Griffith v John Fairfax Publications Pty Ltd

[2004] NSWSC 66

CITATION:

GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS [2004] NSWSC 66

HEARING DATE(S):

20 February 2003

JUDGMENT DATE:

19 February 2004

JUDGMENT OF:

Levine J

DECISION:

1. The following imputations shall go to the jury in accordance with my reasons: 6(a), 6(c), 6(d), 6(e), 6(h), 7(b), 8(e), 12(a), 12(c), 13(a), 14(a), 14(d).; 2. In relation to the following imputations verdicts will be entered for the first and second defendants in accordance with my reasons: 6(b), 6(f), 6(g), 6(i), 7(a), 8(a), 8(b), 8(c), 8(d), 9(a), 9(b), 9(c), 10(a), 10(b), 10(c), 10(d).; 3. In relation to the following imputations verdicts will be entered for the first second and third defendants in accordance with my reasons: 12(b), 12(d), 12(e), 12(f), 12(g), 13(b), 13(c), 13(d), 14(b), 14(c).; 4. Paragraph 16 of ASC is struck out.; 5. The plaintiffs are to pay the defendants' costs.; 6. I place the matter in the Registrar's list at 9.00am on Friday 27 February 2004.

CATCHWORDS:

Defamation - imputations - capacity - form

CASES CITED:

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165
Griffith v Australian Broadcasting Corporation [2002] NSWSC 86
McCormick v John Fairfax & Sons (1989) 16 NSWLR 485

PARTIES :

JEREMY NORMAN GRIFFITH
(First Plaintiff)

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

TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)

THE PERSONS NAMED IN SCHEDULE "A"
(Fourth plaintiffs)

v

JOHN FAIRFAX PUBLICATIONS PTY LTD
(ACN 003 357 720)
(First Defendant)

DAVID MILLIKAN
(Second Defendant)

WILLIAM ANTHONY McCLELLAND trading as "CULTAWARE"
(Third Defendant)

FILE NUMBER(S):

SC 20301 OF 2001

COUNSEL:

K Smark
(Plaintiffs)

R Lancaster
(First and second defendants)

P Menadue
(Third defendant)

SOLICITORS:

Schweizer & Co
(Plaintifs)

Freehills
(First and second defendants)

Third defendant - in person

[2004] NSWSC 66

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

JUSTICE DAVID LEVINE

THURSDAY 17 FEBRUARY 2004

20301 OF 2001


JEREMY NORMAN GRIFFITH
(First Plaintiff)

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

TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)

THE PERSONS NAMED IN SCHEDULE “A”
(Fourth plaintiffs)

v

John Fairfax Publications Pty Ltd
(ACN 003 357 720)
( First Defendant)

DAVID MILLIKAN
(Second Defendant)

WILLIAM ANTHONY McCLELLAND trading as “CULTAWARE”
(Third Defendant)

JUDGMENT (Defamation – imputations – capacity – form)

1 The first to fourth plaintiffs sue the first and second defendant in respect of a publication in “The Sydney Morning Herald” (the first matter complained of, SMH ), of 22 April 1995. The proceedings were instituted before the expiry of the limitation period and the relevant pleading is the amended statement of claim (ASC) filed on 25 September 2002.

2 The text of the SMH article is appended to these reasons and marked “A”.

3 It is to be noted that the fourth plaintiff is in fact a “group” of 33 individuals who, for present purposes, are to be taken to be members of the second plaintiff, the “Foundation for Humanity’s Adulthood” .

