Griffith v Australian Broadcasting Corporation - [2010] NSWCA 257

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Griffith v Australian Broadcasting Corporation [2010] NSWCA 257

HEARING DATE(S): 11May 2010, 12 May 2010

JUDGMENT DATE:
7 October 2010

JUDGMENT OF: Hodgson JA at 1; Basten JA at 150; McClellan CJ at CL at 151

DECISION: Appeal dismissed with costs.

CATCHWORDS: DEFAMATION – Defence of truth – Whether available where the imputation is comment – Whether error by primary judge in finding defence made out. - DEFAMATION – Defence of statutory qualified privilege – Interest or apparent interest – Whether defence defeated by malice – whether defendant must exclude malice in order to show that its conduct was reasonable. - DEFAMATION – Defence of comment – Whether available where imputation is partly comment and partly assertion of fact.

LEGISLATION CITED: Defamation Act 1974 ss 7A, 9, 11, 15, 20 – 22, 30 – 33, 35,
Evidence Act 1995 s 48

CATEGORY: Principal judgment

CASES CITED: Austin v Mirror Newspapers Limited [1984] 2 NSWLR 383
Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5; (2004) 218 CLR 366
Bennette v Cohen [2009] NSWCA 60
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320
Evatt v Nationwide News Pty Limited [1999] NSWCA 99
Greek Herald Pty Limited v Nikolopoulos [2002] NSWCA 41; (2001) 54 NSWLR 165
Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764
John Fairfax Publications v O’Shane [2005] NSWCA 164; (2005) Aust Torts Rep 81-789
Makeig v Derwent [2000] NSWCA 136
Makim v John Fairfax & Sons Ltd (1990) A Def R 40,521
Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697

PARTIES: Jeremy Norman GRIFFITH (appellant)
AUSTRALIAN BROADCASTING CORPORATION (first respondent)
David MILLIKAN (second respondent)

FILE NUMBER(S): CA 2008/290293

COUNSEL: K P SMARK SC/ S T CHRYSANTHOU (appellant)
B WALKER SC/ E RAPER (respondents)

SOLICITORS: Schweizer Kobras (appellant)
Mr Rob Simpson, Australian Broadcasting Corporation (respondents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20300/2001

LOWER COURT JUDICIAL OFFICER: Kirby J

LOWER COURT DATE OF DECISION: 1 August 2008

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

- 77 -

2008/290293

HODGSON JA
BASTEN JA
McCLELLAN CJ at CL
7 OCTOBER 2010

Jeremy Norman GRIFFITH v AUSTRALIAN BROADCASTING CORPORATION and Anor

Headnote

Facts

On 24 April and 2 May 1995, ABC (the first respondent) broadcast a television programme produced by Dr Millikan (the second respondent) which dealt with Mr Griffith (the appellant), his writings (in particular his self-published book Beyond the Human Condition ), and the Foundation for Humanity’s Adulthood, an organisation which Mr Griffith helped establish and with which Mr Macartney-Snape was affiliated.

The appellant and Mr Macartney-Snape brought defamation proceedings against the respondents in respect of the programme.

Defamation Act

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.

The imputation was primarily directed to the book Beyond the Human Condition .

Section 15 of the Act established substantial truth, public interest and qualified privilege as defences to any defamatory imputation. Section 20 established a defence of statutory qualified privilege in respect of multiple publications, which imported the common law defence of qualified privilege. Under s 22(1), a statutory defence of qualified privilege was established where, in respect of matter published to any person: (a) the recipient had an interest or apparent interest in having information on some subject; (b) the matter was published to the recipient in the course of giving to the recipient information on that subject; and (c) the conduct of the publisher in publishing that matter was reasonable in the circumstances. Under s 22(2), a person had an apparent interest only if at the time of publication the publisher believed on reasonable grounds that that person had that interest.

Under s 35, where the matter complained of included comment and included material upon which the comment was based, a defence as to the comment was not a defence as to the material upon which the comment was based.

The matter came before the primary judge for decision concerning defences and damages. Evidence was given by a number of scientists. The primary judge held that the defence of substantial truth was made out; that the defence of qualified privilege at common law was not made out; that the defence of qualified privilege under the Act and equivalent statutory provisions in Queensland and Tasmania was made out; and that the defence of comment was established under relevant statutes and at common law.

The appellant appealed from the primary judge’s decision.

Issues

Issues arising on appeal:

(i) Whether the primary judge erred in his findings concerning evidence given by the scientists.

(a) poor standard;

(b) no support; and

(iii) Whether the primary judge erred in his interpretation of s 22 of the Act.

(iv) Whether, under s 22(1)(a) of the Act, the whole audience of the broadcast had an interest in having information on the subject matter of the programme.

(v) Whether the conduct of the respondents in broadcasting the programme was reasonable.

(vi) Whether the imputation was comment.

(vii) Other elements of the defence of comment.

(viii) Costs.

HELD (dismissing the appeal)

In relation to (i)—Evidence given by scientists

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

(1) No error is shown in the primary judge’s assessment and weighing of the evidence given by the scientists.

In relation to (ii)(a)—Truth: poor standard

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

(2) Where a primary judge has reached a conclusion as to the standard of a work, the appeal court should only attempt to reach its own conclusion if it is satisfied that the primary judge’s conclusion is vitiated by error.

(3) The appellant’s book Beyond the Human Condition is to be assessed as a scientific publication for general readership, the object of which is not to inform the readership of what scientific work has achieved and is achieving in the relevant area, but rather to promulgate original scientific ideas of the author.

(4) Central to an assessment of the standard of the appellant’s work are both assessment of the merit of the appellant’s ideas, and assessment of the reasonableness of his arguments in support of them.

(5) The approach of the primary judge was entirely consistent with these views. The primary judge was entitled to accord less weight to the evidence of some of the scientists because they lacked expertise in particular areas. The primary judge appropriately took into account the nature of the appellant’s work as a grand synthesis, not within a reductionist framework or excluding teleological explanations, and that it was directed to a general readership and not specifically to scientists. The primary judge’s extensive reasons appropriately explained his conclusions, and no error was identified which would justify this Court reaching its own view.

In relation to (ii)(b)—Truth: no support

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

(6) What is relevant is support for the appellant’s work, considered as a scientific publication for a general readership, the object of which is not to inform that readership of other scientific work but rather to promulgate the original scientific ideas of the author. Relevant support could be provided even if the central thesis is not endorsed, so long as it is support for the book as presenting respectable scientific ideas and arguments for those ideas that are respectable arguments according to the standards of scientific publications directed at a general audience.

(7) The reference to support from the scientific community means that support from just one or two respected scientists might not necessarily be relevant support, unless that support can be understood as expressing or constituting some support from a community.

(8) The primary judge was entitled to take the views that he did in respect of statements by some of the scientists. The primary judge’s finding that the appellant’s work had no support at all from the scientific community is correct.

In relation to (ii)(c)—Truth: causation

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

(9) The imputation is that the appellant’s work is of such a poor standard that it has no support at all from the scientific community; and this conveys that there are degrees to which work can be of a poor standard, that if the appellant’s work had been of a materially better standard (whether or not still of a poor standard) it would not have had no support at all from the scientific community, and that the lack of any support at all from the scientific community demonstrates the poorness of the standard of the appellant’s work.

(10) The Court is not satisfied that, if the appellant’s work had been of a materially better standard, it would have received some support from the scientific community; or that the lack of any support from the scientific community demonstrated that the work was of a poor standard, much less any degree of poorness of standard.

(11) The primary judge set the bar for the relevant finding of causation too low, and his reasons did not adequately support his conclusion. Causation was not established and on that basis the defence of truth was not made out.

In relation to (iii)—Interpretation of s 22

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

(12) The Act draws a clear distinction between the interest in a recipient which is required for the purposes of common law qualified privilege, and the interest (or apparent interest) which is required under s 22(1)(a), the latter being a substantially wider sense.

(13) Under the Act, malice is not a separate consideration from reasonableness. Section 20 draws a clear distinction between qualified privilege under the common law and qualified privilege under the Act. The defences created by the Act are different from common law qualified privilege.

