Ainsworth v Burden

[2004] NSWSC 552

CITATION:	AINSWORTH v BURDEN [2004] NSWSC 552
HEARING DATE(S):	15/12/03; 17/12/03
JUDGMENT DATE:	25 June 2004
JUDGMENT OF:	Levine J at 1
DECISION:	1. The Amended Notice of Motion is dismissed.; 2. The applicant/defendant is to pay the respondent/plaintiff's costs.; 3. Exhibit A is to be returned.; 4. The matter is to be listed before the Registrar at 9.00am Friday 2nd July 2004.
CATCHWORDS:	Defamation- Summary Dismissal of action- SCR Pt 13 r 5- absolute privilege claimed.
LEGISLATION CITED:	Defamation Act 1974 Freedom of Information Act 1989 (NSW) Ombudsman (Amendment) Act 1993, No 97 Police Regulation (Allegation of Misconduct) Act 1978 Police Service Act 1900 Police Service (Complaints, Discipline & Appeals) Amendment Act 1993, No. 38
CASES CITED:	Clark v Ainsworth Levine J, unreported, 29 August 1997. Commissioner of Police v District Court of NSW & Anor (1993) 31 NSWLR 606. Hercules v Phease [1994] 2 VR 411 Mann v O'Neill [1996-1997] 191 CLR 204. Mahon v Rahn & Ors [2000] 1 WLR 2150 Oliver v Bryant Strata Management Pty Ltd & Ors (1995) 41 NSWLR 514 Peter Kent Development Pty Ltd v Australian & New Zealand Banking Group Ltd Hunt J, unreported, 6 May 1980 Taylor v Serious Fraud Office [1999] 2 AC 177.
PARTIES :	Leonard Hastings Ainsworth: Respondent/Plaintiff Leslie James Burden: Applicant/ Defendant
FILE NUMBER(S):	SC 21216/96
COUNSEL:	Applicant/Defendant: R Stitt QC/ T Blackburn SC Respondent/Plaintiff: B Donovan QC/ R Rasmussen
SOLICITORS:	Applicant/Defendant: Hunt & Hunt Respondent/Plaintiff: Dibbs Barker Gosling Lawyers

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

LEVINE J

FRIDAY 25 JUNE 2004

21216/96 LEONARD HASTINGS AINSWORTH v LESLIE JAMES BURDEN

JUDGMENT (Defamation- Summary Dismissal of action- SCR Pt 13 r 5- absolute privilege claimed)

1 LEVINE J: The plaintiff sues the defendant in respect of his letter dated the 4 June 1993, to the Minister for Police for New South Wales. The text of the letter is appended hereto. This text is based upon on the photocopy of the handwritten original among the defendant/applicant’s documents folder.

2 By an amended Notice of Motion the defendant/applicant seeks to have the plaintiff’s action summarily stayed or dismissed pursuant to SCR Pt 13 r 5. He relies upon several bases.

3 First, he has contended that the plaintiff’s action or pleading discloses no reasonable cause of action by reason of the operation s64 (1)(b) of the Freedom of Information Act 1989 (NSW). This ground was not argued because it was dealt with first by Simpson J on July 2002, [2002] NSWSC 620 and by the Court of Appeal on 24 April 2003, [2003] NSWCA 90.

4 The second basis is that there is disclosed no reasonable cause of action by reason of the operation of s17A (3) of the Defamation Act 1974, that is absolute privilege.

5 The third basis is that no reasonable cause of action is disclosed by reason of the fact that the matter complained of was published on an occasion of absolute privilege at common law, being a communication for the purpose of, and as a necessary step in, judicial or quasi-judicial proceedings. This basis is said to be founded in the decision of the High Court in Mann v O’Neill [1996-1997] 191 CLR 204.

6 The fourth basis is that the matter complained of was published on an occasion of absolute privilege at common law being a statement that can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution. This basis is said to rest in the decision of the House of Lords in Taylor v Serious Fraud Office [1999] 2 AC 177.

7 Fifthly it is contended that the proceedings are an abuse of process by reason of the purpose for which the matter complained of was obtained by the respondent/plaintiff pursuant to the Freedom of Information Act 1989 (NSW). This proposition is said to rest in a dictum of Mahoney JA in Commissioner of Policev District Court of NSW & Anor (1993) 31 NSWLR 606.

