A "SUSPICION" that billionaire developer Bob Ell's decision to sue Tweed councillor Katie Milne was motivated by "vindictiveness" was not enough to have the case thrown out of court, a Sydney judge has ruled.
Earlier this year, Justice Lucy McCallum found Cr Milne had defamed Mr Ell by implying in a widely distributed letter that he had a scandalous association with murdered Sydney businessman Michael McGurk.
In a last ditch attempt to clear her name, Cr Milne's lawyer filed an abuse of process claim on the grounds "Mr Ell suffered no hurt to his feelings" and the true purpose of the proceedings was to bankrupt his Greens rival and force her out of the Tweed Council.
It was argued that despite the imputations being "conveyed more clearly, perhaps in some instances, more seriously" in a number of news articles than they were in Cr Milne's letter, Mr Ell had chosen not to take action against anyone but her.
The claim was dismissed the following day but Justice McCallum's reasons for rejecting the application were only published this week.
She wrote she was "troubled" as to what finding she should make and noted Cr Milne's claims "give rise to a suspicion that Mr Ell is motivated by vindictiveness ...that she may well be a thorn in his side...and he may way well wish she was not a councillor able to oppose a vote against his development applications".
She said "acrimony between developers and so-called "greenies" in this country - particularly in beautiful parts of the country such as Tweed Shire Council which are open for development or conservation - may be recognised as simply a matter of common sense".
But Justice McCallum found she could not be satisfied Mr Ell was "dominantly motivated" by a purpose other than vindicating his reputation and said even if she was wrong "vindictiveness is an emotion" and it was doubtful Cr Milne's claim could be categorised as an abuse of process.
Final judgement in the defamation case has been reserved and costs are yet to be decided.
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