Ainsworth v Burden - [2006] NSWCA 199

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ainsworth v. Burden [2006] NSWCA 199

FILE NUMBER(S):
40911/05

HEARING DATE(S): 10 July 2006

DECISION DATE: 24/07/2006

PARTIES:
Leonard Hastings Ainsworth - appellant
Leslie James Burden - respondent

JUDGMENT OF: Mason P Hodgson JA Bryson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC21216/96

LOWER COURT JUDICIAL OFFICER: Patten AJ

COUNSEL:
Mr. R.R. Stitt QC with Mr. T.D. Blackburn SC for appellant
Mr. C.A. Evatt with Mr. R.K.M. Rasmussen for respondent

SOLICITORS:
Dibbs Abbott Stillman, Sydney for appellant
Hunt & Hunt, Eastwood for respondent

CATCHWORDS:
DEFAMATION - Appeal - Finding of jury that defamatory letter was published in circumstances such that the plaintiff was unlikely to suffer harm - Whether finding appealably unreasonable.

LEGISLATION CITED:

DECISION:
1. Appeal dismissed with costs. 2. Cross-appeal dismissed, with each party to bear its own costs to the extent that the overall costs of the appeal and cross-appeal have been increased by the bringing of the cross-appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40911/05
SC 21216/96
MASON P
HODGSON JA
BRYSON JA
Monday 24 July 2006

AINSWORTH V. BURDEN

Judgment

MASON P: I agree with Hodgson JA.
HODGSON JA: The appellant brought proceedings for defamation against the respondent in respect of a letter dated 4 June 1993 written by the respondent to the then Minister of Police. In October and November 2005, there was a 14-day trial before Patten AJ and a jury. On 2 November 2005, the jury gave answers to the following three questions, being three of five questions that had been left to them:
(1)Has the plaintiff Leonard Ainsworth established that the letter written to the Minister on 4 June 1993 by the defendant Leslie Burden conveyed to the ordinary reasonable reader any of the following imputations (or imputations not different in substance):
(a)The plaintiff was not a fit and proper person to be involved in the management of a company licensed in relation to poker machines.
(b)The plaintiff was not a fit and proper person to have a financial interest in a company licensed in relation to poker machines.
(c)The plaintiff was not a fit and proper person to have a financial interest in a company licensed to be an approved amusement device dealer.
(2)In relation to any imputation in question (1) that you have found to be conveyed, that is any imputation to which you have answered “yes” in question (1), has the plaintiff established that such imputation is defamatory?
(3)Has the defendant established that the defendant’s letter of 4 June 1993 was published in circumstances such that the plaintiff was unlikely to suffer harm?
The jury answered each part of question (1) yes, answered question (2) yes in relation to each part of question (1), and answered question (3) yes. Accordingly, since the respondent had thereby made out a defence under s.13 of the Defamation Act 1974, the trial judge entered a verdict for the respondent and ordered the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ainsworth v Burden

Details

AGLC: Ainsworth v Burden [2006] NSWCA 199
Case: [2006] NSWCA 199
Decision Date: 24 July 2006

CaseChat Overview and Summary

The appeal concerned a defamation action brought by Ainsworth against Burden. The central dispute revolved around a jury's finding that a defamatory letter published by the respondent was sent in circumstances where the appellant was unlikely to suffer harm. The appeal was heard by the New South Wales Court of Appeal.

The primary legal issue before the Court of Appeal was whether a reasonable jury could have concluded that the circumstances of the publication of the defamatory letter were such that the appellant was not likely to suffer harm. This required the court to consider the inferences available from the evidence regarding the timing and nature of investigations into the appellant, and whether the respondent's letter contributed to or initiated any such harm.

The Court of Appeal reasoned that several inferences were available to the jury. These included that an investigation into the appellant's fitness was already underway by the Minister for Police following a parliamentary question, and that the matters which ultimately caused concern to Nevada gaming authorities arose independently of the respondent's letter. The court found that the letter itself did not allege criminality but rather asserted the need for an inquiry, and that since an inquiry was already in progress and the key concerns stemmed from other sources, the letter neither initiated nor exacerbated the harm. Therefore, it was open to the jury to conclude that the circumstances of publication meant harm was unlikely.

The appeal was dismissed with costs. A cross-appeal was also dismissed, with each party bearing their own costs in relation to the increased costs occasioned by the cross-appeal.

Orders

Orders of the court

1. Appeal dismissed with costs.

2. Cross-appeal dismissed, with each party to bear its own costs to the extent that the overall costs of the appeal and cross-appeal have been increased by the bringing of the cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to these circumstances of the publication, Mr. Stitt submitted, a reasonable jury could not have concluded that the circumstances of publication were such that the appellant was not likely to suffer harm from the publication of a letter containing the serious defamatory imputations found by the jury. DECISION In my opinion, in addition to the circumstances referred to by Mr. Stitt, the following inferences were available on the evidence as to the circumstances of the publication:(1)Having received the question from Mr. Hatton in Parliament, the Minister for Police acting responsibly would promptly have instituted investigations into the subject of the question.(2)Accordingly, such investigations, probably by Detective Inspector Richardson, commenced not long after 24 April 1993, and accordingly were well under way by the time of the respondent’s letter of 4 June 1993. (3)The respondent was not asked to give further information in connection with his letter until 5 August 1993, so that Detective Inspector Richardson’s submission dated 21 June 1993 (not in evidence) was based more on his other enquiries than on the respondent’s letter of 4 June 1993; and these inquiries produced information prompting Inspector Richardson to answer Mr. Hatton’s question “Yes” (see third paragraph of W. Allen’s document of 6 August 1993).(4)Sergeant’s Osborne’s two letters of 12 July 1993, respectively alleging criminal proceedings in New Jersey and Nevada, were not based on the respondent’s letter or any information from the respondent, but from information coming from somewhere else, possibly from Inspector Richardson’s enquiries.(5)Neither the respondent’s letter nor his interview on 5 August referred to Mr. Fullerton or Mr. Wilner, so that the interest of the Nevada gaming authorities in those persons was not derived from the respondent’s letter but from some other circumstances independent of the respondent’s letter. (6)Thus, at the time the respondent sent his letter, there was already an enquiry under way as a result of Mr. Hatton’s question; and matters of concern to the Nevada authorities (the existence of an enquiry, alleged criminal matters in New Jersey and Nevada, and the appellant’s association with Mr. Fullerton and Mr. Wilner) were not raised as a result of the respondent’s letter, but rather emerged from other circumstances existing at around the same time. It does not appear that those propositions were put in just those terms to the jury. However, in my opinion the possibility of those inferences does show that it was open to the jury to reason that an enquiry into the appellant’s fitness had already been instituted by the Minister for Police at the time the respondent sent his letter to the Minister; the letter itself did not allege criminality or dishonesty, but its thrust was to assert there should be an enquiry; matters raised in the letter had all been heard before; since the publication was to the Minister, the only likelihood of harm was through either initiating or adding fuel to an enquiry; because the enquiry was already under way and because the matters that actually caused concern to Nevada arose from circumstances independently of the letter, the letter did not either initiate or add fuel to the enquiry; and therefore the circumstances of publication were such that it was not likely to cause harm.

Ratio Decidendi

Legal Principle Established

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