Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu - [2002] NSWSC 86

No judgment structure available for this case.

CITATION: Griffith v Australian Broadcasting Corporation [2002] NSWSC 86

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20300/01

HEARING DATE(S): 6th - 8th November 2001

JUDGMENT DATE: 28 February 2002

PARTIES :

Jeremy Norman GRIFFITH & Ors
AUSTRALIAN BROADCASTING CORPORATION & Ors

JUDGMENT OF: Simpson J

COUNSEL : KP Smark (Plaintiffs)
BW Walker SC with R Glasson (1st, 2nd, 6th Defendants)
DA Caspersonn (3rd Defendant)

SOLICITORS: Schweizer & Company (Plaintiffs)
Judith Walker, ABC - for 1st, 2nd, and 6th Defendants
Phillips Fox - for 3rd Defendant
4th & 5th Defendants - (Rosemary Whelan and Howard Whelan) in person

CATCHWORDS: defamation - pleadings - imputations

LEGISLATION CITED: Limitation Act (1950) (NZ)
Defamation Act (1992) (NZ)

CASES CITED: Singleton v John Fairfax and Sons Ltd (unreported, 20 February 1980)
Singleton v Ffrench (1986) 5 NSWLR 425
Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
David Syme, and Co v Canavan (1918) 25 CLR 234
McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485
Phillips v Eyre (1870) LR 6QB 1
McKain v R. W. Miller and Co (SA) Pty Ltd (1991) 174 CLR 1
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
Regie National Des Usines Renalut SA v Fuzu Zhang [HCA - reserved]

DECISION: Challenges to various imputations determined.

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

SIMPSON J

28 February 2002

Jeremy Norman GRIFFITH & Ors

v

AUSTRALIAN BROADCASTING CORPORATION & Ors.

JUDGMENT

1 SIMPSON J: By statement of claim filed on 6 April 2001 each of the ten plaintiffs claims to have been defamed by one or more of the six named defendants. Collectively they complained of no less than eighteen separate publications, although not each plaintiff sued on each publication, and not each defendant was alleged to be liable for each publication. As well as causes of action in defamation, the plaintiffs pleaded the torts of deceit and injurious falsehood.

2 An amended statement of claim was filed on 8 June 2001. The number of publications sued upon was reduced to twelve, all alleged to have been during 1995.

3 The defendants have raised various challenges to the pleading as it is contained in the amended statement of claim. The present proceeding is a separate trial, pursuant to SCR Pt 31 r 2, of those challenges.

4 In broad terms, each publication concerns the same general subject matter: that is, the conduct of the first and second plaintiffs, Jeremy Norman Griffith and the Foundation for Humanity’s Adulthood (said to be a company limited by guarantee). Again in the broadest of terms, and simply to provide an appreciation of the nature of the subject matter, the publications are to the effect that Jeremy Griffith and the Foundation for Humanity’s Adulthood promote a particular philosophy, which they direct predominantly to intelligent and educated young men and women; that the philosophy demands a significant degree of loyalty and commitment from its adherents; and that Jeremy Griffith is presented (by himself and others) as “a prophet”. The third to eighth named plaintiffs are identified as followers of Jeremy Griffith and adherents to the Foundation for Humanity’s Adulthood. It is fair to say that (in varying degrees) disapproval and criticism of individual plaintiffs and of the Foundation can be discerned in each of the publications.

5 The central publication is that described as the fourth matter complained of. That was a documentary telecast on a well known and serious television programme shown on a television channel, the property of the first defendant, the Australian Broadcasting Corporation. I am prepared to note (without specific evidence) that the programme is a current affairs one. The documentary was lengthy – more than half an hour – and detailed. It amounted to an examination of the philosophies and behaviour of Jeremy Griffith and the Foundation, and their involvement with families and young people.

the statement of claim

6 In paragraphs 2 – 8 inclusive of the statement of claim various facts are asserted about some of the parties. For example, Griffith is described as a member and director of the Foundation, a biologist and an author; Timothy John McCartney-Snape (the third plaintiff) as a noted Australian mountaineer, a recipient of the medal of the Order of Australia for his services to mountaineering, and later again for his services to mountaineering and international relations, and as a director and member of the Foundation. The Foundation is described as a company limited by guarantee entitled to sue in its own name, and as holding an authority to raise funds for charitable purposes, and a non-profit organisation dedicated to developing and promoting biological understanding of the human condition. The other individual plaintiffs are identified as members of the Foundation for Humanity’s Adulthood (and by their gender). David Millikan (the second defendant) is described as a Doctor of Theology, an ordained minister of the Uniting Church of Australia and a journalist; Lewis Robins (the third defendant) as a Doctor of Theology, an ordained minister of the Presbyterian Church of Australia, and Minister of St Luke’s Presbyterian Church in Roseville (in Sydney).

7 Paragraph 9 is in the following terms:

“In this statement of claim, where it is alleged that a particular publication is made of and concerning the plaintiffs, that allegation is made in relation to those plaintiffs of whom it is subsequently alleged that defamatory imputations have been conveyed by the publication in question.”

8 In paragraphs 10 to 75 inclusive complaints are made of the twelve different publications. Each publication is attributed to one or more of the defendants, and each is said to have defamed one or more of the plaintiffs. Imputations (numbering in all more than 100) defamatory of the various plaintiffs are said to have been conveyed.

9 In paragraph 76 it is alleged that the plaintiffs, individually, have suffered various kinds of damage as a consequence of the publications.

10 In paragraphs 77 – 109 inclusive a claim in deceit is pleaded against David Millikan and the ABC. In paragraph 110 it is alleged that the plaintiffs have suffered loss as a consequence of their reliance upon the asserted acts of deceit. In paragraphs 111 to 113 a claim of injurious falsehood is pleaded against Millikan and the ABC and in paragraph 114 the plaintiffs claim to have suffered loss and damage as a consequence of that injurious falsehood.

11 In paragraph 115 the plaintiffs claim various kinds of damages and other remedies.

. . .

12 In response to this extensive and complex statement of claim the defendants have made a series of challenges. The objections are as numerous and varied as the plaintiffs’ claims and the imputations they allege have been conveyed. In referring to the numerous imputations, I will adopt the numbering system of the statement of claim. At times during the hearing the first and second, and fourth to sixth defendants were referred to as “the ABC defendants”, terminology that I shall adopt. The third defendant, Lewis Robins, was separately represented.

13 It will be necessary to take some time to outline the nature and content of the various publications of which complaint is made. This is best done chronologically, following the course adopted in the statement of claim. In relation to each I will then deal with the challenges to the imputations pleaded. In many cases imputations pleaded identically are said to arise from quite different publications. Where the challenge is as to the form of the imputation the same result will follow in each case. Where the challenge is as to the capacity of the matter complained of to convey imputation, individual considerations will obviously arise. For the purpose of this separate trial only, I assume in each case publication as pleaded in the statement of claim. I further assume certain other non-contentious facts as pleaded in the statement of claim, concerning, for example, the occupations or positions of the various parties. Given the number of parties, and the variety of publications, confusion will be avoided by referring to the individual parties by their surnames, and to the corporate parties (the Foundation for Humanity’s Adulthood, and the Australian Broadcasting Corporation) as, respectively, “the Foundation” or “the FHA”, and “the ABC”.

. . .

14 The first challenge to the statement of claim, made on behalf of the ABC defendants and Robins, is as to certain paragraphs which, it is contended, plead immaterial facts to which the defendants ought not be required to plead. These are the paragraphs in which facts concerning the personal circumstances and position of the various parties are asserted – for example, that McCartney-Snape was twice awarded the Order of Australia and that Millikan is an ordained Minister of the Uniting Church of Australia.

15 Counsel relied upon the decision of David Hunt J (as he then was) in Singleton v John Fairfax and Sons Ltd (unreported, 20 February 1980) as authority for the proposition that these paragraphs, asserting non-material facts, are embarrassing for the defendants to plead to. Hunt J said:

“It is quite usual in a statement of claim in defamation for the plaintiff to identify the parties to the action by way of their occupations (if material) and their relationship to each other (if any, and material): … but … these preliminary averments should be as short and concise as possible, and care should be taken to avoid a long rigmarole which may not only be quite unnecessary and irrelevant but also positively embarrassing.”

16 His Honour accepted an argument from the defendant that the pleading of immaterial facts placed it in a dilemma in that it was forced to choose whether to plead to immaterial facts, thereby possibly raising immaterial issues, or alternatively taking the risk that, by its silence, it was taken to have admitted facts later held to be relevant.

17 On behalf of the plaintiff in the present case it was conceded that:

“none of the matters alleged would, by reason of the pleading, come before the jury ultimately empanelled …”

18 It is, in my view, inappropriate to plead in a statement of claim matters that do no more than anticipate a possible defence, or that are, properly characterised, no more than particularisation of a damages claim. The plaintiffs have not sought to differentiate between these paragraphs: that is, they have not sought individually to defend any of these paragraphs or to treat any as different from others. They have, it seems, accepted that the same principles govern the challenge in each case, and that the challenge will succeed in each case or fail in each case.

19 I accept the defendants’ arguments. Paragraphs 2, 3(b) and (c), 4, 5 and 7 will be struck out.

20 Paragraph 9, which has been set out above, is however, in a different category. The explanation for this paragraph is to be found in the subsequent pleadings. When the statement of claim alleges publication of the various items complained of, it is typically in terms such as:

the plaintiffs

21 As mentioned, not every publication is said to be of and concerning every plaintiff. The paragraphs introducing the publications do not identify which plaintiffs claim to have been defamed by each publication although they do identify the defendants alleged to be liable for the publications. In subsequent paragraphs imputations said to be defamatory of individual plaintiffs are pleaded. Paragraph 9 of the statement of claim merely clarifies that the reference to “the plaintiffs” in the introduction to the paragraph in each case, is not intended as an assertion that every plaintiff was defamed by the publication mentioned. It is designed to relieve the pleader of the burden of naming each plaintiff who sues on the individual publication, to make the statement of claim less cumbersome for both pleader and reader, and to abbreviate, as far as possible, an already lengthy document. I can see no possible detriment to the defendants in this manner of pleading. I decline to strike out paragraph 9.

the first matter complained of

22 The first matter complained of was a broadcast on ABC regional radio on 13 April 1995. Griffith and the Foundation have sued the ABC and Millikan on this publication. A journalist, Jackie Bowmer, interviewed Millikan. Ms Bowmer introduced the general subject matter by mentioning Griffith and the Foundation and also McCartney-Snape. To the audience she introduced Millikan as a former head of ABC Religious Affairs, a “reverend doctor”, a Uniting Church minister, and an expert on new religion, religious movements, cults and sects. She asked Millikan to tell the audience something about the Foundation, saying that a similar request to Griffith had not been very productive.