Echo Publications Pty Ltd v Tucker

Fast Buck$ v Tucker (No 3)

Morgan v John Fairfax & Sons Ltd (No 2)

Austin v Mirror Newspapers Limited

Makim v John Fairfax & Sons Ltd

In relation to (iv)—Interest or apparent interest under s 22

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

(15) The whole audience of the broadcast (that is, the community generally) had an interest in having information on a subject, namely the subject of the promulgation as a discovery of science of a potentially socially divisive doctrine with religious overtones, the recruitment of followers of the person promulgating that doctrine, and the effect of this on families.

(16) The material giving rise to the imputation was not in any sense extraneous to the giving of this information, and there is no possibility that the matter by which the imputation was made can be regarded as distinct or separate from matter published in the course of giving the audience information on the subject in question.

(17) It is not necessary to consider apparent interest and s 22(2).

In relation to (v)—Reasonableness and malice under s 22

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

Morgan v John Fairfax & Sons Ltd (No 2)

(19) As part of establishing reasonableness, the onus is on the respondents to exclude malice. That is an onus to show that their purpose in publishing the matter, in its character of conveying the defamatory imputation, was to give the audience information which the audience had an interest (or apparent interest) in having, and that the respondents did not have any other reason for this publication which was the dominant reason.

(20) Although the primary judge did not address the issue of malice in this way, the Court is affirmatively satisfied that the publication was not actuated by malice in any of the respondents. Accordingly the defence under s 22 of the Act was made out. By parity of reasoning, the defence of statutory qualified privilege in Queensland and Tasmania was also made out.

In relation to (vi)—Whether the imputation was comment

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

(21) The question whether this imputation was comment does depend on whether the ordinary reasonable viewer would regard it as comment; that is, would consider that it was presented as someone’s opinion or evaluation or assessment or judgment, rather than being a bald assertion of fact.

(22) That aspect of the imputation that reflects on the standard of the appellant’s work is an expression of opinion of the book, rather than a bald assertion of fact. That aspect of the imputation that asserts lack of any support from the scientific community is an assertion of fact, not comment. That aspect of the imputation to the effect that the degree of poorness of standard was such as to cause the lack of support is comment.

(23) Where an imputation consists partly of comment and partly of assertion of fact, s 35 of the Act has the effect that the defence of comment applies to so much of the imputation as is comment, and that so much of the imputation as is defamatory assertion of fact can be defended on some other basis, such as truth.

(24) The imputation is comment, except to the extent that it asserts lack of support by the scientific community; and that assertion is true and relates to a matter of public interest, and its inclusion in the imputation does not preclude reliance on the defence of comment.

(25) This analysis applies equally to New South Wales and other jurisdictions in which there are relevant statutory provisions, and also to jurisdictions in which the common law concerning comment is unmodified.

In relation to (vii)—Other elements of the defence of comment

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

(26) For the defence of comment under the Act to succeed, it is necessary that the factual basis to the comment be sufficiently indicated and identified in the published material; that this factual basis be substantially true; that the imputation relate to a matter of public interest (this was conceded); and that, when the comment was that of the defendant or servant or agent of the defendant, the relevant opinion was held by the defendant or its servant or agent (there was no error by the primary judge in finding that comments made in the programme represented the actual opinions of Dr Millikan, ABC or its servants).

Beyond the Human Condition

(28) The appellant has not made out any ground for overturning the decision of the primary judge on the question of comment under the Act. By parity of reasoning, the challenge to his decision on different statutory provisions concerning comment, and on the defence of fair comment at common law, also fail.

In relation to (viii)—Costs

( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing )

2008/290293

HODGSON JA
BASTEN JA
McCLELLAN CJ at CL

7 OCTOBER 2010

Jeremy Norman GRIFFITH v AUSTRALIAN BROADCASTING CORPORATION and Anor

Judgment

1 HODGSON JA: On 1 April 2008, Kirby J gave his decision in defamation proceedings brought against the respondents (the ABC and Dr Millikan) by the appellant and Mr Macartney-Snape: Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764. The primary judge ordered that in respect of the appellant’s action there be a verdict for the ABC and Dr Millikan, and that in respect of Mr Macartney-Snape’s action there be a verdict for Mr Macartney-Snape in the sum of $448,500. The primary judge made further orders in relation to interest and costs on 4 September 2008.

2 The appellant has appealed to this Court from the decision against him.

Circumstances

3 The proceedings arose from a Four Corners programme “The Prophet of Oz” broadcast by the ABC on 24 April 1995, and again on 2 May 1995.

4 There was a jury trial pursuant to s 7A of the Defamation Act 1974 (the Act) (since repealed); and on 30 May 2003, the jury found that the following imputation was conveyed in respect of the appellant and to have been defamatory:

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.

5 The matter then came before the primary judge for decision concerning defences and damages.

Statutory provisions

6 The appeal requires consideration of some provisions of the Act, as they were at the relevant time.

7 The defence of truth was dealt with in s 15:

15 Truth generally

(1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section.

(a) the imputation is a matter of substantial truth, and

(2) For the purposes of this Act, an imputation or other matter is a matter of substantial truth if, but only if, in substance it is true or in substance it is not materially different from the truth.

8 There were relevant provisions concerning qualified privilege in ss 20 – 22:

20 Multiple publication

multiple publication

(i) at the same time,

(ii) by means of the publication in the ordinary course of affairs of numerous copies of a newspaper or other writing, or

(i) is published on an occasion of qualified privilege, and

(i) it is an occasion of qualified privilege under the law apart from this Act, or

(a) a person makes a multiple publication, and

there is a defence of qualified privilege for the publication to that recipient or those recipients, notwithstanding that the publication is not made under qualified privilege as regards any other recipient.

(a) a person makes a multiple publication,

(b) the matter published would if published to one or more, but not all, of the recipients be published under qualified privilege as regards that recipient or those recipients, and

there is a defence of qualified privilege as regards all of the recipients.

21 Mistaken character of recipient

Where:

(a) a publication complained of is made in the course of a communication by the publisher to any person,

(b) the publication is made in circumstances in which there would be a defence of qualified privilege for that publication if that person bore some character, and

(c) the publisher believes, at the time of the communication, on reasonable grounds, that that person bears that character,

there is a defence of qualified privilege for that publication.

22 Information

(a) the recipient has an interest or apparent interest in having information on some subject,

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

there is a defence of qualified privilege for that publication.

(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.

9 There were relevant provisions concerning comment in ss 30 – 33 and 35.

30 Proper material

(1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.

(a) the comment is based on proper material for comment, or

(4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based.

31 Public interest

The defences under this Division are not available to any comment unless the comment relates to a matter of public interest.

32 Comment of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant.

33 Comment of servant or agent of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment.

…..

35 Effect of defence

10 The publication of the programme occurred in all states of Australia, as well as the Northern Territory and the ACT. In some states and territories there were statutory provisions somewhat similar to those in New South Wales, and in some the common law applied unaffected by statute. In relation to each issue, the primary judge in his judgment first dealt with the situation in New South Wales, and then considered whether any different result would be reached according to the law of other jurisdictions.

Decision of primary judge

11 In dealing with the claim by the appellant, the primary judge first considered the defence of truth. The appellant acknowledged that the publication of the programme could be assumed to be in the public interest or for the public benefit, so that the only issue was the substantial truth of the imputation.

12 The primary judge set out what he considered to be the elements of the imputation (par [500]):

1. that Jeremy Griffith holds himself out as a scientist;

2. that he published work of such poor standard;

13 The primary judge noted that the first element was not in dispute, and further noted that the phrase “holds himself out as a scientist” conveys that the person accepts and applies the standards and procedures of the disciplines of science (par [506]). The primary judge then considered the nature of science, as revealed by the evidence (pars [507] – [530]).

