Supreme Court New South Wales Medium Neutral Citation: Ell v Milne (No 7) [2013] NSWSC 600 Hearing dates: 6, 7 May 2013 Decision date: 08 May 2013 Before: McCallum J Decision: Defendant's application dismissed Catchwords: DEFAMATION - defendant's application to have proceedings dismissed as an abuse of process - whether predominant purpose of plaintiff's action other than to seek remedy available at law PROCEDURE - judgments and orders - costs - ordinary rule Legislation Cited: Defamation Act 2005 Local Government Act 1993 Cases Cited: Ell v Milne (No 5) [2013] NSWSC 246 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Category: Interlocutory applications Parties: William Robert Ell (plaintiff) Katie Milne (defendant) Representation: Counsel: T Tobin QC, B Kelleher (plaintiff) S Molomby (defendant) Solicitors: Anthony Smith Solicitor (plaintiff) NLS Law Pty Ltd (defendant) File Number(s): 2010/417226 Publication restriction: None Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation brought by Mr Bob Ell against Ms Katie Milne. Mr Ell's action was heard by me over several days in March of this year. At the conclusion of the hearing on 28 March 2013 I reserved my decision. 2On 29 April 2013 Ms Milne filed a notice of motion seeking to have the proceedings dismissed as an abuse of the process of the Court. The basis for the application was the contention that Mr Ell's dominant purpose in bringing the claim was something other than the vindication of his reputation. That contention assumes a number of factual and legal premises which must be tested. 3A threshold issue is the appropriateness of entertaining such an application after the cases of both parties have been closed and the Court has reserved judgment. I was at first minded to think that Ms Milne had first to seek leave to reopen her case. After hearing from the parties on the present application, however, I am inclined to think that the question of an abuse of the process of the Court may properly be raised in a discrete application at any point. If it is accepted, as plainly it must be, that the Court is the guardian and protector of the integrity of its own process, it must follow that a proceeding shown to have been brought or maintained in abuse of that process is liable to be dismissed at any point, even at the point where all that remains is for the tribunal to determine the matter. 4Further, the evidence relied upon in support of such contention goes to discrete issues that may be determined, in my view, without the need for a party to reopen his or her substantive case. That is the basis on which the hearing of the present application proceeded. That said, the timing of the issue being raised, viewed in the context of the nature of the material relied upon to support it, may well be relevant to the issue of costs. 5Turning to the substance of the application, it is appropriate to begin with the factual question as to whether it is established that Mr Ell's dominant purpose was other than the vindication of his reputation. 6The application was based in part on aspects of the hearing before me in March. Mr Ell is a property developer and the propounder of a number of substantial developments in Tweed Shire Council. Ms Milne is a councillor on that council. Although there is no direct evidence before me on this issue, it is clear enough and evidently not in dispute that her political leanings are "green" or at least to a degree anti-development. It also appears to be the case that Mr Ell is a man of considerable means, although again I have to acknowledge that there is no direct evidence on that issue before me and I think I probably have to put that consideration to one side for present purposes. 7Mr Molomby relied upon three further specific aspects of the proceedings before me in March in support of the present application. Before turning to those, it is appropriate to record some of the context of those proceedings. The matter on which Ms Milne is sued is an email she sent to a number of people including the editors of a number of newspapers. The text of the email is set out in full in my earlier judgment, Ell v Milne (No 5) [2013] NSWSC 246. 8For present purposes it is relevant to observe that, in the main, the email addressed the development applications propounded by Mr Ell and the way in which those applications had been treated. Mr Ell, however, did not sue on any allegedly defamatory imputation arising from that material. 9In a small part of the email Ms Milne touched on a separate issue, namely, the "McGurk murder" - a reference to the murder of a well-known Australian man. The email said: The McGurk murder also raises serious concerns. According to Sydney newspapers Mr Bob Ell supplied $100,000 bail when McGurk was accused of firebombings and assault though this was later dropped. McGurk was working for Mr Ell at the time of his murder. 10All of the imputations sued on by Mr Ell in the proceedings related to that part of the email. I found that the following imputations relied on by Mr Ell were conveyed and were defamatory of him: (b) That he had a scandalous association with the murdered man, Mr McGurk. (f) That he conducted his business with regard to property development by employing a person with a reputation for violence. 