Ainsworth v Burden

Case [2005] NSWCA 174


CITATION:

Ainsworth v Burden [2005] NSWCA 174
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):

15 April 2005

 
JUDGMENT DATE: 


21 June 2005

JUDGMENT OF:

Handley JA at 1; McColl JA at 2; Hunt AJA at 3

DECISION:

1.The appeal is allowed.; 2.The plaintiff's application to amend the particulars of malice and to supply particulars of his claim for aggravated damages is allowed.; 3.The plaintiff is to pay one-third of the defendant's costs of the seven days of the trial.; 4.The defendant is to pay the plaintiff's costs of the appeal.

CATCHWORDS:

Letter written to Police Minister by defendant imputing that plaintiff not a fit and proper person to hold gaming licence or to be associated with holder of such licence - Police Minister directs investigation into allegations made in letter - defamation action based on letter - defendant pleads defences of truth and qualified privilege - malice pleaded in answer to qualified privilege - - - - At trial plaintiff seeks to tender five judgments of Licensing Court and report of investigation into defendant's allegations all rejecting those allegations, of which defendant was aware, as evidence of malice by defendant's persistence in asserting truth of his allegations in face of their constant rejection by authorities - tender rejected by trial judge as unfairly prejudicial to defendant, as strength of findings in favour of plaintiff such that jurors unable to put them out of mind when considering defence of truth - Evidence Act 1995, s 135 - error by judge - - - - At trial plaintiff seeks to amend by adding to particulars of malice and supplying particulars of aggravated damages - judge rejects on principles of case management- similarity of issues in malice and aggravated damages - error by judge - - - - Judge rules that, after withdrawal of defence of truth and in absence of particulars of aggravated damages or of falsity, no issue of truth or falsity arose - discussion of relevance of truth and falsity in defamation - error by judge

LEGISLATION CITED:

Defamation Act 1974
Evidence Act 1995
Freedom of Information Act 1989
Gaming Machines Act 2001
Jury Act 1977
Liquor Act 1982
Ombudsman Act 1974
Registered Clubs Act 1976

CASES CITED:

Ainsworth v Burden [2002] NSWSC 172
Ainsworth v Burden [2005] NSWSC 338
Akerhielm v De Mare [1959] AC 789
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
Bakerland Pty Ltd v Coleridge [2002] NSWCA 30
Bloch v Bloch (1981) 37 ALR 55
Broome v Cassel & Co Ltd [1972] AC 1027
Burden v Ainsworth (2004) 59 NSWLR 506
Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413
Clarapede v Commercial Union Association (1883) 21 WR 262
Clark v Molyneux (1877) 3 QBD 237
Clines v Australian Consolidated Press Ltd (1965) 66 SR 321
Clough and Rogers v Frog (1974) 4 ALR 615
Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd (1964) 82 WN (Pt 1)…

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AGLC
Ainsworth v Burden [2005] NSWCA 174
Case
[2005] NSWCA 174
Decision Date

CaseChat Overview and Summary

In *Ainsworth v Burden*, the plaintiff, Mr Ainsworth, brought a defamation action against the defendant, Mr Burden, concerning a letter Mr Burden wrote to the Police Minister. The letter alleged that Mr Ainsworth was not a fit and proper person to hold a gaming licence or be associated with a licence holder. This led to an investigation by the Police Minister into the allegations. Mr Burden pleaded defences of truth and qualified privilege, while Mr Ainsworth, in response to the qualified privilege defence, pleaded malice.

The legal issues before the court concerned the admissibility of certain evidence and the appropriateness of a judge's rulings on amendments to pleadings. Specifically, the court had to determine whether the trial judge erred in rejecting five judgments from the Licensing Court and an investigation report, which all rejected Mr Burden's allegations, as evidence of malice. The trial judge had excluded this evidence under section 135 of the *Evidence Act 1995* on the grounds that it was unfairly prejudicial to Mr Burden, as the strength of the findings in favour of Mr Ainsworth might prevent a jury from impartially considering the defence of truth. The court also had to consider whether the trial judge erred in refusing the plaintiff's application to amend his pleadings to add particulars of malice and to supply particulars of aggravated damages, which the judge rejected on case management principles. Finally, the court had to assess whether the trial judge erred in ruling that, after the withdrawal of the defence of truth and in the absence of particulars of aggravated damages or falsity, no issue of truth or falsity arose.

The appellate court found that the trial judge had erred in rejecting the tendered evidence. The court reasoned that the previous findings by authorities rejecting Mr Burden's allegations, of which Mr Burden was aware, were relevant to establishing malice by demonstrating his persistence in asserting the truth of his allegations despite their consistent rejection. The court also found that the trial judge erred in refusing the amendment to the particulars of malice and aggravated damages, noting the similarity of the issues involved and that the refusal was inconsistent with principles of case management. The court further held that the trial judge erred in concluding that no issue of truth or falsity arose.

Consequently, the appeal was allowed. The plaintiff's application to amend the particulars of malice and to supply particulars of his claim for aggravated damages was granted. The costs order reflected the partial success of both parties at trial and on appeal.

Orders

Orders of the court

1.The appeal is allowed.; 2.The plaintiff's application to amend the particulars of malice and to supply particulars of his claim for aggravated damages is allowed.; 3.The plaintiff is to pay one-third of the defendant's costs of the seven days of the trial.; 4.The defendant is to pay the plaintiff's costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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