Ainsworth v Burden [2006] NSWCA 199 (24 July 2006)

Last Updated: 24 July 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ainsworth v. Burden [2006] NSWCA 199



FILE NUMBER(S):
40911/05

HEARING DATE(S): 10 July 2006

DECISION DATE: 24/07/2006

PARTIES:
Leonard Hastings Ainsworth - appellant
Leslie James Burden - respondent

JUDGMENT OF: Mason P Hodgson JA Bryson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC21216/96

LOWER COURT JUDICIAL OFFICER: Patten AJ

COUNSEL:
Mr. R.R. Stitt QC with Mr. T.D. Blackburn SC for appellant
Mr. C.A. Evatt with Mr. R.K.M. Rasmussen for respondent

SOLICITORS:
Dibbs Abbott Stillman, Sydney for appellant
Hunt & Hunt, Eastwood for respondent

CATCHWORDS:
DEFAMATION - Appeal - Finding of jury that defamatory letter was published in circumstances such that the plaintiff was unlikely to suffer harm - Whether finding appealably unreasonable.

LEGISLATION CITED:


DECISION:
1. Appeal dismissed with costs. 2. Cross-appeal dismissed, with each party to bear its own costs to the extent that the overall costs of the appeal and cross-appeal have been increased by the bringing of the cross-appeal.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40911/05

SC 21216/96

MASON P

HODGSON JA

BRYSON JA

Monday 24 July 2006

AINSWORTH V. BURDEN

Judgment

1 MASON P: I agree with Hodgson JA.

2 HODGSON JA: The appellant brought proceedings for defamation against the respondent in respect of a letter dated 4 June 1993 written by the respondent to the then Minister of Police. In October and November 2005, there was a 14-day trial before Patten AJ and a jury. On 2 November 2005, the jury gave answers to the following three questions, being three of five questions that had been left to them:

(1) Has the plaintiff Leonard Ainsworth established that the letter written to the Minister on 4 June 1993 by the defendant Leslie Burden conveyed to the ordinary reasonable reader any of the following imputations (or imputations not different in substance):

(a) The plaintiff was not a fit and proper person to be involved in the management of a company licensed in relation to poker machines.
(b) The plaintiff was not a fit and proper person to have a financial interest in a company licensed in relation to poker machines.
(c) The plaintiff was not a fit and proper person to have a financial interest in a company licensed to be an approved amusement device dealer.

(2) In relation to any imputation in question (1) that you have found to be conveyed, that is any imputation to which you have answered “yes” in question (1), has the plaintiff established that such imputation is defamatory?
(3) Has the defendant established that the defendant’s letter of 4 June 1993 was published in circumstances such that the plaintiff was unlikely to suffer harm?

3 The jury answered each part of question (1) yes, answered question (2) yes in relation to each part of question (1), and answered question (3) yes. Accordingly, since the respondent had thereby made out a defence under s.13 of the Defamation Act 1974, the trial judge entered a verdict for the respondent and ordered the appellant to pay the respondent’s costs of the proceedings.

4 The appellant appeals from that decision on the ground that the jury’s answer to question (3) was unreasonable. The respondent has put on a cross-appeal on a procedural matter, which requires attention only if the appeal succeeds.

CIRCUMSTANCES

5 The appellant is a substantial shareholder in Aristocrat Leisure Industries Pty. Limited (ALI), a licensed manufacturer of poker machines and approved amusement devices, and has been actively involved in the management of that company.

6 It was the appellant’s case that ALI had, prior to 1993, made an application for a dealer’s licence in the State of Nevada in the United States of America; that this involved an investigation and that, if the applicant passed that investigation, all that remained was the formal granting of the licence; that ALI had passed the investigation successfully; and that the formal grant of the licence was listed for hearing in Nevada in July 2003.

7 However, on 22 April 1993, Mr. Hatton MLA directed the following question to the Minister for Police in the New South Wales Parliament (Legislative Assembly):

During the Hanrahan defamation case did Leonard Hastings Ainsworth give evidence in the course of the proceedings that could be sufficient grounds to review his company’s suitability to hold a licence under the provision of the Liquor Act?