14 The primary judge then discussed the meaning of the second and third elements (pars [531] – [551]). In the course of so doing he said this:

[532] Science, it was suggested, is a broad church, which I accept (T1685). It comprehends those whose area of study enables them to proceed by way of deduction (reductionists) and others (including those working in the area of evolution and living primates) who do not have that luxury. They must resort to induction. Some scientists favour a narrow focus, whereas others may be described as holistic. Still others may deduce a purpose from the whole once examined. All are engaged in science. Each may differ from others and yet recognise that the others are approaching the issue as scientists. I accept that standards within the scientific community must be framed with these broad differences in mind.

15 In relation to the meaning of support from the scientific community, he said this:

[541] I accept that the words in the imputation (“support”, “scientific community”) should be given their ordinary meaning. In understanding what is meant by “support”, actions are relevant but so is the state of the mind of the person said to be giving support. Indeed, a person’s actions are simply evidence from which an inference may be drawn as to the state of mind of that person. Giving a donation to charity may amount to support because it is a simple act. It would be unusual to enquire further, although it is not impossible to imagine circumstances where a person making a donation could be said not to be supporting the charity. A request by a trade union to an employer for a donation to the union’s picnic fund, for example. The person may disagree with the charitable objective, but feel obliged or embarrassed, or they may feel there is an implied threat were they not to make a donation. If there were an issue, they could give evidence to explain their actions, that although they had given a donation they did not support the charity.

[542] Here, the book “Beyond” runs for almost two hundred pages. It contains many ideas. It is rather different from a donation to a charity. An action said to be supportive of a book may require close examination to determine whether it is, in truth, an act in support of the book. The act in support must, I believe, be by a scientist in his or her capacity as a scientist, although the endorsement does not have to relate to the speciality of that scientist. I believe it can be wider than that. On this aspect, I accept the defendants’ submissions rather than those of the plaintiffs (DS: para [1.86(b)]; cf PS: para [236(b)]).

[543] Turning to the phrase “scientific community”, I accept that evidence from experts concerning the practices of the scientific community which signify support within that community are relevant and admissible. For instance, the peer review process, where undertaken, is evidence of support. A favourable review by a scientist, or at least a review that takes the article or book seriously and puts an opposing or different view, is also evidence of support. Further, the citation of the article or book in the work of another scientist is further evidence of support. The actions of scientists (which may suggest support or the reverse) may also be proved. In addition, individual scientists may give evidence of their support or the absence of their support.

Greek Herald Pty Limited v Nikolopolous

… The context of the imputation 5(a) shows that it is lack of endorsement that is the key (Ex N, line 977) and that Mr Griffith is ‘alone’, because of that lack (Ex N, line 979).

[545] Whilst I accept that submission, it does not fully answer the question. Endorsement of what? The matter in respect of which the ABC and Dr Millikan said Mr Griffith was alone was the central thesis of the book “Beyond the Human Condition”. It was Mr Griffith’s claim that with the aid of science, he had solved the riddle of the universe. He had provided a scientific answer to the “human condition”, the capacity of human beings for both good and evil.

first, there was a time in our evolutionary past (after we had made the transition from our ape ancestors to australopithecines) where mankind experienced perfect integration (Ex F: Fig 3, p 131). This was the “Garden of Eden” which lasted approximately from 5 million years ago to 2 million years ago. This was the period where one had an “instinctive orientation to be utterly co-operative, gentle and selfless” (Ex A(20)(1): p 30/1) (supra para [38]);

secondly, there followed an increase in our brain size and the development of consciousness (Ex F: Figs 2 and 3, p 130/1);

thirdly, intellect was obliged to search for knowledge. That search attracted criticism from instinct, because it deviated from our instinctive orientation to be utterly co-operative. The criticism was unjust and made us feel bad. However, it could not be rebutted because the explanation (later provided by science) was not then available;

fourthly, as a consequence of unjust criticism, Man became “upset”. To stop himself feeling bad, he resorted to materialism, egocentricity, even violence;

fifthly, that Jeremy Griffith, with the advantage of science, was able to provide a scientific explanation. Our bad behaviour was learned behaviour, as we reacted to unjust criticism. The impulse to violence and evil was not part of our genes;

sixthly, we can now understand that we were in fact good, that it is no longer necessary to do the things we used to do to comfort ourselves against unjust criticism. Materialism, egocentricity, violence are now not necessary. Indeed, cities which are places of alienation, may be disassembled as we return to our instinctive, co-operative, integrated way of life.

16 The primary judge then considered whether the second element (concerning the standard of the work) was established (pars [552] – [637]). He discussed the evidence of experts called for the appellant (Professors Hartwig, Churchill and Prosen and Dr Casebeer) and that of experts called for the respondents (Professors Groves, Flannery and Henneberg).

17 The primary judge reached the conclusion that, as a matter of science, the appellant’s work was of “such poor standard”, giving the following reasons:

290. Mr Griffith’s work is, on its face, work of real seriousness. That is, it takes itself seriously and invites the general reader to do likewise. The questions which is asks are (it is submitted) self-evidently worth asking to all but the most narrow or incurious person. In attempting to advance a general hypothesis for why humans are the way they are, Mr Griffith’s work no doubt goes beyond the available data, in the same way that any general theory must. No doubt it over-simplifies (perhaps deliberately) complex areas of discourse, and at times presents as settled or received wisdom what was (and remains) contentious or (occasionally) even a minority position. So much, again, may be regarded as unsurprising in a work of its nature and aspirations.

[639] The language of these paragraphs is in marked contrast to the books. Mr Griffith’s language is that of certainty. He had, with the aid of science, found the answer. Nowhere is there the slightest hint that what he was saying “no doubt goes beyond the available data” (cf PS: para [290]), nor that he had oversimplified “(perhaps deliberately) complex areas of discourse” (cf PS: para [290]). He does not suggest that he is presenting “as settled or received wisdom what was (and remains) contentious or (occasionally) even a minority position” (cf PS: para [290]). Indeed, it is this very quality of laying down the law, often without reference to the data or opposing views, that has attracted criticism from many of the experts called to give evidence. This cannot, in my view, be dismissed as “rhetorical overstatement or authorial largesse” (cf PS: para [291]).

Our instinctive heritage is one of behaving lovingly towards others and being treated lovingly.

So our forebears were gentle, loving and cooperative, not aggressive, bloodthirsty brutes as has evasively been propounded by such anthropological commentators as Raymond Dart, Konrad Lorenz, Desmond Morris and Robert Ardrey.

We emphatically reject this conventional wisdom [that war and violence are in our genes] … the clues that do impinge on the basic elements of human nature argue much more persuasively that we are a cooperative rather than an aggressive animal.

With the growth of agriculture and of materially-based societies, warfare has increased steadily in both ferocity and duration … We should not look to our genes for the seeds of war …

Richard Leakey and Roger Lewin, Origins, 1977, both quotes from Chapter 9.

Those who believe that man is innately aggressive are providing a convenient excuse for violence and organized warfare .

The Making of Mankind

(emphasis in original)

for three reasons: first, on the very general premise that no theory of human nature can be so firmly proved as its proponents imply; second, that much of the evidence used to erect this aggression theory is simply not relevant to human behaviour; and last

[644] It is a fundamental aspect of Mr Griffith’s thesis that violence and evil are not genetic. They are a reaction to the nagging of instinct in the battle between instinct and intellect. With his explanation, humans may revert to their loving integrated former selves. There are, it seems to me, a number of difficulties with that thesis. First, the authority, “Origins”, does not share Mr Griffith’s certainty. Indeed, their criticism of the alternative view (by Dart, Lorenz, Morris and Ardrey) was that no theory of human nature can be so firmly proved. Their own conclusion that man is “a co-operative rather than an aggressive animal” is heavily qualified: the “clues” to their mind “argue much more persuasively” to that view.

[645] Secondly, there seem to me, as a matter of logic, other possibilities that make any inference problematical. If humans react with violence and evil to instinct’s persistent criticism, does that not suggest that genetically we had the capacity, even the predisposition, to react in particular ways to adversity or injustice? Further, Mr Griffith appears to assume that, once given the explanation, we will revert to our instinctive, integrated selves and once again be gentle and non-violent. However, we have, on his thesis, been living with “upset” for 2 million years. One would imagine that some are better than others in surviving and thriving in an upset world. Has 2 million years of “upset” had an impact upon our genes, such that we are no longer able simply to revert to our instinctive selves? Even if we were not genetically violent when we began, are we violent now?

