Ainsworth v Burden

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.