Ainsworth v Burden

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

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 in a company licensed in relation to poker machines; (c) That the plaintiff was not a fit and proper person to have a financial interest in a company licensed to be an approved amusement device dealer." 4 Although a defence and a reply have been filed and the pleadings are therefore closed the defendant now seeks to challenge the imputations. The bases of the challenges may be encapsulated as follows:

(i) the words "fit and proper person" are inapt, as being: (a) ambiguous;

(ii) The three imputations do not differ in substance one from the other, being no more than variations on the same theme, and therefore contravene SCR Part 69 rule 11(3).

(iii) None of the imputations is capable of being conveyed by the natural and ordinary meaning of the words in the publication. 5 (i) "Fit and proper person"

The defendant contends that the phrase "fit and proper person" is ambiguous, for the same reasons that the Court of Appeal held the phase "breach of trust" to be ambiguous in Singleton v Ffrench (1986) 5 NSWLR 425. 6 In Ffrench the latent ambiguity in the imputation had emerged in the closing stages of the trial. The imputation there under consideration was: "that the plaintiffs had acted in breach of their trust to John Farragher."

At the centre of the proceedings was a trust fund that had been established to receive from members of the public donations to assist a severely injured sportsman. The ambiguity was exposed in counsels' final addresses when, rather than relying on the legal and technical meaning of the expression "breach of trust" contained in the imputation (which some, at least, of the parties had assumed until then to be the intended meaning of the imputation) the plaintiffs' counsel interpreted "breach of trust" to mean "breaking faith", drawing a distinction between the technical legal meaning of the expression, familiar to lawyers, and the meaning that may be attributed to the phrase by lay people in ordinary language. The two possible meanings were quite different. 7 Here there is no such contrast in possible meanings. While the phrase "fit and proper person" occurs from time to time in Acts of Parliament, it does not have a technical meaning comparable with the technical meaning of "breach of trust". The discussion by McHugh JA in Ffrench shows something of the range of meanings that might have been attributed to the phrase "breach of trust" but it is not apposite to the present imputations. The scope for misunderstanding in this respect in this case is limited, if it exists at all. 8 It is often suggested that a suitable test to apply to questions concerning imputations is what the defendant would have to prove in order to justify such of the imputations as are found to have been conveyed. Here he would have to prove the plaintiff was not a fit and proper person (or was not a suitable person) for the various levels of involvement in the poker machine or amusement device industry to which the imputations are directed. 9 While resolving that might involve the defendant and a jury (this being a pre-1995 publication) in an exercise of value judgment and balancing of competing considerations, it is the sort of exercise that can be undertaken without undue difficulty and one that a jury is well qualified to perform. I do not think there is any ambiguity of the sort now contended in the imputations by reason of the use of the words "fit and proper person". 10 (b) Rhetorical (c) Imprecise

The defendant relies upon the decisions in Morris v Mirror Newspapers Limited (1985) 1 NSWLR 260 and McCormick v John Fairfax and Sons Ltd (1989) 16 NSWLR 485 to support the proposition that imputations framed in the fashion that these imputations are framed should not be pleaded and if they are should be struck out.

In Morris , the word in question was "improper". One imputation pleaded was: "(b) that the plaintiff had abused his position as a member of Federal Parliament by improperly attempting to interfere in the affairs of the Newcastle City Council." 11 Hunt J (as he then was) described the word "improper" as "one of very uncertain import". He said: "For this reason, the word 'improper' should not be used in imputations unless the context in which it is so used makes clear its intended meaning (and the degree of impropriety involved). Where the matter complained of itself uses the word 'improper', the pleaded imputation should be expressed in terms which demonstrate the precise sense (that is, the degree of impropriety) in which the plaintiff contends the word would have been understood …" 12 The imputation here pleaded is distinguishable from that in Morris to which his Honour was referring. The charge is not one of improper conduct, subject to the variations of degree upon which his Honour reflected in that case. It is a charge of lack of suitability to engage in certain particular activities that require established probity. The imputations might equally have been framed in other terms, for example in terms of lack of suitability, but the fact that an imputation may be framed in a different way does not mean that that formulation should be substituted for the plaintiff's selected formulation of the imputations alleged to have been conveyed. Generally speaking it is for a plaintiff to identify the imputations which he or she alleges are conveyed, subject only to remedying any unfairness to the defendant that accrues by reason of that identification. I do not consider the present imputations to be either rhetorical or imprecise. The phrase "fit and proper person" is one commonly heard in ordinary language, and readily understood by the ordinary reader or listener when placed in context. Alone, it is meaningless; it derives its meaning when related to an object - fit and proper person for what? Once related to an object its meaning is clear and its truth becomes a matter for assessment. A defendant who seeks to justify takes on a task the magnitude of which is determined by the role for which it is said that the plaintiff is not a fit and proper person. 13 In Morris, a third imputation was pleaded in terms closely parallel to those of the imputations now under consideration. The plaintiff in that case conceded that this imputation was pleaded as a "rhetorical flourish", and it accordingly met the fate of all rhetorical flourishes. It was categorised as a rhetorical flourish because it did not differ in substance from the preceding imputations there pleaded. Hunt J commented on: "… the very real danger that the uncertain import of rhetorical imputations such as this one will produce the problems already discussed earlier in relation to the word 'improper'."

