Tweed councillor’s email not malicious: judge

Luis Feliu

Billionaire property developer Bob Ell has been awarded $15,000 in damages in a defamation action he brought against Tweed Shire Councillor Katie Milne over an email she sent alleging he had a scandalous association with a murdered Sydney hitman.

But NSW Supreme Court judge Lucy McCallum rejected allegations by Mr Ell’s legal team that Ms Milne acted maliciously, suggesting instead her motives were public spirited.

Justice McCallum found Ms Milne had no improper motive for sending the email, headed ‘letter to the editor’, which she said was limited in extent of its publication.

‘On the contrary, the letter reads as a passionate plea for a broader community discussion of the topics of public interest identified in support of the defence,’ Justice McCallum said in her judgment handed down last Friday.

The amount was appropriate, the judge said, given it was confined to damage to Mr Ell’s ‘presumed reputation with no component for distress or hurt to feelings’.

(The maximum award under the act for such damages is $355,500).

Ms Milne sent the email to various newspapers including the former weekly The Tweed Echo (which was then a sister publication to Echonetdaily), The Sydney Morning Herald, and The Gold Coast Bulletin, as well as the ABC, other organisations and individuals.

Cr Milne’s barrister, Tom Molomby, SC, had argued that the email/letter was in the public interest.

The ruling on Friday follows a lengthy case which was launched almost two years ago and involved several hearings in Sydney. Costs will be determined at a hearing next month.

Mr Ell, the chief executive of Leda Holdings behind the Tweed’s two biggest ever housing developments, claims he was ‘gravely injured’ by the allegations linking him to murdered standover man Michael McGurk in the email, which also made comments about his donations to pro-development councillors and the state government.

But the court heard that Mr Ell did not give evidence, attend any part of the hearing or call any witness, a point which the judge agreed had been ‘extremely unusual’.

Justice McCallum in her judgement noted ‘there was no evidence of the kind commonly called in defamation cases from persons who can attest to a plaintiff’s good reputation’, but she said Mr Ell was still entitled to an award for some damage to reputation.

Mr Molomby argued that ‘without evidence of reputational damage or distress’, Mr Ell should only be given a very nominal amount of around $1, but Justice McCallum said such an amount would be ‘derisory’ and would not vindicate the damage to Mr Ell’s ‘presumed good reputation’.

Justice McCallum said the two defamatory imputations on which Mr Ell had succeeded in the case to date were ‘serious’.

‘It has been alleged that he had a a scandalous association with the murdered man Mr McGurk and that he conducted his business with regard to property development by employing a person with a reputation for violence,’ she said.

No distress component

In assessing the ‘consolation for the wrong done’, Justice McCallum said she did not accept Mr Ell was entitled to damages for distress or hurt to his feelings in the case.

‘Mr Ell’s failure to give evidence was unexplained,’ she said.

‘The fact that he did not attend a single minute of the hearing speaks against his having suffered any real distress or hurt caused by the publication.’

Justice McCallum also rejected Mr Ell’s claims that his damages had been aggravated by a range of issues, including Ms Milne’s failure to apologise and the conduct of her defence.

The judge said the degree of such aggravated injury to Mr Ell’s reputation was no more than ‘very slight’ and an apology may have mitigated it, rather than aggravate it.

Mr Ell’s barrister Terry Tobin, QC, had complained that remarks made in the court in June last year by Mr Molomby, while arguing the contextual truth defence for Ms Milne, had aggravated the injury on Mr Ell’s reputation.

But Justice McCallum rejected that, saying ‘some allowance must be made for the flourishes of advocacy’.

She was referring to argument by Mr Molomby (below in italics) over the nature of political donations allegedly made by Mr Ell, or companies controlled by him, to local council and state government candidates .

‘We can all envisage late night gangster movies when the gangster said “I just gave him a birthday present. What’s wrong with a present?”

‘A publican can give a person free drinks but if the drinks are given to the local police regularly as they come through the hotel… and that is captured by CCTV and demonstrable but one does not have more than that; what is, when that is published, the imputations that arise from it?

‘The imputation that arises in loose terms was the publican was softening up the police so that when there is a brawl and they are needed they will come faster and give better service and so when there is some trouble of any sort that the publican might get a soft touch.

‘But none of these purposes are specified in the nature of the transaction. It is generalised, as I say, softening up, buying of favours in advance for whatever circumstances turns out to trigger the need.’

Mr Molomby also later said:

‘The nature of such conduct in life usually does not allow great specificity.

‘If somebody is softening up someone by giving repeatedly large whacks of money that is usually all that could be said. That is the reality of life. Not just this situation.

‘It is how such transactions work and notoriously work. One could never realistically go beyond that.

‘Of course there are very good practical reasons why it is done that way. It is so the favourable result ensued cannot be tracked back. There wasn’t a brown paper bag passed under the lamplight at midnight.

‘Someobody who stood as a candidate didn’t have to go to their own pocket for their campaign because some friendly man came to the campaign allowing them to keep money in their pocket. That is how it works.’

Mr Tobin, according to Justice McCallum, ‘immediately expressed his shock at the remarks and flagged his intention to rely on them in aggravation of damages, since they amounted to a suggestion in open court of corrupt conduct on the part of the plaintiff’.

Remarks not reported

‘As already noted, however, there was no suggestion the remarks were reported to Mr Ell and upset him,’ she said.

Justice McCallum said the remarks were not improper or unjustifiable such as to aggravate Mr Ell’s damages.

‘In assessing issues of this kind, some allowance must be made for the flourishes of advocacy. A barrister is required fearlessly to uphold his client’s interests. There is no single correct or appropriate standard of conduct for that often difficult task,’ she said.

In a previous hearing, Mr Molomby alleged Mr Ell had tried to buy favours of the state government and the local shire council by making large donations to political parties and campaigns, including $11,000 to former planning minister Frank Sartor in 2003, before he was in office.

The list also revealed that Mr Ell paid for several expensive dinners, costing between $2,000 to $5,000, with Mr Sartor when he was minister for planning as well as then premier Morris Iemma and ministers Joe Tripodi and David Campbell between 2003 and 2006.

Mr Ell’s Leda property group has state government approval for the development of the townships of Kings Forest on the Tweed coast and Cobaki near the NSW-Queensland border, both for around 10,000 homes.

Mr Molomby also told the court that in October 2005 Mr Ell donated $110,000 to the NSW Labor Party, prior to lodging the Kings Forest application with the state government, which gave him access to then premier Bob Carr and various ministers.

The court was told that other recipients of Mr Ell’s largesse included an election campaign under the banner ‘Tweed Directions’, which bankrolled a group of pro-development councillors in the council election of 2004 to the tune of $80,000.

In her defence, Cr Milne had argued ‘contextual truth’ over the email, essentially that Mr Ell did in fact try to influence planning decisions, but Justice McCallum said she was not satisfied that was the case.

The judge described the accusation that Mr Ell ‘attempted to buy the favours of state government and the local council’ as ‘undoubtedly a serious one’.

She said the ‘sting of the imputation’ was the assertion that Mr Ell attempted to buy favours by the large political donations which ‘in substance’ amounted to an accusation of ‘a species of corruption’.

‘It is stronger than an assertion of attempting to influence or persuade. To “buy favours” is to secure the certainty of a favourable outcome of agreement and regardless of propriety,’ Justice McCallum said.

‘The imputation thus amounts, in effect, to an assertion that Mr Ell tried to attempted to corrupt the ordinary processes of state and local government by making political donations.’