23 Millikan said that the Foundation was an organisation set up about four to five years previously, having among its directors Griffith and McCartney-Snape. He described Griffith as “the leading light” behind the Foundation, which was set up “as a vehicle to propagate his understandings and his philosophies to the world”. He said Griffith considered himself to be “a prophet” and so described himself; that Griffith believed that he had “actually solved the riddle of life itself” and had “addressed the human condition in a way that philosophies and religions have been unable to through the ages”. Ms Bowmer remarked that Griffith was beginning to sound like a cult leader, to which Millikan replied:

“Well look he’s a fellow who is absolutely convinced that what he is saying is true. And one of the things, he says himself that, for example, he considers himself to be a greater figure than Jesus Christ and even on one occasion when I was talking to him, he said to me you know Jesus Christ said that there was going to be one who would come after him who would speak the truth plainly and he believes that’s him. I mean Christians believe that’s the Holy Spirit so in a way what he’s saying is that he is, he performs the role of the Holy Spirit in contemporary society. So it’s a fairly, it’s hubris on a large scale if I might say.”

24 Asked by Ms Bowmer if he thought Griffith might be “dangerous”, Millikan answered:

“Well I can’t say that because it, I think it or he is making claims that should give us reason to pause.”

25 Millikan said that Griffith was:

“surrounded by parents and families who are really quite distressed”,

26 Millikan outlined a philosophy that he attributed to Griffith as follows:

“Well let me tell you, let me tell you what he is actually saying. He believes that he has, he has this, his system is a sort of semi biology theology sort of new age sort of system. He reckons that he, that two million years ago, when people became intellectually self-aware, that they ceased being animals, that a conflict developed within human beings and he has an understanding that of that which no one else has you see and he asks people to join him and to, and this is where the problem lies. If in fact what he was doing was simply putting information out there and saying look here it is well I’ll, I’ve come to this sort of understanding and believe it or not, but he has a peculiar interest in drawing people close to himself, and he sees it as essential that people develop an extraordinary loyalty to him and quite often feel, people feel themselves torn between what he calls the old world and the new world, and a sort of a, people feel that they are pitted against their families and in some of the recent newsletters that Jeremy Griffith has put out he’s beginning to sort of he’s beginning to demonise the parents a bit and say look don’t allow any of your tapes and newsletters to be lying around, your parents are not going to understand any of this sort of material, and that’s the that’s the sort of thing that he’s been saying.”

27 Millikan referred to a television documentary he had made, which was scheduled shortly after the interview to be telecast on the ABC television programme “Four Corners” (the fourth matter complained of). He said again that some parents were very upset, feeling that Griffith had been responsible for tearing their families apart. He cautioned that young people considering participating in any introductory or preliminary events conducted by the Foundation should consider very carefully what they were getting into, because the pressure that developed could be enormous, they could become swept along and become caught up in something they might later regret.

the imputations pleaded in paragraph 11

28 By paragraphs 11 and 12 of the statement of claim respectively Griffith and the Foundation claim to have been defamed by both the ABC and Millikan during the course of this broadcast. Griffith asserts that the publication conveyed the following imputations defamatory of him:

29 The Foundation asserts that the broadcast conveyed the following imputations defamatory of it:

the challenges to the imputations

imputations 11(a) and 11(b)

30 The first challenges concern the imputations numbered 11(a) and (b). There were a number of such challenges.

Singleton v Ffrench

Amalgamated Television Services v Marsden

31 I accept that, if it is correct that either imputation is ambiguous, it should be struck out. I do not, however, accept, in this case, that either imputation is ambiguous. The argument advanced was that the phrase “so deluded” is capable of suggesting either that Griffith is deluded because he claims to be greater than Jesus Christ (in imputation 11(a)) or to perform the role of the Holy Spirit (imputation 11(b)); or, alternatively, that he is deluded for some other reason and coincidentally makes the relevant claim.

32 In my opinion the meaning of each imputation is quite clear. Each contains within it the clear suggestion of a causal connection between the claim Griffith allegedly makes and the delusional state attributed to him. He is said to be “so deluded” that he makes a claim that, by implication, demonstrates the delusional state. I will not strike out either imputation for this reason.

33 That, however, does not dispose of these imputations. A further argument was that each imputation contained within it an un-stated premise which is false; and that, as a consequence, the meaning of the imputation itself is unclear, making it impossible for a jury to determine whether it was or was not conveyed by the matter complained of. In the case of imputation 11(a), the asserted unstated premise is that there is, objectively speaking, no greater figure than Jesus Christ, and that this is a truth so universally acknowledged as to make its contrary untenable and ludicrous. Accordingly, unless this premise is demonstrably correct, the imputation is logically flawed. The final part of the argument is that the premise is not, and cannot be shown to be, factually correct. After much deliberation, I have concluded that this argument should not be accepted. Its fallacy is to treat the reference to a figure greater than Jesus Christ too literally. The drafting of imputations is a difficult and sometimes complex matter, and it is not always easy to capture in words the message that a complained of publication conveys. A draftsperson may, on occasions, achieve that by the use of colloquial language. I appreciate that considerable care needs to be taken with the use of colloquial language in the drafting of imputations, but I do not consider that it is entirely forbidden. That is, in effect, what I think has been done here. I do not think the draftsperson intended that it should be assumed that to every ordinary reasonable reader it is axiomatic and factually incontrovertible that there is no greater figure than Jesus Christ (this in itself presupposes the existence of “Jesus Christ”: a belief which is fundamental to many individuals, anathema to others, and immaterial to yet others;) in fact what the draftsperson has done is to use a figure of speech which is so well known as to have its own clear meaning. A claim to be greater than Jesus Christ might be made in a variety of ways: it might be made earnestly; it might be made flamboyantly; it might be made ironically. To say of a person that he or she claims to be “greater than Jesus Christ” is to say of that person that he or she is of overweening ego; to say that such a person genuinely believes that he or she “is greater than Jesus Christ” is tantamount to saying that that person is deluded. That is not because of an acceptance of the existence, or the greatness, of “Jesus Christ”, but because the figure of speech is so well known that the meaning is clear even without literal acceptance of the underlying propositions of fact.

34 During the course of argument I put some of this to Mr Walker SC, who advanced the argument. Initially, I found his response persuasive. The response was, as I understood it, to draw a distinction between using the phrase “greater than Jesus Christ” as a figure of speech, comparable with “the best thing since sliced bead”; and using the phrase literally. Here, he contended, the phrase was not used in a way analogous with a phrase extolling the virtues of sliced bread, but one which was intended to be taken seriously and literally. In that sense, the imputation fails to make clear what it claims was conveyed by the publication.

35 On reflection, however, I do not think the distinction drawn by Mr Walker achieves what he seeks. It is to be remembered that all that is presently in issue is whether the imputation is sufficiently clear so that, if it goes to the jury, the jury will understand its meaning – its only meaning – in such a way as to avoid confusion. I am satisfied that the language is quite plain to an ordinary reasonable reader and to a jury. I will therefore not strike out imputation 11(a) on this ground.

36 The position is different, however, in relation to imputation 11(b). I do not think “the role of the Holy Spirit” commands the same public recognition as the phrase “greater than Jesus Christ”. Indeed, if resort is had to what is contained in the various publications of which complaint is made, an explanation is forthcoming. Millikan explained that Christians believe that Jesus Christ forecast the coming of another who would, in plain words, speak the truth, and that this being would be “the Holy Spirit”. It was from these premises that Millikan deduced that Griffith promoted himself as performing the role of the Holy Spirit. However, at this point of the argument the concern is not with how Millikan arrived at the conclusion that Griffith made such a claim; it is whether the expressions used in the imputation are clear enough to convey the meaning sought to be attributed to them. For this purpose the imputations must be examined in isolation from the matter complained of or any other material or explanation. In my opinion the meaning of imputation 11(b) is obscure and liable to cause confusion. For this reason if for no other, I propose to strike out this imputation.

37 The next argument advanced in relation to these two imputations is that they are not reasonably capable of arising from the first matter complained of. Of course, for the purpose of considering this argument, it is necessary to focus only upon that publication, and exclude reference to any of the other eleven publications the subject of the statement of claim.

38 There are two parts to each of these imputations. One is that Griffith makes the relevant claim – either (i) to be greater than Jesus Christ, or (ii) to perform the role of the Holy Spirit. Each of these is plainly capable of emerging from the matter complained of. Millikan is recorded as saying:

“And one of the things, he says himself, that, for example, he considers himself to be a greater figure than Jesus Christ. And even on one occasion when I was talking to him, he said to me you know Jesus Christ said that there was going to be one who would come after him who would speak the truth plainly and he believes that’s him. … so in a way what he’s saying is that he is, he performs the role of the Holy Spirit in contemporary society.”

39 The other part of each imputation is that the claim arises from delusion, and what must then be asked is whether the matter complained of is capable also of conveying that.

40 This takes me back to something I said earlier: that a claim to be “greater than Jesus Christ” might be made flamboyantly, or ironically. But that is not this case. What is attributed to Griffith is a serious, literal claim of greatness of the relevant kind. In my view those passages are capable of conveying to the ordinary reasonable reader the imputation that the claim was made as a result of a delusional state. That is because to say that a person seriously and literally makes a claim to being greater than Jesus Christ is (almost axiomatically) to attribute a delusional state to that person.

41 I will not strike out either imputation on the basis that the publication lacks the capacity to convey it.

42 Finally, it was argued that neither imputation is reasonably capable of being considered defamatory. I reject this also. The mere assertion (if it is found in fact to have been conveyed) that Griffith is “deluded”, whatever follows, is sufficient to have the capacity to be defamatory. Whether it is or is not defamatory is, of course, a matter for determination by a jury in due course. It is unnecessary to consider whether, absent the assertion of delusion, attribution of a claim to be “greater than Jesus Christ” or “performing the role of the Holy Spirit” is capable of being defamatory, although I incline to the view that each is so capable.

