Griffith & Macartney-Snape v Australian Broadcasting Corporation - [2008] NSWSC 764

No judgment structure available for this case.

CITATION: Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764

HEARING DATE(S): 14/03/07-16/03/07
19/03/07-23/03/07
26/03/07-27/03/07
29/03/07-30/03/07
02/04/07-05/04/07
10/04/07-13/04/07
25/06/07-29/06/07
02/07/07-06/07/07
11/09/07
5/12/07-06/12/07

JUDGMENT DATE :
1 August 2008

JURISDICTION: Common Law
Defamation List

JUDGMENT OF: Kirby J

DECISION: (1) In respect of the action for defamation by Mr Jeremy Griffith against the ABC and Dr Millikan, there should be a verdict for the defendants.
(2) In respect of the action by Mr Timothy Macartney-Snape against the same defendants, there should be a verdict for Mr Macartney-Snape in the sum of $448,500.
(3) I reserve costs and interest for further submissions .
(4) I note that, in the action by Mr Jeremy Griffith against the same defendants in respect of injurious falsehood, I gave judgment for the defendants on 4 July 2007, reserving costs (Griffith v ABC [No 1] [2007] NSWSC 711). Those costs have yet to be determined.

CATCHWORDS: DEFAMATION - second stage defamation trial after 7A trial - three imputations - Four Corners - publication throughout Australia 1995 - defences of justification, qualified privilege (common law and statutory) - fair comment - NSW and interstate equivalent provisions - improper purpose or malice - damages including aggravated damages - causation of damage - other aspects of programme also damaging to reputation but not sued on - whether loss of career as public speaker caused by imputations - claim for exemplary damages.

LEGISLATION CITED: Defamation Act 1974 (NSW)
Evidence Act 1995
Australian Broadcasting Corporation Act 1983 (Cth)
Broadcasting and Television Act 1942 (Cth)
Defamation Act 1957 (Tas)
Defamation Act 1938 (NT)
Criminal Code 1889 (Qld)
Criminal Code 1913 (WA)

CATEGORY: Principal judgment

CASES CITED: Jones v Dunkel (1959) 101 CLR 298
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57
Sleeman v Nationwide News Pty Limited [2004] NSWSC 954
Howden v The Truth and Sportsman Limited (1937) 58 CLR 416
Sutherland v Stopes (1925) AC 47
Griffith v ABC [2002] NSWSC 86
Greek Herald Pty Limited v Nikolopolous [220] NSWCA 41; (2002) 54 NSWLR 165
Tankard v Chafer [2005] VSC 171
Adam v Ward [1917] AC 309
Reynolds v Times Newspapers [1999] UKHL 45; [2001] 2 AC 127
Jameel & Ors v Wall Street Journal Europe SPRL [2006] UKHL 44; [2007] 1 AC 359
Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300
Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; 68 ALR 259
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937
Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Fawcett v John Fairfax Publications Pty Limited [2008] NSWSC 139
John Fairfax Publications Pty Limited v O’Shane [2005] NSWCA 164
Kemsley v Foot [1952] AC 345 at 356
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309
Brett May v TCN Channel Nine Pty Ltd & Ors [2007] NSWSC 760
Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225
Herald & Weekly Times Ltd & Andrew Bolt v Popovic [2003] VSCA 161
Cheng v Tse Wai Chun Paul [2000] 3 HKLRD 418
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728
Uren v John Fairfax & Sons Pty Limited (1965-66) 117 CLR 118
Andrews v John Fairfax & Sons Limited [1980] 2 NSWLR 225
Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451
Associated Newspapers Ltd v Dingle [1964] AC 371
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Chappel v Hart (1998) 195 CLR 232
Shorey v P T Limited [2003] HCA 27; (2003) 197 ALR 410
Triggell v Pheeney (1951) 82 CLR 497
John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Australian Consolidated Press Ltd v Uren [1967] 117 CLR 221
Griffith v ABC [No 1] [2007] NSWSC 711

TEXTS CITED: Gatley on Libel and Slander, 10th ed, 2004
The Law of Defamation of Australia and New Zealand: Gillooly, 1998

PARTIES: Jeremy Norman Griffith (1st Pl)
Timothy John Macartney-Snape (2nd Pl)
Australian Broadcasting Corporation (1st Def)
David Millikan (2nd Def)

FILE NUMBER(S): SC 20300/2001

COUNSEL: K P Smark SC/S Chrysanthou (1st & 2nd Pls)
B W Walker SC/J Sheahan SC/E Raper (1st & 2nd Defs)

SOLICITORS: Schweizer Kobras, sols (1st & 2nd Pl)
ABC Legal Services (1st & 2nd Defs)

I N D E X

Para

1.
INTRODUCTION

The action.
1

Second stage of the action.
8

Structure of this judgment.
13

2.
THE MAKING OF THE PROGRAMME

Background.
16

The fundamental concept.
30

The place of God.
42

Mr Griffith as a prophet.
46

The role of women.
51

The new world.
57

Defences against derision.
60

The launch of the book "Beyond".
65

The Bulletin article.
82

After the launch.
90

The “Absurd Cult Saga”.
103

The lack of progress.
106

Review in The National Outlook
115

The Geelong Grammar speech.
120

Dr Millikan's approach to the ABC.
133

Permission to make the programme.
136

The conversation on 11 January 1995.
138

The second meeting.
151

Interview with Mr Macartney-Snape.
165

Interview with the Whelans.
168

The walk in the Snowy Mountains.
177

The second and third days of the walk.
192

The segment on the Belfields.
196

The Hi-8 footage.
205

Third meeting.
218

Second interview with Mr Macartney-Snape.
233

The use of the religious idiom.
238

First interview with the Belfields.
259

Armidale Open Day.
264

The Concord speech.
271

The interview with Jeremy Griffith and its aftermath.
288

Completion of the programme.
305

Publicity before the programme.
314

The broadcast.
353

Supportive parents.
363

After the broadcast.
386

Response of Dr David Millikan.
414

Was there misrepresentation?
421

The Millennium documentary series.
442

The relevance of the misrepresentation.
455

Treatment in the final programme.
471

3.
THE GRIFFITH IMPUTATION

The Imputation.
491

The defence that the imputation was a matter of substantial truth.
496

The elements of the imputation.
500

“Holds himself out as a scientist”.
504

Peer review.
508

Popular science.
514

The nature of scientific method.
516

Reductionism v Holism
525

“Such poor standard”.
531

“No support at all from the scientific community”.
535

Were the works of such poor standard?
552

Professor Hartwig.
554

Professor Churchill.
566

Professor Prosen.
579

Dr Casebeer.
584

Professor Groves.
598

Professor Flannery.
619

Professor Henneberg.
628

Evaluation.
638

What amounts to support?
651

Mr Griffith’s belief.
667

The support of Professor Groves.
678

Professor Davies.
687

Professor Birch.
702

Professor Morton.
725

Qualified privilege at common law.
746

Statutory qualified privilege in New South Wales.
760

Statutory qualified privilege in Queensland and Tasmania.
787

The defence of fair comment (NSW).
794

4.
THE MACARTNEY-SNAPE IMPUTATIONS

The imputations.
822

The defence of truth.
825

The truth of the deception imputation.
830

Submissions concerning the deception imputation.
849

The recruitment imputation.
880

Qualified privilege.
895

The defence of fair comment.
901

5.
DAMAGES: MACARTNEY SNAPE

The reputation of Mr Macartney-Snape.
925

Hurt to feelings.
940

Damage to Mr Macartney-Snape’s reputation.
945

Claim for special damages.
947

Causation.
966

Aggravated damages.
984

Exemplary damages.
992

Quantification of damages.
1001

Orders.
1003

**********

1. INTRODUCTION

The action.

1 KIRBY J: On 24 April 1995, the Australian Broadcasting Corporation ("the ABC") broadcast throughout Australia a Four Corners programme, "The Prophet of Oz". The narrator was the Reverend Dr David Millikan. The programme was again shown on 2 May 1995.

2 On 6 April 2001, shortly before the expiration of the limitation period, an action in defamation was commenced against the ABC (first defendant) and Dr Millikan (second defendant) arising out of the programme. There were a number of plaintiffs. They included Mr Jeremy Griffith (1st plaintiff) and Mr Timothy Macartney-Snape (3rd plaintiff). The Third Amended Statement of Claim asserted, on behalf of Mr Griffith, seven imputations. In the case of Mr Macartney-Snape there were four imputations.

3 On 30 May 2003, after a jury trial before Levine J, the following imputation was found to have been conveyed in respect of Mr Griffith and to have been defamatory: (Ex A(16))

"(Q7) Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community."

4 Six imputations were found not to have been conveyed, or not defamatory. It is relevant that the jury determined that the following imputation was not conveyed: (Ex A(16))

"(Q15) Jeremy Griffith is the founder and leader of a harmful cult which poses a threat to the community."

5 In respect of Mr Macartney-Snape, the jury found that two imputations had been conveyed and were defamatory of him, namely: (Ex A(16))

"(Q21) Tim Macartney-Snape deceives schools who invite him to talk to students about climbing Mt Everest by exploiting the occasion to promote Jeremy Griffith and his teachings.

(Q23) Tim Macartney-Snape abuses his position of influence, derived from his reputation as a mountaineer, to recruit students at schools for Jeremy Griffith."

6 The jury, however, found the following imputation, amongst others, was not conveyed in respect of Mr Macartney-Snape: (Ex A(16))

"(Q27) Tim Macartney-Snape is a member of a harmful cult which poses a threat to the community."

7 The actions by the remaining plaintiffs failed.

Second stage of the action.

8 The 7A hearing having concluded, the defendants filed an Amended Defence on 9 February 2004. In respect of the publication in New South Wales, they sought to rely upon the following defences:

· first, that each imputation was a matter of substantial truth (s15 Defamation Act 1974) ("the Act");

· secondly, that each imputation was published in circumstances attracting qualified privilege, either at common law or under s22 of the Act;

· thirdly, that the imputations were "comment" within Pt 3, Div 7 of the Act.

9 These defences, of course, raised a number of issues. In the case of statutory qualified privilege, the issues included whether the conduct of the publisher, in publishing the material complained of, was reasonable in the circumstances (s22(1)(c) of the Act).

10 The plaintiffs' action was also based upon the publication of the same programme in States (and Territories) other than New South Wales. The defences available interstate differed to some degree from those available under the New South Wales Act. It will be necessary to consider the position in respect of each State and Territory.

11 By a Further Amended Reply, filed on 24 April 2006, the plaintiffs denied the availability of such defences. Alternatively, it was said that the publications were actuated by malice or an improper purpose. The Particulars accompanying the Reply were extensive (MFI 6). Amongst other issues, they raised the following:

· first, the suitability of the Rev Dr Millikan, a Minister of the Uniting Church, to examine the ideas of Jeremy Griffith, there being a clash between those ideas and the Rev Dr Millikan's commitment to Christianity and a transcendental God.

· secondly, whether the co-operation extended to the ABC by the plaintiffs was induced by misrepresentations made by the Rev Dr Millikan.

· thirdly, whether the defendants published imputations which they each knew to be false, or did not believe to be true.

12 Neither the first plaintiff (Jeremy Griffith) nor the second defendant (Rev Dr Millikan) gave evidence. Each, nonetheless, was omnipresent, since so much of the documentary and audio evidence included their words. Both parties made submissions based upon Jones v Dunkel (1959) 101 CLR 298. It was suggested that the appropriate inference may depend upon the onus. The onus, of course, is upon the defendants to establish each defence and upon the plaintiffs in respect of malice.