8 The letter the subject of the proceedings was dated 4 June 1993. It was hand-written, it was addressed to the Minister for Police, and it was headed “Re: Leonard Hastings Ainsworth”. The letter then proceeded:

My name is Leslie James Burden. I was the former Commander of the Licensing Investigative Unit, prior to my opting to take early retirement from the NSW Police Service in March 1989.

Detective Sergeant R C Clark and former Detective Sergeant P I Vincent, were members of the Unit which was specially set up with the personal approval of former Commissioner Avery. Along with such detectives and others, I have been the subject of complaints by Mr Ainsworth to the Ombudsman and other persons of authority, either directly or by use of agents, such as politicians, political lobbyists and over the past few years, former Deputy Commissioner, Mr John Perrin, who was engaged by Ainsworth as a legal consultant.

I have not been found wanting in respect of the complaints.

On the 7th May, 1993, I received the decision of Mr Pinnock, Deputy Ombudsman wherein he has cleared me in connection with his recently concluded Section 19 Inquiry which touched on a number of the Ainsworth complaints.

I draw to your attention that Mr Ainsworth has two civil actions lying in office at the Supreme Court of NSW (one for undisclosed damages), having been lodged in late 1991, involving a number of Police, ex-Police and others, including the State of N S Wales, relative to the outcome of the Section 19 Inquiry. Process has not been issued to date, but is very much a likelihood in light of comments made by Mr Ainsworth during recent media interviews.

Towards the latter part of 1992 I attended the Common Law Division of the Supreme Court of NSW, and gave evidence in support of former Sergeant Lionel Hanrahan in a "re-trial" of civil proceedings of "defamation" and "abuse of legal process" instituted against Mr Ainsworth by Mr Hanrahan at his own expense. A number of distinguished persons gave similar support including the Commissioner, Mr A Lauer, former Commissioner, Mr C Abbott and Mr John Hatton, Independent Member of Parliament.

Mr David Landa, the Ombudsman attended for Mr Ainsworth, and made certain admissions.

During the course of the trial, the presiding Judge, Mr Justice Allen created a precedent by making certain remarks to the parties involved which resulted in the early conclusion of the trial, thus being resolved by substantial financial favour of Mr Hanrahan - terms not disclosed.

As the former Commander of the Licensing Investigative Unit, I found it quite extraordinary that the said proceedings, involving the most high profile person to be involved in poker machines in the country, was not monitored, and further that no effort has apparently been made to approach Mr Hanrahan for permission to obtain a transcript of the evidence given by Messrs Ainsworth and Landa, and exhibits, for detailed analysis, as to raising the question of Mr Ainsworth's suitability to continue to be involved in the management of the licensed company, Ainsworth Nominees Pty Ltd and to have a financial interest therein.

No effort has apparently been made by the Licensing Investigative Unit personnel to ascertain the outcome of such proceedings and revelations contained in the evidence.

A number of serious issues arose during the trial which, in my opinion; would call for the issue of show cause process in the Licensing Court of N S Wales.

Mr Hanrahan was legally represented by Mr Clive Evatt, assisted by Ms J Gibson instructed by Massellos & Co, Solicitors.

It might be noted that Mr Ainsworth was successful in having his company licensed as an approved amusement device dealer in contentious circumstances. Evidence forthcoming in the Hanrahan proceedings would have dramatically affected such licensing decision.

I am now aware that Mr John Hatton has raised the issue of Mr Ainsworth's suitability to be involved in the licensed company, in Parliament.

However, it is my belief that no attempt has been made by the Licensing Investigative Unit to pursue the matter.

I submit that one of the prime functions of the Unit is to investigate any suggestion of wrong doing on the part of a licensee in the regulated poker machine gaming industry, whether an individual person or body corporate. Such function is in keeping with the views of the government of the day when introducing the relevant amending legislation (documented at the Unit Office).

The Unit was in fact well aware of the trial and importance attaching thereto, yet they have apparently deliberately chosen, or been directed, to avoid it.

In addition, there are the following aspects which warrant investigation:-

a. The evidence of an alleged bribe given by Mr E P Vibert (charged with Mr Ainsworth in early eighties) in his bankruptcy hearing.
b. Oral evidence given by Mr Ainsworth to the Queensland Parliamentary Justices Committee on 24th May, 1991 and written material supplied thereto.

c. The unauthorised supply of confidential police documents to former Deputy Commissioner John Perrin as evidenced in the Summary of Evidence prepared by Mr Pinnock.