11Against that background Mr Molomby relied in the present application on the content of the matter complained of and the proposition that Mr Ell would not have liked what Ms Milne said as to his property developments in Tweed Shire Council. He also relied thereon the fact that the email was republished in the Tweed Echo with the critical paragraph concerning the McGuirk allegations removed, a fact Mr Molomby submitted Mr Ell would also not have been pleased about. Thirdly, Mr Molomby relied upon the aspect of the conduct of the hearing that Mr Ell did not attend any part of the hearing and did not give evidence. 12At the principal hearing it was submitted that the Court should infer from that last circumstance that Mr Ell suffered no hurt to his feelings. He led none of the kind of reputational evidence that is frequently given in a plaintiff's case in defamation actions in this Court. Since I am reserved on the principal claim it is appropriate for me to be circumspect in what I say regarding the submissions that were put on that basis. Added to those aspects of the hearing, Ms Milne relied for the purposes of the present application on an affidavit that annexes a series of documents. The principal part of that affidavit was a series of other articles in fact published in New South Wales and probably all over Australia as to which it was submitted that they conveyed the imputations that have been found in the present proceedings to have been conveyed by Ms Milne's email. Indeed, Mr Molomby submitted that those imputations were conveyed more clearly and, perhaps in some instances, more seriously than in the case of the matter complained of in these proceedings. 13It is unnecessary for the purpose of determining this application to make rulings as to each of the articles annexed to the affidavit as to whether the same imputations are conveyed and, indeed, the parties did not address me on that basis. It is enough to say that, having considered that material, I accept that at least some of the articles published in major newspapers appear to convey what I might call the McGurk imputations, that is, imputations along the lines of those which I have found to have been conveyed and to be defamatory of Mr Ell in the present case. 14It was implicit in Ms Milne's application that Mr Ell must have seen those articles and made a considered choice not to sue on any of them. Mr Tobin, who appears with Mr Kelleher on behalf of Mr Ell, put a submission, and I think I do no disservice to him in saying he put it faintly, that there was no evidence that Mr Ell saw any of those other articles. It seems to me to be highly unlikely that Mr Ell did not become aware of any of the material annexed to the affidavit relied upon by Ms Milne. I am satisfied to a state of actual persuasion that he probably did see some of them. It is, accordingly, appropriate to determine the present application accepting the defendant's premise that Mr Ell may be taken to have been aware that he has been defamed many times by the same imputations and that the only person he has chosen to sue is Ms Milne. 15On the last point, the defendant bears the onus of proof of establishing that no other proceeding has been commenced. However, I think the resistance to that proposition again was, perhaps, faint and I would expect Mr Ell, being the party with the knowledge as to whether he has brought any other proceedings, to have brought forward any such evidence in the present application. In accordance with well-known principle, that circumstance supports the inference that no other defamation claim ahs been commenced by Mr Ell. 16It is necessary to consider what other extraneous or improper purpose is said by Ms Milne to have been the primary or dominant purpose of Ms Ell in bringing the proceedings. It was suggested at the hearing that the purpose of the proceedings was to force Ms Milne out of her office as a councillor at Tweed Shire Council. 17Mr Molomby relied upon s 234E of the Local Government Act 1993, which provides that if a person becomes bankrupt their office as a councillor is vacated. It was put that if a verdict is obtained against Ms Milne there is a risk that that will occur. However, in the present application, Mr Tobin submitted correctly that there is no evidence before the Court as to Ms Milne's means to meet any verdict. The quantum of any verdict together with any costs order she may have to meet is entirely speculative at least so far as the parties are concerned at this point. 18As I understood the case, however, the defendant did not press that proposition as the basis for the present application. Rather, it was put in the written submissions relied on by Mr Molomby on behalf of Ms Milne that the defendant was not motivated to vindicate his reputation but rather by vindictiveness against Ms Milne. 