Ainsworth v Burden

Ainsworth v Burden [2005] NSWCA 174 Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118; 60 NSWLR 251 Loveday v Sun Newspapers Limited (1938) 59 CLR 503 CASES CITED : Sims v Wran [1984] 1 NSWLR 317 Pervan v North Queensland Newspaper Co Ltd (1992 - 1993) 178 CLR 309 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

Leonard Ainsworth (Plaintiff) PARTIES : Leslie James Burden (Defendant)

R. Stitt QC / T. Blackburn SC (Plaintiff) COUNSEL : C. Evatt (Defendant)

Dibbs Barker Gosling Lawyers (Plaintiff) SOLICITORS : Hunt & Hunt (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 BELL J: The applicant, Leslie James Burden, who is the defendant in the proceedings, moved on notice for an order that he have leave to file a further amended defence in the form of the draft annexed to his motion. In support of the motion he read paragraphs [1] to [19] of the affidavit of his solicitor Susan Frankham, which was sworn on 2 August 2005. 2 The proceedings were commenced by statement of claim filed on 1 November 1996. A defence was filed on 27 March 1997. An amended defence was filed on 5 December 2000. 3 The matter complained of is a letter written by the defendant to the Minister of Police dated 4 June 1993 (the letter). 4 The plaintiff pleads three imputations arising out of the letter: "(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." 5 The publication took place prior to the amendment of the Defamation Act 1974 (the Act), which introduced s 7A into the Act. The proceedings were fixed for trial before Hulme J and a jury on 4 April 2005. 6 By the amended defence the defendant admitted that he published the letter. He denied that the letter was capable of conveying the imputations and that they were capable of being defamatory of the plaintiff. He omitted to plead, as a matter of fact, that the imputations were neither conveyed nor that they were defamatory of the plaintiff. 7 The substantive defences pleaded by the amended defence were: "(a) Qualified privilege, under s 22 of the Act and at common law; (b) the unlikelihood of harm; s 13 of the Act (c) absolute privilege; (d) comment of the defendant relating to matters of public interest which were particularised as the conduct of officers of the New South Wales Police Service, the awarding of licences for approved amusement device dealers, police investigation of alleged wrongful conduct and the duty of the police to pursue inquiries and not to neglect a duty; (e) the substantial truth of the imputations, and that they related to matters of public interest or were published under qualified privilege; s 15 of the Act; (f) contextual truth - three contextual imputations were pleaded that were said to relate to matters of public interest or to have been published under qualified privilege, and to be matters of substantial truth by reason of which the imputations pleaded did not further injure the reputation of the plaintiff." 8 The amended defence contained a large number of particulars of truth. These were supplemented by further extensive particulars of truth supplied in a letter written by the defendant's solicitors dated 5 February 2001. No particulars of the material for comment were given in the amended defence. 9 At the trial the defendant withdrew the defences of substantial truth, contextual truth and comment.

10 As the result of certain rulings that were made during the trial the plaintiff sought and obtained leave to appeal to the Court of Appeal. In the result the trial did not proceed. The judgment of the Court of Appeal was delivered on 21 June 2005: Ainsworth v Burden [2005] NSWCA 174 (the Court of Appeal judgment). Hunt AJA (with whose judgment Handley JA and McColl JA agreed) noted at [115]: "The defendant has applied for the following orders: (i) That the plaintiff file an amended statement of claim in which any claim for aggravated damages is fully particularised. Particulars should also be supplied of any claim for general compensatory damages outside the usual heads of damages applicable to all defamation cases. (ii) The defendant be at liberty to file a further amended defence deleting those defences which have been withdrawn. Under the circumstances the defendant proposes to continue his defence of comment. (iii) The plaintiff file a further amended reply containing complete particulars of allegations of malice. [116] The defendant has not provided any submissions in support of the orders he seeks. The plaintiff has had no opportunity to respond. Although it is clear that there needs to be a substantial review of the state of the pleadings and particulars in this case, each of the first and second orders sought is not without some controversy, and it is not possible for this Court to make such orders without the assistance of proper submissions. This case was indeed far from being ready for trial when it was given a hearing date. Most of the issues which have arisen should have been the subject of applications in the Defamation List before the case was given such a date. In my opinion, that is where the defendant's application should now be made, so that the defamation list judge (rather than this Court) will have control of the proper preparation for the new trial." 11 The statement of claim has not been amended. Annexed to the affidavit of Ms Frankham is a letter from the plaintiff's solicitors dated 22 July 2005 containing particulars of malice and of the plaintiff's claim for aggravated damages. 12 The further amended defence denies that the matter complained of conveyed the imputations and that the imputations were defamatory of the plaintiff (paragraph 3(b)(c)). This serves to address a deficiency in the amended defence commented on by Hunt AJA at [16] in the Court of Appeal judgment. The amendment is uncontroversial and will be allowed. 13 Save for the amendment to paragraph 3, the plaintiff objects to leave being granted to the defendant to rely on a number of the defences set out in the further amended defence. 14 The principles to be applied in dealing with the application for leave are set out in the Court of Appeal judgment at [51]: "[51] In the usual course, an application to amend a pleading will be granted unless the pleading (or that part of the pleading) as sought to be amended would have been struck out if it had been contained in the original pleading: Horton v Jones (No 2) (1939) 39 SR 305 at 309-310; Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413 at 425; Commissioner for Railways v Bielewicz (1962) 63 SR 466 at 468; Heath v Goodwin (1986) 8 NSWLR 478 at 482. It would be struck out (and thus the amendment will not be permitted) only where the claim is manifestly groundless: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129."

