Ainsworth v Burden [2002] NSWSC 620

New South Wales Supreme Court

CITATION : Ainsworth v Burden [2002] NSWSC 620 FILE NUMBER(S) : SC 21216/96 HEARING DATE(S) : 8 July 2002 JUDGMENT DATE : 12 July 2002

PARTIES : Leonard Hastings Ainsworth - Plaintiff Leslie James Burden - Defendant JUDGMENT OF : Simpson J

COUNSEL : R.R. Stitt QC with T.D. Blackburn - Plaintiff B. Donovan QC with R. Rasmussen - Defendant SOLICITORS : Dibbs Barker Gosling - Plaintiff Hunt & Hunt - Defendant CATCHWORDS : defamation - matter complained of obtained by means of application under Freedom of Information Act 1989 - s64(1) protections against defamation claims Freedom of Information Act 1989 LEGISLATION CITED : SA Freedom of Information Act 1991 Freedom of Information Act 1982 (Cth) Morgan v Mallard [2001] SASC 364; unreported, 31 October 2001 CASES CITED : McFarlane v the Commonwealth of Australia, unreported, 17 June 2002 (District Court) McKinnon & Powell v Department of Immigration and Ethnic Affairs (1995) 40 ALD 343 DECISION : Proceedings stayed

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION list

SIMPSON J

12 July 2002

21216/96 Leonard Hastings AINSWORTH v Leslie James BURDEN

JUDGMENT 1 HER HONOUR: By statement of claim filed on 1 November 1996 the plaintiff commenced proceedings against the defendant claiming damages for defamation arising out of the publication of a letter dated 4 June 1993. The letter was written by the defendant and directed to the then Minister for Police. The defendant identified himself as a former Commander of the Licensing Investigative Unit of the NSW Police Service. The subject matter of the letter concerned the licensing of poker machines in NSW. 2 The plaintiff complains that the letter conveyed imputations defamatory of him. 3 The plaintiff obtained a copy of the letter by means of an application made under the Freedom of Information Act 1989. That this was his source is made plain in a letter written by his solicitors to the defendant's solicitors on 2 December 1998. In response to an inquiry previously made of them by the defendant's solicitors, the plaintiff's solicitors wrote: "… we are instructed to confirm that the Mellis Report was obtained by our client in 1996, following a Freedom of Information application." 4 By notice of motion filed on 22 April 2002, the defendant seeks to have the proceedings stayed or dismissed as disclosing no reasonable cause of action; as being frivolous or vexatious; or as being an abuse of the process of the Court. 5 The principal matter put on behalf of the defendant in support of the notice of motion concerned the applicability and construction of s64(1)(b) of the Freedom of Information Act 1989. That section is, relevantly, in the following terms: "64(1) If access to a document is given pursuant to a determination under this Act, and if the person by whom the determination is made believes in good faith, when making the determination, that this Act permits or requires the determination to be made: (a) …,and (b) no action for defamation … in respect of any publication involved in, or resulting from, the giving of access lies against the author of the document or any other person by reason of the author or other person having supplied the document to an agency or Minister." 6 The defendant's argument is simple. It is that the sub-paragraph precludes any action being taken by the plaintiff against the author of a document which he has obtained by reason of an application under the Freedom of Information Act. (It may be different if the same document was obtained from another source, but that is not this case.) 7 A similar question was raised in the Full Court of the Supreme Court of South Australia in Morgan v Mallard [2001] SASC 364; unreported, 31 October 2001. There a document, which the appellant claimed defamed her, came into her hands as a result of the process of discovery. It was held that, absent a grant of leave, the plaintiff could not use the document so produced in order to found an action for defamation. However, in coming to that view, the Full Court considered whether the appellant would be able to use the same letter if she obtained it as a result of an application under the SA Freedom of Information Act 1991. S50(1) of that Act is in substantially similar, if not identical, terms to s64(1)(b). 8 Bleby J, with whom Mullighan and Wicks JJ agreed, wrote: "[31] In this case, to the extent that the letter in question has been produced to the appellant under the provisions of the Freedom of Information Act 1991, s50(1)(b) would prevent her from using it for the purpose of maintaining the present action for defamation. That is because it is the subject of protection under s51(b) as a document produced by reason of the author having supplied it to Workcover Corp. However, because it was also supplied to her in a different capacity, as a litigant in the Magistrate's Court, she may be able to use it either with the consent of the respondent or by leave of that Court." 9 The views expressed by the South Australian Supreme Court, even sitting as a full Court, are, of course, not binding on me, but they plainly must be accorded considerable respect. 10 A similar question came before JC Gibson DCJ in McFarlane v the Commonwealth of Australia, unreported, 17 June 2002. This concerned s91 of the Freedom of Information Act 1982 (Cth). Again, the legislation contained a provision substantially the same as s64(1)(b). Gibson DCJ came to a conclusion similar to that reached by the SA Supreme Court in Morgan. 11 To contrary effect is a decision of Deputy President SA Forgie, sitting in the Administrative Appeals Tribunal, in McKinnon & Powell v Department of Immigration and Ethnic Affairs (1995) 40 ALD 343. This also concerned the Commonwealth provision. Deputy President Forgie held: "[24] The focus of s91 is solely upon the republication of the matter in a document released under the FOI Act. It does not in any way attract the liability of the original author of the document when he or she sends or gives it to a Minister or agency. The initial transmission of the matter in the document is itself publication of the matter and something in respect of which an action for defamation may be brought. Section 91 does not protect the author of the document in respect of that original publication." 12 I respectfully disagree with the Deputy President, and, quite independently of principles of comity, prefer the construction adopted by the South Australian Supreme Court in Morgan. I reach this conclusion by reference to the plain words of the sub-section. The sub-section protects the author of a document who has supplied the document to (relevantly) a Minister, against actions for defamation as a result of a grant of access to the document pursuant to the Freedom of Information Act. 13 A moment's reflection on the purpose behind the section confirms this view. I say this notwithstanding that portion of the Explanatory Note which accompanied the Freedom of Information Bill 1988 (Number 2) on its introduction into the NSW Parliament, which was put before me on behalf of the plaintiff. The Explanatory Note merely says: " Clause 64 protects certain persons from any action for defamation or breach of confidence, and any related action, where access to a document has been given under the proposed Act." 14 Senior counsel for the plaintiff urged that I should adopt Deputy President Forgie's interpretation rather than that of Bleby J. He relied on the Explanatory Note in support of his contention. 15 I do not find the Explanatory Note casts any light at all on this question. As I indicated, the purpose behind the Freedom of Information Act supports the notion that the author of a document is protected in respect of the original publication of that document, where the plaintiff comes into possession of the document as a result of the Freedom of Information Act. This simply means that the legislature determined that the Freedom of Information Act would not become a source of material to be used against individuals providing information to government Ministers or agencies; and that such persons should not be deterred, by reason of the Act, from doing so. 16 The sub-section is constructed in such a way that a plaintiff who comes into possession of a defamatory document by means other than the Act is not prevented from taking action. It is only where the procedures provided by the Act have the effect of disclosing a document that the protection afforded by the section arises. 17 I am therefore satisfied that the proceedings should be stayed. I order accordingly. **********