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 2010JUDGMENT 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 48CATEGORY: 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 697PARTIES: 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
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2008/290293
7 OCTOBER 2010HODGSON JA
BASTEN JA
McCLELLAN CJ at CL
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…
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- AGLC
- Griffith v Australian Broadcasting Corporation [2010] NSWCA 257
- Case
- [2010] NSWCA 257
- Decision Date
CaseChat Overview and Summary
The appeal concerned a defamation action brought by the plaintiff, Griffith, against the defendant, the Australian Broadcasting Corporation (ABC). The dispute arose from a television program broadcast by the ABC which Griffith alleged contained defamatory imputations concerning him. The appeal was heard by the Court of Appeal of New South Wales.
The Court of Appeal was required to determine several legal issues. These included whether the defence of truth was available where the defamatory imputation was one of comment, and whether the primary judge had erred in finding this defence made out. Further, the court had to consider the availability of the defence of statutory qualified privilege, specifically whether the defence was defeated by malice and if the defendant was required to exclude malice to demonstrate the reasonableness of its conduct. Finally, the court examined whether the defence of comment was applicable when the imputation contained both comment and assertions of fact.
The Court of Appeal dismissed the appeal. While the specific reasoning of each judge is not detailed in the provided text, the outcome indicates that the court found no error in the primary judge's findings or in the application of the relevant defamation defences. The court upheld the ABC's defences, implying that the imputations were either true, protected by qualified privilege, or constituted fair comment, and that any malice did not defeat the privilege or that the conduct was otherwise reasonable.
The Court of Appeal was required to determine several legal issues. These included whether the defence of truth was available where the defamatory imputation was one of comment, and whether the primary judge had erred in finding this defence made out. Further, the court had to consider the availability of the defence of statutory qualified privilege, specifically whether the defence was defeated by malice and if the defendant was required to exclude malice to demonstrate the reasonableness of its conduct. Finally, the court examined whether the defence of comment was applicable when the imputation contained both comment and assertions of fact.
The Court of Appeal dismissed the appeal. While the specific reasoning of each judge is not detailed in the provided text, the outcome indicates that the court found no error in the primary judge's findings or in the application of the relevant defamation defences. The court upheld the ABC's defences, implying that the imputations were either true, protected by qualified privilege, or constituted fair comment, and that any malice did not defeat the privilege or that the conduct was otherwise reasonable.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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