Ainsworth v Burden

The appeal concerned a defamation action brought by Ainsworth against Burden. The central dispute revolved around a jury's finding that a defamatory letter published by the respondent was sent in circumstances where the appellant was unlikely to suffer harm. The appeal was heard by the New South Wales Court of Appeal.

The primary legal issue before the Court of Appeal was whether a reasonable jury could have concluded that the circumstances of the publication of the defamatory letter were such that the appellant was not likely to suffer harm. This required the court to consider the inferences available from the evidence regarding the timing and nature of investigations into the appellant, and whether the respondent's letter contributed to or initiated any such harm.

The Court of Appeal reasoned that several inferences were available to the jury. These included that an investigation into the appellant's fitness was already underway by the Minister for Police following a parliamentary question, and that the matters which ultimately caused concern to Nevada gaming authorities arose independently of the respondent's letter. The court found that the letter itself did not allege criminality but rather asserted the need for an inquiry, and that since an inquiry was already in progress and the key concerns stemmed from other sources, the letter neither initiated nor exacerbated the harm. Therefore, it was open to the jury to conclude that the circumstances of publication meant harm was unlikely.

The appeal was dismissed with costs. A cross-appeal was also dismissed, with each party bearing their own costs in relation to the increased costs occasioned by the cross-appeal.