4 In paragraph 6 of ASC the following nine imputations are pleaded as being carried by SMH in its natural and ordinary meaning of the first plaintiff, Jeremy Griffith:
6(a) Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ.
(b) Jeremy Griffith is a tyrant who does not tolerate questioning of his ideas.
(c) Jeremy Griffith has a perverted view of sexual relations between men and women.
(d) Jeremy Griffith is a male chauvinist.
(e) Jeremy Griffith attempts to indoctrinate young people in order to manipulate and control their minds.
(f) Jeremy Griffith is a hypocrite in that he holds himself out as a scientist while actually he does not allow scientific enquiry into his ideas.
(g) Jeremy Griffith is the founder and leader of a dangerous cult which poses a threat to the community.
(h) Jeremy Griffith is the leader of an organisation which places unreasonable demands on the members of the FHA such that their families are torn apart.
(i) Jeremy Griffith is a dangerous lunatic.
5 Paragraph 7 of ASC says that SMH defames FHA by carrying, in its natural and ordinary meaning, the following two imputations:
7(a) The FHA is a dangerous cult which poses a threat to the community.
(b) The FHA places unreasonable demands on members of the FHA such that their families are torn apart.
6 Paragraph 8 of ASC says The Sydney Morning Herald defames Tim Macartney-Snape by carrying the following five imputations in its natural and ordinary meaning:
8(a) Tim Macartney-Snape abuses his position of influence, derived from his reputation as a mountaineer, to recruit students at schools for Jeremy Griffith.
(b) Tim Macartney-Snape has sought to recruit students at schools to a dangerous cult which poses a threat to the community.
(c) Tim Macartney-Snape is a member of a dangerous cult which poses a threat to the community.
(d) Tim Macartney-Snape is a brainwashed follower of Jeremy Griffith.
(e) Tim Macartney-Snape is so foolish that he believes the ludicrous ideas of Jeremy Griffith.
7 Paragraph 9 of ASC says SMH defames the fourth plaintiff in its natural and ordinary meaning, by carrying the following three imputations of each of them:
9(a) Each of the FHA members is a member of a dangerous cult which poses a threat to the community.
(b) Each of the FHA members is a brainwashed follower of Jeremy Griffith.
(c) Each of the FHA members is so foolish that he or she has allowed him or herself to be duped into believing the ludicrous ideas of Jeremy Griffith.
8 Paragraph 10 of ASC pleads four additional imputations, one of each of the plaintiffs, as arising either from the natural and ordinary meaning of SMH or by way of a true innuendo. In the course of events leading to argument before me it turned out that the respective plaintiffs rely upon the following imputations of each of them as true innuendos only:
10(a) Jeremy Griffith is the leader of a dangerous cult.
(b) The FHA is a dangerous cult.
(c) Tim Macartney-Snape is a member of a dangerous cult.
(d) The FHA members are members of a dangerous cult.
9 The extrinsic facts upon which reliance is placed for the purpose of pleading these true innuendos are:
“During the 1990s, in Waco, Texas, many members of a religious group perished in fire during a conflict with the United States government”.

In addition to relying upon “the whole of the matter complained of” as giving rise to the imputations by way of true innuendos, each of the plaintiffs rely specifically on lines 100-109.


10 I propose, as far as it is as practicable as possible, to follow the flow of argument as took place before me.

11 The first and second defendants’ first objection related to the pleading in relation to the group of plaintiffs identified as the fourth plaintiff.

12 Exhibit 1 on the application before me was correspondence between the plaintiffs’ solicitors and the solicitors for the first and second defendants in relation to complaints made by the latter as to compliance with SCR Pt 76 r 12(1)(d). The plaintiffs’ solicitor’s letter of 31 August 2001 sets out the names of respective plaintiffs, and in relation to each of them, the names of “identifying witnesses” . It is to be taken into account that two of the fourth plaintiffs namely John Cameron Biggs and Simon Brook Griffith are named in the matter complained of. Particulars of the addresses of the respective “identifying witnesses” are given. A letter dated 8 October 2001 from the fourth plaintiffs’ solicitor to the solicitors for the first and second defendants further refines these particulars but not in a relevantly material respect. As to the further particularisation of the case on identification the essential element will be that each “identifying witness” knew that the relevant plaintiff was a member of the second plaintiff.

13 What the fourth plaintiffs (save for those named) have failed to do is to provide particulars of the facts, matters and circumstances relied upon which enable the “identifying witnesses” to understand the matter complained of as having been published of and concerning each of those unnamed. The first and second defendants seek an appropriate order in that regard.

14 Assuming, as the first and second defendants must, that a case on identification is otherwise properly particularised, it is argued that the first matter complained of is incapable of defaming any member of the group constituting the fourth plaintiffs by carrying any of the pleaded imputations.

15 For the purposes of argument outlines and substantive submissions were filed to which reference was made in the course of oral argument. Simpson J in Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 dealt with cognate matters concerning a “Four Corners” broadcast which was the subject of a s7A trial over which I presided (27 May 2003 to 30 May 2003).

