Ainsworth v Burden [2003] NSWCA 90

Ainsworth v Burden [2003] NSWCA 90

Section 64(1)(b) is limited by the words "in respect of any publication involved in, or resulting from, the giving of access" and therefore gives no protection for the original publication of the defendant's letter to the Minister, which was made independently of the Act. Simpson J's stay based on s 64(1)(b) was therefore set aside.

Jurisdiction
Australia
Judgment Date
24 April 2003
Procedural Posture
Defamation Appeal Concerning a Stay Based on Freedom of Information Act 1989 (nsw) S 64(1)(b) / Application for Leave to Appeal and Appeal From Simpson J's Order Permanently Staying the Defamation Action
Outcome
Leave to appeal granted; appeal allowed with costs; stay set aside; defendant's notice of motion dismissed in so far as it sought a stay or dismissal pursuant to s 64(1)(b); remaining relief remitted.
Legal Topics
['absolute Privilege' 'publication of Defamatory Matter' 'republication Under Freedom of Information Legislation' 'construction of Freedom of Information Act 1989 (nsw) S 64']
['defamation' 'freedom of Information'] ['absolute Privilege' 'publication of Defamatory Matter' 'republication Under Freedom of Information Legislation' 'construction of Freedom of Information Act 1989 (nsw) S 64']

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Procedural Posture

Defamation Appeal Concerning a Stay Based on Freedom of Information Act 1989 (nsw) S 64(1)(b) / Application for Leave to Appeal and Appeal From Simpson J's Order Permanently Staying the Defamation Action

Legal Issues

  1. 1 ['Whether Freedom of Information Act 1989 (NSW) s 64(1)(b) protected the defendant from a defamation action based on the original publication of a letter to the Minister for Police.' 'Whether the statutory protection for publications involved in, or resulting from, the giving of access under the Act extended to publications made independently of the Act.']

Ratio Decidendi

Section 64(1)(b) is limited by the words "in respect of any publication involved in, or resulting from, the giving of access" and therefore gives no protection for the original publication of the defendant's letter to the Minister, which was made independently of the Act. Simpson J's stay based on s 64(1)(b) was therefore set aside.

Court Disposition

Leave to appeal granted; appeal allowed with costs; stay set aside; defendant's notice of motion dismissed in so far as it sought a stay or dismissal pursuant to s 64(1)(b); remaining relief remitted.

Orders

  • ['Leave to appeal granted subject to the notice of appeal being filed within 14 days.' 'Appeal allowed with costs.' '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...