Ainsworth v Burden; Ainsworth v Burden; Clark v Ainsworth [1999] NSWSC 793

New South Wales Supreme Court CITATION : Ainsworth v Burden; Ainsworth v Burden; Clark v Ainsworth [1999] NSWSC 793 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 21216/96; 20480/94 HEARING DATE(S) : 6 May, 1999 JUDGMENT DATE : 6 May 1999

PARTIES : Leonard Hastings AINSWORTH v Leslie James BURDEN Robert CLARK v Leonard AINSWORTH JUDGMENT OF : Smart AJ at 1-16

A Whealy QC and C Fegan for Ainsworth COUNSEL : J Gibson for Burden C Evatt and J Henness for Clark SOLICITORS : Mallesons Stephen Jaques for Ainsworth (Action 1) Barker Gosling for Ainsworth (Action 2) CATCHWORDS : Release from implied undertakings as to confidentiality. ACTS CITED : -Nil- CASES CITED : -Nil- DECISION : Refer paras 11, 13, 15 and 16.

- 5 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

CORAM : SMART AJ

THURSDAY, 6 MAY, 1999

21216/96 - LEONARD HASTINGS AINSWORTH -v- LESLIE JAMES BURDEN 20480/94 - ROBERT CLARK -v- LEONARD AINSWORTH

JUDGMENT

1 HIS HONOUR: These are applications on behalf of Leonard Hastings Ainsworth, that he be granted leave to be relieved from implied undertakings as to confidentiality in relation to pleadings in each of the actions, that is, the one brought by Robert Clark against Leonard Hastings Ainsworth and that brought by Mr Ainsworth against Leslie James Burden. It is convenient to deal with the application in relation to Mr Clark first. 2 The material before me indicates that the proceedings in the Licensing Court in which Mr Ainsworth is intimately involved have been adjourned so that the pleadings in the proceedings in Mr Clark's defamation action may be tendered before the Licensing Court. Reference is made in the particulars of the applicant's objection to that action. There is some doubt as to the extent to which, if at all, confidentiality attaches to the pleadings, particularly to those of Mr Ainsworth. 3 What seems to be the position now is that there is an amended statement of claim, with annexures, a further amended statement of claim with annexures of 11 August 1994, a further amended statement of claim of 9 October 1998 a defence and cross-claim filed on 25 September 1994, and a defence to cross-claim of 30 November 1994. These dates refer to the dates on which the documents were filed in the court registry. 4 I see no difficulty in permitting those documents to be tendered to the Licensing Court, provided that no other use is made of them and in due course I will make an order to that effect. 5 The question of costs then arises. Mr Ainsworth has sought an indulgence, the reason being that he wishes to be able to use the documents in the Licensing Court proceedings. When the matter came before this Court, the attitude of Mr Clark's counsel was that he neither consented nor opposed the order and said it was a matter for the Court. 6 The motion as framed did not limit the release to tendering the document in the Licensing Court. It is my view that in the circumstances the costs of Mr Ainsworth's application to this Court today ought to be Mr Clark's costs in the cause. 7 In relation to Mr Ainsworth's claim against Mr Burden, there is no difficulty in permitting the statement of claim and the statement of defence to be tendered in the Licensing Court and I will make an order to that effect a little later. The matter for contention is whether the reply should also be the subject of an order. The reply first of all joins issue with the defendant on his defence, save and except as far as it contains admissions. 8 Next it asserts in answer to Para 4 of the defence that the defendant was motivated by express malice in the publication of the matter complained of in this court. That is important in relation to the privilege defences. 9 I would have no difficulty in permitting Paras 1 and 2 of the to be tendered before the Licensing Court. 10 The particulars contain a variety of assertions as to the conduct of the defendant which in combination are said to amount to malice. It would be inappropriate for the Licensing Court not to have all the pleadings which define the issues. It probably needs to have the particulars of malice so that it can see what lies behind the allegation in Para 2 of the reply. I do not see that the disclosure of these matters would lead to further disclosures. 11 As to costs, I will again order the costs of this application be Mr Burden's costs in the cause, for the reasons I have earlier given in relation to Mr Clark. 12 The orders which I have made are to facilitate the conduct of the proceedings in the Licensing Court. That court will take care of the use which is made of the documents and will appreciate that at this stage assertions of fact have been made and, except where there are admissions, have yet to be proved. 13 The orders I will make are as follows: That Leonard Hastings Ainsworth be granted leave to tender a copy of the amended further statement of claim of 11 August 1994, the further amended statement of claim of 9 October 1998, the defence and cross-claim, filed 25 September, 1994 and the defence to cross-claim, filed 30 November 1994 in proceedings 20480/94, in the Licensing Court, in the proceedings between Ainsworth Technology Pty Ltd and Owen John Anderson on behalf of the New South Wales Police Service, and presently adjourned to 11 May, 1999. This is in the matter of Clark against Ainsworth. I order that the costs of this application be Mr Clark's costs in the cause. 14 I will add one sentence to the reasons for judgment. The Licensing Court should note that the defamation action between Clark and Ainsworth is due to be heard on 11 November 1999 and care should be taken to ensure that nothing happens to cause that trial to be aborted. 15 In Ainsworth against Burden, I order that Leonard Hastings Ainsworth be granted leave to tender a copy of the statement of claim, defence and reply, in proceedings numbered 21216/96 in this Court between Mr Ainsworth and Leslie James Burden, to the Licensing Court, in the proceedings between Ainsworth Technology Pty Ltd and Owen John Anderson on behalf of the NSW Police Service, presently adjourned to 11 May 1999. In each case liberty to apply on 3 hours notice. 16 I order that the costs of this application be Mr Burden's costs in the cause. **********************