Ainsworth v Burden

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT CLD 21216/96 FILE NUMBER(S) : LOWER COURT Simpson J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40688/02 CLD 21216/96 HANDLEY JA HODGSON JA GROVE J

24 April 2003 LEONARD AINSWORTH v LESLIE JAMES BURDEN

DEFAMATION - express statutory protection under Freedom of Information legislation does not cover original publication to public official

FREEDOM OF INFORMATION - express statutory protection for publication of defamatory matter does not cover original publication to public official

The plaintiff, acting under the Freedom of Information Act 1989 (NSW), obtained a copy of a letter written by the defendant to a Minister of the Crown which allegedly defamed him. He brought an action for defamation based on the publication to the Minister. The defendant applied for the action to be permanently stayed on the ground that the publication was the subject of absolute privilege under s 64(1)(b) of the Act. Simpson J made that order.

On appeal: HELD: The section only protected publications pursuant to the Act, and did not protect the original publication to the Minister.

ORDERS (1) Leave to appeal granted subject to the notice of appeal being filed within 14 days;

(3) Stay granted by Simpson J set aside and in lieu thereof order that the notice of motion of 22 April 2002 be dismissed in so far as it sought a stay or dismissal of the action pursuant to s 64(1)(b) of the Freedom of Information Act 1989;

(4) The defendant to pay the plaintiff's costs to date of the notice of motion of 22 April 2002;

(5) The notice of motion, in so far as it sought further or other relief, remitted for hearing to the Common Law Division Defamation List;

(6) Respondent to have a certificate under the Suitors Fund Act in respect of the costs of the proceedings in this Court.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40688/02 CLD 21216/96 HANDLEY JA HODGSON JA GROVE J