[646] Thirdly, let me turn to the scientific evidence as to the standard of the work. It is upon that material that the issue should be determined. The plaintiffs’ witnesses, all eminent in their own fields, had, with the exception of Professor Hartwig, expertise which was tangential to the issues being examined. They were, apart from Professor Hartwig, knowledgeable rather than expert in relevant areas. Professor Hartwig was certainly expert in issues central to the matter being examined.

[647] As a generality, I prefer and accept the evidence of Professors Groves, Flannery and Henneberg to the witnesses called by the plaintiffs. In the case of Professor Hartwig, it was observed more than once that he was a most courteous man (T41; DS: para [1.38]). He is also, I believe, a charitable man, more forgiving of shortcomings than most. His classification system — “excellent — average — poor” — was, I believe, too blunt an instrument to determine this issue.

[648] The shortcomings in Mr Griffith’s works, identified by the defendants’ witnesses and also Professor Hartwig, were, I believe, significant. They were departures from fundamental aspects of scientific method. The paucity of citations, the absence of bibliography, the failure to meet the standards of presentation for peer review, were small matters compared to the failure to state assumptions, to identify opposing arguments and to argue persuasively to a logical conclusion.

18 The primary judge then considered whether the third element was established, addressing both the question of support and the question of causation, that is whether any lack of support was due to the poor quality of the work.

19 The primary judge first addressed the question of what amounted to support (pars [651] – [664]). He referred to seven matters identified by the experts as signifying support, namely peer review, citation and approval in the work of other scientists of repute, the reputation of an author, the awarding of a University degree, presentation at a scientific conference, selection as a University text or inclusion in a reading list for students, and words and actions of individual scientists. In this case the appellant relied particularly on this seventh category:

1.70 By way of summary:

(a) the Plaintiffs called no scientific experts who were supportive of any of Mr Griffith’s works at the time of broadcast of the matter complained of, nor any scientific experts who could provide evidence of Mr Griffith’s works having support or even recognition in the scientific community at that time;

(b) the Defendants called three eminent scientific experts (Professor Groves, Professor Flannery and Professor Henneberg) who were not supportive of Mr Griffith’s works at time of broadcast, nor were they aware of Mr Griffith’s works having any support or recognition in the scientific community at that time;

(c) the Plaintiffs are not able to rely on either Professor Birch or Professor Morton as being scientists who, in their capacity as scientists, were supportive of Mr Griffith’s work at the time of broadcast; and

20 The primary judge then considered the relevance of the appellant’s own beliefs concerning support and also the question whether any lack of support was causally related to the standard of the work. On this latter matter, the primary judge said this:

(a) Mr Griffith’s work crosses disciplines and even entire fields of endeavour. For many members of the scientific community encountering his work, it may not be the standard of the work, but rather the breadth of it, which leads to it not attracting support;

(b) Mr Griffith’s work is self-published. It is not always expressed, or presented in a conventional manner. Such matters may mean that for many members of the scientific community, Mr Griffith’s work simply does not ‘rate a second glance’ but that does not mean it does not deserve a second glance;

(c) Mr Griffith‘s work is nothing if not bold. He makes very strong claims and such boldness may not engage many members of the scientific community (but not mean that it is the poor standard of the work that accounts for the lack of their support); and

I found no professional academic reference to Beyond the Human Condition. I attribute this in large measure to its limited distribution as a self-published work.

21 The primary judge then considered at some length (pars [677] – [743]) the support that the appellant relied on from individual scientists. He drew the following conclusions:

[744] I have therefore reached the position that none of the scientists nominated by the plaintiffs in fact gave relevant support. I am satisfied that the defendants have established each of the elements of the imputation and the substantial truth of the imputation. They have therefore succeeded in their defence of justification in New South Wales and the companion defences in other States. There should be a verdict for the defendants in respect of Mr Griffith’s action.

22 The primary judge then considered whether the defence of qualified privilege at common law succeeded (pars [746] – [759]), and he rejected that defence. The respondents do not challenge that decision on this appeal.

23 The primary judge then considered statutory qualified privilege in New South Wales (pars [760] – [786]).

24 On the question of reasonableness of the publication, the primary judge gave the following reasons:

(a) it is not disputed that the matter, namely the extent of the scientific support of Mr Griffith’s works was a matter of public concern and it did concern the performance of public activities of the Plaintiffs;

(b) the Defendants took reasonable steps to verify the accuracy of the material and took care to accurately report the material and information which they had in their possession;

(c) the Defendants spoke to scientists whom the Plaintiffs alleged were supportive of their ideas and to other scientists;

(d) the Defendants spoke directly to the Plaintiffs about the seeming lack of support in the scientific community at the time of broadcast;

(e) the Plaintiffs themselves acknowledged the lack of support, the tidal wave of silence they had received from the scientific community, both in their communications with the Defendants and generally;

(f) the Plaintiffs themselves predicted and attempted to explain the lack of support in the scientific and academic community; and

(emphasis in original)

16. At the time of publication of the matter complained of, did the ABC intend it to convey any of the following imputations and, if so, which;

(a) 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;

18A. (a) Yes, in substance.

first

secondly

thirdly

fourthy

fifthly

sixthly

seventhly

eighthly

ninthly

tenthly

finally

[765] The plaintiffs also challenged whether there was any admissible evidence (given the absence of Dr Millikan) concerning research said to have been undertaken by the ABC in respect of scientists put forward by the plaintiffs as being supportive. I believe, however, that there was evidence, which I have set out above.

A — Did he have a closed mind in reference to Jeremy Griffiths ideas? I think his mind was open to exploring them but I think in the end he did not believe that Jeremy was a prophet. He did not believe that the science, or the explanation, was rooted in science and I don’t think he believed that this would change the world. That this claim would change the world.

[767] No doubt, Ms Masters’ account was based upon her conversations with Dr Millikan, which was evidence of his state of mind ( Evidence Act 1995, s 72).

[768] Dealing with these submissions, the first two issues are complaints relating to scientists. The defendants spoke to a number of scientists, including those identified by the plaintiffs as providing support. Ultimately the defendants characterised such scientists as not providing support. For the reasons given, I believe that characterisation was accurate (supra paras [678] to [744]). The programme ultimately included only the comments of Professor Flannery, which were certainly negative. The defendants did not include the comments of Professor Groves, interviewed at the same time, which one infers were also negative (supra paras [598]ff). Indeed, no reference was made to conversations with other scientists, although none provided support for the science in Mr Griffith’s thesis, or even a significant part of it.

The book, well, is not without interest, as we’ve seen and in some cases it’s downright intriguing as we’ve seen and that’s what I said.

… I used to get pleasure over watching the weather come and go, and watching the animals I was working on go through their daily cycle, uh, trials and tribulations of life, the simple things. And when I came back, at about that time, Jeremy had produced a first draft of his book and I latched on to it. I liked the fundamental concept that he was peddling at the time.

Well, I initially am attracted to the underlying concept of it which is a ah that there is a fundamental nexus between the instinctive self, through our evolution, the instinctive human being and the intellectual self. I’d never thought of that until I read it in Jeremy’s prose and I think it struck a chord of common sense with me. And I suppose why I am fairly happy with that observation, with the merit in it, is that you can just look at your weekly and monthly lives and the interactions you have with people round you and people at work and you often notice a very large difference between the words or the sentiments that are coming out of somebody’s mouth and the sentiments that are expressed by their body language and I suspect just to extend that thought that their body language is coded in hundreds of thousands of years of evolution that is very strong and their point-of-view might be tempered by the mind at the time to be compatible with the social scene.

