Ell v Milne (No 6) [2013] NSWSC 599

Supreme Court New South Wales

Medium Neutral Citation: Ell v Milne (No 6) [2013] NSWSC 599 Hearing dates: 27 March 2013 Decision date: 27 March 2013 Before: McCallum J Decision: Plaintiff's imputation (c) is found not to be defamatory. Catchwords: DEFAMATION - imputations - whether defamatory Cases Cited: Ell v Milne (No 5) [2013] NSWSC 246 Category: Separate question Parties: William Robert Ell (plaintiff) Katie Milne (defendant) Representation: Counsel: T Tobin QC, B Kelleher (plaintiff) S Molomby, R Rasmussen (defendant Solicitors: Anthony Smith Solicitor (plaintiff) NLS Law Pty Ltd (defendant) File Number(s): 2010/417226 Publication restriction: None

Judgment - ex tempore 1HER HONOUR: I have this morning published a judgment giving rulings on the issue whether the plaintiff's imputations and the defendant's contextual imputation are conveyed by the matter complained of in these proceedings: see Ell v Milne (No 5) [2013] NSWSC 246. During argument on that issue, submissions were put on behalf of the defendant as to whether two of the imputations, if conveyed, were defamatory. However, presumably reflecting the way in which I articulated the proposed preliminary rulings, the plaintiff did not address that issue. Following publication of my judgment I have heard further argument from the both parties as to whether imputations (c) and (f) relied upon by the plaintiff are defamatory. For the following reasons I am satisfied that imputation (c) is not defamatory while imputation (f) is. 2Imputation (c) is: That the plaintiff paid $100,000 bail for a man who was suspected by police of serious crimes of violence in order to advance his business interests. 3Mr Tobin QC, who appears with Mr Kelleher for the plaintiff, accepted that it would not be defamatory merely to report the fact that a person had agreed to act as surety as a condition of bail for a person accused of serious crimes of violence. He submitted, however, that the way in which imputation (c) should be read would lend a defamatory sting to that imputation because the only advancement of Mr Ell's business interests that the reader could glean would be that the quality he sought in an employee was that of a person suspected of serious crimes. 4In my view, as submitted by Mr Molomby SC on behalf of the defendant, such a reading of the matter complained of could only be derived from a tortured straining of the words used. I would rather see the phrase "who was suspected by police of serious crimes of violence" as being a necessary part of the description of the man for whom bail was provided. On that reading, there is left only the contention that Mr Ell supported Mr McGurk to obtain bail in order to advance his own business interests, an assertion which in my assessment is entirely anodyne. 5Mr Molomby further submitted that, in order to discern the meaning contended for on behalf of Mr Ell, one would need to have in the imputation additional words such as that the purpose of supporting bail was in order to advance his business interests "by exploiting that fact" (that is, the fact that Mr McGurk was suspected by police of serious crimes of violence). I agree. The imputation as pleaded is not, in my view, one which conveys any defamatory sting or identifies any act or condition on the part of Mr Ell such as to cause ordinary decent people to think the less of him. 6Imputation (f) is: That the plaintiff conducted his business with regard to property development by employing a person with a reputation for violence 7Without doing any disservice to the careful submissions put by Mr Molomby in relation to that imputation, the proposition was largely or substantially the same as was put in respect of imputation (c), namely, that in order to inject some defamatory sting, one would need to import into the imputation additional words attributing to the plaintiff some knowledge of the reputation in question or some nefarious purpose for employing Mr McGurk. 8In my view, in the case of imputation (f), no additional words are needed to convey a defamatory sense. The imputation neatly captures the proposition that the way in which Mr Ell conducted his business as a property developer was by employing a person of the kind referred to, namely, a person with a reputation for violence. In my view, without the need for any additional words the imputation necessarily conveys the sense that Mr Ell well knew he was employing such a person and that the person had the quality referred to. The imputation makes an assertion as to the way in which the plaintiff conducts his business - "by employing" a particular kind of person. For that reason I consider imputation (f) to be defamatory. 9Those are my rulings.