Structure of this judgment.

13 This judgment will be divided into a number of sections. It is convenient to begin, first, with an examination, more or less chronological, of the making of the programme. Findings of fact will be made relevant to the various defences and the issues raised in the Reply.

14 Secondly, the defences in respect of the imputation concerning Mr Griffith will then be examined and whether, where appropriate, such defences are defeated by malice. If the defences fail, whether because they are not made out or by reason of malice, the issue of damages will be examined.

15 Thirdly, the action by Mr Macartney-Snape, in respect of the two surviving imputations which relate to him, will then be examined, adopting the same course.

Background.

16 Mr Griffith was born in 1945. He spent his early years in the country near Albury. He was educated at Geelong Grammar. He ultimately completed a science degree at the University of Sydney, majoring in biology. He was, by all accounts, an indifferent student. Mr Macartney-Snape, in a passage from an interview used in the programme, said this: (Ex N(2): p31)

"He didn't do very well at university. You know, he was described as almost backward at school. and you know, he's a kid from the Australian bush it's. You know he's not in the main stream of, of intellectual thought … "

17 Having left university, Mr Griffith made a search for the Tasmanian Tiger extending over six years. His search attracted media attention, including from the ABC in a programme "The Big Country" in 1972. In the Four Corners programme, the Rev Dr Millikan said this: (Ex N(2): p31)

"The Tasmanian wilderness is where the revelation which transformed Jeremy Griffith began. In nineteen seventy-two, Griffith was on a remarkable five year search for the Tasmanian Tiger. He never found it but became consumed by an overwhelming question. Why had human beings destroyed such a beautiful animal?"

18 Mr Griffith thereafter established a successful furniture business with his brother. At the same time he began what he described as a thirteen year period of study, where he examined "the plight of another species - humanity" (Ex D: back cover). He established, with others, an organisation known as the Centre for Humanity's Adulthood, later known as the Foundation for Humanity's Adulthood ("the Foundation"). In 1988 he published a book "Free: The End of the Human Condition" (Ex D). The book carried a sub-title in these terms: "The Biological Reason Why Humans Have Had To Be Individual, Competitive, Egocentric & Aggressive" (emphasis in original).

19 The "Human Condition" is the capacity of human beings for both good and evil. The claim he made on the front cover of the book was expressed in these terms:

"This book introduces the understanding that frees humans from insecurity - from our 'sense of guilt'. It establishes 'the dignity of man'. It is the fundamental understanding we need to rebuild our self-esteem. It puts an end to the age old misconception of 'good' and 'evil' and reveals the origin of so-called 'sin'. It reconciles the 'left' and the 'right' in politics and ends argument, conflict and war. It makes peace possible. In short it ends The Human Condition.

Our hope and faith that we would avert apocalyptic self destruction is realised."

20 The book was published by Mr Griffith himself, for the reasons Mr Macartney-Snape later provided: (Ex E: p257)

"When the book was ready for publication, publishers found it too confronting and shied away from it. In the end he decided to publish it himself."

21 Mr Tim Macartney-Snape was born in Tanganyika in 1956. He also attended Geelong Grammar, although much later than Mr Griffith. He completed a science degree at the Australian National University, likewise majoring in biology. From an early age Mr Macartney-Snape had an interest in the outdoors. His interest was fostered by Geelong Grammar and its requirement that students spend time at a remote centre known as Timbertop. Once at university he joined a mountaineering club. And so began a distinguished career in mountaineering.

22 Mr Macartney-Snape participated in mountaineering expeditions to New Zealand and the Himalayas, climbing Mt Dunagiri (7,066 m) in 1978, Ama Dablam (6,850 m) in 1981 and Annapurna II (7,937 m) in 1983. During the descent of Annapurna there was a blizzard. The expedition was delayed and ran out of food during the last five days. They were reported as missing, such that when they ultimately returned there was significant publicity. Mr Macartney-Snape was able to use that notoriety to attract sponsorship from Channel 9 for his next venture, which was climbing Mt Everest from the Chinese side (T241). On 3 October 1984, he became the first Australian to climb Mt Everest. His achievement was the more remarkable because the climb was made without oxygen. He was, as a consequence, awarded the Medal of the Order of Australia (OAM).

23 Later that year (1984), Mr Macartney-Snape accompanied the entrepreneur, Mr Dick Smith, and his family, on a trek in Nepal (Ex E: p9). That meeting was important for a number of reasons. Mr Smith was the founder of the Australian Geographic Society. In 1988 he agreed that the Society would sponsor a further expedition led by Mr Macartney-Snape, which became known as "The Sea to Summit Expedition". He was to walk from the Bay of Bengal to the top of Mr Everest, a feat never previously undertaken.

24 Mr Smith, as it happened, was a neighbour of Mr Jeremy Griffith. Mr Griffith attended a function arranged by the Australian Geographic Society in 1987 to hear Mr Macartney-Snape speak. They met after the speech and met again several months later at the home of Mr Dick Smith. Mr Griffith discussed his ideas, which were of great interest to Mr Macartney-Snape. He provided a draft copy of his book, "Free: The End of the Human Condition" (T259), which Mr Macartney-Snape thereafter studied. Mr Macartney-Snape later said that the explanation provided for human nature "made total sense" (Ex E: p258).

25 On 5 February 1990, Mr Macartney-Snape set out from the Bay of Bengal. He walked more than 1,000 kilometres to Mt Everest. He reached the top of Everest on 11 May 1990 (Ex F: p8). He carried with him a number of flags, including the flag of the Australian Geographic Society, his sponsor, and that of the Foundation for Humanity's Adulthood (Ex E: p248). The description which Mr Macartney-Snape later provided of the moment when he placed these flags on the summit included these words: (Ex E: p247)

"Next came a small pennant that Jeremy Griffith and his partner Annie Williams had given me in Sydney. It showed a triumphant fist holding aloft the key that symbolises the knowledge that frees us from the human condition. I had wanted to carry it to the summit because I believed theirs was an utterly responsible and very brave stance to be taking in a world close to the brink of disaster."

26 As before, the climb was made without the aid of oxygen. Mr Macartney-Snape's achievement was again publicly recognised when he became a Member of the Order of Australia (AM).

27 Mr Macartney-Snape then began writing about his adventures, and later published a number of books, as I will shortly describe. He was, at the same time, heavily involved with the Foundation and Mr Griffith's ideas. Although he was a "fan" of Mr Griffith's first book ("Free"), Mr Macartney-Snape recognised that there were better ways of presenting those ideas (T321). He therefore encouraged Mr Griffith to publish his ideas in a condensed form. He recognised, as did others, the danger of the ideas being branded a cult. He and others encouraged Mr Griffith to emphasise the science rather than the religion, that the ideas embodied a rational understanding (T321). Mr Griffith then wrote his second book, "Beyond the Human Condition" (1991). The book, being without a publisher, was again self published. The back cover included these words: (Ex F)

"Charles Darwin connected humans with nature but there biology has been stalled, unable to explain the human condition, the riddle of human nature, our capacity for good and evil. Astonishingly, it is this biological question of questions that Jeremy Griffith has answered. Paradoxically his answer dignifies humans in the most remarkable way. It lifts the burden of guilt.

This book presents the understanding sorely needed for our species' psychological rehabilitation; the real repair of ourselves and of our planet.

This is the breakthrough humanity has yearned for and worked towards unceasingly, against immense odds since our conscious mind emerged 2 million years ago."

28 The front piece, under the symbol for the Foundation for Humanity's Adulthood, included these words: (Ex F)

"The crux problem on Earth has always been the human condition, our capacity for good and evil. The discovery of its cause is the key to our freedom. Humanity can now end its insecure, upset adolescence and enter its peaceful adulthood."

29 The book was launched in November 1991, as I will shortly describe. However, I should first deal with some of the ideas in the book itself.

The fundamental concept.

30 The book in its presentation is repetitive. It uses jargon, that is phrases that are repeated many times in different contexts ("evasion", "upset", "dignifying truth" etc). A convenient statement of Mr Griffith's ideas was provided by Mr Macartney-Snape in his foreword to Mr Griffith's book "Beyond" and the appendix to his book (published the following year), "EVEREST Sea to Summit" In the latter publication Mr Macartney-Snape said this: (Ex E: p258/9)

" … Any rudimentary consciousness was subordinate to instinct. Instincts are behavioural orientations we are born with. They are a product of the genetic information-processing system. This is a form of thinking. Consciousness, on the other hand, is a product of a newer, more able form of information processing, or thinking. It is a nerve-based learning system. Nerves, with their ability to remember past events, can compare experiences and find commonly occurring ones. They can deduce the relationship between events and, on that basis, predict future events. Nerves can understand cause and effect. Highly significantly, nerves are insightful, while genes are not.

The basis of consciousness is knowledge or the accumulation of understanding. As a wholly new phenomenon, consciousness could acquire knowledge only through trial and error, through experiments in self-management. Tragically our already established instinctive self had no appreciation of the need for these errors or mistakes. Our instinctive self, being unaware or ignorant of the newly emerged conscious mind's need to make mistakes, condemned them. It criticised our intellect. Our instinctive self, in effect, wanted our intellect just to obey it and not search for knowledge. For its part, consciousness could not 'explain itself'. It couldn't explain why it had to make mistakes. For that we needed the knowledge - in particular, an understanding of the difference between the gene- and nerve-based learning systems - that we were setting out to find. Unable to explain ourselves, we were made to feel insecure by our instinct's ignorant criticism of our intellect's necessary search for knowledge.

It was unavoidable that this unwarranted criticism should upset us. We became angry towards it; we tried to block it out and to prove it wasn't deserved; we became angry, alienated and egocentric. To champion our intellect, we had to resist the ignorance of our true goodness. We had to suffer being upset in order to find knowledge."

31 Mr Griffith provided a striking metaphor to illustrate the concept. It was the story of Adam Stork. The Four Corners programme included Mr Griffith telling the story (Ex N(1)). Adam Stork was a bird perfectly orientated by instinct to migrate to Europe at a certain time each year, following a particular path. Suppose a fully conscious mind were added to his instinct controlled brain. Assume that, whilst flying north, Adam Stork saw an island with apple trees laden with ripe fruit. His newly acquired conscious mind believed it was appropriate to fly down and try the apples. For the conscious mind to make sense of the world, it was necessary that he learn by trial and error. The instinctive mind, however, was anxious that he should remain on course. It did not want him to search for understanding. It was, moreover, critical of his impulse to deviate from the instinctive route.

32 Adam Stork realised, however, that he could not ignore his intellect. He needed to know. But he felt bad about disobeying his instincts. He was immediately condemned to a state of "upset". The battle had broken out between his instinctive self and his conscious mind (Ex F: p27ff).

33 Man, as a distraction and a comfort from "upset", pursued egocentric and selfish behaviour, materialism, and even violence. In the process man demonstrated a capacity for evil. Commenting on the metaphor, Mr Griffith said this: (Ex G)

The Man of la Mancha

The Bible

Worst of all our resulting upset behaviour drew further criticism from our idealistic conscience making us even more insecure and upset! The human condition of having to live with an undeserved sense of guilt is the cause of all the anger, egocentricity and alienation that is destroying our planet. The human condition is at the root of all our problems."

34 Returning to Mr Macartney-Snape and his commentary, he said this: (Ex E: p259)

"So this is the good reason for our 'badness', our upset state. … Our striving and suffering have represented an incredibly heroic struggle to champion the intellect over ignorance, to reconcile conscious and conscience, to abolish the antagonism within. However much we might have appeared to be an evil, wayward species, we have actually been fundamentally heroic and good. The tragic side of history has all been, in the end, for a greater good."