16 It is appropriate in a matter of such dimensions as the present to go through the imputations and indicate as briefly but as clearly as possible each imputation’s fate and my reasons therefor. Indeed, it would not be an unfair description of the approach by all parties to the application heard by me, that that approach was essentially thematic rather than one that involved the minutiae attending each imputation. I add that conformable with the Practice Note and the Rules the plaintiff’s have identified the lines of SMH (in addition to the whole of it) specifically relied upon in support of the various imputations. By reason of the text of SMH being appended hereto I will indicate the lines upon which the plaintiffs rely, when specified, in addition to the whole of the article.


First matter complained of ( SMH )

First plaintiff (Griffith)

17 Imputation 6(a): “Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ” (lines 36-38).

This imputation is not challenged and accordingly I find it to be capable of being carried by the matter complained of and capable of being defamatory.

18 Imputation 6(b): “Jeremy Griffith is a tyrant who does not tolerate questioning of his ideas” (lines 167-171, 177-180, 194-200, 206 –214).

The essence of the objection as to capacity is the use of the word “tyrant” in the imputation. The word is not used in the matter complained of. The highest that can be found is lines 201-214 which, in my view, speaks of a certain level of self-certainty ( “towering” ) and intellectual intolerance. What that part of the matter complained of, and the rest of it, lacks is any notion of oppression, the arbitrary or cruel exercise of power, or sanction against anyone. A reasonable reading of that part of the article as part of the whole might lead to a view of a certain level of intellectual intolerance in Mr Griffith but not that of a tyrant. The objection is well-founded, and I rule as a matter of law that SMH is incapable of carrying imputation 6(b). I enter a verdict for the first and second defendants as against the first plaintiff in relation to that cause of action.

19 Imputation 6(c): “Jeremy Griffith has a perverted view of sexual relations between men and women” (lines 190-200).

In relation to this imputation much turns upon the words “There is a dark dimension to Griffith’s view of women and sex”.


20 In this regard am not sufficiently impressed by arguments for the first and second defendants to hold the matter complained of incapable of carrying this meaning. This, to me, seems a real jury point and no doubt that tribunal will receive a double-barrelled barrage of counsel’s submissions in that regard. But at the threshold I am not persuaded of the requisite matter of law.

21 I find imputation 6(c) capable of being carried and capable of being defamatory.

22 Imputation 6(d): “Jeremy Griffith is a male chauvinist” (lines 190-204).

Simpson J dealt with an imputation in identical terms in the Australian Broadcasting Corporation matter at paras [169] and [170]. I respectfully adopt in respect of SMH what her Honour there said. This imputation will go to the jury. I hold that imputation 6(d) is capable of being carried by the first matter complained of and is capable of being defamatory.

23 Imputation 6(e): “Jeremy Griffith attempts to indoctrinate young people in order to manipulate and control their minds” (lines 1, 3-4, 51-52, 54-56, 61-66, 75-77, 85-89, 100-109, 177-180, 208-212).

Objection is taken on the basis that none of the passages relied upon suggests any attempt on the part of Mr Griffith to indoctrinate for a particular purpose of controlling or manipulating the mind of Foundation members or young people. The objection relates to “in order to”. There are references to members being “adherents”, “disciples” or “followers” . Nothing elevates their status as to people who are being indoctrinated, let alone for a purpose. Nothing more than an attempt by Mr Griffith to persuade his followers of his view is available on a reasonable basis, so it is contended.


24 This is a finely drawn matter. I am persuaded, however, that it should go to the jury. Reading the matter overall, and in particular the identified lines, lines 61-62 refer to Mr Griffith’s “intent” and there of course is the critical reference in this context to the Foundation being surrounded by controversy and the employment of a cult expert and deprogrammer as referred to in lines 100-109. I find the first matter complained of capable as a matter of law of carrying imputation 6(e) and that it is capable of being defamatory.

25 Imputation 6(f): “Jeremy Griffith is a hypocrite in that he holds himself out as a scientist while actually he does not allow scientific enquiry into his ideas” (lines 129-133, 140-147, 157-160, 184-188, 206-220).

Whilst it is the case that the article makes clear that Mr Griffith is a science graduate, I myself cannot see, on a reasonable reading of the passages referred to in the context of SMH as a whole, the availability of the notion of “hypocrisy”. Again, lines 206 and following relating to Mr Griffith’s “towering self-certainty” may give an adverse impression, but they and any other part relied upon are incapable of giving rise to “hypocrisy” in the sense of, on the one hand being a scientist, and on the other, not permitting any scientific investigation into any espoused scientific position on the part of the plaintiff.


