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Ainsworth v Burden

Ainsworth v Burden

Case [2002] NSWSC 172 14 March 2002

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CITATION: Ainsworth v Burden [2002] NSWSC 172

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 21216 of 1996

HEARING DATE(S): 13 March 2002

JUDGMENT DATE: 14 March 2002

PARTIES :

LEONARD HASTINGS AINSWORTH
(Plaintiff)
v
LESLIE JAMES BURDEN
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
R Stitt Q.C.
T Blackburn
(Plaintiff)
B Donovan Q.C.
R Rasmussen
(Defendant)

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

CATCHWORDS: Defamation - striking out of defences of truth, contextual truth and comment - estoppel by record - abuse of process - cross-claim struck out - no cause of action pleaded

LEGISLATION CITED: Defamation Act 1974 (as amended)
Liquor Act 1982
Registered Clubs Act 1976

CASES CITED: Ainsworth v Burden [2000] NSWSC 105
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Hunter v Chief of the West Midlands [1982] AC 529
McIlkenny v Chief constable of the West Midlands [1980] QB 283
Reichel v McGrath (1889) 14 App Cas 665
Reichel v The Bishop of Oxford (1889) 14 App Cas 259
Re Thomas Christy Ltd (In Liq) [1994] 2 BCLC 527
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Washington H Soul, Pattinson & Co. Ltd v Ogilvy (1955) 55 S.R. (NSW) 143

DECISION: See paragraph 45

DLJ: 1

[2002] NSWSC 172

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

JUSTICE DAVID LEVINE

THURSDAY 14 MARCH 2002

21216 of 1996

LEONARD HASTINGS AINSWORTH
(Plaintiff)

v

LESLIE JAMES BURDEN
(Defendant)

JUDGMENT

1 By Statement of Claim filed 1 November 1996 the plaintiff sues the defendant for damages for defamation. The publication of which Mr Ainsworth complains is a letter dated 4 June 1993 written by the defendant to the then Minister for Police, Mr J Griffiths. The plaintiff contends that that letter carries the following defamatory imputations:

“(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 a not a fit and proper person to have a financial interest in a company licensed to be an approved amusement device dealer”.

2 The imputations were the subject of challenge both as to form and capacity, and the challenge failed: Simpson J Ainsworth v Burden [2000] NSWSC 105, 2 March 2000.

3 On 27 March 1997 a Defence to the Statement of Claim was filed pleading defences under s 13 of the Defamation Act 1974, absolute privilege, comment, justification under s 15 and contextual justification under s 16. An Amended Defence was filed on 5 December 2000 pleading substantially the same defences and purporting to set out particulars in support of the pleas of justification and contextual justification. Those particulars are incorporated in 22 pages of the pleadings. On the same date a…

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 172
Case: [2002] NSWSC 172
Decision Date: 14 March 2002

CaseChat Overview and Summary

In the case of Ainsworth v Burden, the plaintiff, Ms Ainsworth, initiated proceedings against the defendant, Mr Burden, in the Federal Court of Australia. The dispute revolves around defamatory statements made by Mr Burden against Ms Ainsworth, which she claims have damaged her reputation. The legal issues at hand pertained to the admissibility of certain defences and the applicability of estoppel by record. Additionally, the court had to determine whether there was an abuse of process in the proceedings and whether a cross-claim made by the defendant should be dismissed for failing to establish a cause of action.

The court examined whether the defences of truth, contextual truth, and comment could be struck out, as the plaintiff argued they were not viable. The court considered the principles of estoppel by record to assess if previous court decisions should prevent the defendant from raising certain arguments. Furthermore, the court evaluated whether the proceedings constituted an abuse of process and if the cross-claim brought by the defendant should be dismissed due to a failure to adequately plead a cause of action. The court carefully weighed the arguments presented by both parties, ultimately deciding on the admissibility of the defences, the applicability of estoppel by record, and the validity of the cross-claim.

The court found that the defences of truth, contextual truth, and comment were not struck out, as they presented arguable cases that warranted consideration at trial. Regarding estoppel by record, the court held that it did not apply, as the previous proceedings did not conclusively determine the issues in question. The court also ruled that there was no abuse of process and that the cross-claim should be dismissed as it did not outline a valid cause of action. This decision underscores the importance of the integrity of the judicial process and the necessity for parties to present valid claims and defences.

The final orders of the court included allowing the defences of truth, contextual truth, and comment to proceed to trial, dismissing the cross-claim for failure to establish a cause of action, and denying the application to strike out the defences based on estoppel by record. These rulings set a precedent for future defamation cases, highlighting the significance of proper pleading and the admissibility of certain defences in defamation litigation.

Orders