In any analysis of the material involved, consideration would need to be given to a comparison of data contained in the following:-

a. The report of Mr G Masterman, Q.C., former Ombudsman, in October, 1986, following his investigation into a number of the earlier complaints made by Ainsworth ... and Vibert, (which also involved Mr Perrin)
b. The various reports made to Parliament 1984-6 by Mr Masterman.
c. The role of Mr John Perrin in the 1986 matter, his appointment with the Ainsworth Coy as a legal consultant and subsequent activities, especially in light of I.C.A.C. concern on this type of employment arrangement (See attached extract page 12 ICAC report March 1)
d. The evidence of Mr Ainsworth in the Licensing Court hearings.
e. The report of the Queensland Criminal Justices Commission relating to poker machines.
f. The Summary of Evidence produced by Mr Pinnock on completion of the latest Section 19 Inquiry.
g. Comments of various Judges in associated hearings.

The question of course arises as to whether or not the failure of the Unit, if it be so, to pursue these inquiries to date, constitutes a degree of neglect of duty.

In such regard, I wish to stress that his letter is not intended as a complaint, but merely as an advice as to the position as I see it, for your consideration on the action deemed necessary.

9 The letter concluded “Yours faithfully, L.J. Burden”.

10 The next document in date order that went into evidence is a letter dated 12 July 1993, written on the letterhead of NSW Police Service State Licensing Investigation Command, Gaming Appraisals Unit, addressed to Gaming Control Board Investigation Division, 1150E. William Street, Carson City, Nevada, 89710 and marked for the attention of Keith Copher, and signed by Sergeant Murray Osborne, a senior investigator of the Gaming Appraisal Unit. The body of the letter was relevantly as follows:

I am seeking your assistance with regard to a current investigation being conducted by our office concerning the question of suitability of Mr Len AINSWORTH to be associated with the exercise his company's poker machine and amusement device dealer's licences in the state of New South Wales, Australia.

I understand that Mr Ainsworth made application to the Gaming Control Board, in 1986, to withdrawn an application, previously lodged by the AINSWORTH Group of Companies, for a slot machine licence in Nevada. In this regard I am desirous of obtaining a copy of the withdrawal papers and any other documents or reports held by your office relating to all such dealings, with the Company or Mr Ainsworth, in this particular matter.

Perhaps you might advise if the documents can be supplied this office and to whom should I direct my request. I am aware that such documents may be subject to privilege and if this is the case, please advise as to what extent this applies.

Recently it was brought to my attention that there are criminal matters pending against the Ainsworth Group of Companies in Nevada. This office is not aware of these proceedings. I would appreciate it if you could confirm this and, in the event that this information is correct, could you please supply full details of the matter/s and the current situation concerning same. I understand that this information may also be subject to privilege. Perhaps you might also advise in this regard.

The information will be of assistance should proceedings being instituted against Mr Ainsworth at the Licensing Court of New South Wales, Sydney. Such action will be subject to suitable advising by our Legal Office.

Keith, I appreciate your assistance in these matters and await your reply.

11 There was also in evidence a transcript dated 28 July 1993 of proceedings before the Nevada Gaming Commission, when the Chairman referred to new information delivered to the Commission which necessitated that the matter be referred back for further investigation.

12 Next, there is in evidence a record dated 5 August 1993 of an interview of the respondent by Sergeant Osborne, in which Sergeant Osborne seeks and is given some amplification of matters referred to in the letter of 4 June 1993.

13 The next document in date order in evidence is a document dated 6 August 1993, signed by W. Allen, who is described as Commander 53900 State Licensing Investigation Command. That document was as follows:

Questions asked in Parliament by Mr Hatton M.P. and letter of complaint received from Mr L Burden seeking a review of gaming machine licenses held by Ainsworth Nominees Pty Ltd.

