Ainsworth v Burden - [2005] NSWSC 819

CITATION:
Ainsworth v Burden [2005] NSWSC 819

HEARING DATE(S): 11/8/05

JUDGMENT DATE :

15 August 2005

JUDGMENT OF:
Bell J at 1

DECISION:
1. Subject to the following rulings, grant leave to the defendant to file the further amended defence within fourteen days of today's date; 2. Particulars pursuant to Pt 67 r 17(3) of the SCR of the defence of comment that are currently identified in subparagraphs (viii) (a) and (b) are to be set out in the further amended defence; 3. Strike out paragraphs 4 (d), (e) and (f) of the further amended defence, and the particulars of fair protected report (paragraph (v)), fair extract or fair abstract from or fair summary of a document or record specified in clause 3 of Schedule 2 (paragraph (vi)), reply to attack (paragraph (vii)) and material for comment (paragraph (viii)).

LEGISLATION CITED:
Defamation Act 1974
Supreme Court Rules 1970

CASES CITED:
Ainsworth v Burden [2005] NSWCA 174
Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118; 60 NSWLR 251
Loveday v Sun Newspapers Limited (1938) 59 CLR 503
Sims v Wran [1984] 1 NSWLR 317
Pervan v North Queensland Newspaper Co Ltd (1992 - 1993) 178 CLR 309
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

PARTIES:
Leonard Ainsworth (Plaintiff)
Leslie James Burden (Defendant)

FILE NUMBER(S):
SC 21216/96

COUNSEL:
R. Stitt QC / T. Blackburn SC (Plaintiff)
C. Evatt (Defendant)

SOLICITORS:
Dibbs Barker Gosling Lawyers (Plaintiff)
Hunt & Hunt (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Monday 15 August 2005

21216/96 Leonard Ainsworth v Leslie James Burden
JUDGMENT

1 BELL J: The applicant, Leslie James Burden, who is the defendant in the proceedings, moved on notice for an order that he have leave to file a further amended defence in the form of the draft annexed to his motion. In support of the motion he read paragraphs [1] to [19] of the affidavit of his solicitor Susan Frankham, which was sworn on 2 August 2005.

2 The proceedings were commenced by statement of claim filed on 1 November 1996. A defence was filed on 27 March 1997. An amended defence was filed on 5 December 2000.

3 The matter complained of is a letter written by the defendant to the Minister of Police dated 4 June 1993 (the letter).

4 The plaintiff pleads three imputations arising out of the letter:

“(a) That 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) That the plaintiff was not a fit and proper person to have a financial interest in a company licensed in relation to poker machines;

(c) that 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.”

5 The publication took place prior to the amendment of the Defamation Act 1974 (the Act), which…

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 [2005] NSWSC 819
Case: [2005] NSWSC 819
Decision Date: 15 August 2005

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Bell J heard the application by Leslie James Burden, the defendant, for leave to file a further amended defence in the defamation proceedings brought by Leonard Ainsworth. The original claim was filed on 1 November 1996, and the defendant filed an amended defence on 5 December 2000. The trial was fixed for 4 April 2005, but did not proceed, and the defendant sought leave to file a further amended defence.

The central issue was whether the defendant should be granted leave to file a further amended defence, and if so, which defences should be allowed. The defendant proposed to plead several new defences, including fair protected report, fair extract or summary of a document, reply to attack, and comment. The plaintiff opposed the grant of leave for these defences, arguing that they were hopeless or inadequately particularised.

Bell J applied the principles set out in the Court of Appeal judgment to determine whether the defendant should be granted leave to amend the defence. The court found that the defences of fair protected report and fair extract or summary of a document were not supported by the evidence and could not succeed. Regarding the defence of comment, the court held that it was arguable, and the defendant should not be denied the opportunity to litigate it, as it might place material before the jury that is unfavourable to the plaintiff. However, the particulars of the defence of comment were deemed insufficient, and the defendant was required to provide particulars conforming to the Supreme Court Rules. Lastly, the court found that the defence of reply to attack was not supported by the content of the letter and could not be sustained.

Bell J granted leave to the defendant to file the further amended defence within fourteen days, provided that certain defences and particulars were excluded. The court ruled that the defences of fair protected report, fair extract or summary of a document, reply to attack, and certain particulars of the defence of comment should be struck out. The defendant was required to set out particulars for the defence of comment in accordance with the Supreme Court Rules.

Orders