The New South Wales Supreme Court has determined that a comment that a Councillor "is not a fit and proper person to be a Councillor" is defamatory, and the defences of fair comment/honest opinion do not apply.

In Issue

  • Whether the alleged defamatory imputation was conveyed by the comment.
  • Whether the statutory defence of honest opinion and the common law defence of fair comment apply.
  • Whether the defendant was liable for the republication of his comments by the media.

Background

The plaintiff, Ms Katie Milne, commenced proceedings in defamation against Mr William Robert Ell (the defendant), seeking damages for a comment made by him that she “is not a fit and proper person to be a Councillor”, that was reported on in the Gold Coast Bulletin, together with a comment that he hoped speculation that the payment of a judgment debt would bankrupt her was true, so that she would not be able to retain her position as a Councillor.

Decision

It was not disputed at trial that the imputation that the plaintiff “is not a fit and proper person to be a Councillor”, if conveyed by the defendant’s comment, was defamatory. However, the defendant argued that the imputation was incapable of being conveyed by his comment, on the basis that the imputation was not sufficiently specific. However, the trial judge rejected that argument and therefore held that the imputation was conveyed by the defendant’s comment.

The trial judge then analysed the defendant’s pleaded defences to the claim, namely the statutory defence of honest opinion, and the common law defence of fair comment. While noting that it is often difficult to distinguish between statements of facts and opinions, the trial judge held that, when considered in context, the defendant’s comment was a statement of fact, and therefore the defences of honest opinion/fair comment were not available. Relevant contextual matters identified by the trial judge included that the defendant’s comment did not criticise the work or conduct of the plaintiff, but rather the plaintiff herself; it was made in the present tense, and therefore could not be based upon the plaintiff becoming bankrupt; and none of the facts upon which it was based were stated in the publication.

The court also held that the defendant was liable for the re-publication of his comment by the Gold Coast Bulletin, as he made the comment to a journalist, with full knowledge that it may be re-published.

The court therefore awarded the plaintiff $45,000 in damages plus costs. In assessing damages, the court took into account that the plaintiff’s position as a Councillor meant she is dependent upon her (good) reputation, that the publication was widely circulated to over 135,000 people, and that the comment was a personal attack. The mitigating effect of an apology published by the Gold Coast Bulletin was also taken into account.

Implications for you

This case is illustrative of the difficulties defendants have in succeeding with a defence of honest opinion/fair comment, as a result of the distinction between statements of fact and opinions being nuanced. It clarifies that it is important to consider the context in which an alleged defamatory comment has been made. Contextual matters indicative of a comment being an expression of opinion include the comment being a criticism on the conduct or work of an individual, rather than a personal attack, and whether the comment can be inferred from published or notorious facts.

This judgment is also useful for quantum assessments. It provides guidance on the likely damages that will be awarded for defamatory comments made that concern a person’s professional reputation, and are (re)-published in the media.

Milne v Ell [2017] NSWSC 555