BACKGROUND
On the 21 June, 1993 the attached submission initiated by Detective Inspector Richardson was received at this office together with a letter of complaint from former Inspector L Burden. (TAB 1). Whilst Mr Burden complained about many issues relating to Mr Len Ainsworth and the Licensed Gaming Investigation Section, Inspector Richardson made the recommendation an Officer from this Command be assigned the task of examining relevant evidence to determine if there were any grounds to review the licenses held by Ainsworths companies.

Sergeant M Osborne of the newly created Gaming Appraisal Unit was given this Task and commenced inquiries. Sergeant Osborne and myself attended Internal Affairs where we spoke with Inspector Richardson seeking the information which had prompted him to answer ‘YES’ to Question LA962 asked by Mr Hatton. This was seen to be a starting point for a very complex and protracted investigation. Inquiries are continuing in this regard.

Sergeant Osborne has interviewed Mr Burden who was unable to be specific in his allegations but generally outlined complaints which extend back to 1982. Many of these issues have been investigated before by Internal Affairs, the Ombudsman and raised in other various Court proceedings.

On 12 July 1993, Sergeant Osborne faxed the Nevada Gaming Control Board seeking information stemming from the complaint of Mr Burden and other matters which had been brought to our attention by him. (TAB 2). Coincidently, the Ainsworth group of companies had an application before the Nevada Gaming Control Board for a license to operate in that State which was listed for a final decision by the Gaming Commission on 28 July, 1993. I am informed now the matter has been put on hold because of Agents from the Nevada Gaming Control Board producing ‘fresh material' to the Commission on that morning. The inference is that our inquiries prompted the action taken by the Nevada agents.

Mentioned in our fax to Nevada was we believed certain criminal charges were pending against the Ainsworth Group of companies in Nevada. This apparently is totally incorrect as far as Nevada is concerned but could apply to New Jersey. This is yet to be confirmed. (See Fax TAB 3).

On 5 August 1993, Mr Bill Brown, General Counsel for Aristocrat Leisure Industries came to this office and spoke with Inspector Wormleaton and myself. He outlined the series of events which occurred in Nevada and indicated his company were (sic) aware of Mr Hattons (sic) questions in parliament. Mr Brown expressed his concern that any action taken by us which suggested a review of Ainsworths (sic) suitability to hold a license may have a "domino" effect throughout the industry. This will also have an effect on other license applications the company has pending throughout the world.

I have no doubt this would be true. However, Mr Brown was informed our Command was conducting an inquiry in relation to a Question raised in parliament and a written complaint raising similar concerns. It was impressed upon Brown we are making inquiries initially to see if there are sufficient grounds to review the licenses in question.

Mr Brown expressed a wish to assist with any investigation where he could however at this stage that offer was not taken up.

Inquiries are continuing with Sergeant Osborne again interviewing Mr Burden trying to obtain specific areas of complaint and matters that have not already- been investigated.

I have this date been informed that two Nevada Gaming Control Board agents have arrived in Sydney, unannounced from my point of view, and are making inquiries re Ainsworth.

COMMENT
I must preface my comments by saying I do not have a full appreciation of the years of conflict which have taken place between Mr Len Ainsworth, the Police Service and certain ex and serving members of the Service. Suffice to say that I am concerned that various forces might be at work to achieve certain outcomes which have a detrimental effect on one or more of the parties involved in this conflict at the expense of the Police Service.

When one looks at the timing of these issues being raised, and others over the years, the source of inaccurate information and the perceived consequences thereof, I have concerns this Command may be being manipulated. I am extremely conscious of remaining impartial in relation to all matters under investigation and reacting only to matters of FACT.

Whilst my concerns as outlined may be found to be ‘unfounded’, currently they are real and the preparation of this report is not a matter I have taken lightly.

RECOMMENDATION
This submission is provided for the information of Commander Task Force Group and Operations Support.

The submission initiated by Detective Inspector Richardson, referred to as having been received on 21 June 1993, was not in evidence; and apparently was not made available to the appellant.

14 There was evidence of further steps then occurring in relation to the Nevada application. In about August 1993 there was an occasion, possibly two occasions, when Nevada authorities arrived unannounced in Sydney and asked the appellant for documents. On 19 August 1993, there was a telephone conference between Nevada authorities and the applicant and his legal adviser. It appears that a major topic of this conference was alleged dealings between the appellant and a Mr. Fullerton and a Mr. Wilner. In this conference, the appellant denied doing business with Mr. Wilner.

