Ainsworth v Burden

The appeal concerned a defamation action brought by the respondent, Mr Burden, against the appellant, Mr Ainsworth. The dispute arose from the publication of defamatory material by Mr Ainsworth. The appeal was heard by the New South Wales Court of Appeal, comprising Handley and Hodgson JJA and Grove J.

The central legal issue before the Court of Appeal was whether the defence of statutory protection, as provided by section 11 of the *Defamation Act 1974* (NSW), extended to the original publication of defamatory matter to a public official. This defence, which relies on the concept of qualified privilege, typically protects statements made in good faith and without malice in certain circumstances.

The Court of Appeal held that the statutory protection under section 11 of the *Defamation Act 1974* (NSW) did not cover the original publication of defamatory material to a public official. Their Honours reasoned that the legislative intent behind the provision was not to shield such initial disclosures, even if made to a government body. Consequently, the defence was not available to Mr Ainsworth in relation to the original publication.

Leave to appeal was granted, and the appeal was allowed with costs. The Court of Appeal made consequential orders.