26 No reasonable reading of the matter complained of can give rise to this imputation.

27 I hold that imputation 6(f) is incapable of being carried by the matter complained of and accordingly I enter a verdict in favour of the first and second defendants against the first plaintiff in respect of this cause of action.

28 Imputation 6(g): “Jeremy Griffith is the founder and leader of a dangerous cult which poses a threat to the community” (the whole of the matter complained of, lines 44-46, 54-56, 60-89, 90-98, 100-109, 173-182, 191, 206-220).

This imputation contains a component that is cognate with components of remaining imputations the subject of challenge by all defendants in respect of the respective matters complained of. This is the notion of “dangerous”.


29 The ordinary reasonable reader could understand the first plaintiff to be the founder and leader of the second plaintiff. The ordinary reasonable reader could understand the matter complained of as speaking of the second plaintiff as a cult, especially by reference to the religious connotations arising from statements about the first plaintiff vis-à-vis Jesus Christ and as a prophet.

30 What I am unable to conclude is that this matter complained of is capable of carrying the idea that the “cult” is dangerous and that it poses a threat to the community. Not all elements of this imputation can be made out on a capacity basis: compare Simpson J in Griffith v Australian Broadcasting Corporation , supra at paras [51]-[64].

31 Accordingly, I find the matter complained of incapable of carrying imputation 6(g) and therefore enter a verdict in favour of the first and second defendants against the first plaintiff in respect of that cause of action.

32 Imputation 6(h): “Jeremy Griffith is the leader of an organisation which places unreasonable demands on the members of the FHA such that their families are torn apart” (lines 44-45, 100-105, 177-180).

This imputation is not challenged.


33 Accordingly, I hold imputation 6(h) to be capable of being carried by the matter complained of and capable of being defamatory.

34 Imputation 6(i): “Jeremy Griffith is a dangerous lunatic” (the whole of the matter complained of and lines 25, 27, 36-42, 152-154 and 206-214).

The plaintiff in support of this imputation refers to the “danger” posed. This notion I have rejected. Further, in relation to Mr Griffith’s mental state, whilst Dr Millikan is not suggesting that the first plaintiff is perpetrating a fraud, and indeed accepts the genuineness of Mr Griffith’s beliefs, he questions the rationality of them. This is not sufficient. As was argued for the first and second defendants the author finds Mr Griffith’s “towering certainty” confronting, one could think. The author, one could also conclude, finds it even repellent, but the article as a whole is incapable of converting such adverse views to the level of a criticism of “dangerous lunacy” .


35 It is to be borne in mind that the test is reasonableness: this would be putting a scandalously strained construction on the import of the whole of this matter complained of.

36 Accordingly, I find imputation 6(i) to be incapable of being carried by the matter complained of and enter a verdict for the first and second defendants against the first plaintiff in respect of this cause of action.


First matter complained of ( SMH )

Second plaintiff (the FHA)

37 Imputation 7(a): “ The FHA is a dangerous cult which poses a threat to the community” (the whole of the matter complained of).

For the same reasons that applied to imputation 6(g) I find the matter complained of incapable of carrying this imputation and accordingly enter a verdict in favour of the first and second defendants against the second plaintiff in this cause of action.

38 Imputation 7(b): “The FHA places unreasonable demands on members of the FHA such that their families are torn apart” (lines 44-45, 100-105, 177-180).


This imputation is not challenged and accordingly I hold that the matter complained of is capable of carrying it and that it is capable of being defamatory of the second plaintiff.

First matter complained of ( SMH )

Third plaintiff (Macartney-Snape)

39 Imputation 8(a): “Tim Macartney-Snape abuses his position of influence, derived from his reputation as a mountaineer, to recruit students at schools for Jeremy Griffith” (lines 8-34, 44-46, 54-55, 61-66, 68-69, 77-78, 85-89, 148-150).

The defect alleged in relation to this imputation is that it is incapable of being carried by the matter complained of. There is nothing in the matter complained of that could be understood as explicitly or intrinsically suggesting that what Mr Macartney-Snape is doing when he accepts invitations to address schools is an abuse, in order to recruit students, of the reputation or position he obtained derived from his mountaineering days. It may well be that the article could be understood as suggesting that so impressive is Mr Macartney-Snape by way of his reputation that high school students are attracted to the Foundation and to Mr Griffith whose virtues Mr Macartney-Snape espouses, but it is the notion of the “abuse” that is impossible to extract.

