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
[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.
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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.