Billionaire property developer Bob Ell has been awarded a meagre $15,000 damages over a defamatory email published by his long-time adversary, Greens Tweed Shire councillor Katie Milne (Ell v Milne (No 8)  NSWSC 175).
NSW Supreme Court Justice Lucy McCallum failed both defences pleaded by Milne – qualified privilege and contextual truth – but declined to award Ell higher damages due the email’s limited publication and because:
“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.”
Ell (pic) sued Milne over an email headed “Letter to the editor” and sent to various newspapers (including The Sydney Morning Herald, The Tweed Echo and The Gold Coast Bulletin) as well as the ABC, two special interest groups, the Caldera Environment Centre and the Cabarita Beach Residents Association, and 69 individuals.
Ell relied upon a particular part of the email, which was sent in March 2010.
“The developer Mr Bob Ell has made massive donations to both the State and Federal Labour and Liberal govts as well as the last Council.
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.”
Milne pleaded qualified privilege and contextual truth in defence.
The matter went to trial in March last year. Justice McCallum heard the case without a jury and on the papers alone.
Neither Ell nor Milne elected to give evidence.
Justice McCallum found only two of the six imputations pleaded by Ell conveyed and defamatory:
(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.
Her Honour also found the single contextual imputation pleaded by Milne in defence was conveyed and defamatory.
“That as a developer the plaintiff has attempted to buy the favours of State government and the local council by making large donations to political parties and election campaigns”.
After Justice McCallum reserved her decision, Milne failed to have the action against her dismissed as an abuse of process.
Justice McCallum initially considered the extent of publication.
Milne admitted publication to only two recipients, with Ell claiming she was liable for a number of other publications and re-publications.
Justice McCallum (pic) noted the onus for proof of publication was Ell’s and that:
“No oral evidence was called on that issue, or indeed at all… Apart from those specific instances where it is accepted that the recipient opened and read the email, Mr Ell’s case rests on inference.”
In the absence of conclusive evidence, she concluded:
“The email was probably read by more than a few people but considerably fewer than the complete list of persons to whom it was sent.”
Justice McCallum found a similar lack of evidence from Milne in relation to the recipients’ requisite interest in receiving the information.
“I am simply unable, on the strength of the scant evidence before me, to undertake the examination required in order to form an evaluative judgment as to whether a privileged occasion existed.
Her Honour rejected any malice on Milne’s part.
“On my reading of it, including the impugned passage, I see no basis for inferring any improper motive on the part of Ms Milne.”
Justice McCallum stated that the sting of the imputation amounted to an allegation that “Mr Ell attempted to corrupt the ordinary processes of state and local government by making political donations”.
She rejected Milne’s submission, put by her counsel Tom Molomby SC, that all donations to political parties are “inherently corrupt”, finding:
“None of the documents in evidence, nor any inference that may be fairly drawn from them, reasonably sustains a finding that Mr Ell attempted to buy the favours of the NSW State Government and the Tweed Shire Council.”
Justice McCallum was critical of Ell’s failure to give evidence of his hurt to feelings, to call a single reputation witness and to attend any part of the hearing.
She declined to award any aggravated damages.
“Most of the particulars of aggravated damage relied upon by Mr Ell are incapable of increasing injury to reputation and, in the absence of evidence from him, cannot be found to have been a factor causing or augmenting any hurt to his feelings. ”
Her Honour dismissed a particular of aggravation citing Milne’s counsel’s submissions on Ell’s integrity.
“I would accept that Mr Molomby’s submissions entailed the use of colourful analogy and perhaps a degree of exaggeration or at least eccentricity. His argument was not successful, but I do not think it was improper or unjustifiable such as to aggravate Mr Ell’s damages.”
Justice McCallum determined the appropriate award of damages to be $15,000. She agreed to hear the parties on costs.
For the plaintiff: Terry Tobin QC and Bede Kelleher instructed by Tony Smith.
For the defendant: Tom Molomby SC, Roger Rasmussen and L. Goodchild instructed by Neisha Shepherd of NLS Law.
This article was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.