35 The explanation provided by Mr Griffith in his book is said to be grounded in science, not religion. It did not require faith. The manifestations of evil (termed "upset") are not genetic. Rather, they are the product of the learning process which our large brain and intellect have required. Mr Macartney-Snape said this: (Ex E: p259)

"Anthropological evidence suggests that our fully conscious mind appeared some two million years ago with the advent of the genus Homo. The implication, then, is that this battle between instinct and intellect, this peculiarly human predicament, or condition, of having to live with an undeserved sense of guilt or badness, has been with us for two million years! We have been an immensely heroic but at the same time immensely upset species. Now at last, with this greater dignifying and reconciling understanding of ourselves, our upset is free to subside."

36 Part of the science upon which Mr Griffith relied was the evolutionary history of our species, Homo sapiens sapiens. Mr Griffith identified a number of stages in our development. Our ape ancestors lived between twelve million and five million years ago. Like certain primates today, they had comparatively large brains. There began a process of what was termed "love indoctrination" (cf Ex F: Figure 3, p131), which was described in these terms: (Ex F: p84/5)

appears

37 By this process, man (in the form of australopithecines) reached perfect integration about five million years ago (Ex F: Figure 3, p131). Compared to other species, man had a long infancy, where each newborn experienced love indoctrination. Man passed from infancy to what Mr Griffith termed "childhood", the Garden of Eden of biblical myth. Mr Griffith, in an introductory talk on 6 February 1995 (in the presence of the ABC), which I will shortly describe, elaborated in these terms: (Ex A(20)(1): p30)

"In fact anthropologists changed the genus in recognition of a sudden change here from what we call the australopithecines to homo. And I'm saying that so the pygmy chimpanzee's skeleton is almost indistinguishable from the earliest australopithecines, Australopithecus afarenis. And so from the pygmy chimpanzees who are on the threshold of this other utterly cooperative state I'm saying the australopithecines lived in this utterly gentle cooperative state and for some two, three million years and from five million years ago to two million years ago. They all lived in utterly cooperative, entirely vegetarian, we know from their wear pattern on their teeth … "

38 Mr Griffith added: (p30/1)

our instinctive orientation was to being utterly cooperative, gentle and selfless

39 Mr Griffith referred to the work of Richard Leakey and Roger Lewin in support of his thesis that our forebears were "gentle, loving and cooperative". They were not "aggressive blood thirsty brutes", as other anthropological commentators such as Raymond Dart, Konrad Lorenz, Desmond Morris and Robert Ardrey had suggested (Ex F: p65). Konrad Lorenz said our divisive behaviour was the product of past experiences. It was instinctive (Ex F: p60). Robert Ardrey, on the other hand, believed that our competitive nature came from the imperative to defend our territory (Ex F: p60). Raymond Dart, who found a fossil of australopithecines at Taung in South Africa in 1924, believed our human ancestors differed from other primates because they were more aggressive. Desmond Morris, who wrote the Naked Ape (1967), believed that, with evolution, the innate animal aggressiveness of our ancestors has been moderated by more co-operative behaviour. I will return to this aspect when examining the defence of truth, that is whether Mr Griffith's published work is of such a poor standard that it has no support at all from the scientific community (Pt 3).

40 Mr Griffith dismissed these opposing theories as "contrived excuses" for our divisive behaviour, advanced to protect human beings from unjust criticism (Ex F: p60). He made reference to the present day observed behaviour of various apes, who had much in common with humans. He noted that: (Ex F: p121)

" … in all ape species there is still a residual amount of uncontained sexual opportunism, such as dominance hierarchy (which orders and thus, to a degree, contains competition for mating opportunities) and infanticide … "

41 However, he explained that love indoctrination was not easy to develop. It had to overcome deeply imbedded divisive behaviour. He said this: (Ex F: p121)

" … Ideal nursery conditions were needed for love-indoctrination to develop, which explains why many primate species are still stranded in infancy. It also explains the fossil void or 'missing link' in the anthropological record of our forebears. We have as yet found no fossil evidence of our ape ancestor, Infantman."

The place of God.

42 The Garden of Eden, which we used to inhabit two million years ago, was a place of integration, co-operation and selflessness. Mr Griffith said this: (Ex F: p43/4)

"Integration, or perfect order of matter where all the parts are brought together to work for the maintenance of total order, would be the logical conclusion for this remarkable process. Another way of expressing this idea is that the aim or meaning of life is to achieve universal harmony or 'peace on Earth'.

The essential ingredient of order is that the individuals or parts consider the welfare of the group, or larger whole, above their own welfare. This is unconditional selflessness, the theme of integration and surely what we mean by love."

43 Mr Griffith later added: (Ex F: p46)

"From the scientific side, there is actually a physical law that explains integrative meaning. As part of my physics course at school I was taught the Second Law of Thermodynamics, which says that everything breaks down to its basic component parts. In scientific terms this means that all energy systems (and matter is a form of energy) must break down until they become heat energy. Since leaving school I have learnt that this law does not apply to 'open' systems which can draw energy from sources outside themselves and which can thereby develop order, or grow in complexity. Earth is an open system, drawing its energy from the Sun. This development of order is known as the 'Second Path' of the Second Law of Thermodynamics. The Second Law of Thermodynamics is also referred to as entropy and its second path as negative entropy.

God is negative entropy, the development of order of matter or, in a word, Development. We can see here that monotheism, the belief that there is only one God, was correct."

44 Mr Griffith explained the concept in rather more simple terms in a talk on 8 February 1995, during the making of the Four Corners programme. He said this: (Ex A(22)(1): p8)

" … buried within us is a memory of incredible sensitivity and knowingness, and what it's like to be all together harmonious which is really I'm suggesting what God is. God is an integrative state, a cooperative state, a state of harmony, of great love for all things, and sensitivity, no barriers."

45 The plaintiffs, in submissions, expressed the concept in these words: (PS: para [288(d)])

“(d) … Mr Griffith’s work is avowedly teleological in nature and seeks to link human evolution, including the evolution of consciousness, with a broader principle, which sees such matters as an expression of the general tendency of matter to form ever more complex and organised wholes.”

Mr Griffith as a prophet.

46 Mr Griffith recognised the claims he made in respect of his ideas were large. Indeed, they may be regarded as outrageous. It was his view that he had addressed and solved "the question of questions", the source of evil in human behaviour. It was a question that had bedevilled mankind and philosophers for millennia. He was conscious of the enormity of what he was saying. He was particularly conscious of the affront to persons supposedly more clever than he, as revealed by the following comment, referring to Professor John Wren-Lewis, a supporter of the Foundation in the early stages, who later withdrew his support: (Ex 35(1): p40)

"But the deeper level … psychological level, the problem is this. It is so offensive that this kid walks out of the scrub, read bugger all, and unravels the whole shit fight. Now for someone like John right, who is, he is an awesome intellect."

47 Mr Griffith did not understate his achievement. He said this: (Ex F: p163)

"Since the emergence of our fully conscious mind over 2 million years ago, humanity has dreamed of, hoped and prayed for and, above all, worked unceasingly against immense odds towards this breakthrough."

48 How, then, did he do it? Mr Griffith claimed that he was a prophet, although building upon the work of others, and able to take advantage of insights provided in the twentieth century by science. In his first book, "Free" (Ex D), he explained what he meant by the word "prophet" in these words: (Ex D: p180/1)

"To solve this problem what was required was for someone to come along who was exceptionally unevasive, someone with an exceptionally strong and thus good conscience for sieving the mind's thoughts, who would defy and thus not adopt all our evasions. This person, by retaining only the truthful components of science's hard-won insights, would assemble the full unevasive truth for us. To defy all our evasions this person would need an exceptionally unrepressed conscience. He would need to be exceptionally sound. The only people who are not at all evasive of the truth, who do not fear integrative meaning/God, who 'delight in the fear of the Lord' (Isaiah 11:13) are our prophets, those among us who are exceptionally free of 'mistreatment' or hurt (encounter with the compromise and upset to our soul associated with the human condition) who have no cause to evade/repress/alienate their soul and its conscience."

49 Mr Griffith, acknowledging that he was building upon the work of others, used the following metaphor: (Ex F: p163)

” … In gridiron football the team as a whole (with one exception) does all the hard work gaining yardage down the field. Finally when the side gets within kicking distance of the goal posts a specialist kicker, who until then has played no part, is brought onto the field. While he - in his unsoiled attire - kicks the winning goal, the win clearly belongs to the exhausted players who did all the hard work."

50 Elsewhere, Mr Griffith said this: (Ex F: p162)

"As the quotes in this book reveal, all I have been able to add to the perception/soundness of Jesus Christ and Sir Laurens van der Post is the biological reason for the repression of our soul. Through all the evasion in recorded history a thread of strong, unevasive thought has been held onto and developed. The exceptionally unresigned and unevasive thinkers or prophets of modern times that I have become aware of are Sir Laurens van der Post, Pierre Teilhard de Chardin, Arthur Koestler, Eugène Marais, William Blake, Jean-Jacques Rousseau and Antoine de Saint-Exupéry."

The role of women.

51 The Four Corners programme touched upon the differing roles of men and women, as described by Mr Griffith. Men were engaged in the battle for understanding. Women were not (Ex 21(3): p22). Mr Griffith said this: (Ex F: p140/1)

had

52 Mr Griffith added: (p145/6)

" … The truth is that men shouldered the responsibility of searching for knowledge, became upset by the criticism from ignorance and innocence and retaliated against all innocence, including destroying or fucking innocent women. Women were the victims not the cause of upset in men, but lust became such a strong force in us, we were misled into believing it seduced us into behaving in an upset way."

53 Mr Griffith used the word "fucking" deliberately. Sex for man in an alienated world was akin to rape. In his previous book, "Free", he said this: (Ex D: p46)

"Men invented sex, as in 'fucking' or destroying, as distinct from the act of procreation. What was being 'fucked' or destroyed was women's innocence."

54 Later in the same book, Mr Griffith said this: (Ex D: p116)

"The truth is, this regular sex that - until very recently anyway - we pretended we did not have and did not exist, is a horrible attack on, is rape of, destruction of innocence, albeit also one of our greatest releases from frustration caused by the pressures of the human condition."

55 Returning to his second book, "Beyond", and having said that there were real differences between men and women, Mr Griffith said this: (Ex F: p148/9)

"The development of women's exhaustion was tied to men's. Women had to try to 'sexually comfort' men but also preserve as much real innocence in themselves as possible for the nurturing of the next generation. Their situation, like men's, worsened at an ever-increasing rate. The more women 'comforted' men, the less innocence they retained and the more the next generation suffered and needed 'comforting' etc."

56 The Foundation circulated newsletters to members. Many were written by Mr Griffith. They included letters relevant to the work of the Foundation in propagating Mr Griffith's ideas. They also included transcripts of discussions between members. Newsletter #28, published on 30 November 1994 (Ex 41), included a discussion between members concerning the role of women, at least during the "battle" phase (whilst men were seeking understanding). The discussion certainly creates the impression that women were fulfilling a subservient and supportive role to men (Ex 41: p11ff; p30ff).

The new world.

