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[2004] NSWSC 552
Supreme Court of NSW
2004-06-25
Levine J, Ainsworth Levine J, Ltd Hunt J, Simpson J, Mahoney JA
Original judgment source is linked above.
95 Thomas Street Revesby Heights, NSW 2212 4 June, 1993 (773 3663)
The Honourable, Mr J Griffiths, Minister for Police, Avery Building, College Street, Sydney, NSW 2000
My name is Leslie James Burden. I was the former Commander of the Licensing Investigative Unit, prior to my opting to take early retirement from the NSW Police Service in March, 1989.
Detective Sergeant R C Clark and former Detective Sergeant P J Vincent, were members of the Unit which was specially set up with the personal approval of former Commissioner Avery. Along with such detectives and others, I have been the subject of complaints by Mr Ainsworth to the Ombudsman and other persons of authority, either directly or by use of agents, such as politicians, political lobbyists and over the past few years, former Deputy Commissioner, Mr John Perrin, who was engaged by Ainsworth as a legal consultant.
I have not been found wanting in respect of the complaints.
On the 7th May 1993, I received the decision of Mr Pinnock, Deputy Ombudsman wherein he has cleared me in connection with his recently concluded section 19 Inquiry which touched on a number of the Ainsworth complaints.
I draw to your attention that Mr Ainsworth has two civil actions lying in office at the Supreme Court of NSW (one for undisclosed damages), having been lodged in late 1991, involving a number of Police, ex-Police and others, including the State of NSW, relative to the outcome of the section 19 Inquiry. Process has not been issued to date, but is very much a likelihood in light of comments made by Mr Ainsworth during recent media interviews.
Towards the latter part of 1992 I attended the Common Law Division of the Supreme Court of NSW, and gave evidence in support former Sergeant Lionel Hanrahan in a "re-trial" of civil proceedings of "defamation" and "abuse of process" instituted against Mr Ainsworth by Mr Hanrahan at his own expense. A number of distinguished persons gave similar support including the Commissioner, Mr A Lauer, former Commissioner, Mr G Abbott and Mr John Hatton, Independent Member of Parliament.
Mr David Landa, the Ombudsman attended for Mr Ainsworth, and made certain admissions.
During the course of the trial, the presiding judge, Mr Justice Allen created a precedent by making certain remarks to the parties involved which resulted in the early conclusion of the trial, this being resolved by substantial financial favour of Mr Hanrahan - terms not disclosed.
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 involved in poker machines in the country, was not monitored, and further that no effort has apparently been made to approach Mr Hanrahan for permission to obtain a transcript of the evidence given by Messrs Ainsworth and Landa, and exhibits, for detailed analysis, as to raising 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.
No effort has apparently been made by the Licensing Investigative Unit personnel to ascertain the outcome of such proceedings and revelations contained in the evidence
A number of serious issues arose during the trial which, in my opinion, would call for the issue of show cause process in the Licensing Court of NSW.
Mr Hanrahan was legally represented by Mr Clive Evatt, assisted by Ms J Gibson instructed by Massellos & Co, Solicitors.
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 involved in the licensed company, in Parliament.
However, it is my belief that no attempt has been made by the Licensing Investigative Unit to pursue the matter.
I submit that one of the prime functions of this Unit is to investigate any suggestion of wrong doing on the part of a licensee in the regulated poker machine gaming industry, whether an individual person or body corporate. Such function is in keeping with the views of the government of the day when introducing the relevant amending legislation (documented at the Unit Office).
The Unit was in fact well aware of the trial and importance attaching thereto, yet they have apparently deliberately chosen, or been directed, to avoid it.
In addition, there are the following aspects which warrant investigation:-
(a) The evidence of the alleged bribe given by Mr E P Vibert (charged with Mr Ainsworth in early eighties) in his bankruptcy hearing.
(b) Oral evidence given by Mr Ainsworth to the Queensland Parliamentary Justices Committee of 24th May, 1991 and written material supplied therto.