8 Evidence was admitted in support of the motion: see Peter Kent Development Pty Ltd v Australian & New Zealand Banking Group Ltd Hunt J, unreported, 6 May 1980. That evidence was constituted by two affidavits of Susan Irene Frankham sworn on 18 April 2002 and 2 July 2002.

9 The former affidavit annexes the plaintiff/respondent’s application of 6 June 1996 under the Freedom of Information Act and consequential communications as to the release of requested material including, as I understand it, the Mellis report to which the matter complained of was itself an annexure. There is also annexed to this affidavit communications between the parties’ solicitors as to the source of the matter complained of.

10 The second affidavit informs that the applicant/ defendant had been the officer in charge in the Licensing Investigative Unit in NSW Police from March 1984 to March 1989 when he retired on medical grounds. The history of that unit is set out. Reference is made to certain proceedings instituted but not prosecuted in this court by Ainsworth Nominees Pty Ltd against various police officers and the Freedom of Information matter, which as I understand it, culminated in the decision of the Court of Appeal in the Commissioner of Police v District Court of NSW & Anor (1993) 31 NSWLR 606.

11 Exhibit A comprises six communications between the Minister and Mr Burden.

The Second Basis- absolute privilege- Defamation Act 1974

12 Section 17A (3) of the Defamation Act 1974 states:

“There is a defence of absolute privilege for a publication to a member of parliament for the purposes of section 12(2) of the Ombudsman Act 1974 or s125 (4) of the Police Service Act 1990”.

13 Section 125 of the Police Service Act 1900 (NSW) as at 8 June 1993) said:

Making of Complaints
125(1) In writing . A complaint must be in writing.
(2) Anonymous Complaints. It is not necessary for the complainant to be identified in a complaint
(3) How made. A complaint is duly made if:
(a) it is delivered to a police officer personally or received by a police officer by post or facsimile transmission; or
(b) it is lodged at the office of the Ombudsman while that office is open for business or it is received in that office by post of by facsimile transmission; or
(c) it is addressed to the Ombudsman and lodged at a Loca Court while that Court is open for business; or
(d) it is referred to the Ombudsman by the Minister or by the Independent Commission Against Corruption.
(4) M.P. may act for complainant. A complaint may, with the written consent of the complainant, be made on his or her behalf by a Member of Parliament.
…

14 The legislation which governed complaints about Police conduct prior to the Police Service Act 1990 (Pt 8 A) was the Police Regulation (Allegation of Misconduct) Act 1978 (the “PRAM” Act). That act was repealed on 8 June 1993 by the Police Service (Complaints, Discipline & Appeals) Amendment Act 1993, No. 38 which inserted Pt 8 A (s121-160) into the Police Service Act. Under the PRAM Act 1978 there were equivalent provisions to s 125 of the Police Service Act, 1976. The Defamation Act1974 had at that time s17 (A)(3) which referred to s6 (2) of the PRAM Act. It was the Ombudsman (Amendment) Act 1993, No 97- Schedule 2 which effected the amendment to section 17A (3) of the Defamation Act.

15 The applicant contends that the defence provided by s17A (3) applies to his letter to the Minister for Police by reason of it being “a complaint” made in writing about the conduct of police, with the complainant’s consent, to a member of parliament pursuant of either s6 (2) of the PRAM Act or s125 (4) of the Police Service Act.

16 It is further submitted that the correspondence forming part of Exhibit A indicates that the letter was treated by the Minister of Police, the Police Service and the Ombudsman as “a complaint” with respect to Police conduct (not, is to be noted, the plaintiff in the action), under the Police Services Act 1990. Therefore, so it is argued s17A (3) “is attracted prima facie” to the cite from the applicants/ defendants written submissions.

17 I interpolate, that if I were persuaded only to the level of “prima facie,” I could not comfortably summarily dismiss the plaintiff’s action on that basis.

18 For the respondent/plaintiff it is argued, that on proper construction of the letter, s17 (A)(3) has no application. It is not a letter of complaint about the plaintiff. It is a letter about the licensing unit. It is an exhortation to the Minister who, in any event, has no powers in relation to the licensing unit in terms of any “complaint”.

19 Further, there is an issue as to whether or not it is in fact the case that, pursuant to s125(4) of the Police Service Act or cognate legislation, the applicant/ defendant had consented to the disposition of his letter by the Minister.