43 Imputation 11(a) will be allowed to go to the jury. Imputation 11(b), will for the sole reason I have given, be struck out.

imputation 11(c)

44 Two complaints are made about imputation 11 (c). By the first it is contended that the imputation is “imprecise and ambiguous”. Argument focussed on the use of the word “causes”. The argument was drawn from the decision of the Court of Appeal in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158. There, two imputations with common elements were under consideration. The effect of the imputations was that, by reason of conduct in which he had engaged in the past, the plaintiff had caused lasting damage to two individuals, each of whom later committed murder; and that, by reason of that earlier conduct, the plaintiff had caused the subsequent murders. Hunt CJ at CL, with whom Mason P and Handley JA agreed, analysed the sense in which the word “caused” was used in those two imputations. (Subsequently, the imputations were amended by substituting the words “bore a responsibility for” for the word “caused”.) Hunt CJ at CL considered that the word “caused” was ambiguous, as potentially meaning the immediate cause, or the last link in the chain of causation (the “causa causans”), or alternatively some preceding but necessary link in the chain of causation (the “causa sine qua non”).

45 It is not, in my opinion, in every case that the use of the words “caused” or “causes” will be susceptible of the same ambiguity. It is to be remembered that what is now being interpreted is the imputation itself – not the imputation in the context of the matter complained of. The two imputations as originally pleaded in Marsden plainly depended upon the assertion of long term and indirect consequences of past behaviour. The ambiguity arose from an examination of the word in its context. That made it plain that one available interpretation of the matter complained of was that the accusation was that the plaintiffs had indirectly been the cause of the murders. As re-drafted, the imputations in Marsden made plain that sole responsibility was not said to have been attributed to the plaintiff although partial responsibility was.

46 It is necessary to consider, by examination of imputation 11(c), whether there is here any parallel ambiguity.

47 In my opinion the imputation as pleaded is not imprecise or ambiguous; it is clear that what is meant by it is that the demands imposed upon his followers by Griffith (unreasonably imposed) are met by those followers at the cost of family relationships – thereby causing family relationships to be damaged. I am satisfied that the imputation is quite clear. I will not strike out imputation 11 (c) as imprecise or ambiguous.

48 It was also argued that the imputation is not reasonably capable of arising from the publication. It is therefore necessary to return to the content of the broadcast, and particularly the words attributed to Millikan. These included a statement that Griffith “is surrounded by parents and families who are really quite distressed”; and a statement that Griffith focuses upon highly intelligent, well educated and highly nurtured nineteen to twenty-five year olds. However, most significantly, Millikan is recorded as saying:

“… he sees it as essential that people develop an extraordinary loyalty to him and quite often feel, people feel themselves torn between what he calls the old world and the new world, and a sort of a, people feel that they are pitted against their families and in some of the recent newsletters that Jeremy Griffith has put out he’s beginning to sort of he’s beginning to demonise the parents a bit …”

49 Later, Millikan “absolutely” agreed with the proposition put to him by Ms Bowmer that some parents felt they had lost their children to Griffith, and then he added:

“There are people who feel that he has been responsible for really tearing their families apart.”

50 I am satisfied that the matter complained of is capable of conveying imputation 11(c).

imputation 11(d)

51 The only challenge to this imputation is based upon the capacity of the matter complained of to convey it. On behalf of Griffith, reliance was placed upon the whole of the broadcast, without specific reference to any particular passages.

52 There are a number of components to the imputation as pleaded. One is that the Foundation is a cult; another is that it is dangerous; another is that it poses a threat to the community; and the last is that Griffith is its founder and leader.

53 For the imputation to survive it is necessary for Griffith to establish the capacity of the matter complained of to convey each of the components, and also to convey the composite idea expressed in the imputation.

54 It is unnecessary to say very much about the last component; in the broadcast Millikan described Griffith as “the actual leading light behind the thing” (the “thing” being the Foundation); he also stated that Griffith was a director. He said that the Foundation was set up:

“as a vehicle to propagate [Griffith’s] understandings and his philosophies to the world.”

55 This is certainly sufficient to convey the suggestion that Griffith is the leader of the organisation, and, although less clearly so, also the founder.

56 The next question is whether the matter complained of as a whole is capable of suggesting that the Foundation is a “cult”. While it is usually, in my opinion, not desirable in the construction of imputations to have recourse to dictionaries – an imputation should, if properly drafted, be self-explanatory – the word “cult” is capable of bearing different connotations. I was provided with an extract from the Collins’ Soft Back English Dictionary (undated) containing definitions of the word “cult”. Eight such definitions are there provided, of which specific reference was made to the third, which is as follows:

“a quasi religious organisation using devious psychological techniques to gain and control adherents.”

57 No such definition appears in the 1985 revised edition of the Macquarie Dictionary (which may explain why, although I was given Macquarie Dictionary definitions of other terms used in the various imputations, I was not given that Dictionary’s definition of the word ‘cult’). There is nothing in the matter complained of capable of suggesting that the Foundation was such an entity, nor an entity within any of the other definitions provided.

58 The Macquarie Dictionary’s definitions are four in number, as follows:

“1. a particular system of religious worship, esp. with reference to its rites and ceremonies.

2. an instance of an almost religious veneration for a person or thing, esp. as manifested by a body of admirers: a cult of Napoleon.

4. a popular fashion; fad”

59 The word “cult” was used relevantly twice only in the matter complained of. At a fairly early stage Ms Bowmer remarked:

“He’s [Griffith’s] beginning to sound a little bit like perhaps a cult leader”,

“I am not saying that this is a cult but just for want of a better expression.”

60 The notion that the Foundation is a cult within any of these definitions does not therefore emerge directly from the matter complained of. Might it, then, emerge indirectly? Millikan referred to it as “an organisation”, and “a vehicle to propagate Griffith’s understandings …”. In a later passage Millikan referred, in the passage already quoted, to Griffith’s interest in drawing people close to him and demanding “extraordinary loyalty”.

61 In my view there is nothing in the matter complained of that is capable of conveying any imputation that the Foundation was “a quasi religious organisation using devious psychological techniques to gain and control adherents”; nor anything capable of conveying an imputation that the Foundation is “a particular system of religious worship”; nor the object of devotion of the kind described in the second Macquarie definition; nor a popular fashion or fad. The only possibility is the definition numbered 2 in the Macquarie Dictionary, “an instance of an almost religious veneration for a person or thing, as manifested by a body of admirers”. In my opinion what is contained in the matter complained of falls well short of making these suggestions. The programme focused particularly on Griffith, and less upon the Foundation (although it was mentioned, and its existence underlay the discussion); but it was not described in terms that could bring it within any of the definitions to which I have referred.

62 Nor was the Foundation characterised as “dangerous”. In one question Ms Bowmer asked Millikan if he considered Griffith to be dangerous, a question Millikan answered in a somewhat equivocal fashion. He said:

“Well I can’t say that because it, I think it or he is making claims that should give us reason to pause.”

63 It may be thought that the distinctions I have drawn are unduly fine; but in my opinion the imputation is clearly drafted on the basis that the matter complained of spoke of the Foundation as “a dangerous cult which poses a threat to the community”; those words were not used in the matter complained of and nor was such a suggestion remotely conveyed.

64 Having regard to the need for precision in the drafting of imputations, I am satisfied that, on proper analysis, this imputation is not capable of being conveyed by the broadcast constituting the first matter complained of. I will strike out imputation 11 (d).

the imputations pleaded in paragraph 12

imputations 12(a) and (b)

65 The first complaint is that the two imputations pleaded in paragraph 12 do not differ in substance as required by SCR Pt 67 rule 11(3).

66 There is obviously a degree of commonality between the two imputations; the question is whether that commonality is such as to render them not different in substance. On behalf of the Foundation it was submitted that imputation 12(a) is concerned with young people, and with actual harm caused; imputation 12(b) is concerned with the wider community, and with the threat of harm. Thus it was that, on behalf of the Foundation, it was argued that there were two matters of substance differentiating the two imputations.

67 However, after consideration, I reject these contentions. The differences are not of substance, but are, rather, properly characterised as insubstantial. Although, in the usual case, determining a difference in substance between two or more imputations can be done by reference only to the imputations, it is, on occasions, permissible to look to the matter complained of in order to determine what the plaintiff is really asserting. When that is done it can be seen that there is no asserted “threat to the community” other than through “a harmful and destructive influence on young people”. Thus, when they are read in the proper context of the matter complained of, it can be seen that the two imputations are no more than different ways of complaining of the same message. If it were not for what appears below, it would be necessary for the Foundation to elect on which of these imputations it wishes to go to the jury.

68 Another complaint concerning imputation 12(a) is that it is ambiguous by reason of the use of the word “exerts”. It was argued that the imputation as framed is capable of being read as meaning that the Foundation intentionally exerts a harmful and destructive influence, or, alternatively, that the influence it exerts is harmful and destructive although unintentionally so. A subsidiary part of this argument was that if the latter is the case, then no precise act or condition to the Foundation’s discredit is attributed. I would firmly reject this latter proposition. To say of an organisation that it exerts a harmful and destructive influence is, in my opinion, clearly to say something to that organisation’s discredit. That does not depend upon whether that is said to be intentional or not (although it would be more serious to assert an intentional harmful and destructive influence). In any event, the issue about intention is, in my opinion, a red herring. It would be necessary to import into the imputation an additional concept, and an additional word, to read the imputation as suggesting an intentional malign influence, something for which there is no warrant. There is no ambiguity in the imputation as framed.

69 Finally, it was argued that neither imputation is reasonably capable of being conveyed. For the reasons given in relation to imputation 11(d) I accept the argument advanced on behalf of the defendants. A proper reading of the broadcast demonstrates that it is concerned with Griffith, and says little about the Foundation. Certainly it falls far short of saying that the Foundation exerts a harmful and destructive influence on young persons or is a dangerous cult which poses a threat to the community.