(c) The unauthorised supply of confidential police documents to former Deputy Commissioner John Perrin as evidenced in the Summary of Evidence prepared by Mr Pinnock.
In any analysis of the material involved, consideration would need to be given to the comparison of data contained in the following:-
(a) The report of Mr G Masterman QC, former Ombudsman, in October, 1986, following his investigation into a number of the earlier complaints made by Ainsworth and Vibert, (which involved Mr Perrin).
(b) The various reports made to Parliament 1984 by Mr Masterman.
(c) The role of John Perrin in the 1986 matter, his appointment with the Ainsworth Coy as a legal consultant and subsequent activities, especially in light of the I.C.A.C. concern of this type of employment arrangement (see attached extract page 12 I.C.A.C. report of March…
(d) The evidence of Mr Ainsworth in the Licensing Court hearings.
(e) The report of the Queensland Criminal Justice Commission relating to poker machines.
(f) The summary of Evidence produced by Mr Pinnock on completion of the latest Section 19 Inquiry.
(g) Comments of various judges in associated hearings.
The question of course arises as to whether or not the failure of the Unit, if it be so, to pursue these inquiries to date, constitutes a degree of neglect of duty.
In such regard, I wish to stress that this letter is not intended as a complaint, but merely as an advice as to the position as I see it, for your consideration or the action deemed necessary.
Last Modified: 06/25/2004 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.
AINSWORTH
BURDEN
CITATION : AINSWORTH v BURDEN [2004] NSWSC 552 HEARING DATE(S) : 15/12/03; 17/12/03 JUDGMENT DATE : 25 June 2004
JUDGMENT (Defamation- Summary Dismissal of action- SCR Pt 13 r 5- absolute privilege claimed) 1 LEVINE J: The plaintiff sues the defendant in respect of his letter dated the 4 June 1993, to the Minister for Police for New South Wales. The text of the letter is appended hereto. This text is based upon on the photocopy of the handwritten original among the defendant/applicant's documents folder. 2 By an amended Notice of Motion the defendant/applicant seeks to have the plaintiff's action summarily stayed or dismissed pursuant to SCR Pt 13 r 5. He relies upon several bases. 3 First, he has contended that the plaintiff's action or pleading discloses no reasonable cause of action by reason of the operation s64 (1)(b) of the Freedom of Information Act 1989 (NSW). This ground was not argued because it was dealt with first by Simpson J on July 2002, [2002] NSWSC 620 and by the Court of Appeal on 24 April 2003, [2003] NSWCA 90. 4 The second basis is that there is disclosed no reasonable cause of action by reason of the operation of s17A (3) of the Defamation Act 1974, that is absolute privilege. 5 The third basis is that no reasonable cause of action is disclosed by reason of the fact that the matter complained of was published on an occasion of absolute privilege at common law, being a communication for the purpose of, and as a necessary step in, judicial or quasi-judicial proceedings. This basis is said to be founded in the decision of the High Court in Mann v O'Neill [1996-1997] 191 CLR 204. 6 The fourth basis is that the matter complained of was published on an occasion of absolute privilege at common law being a statement that can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution. This basis is said to rest in the decision of the House of Lords in Taylor v Serious Fraud Office [1999] 2 AC 177. 7 Fifthly it is contended that the proceedings are an abuse of process by reason of the purpose for which the matter complained of was obtained by the respondent/plaintiff pursuant to the Freedom of Information Act 1989 (NSW). This proposition is said to rest in a dictum of Mahoney JA in Commissioner of Police v District Court of NSW & Anor (1993) 31 NSWLR 606. 8 Evidence was admitted in support of the motion: see Peter Kent Development Pty Ltd v Australian & New Zealand Banking Group Ltd Hunt J, unreported, 6 May 1980. That evidence was constituted by two affidavits of Susan Irene Frankham sworn on 18 April 2002 and 2 July 2002. 9 The former affidavit annexes the plaintiff/respondent's application of 6 June 1996 under the Freedom of Information Act and consequential communications as to the release of requested material including, as I understand it, the Mellis report to which the matter complained of was itself an annexure. There is also annexed to this affidavit communications between the parties' solicitors as to the source of the matter complained of. 10 The second affidavit informs that the applicant/ defendant had been the officer in charge in the Licensing Investigative Unit in NSW Police from March 1984 to March 1989 when he retired on medical grounds. The history of that unit is set out. Reference is made to certain proceedings instituted but not prosecuted in this court by Ainsworth Nominees Pty Ltd against various police officers and the Freedom of Information matter, which as I understand it, culminated in the decision of the Court of Appeal in the Commissioner of Police v District Court of NSW & Anor (1993) 31 NSWLR 606. 11 Exhibit A comprises six communications between the Minister and Mr Burden.