20 There has been no application by the applicant/ defendant pursuant SCR Pt 31 r 2 for the separate determination of any question of fact or law. Indeed any such application would be opposed. To the extent that none has be made that issue is academic, but it goes, so it was submitted for the plaintiff/respondent to highlight that this is an application for summary disposal.

21 As Hunt J remarked in Peter Kent Development Pty Ltd, supra, a Pt 31 r 5 application is appropriate to the disposal of a defamation action if on such an application absolute privilege can be established. Such was the state of affairs in Oliver v Bryant Strata Management Pty Ltd & Ors (1995) 41 NSWLR 514, but not the state of affairs in Clark v Ainsworth Levine J, unreported, 29 August 1997.

22 In the end I am persuaded, as it was submitted for the plaintiff, that the resolution of these matters is for the trial and a case for summary disposal on the second basis of s17 (A)(3) has not been made.

23 Should this case ever get to trial, it will more probably than not be the last defamation action heard in New South Wales in which all the pre- 1994 amendment issues will be determined by the jury. Whether the issues of fact relevant to the adjudication of the defence of absolute privilege will have to be decided the jury will remain to be seen.

The third basis- an occasion of absolute privilege at common law ( Mann v O’Neil [ 1996-1997] 191 CLR 204 )

24 Mann v O’Neill was an appeal from the Full Federal Court, an order having been made at first instance that the question separately be determined pursuant to order 29 r 2 of the Federal Court rules. Mr Donovan QC for the applicant/defendant relies upon the following passage at page 214 from the joint judgment. (Footnotes omitted):

So far as absolute privilege is claimed on the basis that Dr Mann’s letters were “necessary first steps for the institution of proceedings for the removal of [Mr O’Neill]”, there are cases which support the view that disciplinary proceedings or, more accurately, the proceedings of some disciplinary tribunals are quasi-judicial. Thus, for example, it was held in Addis v Crocker that absolute privilege attached to proceedings of the disciplinary committee of the Law Society of England and Wales. More recently, it was accepted in Hercules v Phease that proceedings of the disciplinary committee of the Law Institute of Victoria are absolutely privileged. So, too, it was accepted in Lincoln v Daniels that disciplinary inquiries by the Benchers of the Inns of Court are absolutely privileged, notwithstanding that they are not authorised by statute and that their procedures differ in material respects from those of a court.

25 Hercules v Phease [1994] 2 VR 411 was followed by me in Bryant (supra).

26 Their Honours go on to say at [215]:

“Where, as in Hercules v Phease , the complaint is part of an established procedure which must be set in motion if it is to result in disciplinary proceedings, the complaint is properly regarded as a step in those proceedings even if disciplinary proceedings will not necessarily eventuate. In that situation, the complaint is “incidental [to the proceedings], and necessary for [them]”. Accordingly, it is properly to be regarded as a necessary first step. But that is not the situation in this case.”

27 The defence was not afforded in Mann v O’Neill by reason of there being no procedure for instituting a complaint against or for removing from office a special magistrate. Any investigation which might be initiated by the letters, the subject of the appeal, would not be proceedings of a quasi-judicial tribunal attracting absolute privilege (it might attract qualified privilege).

28 It was contended for the applicant/ plaintiff that the letter is a “complaint” for the purpose of the proceedings contemplated by Part 9 of Police Service Act 1990 and is a necessary first step in those proceedings when one considers Pt 9, s125, Division 4 (investigations) and s156 and 158. It was submitted that the constitution of the Police Tribunal (Part 9A of the Act) makes it clear that it is either a judicial or quasi-judicial body set up to hear and determine amongst other things justified complaints about the conduct of the police. It is a tribunal “where there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern” (Mann v O’Neill at [212]). There may be no serious dispute about this matter last mentioned proposition.

29 The position of the applicant/defendant under this basis, given that this is an application for summary dismissal of the plaintiff’s action as a whole, is still vulnerable in respect of the matters which attend the subject letter in terms of its construction and effect and, as the defendant/ respondent has argued, matters concerning the status of the Minister of Police as its recipient. Again under this head, the respondent/plaintiff argues that the Minister can exercise no more than an administrative function in receiving the letter. He had no role to play in so far as that letter could be understood as exhorting an investigation of a complaint against the plaintiff or his company, the prosecution of any matter against the plaintiff or his company, the administration of any criminal charge or other prosecution against the plaintiff or his company, the licensing of the plaintiff or his Company under the Registered Clubs Act or the Liquor Act. The Minister had no power to order such a criminal investigation. On the other side of that coin is the proposition, also relied upon by both sides, as I understood the course of submissions, that Mr Burden was “exhorting” an inquiry into the licensing Police.