57 Mr Griffith described his vision for the new world in his first book, "Free". in these terms: (Ex D: pp71/2)

"Having been through a period of intellectualism humanity will now go through a period of 'soulism' to clear up any remaining evasions. The situation now is that the exhausted can go into therapy (instead of into even more egotistical, futile, false and upsetting pursuits as has often been the case) since therapy is now at last possible, and the sound can go into inquiry since they no longer represent criticism of the rest of us. Effectively organised at last (after all, the practical way to play a game of football is to have the fresh players on the field and the exhausted ones off the field resting), we will quickly mend ourselves and our earth. When all our evasions are cleared up there will be no further need for our soul. The intellect will then be free to realise its full potential as the master tool that it is. It is the nerve-based learning system, or mind, that can knowingly integrate the universe."

58 He saw cities as the product of alienation and egocentricity, the creation of an upset world. He said this: (Ex D: pp72)

" … Also, while humanity will now start to close its cities down (in truth cities were not functional centres as we evasively claimed, they were hideouts for alienation and places that perpetuated/bred alienation - to quote the Australian historian Manning Clark 'the bush [wilderness] is our source of innocence; the town is where the devil prowls around') and go back to nature to rehabilitate its soul and become sound again, it shouldn't 'throw out the baby with the bathwater' and lose all the knowledge it gained in inquiry such as in the field of high technology." (footnotes omitted)

59 In his second book, "Beyond the Human Condition", Mr Griffith repeated these thoughts. The following passage appears: (Ex F: p180/1)

"We haven't been able to access the real enjoyment that our world has to offer, which is its great beauty and integrativeness, but now we can. In the not too distant future instead of making embellished silver spoons we will each carve from a piece of wood and carry our own simple spoon. One person can show another how to experience the beauty of sunlight and share the other's home-grown vegetables. They can then help build their community's simple communal mud-brick dwelling amongst the trees. The truth is cities were not functional centres as we evasively claimed, they were hide-outs for alienation and places that perpetuated/bred alienation. We will begin to close our cities down now."

Defences against derision.

60 Mr Griffith believed that his ideas called for a new paradigm, which would be met with resistance or ignored. He formulated answers and strategies to deal with such responses. First, he identified the young as the target audience. Young minds were more likely to be open to a new paradigm. The reasons were obvious. The following was said in Newsletter #20: (Ex 7(1): p3)

61 Secondly, Mr Griffith believed that he was offering a scientific explanation for the human condition. He nonetheless recognised that science traditionally proceeded in a mechanistic way, applying scientific method, taking small steps. The "big picture" may or may not ultimately emerge. Mr Griffith believed that a different approach was called for, a holistic approach. Deirdre Macken, a journalist, described such an approach in an article, "Science Friction" on 16 November 1991, in these terms: (Ex A(17): p23)

"The push for a more holistic approach to science has been gathering momentum for a decade. In what seems almost like spontaneous evolution, the demand for a radical shift in the way we view science was coming from physicists, biologists, psychologists, educationalists and agriculturalists and, although these scientists had come to this conclusion from their own work, the verdict was the same.

The new scientists are nomads, wandering into many different fields of science to get a broader picture. They have stepped back from their microscopes to see organisms in their environments and with their own relationships; they are not afraid of terms such as 'purpose' and 'meaning'. Most importantly, they want the rigours of modern science to be applied with the open-minded approach of pre-modern science."

62 The same article referred to a number of eminent scientists who could be described as holistic or sympathetic to that approach, including Emeritus Professor Charles Birch and Professor Paul Davies, to whom reference will be made later. Mr Griffith embraced the holistic approach, describing scientists who rejected his ideas as "mechanistic and evasive".

63 A third matter concerned a particular argument used to defend the ideas, which was criticised as circular. Mr Griffith asserted that his ideas provided relief from the alienation and exhaustion of the old world. If, however, someone doubted his ideas, their doubts were the product of exhaustion and alienation. It prevented them from seeing the truth. Dr Millikan raised this issue with Mr Griffith at a meeting on 16 February 1995 during the making of the programme. The following exchange took place: (Ex 35(1): p8)

64 Shortly after Mr Griffith wrote to Dr Millikan, referring to "the circular argument problem" in these terms: (Ex A(37): p2)

are

The launch of the book "Beyond".

65 The book, "Beyond" (Ex F) was launched at the Queen Victoria Building on 12 November 1991. Before its launch, Mr Macartney-Snape, as a Director of the Foundation, wrote to a number of eminent scientists who had been identified, according to the terms of his letter, as having been "of assistance and inspiration to the author", Mr Griffith (Ex A(7); Ex A(67)). The letter to Dr Colin Groves, at the Department of Prehistory and Anthropology at the ANU, sought his comment in respect of his area of interest. It said this: (Ex A(7))

Beyond The Human Condition.

66 The letter to Professor Birch was couched in these terms: (Ex A(67))

Beyond The Human Condition

67 Professor Davies was asked to comment "on the reason presented for science's denial of integrative meaning" (Ex A(69)), whereas Professor Morton was asked to comment on "the reconciliation between biology and theology being presented" (Ex A(68)). The letters from Mr Macartney-Snape to these scientists included a list of those who had been invited to provide such comments, namely: (Ex A(7))

· "Robyn Williams presenter of the ABC's Science Show is being invited to introduce the book's view of the scientific paradigm;

· Professor Charles Birch on the book's reconciliation between science and religion;

· Dr Richard Leakey on the anthropology;

· Professor Ilya Prigogine on the significance of negative entropy;

· Professor Paul Davies on the reason presented for science's denial of integrative meaning;

· Professor John Morton on the theology;

· Sir Laurens van der Post on the integrative orientation of our instinctive soul;

· Professor John Wren-Lewis on the spirituality;

· Dr Germaine Greer on the explanation of male/female relationships;

· Dr Edward de Bono on the value of the conceptual thinking."

68 Each letter was accompanied by a poster advertising the book, and a proposed media release. The poster was headed, in large letters, as follows: (Ex A(7))

THE BOOK
OF OUR TIME
Human Nature Explained at Last

69 The poster included a reproduction of the cover of Beyond and below the following comment: (Ex A(7))

"Charles Darwin explained the origin of the variety of life on Earth and connected humans with nature. But there biology has been stalled, unable to explain the human condition, the age-old riddle of human nature, our capacity for good and evil. Astonishingly, it is this question of questions that biologist Jeremy Griffith answers. Paradoxically his answer defends and dignifies humans in the most remarkable way. It lifts the burden of guilt, making possible our species' psychological rehabilitation; the real repair of ourselves and our planet."

70 The media release contained information about the author and Mr Macartney-Snape, and included these words: (Ex A(7))

"Introducing a biological idea as revolutionary and potentially controversial as Charles Darwin's natural selection."

71 Mr Macartney-Snape despatched these various letters in September 1991. Professor Charles Birch responded on 20 October 1991, with a letter in these terms: (Ex A(67))

"Here is a statement for what it is worth and to use as you wish. I regret the delay but I have really been snowed under since I returned so much so that I wonder if it is worth while going away! Especially when one adds to that prolonged jet lag.

I liked your book and found it ever so much more readable than your first effort. I hope it gets as large readership.

My one surprise was to find you quote Duane Gish on page 47. He is the notorious promoter of creation science so called as opposed to evolution. The God he proposes is not the sort of God you want to promote. He is a menace and the main promoter of anti-evolution in the USA. Quoting him will suggest to readers that you agree with his views on other issues."

72 The letter was accompanied by Professor Birch's comment, which was as follows: (Ex A(67))

" Comment on Science and Religion in "Beyond the Human Condition" by Jeremy Griffith.

Jeremy Griffith makes the right emphasis when he identifies the order of the universe and its cosmic and biological evolution as the issue that brings science and religion together. Science shows an increasing complexity in order with cosmic and biological evolution but it finds no meaning to that increase in complexity. Jeremy Griffith finds that a religious vision brings an 'integrative meaning' to that order. Moreover it leads him to an ethical vision of integrating love and peace. In all this he gives us a genuinely original and inspiring way of understanding ourselves and our place in the universe. His vision is one I embrace with enthusiasm and commend to all those who are searching for meaning."

73 Professor Morton, Emeritus Professor of Zoology at the University of Auckland, Lay Canon of Holy Trinity Cathedral Auckland and author of "Redeeming Creation", also responded. His comments included the following: (Ex A(8))

Beyond The Human Condition

74 A fax was sent to Dr Colin Goves on 22 October 1991, providing copies of the comments of Professors Birch and Morton. On 24 October 1991, Dr Groves wrote back in these terms: (Ex A(9))

____________

Beyond the Human Condition

75 Dr Groves' accompanying note was as follows: (Ex A(9))

"I hope this is going to be useful to you? I cannot go on about the religious consequences like Birch, Morton or the good Ms Jones, being an agnostic, but the scientific spin-offs are worth considering. What a pity the Pygmy Chimpanzee is confined to what must be about the most uptight, 'upset' country in the world - Zaire!

Detailed comments on some parts of the book will come later. Hope to be seeing you."

76 Having not heard from Professor Paul Davies, Mr Griffith wrote to him again (by fax) on 21 October 1991. His letter included these words: (Ex A(69))

"Inspired by your acknowledgement of integrative meaning the book's concern is with the reason why humanity has been evasive of the 'optimistic arrow'.

Tim Macartney-Snape (who wrote the book's foreword) and I are hoping you might make a brief recommendation for the book that we can use at its launch here in November."

77 Professor Davies, on the letterhead of the University of Adelaide, wrote back on 5 November 1991 in these terms: (Ex A(69))

"Commendation

What does it mean to be human? Jeremy Griffith's challenging study of our internal conflicts - our 'upset' - will surely spark fresh debate on the human condition. In this sweeping synthesis, the author draws from the physical sciences, from anthropology, from religion and philosophy, to build a new conception of human beings and our place in the universe. From his penetrating insight into the origins of the human condition Griffith shows how, through understanding it, we may move on to achieve true peace and harmony. Here is a frank, bold and, above all, hopeful message for mankind."

78 These letters (with the exception of the letter from Dr Groves of 24 October 1991) (Ex A(9)) were tendered subject to a limitation under s 136 of the Evidence Act 1995, expressed as follows: (Ex A(67); Ex A(68); Ex A(69))

'evidence only of the conduct constituted by the sending of the letter in its terms or the making of the statements as recorded (as the case may be) and not of any asserted facts or the state of mind of the author/speaker.'

79 Dr Groves was called to give evidence and acknowledged having given the commendation (T632). He was ultimately critical of Mr Griffith's work. I will return to this material in Pt 3 below when dealing with the imputation against Mr Griffith and whether it can be said his published work was "of such a poor standard that it had no support at all from the scientific community".

80 The media was invited to the launch to meet Mr Griffith. The Rev Dr Millikan attended as the head of Religious Broadcasting at the ABC, a position he held for seven years (Ex A(44): p5). He was the editor of National Outlook, and the author of a number of books, "Imperfect Company" (William Heinemann Australia) and "Worlds Apart" (co-authored with Nevill Drury) (ABC). He was described by the ABC as a "recognised expert on new religious movements" (Ex A(44): p5). He had been an expert witness concerning cults in Australia, London, Singapore, Spain and France (Ex A(44): p5). Mr Macartney-Snape made a speech. A flyer was distributed (Ex G) with the same heading as the poster ("The Book of Our Time - Human Nature Explained at Last"). It included the commendations of Professors Birch and Morton, as well as part of an interview given by Mr Griffith in which he provided the Adam Stork story.

81 After the launch, Dr Millikan interviewed Mr Griffith. Mr Griffith elaborated upon his ideas, including the concept of God as negative entropy. The interview was eventually broadcast on 16 February 1992 (Ex A(3)(2)).

The Bulletin article.

