In the first instance, all that would be shown would be requests for donations, rather than the making of "large donations" for a specified purpose, which is what appears in the contextual imputation. I am not persuaded that the category of documents sought properly relates to any issue raised on the pleadings, as I understand them. 20The orders are: (1)that the particulars of contextual truth in support of contextual imputation 8(a)(i) set out at [3] of these reasons be struck out. (2)That the plaintiff give discovery of the categories of documents in paragraphs 3 to 7 of the defendant's categories for discovery by the plaintiff. (3)That the defendant not be required to give discovery of the category of documents in paragraph 19 of the plaintiff's categories for discovery by the defendant. (4)That each party bear his or her own costs of today. (5)Direct that the parties approach the list clerk before the end of term to obtain a hearing date. 21I note that I have urged the parties to urge upon their clients the possibility of an informal mediation. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2012