Burden v Ainsworth

Court of Appeal (NSW)|2004-02-17|Before: Sheller JA, Giles JA, Ipp JA, Levine J

The application to strike out the defence 7 On 5 December 2000 the appellant filed an amended defence in which he raised a number of defences to the respondent's claim. One of the defences involved a plea of truth pursuant to s 15 of the Defamation Act 1974 and another involved a plea of contextual truth pursuant to s 16 of that Act. The contextual imputations alleged that: "(1) The plaintiff so conducted himself as to warrant Mr John Hatton raising in Parliament the issue of his suitability to be involved in a licensed company; (2) the Plaintiff paid Sergeant Hanrahan substantial financial damages rather than continue contesting Sergeant Hanrahan's claims against him for defamation and abuse of legal process; (3) the Plaintiff's association with his co-defendant Mr E P Vibert should be investigated by the police to determine whether the Plaintiff was a party to payment of a bribe by Mr Vibert to Mr Rex Jackson MLA, in that the bribe was paid in exchange for Mr Jackson having proceedings against the Plaintiff and Mr Vibert dropped." 8 The respondent then applied to strike out certain parts of the appellant's defence, including those that relied upon s 15 and s 16 of the Act. The application was heard by Levine J. 9 Part of the strike out application was based on a judgment, delivered on 25 June 2001, by which the Full Bench of the New South Wales Licensing Court (in resolving an appeal involving a "de novo hearing on the application") upheld a decision of 17 August 1998 of the Licensing Court and granted Ainsworth Game Technology Pty Limited ("AGT") a poker machines dealer's licence. 10 In granting the licence to AGT, the Full Bench of the Licensing Court overruled objections by the New South Wales Police Service and the Director of Liquor and Gaming. The objections were made pursuant to ss 98(1)(b) and (c) of the Registered Clubs Act 1976 as it stood at the relevant time on the ground, broadly speaking, that the respondent (who had a financial interest in AGT) was not a fit and proper person to be interested in or associated with the holder of a gaming related licence. 11 The respondent's strike out application asserted, amongst other things, that the judgment of the Full Bench of the Licensing Court of 25 June 2001 was a judgment in rem. For that reason, the respondent argued, the appellant was precluded from pleading truth and contextual truth pursuant to ss 15 and 16 of the Defamation Act (as he did in paragraphs 6 and 7 of his defence). According to the respondent, by that judgment he had been held, as against the world at large, to be a fit and proper person to hold a poker machines dealer's licence and, therefore, it was not open to the appellant to attempt to prove the contrary. The respondent argued in the alternative that, by reason of the detailed nature of the hearing before the Licensing Court, the pleading of the paragraphs alleging truth and contextual truth was an abuse of the process of the Court.

The issues on appeal and the respondent's arguments 12 On 14 March 2002 Levine J upheld these and other arguments advanced by the respondent. He struck out paragraphs 5, 6 and 7 of the amended defence, the "particulars of truth and comment appended to the amended defence", certain particulars of aggravated damages and a cross-claim brought by the appellant. His Honour also ordered the appellant to pay the respondent's costs of the application "in relation to the defences, particulars and cross-claims struck out". 13 By his notice of appeal the appellant appealed against all these orders but, in the course of argument on the appeal, Mr Molomby SC, who together with Mr R Rasmussen appeared for the appellant, maintained the appeal only in respect of the orders striking out paragraphs 6 and 7 of the amended defence, the particulars of truth that supported those paragraphs and the order in respect of costs. 14 The respondent's principal argument was, in essence, a reiteration of the judgment in rem argument that was successful at first instance. This argument was based on the following propositions:

(a) An order of the Licensing Court for the grant of a licence operates as a judgment in rem : Washington H Soul, Pattinson & Co Ltd v Ogilvy (1955) 55 SR (NSW) 143.