82 On 3 December 1991, shortly after the launch, Dr Millikan wrote a review in The Bulletin. The heading was as follows: (Ex H)

" Beyond belief

83 The article began with these words:

"The New Age has not been short of gurus, saviours and bearers of hidden truths. They arrive with the sweet conviction of holy certainty to unbosom themselves of the latest revelations about the dilemmas of life."

84 Having described a number of "gurus", Dr Millikan referred to the recent book launch. He repeated the claims made in the posters, describing the audacity of such claims as "breathtaking". He reported that Mr Macartney-Snape described Mr Griffith as a "modern saviour", quoting the following words, presumably from Mr Macartney-Snape's speech at the launch: (Ex H)

"I believe that eventually more words of importance will be spoken and written about Jeremy Griffith's ideas than about any others - ever."

85 Dr Millikan, in the review, referred to the more cautious comment from Professor Wren-Lewis, that Mr Griffith's ideas " … could provide the desperately needed clue to personal and social renewal at this ultimate crisis point in human history". He referred to the British physicist, Paul Davies, and his comment that Mr Griffith "may" be the way humanity can move on to achieve true peace and harmony.

86 There followed a brief description of the ideas. Mr Griffith, according to Dr Millikan, was asking the right questions. His theory, however, rendered our past morally neutral. The Holocaust implied no moral burden for humanity. The article ended with these words: (Ex H)

"And what does his theory say about the scheme of things if our maturity is achieved at such cost? Mind you, for those who believe in God (which Griffith does not) this is the question, so he is in the right territory. The trouble is, he does not advance the cause."

87 The plaintiffs, in submissions, placed some emphasis upon this review as demonstrating Dr Millikan's malice. They submitted, and I accept, that the review could be described as distinctly negative (PS: para [24]). Indeed, Dr Millikan later acknowledged it was "hostile … a fairly hostile review" (Ex A(53)(1) line 692/700). Mr Macartney-Snape, whilst acknowledging that Dr Millikan fairly represented Mr Griffith's ideas (T444), said that Dr Millikan's suggestion that Mr Griffith did not believe in God was unfair. Mr Griffith had told Dr Millikan in the interview after the launch that he believed in God in the sense of negative entropy (Ex A(3) line 53 and 115).

88 I do not accept that Dr Millikan was deliberately unfair in misrepresenting Mr Griffith's views. Perhaps what he should have said is that Mr Griffith did not believe in a transcendental God.

89 The plaintiffs drew attention to Dr Millikan's knowledge, as at December 1991, of Mr Griffith's scientific support. Having referred to Professors Wren-Lewis and Paul Davies in The Bulletin article, Dr Millikan included these words: (Ex H)

"So Griffith has gathered some weighty supporters for his theories."

After the launch.

90 The Foundation was accepted as a charity for tax purposes. Its members, and especially Mr Griffith and Mr Macartney-Snape, sought publicity for its ideas. Newsletters kept members informed (Ex 7). The newsletters reproduced a number of newspaper reviews of the book, generally unfavourable. One such review, in the Canberra Times on 4 January 1992 (under the heading "At times amusing case study in pseudoscience"), included these words: (Ex 7(1): Newsletter #20, p20)

"Its substantial, approving quotes from the Bible definitely place this book in the religious section of the library."

91 A more substantial review of "Beyond" appeared in a journal called The Melbourne Report in February 1992. The review was critical of many aspects of the book, including the absence of a bibliography and an identification of sources for diagrams and graphs. The author's conclusion was expressed as follows: (Ex 7(1): Newsletter #20, p18)

"Although Griffith's optimistic approach may be welcome, his almost total reliance on the Bible and his failure to draw effectively on scientific sources means that his work, although perhaps likely to appeal to some committed Christians, is unlikely to convince the wider and more sceptical audience which he is seeking to reach. Whilst such an audience may wholeheartedly endorse many of Griffith's objectives, they are left without sufficient evidence to accept his concepts as more than his personal interpretation."

92 Dr Millikan, the editor of National Outlook, wrote a further review in April 1992, which was not tendered, but which I infer was adverse (PS: para [23]). The only review in a scientific publication, according to a computer search undertaken by an academic who gave evidence, appeared in The Australian Journal of Psychology in 1991. It was a short piece submitted by Ross L Smith, Health Department of WA. The review was in these terms: (Ex 36)

"This book is published by the Centre for Humanity's Adulthood, an organisation devoted [to] the promulgation of Griffith's views. The organisation forwarded a copy to AJP for review and in the covering letter observe that the book '… identifies the source of all our human insecurities and resultant upsets and resolves them'.

Griffith's zeal and wide ranging references to matters of science and the humanities may be admired, but the end result is more speculatively philosophic rather than scientific, and there is something akin to an evangelical enthusiasm intrinsic to the presentation.

It is not a book that can be considered to fit the notion of a psychology text. However it may be of interest to any reader who might wish to reflect on the various causes for, and uncertainties concerning, the future of civilisations and the human condition."

93 By mid 1992, a number of young members of the Foundation, impatient with the absence of any substantial response to the book "Beyond", established what was called "The Huxley Club", named after Professor Thomas Huxley, the defender of Darwin's ideas. Professor Huxley famously responded to the attack upon Charles Darwin by Bishop Wilberforce in an Oxford debate in 1860. The objective of the Huxley Club was to propagate Jeremy Griffith's ideas.

94 In the September/October 1992 Newsletter, it was noted that a member of the Foundation had talked to the boys at Knox Grammar, Shore and Barker College, about Jeremy Griffith's book. It was said that everyone, including Masters, had been impressed (Ex 7(1): Newsletter #21, p1). Mr Macartney-Snape gave evidence that there was discussion with the headmaster of Shore, and correspondence with the school, concerning whether it was appropriate to distribute the Foundation's material (T342). Mr Macartney-Snape said that, in his view, it was not inappropriate, although he recognised that it was a sensitive area and that care had to be taken (T342).

95 In April 1992, Mr Macartney-Snape gave a number of talks to the Queen's Trust. He spoke of his mountaineering expeditions, including the placement of its flag on the summit of Mt Everest, and the importance to him of the Foundation (T422).

96 In the course of 1992, Mr Macartney-Snape completed a number of books. He published a book, "Mountain Adventurer" (Ex Z), aimed at children. He also completed his book concerning Everest ("EVEREST Sea to Summit"). The book was launched by Sir Edmund Hillary on 6 November 1992. Reference has already been made to the appendix to that book (supra para [30]). Appendix One began with these words: (Ex E: p257)

"As I wrote in earlier pages, my experiences in the natural world have granted me a perspective of life that has not only given me strength and belief in myself, but also brought on grave concerns about the nature of modern life. However, the ideas of a remarkable Australian have replaced my somewhat bleak view of the future with an optimistic one."

97 There was a deal of publicity concerning the book before its formal launch. On 14 August 1992 Mr Macartney-Snape appeared on Burke's Backyard, as described in the newsletter: (Ex 7(1): Newsletter #20, p1)

Beyond

98 In September 1992, Mr Macartney-Snape began a series of lectures around Australia promoting his book. He used the mailing list of Australian Geographic (the publisher of the book) to notify those who may be interested. During these lectures he spoke of Mr Griffith and his ideas and their importance to him (Ex 7(1): Newsletter #22, p30).

99 Mr Macartney-Snape, at this time, recognised his potential as a speaker, recounting his mountaineering adventures. On 20 September 1992, he wrote to Ms Kay Batstone asking her to act as his agent. His letter included these words: (Ex AD)

"I was shown some of your publicity material at Australian Geographic and thought you might be interested in including me in your portfolio of speakers.

I do a lot of corporate speaking which is financially quite rewarding but not nearly enough speaking to schools which I find more satisfying. I have a feeling that schools would like to have me but find it difficult to reach me - so hopefully they would appreciate your service."

100 In the same year, 1992, Mr Macartney-Snape was interviewed by Caroline Jones on the ABC. The interview was ultimately published in a book, "The Search for Meaning", by Caroline Jones. During the interview, Mr Macartney-Snape described the descent from Annapurna in 1983 when the expedition became stranded by a blizzard. Each member of the expedition recognised the probability of death. He said this: (Ex AA: p212/3)

" … it just struck me as being an incredibly unfair thing and suddenly I was overcome by this sense of power … I was as exhausted as everyone else but all of a sudden there was this … this sense of power … and I think where it sprang from was the fact that I'd always known that deep down I was essentially a good person and I was essentially strong, and this knowledge of inner strength was demonstrated very vividly to me then when suddenly this strength surged through me and I was able to keep going, in fact, almost leave the others behind. I never cease to be amazed by this capacity within us; it's latent in all of us to have incredible strength and we can make ourselves do things which we, you know, would previously have thought impossible."

101 Mr Macartney-Snape then said this, explaining the relevance of Mr Griffith's ideas: (p213)

"… where the state of exhaustion had brought forward in me this incredible inner strength and an incredible serenity and a nobility to look at things from a different perspective, and an ability to savour life in a far more enjoyable way, and it's really, for me, been a glimpse of paradise. I've relived that situation several times: it's always been when I've been physically and mentally exhausted. It's almost as if we have a part of our mind being held in a prison and it's only allowed out when the part of our mind that's holding it prisoner is so fatigued that it drops its guard and this tremendous sensitivity comes forward.

I always had difficulty in understanding this until I was introduced to the ideas of Jeremy Griffith and then it became very plain to me why this was the case."

102 Mr Griffith and his partner undertook a tour of Africa between August and October 1992 to promote "Beyond" (Ex 7(1): Newsletter #21, p2). Mr Macartney-Snape was invited to give two lectures to the Royal Geographical Society in London, the first in December 1992. Again, he took the opportunity to promote Mr Griffith's ideas (T419). He acknowledged, however, that there had been no genuine interest (T420). The newsletter reported that, whilst in the United Kingdom, Mr Macartney-Snape intended to explore the possibility of releasing "Beyond" in the United Kingdom and the United States. A tour of the United Kingdom by Mr Macartney-Snape and Mr Griffith was planned for 1993 (Ex 7(1): Newsletter #22, p30).

The “Absurd Cult Saga”.

103 In mid 1993 there arose, however, what the Foundation called "the absurd cult saga". A number of concerned parents began what was termed "a clandestine campaign" to brand the Foundation "a cult". Caroline Jones received a letter from Gateway Counselling, an organisation said to have a special interest in "de-programming" young people caught up in "pseudo-religious cults" (Ex 7(2): Newsletter #26 Pt C, p2). Lawyers for the Foundation wrote to Gateway Counselling protesting.

104 Professor Paul Davies publicly withdrew any association with the Foundation. On 24 September 1993, Professor Davies (Professor of Natural Philosophy at the University of Adelaide) wrote to Mr Griffith in these terms: (Ex 25)

"Thank you for your letter of 20 September. I confess I am indeed becoming concerned about complications surrounding the use of my name in connection with your book. When I originally provided a few words for you I had no idea that they would be so prominently used, or that I would be dragged into any sort of controversy. I would prefer it if my name could be omitted from future promotion."

105 Mr Macartney-Snape's sponsor, Mr Dick Smith, also became involved. He had been shown Mr Macartney-Snape response to Gateway Counselling and was concerned that it implied that he supported Mr Macartney-Snape's beliefs. Mr Smith wrote to Mr Macartney-Snape on 24 November 1993 in these terms: (Ex 2)

"Despite what I believe you think, I have total sympathy with the parents involved and I can understand them doing anything they can to protect their sons and daughters. You may not understand this, Tim, but the reason the parents wanted to keep the meeting 'secret' was because of their concern for their loved ones.

