Milne v Ell [2014] NSWCA 407

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Milne v Ell [2014] NSWCA 407 Hearing dates: 28 November 2014 Decision date: 28 November 2014 Before: McColl JA at [1]; Basten JA at [2]; Leeming JA at [33] Decision: (1) Dismiss Ms Milne's application for leave to appeal, with no order as to the costs of the application. (2) Dismiss Mr Ell's application for leave to cross-appeal, with no order as to the costs of the application. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DEFAMATION - imputations - innuendo - extrinsic facts - whether the reputation of a third party can constitute an extrinsic fact relied on to support an innuendo absent proof that the reputation is based on fact

PRACTICE AND PROCEDURE - costs - defamation proceeding - no order as to costs - whether successful plaintiff properly deprived of costs - whether defendant should have received costs on the basis of a timely apology which was not accepted - whether either party should have leave to appeal against no costs order Legislation Cited: Supreme Court Act 1970 (NSW), s 101 Cases Cited: Ell v Milne (No 5) [2013] NSWSC 246 Ell v Milne (No 7) [2013] NSWSC 600 John Fairfax Publications v Rivkin [1999] NSWCA 164 Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632 Category: Principal judgment Parties: Katie Milne (Applicant/Cross-Respondent) William Robert Ell (Respondent/Cross-Applicant) Representation: Counsel: Mr T Molomby SC/Ms L Goodchild (Applicant/Cross-Respondent) Mr TK Tobin QC/Mr BA Kelleher (Respondent/Cross-Applicant) Solicitors: NLS Law (Applicant/Cross-Respondent) Pikes & Verekers Lawyers (Respondent/Cross-Applicant) File Number(s): 2014/137391 Decision under appeal Jurisdiction: 9111 Citation: Ell v Milne (No 8) [2014] NSWSC 175; Ell v Milne (No 9) [2014] NSWSC 489 Before: McCallum J File Number(s): 2010/417226