(b) A judgment in rem is conclusive against all the world: Washington H Soul, Pattinson & Co Ltd v Ogilvy at 148. As was stated in the following passage from Smith's Leading Cases 13th ed. (1929), vol 2 pp 666, 667 which was cited with approval in Clifford v Timms [1907] 2 Ch 236, at 244 (which was affirmed on appeal [1908] AC 12) and in Washington H Soul, Pattinson & Co Ltd v Ogilvy at 148: "A judgment in rem … [is] an adjudication pronounced (as indeed its name denotes) upon the status of some particular subject matter by a tribunal having competent authority for that purpose. Such an adjudication, being a most solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, concludes all persons from saying that the status of the thing adjudicated upon was not such as declared by the adjudication."

(c) The judgment of the Full Bench of the Licensing Court of 25 June 2001, granting AGT a poker machines dealer's licence, was based on the finding that the respondent was a fit and proper person to be interested in or associated with the holder of such a licence (that is, AGT).

(d) The finding that the respondent was a fit and proper person to be interested in or associated with the holder of such a licence was a finding as to the status of the respondent.

(e) Accordingly, that finding operated in rem so as to preclude the appellant from setting up a defence of justification based on the allegations that the respondent in fact was not such a fit and proper person and that the pleaded imputations were true. 15 The respondent's subsidiary argument was based on the proposition that the litigation before the Licensing Court had been conducted fully and properly and "ventilated as fully as could be imagined". He submitted that it was an abuse of process to re-litigate a matter that had so been determined.

The extent of the judgment in rem 16 It may be accepted that an order of the Licensing Court, granting a licence, operates in rem and is conclusive against the world. It may also be accepted that the judgment of 25 June 2001 was based on a finding that the respondent was a fit and proper person to be interested in or associated with AGT. But in my view the remainder of the propositions cannot stand. I shall first deal with the argument that that finding (as distinct from the orders made by the Licensing Court) operated in rem. 17 Mr Stitt QC, who together with Mr Blackburn SC appeared for the respondent, drew attention to s 97 and s 98 of the Registered Clubs Act 1976 which at the relevant time stated: "97 Who may object (1) An objection to the granting by the Licensing Court of an application for a gaming-related licence may, as prescribed, be taken: (a) by the Commissioner of Police, or (b) by the Director, … 98 Grounds of objection (1) Objection to the grant of an application for a gaming-related licence may be taken on one or more of the following grounds: (a) that the applicant is not a fit and proper person to be the holder of a gaming-related licence, (b) except in the case of an application to be licensed as an employee - that a person directly or indirectly interested in the application or in the business, or the profits of the business, to be carried on under the gaming-related licence if the application is granted is not a fit and proper person to be so interested, (c) that a person who is, was or will be a close associate of the applicant is not a fit and proper person to be a close associate of the holder of a gaming-related licence, and, where any such objection is taken, the onus is on the applicant to rebut the objection …" 18 He submitted that, as the fitness of the respondent to be interested in or associated with AGT was a specific issue raised by the grounds of objection relied on by the objectors - and the subject of a finding by the Licensing Court - the finding of fitness operated in rem and was conclusive against the world. 19 This argument loses sight of the basic rule expressed by Blackburn J in Castrique v Imrie (1870) LR4HL 414 at 434, namely: "A judgment in an English Court is not conclusive as to anything but the point decided".

An example given by his Lordship well illustrates the rule. He explained: "[A] judgment of conviction on an indictment for forging a bill of exchange, though conclusive as to the prisoner being a convicted felon, is not only not conclusive, but is not even admissible evidence of the forgery in an action on the bill, though the conviction must have proceeded on the ground that the bill was forged."

20 Hollington v F Hewthorn & Company Limited [1943] KB 587 is to the same effect. Goddard LJ, in delivering the judgment of the Court of Appeal, referred (at 596) to the Duchess of Kingston's Case (1776) 2 Sm, L.C., 13th ed, 644 where the general rule was said to be that a judgment of the Court is not to be used to the prejudice of strangers. His Lordship then stated: "This is true, not only of convictions but also of judgments in civil actions. If given between the same parties they are conclusive, but not against anyone who was not a party."