There remains a discretion to refuse to allow an amendment and a discussion of the principles that guide the exercise of the discretion is contained in the Court of Appeal judgment at paragraphs [54] - [58].

15 On the hearing of the motion the plaintiff did not press his objections to the amendments that relate to the s 13 defence and the defence of absolute privilege. Both are pleaded in the amended defence. Additional particulars of each are contained in the further amended defence. 16 The defendant proposes to plead three new defences in the further amended defence. These are set out in paragraph 4 (d) to (f) as follows: "(d) That the matter complained of was a fair protected report for the purposes of s 24(2) and (3) of the Act; (e) that the matter complained of was a fair extract or fair abstract or summary of a document or record specified in clause 2 of schedule 2; (f) that the matter complained of was a reply to attack." 17 The defendant proposes to rely on the defence of comment which was withdrawn in the earlier proceedings before Hulme J. His intention to do so was foreshadowed when the matter was before the Court of Appeal. 18 The plaintiff opposes the grant of leave to rely on these four defences contending that each is hopeless.

19 The particulars of the defences of (i) fair protected report under s 24; (ii) fair extract or summary of a document specified in cl 3 of Sch 2 under s 25 (iii) and the material for comment are the same. They are as follows: "(a) Questions asked by Mr Hatton MLA to the Minister for Police on Thursday 22 April 1993 in the NSW Parliament (Legislative Assembly) and originally published by the NSW Parliament in Hansard (question 962 - Hansard 739 - 740). (b) Evidence given by the plaintiff in Supreme Court proceedings before Mr Justice Allen in the cases of Lionel Thomas Hanrahan v Leonard Hastings Ainsworth (16142/84, 11643/91) heard in June 1992 and published by the Court Reporting Branch under the authority of the Supreme Court of NSW. (c) Proceedings, reports and summaries of evidence of the Ombudsmen and Deputy Ombudsmen. (d) Evidence given by the plaintiff to the Queensland Parliamentary Criminal Justice Committee on 24 May 1991. (e) Report of the Queensland Criminal Justice Commission relating to poker machines. (f) Evidence given in the bankruptcy proceedings involving Mr EP Vibert." 20 The letter contains reference to Mr Hatton raising an issue in Parliament relating to the plaintiff's suitability to be involved in the licensed company (paragraph 16). It refers to proceedings in the Common Law Division of this Court in 1992, which were heard by Allen J (paragraphs 8 and 10). Reference is made to the defendant and certain other persons having been the subject of complaints to the Ombudsman and of an inquiry under s 19 of the Ombudsman Act conducted by Mr Pinnock, the Deputy Ombudsman, which cleared the defendant (paragraphs 4 and 6). There is reference to oral evidence given by the plaintiff to the Queensland Parliamentary Justices Committee (paragraph 22(b)) and to the report of the Queensland Criminal Justice Commission relating to poker machines (paragraph 29(e)). Reference is made to evidence of an alleged bribe given by Mr EP Vibert in his bankruptcy hearing (paragraph 21(a)). These references to various proceedings and to the report do not purport to be a summary, extract or abstract of the same.

21 In Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Hunt J observed at 62 - 63: "But the 1974 Act has not altered the basic common law requirement which was maintained by both the 1912 Act and the 1958 Act, that to be a fair report the matter complained of must with substantial accuracy express what took place in that part of the proceedings of which it purports to be a report. The issue will be whether the report of which the plaintiff complains substantially altered the impression which the reader would have received if he had been in court. … A fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether it is fair or unfair to any particular person; the question is whether it substantially records what was said and done." (citations omitted.) 22 Mr Evatt, who appeared on behalf of the defendant, did not identify any part of the letter said to be an extract, abstract or summary of the proceedings or the report particularised in support of the s 24 and s 25 defences. He acknowledged that these defences were difficult to support. To my mind it is clear beyond argument that neither can succeed.