In fact I've seen quite the opposite -- great divisiveness, family disunity and marriage difficulties.

The lack of progress.

106 Newsletter #26, published in late 1993 (October to December) (Ex 7(2)), provided a frank report from Mr Griffith concerning the absence of progress in propagating his ideas. Mr Griffith said this: (Ex 7(1): Draft Newsletter #26, Part A, p2)

And he [Christ] was amazed

at their lack of faith

Free

107 Mr Griffith then dealt with the fate of the second book, "Beyond": (Ex 7(1): Draft Newsletter #26, Part A, p2)

Beyond

Everest: Sea to Summit

Beyond

108 Mr Griffith's assessment continued, identifying one small area of hope: (Ex 7(1): Draft Newsletter #26, Part A, p2)

"After all these failed approaches to the masses and to the establishment we looked around and found one small area where there was success. The understandings had taken hold among a small group of exceptionally solid, intelligent young people in Brisbane and to a lesser extent in Sydney, Armidale and Adelaide. Throwing all our support behind their efforts the understandings at last began to take root."

Initial Assumption

1. That any downturn in revenue earned in speaking engagements by Mr Macartney-Snape after the date of the 4 Corners Broadcast was caused by the publication of the defamatory imputations about Mr Macartney-Snape set out in the current version of the Statement of Claim.”

949 The defendants retained Mr Paul Vincent, who was also a chartered accountant, who prepared a commentary upon Mr Lom’s methodology and calculations. Mr Vincent provided an alternative assessment (Ex 28(1)). Each prepared a second report, adjusting the calculations made in the first (Exs A(74)(2) and 28(2)).

950 The methodology adopted by Mr Lom, and used by Mr Vincent, involved a number of steps:

· First, upon the basis of Mr Macartney-Snape’s speaking engagements and earnings before the broadcast, how many school lectures and corporate lectures, on average, did he give each year?

· Secondly, what fees were payable, on average, for such lectures?

· Thirdly, what was the cost of giving each lecture (motor vehicle expenses and fixed costs)?

· Fourthly, what was the likely duration of Mr Macartney-Snape’s speaking career?

951 Once these calculations and assumptions had been made, Mr Macartney-Snape’s loss could be calculated, giving credit for earnings made from the modest number of lectures he was invited to give after the broadcast, and credit for the cost saving for each lecture not given.

952 Mr Lom’s analysis demonstrated an immediate and significant downturn in invitations to speak, whether to schools or corporate bodies (Ex A(74)(1): para [4.3]). Such lectures as he gave were usually for a reduced fee (Ex A(74)(1): para [4.5]).

953 Each expert responded to the commentary provided by the other, sometimes accepting a criticism and adjusting their calculation. Mr Lom’s initial analysis suggested an average number of corporate and school lectures. Mr Vincent’s commentary arrived at a different and lower figure. He believed that, in respect of some lectures, there had been double counting and, in any event, there was an offsetting benefit in not delivering lectures, in that Mr Macartney-Snape then had greater time to devote to trekking. There were other matters besides. Mr Vincent further suggested that the cost of giving each lecture had been understated by Mr Lom by about $10 per lecture. Mr Lom accepted Mr Vincent’s analysis of the cost of giving each lecture. He adjusted his figures accordingly. He also moderated the number of corporate lectures each year (Ex A(74)(2): para [5.8]/[5.9]). The average was still higher than Mr Vincent because Mr Lom believed it appropriate, as a matter of valuation practice, to take the years immediately before the projection into the future as being more relevant to the likely future. The early years, in any event, were “start up” years (T1554-6). Whilst these adjustments reduced the loss to some extent, there was an offsetting benefit to which Mr Vincent had referred in his report, the effect of inflation. Mr Lom had assumed a fixed fee for lectures given after the broadcast, whereas the fees ought to have been adjusted in accordance with the Consumer Price Index. The movement in the Consumer Price Index was relatively modest. Mr Vincent, as a rejoinder, said that persons providing lectures for a fee do not ordinarily adjust such fees in accordance with that Index.

954 Mr Lom did not, however, believe it was appropriate to regard fees earned from trekking as something which should be offset against any loss. He had, in his original analysis, been conscious of trekking and had adverted to it. An examination of the treks undertaken before the broadcast did not suggest that they conflicted with the giving of lectures (Ex A(74)(2): para [3.6]). The lectures tended to be compressed within a relatively short period. Mr Macartney-Snape, for instance, had been able in the financial year ended 30 June 1995, to trek in Chile and lecture at a level consistent with the average number of lectures which Mr Lom had assumed.

955 In calculating the loss, Mr Lom identified his assumption in respect of Mr Macartney-Snape’s likely future, in these words: (Ex A(74)(1))

“6.1 In section 4 I estimated the loss of revenue for the period from the date of the Four Corners program to 30 June 2000. The estimated loss is based on a comparison between the actual number of lectures and the number of lectures that would have been undertaken by Tim Macartney-Snape but for the Four Corners program. The estimate includes an assumption that the number of lectures would have been constant up to 30 June 2000 but the estimate does not continue beyond that date. I have not made an assessment of losses beyond 30 June 2000 because I have not been provided with information as to the income of Tim Macartney-Snape beyond that date. A further reason is that I expect there may have been some reduction in the demand for lectures by Tim Macartney-Snape over time even if the Four Corners broadcast did not take place, however I am not able to assess the rate of reduction in demand.”

956 Mr Vincent prepared an alternative calculation in respect of the same five year period, making adjustments where he differed from Mr Lom. He termed the aggregate the “maximum loss” that Mr Macartney-Snape may have suffered. He pointed to the following which, he suggested, may have diminished such loss: (Ex 28(1))

“7.7.2 In my opinion, it is reasonable to assume that the 1994 and 1995 financial years in isolation are not representative of the likely activities of Mr Macartney-Snape over the five year period from 1996 to 2000. In this regard, I note that:

(a) Mr Macartney-Snape first climbed Mount Everest in 1984 and completed his second climb, which was the subject of a documentary and book, in 1990. I note that the documentary and book were released in 1992.

(b) Based on ‘other’ lectures undertaken by Mr Macartney-Snape, a series of film lectures on the Mount Everest documentary were undertaken in 1993. It would appear reasonable to assume that demand for Mr Macartney-Snape as a public speaker would have peaked in 1993/1994 after the release of the documentary and book.

(c) In my opinion, it is likely that Mr Macartney-Snape’s popularity as a public speaker would have declined over time as his achievements, the documentary and the book aged and as more recent adventurers entered the public speaking market with similar achievements, books and films.

(d) In addition, it is likely that the income derived in an occupation such as public speaking would be erratic over time.

there may have been some reduction in demand for lectures by Tim Macartney-Snape over time even if the Four Corners broadcast did not take place, however I am not able to assess the rate of reduction in demand.’

957 Mr Vincent added the following: (Ex 28(1))

“7.7.3 Further, it is my opinion that had Mr Macartney-Snape’s association with the FHA been made public by the ABC without the alleged defamatory content, or by some other means, then possibly that would have been sufficient to have had a negative effect on demand for his services as a public speaker.”

958 Mr Lom questioned the basis for this commentary, making the following statement: (Ex A(74)(2): para [7.3])

“7.3 I have no particular expertise with the public speaking market, however I note that a number of the achievements of Tim Macartney-Snape, such as being the first person to climb Mount Everest from sea to summit, cannot be equalled. I also believe that public speakers obtain future bookings off the back of previous engagements and it is therefore, at least to an extent, a self perpetuating activity. This view is consistent with the assumption that you have invited me to make in paragraph 4(b) of your letter of instructions dated 21 February 2007 (Appendix A).”

959 Mr Vincent likewise acknowledged that he had no particular expertise in respect of the public speaking market. The ultimate loss calculated by Mr Lom was as follows: (Ex A(74)(2): para [8.1])

Year ended 30 June

1995	1996	1997	1998	1999	2000
$	$	$	$	$	$
Loss of Income	2,034	38,104	31,898	40,408	31,553	29,298
Avoided Expenses	770	4,620	4,620	5,544	4,620	4,620
Net Loss of Income	1,264	33,484	27,278	34,864	26,933	24,678

960 The total loss, according to these figures, was as follows:

$

Loss of Income
173,295

Avoided Expenses
24,794

Net Loss of Income
148,501

961 The comparison between the calculations made by the two experts in respect of the net loss to 2000 was as follows: (Ex A(74)(2): para [8.1] Lom; Ex 28(2): schedule A, Vincent)

Net loss of income Lom $148,501

Vincent $84,410

962 It was said by Mr Lom, and submitted by the plaintiffs, that the approach adopted, assuming a speaking career terminating after five years, was conservative. The plaintiffs relied upon a statement of Mr Michael Groom (Ex A(26)). Mr Groom was a mountaineer who now earned his living as a public speaker. He was three years younger than Mr Macartney-Snape (born in 1959). He had climbed the five highest mountains in the world, including Mt Everest in 1993. In 1996 he was one of two survivors in a disastrous climb of Mt Everest, famously described by the other survivor, John Krakauer, in his book “Into Thin Air”. Mr Groom had written his own book, “Sheer Will”, published in hard back in 1997 and in soft cover in 1999. A documentary of the same name had been shown on Channel 7 in 2000.

963 Mr Groom began speaking about mountaineering in 1991. He continues to speak to the present day. His statement incorporated a schedule of each of his speaking engagements from 2000. He has given between 30 and 40 speeches a year (Ex A(26): paras [16]ff). He looked for, but was unable to locate, his diaries before the year 2000.

964 The defendants, in response, said that there was no comparison between Mr Groom and Mr Macartney-Snape (DS: para [3.57]). He has continued to climb mountains. His climb of Mt Everest was six years after Mr Macartney-Snape. His book was published five years later than “Sea to Summit” and the documentary was shown eight years after the documentary concerning the feats undertaken by Mr Macartney-Snape.

965 Acknowledging these differences, Mr Groom nonetheless has had a speaking career very significantly longer than the assumption made by Mr Lom. I accept that the assumption that Mr Macartney-Snape would have ceased earning income from speaking after 2000 was very conservative indeed. I prefer the approach of Mr Lom to Mr Vincent and his calculation of the “lost lectures”. The amount earned by Mr Macartney-Snape after 1995 from trekking was minimal. For the reasons given by Mr Lom, it is not I believe, a matter in mitigation. Mr Macartney-Snape’s damages should, subject to the question of causation, include a sum of $148,500, being the net loss calculated by Mr Lom which I have rounded.

Causation.

966 I have, when describing Mr Macartney-Snape’s reputation before the programme, adverted to an argument which the defendants pursued on the question of causation. Mr Macartney-Snape, it was said, was well aware that his association with Mr Griffith and the promotion of his ideas, carried the risk of damage to his reputation (supra paras [935]ff).

967 The defendants claimed that risk materialised in the Four Corners programme, where Mr Griffith’s ideas were explained to a larger public and analysed. It was said (truthfully) that they derived from a book written by Mr Griffith which was of such a poor standard that it had no support at all from the scientific community. In that context, the defendants said this: (DS: paras [3.23]/[3.24])

“3.23 Mr Macartney-Snape has not proven that the damage suffered arose from the two imputations.

3.24 To the extent that there has been any injury to Mr Macartney-Snape’s reputation, it has been a result of his association with Mr Griffith’s ideas rather than the imputations themselves.”