[772] Balance in the presentation of this issue did not, however, require the inclusion of such statements. Both statements were embedded in material otherwise adverse to Mr Griffith and his ideas as science (Groves: supra paras [598]ff; Robertson: Ex 32(1)). The defendants’ approach was to state that Mr Griffith stood alone, rejected by the scientific community (Ex N(2): lines 976–1005), and to include the statement of Professor Flannery which spoke of the book’s poor quality. I believe that approach to have been reasonable. An elaboration upon the research undertaken by the ABC concerning the issue of science would, I believe, have created an impression far more unfavourable than that conveyed by the limited material which was in fact broadcast.

[773] Let me move to the third criticism, that the defendants did not put to Mr Griffith that his work was of such poor standard (PS Reply: para [144]). The final interview with Mr Griffith on 9 March 1995 was described, but not tendered. The plaintiffs, in their submissions, invite the inference that the issue of the standard of the work was not canvassed or, at least the defendants (having the onus) have not established that it was.

How do you maintain your belief in the truth of the Foundation when the response of the academic world has been so negative.

H. Ideas have absolutely no scientific/authoritative credibility or support …

As to the reception of Jeremy’s ideas in the world of academia — I stand by the tone and content of the questions I put to him. The fact is, at the moment he has the endorsement of only one person, John Morton a retired academic in Auckland.

‘his message is obscure, his writing is awful. There is very little science in it. There is nothing new in it. When he gets into behaviour, he take[s] as gospel views that are extremely contentious and at this stage unprovable.’

(emphasis added)

[778] Dr Millikan’s letter was, or course, sent after the last interview. The parties did not thereafter meet again. Nonetheless, they remained in contact.

[779] The fourth issue, said to demonstrate unreasonable conduct on the part of the defendants, concerned supportive parents. I have dealt with that issue when describing the making of the programme (supra paras [363]ff). Although I believe it would have been better and fairer had the programme included a statement from Dr Millikan that there were supportive parents, or a statement from one of the supportive parents (supra para [384]), this issue was one amongst many. In the treatment of that issue, which I have described, I believe the conduct of the defendants was reasonable.

[780] The fifth issue concerned the footage of Mr Griffith swearing. I have found that there was nothing unfair (or unreasonable) in the presentation of Mr Griffith swearing in the course of the programme (see especially supra paras [214]–[217]).

[781] The sixth issue concerned the deception of Mr Griffith and the Foundation by Dr Millikan. I have discussed the evidence concerning the statement by Dr Millikan: “I got it wrong”. It was a misrepresentation and secured Dr Millikan the co-operation of Mr Griffith and the Foundation (supra para [440]). However, Dr Millikan was ultimately forced on the first night of the walk to clarify his position, and did so (supra para [187]). The misrepresentation was then spent (supra paras [456]/[457], [470]). It was not material thereafter to the relationship between the parties. In respect of the representations concerning the millennium series, I have found, as a matter of probability, that Dr Millikan did not misrepresent his position (supra para [448]). He did not misstate the nature of the series or his intention (supra para [454]). He was aware, nonetheless, that Mr Griffith and the Foundation had made assumptions based upon his words and did nothing to disabuse them (supra para [454]). Nonetheless, I do not believe it can be said that his conduct in this respect, was unreasonable.

[782] The remaining issues can be dealt with quickly, in the light of findings already made. The programme, contrary to the assertions of the plaintiffs, was not completely negative and inaccurate (supra para [489]). It was not unreasonable for Dr Millikan to employ a religious idiom when describing Mr Griffith’s ideas (supra para [238]ff). Mr Griffith, in the final interview, was, I infer, taken to the comments of Rosy and Howard Whelan (leaving aside the comments of Howard Whelan relating to Mr Macartney-Snape, which will be dealt with in Pt 4 below). Mr Griffith, in the programme, described Rosy Whelan’s involvement in the Foundation and her dismissal (Ex N(2): lines 476–480). He elaborated on this in his written commentary upon the final interview (Ex AQ: appendix pp3–6). The Belfield footage was part of the segment dealing with the effect upon families of the Foundation and Mr Griffith’s ideas. That issue was taken up with Mr Griffith and Mr Macartney-Snape (supra paras [364]ff).

[783] The Juliet Belfield interview was edited. However, Ms Masters explained, and I have accepted, that the editing rearranged the interview into chronological order (supra para [203]). It was not edited to give the appearance of a “conversion experience”. Indeed, I do not believe the heavily qualified wording of Juliet Belfield could reasonably be described as a conversion experience (supra para [204]).

25 The primary judge then considered the question of malice, as follows:

first

secondly

thirdly

fourthly

fifthly

26 The primary judge then considered statutory qualified privilege in Queensland and Tasmania; and held that the publication was on a subject of public interest and was made in good faith; and he held that the defence was made out (par [787] – [792]). In particular, the primary judge said this at par [788]:

Bellino v Australian Broadcasting Corporation

27 The primary judge then considered the defence of fair comment (par [793] – [819]). He held that the imputation was comment (par [782]); that it was based on proper material (par [807]); and that Dr Millikan and the other relevant agent of the ABC (Ms Liz Jackson) honestly believed the imputations (par [810]). The primary judge did not accept there was any improper purpose (par [814]).

28 On that basis, the primary judge held that the defence of comment was established under relevant statutes and at common law.

Issues on appeal

29 The appellant relies on the following grounds of appeal:

The appellant contends that the judgment of Justice Kirby delivered on 1 August 2008 ought to be set aside on the following grounds:

Defence of truth

1. His Honour erred in finding that the respondents had proved the substantial truth of the imputation that " 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 " (the " imputation ").

2. His Honour erred in finding that the appellant's work was of a poor standard.

3. His Honour erred in finding that the appellant's work had no support at all from the scientific community.

4. His Honour erred in interpreting the term " support " to require endorsement for the appellant's central thesis.

5. His Honour erred in narrowing the term " support " to mean support for the appellant's central thesis in circumstances where the respondents did not make that submission at trial and the appellant was not given an opportunity to address the issue.

6. His Honour erred in finding that as a result of the poor standard of his work; the appellant had no support at all from the scientific community.

7. His Honour erred in failing to find that the evidence of Professor Colin Groves was significantly adversely affected by bias, and in failing to reduce the weight which ought to be given to that evidence accordingly.

8. His Honour erred in finding that Professor Tim Flannery was qualified to give expert evidence on the subjects of the appellant's work.

9. His Honour erred in finding that Professor Harry Prosen, Professor Scott Churchill and Dr William Casebeer were not relevantly qualified to offer an opinion as to the standard of the appellant's work.

Defence of statutory qualified privilege

10. His Honour erred in finding that the defence of statutory qualified privilege pursuant to s 22 of the Defamation Act 1974 had been established by the respondents.

(a) that the respondents published the matter complained of in the course of giving recipients information in relation to a subject in which the recipients had at least an apparent interest;

(b) that the respondents believed on reasonable grounds that that recipients had such an apparent interest; and

12. Neither the contents of the matter complained of, nor any other evidence adduced at the hearing, nor any matter of which his Honour might properly take judicial notice tended toward a finding that the recipients of the matter complained of had an actual or apparent interest in the subject-matter of the matter complained of.

13. There was no evidence to support a finding that the respondents believed on reasonable grounds (or believed at all) that the recipients of the matter complained of had an actual or apparent interest in the subject-matter of the matter complained of.

14. There was no evidence, or no sufficient evidence, that the respondents had sought the appellant's side of the story prior to publication, nor was there any reasonable attempt made by the respondents to obtain and publish a response from the appellant.

15. His Honour erred in finding that the respondents' conduct in publishing the imputation was reasonable.

16. His Honour erred in considering the question of statutory qualified privilege in relation to the imputation instead of considering the defence in respect of the matter complained of.

17. His Honour erred in finding that the respondents were not actuated by malice in publishing the matter complained of.

18. His Honour erred in failing to find that malice on the part of the respondents defeated any defence of statutory qualified privilege which might otherwise have arisen so far as the appellant's case was concerned.

Defence of comment

19. His Honour erred in finding that the defence of comment pursuant to Division 7 of the Defamation Act 1974 had been proved.