24 April 2003 LEONARD AINSWORTH v LESLIE JAMES BURDEN

Judgment 1 HANDLEY JA: The claimant has sought leave to appeal from a decision of Simpson J on 12 July 2002 staying his action for defamation against a former police officer. The Court heard full argument on the summons so that, if leave were granted, the proceedings could be disposed of without a further hearing. 2 The claimant's action for defamation was based on a letter of 4 June 1993 written by the defendant, a former Commander of the Licensing Investigative Unit of the New South Wales Police Service, to the then Minister for Police. The claimant obtained a copy of this letter as a result of an application under the Freedom of Information Act 1989 (NSW). The statement of claim was filed on 1 November 1996. 3 The defendant, by notice of motion dated 22 April 2002, applied for the action to be stayed on the ground that the publication to the Minister was protected by absolute privilege under s 64(1)(b) of the Act. Section 64 provides, so far as relevant: "(1) If access to a document is given pursuant to a determination under this Act ... : (a) no action for defamation or breach of confidence lies against the Crown, an agency, an officer of an agency, a Minister or a member of a Minister's staff by reason of the making of the determination or the giving of access, and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the giving of access lies against the author of the document or any other person by reason of the author or other person having supplied the document to an agency or Minister. (2) Neither the giving of access to a document pursuant to a determination under this Act nor the making of such a determination shall be taken to constitute, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of the document or its contents by the person to whom access is given". 4 Simpson J held that the publication of the letter to the Minister was protected by sub s (1)(b). The meaning of this provision, which is also found in the FOI legislation of the Commonwealth and other States, has been the subject of conflicting decisions. The construction accepted by Simpson J is supported by the decision of the Full Court of the Supreme Court of South Australia in Morgan v Mallard [2001] SA SC 364 [paras 25-31], and by the decision of J C Gibson DCJ in McFarlane v Commonwealth of Australia (17 June 2002), while the construction contended for by the claimant is supported by the decision of Forgie D.P. of the Administrative Appeals Tribunal in Re McKinnon & Powell (1995) 40 ALD 343, 346-8, and by the decision of White DCJ in the District Court of Queensland in Pal v Weir (11 March 2003). There is thus a clear case for the grant of leave. 5 The statutory language must be construed in the context of the general principles of the law of defamation. Each republication of defamatory matter is a new publication which exposes the republisher to liability in defamation. Republication may also expose the original publisher to further liability where the republication was the natural and probable result of the original publication (Speight v Gosnay (1891) 60 LJ QB 231 CA, and Harris v 718932 Pty Limited [2003] NSW CA 38, par 4) either on a fresh cause of action or for increased damages on the original cause of action. See Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173, 178 and Harris (above) par 27. 6 In the absence of statutory protection public authorities and their employees who, under FOI legislation, released documents which contained defamatory imputations against third parties, or who were involved in the decision-making process heading to such release, would have been exposed to actions for defamation. 7 Members of the public writing to a Minister, public authority, or a public servant (herein public official) drawing attention to alleged crimes or other wrongdoing, or alleged abuses in public administration, may be protected by qualified privilege under common law or statute, subject to the conditions on which such privilege is conferred. One of these conditions at common law is that the publication must not be more extensive than the privilege requires or justifies. See Williamson v Freer (1874) LR 9 CP 393; Adam v Ward [1917] AC 309, 321, 348. 8 Hence without statutory protection a person publishing defamatory matter to a public official, on what would otherwise have been an occasion of qualified privilege, could have lost that privilege if republication to third persons, under the FOI legislation, was the natural and probable result of that publication. Republication pursuant to the legislation would be outside the protection of the qualified privilege which would not protect publication to third persons. 9 Section 64 (1)(a) protects public officials from liability for republication of defamatory matter pursuant to the Act. Section 64(1)(b) extends that protection to the author and other persons, but its protection is limited to "any publication involved in, or resulting from, the giving of access" under the Act. 10 Protection for other persons was necessary because the document may have been sent to the public official by someone other than the author. An employee may have made a report to his employer which the latter sent to the public official. The employer would have republished the defamatory material and thus been exposed, like the author, to defamation proceedings arising out of its further republication pursuant to the Act unless statutory protection had been provided. 11 Protection is conferred by s 64(1)(b) where liability in defamation could arise because ("by reason of") the author or other person supplied the document to a public official. That is the reason for protection being given, but the words "by reason of" do not define its scope. This is defined by the words "in respect of any publication involved in, or resulting from the giving of access". Protection is not given in respect of other publications, made to the public official or anyone else. 12 The section gives no protection to the author or other person merely because the plaintiff became aware of the document by obtaining access to it under the Act and would not otherwise have known that he had been defamed, or been in a position to prove this. The protection is not given against the use of the document, it is given against an action for defamation in respect of defined publications. 13 The evident purpose of s 64 was to ensure that the Act did not widen liability for defamation by a side wind. There is nothing in s 64 to indicate that it was intended to protect publications made independently of the Act. If Parliament had wished to protect defamatory publications made independently of the Act, this result could have been achieved by omitting words from s 64(1)(b) so that it read: "no action for defamation or breach of confidence in respect of any publication ... lies against the author of the document or any other person by reason of the author or other person having supplied the document to an agency or Minister". 14 The words omitted were: "(publication) involved in, or resulting from, the giving of access". These are important words of limitation. The judgment of Simpson J, and the other decisions which have reached the same conclusion, gave no effect to those words of limitation, and interpreted the paragraph as if they were not part of the text. 15 In my judgment the reasoning of Deputy President Forgie and White DCJ gave effect to the paragraph as a whole, including the words of limitation, and their decisions were correct. The appeal should therefore succeed and the following orders should be made: (1) Leave to appeal granted subject to the notice of appeal being filed within 14 days;

(3) Stay granted by Simpson J set aside and in lieu thereof order that the notice of motion of 22 April 2002 be dismissed in so far as it sought a stay or dismissal of the action pursuant to s 64(1)(b) of the Freedom of Information Act 1989;

(4) The defendant to pay the plaintiff's costs to date of the notice of motion of 22 April 2002;

(5) The notice of motion, in so far as it sought further or other relief, remitted for hearing to the Common Law Division Defamation List;

(6) Respondent to have a certificate under the Suitors Fund Act in respect of the costs of the proceedings in this Court. 16 HODGSON JA: I agree with Handley JA. 17 GROVE J: I agree with Handley JA.

Last Modified: 04/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.