He held that they should not be pleaded. There are shades and grades of seriousness in an allegation of impropriety such that a pleader relying on an imputation so framed should identify the extent of the impropriety said to have been conveyed in the publication. However, Hunt J immediately went on to conclude that the content of the publication in Morris was not sufficient to convey the serious suggestion that would support the imputation pleaded, that the plaintiff was not a fit and proper person to be a member of Parliament. The principal reason the imputation was struck out, when the judgment is fairly read, was that the publication was not capable of conveying the imputation pleaded. 14 In McCormick the imputation pleaded was of "an improper relationship …". Hunt J repeated his criticism of pleadings that include assertions of impropriety, relating the criticisms again to the uncertainty of the extent or degree of impropriety said to be involved; but, again, in striking out the imputation, he relied more heavily upon the incapacity of the publication concerned to convey that imputation. 15 The assertion here is not imprecise in the same sense - it is that the plaintiff is not a fit and proper person to have a specified role in relation to poker machines and amusement devices. What is alleged is readily comprehensible even if, as I have noted above, whether it is true or not may involve an exercise in evaluation.

I do not think the present imputations are rhetorical or imprecise. 16 (d) Duplicitous

The defendant submitted that the combination of words in the imputations means that each imputation is "a rolled up plea". I do not accept this. As I have noted above, the phrase expresses a concept that is well known and recognised. It is a composite. 17 (ii) The defendant's next argument was that the three imputations pleaded do not differ in substance one from the other. At first sight there appears to be more merit in this contention. One difficulty for the defendant, however, is that the distinctions, fine though they may be, are drawn from the language of his own publication. In the concluding phrases of the first passage extracted the defendant himself distinguished between the plaintiff's suitability to be involved in management of a licensed company, and his suitability to have a financial interest therein. He also referred in one place to poker machines, and in another to licences relating to approved amusement devices. 18 Whether there is a material difference between suitability for involvement in management of a company, and suitability for having a financial interest a company licensed in relation to poker machines (the distinguishing feature between imputations (a) and (b)) really depends upon the terms of legislation providing for licensing and regulation of such companies. It is not a distinction that can be evaluated in the absence of something more than the words in which the imputations are framed and the words of the publication. On their face, the first two imputations do contain different charges, but whether those differences are of any substance depends upon knowing more than can be discerned from the publication. The defendant has to live with the distinction he himself has drawn (assuming of course, that the plaintiff is able to prove that the defendant did indeed publish the letter). 19 Similarly, what distinguishes imputation (b) from imputation (c) is the reference to poker machines and amusement devices also contained in the terms of the publication itself. I can only assume that there is some relevant distinction between the two but, again, this really depends upon the legislation that governs the licensing of companies involved in such devices. But I am confined, as I see it at present, to the words in the imputations and the words in the publication and as the words in the publication draw a distinction between the two, that distinction is repeated in the imputation, which accordingly, do appear to be different in substance. It may be that with more comprehensive information it could be seen that the difference is superficial, not substantial. It is , again, a distinction made by the defendant, not, initially, by the plaintiff. 20 I therefore decline to strike out any of the imputations on this basis of challenge. 21 (iii) Capacity of the publication to convey the imputations 22 The primary basis for this argument lay in the principles stated by the High Court in Mirror Newspapers Ltd v Harrison (1983) 149 CLR 293. The point of the argument is that what the defendant did in the letter was to call for inquiry and investigation of issues relating to the plaintiff, as distinct from making plain assertions that he was unsuitabe, and that this fell short of conveying the imputations that he was not a fit and proper person in the relevant sense; that, at most, the imputations conveyed raised questions (but did not make statements) about his suitability. Harrison was a case in which the High Court held that to say a person had been charged with an offence was not the same as saying that the person was guilty of the offence. As I understand the judgment, considerations of public policy were important; the Court attributed to the ordinary fair minded reader knowledge of the presumption of innocence. I do not think the circumstances in Harrison are fairly comparable to the issues raised in this case. In any event, this publication goes further than suggesting that there were matters that demanded inquiry; the tenor of the letter was that such inquiries would result in conclusions adverse to the plaintiff. I am satisfied that the imputations are capable of being conveyed by the publication. 23 None of the challenges to the statement of claim has been made good. The defendant should pay the plaintiff's costs of the application.

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