The Fifth Basis- abuse of process 40 The appellant argues that the use of the Freedom of Information Act to "set up" a defamation suit amounts to an abuse of process. There are two difficulties here. First I gather that even the applicant/defendant recognises that there is an evidentiary deficiency in the present application to make good any assertion of an abuse by the respondent of process of the court. 41 The second difficulty arises from the foundation for this asserted basis. The Commissioner of Police v District Court of NSW & Anor (1993) 31 NSWLR 606 is a case not unconnected, coincidently, with the present plaintiff/respondent, (see paragraph 7 hereof). Reliance is placed upon an obiter statement of Mahoney JA at 639 in the context of "unreasonable disclosure" giving rise to a document being an exempt document under the schedule to the Freedom of Information Act. What his Honour said was this: at [639] [D-G] "Mr Howie QC made similar submissions of error in relation to "unreasonable disclosure". His Honour was, of course, not required to express a concluded view upon this aspect of cl 6(1). If the disclosure of the names did not involve disclosure of information concerning the personal affairs of the persons concerned, it was not necessary to determine whether the disclosure of it would be "unreasonable". I think his Honour did conclude that it would not but referred to this aspect of the matter but briefly. It is sufficient to conclude, as I do, that no error of law appears in this regard. Before leaving this part of the summons, reference should be made to one matter raised in argument. It was suggested that, in deciding whether a disclosure is "unreasonable" within cl 6(1), it is relevant to take into account the purpose for which the document or the names are sought. If that purpose be to harass the parties in question, it would, the argument suggested, be proper to hold the disclosure "unreasonable". If disclosure were sought merely for that purpose, care would have to be exercised in deciding whether it should be granted. The District Court would, no doubt, take care in that regard. It is not necessary to determine finally whether that purpose would be relevant in deciding the unreasonableness of the disclosure. But a party who sought and used information merely for that purpose would perhaps invite action, as for nuisance: cf J Lyons & Sons v Wilkins [1899] 1 Ch 255; Hunt v Broome [1974] AC 587; or (if pursued through the courts) for abuse of process: cf Williams v Spautz (1992) 174 CLR 509. And a legal practitioner who lent his aid to an application for the purpose only of harassment or the like would require to consider his professional position: cf Clyne v New South Wales Bar Association (1960) 104 CLR 186". 42 This is with respect a fairly tenuous basis by itself, and without evidence, to have an action summarily dismissed in the way the applicant/defendant seeks it. His Honour was talking about something raised in argument going to the determination of whether a disclosure is "unreasonable" founded upon the purpose therefor. Some information as to purpose clearly would have to be given if a conclusion was to be reached that it was to harass and thus that disclosure would be unreasonable. If the District Court, having taking the care to which his Honour refers, came to the view that the disclosure was not unreasonable in light of some information presumably as to purpose, arguably it would be a substantial leap from that point to assert that an ultimate use of disclosed material to found a defamation action was an abuse of process. This basis is not available to the applicant/defendant. 43 Accordingly I am not persuaded that there is any basis for me to exercise the relevant power under Pt 13 r 5. 44 The formal orders are:
(1993) 31 NSWLR 606
(1995) 41 NSWLR 514
(1992) 174 CLR 509
(1960) 104 CLR 186