23 Leave will not be granted to rely on the defences pleaded in paragraph 4(d) and (e) of the further amended defence. 24 Mr Stitt QC, who appeared with Mr Blackburn SC on behalf of the plaintiff, submitted that the defendant ought not to be given leave to rely on the defence of comment under Div 7 Pt 3 of the Act. His principal submission was that this defence is untenable. He also submitted that as a matter of discretion, taking into account the history of the proceedings, the defendant should not be permitted to renew his reliance on the defence of comment. In his submission the particulars of the material for comment are an attempt to put material before the court calculated to prejudice the jury against the plaintiff in circumstances in which the defendant has abandoned reliance on a defence of substantial truth.

25 I see no reason why the forensic decision to abandon reliance on comment in the earlier aborted proceedings should bind the defendant at the trial which is now listed for 10 October 2005. In some respects the plaintiff's case at the forthcoming trial will differ from that which he was permitted to advance on the earlier occasion. The grant of the leave that is sought is not said to necessitate the adjournment of the trial. If the defence of comment is arguably open the defendant should not be denied the opportunity to litigate it because it may place material before the jury that is unfavourable to the plaintiff. 26 Principal opposition to the grant of leave to renew the defendant's reliance on the defence of comment was advanced on the basis that the defence is manifestly hopeless. In Mr Stitt's submission the statements relied on as conveying the imputations, in the context of the whole of the letter, are not capable of being understood as expressions of the defendant's opinion: they are plainly conveyed as statements of facts. The particulars of the defence contained in paragraph (viii)(a) - (f) are challenged as being hopelessly inadequate. In the plaintiff's submission this latter defect cannot be cured by compliance with the requirements of Pt 67 r 17(3) of the Supreme Court Rules 1970 (the SCR), since the material on which the comment is said to have been based is not stated expressly or impliedly in the letter. The assertions that give rise to the imputations are not as to matters of general notoriety. It is submitted that the defence must fail since the comment cannot be sustained by reference to the factual material in the letter: Sims v Wran [1984] 1 NSWLR 317 per Hunt J at 322. 27 Part 67 r 17(3) provides: "(3) The particulars required by Part 16 rule 1 shall include: (a) Particulars identifying the material upon which it is alleged that matter alleged to be comment was comment and identifying to what extent that material is alleged to be proper material for comment, (b) as to material alleged to be proper material for comment, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation." 28 Mr Evatt acknowledged that the particulars of the defence of comment are deficient. He abandoned reliance on the material referred to in sub-paragraphs (viii)(c) - (f). In his submission the matter complained of sufficiently identifies the material for comment in paragraphs 4, 8, 9, 10, 11, 12, 13, 15 and 19, being the evidence given by the plaintiff in the proceedings Hanrahan v Ainsworth which were heard before Allen J in June 1992, and in paragraph 16 being the questions asked by Mr Hatton in the Legislative Assembly, concerning the plaintiff's suitability to hold a license. He submitted that in the context of this case the fact that the matter complained of does not set out the factual material relied upon to support the comment but merely refers the reader to it is not fatal. He relied on the judgment of McHugh J in Pervan v North Queensland Newspaper Co Ltd (1992 - 1993) 178 CLR 309 at 340 in support of the submission that it is sufficient that the subject matter of the comment is contained in the matter complained of by implication. 29 Mr Stitt submitted that the reliance on the passage at 340 in Pervan is misplaced since his Honour was there dealing with particular categories of cases, which are not of application in a case such as this where the imputations are contained in a letter and the statements giving rise to them are not said to be as to matters of notoriety. Mr Stitt noted McHugh J's observations in Pervan at 341: "Fair comment in the Kemsley situation (Kemsley v Foot [1952] AC 345) is very different from what may be called the conventional case of fair comment. In the conventional case, the basis of the comment appears in the publication. The reader is able to judge whether the facts justify the comment." 30 Mr Stitt submits that this is a conventional case of comment for the purposes of Pt 3 Div 7 of the Act and that the basis of the comment is not to be found in the letter. 31 Mr Evatt submitted that it was relevant to take into account that the matter complained of is a letter addressed to the Minister of Police on a topic within the area of his ministerial responsibility. In his submission, it is to be approached on the basis that the recipient of such a letter would consult the material that is identified, the transcript of the evidence given by the plaintiff in Hanrahan v Ainsworth and the questions asked by Mr Hatton in the Legislative Assembly, in order to judge whether it justified the comment. 32 It is for the jury to decide whether any statement was understood by the reader of the matter complained of to be an expression of his opinion and not a statement of fact: Sims at 323. This is, of course, subject to the statements that are said to give rise to the imputation being capable of being understood as a comment. While I acknowledge the force of the plaintiff's submissions, I am not persuaded that the statements said to give rise to the imputations are not capable of being understood as comment. 33 I approach the matter on the basis that it is arguable that the material for comment was sufficiently identified in the letter, taking into account that the letter was addressed to the Minister of Police and related to matters within his area of responsibility. Subject to the defendant providing particulars that conform to the requirements of Pt 67 r 17(3) I have concluded that he should have leave to rely on the defence of comment.