15 On 21 September 1993, the appellant attended before the Nevada State Gaming Control Board, and withdrew his application.

16 There is in evidence a report dated 16 February 1994 by Sergeant Osborne relating to “a major part of the matters raised” during the 19 August 1993 interview, principally being the appellant’s association with Mr. Fullerton and Mr. Wilner. Sergeant Osborne in this report reached the conclusion that the appellant had a close association with persons of ill-repute, including Mr. Fullerton and Mr. Wilner; and that it appeared that the appellant had lied to the Nevada authorities in that regard (Blue 197e). However, it was later found in 2001 proceedings in the NSW Licensing Court that, although over the period 1978 and 1987 the appellant had business dealing with Mr. Wilner, his denial in the 19 August 1993 interview was not a deliberate falsehood.

17 On 5 April 1994, Detective Chief Inspector F. Mellis and Detective Senior Constable Paris were directed to investigate the respondent’s allegations. Among other things they made enquiry of Detective Chief Inspector Allen, whose response dated 3 May 1994 included the following:

Some of the issues raised have been subject to prior investigations and raised in various Court Jurisdictions. Irrespective of this, at the time of receiving Mr. Burdens complaint enquiries were commenced immediately to ascertain if there were any grounds to action Ainsworth’s licence. I appointed Sergeant Murray Osborne to conduct preliminary enquiries and I oversaw his actions. These enquiries have not as yet been completed.

18 Detective Chief Inspector Mellis produced a report dated 3 June 1994. That report included the following passages:

CIVIL ACTION TAKEN AGAINST AINSWORTH NOMINEES BY THE DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF GAMING ENFORCEMENT, TRENTON, NEW JERSEY, U.S.A.
72. On the 12 July, 1993, Sergeant Osborne, Senior Investigator at the Gaming Appraisal Unit, State Licensing Investigation Command, forwarded a report to the Department of Law and Public Safety Division of Gaming Enforcement, Trenton, New Jersey for the attention of Mr. Bob Barsony. The report is now Attachment 'G'. The complaint has been laid against Ainsworth Incorporated, Charlie Dean, Lyndon Payne and Sheldon Hibargeer as a result of a number of salespersons in America entering into a business deal with a casino in the Caribbean which is contrary to the New Jersey Gaming Rules. The matter is still pending. The Ainsworth Nominees employees have been dismissed due to their actions.

73. In my opinion unless other information comes to hand from the New Jersey authorities, it is a long way removed from Mr. Ainsworth who would have little or no control of this type of action by his employees in America. I have spoken to Inspector Wormleaton, Acting Commander, State Licensing Investigation Command who stated this information is insufficient to consider Mr. Ainsworth's suitability to continue to hold a licence. At this time I do not intend to make any further inquiries.
...

NEVADA GAMING CONTROL BOARD, INVESTIGATION DIVISION:
91. On the 12 July, 1993, Sergeant Osborne, Senior Investigator at the Gaming Appraisal Unit, State Licensing Investigation Command, forwarded a report to the Gaming Control Board, Investigation Division, Carson City, Nevada, USA for the attention of Mr. Keith Copher. In the report he states,

"Recently it was brought to my attention that there are criminal matters pending against the Ainsworth Group of Companies in Nevada."

92. However in a report dated 6 August, 1993, submitted by Detective Chief Inspector W. AIlen, Commander, State Licensing Investigation Command, which is now Attachment 'M' on page 1, last paragraph, he states,

"Mentioned in our fax to Nevada was, we believe, certain criminal charges were pending against the Ainsworth Group of Companies in Nevada. This apparently is totally incorrect as far as Nevada is concerned, it could apply in New Jersey. This is yet to be confirmed."

