Burden v Ainsworth [2004] NSWCA 3

Burden v Ainsworth [2004] NSWCA 3

The Licensing Court's order granting AGT a poker machines dealer's licence was conclusive only as to AGT's licensed status. The Licensing Court's finding that the respondent was a fit and proper person to be interested in or associated with AGT was not an order, did not determine the respondent's status as against the world, was concerned only with fitness at the date of the 25 June 2001 judgment, and was narrower than the pleaded imputations. It therefore did not preclude the appellant from pleading truth and contextual truth, and once the judgment in rem argument failed there was no foundation for the abuse of process argument advanced.

Jurisdiction
Australia
Judgment Date
17 February 2004
Procedural Posture
Defamation Appeal Concerning Defences of Truth and Contextual Truth / Appeal From Orders of Levine J Striking Out Parts of an Amended Defence, Particulars and a Cross Claim; Appeal Maintained Only as to Paragraphs 6 and 7 of the Amended Defence, Supporting Particulars of Truth and Costs
Outcome
Appeal upheld with costs.
Legal Topics
['defences of Truth and Contextual Truth' 'judgments in Rem' 'status' 'abuse of Process' 'strike Out Application']
['defamation' 'civil Procedure' 'res Judicata'] ['defences of Truth and Contextual Truth' 'judgments in Rem' 'status' 'abuse of Process' 'strike Out Application']

Case Brief

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Procedural Posture

Defamation Appeal Concerning Defences of Truth and Contextual Truth / Appeal From Orders of Levine J Striking Out Parts of an Amended Defence, Particulars and a Cross Claim; Appeal Maintained Only as to Paragraphs 6 and 7 of the Amended Defence, Supporting Particulars of Truth and Costs

Legal Issues

  1. 1 ["Whether the Licensing Court's grant of a poker machines dealer's licence to AGT operated as a judgment in rem precluding the appellant from pleading truth and contextual truth about the respondent's fitness and propriety." 'Whether a finding by the Licensing Court that the respondent was a fit and proper person to be interested in or associated with AGT was itself conclusive against the world.' "Whether the finding of fitness in the Licensing Court judgment extended to the respondent's fitness as at 4 June 1993 or to the pleaded imputations concerning licensed companies and approved amusement device dealers." "Whether pleading truth and contextual truth was an abuse of process because issues about the respondent's fitness had been litigated in the Licensing Court between other parties."]

Ratio Decidendi

The Licensing Court's order granting AGT a poker machines dealer's licence was conclusive only as to AGT's licensed status. The Licensing Court's finding that the respondent was a fit and proper person to be interested in or associated with AGT was not an order, did not determine the respondent's status as against the world, was concerned only with fitness at the date of the 25 June 2001 judgment, and was narrower than the pleaded imputations. It therefore did not preclude the appellant from pleading truth and contextual truth, and once the judgment in rem argument failed there was no foundation for the abuse of process argument advanced.

Court Disposition

Appeal upheld with costs.

Orders

  • ['Appeal upheld with costs.' '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.' 'Substitute in lieu thereof an order dismissing the strike out application in those respects.']