70 The matter complained of is incapable of conveying these imputations. Each of them will be struck out for this reason.

the second matter complained of

71 The second publication sued upon was also broadcast on ABC radio, this time on a metropolitan station, on 20 April 1995. On this occasion the compere was Andrew Olle. Both Griffith and Millikan were, it seems, present, and a discussion ensued, the general topic again being Griffith’s philosophies and his promotion of them.

72 It appears from the content of this broadcast that what precipitated the discussion was the then forthcoming Four Corners programme, and a letter written by Griffith in advance of the telecast, seeking to rebut what he expected the programme to contain.

73 Griffith claimed to have written a book “about human nature” about which, he said, some people had become enthusiastic. He referred to the Foundation as having been formed “as a focal point” for a study of the information contained in his book. Millikan asserted that Griffith claimed to be a figure “who is actually greater than Christ” and to be “a prophet, and to have identified “the nature of … the human condition”. Griffith denied having claimed to be “a figure greater than Jesus Christ”. It is convenient to extract a passage from the transcript attributed to Millikan:

“Well let me remind you of a number of conversations we’ve had. I put it to you and in fact Jeremy himself has said that, that Jesus Christ said that a person was going to come after him who would speak the truth plainly. Jesus said that he spoke in parables and metaphors and that one would come who would speak the truth plainly. Now Christians believe that that referred to the Holy Spirit. Jeremy Griffith believes that refers to him, so he believes that Jesus actually prophesied his coming. So I would argue that, and Jeremy said to me himself at one stage that he said Jesus was good at describing the problems that faced humanity but he wasn’t good at actually coming up with the answers, whereas Jeremy does. So I would argue that that puts Jeremy in a superior position to Jesus Christ. That’s why I say that he calls himself a person greater than Jesus Christ.”

74 Griffith acknowledged that he saw himself as a prophet, but said that he did not use this term in a conventional religious way, but rather to describe a person who was prepared to delve into areas and topics considered too confronting for most people. He said he did not present himself “as a religious deity at all”.

the imputations pleaded in paragraph 14

75 Only Griffith has sued upon this publication. He has sued the ABC and Millikan. He claims that it conveyed the following imputations defamatory of him:

The defendants make a number of challenges to these imputations.

imputations 14(a) and 14(b)

76 Firstly, they claim that imputations 14(a) and 14(b) are imprecise and ambiguous. There is much force in this complaint in relation to imputation 14(a). What is unclear is what is qualified by the adverb “knowingly”. The imputation may be interpreted in either of two ways:

77 Either interpretation is reasonably available, but the actual assertion made by one is materially quite different from the assertion made by the other. Apart from the difficulty of determining whether the imputation was in fact conveyed, the ambiguity could cause a difficulty in the assessment of damages, should that eventuate. The matter is therefore of some significance. Imputation 14(a) will, accordingly, be struck out as ambiguous. There being no concept of knowledge incorporated into imputation 14(b), I do not think the same ambiguity contaminates it, and I will not strike it out on that basis.

78 A second argument was that these two imputations do not differ in substance, but I reject that proposition. Far from not differing in substance, in my opinion the two imputations are, in an important respect, the converse of one another: on the one hand it is suggested that Griffith knowingly makes a false claim as to his status; on the other, that his claims result from delusion – the clear implication being that he believes the claims he is alleged to make, or the very antithesis of knowingly making a false claim.

79 The two imputations are, in fact, inherently contradictory, but this alone would not be a ground to strike out either or both, since it is (at least theoretically) possible that two contradictory imputations could be conveyed by the same matter complained of.

80 Finally, it was argued that neither imputation is reasonably capable of arising from the broadcast the subject of the claim. Given the ambiguity in imputation 14(a), it is difficult to assess this challenge in respect of that imputation. After examining the two alternative constructions of the imputation as pleaded, I am satisfied that nothing in the matter complained of is capable of conveying the imputation that Griffith makes false claims, knowing them to be false, to be greater than Jesus Christ. Indeed, the tenor of the subject matter is to the contrary – that, whatever he says, and whatever its truth, he believes it.

81 I take a contrary view in relation to the alternative formulation: in my opinion the matter complained of is capable of conveying an imputation to the effect that Griffith knowingly claims to be greater than Jesus Christ, but that these claims are, objectively, false. The word “objectively” is a little misleading in this context. In this respect I refer to what I have written in paragraphs 25 to 27 above in relation to imputation 11(a).

82 Further, a claim to be “greater” than another, when “greater” is used in the sense of moral value and not physical size, is not one which can be objectively proven or disproven. In each case it is a matter for judgment and assessment. However, adhering to the views I have earlier expressed concerning the meaning which could be taken by the ordinary reader from the phrase “greater than Jesus Christ”, I am satisfied that that phrase carries with it the notion that to be “greater than Jesus Christ” is not possible, and therefore that any claim so to be is necessarily false.

83 I would therefore not strike out imputation 14(a) (if re-phrased to accommodate the observations I have made in paragraphs 76 and 77) on the ground that it is not capable of being conveyed by the matter complained of.

84 Nor will I strike out imputation 14(b) on that basis. Millikan is recorded as referring to the prophecy that the Holy Spirit would come and speak the truth plainly, and saying that Griffith believed that that referred to him. In my opinion, although the word “deluded” is not used, and nor is any other word of similar import used, the ordinary reasonable listener might well take that passage as suggesting that Griffith was in a delusional state. I am therefore satisfied that (subject to the other matters I have dealt with) imputation 14(b) should not be struck out as incapable of arising from the matter complained of.

85 A “bane and antidote” argument was also put, by reference to an answer given by Griffith denying that he had ever said that he was a figure greater than Jesus Christ. It is true that something of an antidote is contained in Griffith’s denial, but it is not, in my view, sufficient to neutralise what is attributed to Millikan. Imputation 14(b) will be allowed to stand.

imputations 14(c) and 14(d)

86 Imputation 14(c) suffers from the same defect as imputation 14(a) and should be struck out for that reason as well.

87 As I have said above, I take the view that a reference to “the Holy Spirit” does not have the same degree of common understanding as a reference to “greater than Jesus Christ”. Understanding of this terminology depends upon some understanding of Christian theology, in a way that understanding of the earlier phrase does not. These imputations therefore lack precision and will both be struck out.

88 It was also argued in respect of these imputations that they are incapable of being conveyed by the matter complained of. It is difficult to consider this argument in relation to imputations I have found to be imprecise and I do not propose to rule upon that aspect of the objection.

the third matter complained of

89 The third matter complained of was published in the print media, the Sydney Morning Herald, on 24 April 1995 by John Fairfax publications Pty Ltd. It appeared in the Media Guide section of that newspaper. It is a brief preview of the Four Corners programme to which reference has already been made, and which was scheduled to go to air that night. The Foundation and McCartney-Snape sue the ABC and Millikan in respect of this publication, asserting that the publication was “the natural and probable consequence of the publication by those defendants of the fourth matter complained of”.

90 The preview began by asserting that there was no uncertainty in the mind of Griffith, or in the minds of his followers – Griffith is the last prophet. It went on to refer to the Foundation, describing it unequivocally as a “cult”. It described the Foundation’s adherents as:

“from WASP backgrounds, often rural, certainly not poor to judge by the high priced private schools from which they emerged, and usually university educated”.

91 The article suggested that Griffith’s philosophy included “a new world” in which, inter alia:

“… women return to nurturing, supportive roles to men leading the way out of ignorance.”

“… proselytising front man at school speech day functions, to which he is regularly invited”.

92 The preview finished by posing a question:

“Do the school principals, the students, or the parents know that he has little interest in talking about the triumph of Everest but a lot to say about the works of the last prophet?”

the imputations pleaded in paragraphs 16 and 17

93 In paragraph 16 of the statement of claim the Foundation claims that the publication conveyed a single imputation defamatory of it, which it pleads in the following terms:

16(a) The FHA is a dangerous cult which poses a threat to the community.

94 In paragraph 17 McCartney-Snape claims that the publication contained three imputations defamatory of him, which he pleads in the following terms:

imputation 16(a)

95 The challenge to imputation 16(a) is that it is not reasonably capable of being conveyed by the matter complained of. Rather than point to any individual passages in the matter complained of, the Foundation claims that, taken as a whole, the publication is capable of conveying the imputation.

96 This is another imputation which has a number of component parts, each one of which must be capable of being conveyed, as well as the composite imputation, before the imputation can be said to be capable of being conveyed.

97 In the publication the Foundation was identified, in terms, as a “cult”. There is, however, nothing in the publication from which it could properly be inferred that the Foundation is “dangerous” or that it “poses a threat to the community”. The article reflected upon the asserted self-assurance of Griffith, the background from which the Foundation’s adherents are drawn, gave a potted account of the philosophy espoused by Griffith, including a reference to the subservient role of women, and spoke of the role of McCartney-Snape. Nothing in this is in the remotest fashion capable of suggesting that the Foundation is “a dangerous cult” or that it “poses a threat to the community”. This imputation will be struck out.

imputation 17(a)

98 The defendants challenge imputation 17(a) on two bases; firstly, that it is ambiguous, and secondly, that it is not reasonably capable of arising from the matter complained of. The ambiguity is said to lie in uncertainty as to whether the “deception” is alleged to have been done “innocently or deliberately with evil intent”. Even if there were such uncertainty, I doubt that it would matter. The sting in the imputation lies in the asserted deception, not in its motive. Of course, as is the case in relation to imputation 12(a) (see paragraph 68 above), the damage done by the imputation might be different according to whether it is read as meaning deliberate deception or innocent deception, but, in my opinion, this is largely an artificial argument. The primary meaning of “deceives” involves an element of intent; it is only rarely that “deception” will be seen as innocent. That this is the meaning intended by the word as it is used in imputation 17(a) is emphasised by the use of the word “exploiting” which appears later in the imputation. I reject the proposition that imputation 17(a) is ambiguous.

99 A secondary argument advanced in relation to this matter was that “deception” was not qualified by reference to the purpose asserted, that is “to promote Jeremy Griffith and his teachings” because the imputation contains an un-stated assumption that Griffith and his teachings are evil or involve danger to students. This argument does not advance the position. For the reasons I have given, I am satisfied that imputation 17(a) is unambiguous.