40 I agree. There may be some suggestion capable of being understood from this matter complained of involving the notion of “exploiting” the reputation but not in so derogatory a sense as to connote abusing it.

41 Accordingly, in regard to imputation 8(a) I hold that the matter complained of is incapable of carrying it and that there should be a verdict for the first and second defendants against the third plaintiff in relation to that cause of action.

42 As to imputations 8(b) and (c) insofar as each refers to the “dangerous cult” and “poses a threat to the community” conformably with what I have hitherto said I am of the view that neither is capable being carried.

43 Accordingly, in relation to imputations 8(b) and (c) I hold that the matter complained of is incapable of carrying each and in respect of each there will be a verdict for the first and second defendants against third plaintiff in relation to those causes of action.

44 As to imputation 8(d): “ Tim Macartney-Snape is a brainwashed follower of Jeremy Griffith” (lines 1, 8-46, 51-52, 61-65, 100-109, 177-180, 201-214).

I am of the view that the matter complained of is simply incapable of connoting the idea of “brainwashing” generally or in relation to Mr Macartney-Snape in particular. On the contrary, Mr Macartney-Snape is presented as a rational but fervent and honest believer in the ideas about which he talks to people at schools. There is no notion of any involuntary conduct on his part. To the contrary, he is a happy advocate, and a knowing and intelligent one, of all that he is prepared to accept for which Mr Griffith and the Foundation stand.


45 In relation to imputation 8(d) I hold that the matter complained of is incapable of carrying that imputation and enter a verdict for the first and second defendants against the third plaintiff in respect of that cause of action.

46 Imputation 8(e) is not challenged. Accordingly I hold that the matter complained of is capable of carrying that imputation and is capable of being defamatory.


First matter complained of ( SMH )

Fourth plaintiff (The “members”)


47 Imputation 9(a): “Each of the FHA members is a member of a dangerous cult which poses a threat to the community” (the whole of the matter complained of).

48 This imputation is incapable of being carried in relation to any member that falls within the category of the fourth plaintiff, for the reasons stated above as to “dangerous cult” which “poses a threat to the community” .

49 Accordingly, in relation to imputation 9(a) there will be a verdict for the first and second defendants against each of the fourth plaintiffs in respect of that cause of action.

50 Imputation 9(b): “Each of the FHA members is a brainwashed follower of Jeremy Griffith” (lines 1, 8-9, 24-27, 36-38, 47-52, 54-58, 61-63, 75-78, 85-89, 100-109, 177-180, 194-200, 206-214).

The overall impression in my view given by the article is of the high level of intelligence and a knowing acceptance by the group of people identified as the fourth plaintiffs. Again, there is no suggestion of involuntariness. The fact that these plaintiffs are described as “adherents” , “disciples”, “followers” or even as having been “drawn into the Foundation” and as having been exposed to “concentrated encounters with the prophet” , indeed even the one reference to an unidentified person having unsuccessfully been placed in the hands of cult deprogrammer, are not sufficient to sustain a notion of “brainwashing”.


51 Accordingly, in relation to imputation 9(b) I hold that the matter complained of is incapable of carrying it in relation to any one of the fourth plaintiffs and accordingly there shall be a verdict in favour of the first and second defendants against each of the fourth plaintiffs in relation to this cause of action.

52 Imputation 9(c): “Each of the FHA members is so foolish that he or she has allowed him or herself to be duped into believing the ludicrous ideas of Jeremy Griffith” (lines 8-9, 24-27, 36-38, 47-52, 54-58, 65-69, 75-78, 85-89, 100-109, 127-134, 147-154, 160-164, 177-180, 206-220).

The first submission made is that it does not differ in substance from 9(b). That submission is now otiose insofar as I have held that imputation 9(b) is incapable of arising.


53 The real problem arises with the word “duped” . The article does suggest that the members are persuaded by, or come to adhere to, the ideas promoted by Mr Griffith. There is, however, no suggestion that they have been “tricked” or “duped” . Again, it seems clear that the reader could understand that each of the fourth plaintiffs was a knowing, intelligent person who upon hearing the ideas came to accept them. The ideas, in the eyes of the second defendant, are ludicrous, but that cannot mean, to the ordinary reasonable reader, the notion of “duped”.