968 The defendants drew attention, in their submissions, to the evidence of Mr Macartney-Snape where he was invited to identify the “main lies” of the programme (DS: para [3.27]). He responded by pointing to many aspects which directly concerned Mr Griffith and his ideas, including that he claimed to be a figure greater than Jesus Christ, that he considered himself a religious deity, that he treated women in a negative way, that he repeatedly used expletives, and so on (DS: para [3.27]). These were not, according to the defendants, the imputations which Mr Macartney-Snape had sued upon (DS: para [3.27]), although he also referred to the imputations that directly concerned him as amongst the “main lies”. The defendants said this: (DS: para [3.43])

“3.43 Mr Macartney-Snape conceded in cross-examination that the kind of opposition to Mr Griffith’s ideas and to himself, displayed in ‘Backchat’ was the kind of criticism he had anticipated would result from his promotion of Mr Griffith’s ideas.”

969 The plaintiffs, in reply, responded as follows: (PS Reply: para [304])

not

970 I generally accept the position as stated by the plaintiffs, although a distinction must be made between general and special damages. Damage from each imputation is presumed. However, in respect of special damages, the plaintiff has the onus of establishing that such damage was caused by the imputations, and was not too remote (Andrews v John Fairfax & Sons Limited [1980] 2 NSWLR 225, per Mahoney JA at 258/9).

971 In Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451, Gray J (with whom Doyle CJ agreed), stated the principle in respect of general damages in these terms: (at 470)

“144 When some of the defamatory imputations in a publication are actionable, the judge must eliminate from his mind those which are not. The judge must ascertain the actual defamation and assess damages in relation to the injury caused by that defamation.”

972 His Honour referred to Lord Radcliffe’s words in Associated Newspapers Ltd v Dingle [1964] AC 371: (at [394])

Parliamentary Papers Act

973 That passage was approved by Kirby J in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519, where the following was said: (at [183])

“Irrelevant considerations such as the existence of other discreditable matter which might have been published of the plaintiff, but was not, or the existence of some accurate allegations in the midst of unsustainable ones must simply be put out of mind. The plaintiff is only entitled to recover damages for the actionable wrongs proved. But for them, the plaintiff is entitled to full recovery without subtractions and without reductions.”

974 Returning to Gray J in Selecta Homes, his Honour referred to the trial Judge’s reasons at para [147], where reference was made to part of the published letter that had been justified. The trial Judge added:

“The plaintiff is to be compensated only for such additional loss as was caused by the unjustified parts of the letter.”

975 Gray J, in that context, said this: (at [148])

“148. The trial judge erred. He failed to put aside that part of the letter he considered to be justified. His view that Selecta should only be compensated for such ‘additional loss’ was simply the corollary of the deprecated practice of subtracting or deducting an amount. This approach was incorrect. The trial judge did not put out of his mind irrelevant considerations of accurate observations in the midst of other unsustainable observations.”

976 Here, Mr Macartney-Snape was seriously defamed by two imputations. He is entitled, without subtractions or deductions, to be compensated for the harm occasioned to him by those imputations. That harm must be measured in the context of the programme, which included a discussion of Mr Griffith’s ideas. The ideas that he deceptively propagated were ideas which had no support at all from the scientific community. He had abused his position of influence to recruit students at schools for Jeremy Griffith.

977 Mr Macartney-Snape gave evidence of his reaction to the programme. His reaction included a reaction to material which he perceived to be disparaging of Mr Griffith and the Foundation. Any hurt associated with that, however, was not relevant to his claim for damages. Whilst he obviously does not compartmentalise his emotions, isolating those which relate to imputations 6(a) and 6(b), nonetheless, in assessing the damages to which he is entitled, my focus must be exclusively upon the imputations found in his favour and their consequences for him.

978 Let me move to Mr Macartney-Snape’s claim for special damages. Again, it is helpful to return to the judgment of Gray J in Selecta Homes. His Honour said this: (at 470)

the cause

a cause

979 Reference was made to March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 509, 524, 530; Chappel v Hart (1998) 195 CLR 232; Chakravarti v Advertiser Newspaper Ltd (supra) per Kirby J at [177]. One may add Shorey v P T Limited [2003] HCA 27; (2003) 197 ALR 410, where Gleeson CJ, McHugh and Gummow JJ said this: (at 411)

“ … the question became whether the fall for which the respondents were responsible was a cause of the appellant’s condition as it manifested itself at trial. That there were other factors which contributed to that condition was beyond doubt; but if it were correct to conclude that the fall was a cause of the condition, then the appellant was entitled to succeed.”

980 In the context of Mr Macartney-Snape’s claim for economic loss the defendants, in submissions, acknowledged the three cancellations of speeches immediately after the programme, adding these words: (DS: para [3.47])

“3.47 … The extent to which schools chose not to engage Mr Macartney-Snape as a result of the broadcast is unknown.”

981 The submissions continued: (DS: para [3.48])

“3.48 Mr Macartney-Snape was unable to point to any circumstance of which he gave evidence in this case that enabled him to say that but for the broadcast of the imputations he would have maintained the income that had previously come in close association with his book publication.”

982 The decline, the defendants suggested, was occasioned by a number of factors, namely: (DS: para [3.49])

“(a) he did not write to schools saying that he would not promote Mr Griffith or his ideas in schools (see Ex AV);

(b) five years had passed since he had climbed Mount Everest;

(c) he conducted an extensive tour of Australia in the wake of the ‘Sea to Summit’ expedition and exhausted many of his speaking opportunities during that period;

The Search For Meaning

(e) since broadcast, Mr Macartney-Snape has not published any further publications. There is no suggestion by him that this is the result of the matter complained of;

(f) Mr Macartney-Snape has not climbed any comparable peaks to those he climbed prior to the broadcast (T507: 16-18)”

983 Mr Macartney-Snape, when giving evidence, described a number of his mountaineering expeditions. He did so without notes and without pausing, providing a narrative that was riveting. It gave a glimpse of his gifts as an inspirational speaker. The period contemplated by Mr Lom’s analysis (five years) was, as I have remarked, very short. The factors identified by the defendants are, to my mind, unpersuasive in that context. I consider the imputations caused, or materially contributed to the decline in demand for Mr Macartney-Snape’s services as a speaker. There may have been other causes, including his association with Mr Griffith’s ideas. However his loss, I believe, is compensable.

Aggravated damages.

984 A claim is made for aggravated damages (Fifth Amended Statement of Claim: para [10]). To justify an award of aggravated damages, the aggravating conduct of the defendants must be improper, unjustifiable, or lacking in bona fides (Triggell v Pheeney (1951) 82 CLR 497). Such conduct justifies an increase in the damages awarded. The damages are compensatory in nature. To justify an award of aggravated damages, the misconduct must have caused additional harm to the plaintiff. Sometimes the harm will be in the nature of an increase in the emotional distress caused to the plaintiff by the publication. It may, in addition, enlarge the reputational damage suffered.

985 Here, the particulars said to justify an award of aggravated damages against the ABC and Dr Millikan were extensive. I have dealt with many of them when describing the making of the programme (Pt 2). As a generality, I have not found that either defendant was actuated by an improper purpose or malice (supra paras [421]-[490]). There are, nonetheless, aspects of their conduct which may arguably come within the rule and which therefore need to be considered.

986 First, Mr Macartney-Snape was immediately aware that the imputations against his character were serious and were false. He is, I believe, a person who, much more than most, has endeavoured to live a moral life. I have no doubt that his mental stress was the greater by reason of his appreciation of the falsity of the accusations.

987 Secondly, the defendants were criticised for persisting with the defence of justification in respect of both imputations. It was submitted on behalf of Mr Macartney-Snape that this was a matter of aggravation. It was, in the circumstances, unjustifiable. It increased the hurt to Mr Macartney-Snape. I accept that submission. The persistence by the defendants in the defence of justification in respect of both imputations was puzzling. The litigation began on 6 April 2001. On 15 February 2007, the defendants unreservedly apologised to Mr Macartney-Snape. Their apology, which I will refer to more fully in a moment, asserted that they (the ABC and Dr Millikan) did not intend to convey either imputation and did not think that either arose, although they accepted that the jury had so found. In the interrogatories both defendants acknowledged that they did not believe either imputation was true (Ex A(33): Interrogs 1st Def 17(b) and (c); 2nd Def 19(b) and (c)). Persisting with the defence of justification in such circumstances was, I believe, unjustifiable and hurtful.

988 The third matter related to the apology to which I have just made reference. It was in these terms: (Ex P)

Four Corners

Prophet of Oz

· Tim Macartney-Snape deceives schools who invite him to talk to students about climbing Mt Everest by exploiting the occasion to promote Jeremy Griffith and his teachings.

· Tim Macartney-Snape abuses his position of influence, derived from his reputation as a mountaineer, to recruit students at schools for Jeremy Griffith.

The ABC and Dr Millikan did not intend the program to convey either of those imputations, and did not think it did. The ABC and Dr Millikan unreservedly apologises to Mr Macartney-Snape for any hurt of embarrassment caused.”

989 When the apology was drafted, and read to the Court, Dr Millikan’s name was absent. Clarification was sought as to whether it was intended to include Dr Millikan. It was. His name was then added. The plaintiffs drew attention to that sequence, suggesting it was a further aspect of the aggravation upon which they relied. Their main complaint was that the apology itself was inadequate. Mr Macartney-Snape said, indeed, that he felt insulted by it. It had not, to his mind, reduced the hurt occasioned by the publication (T301). It did not retract the defendants’ allegation. Submissions also suggested that it did not acknowledge Mr Macartney-Snape’s hurt and embarrassment (PS: para [471]).

990 Dealing with these matters, I accept that the absence of Dr Millikan’s name was an oversight, and not an aspect of aggravation. I also accept that the defendants did unreservedly apologise to Mr Macartney-Snape for any hurt and embarrassment. At first, I was inclined to think that the absence of a retraction of the imputation was probably careless drafting. The apology, including the absence of Dr Millikan’s name, had the appearance of something drafted at the last minute. On reflection, however, I infer that it was deliberate. It was consistent with the defendants maintaining the defence of truth in respect of each imputation. I accept that, to this extent, it was a matter of aggravation. The apology was read out at a mention at 9.30 am when the Court was empty, or nearly empty. It was given no publicity that I recall. There was no evidence concerning any publicity in respect of it. The aggravation is limited to Mr Macartney-Snape’s emotional response, rather than further damage to his reputation.

991 Finally, the plaintiffs relied upon the failure of the ABC and Dr Millikan to put the substance of the imputation to Mr Macartney-Snape for his response. Their failure meant that the harm arising from publication was the greater, as was the hurt to Mr Macartney-Snape. He well understood that the viewing public had the accusations without his explanation or correction. This was, as I have said, an aspect of the programme which was given great prominence. The footage of Mr Macartney-Snape addressing Concord High School was repeated three times. It was also included in a promotional trailer. It was, I believe, a matter justifying aggravated damages.

Exemplary damages.

992 The programme, “The Prophet of Oz”, was screened throughout Australia. Section 46(3)(a) of the Defamation Act 1974 (NSW) provided that damages for defamation shall not include exemplary damages. However, exemplary damages may be awarded, where appropriate, in all states other than New South Wales (John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503).

993 The circumstances in which an award of exemplary damages is appropriate were described by the Privy Council in Australian Consolidated Press Ltd v Uren [1967] 117 CLR 221, in these terms (quoting from Mayne and McGregor on Damages, 12th ed. (1961)): at 236/7

“Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights … Such damages are recognized to be recoverable in appropriate cases of defamation.”