30 Certainly, for present purposes, it cannot be said that Mr Burden’s letter falls into the same category as the communication dealt with Hercules v Phease, supra, or Bryant supra.

31 I am not persuaded by reason of the matters agitated before me that a foundation for summary disposal on this basis has been made out.

The fourth basis- absolute privilege- investigation process

32 A statement or conduct is protected where it is such that it can fairly be said to be part of the process of investigating a crime or possible crime with a view to a prosecution or possible prosecution- Taylor v Serious Fraud Office [1999] 2 AC 177 (H/L).

33 The applicant contends that the decisions of the House of Lords in Taylor v Serious Fraud Office and the Court of Appeal (England) in Mahon v Rahn & Ors [2000] 1 WLR 2150 are persuasive in their expressed intention to extend the concept of absolute privilege to documents produced by persons which are then given to an investigative or licensing body with a view to launching a prosecution even if such a prosecution is not inevitably instituted.

34 In the course of his speech, in Taylor Hoffmann LJ referred to Mann v O’Neill as follows:

“In Mann v . O'Neill (1997) 71 A.L.J.R 903, 907 the judgment of Brennan C.J., Dawson, Toohey and Gaudron L.JJ. describes the rationale as one of necessity:

"It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.' Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged."


Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle.

Approaching the matter on this basis, I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but nonetheless valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.”

35 See also Hope LJ at [219 B-H] and Hutton LJ [221.]

36 Mahon was a case concerning a financial regulator and an inquiry as to whether a person was fit to carry on an investment business. Brooke LJ said at 2190 at [194]:

“Important though the investigation of crime undoubtedly is, I have not found it possible to make a logical distinction between the situation in which a criminal investigator seeks evidence to support a criminal charge and a situation in which a financial regulator seeks evidence to put before a tribunal to the effect that someone is not a fit and proper person to conduct investment business. It appears to me - and I did not really need Dr Paltzer's evidence to confirm it - that the flow of information to financial regulators might be seriously impeded if its informants feared that they might be harassed by libel proceedings, and if it was impeded in this way the purposes of Part I of the Financial Services Act, of protecting the public from unfit investment advisers, would be put at risk. For these reasons I would allow the defendants' appeal on the first issue and hold that the TSA letter was published on an occasion which attracted absolute privilege.”

37 For the applicant/defendant it is submitted that principles of public policy are identical in this case and that there is no reason in principle why the letter to the Minister for Police should not be considered to have been published on an occasion for absolute privilege. The letter was written as a “complaint”, so it is said, about the police failing to properly investigate matters about Mr Ainsworth which came to light during a Supreme Court Defamation trial in which Mr Ainsworth was a party in which the applicant/ defendant was called as a witness for the opposing party. The applicant as a former head of the licensing division of the police sent the letter to Minister and the matters raised in it were investigated by Mellis. Detective Inspector Mellis’ report was sought by Mr Ainsworth in his Freedom of Information request of 6 June 1996. It was argued that the applicant was an “informant” complying with his public duty to bring to the attention of the proper authority important matters, reference being made to s316 of the Crimes Act 1900 (Concealing serious indictable offence).

38 Whilst the upmost respect is of course afforded to judgments of the House of Lords and of the English Court of Appeal in cognate areas of the law, no Australian case was cited that approaches the factual foundation for the principles stated in both judgments. The factual circumstance here appear to me to me to provide a foundation for distinguishing the two English decisions.

39 It is certainly the case here that any extension of absolute privilege is “viewed with the most jealous suspicion and resisted unless its necessity is demonstrated” (Mann at 213). Whether the English cases represented fundamentally any evolution of principle that is offensive to Australian or New South Wales jurisprudence may be an interesting point. In my view it is not easily resolved in the factual areas to which I have pointed as arising in this litigation and certainly not on this particular application under Pt 13 r 5. This basis has not been made out.

The Fifth Basis- abuse of process

40 The appellant argues that the use of the Freedom of Information Act to “set up” a defamation suit amounts to an abuse of process. There are two difficulties here. First I gather that even the applicant/defendant recognises that there is an evidentiary deficiency in the present application to make good any assertion of an abuse by the respondent of process of the court.

