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April 11, 2021

Judges reject appeals by developer and Tweed councillor

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Luis Feliu

The long-running defamation case by billionaire property developer Bob Ell against Greens Tweed Shire councillor Katie Milne has come to an end, with three appeal court judges rejecting bids by both of them to overturn the original Supreme Court judgements.

Mr Ell, the developer of the massive proposed townships of Kings Forest and Cobaki, was awarded $15,000 in damages by the NSW Supreme Court earlier this year in a defamation action he brought against Cr Milne over an email she sent alleging he had a scandalous association with a murdered Sydney hitman.

Justice Lucy McCallum had ordered each to pay their separate legal costs, but both then sought leave to appeal that finding, claiming the other party should been ordered to pay the costs. The case has been running for four years over nine hearings in the Supreme Court, and costs are believed to have run into the tens of thousands of dollars.

Cr Milne had also sought leave to appeal the original damages judgment against her.

The NSW Court of Appeal last Friday refused both appeals by Mr Ell and Cr Milne finding that neither party had provided sufficient reason to overturn the original judgments of Justice McCallum.

Justice Basten said in the ruling on costs that Justice McCallum’s refusal to award costs to either party was, given the circumstances, ‘understandable’.

Justice Basten said Cr Milne’s complaint was that the judge failed to give proper weight to a pre-litigation offer of an apology, ‘with respect to imputations more serious than those which were ultimately upheld’.

‘The offer of an apology had not been accepted, partly on grounds which, it may be said, were rhetorical and offensive, but partly on the ground that the apology did not concede the imputations were conveyed or defamatory and was therefore less than complete,’ the judge said.

He said Mr Ell’s cross-appeal was ‘pursued on the ground that although the judge had refused to strike out the proceedings on the basis that they were brought for an improper purpose, the respondent’s failure to proffer evidence with respect to any hurt to his feelings was nevertheless held against him’.

‘Thus, he took issue with the trial judge relying upon the material presented on the abuse of process application to form “the unhappy conclusion that the proceedings, although not an abuse of process, were in some measure a cynical exercise undertaken for the purpose of causing grief to a political opponent of Mr Ell”: Ell v Milne (No 9) at [28].’

Justice Basten said Mr Ell had claimed the refusal to award costs was punitive and did not relate to the actual conduct of the litigation.

‘Each party sought to identify complaints about the absence of costs orders in his or her favour as raising issues of principle. Even if that were so, which is not self-evident, the order in fact made was, in all the circumstances, within the discretionary range available to the trial judge. Given that there is no other issue which would warrant the attention of this Court, the Court should not give leave with respect to the costs order.’

No further costs were awarded against either party for this appeal hearing by the  judges (Justices Basten, McColl and Leeming).

Cr Milne told Echonetdaily this morning that ‘the original rulings against me for damages of $15,000 and legal costs for some of the interim hearings which occurred during the principal case therefore remain in force’.

‘The costs for those interim hearings are expected to be relatively substantial when they are finally quantified,’ she said.

‘In the main, one of those interim hearings Justice McCallum had refused my application to dismiss Mr Ell’s defamation claim as an abuse of process despite finding 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”, (Ell v Milne, No 7, para 14),’ she said.

Cr Milne said Justice McCallum had ‘refused to award costs to Mr Ell in that main case, referring to the abuse of process case and the fact that Mr Ell did not take the stand.

‘She had concluded that “My consideration of that material has led me to the unhappy conclusion that the proceedings, although not an abuse of process, were in some measure a cynical exercise undertaken for the purpose of causing grief to a political opponent”. (Ell v Milne, No 9, para 28)

‘Four years after Mr Ell filed his original claim against me, major media websites with content similar to what I was pursued for saying remain online to this day.

‘As acknowledged by Justice McCallum, Mr Ell does not show the same level of concern for these as for what I said to a much smaller number of people’.

In her original damages finding, Justice 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.

The $15,000 damages 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).

 


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