100 The second challenge to this imputation was that it is not reasonably capable of arising from the matter complained of. This argument also must be rejected. The matter complained of contains the following two significant paragraphs:

“But the crux of concern about the cult is its use of Griffith’s first disciple, the Mount Everest climber Tim McCartney-Snape, as the proselytising front man at school speech day functions, to which he is regularly invited.

Do the school principals, the students, or the parents know that he has little interest in talking about the triumph of Everest but a lot to say about the words of the last prophet?”

101 I am satisfied that these two paragraphs alone are capable of conveying imputation 17(a).

imputations 17(b) and (c)

102 On behalf of the defendants it was also contended that imputations 17(b) and 17(c) are ambiguous. Once again, the primary argument was founded upon the contention that the imputations lack precision as to McCartney-Snape’s state of mind in behaving as he is alleged to have behaved. It was asked rhetorically:

“As to the word ‘disgracefully’ in 17(b), was this behaviour of Mr McCartney-Snape’s done with knowledge that the FHA was a dangerous cult or innocently without such knowledge?”

103 In my opinion this argument is disingenuous. There is no ambiguity about the word “disgracefully”. Indeed, the imputation is framed quite clearly to state that McCartney-Snape did know the organisation to be dangerous. A parallel submission was made in relation to imputation 17(c). The submission must meet the same response. That imputation too contains a specific element that he knew the organisation to be dangerous.

104 I decline to strike out either imputation 17(b) or 17(c) on the ground of ambiguity.

105 However, the final submission is one of substance. It is that neither imputation is capable of arising from the matter complained of. This submission must be accepted. Essential to each imputation is that McCartney-Snape knows the Foundation to be a dangerous organisation. There is not the slightest hint in the matter complained of that he had such knowledge, understanding, or belief. Indeed, to the extent that any inference can be drawn about McCartney-Snape’s attitude to the Foundation from the matter complained of (and that is very limited) it is to the contrary. He is said to be “Griffith’s first disciple”, “the proselytising front man”. These would tend to suggest that (however misguidedly) McCartney-Snape believed in the philosophy espoused by Griffith, and therefore supported the Foundation.

106 Imputations 17(b) and 17(c) will be struck out.

the fourth matter complained of

107 The fourth matter complained of is the Four Corners programme to which reference has already been made. It went to air on 24 April 1995. It is a lengthy programme and cannot adequately be summarised in these reasons. It will, however, be necessary to refer to the content of the programme in some detail.

108 The programme begins by appearing to depict a camping excursion led by Griffith into a mountainous area. Other participants were a group of young people, male and female, apparently equipped for a camping expedition. At various times Griffith could be seen addressing this group, in terms which it will, in part, be necessary to recount.

109 Footage of this kind was interspersed with footage of other individuals who referred to Griffith and the Foundation and McCartney-Snape. There was footage of McCartney-Snape himself addressing a high school speech night. A narrator’s voice from time to time spoke over the other participants. The narrator was Millikan. At the commencement of the programme, when Griffith was depicted at the camping trip, Millikan was heard to say:

“This man claims to be a prophet, to have the answer to the human condition.”

110 A little later, a presenter, identified as Liz Jackson, introduced herself and said:

“Jeremy Griffith claims he is a new Messiah, an Australian prophet whose coming was predicted in the Bible. His small but dedicated band of disciples believe he has the scientific answer to the fundamental problem of human evil. They’re prepared to abandon their families, their studies, and their careers to follow him. Tonight on Four Corners we go into the bush with Jeremy Griffith and Tim McCartney-Snape to witness the beginnings of a movement they believe will change the world. Their disciples are recruited from our elite schools and universities. They’re young, bright and highly educated. They’ll be asked to devote their lives to the promotion of Griffith’s ideas and an increasing number are taking up the challenge. The intriguing question is, why? What do they see in a man whose theories are widely derided by the scientific community? How does he command their devotion? Our guest reporter is theologian, Dr David Millikan.”

111 A number of references were made to Griffith as a prophet, or as believing himself to be a prophet.

112 At various times Griffith himself was depicted and recorded. For example, at a very early stage in the programme, Griffith appeared, saying:

“They never, ever, ever, ever, consider the possibility that it’s actually what we’re saying it is. We tell them black in the face! It’s fucking what we’re saying it is! We have solved the fucking human condition!”

113 Later, filmed at a different site, Griffith could be heard to say:

“I am saying I am a prophet and I’m saying I, these understandings. They’re, it’s rational explanation. You can check these understandings right. It’s all verifiable. Nothing, this is, as I suggest in my book, the end of faith and belief and the beginning of knowing.”

114 Later again, depicted apparently at his home, Griffith could be heard to say:

“Well I happen to be a person who, being able to look at truths that other people can’t. You know that’s my job and it’s just as, you know because it’s subjected to so much cynicism it’s a dastardly job, and I do it reluctantly but I’d be irresponsible not to carry on when I’m able to do this and stand up and say that I, this is making sense and this is the most important arena. You know please have look at this and these people look at it and they’re there as evidence that, that it is making sense.”

115 There was much more attributed to Griffith, to which it will be necessary to make reference in due course. The foregoing is sufficient to convey something of the flavour of the programme and what was attributed to him.

116 Likewise, much more was attributed to Millikan as narrator. For example, he was heard to say:

“It’s not only individuals but families whose lives have been turned upside down.”

…

“With these young people, Griffith is setting out to create the world anew but to get there he is asking them to put all other thoughts aside. But they do so with the enthusiasm and conviction of those who have found the truth”

…

“Jeremy Griffith says that his understanding is the end of faith and religion and the beginning of certainty and he claims for himself the authority of science. He says that two million years ago an internal war developed in human beings as they changed from animals driven by instinct and became conscious and intellectually self-aware. This is his solution to the human condition and his account of sin and evil. The solution is simple. By simply knowing this information, we are released from a deep sense of personal guilt and turmoil. In stating this vision Griffith claims to himself the title of prophet, guide and teacher to those young people who have the ears to hear. He says that he is unique, he is the only truly innocent and unevasive thinker in the history of the world.”

…

“For thirteen years Griffith wrote compulsively. As he did it began to dawn on him that his writings were answering the great questions of life. In the end he was convinced that he was a prophet and he had written half a million words. But he felt like a voice crying in the wilderness. It was not until he met Tim McCartney-Snape and his friends associated with ‘Australian Geographic’ that Griffith began to find the public recognition he craved.”

117 In other sequences reference was made to McCartney-Snape. For example, he was described as:

“conqueror of Mount Everest … the journey’s guide and Jeremy Griffith’s first disciple.”

118 Millikan described McCartney-Snape as having given his life to the Foundation, as following Griffith’s ideas “with the enthusiasm of convert” and as “Griffith’s public face”, tirelessly advocating “the prophet’s words”. He was described as “a contemporary hero” and was visually depicted as a guest speaker at a high school speech night. Of him, Millikan said:

“McCartney-Snape is here not just to talk about his conquest of Everest. Wherever the opportunity allows, he talks about the prophet.”

119 This was followed by some footage of McCartney-Snape at the speech night claiming to have “the highest regard” for Griffith. He said:

“I’m convinced he’s gone up river and reached the source of the problem. He’s made a crucial breach in our war to understand ourselves.”

120 The theme of family disruption, referred to by Millikan, was illustrated by interviews with a Gillian Belfield and her husband Giles. Ms Belfield was heard to say:

“We were a very close, very demonstrative family and at the moment we are totally destroyed. It has had incredible effects on all the children, effect on, the stress on our marriage has been almost overwhelming at times and I am not sure how we’ll put the pieces back together again.”

121 Much later, after a small amount of film showing the Belfield’s son Sam (the fourth plaintiff), Ms Belfield was heard to say:

“When I asked Jeremy what was Sam’s future, Jeremy’s answer to me was Sam must sacrifice his life, and I as a mother find that extremely difficult to accept.”

122 The demands said to be made by Griffith for total commitment were referred to by a couple identified as Rosemary and Howard Whelan (the fourth and fifth defendants). Howard Whelan also spoke about McCartney-Snape, suggesting that when he is invited to speak at functions it would be assumed that he would speak about “climbing Everest”, but that this is not the theme of his talks. The implication was that McCartney-Snape uses such occasions instead to promote Griffith’s “agenda”.

123 Towards the end of the documentary Millikan turned his attention to the role assigned in the Foundation, and by Griffith, to women. Millikan said that Griffith perceived sex between men and women as rape, used by men “to rob women of their innocence”. One of the female members, Bronwyn Fitzgerald (the eighth plaintiff) was depicted giving a somewhat confused explanation for the rape of women by men.

the imputations pleaded:

paragraphs 20,21,22,23,24,25,29,32

124 The Four Corners programme has given rise to claims by each of the plaintiffs against both the ABC and Millikan. As well, Griffith sues Rosemary Whelan and McCartney-Snape sues Howard Whelan, each alleging that defamatory imputations were conveyed by the words attributed to them.

125 It is necessary to set out all of the imputations pleaded. In paragraph 20 Griffith asserts that the programme conveyed thirteen imputations defamatory of him, which he has pleaded in the following terms:

126 In paragraph 21 the Foundation asserts that the publication conveyed two imputations defamatory of it. They are:

127 In paragraph 22 McCartney-Snape asserts that the publication conveyed seven imputations defamatory of him. They are framed as follows:

128 Belfield asserts in paragraph 23 that the publication defamed him by conveying a single defamatory imputation pleaded as follows:

129 In paragraph 24 Armstrong, Fitzgerald, Jones and Rodger, who are collectively identified as “the FHA women” each individually asserts that the programme conveyed a single imputation defamatory of her, as follows:

130 In paragraph 25, each of the individual plaintiffs (except Griffiths and McCartney-Snape), including Belfield and the four plaintiffs identified as “the FHA women”, asserts that five imputations (additional in the case of Belfield, Armstrong, Fitzgerald, Jones and Rodger) were conveyed of him or her. These plaintiffs (ie, all plaintiffs except for the Foundation, Griffith, and McCartney-Snape) are collectively referred to as “the FHA members”. The imputations pleaded are:

131 Further, in paragraph 29, Griffith claims that that part of the telecast attributed to Rosemary Whelan conveyed two imputations defamatory of him, in the following terms:

132 In paragraph 32, McCartney-Snape asserts that that part of the telecast attributed to Howard Whelan conveyed three imputations defamatory of him, pleaded as follows:

133 By paragraphs 33 and 34 all plaintiffs assert that the Four Corners programme was published by the ABC and Millikan in such circumstances that its re-publication by others, especially educational institutions, was a natural and probable consequence, and that the telecast had in fact been so re-published at various times.

the challenges to the imputations

paragraph 20 imputations - Griffith

imputations 20(a) and 20 (b)

134 Imputations 20(a) and 20(b) precisely replicate imputations 14(a) and 14(b). Challenges of a like kind to those made earlier are made to these imputations. For the reasons given in relation to imputation 14(a), I am satisfied that imputation 20(a) is imprecise and ambiguous and should be struck out for that reason; I am not satisfied that imputation 20(b) is imprecise or ambiguous, also for the reasons given in relation to imputation 14(b). It will not be struck out for that reason.

