AINSWORTH v BURDEN [2004] NSWSC 552

AINSWORTH v BURDEN [2004] NSWSC 552

The application for summary dismissal was refused because the issues of absolute privilege (both statutory and common law) required determination at trial and could not be properly resolved summarily on the evidence and arguments presented; the applicant/defendant did not establish that the defences applied without real contest.

Parties
Respondent/plaintiff: Leonard Hastings Ainsworth; Applicant/defendant: Leslie James Burden
Jurisdiction
Australia
Judgment Date
25 June 2004
Procedural Posture
Defamation / Summary Dismissal Application; Judgment on Amended Notice of Motion
Outcome
Amended Notice of Motion dismissed; costs to respondent/plaintiff; further orders for return of Exhibit A and administrative directions.
Legal Topics
Absolute Privilege, Summary Dismissal, SCR Pt 13 R 5, Abuse of Process, Defamation Act 1974, Common Law Privilege
Defamation Absolute Privilege Summary Dismissal SCR Pt 13 R 5 Abuse of Process Defamation Act 1974 Common Law Privilege

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Parties

Leonard Hastings Ainsworth

Respondent/plaintiff

Leslie James Burden

Applicant/defendant

Procedural Posture

Defamation / Summary Dismissal Application; Judgment on Amended Notice of Motion

Legal Issues

  1. 1 Whether absolute privilege under s17A(3) of the Defamation Act 1974 applies to the publication
  2. 2 Whether the letter to the Minister was a complaint attracting statutory or common law absolute privilege
  3. 3 Whether application should be summarily dismissed under SCR Pt 13 r 5

Ratio Decidendi

The application for summary dismissal was refused because the issues of absolute privilege (both statutory and common law) required determination at trial and could not be properly resolved summarily on the evidence and arguments presented; the applicant/defendant did not establish that the defences applied without real contest.

Court Disposition

Amended Notice of Motion dismissed; costs to respondent/plaintiff; further orders for return of Exhibit A and administrative directions.

Orders

  • The Amended Notice of Motion is dismissed.
  • The applicant/defendant is to pay the respondent/plaintiff's costs.