Ell v Milne (No 7) [2013] NSWSC 600

Ell v Milne (No 7) [2013] NSWSC 600

The defendant did not discharge the onus of proving that the plaintiff's dominant purpose in bringing the defamation proceedings was something other than vindication of his reputation. The evidence gave rise at most to suspicion and speculation about vindictiveness. In any event, even if vindictiveness existed, it was doubtful that such an emotion would make the proceedings an abuse of process where the plaintiff was pursuing a legal remedy for defamatory imputations found to have been conveyed.

Jurisdiction
Australia
Judgment Date
08 May 2013
Procedural Posture
Defamation Proceedings; Interlocutory Application to Dismiss Proceedings as an Abuse of Process / After Hearing of the Principal Defamation Action Had Concluded and Judgment Was Reserved
Outcome
Defendant's application dismissed
Legal Topics
['abuse of Process' 'predominant Purpose in Bringing Proceedings' 'vindication of Reputation' 'distinction Between Motive and Purpose' 'costs of Interlocutory Motion']
['defamation' 'civil Procedure' 'costs'] ['abuse of Process' 'predominant Purpose in Bringing Proceedings' 'vindication of Reputation' 'distinction Between Motive and Purpose' 'costs of Interlocutory Motion']

Case Brief

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Procedural Posture

Defamation Proceedings; Interlocutory Application to Dismiss Proceedings as an Abuse of Process / After Hearing of the Principal Defamation Action Had Concluded and Judgment Was Reserved

Legal Issues

  1. 1 ["Whether the defendant's application to dismiss the defamation proceedings as an abuse of process could be entertained after the parties' cases had closed and judgment had been reserved." "Whether the plaintiff's dominant purpose in bringing the defamation proceedings was something other than vindication of his reputation." 'Whether alleged vindictiveness against the defendant would be sufficient to make the proceedings an abuse of process.']

Ratio Decidendi

The defendant did not discharge the onus of proving that the plaintiff's dominant purpose in bringing the defamation proceedings was something other than vindication of his reputation. The evidence gave rise at most to suspicion and speculation about vindictiveness. In any event, even if vindictiveness existed, it was doubtful that such an emotion would make the proceedings an abuse of process where the plaintiff was pursuing a legal remedy for defamatory imputations found to have been conveyed.

Court Disposition

Defendant's application dismissed

Orders

  • ["The defendant pay the plaintiff's costs of the defendant's motion of 29 April 2013."]