20. His Honour erred in finding that the imputation was an expression of opinion as opposed to an assertion of fact.

21. His Honour erred in finding that any comment was based on proper material for comment.

22. His Honour erred in finding that the appellant had failed to prove that the respondents did not honestly hold any opinion congruent with the imputation.

23. His Honour erred in finding that the second respondent was not distorted by malice in the sense that it warped or distorted his judgment.

30 The respondent relies on the following grounds of its Notice of Contention:

1 His Honour erred in considering that the existence of “malice” was capable of defeating the defence of statutory qualified pursuant to section 22 of the Defamation Act 1974 (NSW).

Defamation Act

31 I will consider in turn the following issues:

(2) Alleged errors in findings concerning truth (appeal grounds 1 – 6):

(b) no support;

(c) causation.

(4) Interest or apparent interest (appeal grounds 11 – 13).

(5) Reasonableness and malice (appeal grounds 14 – 18).

(6) Whether the imputation was comment (appeal grounds 19 – 20).

(7) Other elements of the defence of comment (appeal grounds 22 – 24).
Errors concerning evidence

32 In support of ground 7, it was submitted by Mr Smark SC for the appellant that Professor Groves had provided a commendation for Beyond the Human Condition (1 Blue 342); that he then came to believe that the appellant was leading what was in substance a cult (2 Black 634); that these matters were not disclosed in his three reports; that in his main report he sought to compare the appellant to Lenin and Hitler (3 Blue 1546); that his reports in reply were advocacy; and that the primary judge’s conclusion that Professor Groves was not affected by bias was unsupported by reasons other than that Professor Groves struck him as an impressive witness.

33 In support of ground 8, Mr Smark submitted that Professor Flannery commenced his report professing no expertise in human evolution or evolutionary psychology; that the primary judge discounted the reports of Professor Churchill and Dr Casebeer on just that basis; that Professor Flannery’s report was of little substance with no indication of detailed consideration of the appellant’s work; and that accordingly the primary judge should have given little weight to his views.

34 In support of ground 9, Mr Smark submitted that Professor Churchill had expertise in psychology and the philosophy of science, both of which were highly relevant to the standard of the appellant’s work; so that the primary judge erred in holding that he lacked expertise in respect of the central issue (judgment [576]). He submitted that Dr Casebeer had expertise in cognitive science, philosophy of mind and philosophy of science, and that the primary judge erred in discounting his evidence on the basis of expertise (judgment [589], [646]). He submitted that Professor Prosen had expertise in psychiatry and in mental and psychiatric aspects of bonobos, and the primary judge erred in treating his expertise as merely tangential (judgment [646]).

35 As regards ground 7, in my opinion the matters relied on by Mr Smark do not give substantial support to a finding of bias; and in my opinion, the reports of Professor Groves and his evidence, considered as a whole, do not suggest bias. In my opinion, no error is shown in the primary judge’s assessment, and in my opinion the circumstances did not require further elaboration of reasons.

36 In my opinion, there was no error by the primary judge in giving weight to the evidence of Professor Flannery, who did have expertise in evolutionary biology. As to whether, consistently with his approach to Professor Flannery, the primary judge should not have discounted the evidence of Professor Churchill, Dr Casebeer and Professor Prosen on the basis that their evidence was only tangential, I will consider this further in relation to particular findings.

Truth: poor standard

37 Mr Smark made detailed submissions to the effect that, although the primary judge (in his own assessment of the standard of the appellant’s work) considered that the appellant’s work could be science, even if it was not carried out by deduction or with in a reductionist framework, or directed to fellow scientists, or devoid of teleological explanations, the primary judge did not consider these attributes in evaluating the standard of the work. Nor did he seek to evaluate the appellant’s claims, apart from the statement that “our instinctive heritage is one of behaving lovingly towards others and being treated lovingly”; and he erred in treating that statement as an assumption rather than as an hypothesis. Mr Smark also submitted that the primary judge erred in mistaking what was a matter of form (the use of forceful definite language) for the matter of substance (the merit of the theories).

Interest or apparent interest

111 It was submitted by Mr Walker SC for the respondents that the whole audience of the broadcast did have an interest in having information on a subject, namely the subject of the promulgation under the cloak of science of a socially divisive and quasi religious doctrine; and that the broadcast, by means of which the imputation was made, was published in the course of giving the audience information on that subject; so that the requirements of s 22(1)(a) and (b) were satisfied.

112 In my opinion, this submission is substantially correct; although I would express the subject a little differently, as being the promulgation as a discovery of science of a potentially socially divisive doctrine with religious overtones, the recruitment of followers of the person promulgating that doctrine, and the effect of this on families. In my opinion this was not simply a matter of curiosity, but a matter of substance apart from its mere quality as news; and it was so not merely to the families of young people who might be attracted to the appellant’s ideas to the possible detriment of family relationships, but to the community generally.

113 In my opinion also, the material giving rise to the imputation was not in any sense extraneous to the giving of this information, and there is no possibility that the matter by which the imputation was made can be regarded as distinct or separate from matter published in the course of giving the audience information on the subject in question.

114 Accordingly, there is no need to consider apparent interest and s 22(2); and the substantial question to be considered is whether the conduct of the respondents was shown to be reasonable in the circumstances, within s 22(1)(c). To the extent that it bears on the question of reasonableness, I will also consider the question of malice.

Reasonableness and malice

115 Mr Smark submitted that the primary judge erred in a number of respects in finding that the respondents’ conduct in publishing the matter was reasonable. In particular:

(2) Ms Masters, Dr Millikan and Ian Carroll of the ABC made a conscious decision not to inform the appellant or Mr Macartney-Snape of the allegations to be made against them prior to the broadcast; the primary judge found this contrary to good faith and unreasonable in relation to Mr Macartney-Snape; and the primary judge should have made the same finding in relation to the appellant.

(3) The primary judge should have found the respondents, and particularly Dr Millikan, had published the matter for an improper purpose, namely to harm the appellant and/or Mr Macartney-Snape and/or the Foundation for Humanity’s Adulthood, having regard to the conduct of Dr Millikan in stating to Professor Groves and Professor Flannery, immediately prior to their being interviewed, that the appellant was acting like a cult leader and splitting up families; the failure of the respondents to include in the broadcast or refer to the existence of supporting scientists or parents; statements by Dr Millikan to the parents Mr and Mrs Belfield that he would “relish” the opportunity to “harass” the appellant; the conduct of the respondents, especially Dr Millikan, in disguising their true intentions (referring to an alleged millennium documentary, and telling the appellant he had got it wrong in his earlier unfavourable review of Beyond the Human Condition); the conduct of the respondents in inducing Mr Macartney-Snape to refer to the appellant in his speech at Concord High School, and their knowledge of the falsity of the imputations concerning Mr Macartney-Snape; the style and content and selective editing of the broadcast; and the respondents’ failure to apologise. The primary judge failed to take into account the cumulative effect of the above, and to consider whether the publication of the matter (not just the imputation against the appellant) was actuated by malice.

116 In my opinion, the primary judge addressed and dealt satisfactorily with all of these issues, except possibly for (1) the question whether unreasonable conduct as regards Mr Macartney-Snape meant that the respondents conduct in publishing the matter was not shown to be reasonable, and (2) the question whether the primary judge’s finding that malice had not been established is sufficient for reasonableness, in the light of my conclusion that the onus on the respondents to show they acted reasonably includes an onus to show that they did not publish for a dominant reason aside from the purpose specified in s 22.

117 Dealing with the first issue, I note that s 9(2) of the Act identifies the cause of action as being one in respect of the defamatory imputation for the publication of the matter that makes the imputation. What has to be shown to be reasonable under s 22(1)(c) of the Act is the conduct of the publisher in publishing that matter, in its character as making the imputation complained of; not, in my opinion, the matter in all of its aspects.

118 This view is supported by the following passage from Morgan at 383:

Those opposing arguments require further discussion of the nature of the requirement imposed by s 22, that the conduct of the defendant in publishing the “matter” was reasonable in the circumstances.