He went on to say (at 596 to 597): "A judgment, however, is conclusive as against all persons of the existence of the state of things which it actually affects when the existence of that state is a fact in issue. Thus, if A sues B, alleging that owing to B's negligence he has been held liable to pay [X pounds] to C, the judgment obtained by C is conclusive as to the amount of damages that A had to pay C, but it is not evidence that B was negligent … " 21 The only relevant order the Licensing Court made on 25 June 2001 was that granting a poker machine dealer's licence to AGT. The finding as to the fitness of the respondent that it made in the course of its judgment was not an order of the Court. Only the order of the Court constitutes a judgment in rem. The finding does not. 22 Thus, the judgment of the Licensing Court is conclusive as to the fact that AGT held a poker machine dealer's licence. It is not, however, conclusive as to whether the appellant was a fit and proper person to be interested in or associated with the holder of a poker machines dealer's licence (or a company licensed in relation to poker machines, or to have a financial interest in a company licensed to be an approved amusement device dealer - these being the additional pleaded imputations). Nor is it conclusive as to the differently framed contextual implications. 23 I would note in passing that in the written submissions reference was made to the remarks of Dixon J in Blair v Curran (1939) 62 CLR 464 (particularly at 532 and 533) in regard to the application of issue estoppel to findings that concern evidentiary facts and not ultimate facts. In the oral addresses, no argument was pressed in this regard, it being apparently accepted that what was said in Blair v Curran applied only to issue estoppel and not judgments in rem.

The meaning of "status" 24 The proposition that the finding that the appellant was a fit and proper person to be interested in or associated with the holder of such a licence was a finding as to "status" misconceives the meaning of status as this term was used in Washington H Soul, Pattinson & Co Ltd v Ogilvy. 25 According to Spencer Bower, Turner and Handley, Res Judicata, 3rd ed at 234, the status of a person or thing is "the jural relation of the person, or thing, to the world generally". The authorities amply support this definition. In Daniel v Daniel (1906) 4 CLR 563 Griffith CJ at 566 said: "Without pretending to give an exhaustive definition, I apprehend that the term 'status' means something of this sort: a condition attached by law to a person which confers or affects or limits a legal capacity of exercising some power that under other circumstances he could not or could exercise without restriction. That definition, as I have said, may not be exhaustive, but it indicates, at any rate, the sort of thing that is meant."

In Niboyet v Niboyet [1878] 4 PD 1 Brett LJ said at 11: "The status of an individual, used as a legal term, means the legal position of the individual in or with regard to the rest of a community."

In the Ampthill Peerage Case [1976] 2 All ER 411 at 424 Lord Simon of Glaisdale said: "Status means the condition of belonging to a class and society to which the law ascribes peculiar rights and duties, capacities and incapacities." 26 Harvey v R (1901) AC 601 illustrates the point. An order had been made by a Master in Lunacy appointing Mrs Harvey to receive the income of her husband Mr Harvey's property, and authorising her to apply such income for the maintenance of herself, Mr Harvey and their child. The order contained a recital in the following terms: ""[I]t having been established to my satisfaction that [Mr Harvey] is of unsound mind and is incapable of managing his affairs".

Lord Lindley, in delivering the judgment of the Privy Council, said (at 611) that orders in Lunacy were "not conclusive evidence of anything except their own existence". Thus, the fact that Mrs Harvey had been so appointed took effect as a judgment in rem , it being a judgment as to her status as having authority to receive the income from her husband's property and to apply it as ordered. On the other hand, the finding that Mr Harvey was of unsound mind and was incapable of managing his own affairs was not a finding as to status, and was not conclusive. 27 By parity of reasoning, the order granting AGT a poker machines dealer's licence was an order as to the status of AGT. That is because the order declared the jural relation of AGT - as the holder of such a licence - to the world. On the other hand, the finding that the respondent was a fit and proper person to be interested in or associated with the holder of such a licence did not determine the legal position of the respondent in or with regard to the rest of the world. It did not result in the law ascribing particular rights and duties to the respondent. It was not a finding as to status.