135 It was also submitted that neither imputation 20(a) nor imputation 20(b) is reasonably capable of being conveyed by the matter complained of. Once again, this argument is to be dealt with in the same way as a similar argument put in relation to imputation 14(a); that is, that so long as the ambiguity is present, it is not possible to determine whether the imputation as formulated is capable of being conveyed by the matter complained of. In this respect, of course, the determination depends entirely upon what was contained in the Four Corners documentary, and no guidance is to be gained from the decision made in relation to the earlier publication in respect of which the imputations pleaded in paragraph 14 were said to arise.

136 Counsel for the plaintiffs has helpfully provided a folder extracting from the transcripts of each matter complained of those passages from which each individual imputation is said to arise. This extracts an assertion made by Millikan that Griffith “claims to be a prophet, to have the answer to the human condition”; an assertion by the presenter, Liz Jackson, that “Jeremy Griffith claims he’s a new messiah, an Australian prophet whose coming was predicted in the Bible”; and at least two assertions that his followers, or “disciples”, believe that he has the scientific answer to the fundamental problem of human evil. In particular, Millikan is recorded as attributing to Griffith’s followers the belief that he is greater than Christ and that only he has the words of salvation. To Rosemary Whelan is attributed the following passage:

“Jeremy is the prophet. Jeremy is the new messiah and Jeremy can lead us to salvation. This is the way he sees it, so this does require devotion, he does liken himself to Christ and likens his followers to Christ’s disciples.”

137 It can be seen that these passages in fact contain two separate strands. One is what Griffith is said to claim on his own behalf: this is to be a prophet, to have the answer to the human condition; to be “ a new messiah”, an Australian prophet whose coming was predicted in the Bible; He was said to liken himself to Christ and his followers to Christ’s disciples. The other strand concerns what is attributed to his followers. This is the belief that he has the scientific answer to the fundamental problem of human evil; to be the most important person in the world today; and, most importantly for present purposes, that he is greater than Christ, and that only he has the words of salvation.

138 When properly analysed, it can be seen that the claim that Griffith is greater than Jesus Christ is attributed, not to Griffith himself, but to his followers. The nearest the matter complained of goes to asserting that such a claim is made by Griffith himself is in the words attributed to Rosemary Whelan, that he likens himself to Christ and his followers to Christ’s disciples. On no view can this be converted to an assertion that Griffith himself claims to be greater than Jesus Christ. I therefore propose to strike out imputation 20(a) as being incapable of being conveyed by the matter complained of. It is axiomatic that imputation 20(b) must be struck out for the same reason.

139 It was further argued that these imputations do not differ in substance, but having regard to the conclusions above, it is not necessary to take further time considering this matter.

imputations 20(c) and 20(d)

140 Each of these imputations repeats imputations earlier pleaded, and contains the same defects. Imputation 20(c) echoes the ambiguity contained in imputations 14(a) and 20(a); each echoes the defect of lack of clarity contained in imputations 11(c) and (d) and 14(c) in relation to the meaning of “the Holy Spirit”. However, the most fundamental challenge concerns the capacity of the matter complained of to convey these imputations. As I have already observed, it is a fairly arid exercise to determine the capacity of the matter complained of to convey an imputation which I have already held to be imprecise and ambiguous. However, since either of those defects would ordinarily result in the plaintiffs being granted leave to reformulate the imputations, it is convenient to consider just what is capable of being conveyed by the matter complained of. Although a number of passages were cited as supporting these imputations, it seems to me that only one is remotely capable of doing so. This is a passage attributed to Millikan in a voice-over in which he said:

“As Christ gathered his disciples around him and took them aside from the world, this is what Griffith is doing. Christ talked about another who would come after him, a teacher and comforter. Christians believe this is the third person of the Trinity, the Holy Spirit. Jeremy Griffith believes Christ was talking about him.”

141 The first thing to observe about this passage is that it makes not the slightest suggestion that Griffith is making a claim he knows to be false. Rather, it clearly suggests that Griffith believes the assertion he was said to make, no matter how far fetched such a claim might be. Imputation 20(c) is incapable of being conveyed by the programme. It will be struck out. Subject to clarification of what is meant by “the role of the Holy Spirit”, I have concluded that the passage I have extracted is sufficient to be capable of conveying an imputation along the lines pleaded in imputation 20(d).

142 Again it is unnecessary to decide whether, as the defendants contend, these imputations do not differ in substance.

imputation 20(e)

143 The first challenge to this imputation is that it is imprecise and ambiguous; particular complaint was made of the use of the words “attempts”, “instructing”, and “intended”. I reject this challenge. There is nothing imprecise or ambiguous about any of the three words used, or about the concepts which are incorporated in the imputation. Of course, it will be necessary for Griffith to persuade a jury that each of the three concepts is conveyed by the matter complained of, but this does not bear upon the precision or clarity of the imputation. A subsidiary argument was that, if the words are taken to mean that Griffith unsuccessfully attempts to manipulate minds, or does so in ignorance, or without intent to achieve the objective result, the imputation is not capable of being defamatory. I reject this also. An unsuccessful attempt to manipulate minds is discreditable, even if less so than a successful attempt; instruction that manipulates and controls minds of young people is discreditable, whether done with knowledge or intent or not. The word “manipulate”, and the notion of mind control, particularly in relation to young people, are inherently capable of being defamatory. In any event, the imputation taken as a whole can only be seen as an assertion of a deliberate attempt to indoctrinate.

144 I will not strike out imputation 20(e) on the ground of imprecision or ambiguity.

145 The final complaint made about this imputation is that it is not capable of being conveyed by the matter complained of. It is therefore necessary to have recourse to those passages on which Griffith relies to support the imputation. These are lengthy. It is necessary to refer only to a few. Millikan said:

146 Later, he said:

“Griffith demands nothing less than absolute loyalty.”

“despite Rosy’s commitment, Griffith does not welcome independence in those working for the Foundation.”

147 Rosemary Whelan said:

“And he was keen for me to be fully devoted to the, to his cause and that’s what he was striving for and that’s eventually what I, what I gave …

I do remember he expressed at one stage he was concerned that I, that he needed the sort of loyalty from me that I was giving to, Howard, that total support for another person and he worried that I wouldn’t have enough, in me to give to both of them …

I think the danger is that Jeremy wants total devotion to this cause. It’s not good enough to be there sometimes. It’s something you need to embrace fully and part of that is this danger of letting your mind be in someone else’s hands, have someone else controlling what you think and how you think about things.”

148 In my view these passages are sufficient to support imputation 20(e). I will not, therefore, strike out this imputation.

imputations 20(g) and (h)

149 Of imputations 20(g) and (h) one complaint was that they “are bad in form and ambiguous”. However, the argument advanced in support of this was that “they do not attribute or identify with any precision any act or condition of Mr Griffith to his discredit”. This is, in truth, an argument that the imputations are not capable of being defamatory. I reject this argument. In each imputation, although they are framed differently, the assertion is that Griffith puts himself forward as a scientist, or his ideas as scientific, but that he is misguided or worse in doing so. These are capable of being defamatory. Secondly, in relation to imputation 20(g), complaint was made of the use of the word “promotes”; and as to imputation 20(h) similar complaint was raised in relation to the phrase “holds himself out as a scientist”. But the tenor of the argument throughout was that neither imputation (if conveyed) conveyed any message discreditable to Griffith. It was argued that, for the imputations to be defamatory, it would be necessary also to assert that Griffith promoted his unscientific ideas as scientific, or published poor quality work, deliberately or fraudulently, or knowing of the inadequacies of his work. This cannot be sustained. An assertion that a scientist (or other professional) turns out poor quality work, whether knowingly or unknowingly, is capable of being defamatory.

150 It was next argued that neither imputation is capable of being conveyed by the matter complained of.

151 Each imputation is a composite of two ideas – one, that Griffith promotes his ideas as scientific, or holds himself out as a scientist; second, that the ideas he promotes are, and his published work is, unscientific and unsupported by the scientific community. Each part must find support in the matter complained of before the imputation as a whole can be conveyed. There is ample in the matter complained of to support the second part of each imputation. At a very early stage Liz Jackson said that Griffith’s theories “are widely derided by the scientific community”. Later, a Tim Flannery, who was identified by sub titles as a scientist of the Australian Museum, critically commented on a book written by Griffith which he described as “a pretty poor book about the subject”, and singularly unimpressive “as an attempt to explain human nature and what humans are about”. Immediately before that Millikan said that, although Griffith had sent eight hundred copies of his book to leading scientists and journals around the world he “is alone, rejected by the scientific community”.

Armidale Express

“(iii) It appears from the contents of the tenth matter complained of that David Millikan participated in its publication. Further particulars of publication will be supplied after discovery and interrogatories.”

367 One objection that is taken is framed in the following way:

“Dr Millikan does not admit publication of the tenth matter complained of which was an article written by Ms Lisa Finnerty and published in the Armidale Express of 19 May 1995, a publication over which Dr Millikan has no control or authority. The plaintiff has alleged as a material fact that Dr Millikan himself published the tenth matter complained of and not that it was a re-publication for which either of the ABC or Dr Millikan were responsible … as a matter of law, such a bare allegation is incapable of amounting to a publication by Dr Millikan for the purposes of the law of defamation and the plaintiffs have not provided any sufficient particulars of the facts, matters or circumstances which established sufficient participation by Dr Millikan in the publication …”

368 It is to be borne in mind that the present matters concern only the adequacy of pleading. I am not at this stage concerned with evidentiary matters. A number of evidentiary matters are asserted in the defendants’ submissions. While, having regard to the pleading, and to common sense, it may be that these matters are of some weight, they are not matters which may properly be determinative of the adequacy of the pleading. Paragraph 65 of the statement of claim pleads what is said to be a material fact – that Millikan published the tenth matter complained of – and, no matter how unlikely it may seem that the plaintiffs will be able to support this by evidence, there is nothing defective about the manner of pleading. The particularisation of the publication weakens the plaintiff’s pleading, because it tends to substantiate the factual matters asserted by the defendants. However, particulars do not constitute a pleading, and there is nothing defective in the allegation of publication contained in paragraph 65.