41 The second difficulty arises from the foundation for this asserted basis. The Commissioner of Police v District Court of NSW & Anor (1993) 31 NSWLR 606 is a case not unconnected, coincidently, with the present plaintiff/respondent, (see paragraph 7 hereof). Reliance is placed upon an obiter statement of Mahoney JA at 639 in the context of “unreasonable disclosure” giving rise to a document being an exempt document under the schedule to the Freedom of Information Act. What his Honour said was this: at [639] [D-G]

“Mr Howie QC made similar submissions of error in relation to “unreasonable disclosure”. His Honour was, of course, not required to express a concluded view upon this aspect of cl 6(1). If the disclosure of the names did not involve disclosure of information concerning the personal affairs of the persons concerned, it was not necessary to determine whether the disclosure of it would be ”unreasonable”. I think his Honour did conclude that it would not but referred to this aspect of the matter but briefly. It is sufficient to conclude, as I do, that no error of law appears in this regard.
Before leaving this part of the summons, reference should be made to one matter raised in argument. It was suggested that, in deciding whether a disclosure is “unreasonable” within cl 6(1), it is relevant to take into account the purpose for which the document or the names are sought. If that purpose be to harass the parties in question, it would, the argument suggested, be proper to hold the disclosure “unreasonable”.
If disclosure were sought merely for that purpose, care would have to be exercised in deciding whether it should be granted. The District Court would, no doubt, take care in that regard. It is not necessary to determine finally whether that purpose would be relevant in deciding the unreasonableness of the disclosure. But a party who sought and used information merely for that purpose would perhaps invite action, as for nuisance: cf J Lyons & Sons v Wilkins [1899] 1 Ch 255; Hunt v Broome [1974] AC 587; or (if pursued through the courts) for abuse of process: cf Williams v Spautz (1992) 174 CLR 509. And a legal practitioner who lent his aid to an application for the purpose only of harassment or the like would require to consider his professional position: cf Clyne v New South Wales Bar Association (1960) 104 CLR 186”.

42 This is with respect a fairly tenuous basis by itself, and without evidence, to have an action summarily dismissed in the way the applicant/defendant seeks it. His Honour was talking about something raised in argument going to the determination of whether a disclosure is “unreasonable” founded upon the purpose therefor. Some information as to purpose clearly would have to be given if a conclusion was to be reached that it was to harass and thus that disclosure would be unreasonable. If the District Court, having taking the care to which his Honour refers, came to the view that the disclosure was not unreasonable in light of some information presumably as to purpose, arguably it would be a substantial leap from that point to assert that an ultimate use of disclosed material to found a defamation action was an abuse of process. This basis is not available to the applicant/defendant.

43 Accordingly I am not persuaded that there is any basis for me to exercise the relevant power under Pt 13 r 5.

44 The formal orders are:

1. The Amended Notice of Motion is dismissed.

2. The applicant/defendant is to pay the respondent/plaintiff’s costs.

3. Exhibit A is to be returned.

4. The matter is to be listed before the Registrar at 9.00am Friday 2nd July 2004.

Appendix A

95 Thomas Street

Revesby Heights, NSW 2212

4 June, 1993 (773 3663)

The Honourable,

Mr J Griffiths,

Minister for Police,

Avery Building,

College Street,

Sydney, NSW 2000

Dear Sir,

Re: Leonard Hastings Ainsworth.

My name is Leslie James Burden. I was the former Commander of the Licensing Investigative Unit, prior to my opting to take early retirement from the NSW Police Service in March, 1989.

Detective Sergeant R C Clark and former Detective Sergeant P J Vincent, were members of the Unit which was specially set up with the personal approval of former Commissioner Avery. Along with such detectives and others, I have been the subject of complaints by Mr Ainsworth to the Ombudsman and other persons of authority, either directly or by use of agents, such as politicians, political lobbyists and over the past few years, former Deputy Commissioner, Mr John Perrin, who was engaged by Ainsworth as a legal consultant.

I have not been found wanting in respect of the complaints.

On the 7th May 1993, I received the decision of Mr Pinnock, Deputy Ombudsman wherein he has cleared me in connection with his recently concluded section 19 Inquiry which touched on a number of the Ainsworth complaints.

I draw to your attention that Mr Ainsworth has two civil actions lying in office at the Supreme Court of NSW (one for undisclosed damages), having been lodged in late 1991, involving a number of Police, ex-Police and others, including the State of NSW, relative to the outcome of the section 19 Inquiry. Process has not been issued to date, but is very much a likelihood in light of comments made by Mr Ainsworth during recent media interviews.

