Burden v Ainsworth

Case [2004] NSWCA 3

Reported Decision:

 59 NSWLR 506

Court of Appeal


CITATION: Burden v Ainsworth [2004] NSWCA 3 revised - 19/02/2004
HEARING DATE(S): 19/12/03
JUDGMENT DATE:
17 February 2004
JUDGMENT OF: Sheller JA at 1; Giles JA at 2; Ipp JA at 3
DECISION: (1) Appeal upheld with costs (2) Set aside the orders made by primary judge in respect of the orders striking out paragraphs 6 and 7 of the amended defence and the particulars of truth that supported those paragraphs. Substitute in lieu thereof an order dismissing the strike out application in those respects.
CATCHWORDS: DEFAMATION - Defamation Act 1974 - Defences of truth and contextual truth - RES JUDICATA - Judgments in rem - Whether finding of Licensing Court conclusive - Difference between an order and a finding - Meaning of "status" in context of judgments in rem - Temporal limitation on finding of fitness - PRACTICE AND PROCEDURE - Abuse of process where issues previously litigated between different parties. D
LEGISLATION CITED: Registered Clubs Act 1976, ss 90(1), 97, 98,
Defamation Act 1974, ss 15, 16
CASES CITED: Blair v Curran (1939) 62 CLR 464
Castrique v Imrie (1870) LR4HL 414
Clifford v Timms [1907] 2 Ch 236
Daniel v Daniel (1906) 4 CLR 563
Harvey v R (1901) AC 601
Hollington v F Hewthorn & Company Limited [1943] KB 587
Niboyet v Niboyet [1878] 4 PD 1
R v O'Halloran (2000) 159 FLR 260
State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports 64,077
Ampthill Peerage Case [1976] 2 All ER 411
Duchess of Kingston's Case (1776) 2 Sm, L.C., 13th ed 644
Washington H Soul, Pattinson & Co Ltd v Ogilvy (1955) 55 SR (NSW) 143

PARTIES :

 Leslie James Burden (Appellant)
Leonard Ainsworth (Respondent)
FILE NUMBER(S): CA 40256/02
COUNSEL: T Molomby SC/R Rasmussen (Appellant)
R R Stitt QC/ T D Blackburn SC (Respondent)
SOLICITORS: Hunt & Hunt (Appellant)
Dibbs Barker Gosling (Respondent)
LOWER COURTJURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): SC 21216/96
LOWER COURT
JUDICIAL OFFICER : 		Levine J


                          CA 40256/02
                          SC 21216/96

                          SHELLER JA
                          GILES JA
                          IPP JA

                          Tuesday 17 February 2004
LESLIE JAMES BURDEN v LEONARD HASTINGS AINSWORTH

FACTS

On 4 June 1993 the appellant wrote a letter to the State Minister for Police. The letter asserted that the Police Licensing Investigative Unit had not pursued certain investigations into various matters involving the respondent. These matters included the suitability of the respondent being involved in the management of, and having a financial interest in, a licensed company. The appellant also stated in the letter that the respondent had been “successful in having his company licensed as an approved amusement device dealer”.

In proceedings commenced on 1 November 1996, the respondent claimed damages for defamation arising out of the letter of 4 June 1993. The respondent alleged that the natural and ordinary meaning of the letter imputed that he was


      (a) not a fit and proper person to be involved in the management of a company…

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AGLC
Burden v Ainsworth [2004] NSWCA 3
Case
[2004] NSWCA 3
Decision Date

CaseChat Overview and Summary

Burden (the appellant) appealed to the New South Wales Court of Appeal against a decision of a primary judge who had struck out paragraphs 6 and 7 of the amended defence and their supporting particulars in defamation proceedings brought by Ainsworth (the respondent). The core of the dispute concerned the appellant's reliance on findings made in a previous proceeding before the Licensing Court, which the respondent argued were not binding in the defamation action.

The Court of Appeal was required to determine whether the findings of the Licensing Court in a previous proceeding constituted a *res judicata* that would prevent the respondent from pursuing certain aspects of the defamation claim. Specifically, the court had to consider whether the Licensing Court's determination regarding the appellant's fitness to hold a licence was a judgment *in rem*, and if so, whether that finding had temporal limitations or was conclusive of the issues raised in the defamation proceedings, particularly in relation to the defences of truth and contextual truth. The court also considered whether the appellant's reliance on the Licensing Court's findings amounted to an abuse of process.

The Court of Appeal held that the Licensing Court's decision was not a judgment *in rem* in the sense that it conclusively determined the status of the appellant for all purposes. While a judgment *in rem* determines the status of a person or thing, the finding of fitness in the Licensing Court was temporally limited to the period relevant to the licence application and did not necessarily extend to the broader context of the defamation proceedings. The court distinguished between an order and a finding, noting that the Licensing Court's order was specific to the licensing context. Consequently, the court found that the primary judge had erred in striking out the defence, as the findings from the Licensing Court were not necessarily precluded from being relied upon by the appellant.

The Court of Appeal upheld the appeal, set aside the primary judge's orders striking out paragraphs 6 and 7 of the amended defence and their particulars, and substituted an order dismissing the strike-out application in those respects.

Orders

Orders of the court

(1) Appeal upheld with costs (2) Set aside the orders made by primary judge in respect of the orders striking out paragraphs 6 and 7 of the amended defence and the particulars of truth that supported those paragraphs. Substitute in lieu thereof an order dismissing the strike out application in those respects.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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