369 Accordingly, although as a factual matter, Millikan’s argument appears to rest on a very solid foundation indeed, I do not think it affords me the opportunity at this stage to strike out this part of the claim.

imputations 66(a) and 67(a)

370 Imputations 66(a) and 67(a) are in the same terms respectively as imputations 11(d), 20(m), 41(c), 45(a), 47(a) and 53(b) (with, in some cases, the minor discrepancy that the imputation also asserts that he is the founder as well as the leader of a dangerous cult); and imputations 12(b), 21(a) and 42(b). However, the complaint made of each is as to the capacity of the matter complained of to convey the imputations and this of course depends upon the individual content of the publications. Essential to each of the imputations is the notion that the Foundation is a dangerous cult which poses a threat to the community. There is no such statement, direct or indirect, in the item. Certainly there are many references to “cults” or “cult busters”, and a reference to the Foundation as the focus for Millikan’s attention. However, the item does not go so far as to identify the Foundation either as dangerous or as a threat to the community. Accordingly imputations 66(a) and 67(a) will be struck out.

the eleventh matter complained of

371 The eleventh matter complained of is, again, a publication in the North Shore Times, of 14 June 1995. As originally pleaded, the article appeared under the headline “Minister fears for recruits to ‘cult’”, and contained an introduction:

“A Presbyterian minister claims a religious group has all the hallmarks of a cult. However, the group’s leader says the Liberal Party is more of a cult. Reporter Paul Fraser talks to both men.”

372 There then followed an article about Robins, who was quoted as referring to “the methods used to attract people” to the Foundation, and as saying that all the signs pointed to the Foundation being a cult. He referred again to signs, such as he had mentioned in his earlier letter (the eighth matter complained of). He was quoted as saying:

“These groups target the youth because they are young and idealistic and they know there are problems with the world. Then they offer a solution.

He says he has reconciled science and religion and has gone beyond them into knowledge. It’s handing over their minds that worries me. Then someone else takes control of their mind and I don’t believe they have the right to do that.”

373 “He” was a reference to Griffith. Robins was also quoted as having expressed concern about McCartney-Snape’s visits to schools, visits Robins said he used to promote Griffith and the Foundation to students.

374 The second part of the article, which was not originally pleaded, but which has, by amendment, been added to the pleading, focused on Griffith. He was quoted as describing Robins’ accusations as “cowardly”, and saying that:

“All of history’s great thinkers had faced opposition”.

375 Essentially, this part of the article amounts to a detailed rebuttal by Griffith of the criticisms made by Robins.

the imputations pleaded in paragraphs 69, 70, 71 and 72

376 Griffith, the Foundation, and McCartney-Snape all sue Robins in respect of this publication. In paragraph 69 Griffith asserts that the article conveyed three imputations defamatory of him, as follows:

377 In paragraph 70 the Foundation alleges that the publication conveyed two imputations defamatory of it, they being:

(a) The FHA is an organisation which exerts a harmful and destructive influence on young people;

378 In paragraph 71 McCartney-Snape alleges that the publication conveyed two imputations defamatory of him, these being:

379 By paragraph 72 McCartney-Snape alleges that a further imputation defamatory of him was conveyed. This is:

72(a) Tim McCartney-Snape preys upon students’ vulnerability in order to recruit them to follow Jeremy Griffith.

the liability of the defendant for the publication

380 Further, each of these plaintiffs alleges in paragraph 73 that this publication was the natural and probable consequence of the publication of the Four Corners documentary and that the ABC and Millikan are thereby additionally liable for the imputations pleaded to arise from the eleventh matter complained of.

381 Of this part of the pleading, Robins, the ABC and Millikan all make a similar attack as was made in relation to paragraph 65: that is, that, on its face, the matter complained of was published in a newspaper of which they (it was put by way of submission) had no responsibility or control. The position is different in relation to Robins as distinct from the ABC and Millikan. In paragraph 68, as in paragraph 65, the conventional allegation of publication (by Robins) is made. This is purportedly supported by particulars of publication but these are limited to the identification of the newspaper and the date in which it is said the matter complained of was published. There is no attempt at particularisation of the manner in which Robins is said to be responsible for that publication.

382 As before, as a pleading point the argument must fail. I am not in a position to make assumptions about factual matters which can or cannot be proven. By the pleading in paragraph 68 the relevant plaintiffs undertake to establish Robins’ involvement in and responsibility for the publication. The defendants are, of course, entitled to particulars of the manner in which it will be said that he is so liable, but I am not able to make assumptions about their capacity to discharge that onus.

383 Similarly, the allegation in paragraph 73 that publication was the natural and probable consequence of the publication by the ABC and Millikan of the Four Corners Programme is an adequate pleading. Again, the defendants will be entitled to particularisation, and it may be, if particulars are sought and not forthcoming, that a different approach might be taken. Further, it may be open to the defendants to seek a separate trial on the issue of publication. But that is a different question, and is a matter for the future. Once again, although there are obvious concerns about the capacity of the plaintiffs to establish the allegations of fact that they have pleaded, it is not open to me, at this stage, to strike out this part of the pleading on that basis.

imputations 69(b) and (c)

384 Objection was taken to imputations 69(b) and 69(c) as not being capable of being defamatory. It was argued, for example, that the only act or condition stated about Griffith in these imputations is that he is the leader of an organisation. This is simply not correct. Imputation 69(b) says more than that Griffith leads an organisation: it describes that organisation as one which “preys upon students’ vulnerability”. This is plainly capable of being defamatory. “Preys” is a word which carries adverse connotations. Imputation 69(c) repeats the now familiar refrain that the Foundation is a dangerous cult that poses a threat to the community. I will not strike out either of these imputations on this basis. No argument that imputation 69(b) was not capable of arising from the matter complained of was put and accordingly it will stand. However, it was argued that imputation 69(c) is incapable of being conveyed by the matter complained of.

385 That Griffith is the leader of the Foundation is clearly conveyed. Robins was reported to be concerned about the methods used by the Foundation “led by self-proclaimed prophet Jeremy Griffith”. The issue, therefore, is whether there is sufficient in the matter complained of to convey the imputation that the Foundation is a dangerous cult which poses a threat to the community. Robins was quoted as expressing concern for young people who are drawn into such things; to have identified the features of a cult that applied to the Foundation; and to be worried by the “handing over their minds”. In my opinion this is sufficient to justify a jury finding that the imputation had been conveyed. Imputation 69(c) will stand.

386 One further objection taken to these imputations is that they do not differ in substance. This I think is correct; the Foundation will have to elect on which it wishes to proceed.

imputations 70(a) and (b)

387 Robins takes objection to the form of imputation 70(a). The basis for this objection is the combination of adjectives – ie “harmful” and “destructive”. It was argued that two acts or conditions are rolled up in a single imputation. It is not at all unusual to see imputations pleaded containing two adjectives joined by a conjunction. There is a difference, though not a very great one, between the notions of “harmful” and “destructive”. However, the validity of the objection may be tested by considering whether, if two separate imputations were pleaded, one would be struck out as not differing in substance from the other. I would be inclined to do so. On the other hand, a defendant confronted with this imputation may wish to justify the assertion of harmfulness, but not the assertion of destructiveness. It must be remembered, however, that, in the first instance, the onus lies upon the plaintiff who pleads the imputation to persuade a jury that, in its composite form, it is conveyed by the matter complained of. If the plaintiff succeeds in doing that – and it will be more difficult to do so given the combination of concepts – the defendants against whom the imputation is pleaded will have to decide whether to seek to justify that imputation or not.

388 After considering all of these matters, and recognising that there is much to be said each way, I have come to the view that the imputation is not bad in form and that the Foundation is entitled to put it to the jury (subject to electing which of these two imputations it wishes to pursue).

389 The ABC defendants have challenged these imputations arguing that they do not differ in substance. The Foundation made no response to the challenge, which I think is well founded. The Foundation will have to elect between the two imputations.

390 Finally, it was argued that neither imputation is capable of being conveyed by the matter complained of. The fact that the Foundation is identified as a cult, with the features outlined including “an authoritarian edge encouraging dependence”; “having a persecution complex” and the reference to surrendering control of minds of young people is, in my opinion, sufficient. Either imputation 70(a) or 70(b) will stand.

imputations 71(a) and (b)

391 Imputations 71(a) and 71(b) were challenged as ambiguous. As these imputations are in the same form as, respectively, imputations 17(a), 22(a) and 49(a) and imputations 22(g) and 57(b), these objections must be determined in the same way as the corresponding objections to those imputations. Imputation 71(a) is not ambiguous. Oddly enough, the ABC defendants did not challenge either imputation 22(g) or 57(b) on this basis. The challenges to those imputations were as to asserted lack of precision in identifying the discreditable act or condition attributed to McCartney-Snape. I see no difficulty in understanding what is said, in the imputations, to be the sting in the publication. There is no imprecision.

392 It was also argued that neither imputation could reasonably be conveyed. In relation to imputation 71(a), I consider that this argument is made good. There was a reference in the matter complained of to McCartney-Snape visiting schools promoting Griffith and the Foundation, and, separately, to his having addressed students on his climbing achievements about four years earlier. However, there is nothing in this publication to suggest that McCartney-Snape deceives schools who invite him to speak to students about climbing, nor that he exploits the occasion of his visits to schools. Imputation 71(a) will be struck out.

