FOI related defamation case still before the courts 10 years on!

The Australian Financial Review 11-12 February has a long article “The revenge of Len Ainsworth” which details action taken by Mr. Ainsworth over the last 25 years in pursuing NSW Police through the courts. Mr. Ainsworth, an 82 year old billionaire poker machine pioneer, has filed 420 complaints with the NSW Ombudsman and launched innumerable legal actions, arising from what he claims to be a deliberate attempt by members of the NSW Licensing Branch to discredit him and to shut him out of the lucrative US poker machine market.

The article says that his current and last legal battle is a defamation action commenced in 1996 against a former police officer Leslie Burden arising from a letter written by Mr. Burden to the then Police Commissioner in 1993. The letter was released to Mr. Ainsworth after an FOI request. He alleges it contained defamatory matter. After several decisions and appeals the case is still before the NSW Court of Appeal. The decision under appeal was that a defamation occurred but no damage resulted.

One of the earlier cases, Ainsworth v Burden (2003) NSWCA 90 involved consideration of Section 64 of the NSW FOI Act and whether, as a result of release of the letter under the FOI Act, Mr. Burden had an absolute defence against any action for defamation. The NSW Court of Appeal decided that Section 64 only provides a defence for any defamation that may have occurred in releasing the document. It provides no protection against any action for defamation that might have occurred in writing and sending a letter to the minister.

This appears to be the only case in which there has been consideration of the protection available in Section 64 of the Act.