Towards the latter part of 1992 I attended the Common Law Division of the Supreme Court of NSW, and gave evidence in support former Sergeant Lionel Hanrahan in a “re-trial” of civil proceedings of “defamation” and “abuse of process” instituted against Mr Ainsworth by Mr Hanrahan at his own expense. A number of distinguished persons gave similar support including the Commissioner, Mr A Lauer, former Commissioner, Mr G Abbott and Mr John Hatton, Independent Member of Parliament.

Mr David Landa, the Ombudsman attended for Mr Ainsworth, and made certain admissions.

During the course of the trial, the presiding judge, Mr Justice Allen created a precedent by making certain remarks to the parties involved which resulted in the early conclusion of the trial, this being resolved by substantial financial favour of Mr Hanrahan - terms not disclosed.

As the former Commander of the Licensing Investigative Unit, I found it quite extraordinary that the said proceedings, involving the most high profile person to be involved in poker machines in the country, was not monitored, and further that no effort has apparently been made to approach Mr Hanrahan for permission to obtain a transcript of the evidence given by Messrs Ainsworth and Landa, and exhibits, for detailed analysis, as to raising questions of Mr Ainsworth’s suitability to continue to be involved in the management of the licensed company, Ainsworth Nominees Pty Limited and to have a financial interest therein.

No effort has apparently been made by the Licensing Investigative Unit personnel to ascertain the outcome of such proceedings and revelations contained in the evidence

A number of serious issues arose during the trial which, in my opinion, would call for the issue of show cause process in the Licensing Court of NSW.

Mr Hanrahan was legally represented by Mr Clive Evatt, assisted by Ms J Gibson instructed by Massellos & Co, Solicitors.

It might be noted that Mr Ainsworth was successful in having his company licensed as an approved amusement device dealer in contentious circumstances. Evidence forthcoming in the Hanrahan proceedings would have dramatically affected such licensing decision.

I am now aware that Mr John Hatton has raised the issue of Mr Ainsworth’s suitability to be so involved in the licensed company, in Parliament.

However, it is my belief that no attempt has been made by the Licensing Investigative Unit to pursue the matter.

I submit that one of the prime functions of this Unit is to investigate any suggestion of wrong doing on the part of a licensee in the regulated poker machine gaming industry, whether an individual person or body corporate. Such function is in keeping with the views of the government of the day when introducing the relevant amending legislation (documented at the Unit Office).

The Unit was in fact well aware of the trial and importance attaching thereto, yet they have apparently deliberately chosen, or been directed, to avoid it.

In addition, there are the following aspects which warrant investigation:-

(a) The evidence of the alleged bribe given by Mr E P Vibert (charged with Mr Ainsworth in early eighties) in his bankruptcy hearing.

(b) Oral evidence given by Mr Ainsworth to the Queensland Parliamentary Justices Committee of 24th May, 1991 and written material supplied therto.

(c) The unauthorised supply of confidential police documents to former Deputy Commissioner John Perrin as evidenced in the Summary of Evidence prepared by Mr Pinnock.

In any analysis of the material involved, consideration would need to be given to the comparison of data contained in the following:-

(a) The report of Mr G Masterman QC, former Ombudsman, in October, 1986, following his investigation into a number of the earlier complaints made by Ainsworth and Vibert, (which involved Mr Perrin).

(b) The various reports made to Parliament 1984 by Mr Masterman.

(c) The role of John Perrin in the 1986 matter, his appointment with the Ainsworth Coy as a legal consultant and subsequent activities, especially in light of the I.C.A.C. concern of this type of employment arrangement (see attached extract page 12 I.C.A.C. report of March…

(d) The evidence of Mr Ainsworth in the Licensing Court hearings.

(e) The report of the Queensland Criminal Justice Commission relating to poker machines.

(f) The summary of Evidence produced by Mr Pinnock on completion of the latest Section 19 Inquiry.

(g) Comments of various judges in associated hearings.

The question of course arises as to whether or not the failure of the Unit, if it be so, to pursue these inquiries to date, constitutes a degree of neglect of duty.

In such regard, I wish to stress that this letter is not intended as a complaint, but merely as an advice as to the position as I see it, for your consideration or the action deemed necessary.

Yours Faithfully,

L J Burden

**********

Last Modified: 06/25/2004