393 Imputation 71(b), however, is capable of being conveyed. McCartney-Snape is identified as “Foundation director”; I have already held that the matter complained of is capable of conveying the imputation that the Foundation is a dangerous cult. Accordingly, the matter complained of is capable of conveying this imputation. Imputation 71(b) will stand.

imputation 72(a)

394 The final imputation pleaded in relation to this publication is that pleaded in paragraph 72(a), again in relation to McCartney-Snape. The challenge to this imputation is that it is not capable of being conveyed by the matter complained of. I accept this argument. There is no suggestion that McCartney-Snape “preys upon students’ vulnerability” for the purpose stated or for any purpose. He was alleged to visit schools, in the course of which he promotes Griffith and the Foundation but he was not accused of conduct of the kind contained in the imputation. Imputation 72(a) will be struck out.

the twelfth matter complained of

395 The twelfth and final matter complained of is an article written by Millikan, published in a magazine called “National Outlook” in June 1997. The article is headed “No heights left to scale?”. The predominant subject matter of the article is a book written by a Francis Fukuyama called “The End of History and the Last Man”. Millikan was critical of the ideas contained in the book. He then wrote:

“The pretentiousness of the theory is amazing. It is the sort of thing I hear from the people who run the groups that I have dealings with. People like David Berg, the leader of “The Family”, Jeremy Griffith, the guru and prophet of the Foundation for Humanity’s Adulthood, and Stuart Walker, the Masters of The Pod. They are given to these absurd assessments of history …”

the imputations pleaded in paragraph 75

396 Griffith sues Millikan in respect of this article, alleging in paragraph 75 that it contains two imputations defamatory of him. These are:

397 Imputation 75(a) is challenged on the ground of capacity. This challenge is valid. There is nothing in the matter complained of that suggests that the Foundation is a dangerous cult, or poses a threat to the community. The only adverse comment made about Griffith or the Foundation is that his or its theories are pretentious. Imputation 75(a) will be struck out.

398 Similarly, imputation 75(b) is not capable of being conveyed by the matter complained of. It also will be struck out for that reason. A second challenge to imputation 75(b) as to form, fails. The argument was that the imputation, if conveyed, is not capable of being defamatory of Griffith. This is plainly wrong. However, as the imputation is not capable of being conveyed, it will also be struck out.

. . .

republication

399 Four of the publications are alleged to have taken place in newspapers not said to be under the direct responsibility of the ABC or any of the named defendants. These are the third, seventh, eighth and eleventh matters complained of, said to have been published respectively in the Sydney Morning Herald, the Wellington Dominion, the North Shore Times and the Armidale Express. Nevertheless, in each of these cases, the plaintiffs who sue plead that the ABC and Millikan are liable because these allegedly defamatory publications were the natural and probable consequence of the publication of the Four Corners programme, and those defendants are therefore liable under the principles concerning republication of defamatory matter.

400 Complaint is made by the ABC and Millikan as to the form of the pleadings. The plaintiffs accept that there are deficiencies in the pleading and seek leave to re-plead. It is appropriate to grant such leave.

Statute of Limitations (New Zealand)

401 As to the seventh matter complained of, published in the Wellington Dominion on 26 April 1995, the defendants raise the New Zealand Limitation Act (1950). I was provided, without demur on behalf of the plaintiffs, copies of s 6A and 6B of the Limitation Act 1950. These sections were inserted into the Limitation Act by the Defamation Act 1992, and by s 6A, limited the time for commencement of a defamation action to two years from the date on which the course of action accrued. S 6B makes provision for the court to grant an extension of time to six years from the date on which the cause of action accrued, but this, apparently not having been invoked, is not presently relevant.

402 The defendants’ argument was that the cause of action accrued on the date of publication, i.e. 26 April 1995, and the New Zealand limitation period thus expired on 26 April 1997. Even if the power to extend time were exercised in favour of the plaintiffs, the bar would operate from 26 April 2001. Should the plaintiffs invoke s 6B, and should they be successful, a question may arise as to whether the extension of time thus granted retrospectively validates the claim made in the original statement of claim filed on 6 April 2001. However, it is unnecessary to consider that question at this stage.

403 The submission put on behalf of the defendants is, in essence, that the action taken by the plaintiffs in respect of the New Zealand publication is an action taken in respect of a foreign tort; that, in order to bring proceedings on a foreign tort, a plaintiff must establish that the tort is actionable in the place where the tort was committed; Phillips v Eyre (1870) LR 6QB 1; McKain v R. W. Miller and Co (SA) Pty Ltd (1991) 174 CLR 1. Further, the High Court held in John Pfeiffer Pty Ltd v Rogerson [2000 HCA 36; 203 CLR 503] that limitation law is substantive as distinct from procedural. Accordingly, on the present state of the law, the publication in the Wellington Dominion is not actionable at the suit of any of the plaintiffs.

404 In response, counsel for the plaintiffs argued that the New Zealand Limitation Act is irrelevant, but did not further expand on this submission.

405 In my view the defendants’ submissions are persuasive. I say that with one reservation. Senior counsel for the defendants noted that the question was again under consideration by the High Court in Regie National Des Usines Renault SA v Fuzu Zhang, a decision in which that court is presently reserved.

406 Since this is an interlocutory proceeding, there is nothing to prevent it being reconsidered when the High Court delivers judgment. However, for the present, I am satisfied on the defendants’ arguments, that the pleading concerning the seventh matter complained of should be struck out as not actionable.

DAMAGES

407 In paragraph 76 of the statement of claim it is asserted that each plaintiff has suffered damage as a consequence of the publications. In relation to Griffith, the Foundation, and McCartney-Snape, particulars of special damage are provided. Particulars of aggravated and exemplary damage claimed against the ABC and Millikan are also provided.

408 A complaint is made about the manner of the pleading that the plaintiffs have suffered damage, this being that the pleading “contains a rolled-up allegation”, without specificity, and without reference to the damage caused by the matters complained of.

409 I do not find this complaint persuasive. The meaning of the pleading is clear. True it is that each plaintiff may be required to particularise his/her or its claim for damage, but as a pleading the claim is, in my opinion, unexceptionable.

410 In relation to the claim for special damage, additional particulars were, apparently, provided by way of correspondence. Certain amounts were, it is said, claimed in relation to the plaintiffs’ attempts to prevent the broadcast of the Four Corners programme. The defendants claim that such special damage is not, as a matter of law, recoverable because it is not sufficiently causally related.

411 I am satisfied that it is not open to me to rule on this matter on the scanty material available to me. The defendants may well be correct, but there is insufficient material for a ruling on this question to be made.

DECEIT

412 The claim in deceit, which is brought against Millikan and the ABC, is said to arise from misrepresentations made to some of the plaintiffs, including Griffith, concerning the making of the programmes. In short, it appears to be alleged that Millikan led the plaintiffs (or at least Griffith) to believe that a favourable programme would be made, and this in turn led those plaintiffs to cooperate with Millikan and the ABC. Again, although matters relevant to the issue were stated in the submissions, the material before me is not such as to permit a ruling. I decline to strike out the portions of the statement of claim through which a claim in deceit is made.

413 An additional complaint made about these passages is that the claim adds nothing to the claim in defamation. I reject this proposition also. It is open to plaintiffs to plead alternatively or conjuctively if so advised.

INJURIOUS FALSEHOOD

414 The statement of claim includes the injurious falsehood claim against Millikan and the ABC in the following way:

113. The said words were published falsely and maliciously.

415 Particulars of falsity, loss and damage are subscribed.

416 The first challenge that is made to this part of the pleading is that none of the three assertions contained in para 112 is reasonably capable of being drawn from the Four Corners broadcast. It is to be observed that the first two of these purport to be statements about Griffith’s belief about his position and importance and are thus to be contrasted with imputations earlier dealt with. If the defendants are correct in claiming that none of the three assertions is capable of being conveyed by the telecast, then the injurious falsehood claim must, axiomatically, fail. However, having regard to what was said by Millikan, I am of the view that the telecast was capable of conveying those statements. I am less certain that it was capable of the assertion that Griffith’s work has no scientific support, although it plainly asserts that his work is not well regarded by the scientific community. However, since the first two assertions are capable of being conveyed, the injurious falsehood claim cannot be struck out for this reason.

417 The next complaint made was that the particulars of malice merely repeat material facts pleaded in the deceit claims. This is correct, and there is substance in the defendants’ complaint. Although, as I have made plain in this very lengthy judgment, there is much to be said for condensing the statement of claim where this can properly be done, I am of the view that malice for purpose of the injurious falsehood claim cannot be compendiously particularised in this way. The plaintiffs must properly particularise their plea of malice in relation to the injurious falsehood claim.

418 I propose to make orders in accordance with the conclusions and findings expressed herein. It will be necessary for the parties to bring in short minutes to reflect those conclusions. I will hear the parties in respect of costs and consequential orders.

Last Modified: 03/04/2002

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Citations

Griffith v Australian Broadcasting Corporation [2002] NSWSC 86

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CITATION:	Griffith v Australian Broadcasting Corporation [2002] NSWSC 86
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20300/01
HEARING DATE(S):	6th - 8th November 2001
JUDGMENT DATE:	28 February 2002
PARTIES :	Jeremy Norman GRIFFITH & Ors AUSTRALIAN BROADCASTING CORPORATION & Ors
JUDGMENT OF:	Simpson J

COUNSEL :	KP Smark (Plaintiffs) BW Walker SC with R Glasson (1st, 2nd, 6th Defendants) DA Caspersonn (3rd Defendant)
SOLICITORS:	Schweizer & Company (Plaintiffs) Judith Walker, ABC - for 1st, 2nd, and 6th Defendants Phillips Fox - for 3rd Defendant 4th & 5th Defendants - (Rosemary Whelan and Howard Whelan) in person
CATCHWORDS:	defamation - pleadings - imputations
LEGISLATION CITED:	Limitation Act (1950) (NZ) Defamation Act (1992) (NZ)
CASES CITED:	Singleton v John Fairfax and Sons Ltd (unreported, 20 February 1980) Singleton v Ffrench (1986) 5 NSWLR 425 Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 David Syme, and Co v Canavan (1918) 25 CLR 234 McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 Phillips v Eyre (1870) LR 6QB 1 McKain v R. W. Miller and Co (SA) Pty Ltd (1991) 174 CLR 1 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 Regie National Des Usines Renalut SA v Fuzu Zhang [HCA - reserved]
DECISION:	Challenges to various imputations determined.