54 Accordingly, I hold that the matter complained of is incapable of carrying imputation 9(c) and thus there will be a verdict in favour of the first and second defendants in relation to each of the fourth plaintiffs with respect to that cause of action.

55 Paragraph 10 of ASC pleads by way of a true innuendo the following imputations:
10(a) Jeremy Griffith is the leader of a dangerous cult.
(b) The FHA is a dangerous cult.
(c) Tim Macartney-Snape is a member of a dangerous cult.
(d) The FHA members are members of a dangerous cult.


56 The particulars of extrinsic facts relied upon are stated to be: “During the 1990s, in Waco, Texas, many members of a religious group perished in a fire during a conflict with the United States government”.

57 I have already held in relation to the respective plaintiffs the non-availability, in the natural and ordinary meaning, of any imputation connoting “dangerous cult”. The plaintiffs abandoned reliance on the natural and ordinary meaning of these imputations.

58 They are thus to be considered in terms of each being a true innuendo.

59 Reliance is placed upon lines 100-109 as well as the article as a whole in support of the true innuendo and taking into account the knowledge in a reader of the extrinsic fact.

60 However, when one reads the extrinsic fact one cannot conclude that there is any logical connection between the minimalist information contained in that particular and anything in the matter complained of other than the use in the matter complained of the word “Waco”. As was submitted the so-called extrinsic fact is quite extraneous to any subject matter in the matter complained of.

61 Whilst in the course of these reasons I have not excluded any “religious” connotation because of the statements made in relation to Mr Griffith vis-à-vis Jesus Christ for example. My not excluding that notion still does not sustain a case based upon that particular in support of true innuendo.

62 Accordingly, I hold that imputations 10(a), (b), (c) and (d) are incapable of being carried by the matter complained of and I enter a verdict in favour of the first and second defendants in respect of the first plaintiff in relation to imputation 10(a), in relation to the second plaintiff in relation to imputation 10(b), in relation to the third plaintiff in relation to 10(c) and in relation to the fourth plaintiffs in relation to 10(d).

Second matter complained of ( CultAware )


63 The first, second and third plaintiffs only sue the third defendant in respect of this publication.

64 The second matter complained of is described as “CultAware Newsletter, August/October 1995”. In paragraph 11 of ASC the third defendant, McClelland, is said to have published of and concerning the plaintiffs the matter set out in Schedule 2, the text of which is appended to these reasons and which is headed “ CultAware Newsletter”.

65 In paragraph 12 of ASC the first plaintiff Jeremy Griffith pleads that CultAware carries the following imputations defamatory of him:

12(a) Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ.
(b) Jeremy Griffith is a tyrant who does not tolerate questioning of his ideas.
(c) Jeremy Griffith is the leader of an organisation which places unreasonable demands on the members of the FHA such that their families are torn apart.
(d) Jeremy Griffith is the leader of a destructive cult which poses a threat to the community.
(e) Jeremy Griffith uses mind control techniques on unwitting victims.
(f) Jeremy Griffith engages in deceptive practices to recruit followers.

(g) Jeremy Griffith is a dangerous lunatic.

66 In paragraph 13 of ASC the second plaintiff (FHA) says that CultAware carries the following defamatory imputations of it:
13(a) The FHA places unreasonable demands on its members such that their families are torn apart.
(b) The FHA is a destructive cult which poses a threat to the community.
(c) The FHA uses mind control techniques on unwitting victims.
(d) The FHA engages in deceptive practices to recruit followers.
67 In paragraph 14 of ASC the third plaintiff (Macartney-Snape) contends that CultAware carries the following defamatory imputations of him:
14(a) Tim Macartney-Snape is a member of an organisation which is responsible for tearing families apart.
(b) Tim Macartney-Snape is a member of a destructive cult which poses a threat to the community.
(c) Tim Macartney-Snape is a brainwashed follower of Jeremy Griffith.
(d) Tim Macartney-Snape is so foolish that he believes the ludicrous ideas of Jeremy Griffith.

68 The second matter complained of is of some substantial bulk. The pleading of all the material in it was as a result of my judgment on a “strike in” application by the plaintiff against the third defendant: [2002] NSWSC 806 (11 September 2002).