34 The further amended defence pleads that the matter complained of was a reply to attack (paragraph 4(f)). The particulars of this defence pleaded in (vii) are as follows: "The defendant's letter was in reply to attacks made on him and other police officers by the plaintiff being complaints the plaintiff made to the Ombudsman and other persons in authority either directly or by use of politicians, political lobbyists and former Deputy Commissioner Mr John Perrin and by litigation he'd brought in the courts. Particulars of the litigation brought by the plaintiff in the courts and particulars of the complaints made by the plaintiff are set out in paragraph 6 on pages 12-14 of the amended defence, paragraph 8 on page 15 of the amended defence, paragraph 14(i) on page 26 of the amended defence and on pages 43-44, 45-47, 49-50, 54, 56-57 and 62 of the letter dated 5 February 2001 written by the solicitors for the defendant to the solicitors for the plaintiff." 35 Mr Stitt submitted that this defence should not be allowed since patently the letter was not a response to attacks made on the defendant by the plaintiff. He relied on the judgment of Dixon J in Loveday v Sun Newspapers Limited (1938) 59 CLR 503 at 518-519: "The letter sent by the secretary of the unemployed relief council to the Sun newspaper for publication impugned the course taken with respect to the plaintiff by those administering relief work under the authority of the municipal council. Supposing that such an attack or criticism of something done under the council's administration has already been widely published, then for the publication of any relevant matter in reply undoubtedly a privilege would exist. The town clerk, as an appropriate officer of the municipality, would be entitled, upon that supposition, to a qualified privilege for the publication of any statements in answer tending to justify or explain the course taken, or remove or mitigate the effect of the attack or criticism." 36 Mr Evatt pointed to the discussion of this category of qualified privilege in Gatley on Libel and Slander (London: Sweet & Maxwell, 10th ed, 2004) at 14.49: " Reply to attack … is one whereby a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published bona fide and are fairly relevant to the accusations made. 'The law justifies a man in repelling a libellous charge by a denial or an explanation.' He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false. Mere retaliation, which cannot be described as an answer or explanation, is not protected, but the defendant is not required to be diffident in protecting himself and is allowed a considerable degree of latitude in this respect and the law does not concern itself with niceties in such matters. The central difficulty here is to distinguish between mere retaliation and attacking the credibility of your opponent in legitimate self-defence."

37 I have concluded that the terms of the letter do not admit of a finding that the assertions made by the defendant in it were a reply to the attack made on him by the plaintiff in his earlier complaints. There is nothing in the letter that could be characterised as seeking to remove or mitigate the effect of the earlier complaints made by the plaintiff. The letter records a background that includes that the plaintiff has made unsubstantiated complaints about the defendant and invites the Minister for Police to consider why the Licensing Investigative Unit has not taken more steps to consider the plaintiff's suitability for continued involvement in the management of a licensed company. To my mind there is absent the requisite connection with the attack and there is nothing capable of being characterised as justifying or explaining the course taken or removing or mitigating the effect of the attack: Spigelman CJ in Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118; 60 NSWLR 251 at 252-253, [3]. 38 Leave will not be granted to rely on a defence of reply to attack. 39 For these reasons the orders that I make are as follows:

1. Subject to the following rulings, grant leave to the defendant to file the further amended defence within fourteen days of today's date;

2. Particulars pursuant to Pt 67 r 17(3) of the SCR of the defence of comment that are currently identified in subparagraphs (viii) (a) and (b) are to be set out in the further amended defence; 3. Strike out paragraphs 4 (d), (e) and (f) of the further amended defence, and the particulars of fair protected report (paragraph (v)), fair extract or fair abstract from or fair summary of a document or record specified in clause 3 of Schedule 2 (paragraph (vi)), reply to attack (paragraph (vii)) and material for comment (paragraph (viii)). **********

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