994 Here, the plaintiff asserted that it was appropriate to award exemplary damages in respect of all states apart from New South Wales. The particulars accompanying the Fifth Amended Statement of Claim were as follows: (para [10])

Particulars of exemplary damage against the ABC and David Millikan

(xix) Failure of the ABC and David Millikan to apologise, despite recommendation of the Australian Broadcasting Authority that they do so;

(xx) Particulars of aggravated damages, pleaded above;

(xi) The malice of the defendants in publishing the matter complained of (particularised in ‘particulars of malice’ provided in correspondence).”

995 The plaintiffs, in written submissions, acknowledged that such an award will only be made in exceptional circumstances. It was said that the following circumstances could be so described: (PS: para [477])

“(a) the defendants published imputations 6(a) and 6(b) in circumstances where they were aware that they were not true;

never

(c) Dr Millikan refused Ms Master’s request to put the allegations to Mr Macartney-Snape on the evening that Concord was filmed;

(d) The defendants persisted in a justification defence knowing the imputations to be untrue; and

996 Paragraph (a) does not meet the test, in my view. Whilst both defendants acknowledged that they knew that the imputations were untrue, each also said that they did not intend to publish imputations in the terms of imputation 6(a) and 6(b). They each asserted they had not thought such imputations had been conveyed, whilst acknowledging that the jury had so found.

997 In respect of paragraphs (d) and (e), I have found each to be a matter of aggravation, for which Mr Macartney-Snape should be additionally compensated. I do not, however, believe that they went beyond aggravation, so as to merit punishment.

998 Paragraphs (b) and (c) are aspects of the same general allegation, that Mr Macartney-Snape was never given the opportunity to respond to serious allegations which impugned his character, thereby damaging his reputation. I have held that the defendants’ failure was certainly a matter of aggravation. However, I am not persuaded that the defendants, or either of them, acted in contumelious disregard for the plaintiffs’ rights. There were certainly opportunities to put the allegations made by Howard Whelan before Mr Macartney-Snape made the Concord speech, and yet they were not put. It was perhaps not unreasonable to wait until the Speech Day talk had been delivered by Mr Macartney-Snape on 8 March 1995. The opportunity arose, as I have described, after the speech when Ms Masters spoke to Dr Millikan. It will be remembered that she described her conversation with Dr Millikan in these terms: (T1473/4) (supra para [286])

999 That was misjudgement on the part of Dr Millikan and unfair. It was, I believe, influenced by matters of expedience, as I have said (supra para [899]). Dr Millikan did not wish to jeopardise the interview with Mr Jeremy Griffith the next day. It was not necessarily the final word. As it happened, there was a rupture of relations with the Foundation and Mr Griffith after the final interview the next day. The parties continued to speak and correspond. However, there were no further interviews. The questions, therefore, were never put to Mr Macartney-Snape.

1000 Although that sequence does not reflect well on Dr Millikan, I am not satisfied that the conduct of the defendants merits exemplary damages.

Quantification of damages.

1001 The imputations against Mr Macartney-Snape were most serious. I accept that they have caused him great anguish. They reflect upon his honesty and integrity. They would have significantly lessened his reputation in the minds of many right-thinking people.

1002 In determining the appropriate amount of damages to be awarded, s 46A of the New South Wales Act obliges me to have regard to a number of things. I must ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded (s 46A(1)). The damages appropriate in respect of the various heads of damage, including the vindication of Mr Macartney-Snape’s reputation and aggravated damages, is $300,000. That sum represents $170,000 in respect of imputation 6(a) and $130,000 in respect of imputation 6(b). There should be added the special damages awarded, namely, $148,500. The total verdict for the plaintiff, therefore, combining these two amounts, is $448,500.

Orders.

1003 I therefore make the following orders:

1. In respect of the action for defamation by Mr Jeremy Griffith against the ABC and Dr Millikan, there should be a verdict for the defendants.

2. In respect of the action by Mr Timothy Macartney-Snape against the same defendants, there should be a verdict for Mr Macartney-Snape in the sum of $448,500.

3. I reserve costs and interest for further submissions.

Griffith v ABC [No 1]

**********

Citations

Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764

Most Recent Citation

Cases Citing This Decision

3

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Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd (No 4) [2008] NSWDC 274

Cases Cited

38

Statutory Material Cited

8

Luxton v Vines [1952] HCA 19

Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd [2001] SASC 140

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CITATION:	Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764
HEARING DATE(S):	14/03/07-16/03/07 19/03/07-23/03/07 26/03/07-27/03/07 29/03/07-30/03/07 02/04/07-05/04/07 10/04/07-13/04/07 25/06/07-29/06/07 02/07/07-06/07/07 11/09/07 5/12/07-06/12/07
JUDGMENT DATE :	1 August 2008
JURISDICTION:	Common Law Defamation List
JUDGMENT OF:	Kirby J
DECISION:	(1) In respect of the action for defamation by Mr Jeremy Griffith against the ABC and Dr Millikan, there should be a verdict for the defendants. (2) In respect of the action by Mr Timothy Macartney-Snape against the same defendants, there should be a verdict for Mr Macartney-Snape in the sum of $448,500. (3) I reserve costs and interest for further submissions . (4) I note that, in the action by Mr Jeremy Griffith against the same defendants in respect of injurious falsehood, I gave judgment for the defendants on 4 July 2007, reserving costs (Griffith v ABC [No 1] [2007] NSWSC 711). Those costs have yet to be determined.
CATCHWORDS:	DEFAMATION - second stage defamation trial after 7A trial - three imputations - Four Corners - publication throughout Australia 1995 - defences of justification, qualified privilege (common law and statutory) - fair comment - NSW and interstate equivalent provisions - improper purpose or malice - damages including aggravated damages - causation of damage - other aspects of programme also damaging to reputation but not sued on - whether loss of career as public speaker caused by imputations - claim for exemplary damages.
LEGISLATION CITED:	Defamation Act 1974 (NSW) Evidence Act 1995 Australian Broadcasting Corporation Act 1983 (Cth) Broadcasting and Television Act 1942 (Cth) Defamation Act 1957 (Tas) Defamation Act 1938 (NT) Criminal Code 1889 (Qld) Criminal Code 1913 (WA)
CATEGORY:	Principal judgment
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Sleeman v Nationwide News Pty Limited [2004] NSWSC 954 Howden v The Truth and Sportsman Limited (1937) 58 CLR 416 Sutherland v Stopes (1925) AC 47 Griffith v ABC [2002] NSWSC 86 Greek Herald Pty Limited v Nikolopolous [220] NSWCA 41; (2002) 54 NSWLR 165 Tankard v Chafer [2005] VSC 171 Adam v Ward [1917] AC 309 Reynolds v Times Newspapers [1999] UKHL 45; [2001] 2 AC 127 Jameel & Ors v Wall Street Journal Europe SPRL [2006] UKHL 44; [2007] 1 AC 359 Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; 68 ALR 259 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937 Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Fawcett v John Fairfax Publications Pty Limited [2008] NSWSC 139 John Fairfax Publications Pty Limited v O’Shane [2005] NSWCA 164 Kemsley v Foot [1952] AC 345 at 356 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 Brett May v TCN Channel Nine Pty Ltd & Ors [2007] NSWSC 760 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 Herald & Weekly Times Ltd & Andrew Bolt v Popovic [2003] VSCA 161 Cheng v Tse Wai Chun Paul [2000] 3 HKLRD 418 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 Uren v John Fairfax & Sons Pty Limited (1965-66) 117 CLR 118 Andrews v John Fairfax & Sons Limited [1980] 2 NSWLR 225 Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451 Associated Newspapers Ltd v Dingle [1964] AC 371 Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Chappel v Hart (1998) 195 CLR 232 Shorey v P T Limited [2003] HCA 27; (2003) 197 ALR 410 Triggell v Pheeney (1951) 82 CLR 497 John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Australian Consolidated Press Ltd v Uren [1967] 117 CLR 221 Griffith v ABC [No 1] [2007] NSWSC 711
TEXTS CITED:	Gatley on Libel and Slander, 10th ed, 2004 The Law of Defamation of Australia and New Zealand: Gillooly, 1998
PARTIES:	Jeremy Norman Griffith (1st Pl) Timothy John Macartney-Snape (2nd Pl) Australian Broadcasting Corporation (1st Def) David Millikan (2nd Def)
FILE NUMBER(S):	SC 20300/2001
COUNSEL:	K P Smark SC/S Chrysanthou (1st & 2nd Pls) B W Walker SC/J Sheahan SC/E Raper (1st & 2nd Defs)
SOLICITORS:	Schweizer Kobras, sols (1st & 2nd Pl) ABC Legal Services (1st & 2nd Defs)

Para
1.	INTRODUCTION
The action.	1
Second stage of the action.	8
Structure of this judgment.	13
2.	THE MAKING OF THE PROGRAMME
Background.	16
The fundamental concept.	30
The place of God.	42
Mr Griffith as a prophet.	46
The role of women.	51
The new world.	57
Defences against derision.	60
The launch of the book "Beyond".	65
The Bulletin article.	82
After the launch.	90
The “Absurd Cult Saga”.	103
The lack of progress.	106
Review in The National Outlook	115
The Geelong Grammar speech.	120
Dr Millikan's approach to the ABC.	133
Permission to make the programme.	136
The conversation on 11 January 1995.	138
The second meeting.	151
Interview with Mr Macartney-Snape.	165
Interview with the Whelans.	168
The walk in the Snowy Mountains.	177
The second and third days of the walk.	192
The segment on the Belfields.	196
The Hi-8 footage.	205
Third meeting.	218
Second interview with Mr Macartney-Snape.	233
The use of the religious idiom.	238
First interview with the Belfields.	259
Armidale Open Day.	264
The Concord speech.	271
The interview with Jeremy Griffith and its aftermath.	288
Completion of the programme.	305
Publicity before the programme.	314
The broadcast.	353
Supportive parents.	363
After the broadcast.	386
Response of Dr David Millikan.	414
Was there misrepresentation?	421
The Millennium documentary series.	442
The relevance of the misrepresentation.	455
Treatment in the final programme.	471
3.	THE GRIFFITH IMPUTATION
The Imputation.	491
The defence that the imputation was a matter of substantial truth.	496
The elements of the imputation.	500
“Holds himself out as a scientist”.	504
Peer review.	508
Popular science.	514
The nature of scientific method.	516
Reductionism v Holism	525
“Such poor standard”.	531
“No support at all from the scientific community”.	535
Were the works of such poor standard?	552
Professor Hartwig.	554
Professor Churchill.	566
Professor Prosen.	579
Dr Casebeer.	584
Professor Groves.	598
Professor Flannery.	619
Professor Henneberg.	628
Evaluation.	638
What amounts to support?	651
Mr Griffith’s belief.	667
The support of Professor Groves.	678
Professor Davies.	687
Professor Birch.	702
Professor Morton.	725
Qualified privilege at common law.	746
Statutory qualified privilege in New South Wales.	760
Statutory qualified privilege in Queensland and Tasmania.	787
The defence of fair comment (NSW).	794
4.	THE MACARTNEY-SNAPE IMPUTATIONS
The imputations.	822
The defence of truth.	825
The truth of the deception imputation.	830
Submissions concerning the deception imputation.	849
The recruitment imputation.	880
Qualified privilege.	895
The defence of fair comment.	901
5.	DAMAGES: MACARTNEY SNAPE
The reputation of Mr Macartney-Snape.	925
Hurt to feelings.	940
Damage to Mr Macartney-Snape’s reputation.	945
Claim for special damages.	947
Causation.	966
Aggravated damages.	984
Exemplary damages.	992
Quantification of damages.	1001
Orders.	1003

$
Loss of Income	173,295
Avoided Expenses	24,794
Net Loss of Income	148,501