93. On the 16 February, 1994, Sergeant Osborne submitted a 6 page report concerning his investigation into Aristocrat Leisure Industries Pty. Ltd. Nevada Withdrawal Issue. That report is Attachment 'N' concerning an application by the Aristocrat Leisure Industries Pty. Ltd. previously known as Ainsworth Nominees Pty. Ltd. when they applied for a Manufacturers and Distributors Licence in Nevada, U.S.A. On the 21 September, 1993, Mr. Ainsworth requested withdrawal of all applications from the Nevada Gaming Licences. The Gaming Board agreed to accept the withdrawals but was prejudiced against Mr. Ainsworth and without prejudice to the rest of the individual applicants mainly the Ainsworth family members. The prejudice prohibits Mr. Ainsworth or the relevant companies from applying for a licence in Nevada for a period of 12 months.

94. The report speaks about a former employee of Mr. Ainsworth's named Graeme Fullerton. Fullerton was employed by the company between 1979 and 1986. It transpires that Fullerton had a criminal record dating from 1960 to 1967. It also discusses Mr. Ainsworth's association with Americans involved in "the gaming business in a similar business to that of Mr. Ainsworth. Those men are Lou WILNER, who is the owner of Willow Enterprises, Jerry ROTHBARD and Myron SUGERMAN. It is apparent according to the Sergeant's report that Mr. Ainsworth had an association with persons of ill repute which mainly occurred during the late 1970's.

95. On page 6 of the Sergeant's report he states, "If Mr. Ainsworth or any of his companies are still associated with Wilner or Sugerman, there is no evidence at hand to indicate such. It is reasonable to expect that if such associations still existed, clandestine arrangements would be in place to ensure that the association did not come under notice."

96. On the 9 March, 1994, Inspector Wormleaton, Acting Commander, State Licensing Investigation Command, commenting on the report submitted by Sergeant Osborne as to the application to the Nevada Gaming Control Board. Inspector Wormleaton states,

"I am of the opinion that the information contained within this file in isolation would not be sufficient to commence disciplinary proceedings against a Poker Machine or Approved Amusement Device Licences held by the subject company." Attachment 'O'.

97. I have read the reports submitted by Sergeant Osborne and I also agree with that given by Inspector Wormleaton that this is not sufficient to imply that Mr. Ainsworth is not a 'fit and proper' person to continue to hold a licence.

19 The letter to New Jersey referred to in par.[72] is not in evidence, and apparently not made available to the appellant. I have already referred to the documents mentioned in pars.[91], [92] and [93].

20 In oral evidence before the jury, the appellant asserted to the effect that allegations in the respondent’s letter were matters that had “all been heard before”.

21 There was other evidence in the case, but the matters set out above (together with the evidence referred to in point [7] of Mr. Stitt’s submissions) are the most significant in relation to the question in issue on this appeal.

SUBMISSIONS

22 Mr. Stitt QC for the appellant submitted that the test for determining whether a jury verdict in a civil trial should be set aside was that intervention was warranted where it was determined that the verdict was one that no reasonable jury could reach: John Fairfax Publications Pty. Ltd. v. Rivkin [2003] HCA 50; (2003) 77 ALJR 1657.

23 In order to make out a defence under s.13 of the Defamation Act, the onus was on the respondent to establish “that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm”. This directs attention to the circumstances of the publication itself, not to the plaintiff’s prior reputation or to the whole of the circumstances; and it directs attention to what is likely, not to what actually happens. Mr. Stitt referred to Morosi v. Mirror Newspapers Ltd. [1977] 2 NSWLR 749; Chappell v. Mirror Newspapers Ltd. (1984) Aust Torts Reports 80-691; King & Mergen Holdings Pty. Ltd. v. McKenzie (1991) 24 NSWLR 305 and Jones v. Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614.

24 Mr. Stitt submitted that the following were the relevant circumstances of the publication:

(1) The recipient was the Minister for Police, a person most likely to act upon statements or assertions in such a letter.
(2) The letter was written to him in his official capacity, he being a person with power to investigate the serious allegations in the letter.
(3) The respondent wrote the letter in the capacity of a “former Commander of the Licensing Investigation Unit”, thus using his former title, position, prominence, and participation in the special unit with the responsibility of investigation of licensing matters, to give weight to his assertions.
(4) The letter contained serious allegations against the appellant, namely that he was not a fit and proper person to be involved in the management of a company licensed in relation to poker machines, in circumstances where the question of fitness was at the heart of the regulatory regime.
(5) The letter was expressed as an advice to the Minister that he should act further in respect of these matters.
(6) The letter was sent just a couple of weeks before the finalisation of the appellant’s application in Las Vegas.
(7) There was evidence before the Court of a high degree of co-operation between regulatory regimes for poker machine licensing in different States and overseas countries, this being well-known in the industry, given by ALI’s in-house Counsel, a former partner of Mallesons.
(8) Any person with knowledge of or operating in the gaming industry would know that there was this networking and inter-relation between one regulatory authority and another.
(9) In fact, as a result of the letter, there was communication between New South Wales and Nevada, which ultimately led to the withdrawal of the appellant’s application: although actual consequences are not the test for s.13, they can shed light on what was in fact likely.