The temporal limit on the finding as to fitness 28 Although the Licensing Court, in earlier years, made findings in which the fitness and propriety of the respondent to hold licences was touched upon, Mr Stitt made it plain that the sole judgment in rem on which the respondent's argument in this appeal rests was the judgment of 25 June 2001. 29 The respondent's argument was that the finding made in the judgment of 25 June 2001 was conclusive as to the fitness or propriety of the appellant on 4 June 1993 (when the allegedly defamatory material was published). 30 In the hearing before the Licensing Court leading to the judgment of 25 June 2001, wide-ranging factual issues as to the fitness and propriety of the respondent to hold a poker machine dealer's licence were canvassed. These factual issues involved a period from about 1970 to 2001. Mr Stitt submitted in this regard: "The objections which were raised involved an analysis of events which went back years and involved activities, not only in Australia but in Nevada and New Jersey. It involved allegations being made against Mr Ainsworth about improper conduct, which he had to deal with and did deal with. Some of the matters went back into the seventies and made allegations about Mr Ainsworth's alleged wrongdoing. In order to deal with that, there was evidence given before the Licensing Court. Mr Ainsworth gave evidence for days and he was cross-examined for days and the determination to grant the licence was based after this had been investigated." 31 Mr Stitt submitted that, after considering all these matters, the Licensing Court "declared" the fitness of the respondent to hold a poker machine dealer's licence over the entire period canvassed by the evidence, that is, from 1970 until 2001. He submitted: "The reasons for that is [that] the Licensing Court has power to take those matters into account in considering the question of fitness. It was those matters that had to be dealt with by [the respondent] before the Licensing Court …" 32 The answer to these submissions is that, contrary to the argument advanced, the finding of the Licensing Court made in the judgment of 25 June 2001 concerned only the respondent's fitness as at the date judgment was delivered. 33 The Licensing Court considered that a "generally satisfactory reputation" needed to be found "to ensure fitness and propriety". For that reason it gave consideration to past events but did so solely for the purpose of considering how those matters reflected on the respondent's reputation as at the judgment date. The Licensing Court made no finding as to the respondent's fitness at any earlier time. 34 That the Licensing Court well understood that the fitness of the respondent at a date earlier than the judgment date was not an issue properly before it appears from the following statement that appears in its judgment of 25 June 2001: "It is Mr Ainsworth's reputation today which is relevant for these proceedings, and not what it was 17 or 18 years ago." 35 The argument that the finding of 25 June 2001 has a bearing on the fitness or propriety of the respondent as at 4 June 1993 is without substance.

Other limitations on the finding as to fitness 36 Section 90(1) of the Registered Clubs Act provided for the grant of licences by the Licensing Court of the following kind: a poker machine dealer's licence, a poker machine seller's licence, a poker machine technician's licence, a poker machine adviser's licence and a poker machine testing facility licence. 37 In its judgment of 25 June 2001, the Licensing Court, at most, made a finding as to the respondent's fitness and propriety as regards a poker machine dealer's licence. The imputations alleged by the respondent (made in the letter of 4 June 1993) concerned the fitness and propriety of the respondent to be interested in or associated with "a company licensed in relation to poker machines" and "in a company licensed to be an approved amusement device dealer". The alleged imputations therefore went far beyond the finding made by the Licensing Court and, as Giles JA observed during the course of argument, that finding - in its terms - did not constitute a complete answer to the defence of truth. Still less did the finding controvert the pleaded contextual imputations.

