Ainsworth v Burden - [2000] NSWSC 105

CITATION: Ainsworth v Burden [2000] NSWSC 105

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 21216/96

HEARING DATE(S): 9 July 1999

JUDGMENT DATE: 2 March 2000

PARTIES :

Leonard Hastings Ainsworth - Plaintiff
Leslie James burden - Defendant

JUDGMENT OF: Simpson J at 1

COUNSEL : T D Blackburn - Plaintiff
J Gibson - Defendant

SOLICITORS: Barker Gosling - Plaintiff
Carters Law Firm - Defendant

CASES CITED: Singleton v Ffrench (1986) 5 NSWLR 425
Morris v Mirror Newspapers Limited (1985) 1 NSWLR 260
McCormick v John Fairfax and Sons Ltd (1989) 16 NSWLR 485
Mirror Newspapers Ltd v Harrison (1983) 149 CLR 293

DECISION: None of the challenges to the statement of claim has been made good; the defendant should pay the plaintiff's costs of the application.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SIMPSON J
2 March 2000
21216/96

Leonard Hastings AINSWORTH v Leslie James BURDEN

Judgment

HER HONOUR :

1    The plaintiff sues the defendant for defamatory imputations that he alleges arise out of the publication of a letter the defendant wrote in 1993 to the then Minister for Police in NSW.
2    In the letter the defendant identified himself as a former senior police officer and referred to earlier defamation proceedings in which, he said, the present plaintiff had sued another former police officer. The tenor of the letter was to urge the Minister to investigate certain issues that the defendant said had arisen in that case. Several paragraphs of the letter are particularly material for present purposes. They are:

“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 involvedin (sic) poker machines in the country, wass (sic) not monitored, and further that no effort has apparently bene (sic) made to approach Mr H an5rahan (sic) for permission to obtain a transcript of the evidence given by Messrs Ainsworth and Landa and exhibits, for detailed analysis, as to raising the 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.
…
…
…
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 invovled (sic) in the licensed company, in Parliament.

…”
(The extracts are reproduced from the typescript appended to the statement of claim.)

3    The plaintiff claims that the publication in its natural and ordinary meaning conveys the following three 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…

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 [2000] NSWSC 105
Case: [2000] NSWSC 105
Decision Date: 2 March 2000

CaseChat Overview and Summary

Leonard Hastings Ainsworth sued Leslie James Burden for defamation, alleging that Burden's 1993 letter to the NSW Minister for Police contained defamatory imputations about Ainsworth's fitness to manage and hold a financial interest in a company licensed to deal in poker machines and amusement devices. Burden argued that the phrase "fit and proper person" was ambiguous, rhetorical, imprecise, and duplicitous, and that the imputations were substantially similar and not conveyed by the letter's natural and ordinary meaning. Simpson J dismissed Burden's challenges, finding the phrase "fit and proper person" to be clear and understood in context, and that the imputations were not rhetorical or imprecise. The court also rejected the argument that the imputations were substantially identical and that the letter did not convey the defamatory meanings. Simpson J concluded that the letter's tenor suggested inquiries would conclude negatively about Ainsworth, and thus the imputations were capable of being conveyed.

Simpson J held that none of the challenges to the statement of claim were valid. The defendant was ordered to pay the plaintiff's costs of the application. The court found that the imputations were clear, not rhetorical or imprecise, and capable of being conveyed by the letter, and thus they stood as pleaded. The decision reinforced the importance of precise and contextual language in defamation cases, and highlighted the need for plaintiffs to identify the specific imputations they allege were conveyed in a publication.

Orders