Wright v Australian Broadcasting Commission

“… s 22(1)(c) requires that particular attention is paid as to [the] reasonableness of the conduct in relation to [the] publication of this particular matter, ie that which carries the defamatory imputation.”

“… Section 22(1)(c) calls for the consideration of a wide range of matters. Some are to be found in the published material itself and the manner and extent of its publication, and others from the whole of the surrounding circumstances. The connection between the subject and defamatory imputation remains relevant. It may be tenuous, or it may be real and substantial. If what was said includes comment, it is relevant to consider whether it was fair and whether it followed logically from facts known or stated. Questions of the exercise of care before the defamatory utterance are also relevant, and questions as to whether the maker of the statement knew whether he was likely to convey a misleading impression.”

119 This passage indicates that the relevant conduct is the conduct of a defendant in publishing the particular imputation, not its conduct in publishing the whole matter; so that different results might eventuate in relation to different imputations: Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937 at [51] per Simpson J. See also Makeig v Derwent [2000] NSWCA 136 at [43] per Spigelman CJ (Mason P and Heydon JA agreeing).

120 Accordingly, in my opinion, unreasonableness of the respondents’ conduct in publishing matter in its character of making imputations against Mr Macartney-Snape does not constitute relevant unreasonableness so as to defeat a defence under s 22 to the appellant’s claim. It may conceivably have some factual relevance to the question whether the respondents have proved they have acted reasonably in publishing the matter in its character as making the imputation against the appellant, but not otherwise. In my opinion, the appellant has not identified any respect in which the primary judge should have taken unreasonableness as against Mr Macartney-Snape into account in this way, but did not do so.

121 I have said that, as part of establishing reasonableness, the onus is on the respondents to exclude malice; that is, in my opinion, relevantly an onus to show that their purpose in publishing the matter, in its character of conveying the defamatory imputation, was to give the audience information which the audience had an interest (or apparent interest) in having, and that the respondents did not have any other reason for this publication which was the dominant reason: cf Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [104].

122 The primary judge did not address this issue of malice in this way, because he treated the onus as being on the appellant to prove malice. However, he did make the positive finding of reasonableness, and he did make the positive finding that the respondents believed that the imputation against the appellant was true. I have earlier held that there was a subject on which the audience of the broadcast had an interest in having information, namely the promulgation as a discovery of science of a potentially socially divisive doctrine with religious overtones, the recruitment of followers of the person promulgating that doctrine, and the effect of this on families; and in my opinion the evidence consistently points to a conclusion that the central purpose of the respondents in making the broadcast, and in particular the broadcast in its character as making the imputation against the appellant, was to give the audience information on that subject matter.

123 It is true that the evidence suggests that the respondents, and in particular Dr Millikan, considered the activities of the appellant to be highly undesirable in their impact on his followers and their families, and it can be inferred that a purpose of his in making the publication was to set back these activities. And it is true that the primary judge found that Dr Millikan engaged in misrepresentation to obtain the appellant’s co-operation in making the broadcast. However, in my opinion neither of the these considerations suggest a dominant reason for the publication other than the purpose of providing information on the subject. The only means by which Dr Millikan was pursuing a purpose of setting back Mr Griffith’s activities was by publishing matter, including matter making the imputation against the appellant which Dr Millikan believed to be true, and publishing it by conduct which was otherwise reasonable, thereby giving information to an audience on a subject on which the audience had an interest to have that information; and in my opinion, the purpose of setting back the appellant’s activities cannot reasonably be considered a purpose distinct from his purpose of giving information in this way, much less a distinct dominant reason for making the publication. Certainly, the setting back of the appellant’s activities was not the dominant purpose, and the publication of matter to give information that the audience had an interest in having was not merely subsidiary or incidental to it. The misrepresentation was also engaged in to enable the giving of information, not for any other purpose. I am affirmatively satisfied that the publication was not actuated by malice in any of the respondents.

124 For those reasons, I would not overturn the primary judge’s finding that the conduct of the respondents in publishing the matter was reasonable, and that accordingly the defence under s 22 of the Act was made out.

125 In my opinion also, by parity of reasoning, the defence of statutory qualified privilege in Queensland and Tasmania was also made out.

Was the imputation comment?

126 I turn now to the question of comment. It was submitted by Mr Smark that the primary judge erred in treating the imputation as comment.

127 Mr Smark submitted that the onus was on the respondents to satisfy the tribunal of fact that the material in question would be regarded as comment by an ordinary reasonable viewer: John Fairfax Publications v O’Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789 at [27]-[29]. This was more difficult to establish in the case of a broadcast, where a viewer has no opportunity to review and reflect on what is presented: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 at [37]. Particularly was this so in the present case, where the broadcast interwove various themes.

128 Mr Smark submitted that the imputation was plainly a factual assertion. Either the appellant’s work had support or it did not, and the reason for that state of affairs was either right or wrong: this was confirmed in that the respondents had sought to justify the imputation as being of substantial truth.

129 In my opinion, the question whether this imputation was comment does depend on whether the ordinary reasonable viewer would regard it as comment; that is, would consider that it was presented as someone’s opinion or evaluation or assessment or judgment, rather than being a bald assertion of fact. As stated by Gleeson CJ in Manock at [4], a statement is more likely to be recognisable as a statement of opinion (or evaluation, etc) if the facts on which it is based are identified or identifiable.

130 Before the primary judge, the appellant identified the following passages from the broadcast as giving rise to the imputation:

Jackson :

They’ll be asked to devote their lives to the promotion of Griffith’s ideas and an increasing number are taking up the challenge. The intriguing question is, why? What do they see in a man whose theories are widely derided by the scientific community? How does he command their devotion? Our guest reporter is Theologian, Doctor David Millikan. (Ex N: lines 46–51)

Millikan:

The answer, he believed, lay in the evolutionary process. As human beings developed minds, they became aggressive and took it out on the innocence of animals. Griffith became obsessed with his ideas but he’d been a poor student and in the world of philosophy and theology he was an amateur. (Ex N: lines 380–385)

Macartney-Snape:

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, yet he’s dealing with the most important idea of all. (Ex N: lines 390–394)

Millikan:

For thirteen years Griffith wrote compulsively. As he did it began to dawn on him that his writings were answering the great questions of life. In the end he was convinced that he was a prophet and he had written half a million words. But he felt like a voice crying in the wilderness. It was not until he met Tim Macartney-Snape and his friends associated with ‘Australian Geographic’ that Griffith began to find the public recognition he craved. (Ex N: lines 398–405)

Millikan:

But is it an understanding based on science? Griffith has gone to enormous lengths to find endorsement. He sent eight hundred copies of his book to leading scientists and journals around the world. But today he is alone, rejected by the scientific community. (Ex N: lines 976–980)

Flannery:

No, it’s a pretty poor book about the subject. It’s it’s very selective. It doesn’t take into account the various important points of views, or differences in points of views. Its interpretation is based upon this very, very narrow data base with a very large interpretation at the top. No, I’d from what I’ve seen of it, I must say, I’m singularly unimpressed as, as an attempt to explain human nature and what humans are about. (Ex N: lines 986–993)

Macartney-Snape:

131 I would note in addition that the book being referred to by Dr Millikan and Professor Flannery was identified in the programme as Beyond the Human Condition, this book being identified by Mr Macartney-Snape at line 258 of the broadcast, and also being shown on the screen just before Professor Flannery’s comment.

132 In my opinion, it is clear that the audience would have appreciated that the book being referred to by Dr Millikan and Professor Flannery was Beyond the Human Condition, this being a book which the appellant had published and thereby invited comment on. In relation to that kind of factual material, although readers or viewers may not be able to make their own judgment purely on the basis of what is presented to them, the identification of what has been submitted for comment is sufficient indication of the facts on which the comment may be based: Manock at [7]-[8].

133 In my opinion, viewers would readily have recognised statements by Dr Millikan and Professor Flannery reflecting on the standard of the appellant’s work as expression of their opinion of the book, rather than a bald assertion of fact. In my opinion, this is not altered by the circumstance that the respondents raised truth, and sought to defend the case inter alia by showing that the assessment by these persons was true.