The abuse of process argument 38 Essential to the respondent's abuse of process argument was the proposition that everything the appellant could possibly advance in support of his case had already been put by the objectors in the Licensing Court, and there was no realistic prospect of the Supreme Court taking a different view from that taken in the Licensing Court. This was not the approach adopted by the primary judge who did not resolve the question of abuse of process on this basis. His Honour seemed to regard the abuse argument as founded on the proposition that the Licensing Court judgment of 25 June 2001 in effect precluded the issues that the appellant wished to raise in paragraphs 6 and 7 of his defence and it was an abuse to raise them. Once the judgment in rem argument fails, as in my view it must, there is no foundation for an abuse of process argument so based. On my understanding of the proceedings, the respondent did not argue before the primary judge that it would be futile for the appellant to attempt to raise the defences of truth and contextual truth and the futility argument was not raised before this Court.

39 In the circumstances, it is hopeless to argue that it would be an abuse of process for the appellant to raise issues that had been resolved between the respondent and two other parties in litigation in which the appellant did not participate: see State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports 64,077; R v O'Halloran (2000) 159 FLR 260.

Conclusion 40 I propose that the appeal be upheld with costs. I would set aside the orders made by the primary judge in respect of the orders striking out paragraphs 6 and 7 of the amended defence and the particulars of truth that supported those paragraphs. I would substitute in lieu thereof an order dismissing the strike out application in those respects. 41 As I have mentioned, his Honour ordered the appellant to pay the respondent's costs only "in relation to the defences, particulars and cross-claims struck out". In my view, it is not necessary to make any different order in regard to the costs of the application to strike out. 42 One other comment needs to be made. The respondent commenced these proceedings more than seven years ago. At the present stage, the appellant's defence has not yet been finalised. The papers before this Court do not reveal the cause of this deplorable delay. Satellite litigation, procedural and other interlocutory disputes with the inevitable consequential delay and cost appear to be not unusual and accepted as the norm in defamation cases. The arcane complications within the fastnesses of defamation law and procedure have so far resisted the drive for simplification and celerity in bringing cases to trial that characterises virtually all other areas of modern civil law. This means that in defamation cases a poor suitor may end up being at the mercy of a wealthy rich opponent. It is to be hoped that this will change. At the very least, it should not take more than seven years to put a defence properly in place. **********

Last Modified: 02/19/2004 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.

CITATION : Burden v Ainsworth [2004] NSWCA 3 revised - 19/02/2004 HEARING DATE(S) : 19/12/03 JUDGMENT DATE : 17 February 2004

CATCHWORDS : DEFAMATION - Defamation Act 1974 - Defences of truth and contextual truth - RES JUDICATA - Judgments in rem - Whether finding of Licensing Court conclusive - Difference between an order and a finding - Meaning of "status" in context of judgments in rem - Temporal limitation on finding of fitness - PRACTICE AND PROCEDURE - Abuse of process where issues previously litigated between different parties. D LEGISLATION CITED : Registered Clubs Act 1976, ss 90(1), 97, 98, Defamation Act 1974, ss 15, 16 Blair v Curran (1939) 62 CLR 464 Castrique v Imrie (1870) LR4HL 414 Clifford v Timms [1907] 2 Ch 236 Daniel v Daniel (1906) 4 CLR 563 Harvey v R (1901) AC 601 CASES CITED : Hollington v F Hewthorn & Company Limited [1943] KB 587 Niboyet v Niboyet [1878] 4 PD 1 R v O'Halloran (2000) 159 FLR 260 State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports 64,077 Ampthill Peerage Case [1976] 2 All ER 411 Duchess of Kingston's Case (1776) 2 Sm, L.C., 13th ed 644 Washington H Soul, Pattinson & Co Ltd v Ogilvy (1955) 55 SR (NSW) 143 PARTIES : Leslie James Burden (Appellant) Leonard Ainsworth (Respondent) FILE NUMBER(S) : CA 40256/02 COUNSEL : T Molomby SC/R Rasmussen (Appellant) R R Stitt QC/ T D Blackburn SC (Respondent) SOLICITORS : Hunt & Hunt (Appellant) Dibbs Barker Gosling (Respondent)

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