25 Having regard to these circumstances of the publication, Mr. Stitt submitted, a reasonable jury could not have concluded that the circumstances of publication were such that the appellant was not likely to suffer harm from the publication of a letter containing the serious defamatory imputations found by the jury.

DECISION

26 In my opinion, in addition to the circumstances referred to by Mr. Stitt, the following inferences were available on the evidence as to the circumstances of the publication:

(1) Having received the question from Mr. Hatton in Parliament, the Minister for Police acting responsibly would promptly have instituted investigations into the subject of the question.
(2) Accordingly, such investigations, probably by Detective Inspector Richardson, commenced not long after 24 April 1993, and accordingly were well under way by the time of the respondent’s letter of 4 June 1993.
(3) The respondent was not asked to give further information in connection with his letter until 5 August 1993, so that Detective Inspector Richardson’s submission dated 21 June 1993 (not in evidence) was based more on his other enquiries than on the respondent’s letter of 4 June 1993; and these inquiries produced information prompting Inspector Richardson to answer Mr. Hatton’s question “Yes” (see third paragraph of W. Allen’s document of 6 August 1993).
(4) Sergeant’s Osborne’s two letters of 12 July 1993, respectively alleging criminal proceedings in New Jersey and Nevada, were not based on the respondent’s letter or any information from the respondent, but from information coming from somewhere else, possibly from Inspector Richardson’s enquiries.
(5) Neither the respondent’s letter nor his interview on 5 August referred to Mr. Fullerton or Mr. Wilner, so that the interest of the Nevada gaming authorities in those persons was not derived from the respondent’s letter but from some other circumstances independent of the respondent’s letter.
(6) Thus, at the time the respondent sent his letter, there was already an enquiry under way as a result of Mr. Hatton’s question; and matters of concern to the Nevada authorities (the existence of an enquiry, alleged criminal matters in New Jersey and Nevada, and the appellant’s association with Mr. Fullerton and Mr. Wilner) were not raised as a result of the respondent’s letter, but rather emerged from other circumstances existing at around the same time.

27 It does not appear that those propositions were put in just those terms to the jury. However, in my opinion the possibility of those inferences does show that it was open to the jury to reason that an enquiry into the appellant’s fitness had already been instituted by the Minister for Police at the time the respondent sent his letter to the Minister; the letter itself did not allege criminality or dishonesty, but its thrust was to assert there should be an enquiry; matters raised in the letter had all been heard before; since the publication was to the Minister, the only likelihood of harm was through either initiating or adding fuel to an enquiry; because the enquiry was already under way and because the matters that actually caused concern to Nevada arose from circumstances independently of the letter, the letter did not either initiate or add fuel to the enquiry; and therefore the circumstances of publication were such that it was not likely to cause harm.

28 In my opinion, there would be nothing in that line of reasoning inconsistent with the cases relied on by the appellant; and the availability of that line of reasoning is enough to preclude this Court from concluding that no reasonable jury could make the finding under challenge.

CONCLUSION

29 For those reasons, in my opinion the appeal should be dismissed. In those circumstances, the respondent has indicated it would not proceed with the cross-appeal, and neither party took objection to the proposition put to them by the Court that, in those circumstances, the appropriate orders were as follows:

1. Appeal dismissed with costs.
2. Cross-appeal dismissed, with each party to bear its own costs to the extent that the overall costs of the appeal and cross-appeal have been increased by the bringing of the cross-appeal.

30 BRYSON JA: I agree with Hodgson JA.

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LAST UPDATED: 24/07/2006