Burden v Ainsworth

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.