134 That aspect of the imputation that asserts lack of any support from the scientific community appears to be based primarily on Ms Jackson’s assertion that the appellant’s “theories are widely derided by the scientific community” and Dr Millikan’s assertion that the appellant is “alone, rejected by the scientific community”. I do not think that the audience would recognise these assertions, or the part of the imputation based on them, as mere comment. I do not think there are distinct facts identified on which these assertions are based, nor do I think that these are the kind of assertions that would readily be recognised as comment. Accordingly, in my opinion, so much of the imputation as asserts lack of support is an assertion of fact, not comment.

135 This gives rise to the question of whether an imputation which consists partly of comment and partly of assertion of fact can be defended as comment. Certainly, if the sting of the defamation lies solely in the comment, I see no reason why not. In this case, however, it would seem that part of the sting lies in the assertion that the appellant’s work has no support at all from the scientific community; so a defence that goes only to that part of the imputation that is comment might not be sufficient.

136 At common law, this position could have been addressed by what was called the rolled-up plea, which asserted to the effect that insofar as the material complained of consisted of statements of fact it was true, and insofar as it consisted of comment it was bona fide and fair comment on a matter of public interest. The Act does not explicitly provide for a defence along those lines; although s 35 (set out at par [9] above) could be taken as supporting that approach.

137 Certainly, if there is an imputation which contains a defamatory element that is comment (and is not shown to be true) and also a defamatory element that is not comment but assertion of fact (which is true), it would be highly unreasonable if there could be no defence at all because comment could apply only to the former but not the latter, while truth could apply only to the latter and not the former. I do not consider that the Act discloses an intention that this should be the case, and I do not accept it.

138 I think the better view is that s 35 has the effect that the defence of comment applies to so much of an imputation as is comment, and that so much of the imputation as is defamatory assertion of fact can be defended on some other basis, such as truth.

139 An alternative view is that one should take a broad view as to whether the imputation is, as a matter of substance, assertion of fact or comment; and deal with the totality of the imputation on this basis. On that alternative view, I would say that, although the imputation of lack of support in this case can be considered as having some defamatory sting, the predominant sting of the defamation goes to the standard of the appellant’s work; so that if one must determine, as a matter of substance, whether the imputation is assertion of fact or comment, the imputation in this case should be considered as comment rather than assertion of fact.

140 As will be seen, I would consider a defence is made out, whichever of these views is adopted.

141 There is a further question whether what I have previously identified as part of the third element of the imputation (to the effect that the degree of poorness of standard was such as to cause the lack of support) can be considered comment. That element is not explicitly asserted in the passages relied on by the appellant, but rather is implied from a combination of the passages. In my opinion, since this aspect is so dependent on what is asserted about the standard of the appellant’s work, and so directed towards an assessment of that standard, it would be understood by viewers as comment rather than bald assertion of fact.

142 Accordingly, in my opinion the imputation is comment, except to the extent that it asserts lack of support by the scientific community; and for reasons I have previously given, that assertion is true and relates to a matter of public interest, and its inclusion in the imputation does not preclude reliance on the defence of comment.

143 This analysis applies equally to New South Wales and other jurisdictions in which there are relevant statutory provisions, and also to jurisdictions in which the common law concerning comment is unmodified.

Other elements of the defence of comment

144 For the defence of comment under the Act to succeed, it is necessary also that the factual basis to the comment be sufficiently indicated and identified in the published material; that this factual basis be substantially true; that the imputation relate to a matter of public interest (this was conceded); and that, when the comment was that of the defendant or servant or agent of the defendant, the relevant opinion was held by the defendant or its servant or agent.

145 Mr Smark submitted that any comment was not based on proper material for comment, relying particularly on his submissions concerning the truth of the imputation concerning support by the scientific community; and that the primary judge should not have been satisfied that Ms Jackson and Dr Millikan held the opinion represented by the comment.

146 In my opinion the following factual basis for comment was adequately indicated or identified by the published material:

Beyond the Human Condition

(2) that the appellant had actively sought support for this work from the scientific community (as set out at lines 976 – 980 of the broadcast);

(3) that the appellant’s work had no support at all from the scientific community; and

(4) that a prominent scientist Tim Flannery described the appellant’s book Beyond the Human Condition in the terms set out at lines 986 – 994.
I have found item (3) to be true, and there is no dispute as to the truth of items (1), (2) and (4).

147 In my opinion there was no error by the primary judge in finding that the comment by Ms Jackson represented her opinion, that the comments actually made by Dr Millikan represented his opinion, and that the comment expressed by the imputation represented the opinion of Dr Millikan.

148 In my opinion, the appellant has not made out any ground for overturning the decision of the primary judge on the question of comment under the Act. Again, by parity of reasoning, the challenge to his decision on different statutory provisions concerning comment, and on the defence of fair comment at common law, also fail.

Conclusion

149 Thus it is my opinion that, while the appellant succeeds on the issue of truth, he fails on the issues of statutory qualified privilege and comment. The issue on which the appellant succeeded is not readily severable from other issues in the case, and did not add substantially to the costs of the case; and in my opinion, it would not affect the appropriate order as to costs. In my opinion the following order should be made: Appeal dismissed with costs.

150 BASTEN JA: I agree that the appeal should be dismissed with costs, for the reasons given by Hodgson JA.

I agree with Hodgson JA.

**********

Citations

Griffith v Australian Broadcasting Corporation [2010] NSWCA 257

Most Recent Citation

Cases Citing This Decision

68

Roberts v Bass [2002] HCA 57

Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd [2018] NSWCA 325

Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70

Cases Cited

14

Statutory Material Cited

2

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

Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937

Makeig v Derwent [2000] NSWCA 136

Actions

Download as PDF Download as Word Document

CITATION:	Griffith v Australian Broadcasting Corporation [2010] NSWCA 257
HEARING DATE(S):	11May 2010, 12 May 2010
JUDGMENT DATE:	7 October 2010
JUDGMENT OF:	Hodgson JA at 1; Basten JA at 150; McClellan CJ at CL at 151
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	DEFAMATION – Defence of truth – Whether available where the imputation is comment – Whether error by primary judge in finding defence made out. - DEFAMATION – Defence of statutory qualified privilege – Interest or apparent interest – Whether defence defeated by malice – whether defendant must exclude malice in order to show that its conduct was reasonable. - DEFAMATION – Defence of comment – Whether available where imputation is partly comment and partly assertion of fact.
LEGISLATION CITED:	Defamation Act 1974 ss 7A, 9, 11, 15, 20 – 22, 30 – 33, 35, Evidence Act 1995 s 48
CATEGORY:	Principal judgment
CASES CITED:	Austin v Mirror Newspapers Limited [1984] 2 NSWLR 383 Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5; (2004) 218 CLR 366 Bennette v Cohen [2009] NSWCA 60 Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320 Evatt v Nationwide News Pty Limited [1999] NSWCA 99 Greek Herald Pty Limited v Nikolopoulos [2002] NSWCA 41; (2001) 54 NSWLR 165 Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 John Fairfax Publications v O’Shane [2005] NSWCA 164; (2005) Aust Torts Rep 81-789 Makeig v Derwent [2000] NSWCA 136 Makim v John Fairfax & Sons Ltd (1990) A Def R 40,521 Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697
PARTIES:	Jeremy Norman GRIFFITH (appellant) AUSTRALIAN BROADCASTING CORPORATION (first respondent) David MILLIKAN (second respondent)
FILE NUMBER(S):	CA 2008/290293
COUNSEL:	K P SMARK SC/ S T CHRYSANTHOU (appellant) B WALKER SC/ E RAPER (respondents)
SOLICITORS:	Schweizer Kobras (appellant) Mr Rob Simpson, Australian Broadcasting Corporation (respondents)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20300/2001
LOWER COURT JUDICIAL OFFICER:	Kirby J
LOWER COURT DATE OF DECISION:	1 August 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764