Griffith v Australian Broadcasting Corporation

[2003] NSWSC 485

CITATION:

GRIFFITH & ORS v AUSTRALIAN BROADCASTING CORPORATION & ANOR [2003] NSWSC 485

HEARING DATE(S):

27 - 30 May 2003

JUDGMENT DATE:

30 May 2003

JUDGMENT OF:

Levine J

DECISION:

Allowed.

CATCHWORDS:

Counsel's right of reply

CASES CITED:

Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87

PARTIES :

JEREMY NORMAN GRIFFITH
(First Plaintiff)

FOUNDATION FOR HUMANITY'S ADULTHOOD
(ACN 003 930 023)
(Second Plaintiff)

TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)

SAMUEL CHARLES BELFIELD
(Fourth Plaintiff)
JOHN CAMERON BIGGS
(Fifth Plaintiff)

SUSAN JANE ARMSTRONG
(Seventh Plaintiff)

BRONWYN GLENIS FITZGERALD
(Eighth Plaintiff)

HEULWEN MARY JONES
(Ninth Plaintiff)

STACY ANNE RODGER
(Tenth Plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)

DAVID MILLIKAN
(Second defendant)

FILE NUMBER(S):

SC 20300 OF 2001

COUNSEL:

K Smark
(Plaintiffs)

B Walker SC / R Glasson
(Defendants)

SOLICITORS:

Schweizer & Co
(Plaintiffs)

Baker & McKenzie
(Defendants)

- 1 -

DLJT 3
Ex tempore: revised
[2003] NSWSC 485


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

JUSTICE DAVID LEVINE

FRIDAY 30 MAY 2003

JEREMY NORMAN GRIFFITH

(First Plaintiff)

FOUNDATION FOR HUMANITY’S ADULTHOOD

(ACN 003 930 023)

(Second Plaintiff)

TIMOTHY JOHN MACARTNEY-SNAPE

(Third Plaintiff)

SAMUEL CHARLES BELFIELD

(Fourth Plaintiff)

JOHN CAMERON BIGGS

( Fifth Plaintiff)

SUSAN JANE ARMSTRONG

(Seventh Plaintiff)

BRONWYN GLENIS FITZGERALD

(Eighth Plaintiff)

HEULWEN MARY JONES

(Ninth Plaintiff)

STACY ANNE RODGER

(Tenth Plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION

(First Defendant)

DAVID MILLIKAN

(Second defendant)

JUDGMENT (Counsel’s right of reply)

1 At the conclusion of the address to the jury by Mr Walker SC for the defendants, Mr Smark applied for a right of reply. It is anticipated to be limited in duration to ten to fifteen minutes. Further, it is anticipated to be limited in subject matter, as I understand it, to that component of Mr Walker's address (which was substantial), relating to the notion of “context”, and in particular to that component of “context” constituted by, in the “Four Corners” program, the publication of images of the plaintiffs themselves speaking.

2 The subject matter of the sought reply would be limited to that, and to Mr Walker's use of context in a way that I have indicated in relation to both questions the jury has to answer, namely “meaning” and “defamatory”.

3 I have given consideration to Mr Smark's application overnight. I can say, first, that the fact that a great deal of time has passed since the jury heard from Mr Smark, is no more than an incident of litigation of this kind, and by itself would not weigh in favour of the exercise of my discretion in favour of the plaintiffs.

4 I have given consideration to the forensic component, as I will describe it, made up of the issue of the anticipation in the plaintiffs' counsel of what counsel for the defendants could place before the jury by way of submissions. That also, in the usual course of events, might be considered an incident, and nothing much more than that, of litigation, and the trial of an action under the adversarial system.

5 I have had occasion again to read the decision of the Court of Appeal in Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87. That judgment was the subject of the grant of special leave to appeal to the High Court of Australia, and that appeal has been argued, but no judgment has been delivered by that Court. Until that judgment is delivered, such authority as is constituted by the decision of the Court of Appeal in Rivkin is still in place.

6 The majority in that Court, it can be understood, were of the view that whilst it was a matter of discretion in the end - and these are my words - more often or more likely that discretion would be exercised in favour of the plaintiff, but no such rule was established.

7 Proceedings before a jury under s7A of the Defamation Act 1974 are now almost universally acknowledged to be extraordinarily artificial. The more so in a case such as this, where the evidence is limited to the publications sued upon. In this case of course three publications are sued upon. In this case of course the pleading discloses nine plaintiffs, but not all the plaintiffs are complaining about all the programs.

8 It has become clear that the major component of the litigation is the “Four Corners” program which received much attention from both Mr Smark and Mr Walker. However, because of the artificial nature of s7A proceedings, I am of the opinion that the trial judge must be acutely sensitive to balance being achieved in the submissions of counsel, rather than it being attained by the perilous course of the judge seeking to achieve it in summing-up to the jury.

9 The subject matter of the right of reply in shorthand terms, namely context vis-à-vis both “meaning” and “defamatory”, was one perfectly legitimate and appropriate for Mr Walker to advance. The subject of "context”, even though that word to my recollection might not have been used by Mr Smark, was certainly part of his address to the jury, but with an important different emphasis. Shortly stated, the emphasis in Mr Smark's address in relation to the “Four Corners” program was principally concerned with words spoken by people other than the plaintiffs. The emphasis in Mr Walker's address was principally concerned with words spoken by the plaintiffs themselves.

10 In the end, I am persuaded that a short, crisp, succinct reply, dealing only with the subject matter raised yesterday, (“context” in relation to “defamatory”), and to which I have referred, and which in no way repeats submissions made earlier by Mr Smark for his clients, should be permitted, and I propose to allow it.

**********

Last Modified: 06/04/2003