19I should note in that context that the only evidence adduced by the plaintiff on the present application was a bundle of correspondence beginning with the service of what was intended to be a Concerns Notice under the Defamation Act 2005 and followed by a series of exchanges evidently endeavouring to negotiate the publication of an apology for publication of the matter complained of. Mr Tobin relied upon that correspondence to demonstrate or support the contention that Mr Ell was evidently motivated to vindicate his reputation in these proceedings. 20Mr Molomby relied on the same correspondence as revealing an object of Mr Ell to crush Ms Milne, his political opponent, by bringing her to court and putting her through the angst of a court case. Those were not Mr Molomby's words, rather they were, I think, Mr Tobin's paraphrase of them but that was the gist of the contention. 21I have been troubled as to what finding of fact I should properly make regarding Mr Ell's motive in bringing the present proceedings. It is, perhaps, enough for present purposes to observe that the aspects of the litigation that are relied upon by Ms Milne are certainly such as to give rise to a suspicion that Mr Ell is motivated by vindictiveness towards Ms Milne. She may well be a thorn in his side; he may well wish that she was not a councillor able to oppose and vote against his development applications. Acrimony between developers and so-called "greenies" in this country -particularly in beautiful parts of the country such as Tweed Shire Council which are open for development or conservation - may be recognized as simply a matter of common sense. 22I am, of course, impeded, and I intend here to use that term neutrally, by the fact that Mr Ell did not give evidence in the proceedings. He did not give evidence at the trial and he did not give evidence on the present application. It may be accepted that that was a forensic choice and there may be debate as to the factors that may have contributed to that choice. In the present hearing, neither party addressed me on that issue or as to what inference I should draw as to his absence from the proceedings. 23The simple fact is, however, that I am left in a position where I can only speculate in any attempt to devine Mr Ell's motives or purposes or in any attempt to purport to determine which motives or purposes were dominant or causative or extant at all. 24Since this is an issue on which Ms Milne bears the onus of proof, I can only conclude that she has not discharged it. I am not satisfied that Mr Ell was dominantly motivated in bringing the proceedings or that his dominant purpose in bringing the proceedings was something other than the vindication of his reputation against the defamatory imputations I have found were conveyed by the matter complained of. 25Even if I am wrong in that finding and Mr Ell is dominantly motivated by vindictiveness against Ms Milne in prosecuting the present claim, it is doubtful whether that would be enough to bring the claim within the category of being an abuse of the process of the Court such as to warrant dismissal of the proceedings. Vindictiveness is an emotion. It may be a false dichotomy to characterise it as being something that cannot be experienced or entertained at the same time as having a proper purpose for prosecuting a claim, such as vindicating reputation. 26The principles as to when an action should be dismissed as an abuse of process are considered in the decision of the High Court in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, which was relied upon by both parties. Mr Molomby relied upon the principle, which appears at page 520 of the judgment, that every Court is in duty bound to protect itself against an abuse of its process. That, I think, may be accepted as an unexceptional statement of principle. 27However, as submitted by Mr Tobin, it is important to be careful to draw a distinction between purpose and motive. Mr Tobin relied on a number of passages in Williams v Spautz, but particularly page 526 in the judgment of Mason CJ, Dawson, Toohey and McHugh JJ, where their Honours said: To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event. Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour. 28Those remarks were made in the context of an example not dissimilar to the allegation made by the defendant in the present case, namely, a political opponent prosecuting another so that he or she would be disqualified from office as an alderman. The point which emerges from the passages relied upon by Mr Tobin is this; If it can be concluded that the law provides a remedy for Mr Ell for defamation and that in these proceedings he evidently pursues that remedy, it is difficult to see how the existence or experiencing on his part of the emotion of vindictiveness towards the defendant whom he sues to obtain that remedy vitiates the propriety of his bringing the claim. Whatever views different people may have about his doing so are irrelevant so far as the present application is concerned. 29For those reasons the application must, in my view, be dismissed. 30I order that the defendant pay the plaintiff's costs of the defendant's motion of 29 April 2013. ********** 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: 21 May 2013