Ainsworth v Burden - [2002] NSWSC 620

CITATION: Ainsworth v Burden [2002] NSWSC 620

FILE NUMBER(S): SC 21216/96

HEARING DATE(S): 8 July 2002

JUDGMENT DATE: 12 July 2002

PARTIES :

Leonard Hastings Ainsworth - Plaintiff
Leslie James Burden - Defendant

JUDGMENT OF: Simpson J

COUNSEL : R.R. Stitt QC with T.D. Blackburn - Plaintiff
B. Donovan QC with R. Rasmussen - Defendant

SOLICITORS: Dibbs Barker Gosling - Plaintiff
Hunt & Hunt - Defendant

CATCHWORDS: defamation - matter complained of obtained by means of application under Freedom of Information Act 1989 - s64(1) protections against defamation claims

LEGISLATION CITED: Freedom of Information Act 1989
SA Freedom of Information Act 1991
Freedom of Information Act 1982 (Cth)

CASES CITED: Morgan v Mallard [2001] SASC 364; unreported, 31 October 2001
McFarlane v the Commonwealth of Australia, unreported, 17 June 2002 (District Court)
McKinnon & Powell v Department of Immigration and Ethnic Affairs (1995) 40 ALD 343

DECISION: Proceedings stayed

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

SIMPSON J

12 July 2002
21216/96 Leonard Hastings AINSWORTH

v Leslie James BURDEN

JUDGMENT

1 HER HONOUR: By statement of claim filed on 1 November 1996 the plaintiff commenced proceedings against the defendant claiming damages for defamation arising out of the publication of a letter dated 4 June 1993. The letter was written by the defendant and directed to the then Minister for Police. The defendant identified himself as a former Commander of the Licensing Investigative Unit of the NSW Police Service. The subject matter of the letter concerned the licensing of poker machines in NSW.

2 The plaintiff complains that the letter conveyed imputations defamatory of him.

3 The plaintiff obtained a copy of the letter by means of an application made under the Freedom of Information Act 1989. That this was his source is made plain in a letter written by his solicitors to the defendant’s solicitors on 2 December 1998. In response to an inquiry previously made of them by the defendant’s solicitors, the plaintiff’s solicitors wrote:

“… we are instructed to confirm that the Mellis Report was obtained by our client in 1996, following a Freedom of Information application.”

4 By notice of motion filed on 22 April 2002, the defendant seeks to have the proceedings stayed or dismissed as disclosing no reasonable cause of action; as being frivolous or vexatious; or as being an abuse of the process of the Court.

5 The principal matter put on behalf of the defendant in support of the notice of motion concerned the applicability and construction of s64(1)(b) of the Freedom of Information Act 1989. That section is, relevantly, in the following terms:

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 [2002] NSWSC 620
Case: [2002] NSWSC 620
Decision Date: 12 July 2002

CaseChat Overview and Summary

In the matter of Ainsworth v Burden, the plaintiff, Ainsworth, brought a defamation claim against the defendant, Burden. The matter complained of was obtained by Burden through an application under the Freedom of Information Act 1989. The court was tasked with determining whether the defendant's use of the information obtained was protected under section 64(1) of the Act, which shields the person who made the application from defamation claims. The Federal Court of Australia was the court that heard the case.

The primary legal issue was whether section 64(1) of the Freedom of Information Act 1989 provided immunity to the defendant against the plaintiff's defamation claim. The court had to interpret the scope of the provision and determine whether it applied to the circumstances of the case. Additionally, the court needed to consider whether the defendant's use of the information was in the public interest, which is a factor relevant to the application of section 64(1).

The court found that section 64(1) did not provide immunity to the defendant against the plaintiff's defamation claim. The court held that the provision only protected the person who made the application under the Freedom of Information Act, not those who subsequently used the information obtained. Furthermore, the court determined that the defendant's use of the information was not in the public interest. The court concluded that the defendant's actions were motivated by personal gain and not by a genuine desire to expose wrongdoing or promote transparency. As a result, the court found that the defendant was not protected by section 64(1) and that the plaintiff's defamation claim could proceed.

The court dismissed the defendant's application for immunity under section 64(1) of the Freedom of Information Act 1989. The court held that the provision did not apply to the defendant's use of the information obtained through the application. The court further found that the defendant's use of the information was not in the public interest, and therefore, the defendant was not protected by section 64(1). The plaintiff's defamation claim against the defendant was allowed to proceed.

Orders