69 The whole of CultAware includes at lines 601-636 a reference to the Foundation and extracts at lines 610-636 part of the first matter complained of, being the SMH article of April 22. In paragraph 15 of ASC the following is pleaded:
15 The publication of the portion of the second matter complained of at lines 608-636 of Schedule 2 was the natural and probable consequence of the publication by Fairfax and Davis Millikan of the first matter complained of and by reason of this and the matters set out in paragraphs 5 to 10 above, Fairfax and David Millikan are liable, in addition to Anthony McClelland, for the publication of that portion of the second matter complained of, and accordingly, for the publication of the imputations pleaded in paragraphs 12(a), (b), (c), (d) and (g), 13(a), (b), 14(a), (b), (c) and (d).
Particulars
(i) The first matter complained of was published in the “Sydney Morning Herald” newspaper, a highly respected newspaper of wide circulation throughout Australia.
(ii) It is to be expected that any allegations of substance made in the “Sydney Morning Herald” will be republished in the public domain generally.
Particulars of portions of matter complained of relied upon as giving rise to imputations
The plaintiffs repeat the particulars which appear below paragraph 14 above, insofar as those particulars relate to the portion of the second matter complained of referred to in paragraph 15 hereof.

70 The situation therefore appears to be that my rulings on the imputations referred to in paragraph 15 ASC will affect the thus far unchallenged case of republication by the third defendant for which in paragraph 15 it is said that the first and second defendants are liable.

71 Another aspect of republication is paragraph 16 which is in the following terms:
16 The second matter complained of was published in circumstances where its republication was:
(a) Intended; or
(b) authorised; or
(c) the natural and probable consequence of its publication by Anthony McClelland.
Particulars
Lines 118-121 of Schedule 2. The plaintiffs will rely on any republication of the second matter complained of on the question of damages against Anthony McClelland.

72 Here the third defendant properly takes the point which the plaintiffs do not appear to have answered that there has been no allegation of republication in fact. Certainly the lines referred to in the second matter complained of are an invitation to republish but not one instance of republication pursuant to any such invitation has been pleaded by the plaintiffs for which the plaintiffs would seek to hold the third defendant liable in damages.

73 Accordingly, I strike out paragraph 16 of ASC.

74 I turn now to the respective plaintiffs and their respective imputations and shall adopt the same approach as I did in relation to the first matter complained of.


Second matter complained of

First plaintiff (Griffith)


75 Imputation 12(a): “ Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ” (lines 614-616, 619-622, 835-939).

76 Before dealing with this imputation it is to be noted that the defendants made a submission that, notwithstanding that the bulk of the material CultAware , the ordinary reasonable reader would exercise a level of discrimination between each individual item. There would be no “cross-referencing” between something that is on its face absolutely unconnected with any of the plaintiffs or the Foundation and the extract from the SMH many pages or lines later or many pages or lines earlier. Be that as it may, one still is confronted with the whole of this mass of material and, doing the best one can from the point of view of the ordinary reasonable reader, determine, on the basis of reasonableness, questions of capacity which the application invites.

77 In relation to imputation 12(a) there is, in my view, sufficient in the extracted material from the SMH article to preserve this imputation.

78 Accordingly, I find imputation 12(a) capable of being carried by the second matter complained of and capable of being defamatory.

79 Imputation 12(b): “ Jeremy Griffith is a tyrant who does not tolerate questioning of his ideas” (lines 615-616, 633-636).

For the reasons given in relation to the first matter complained of I am not persuaded that the identified portion of CultAware by itself, or as part of the whole body of that matter, is capable of giving rise to this imputation. As intimated earlier Mr Griffith has very strong views and may well be intolerant in defence of them. On the other hand, his followers are healthy, privileged, highly intelligent, well educated and highly nurtured. It is hard to see any room for the involvement in that relationship of sanctions, fear and terror that one would associate with tyranny whether in the political context or, indeed, even perhaps in the domestic context.


80 Accordingly, I hold that imputation 12(b) is incapable of being carried by the second matter complained of and I enter a verdict for all defendants against the first plaintiff in respect of that cause of action.

81 Imputation 12(c ): “Jeremy Griffith is the leader of an organisation which places unreasonable demands on the members of the FHA such that their families are torn apart” (lines 1, 4, 11-12, 31, 45, 55-57, 61-62, 90-93, 109-111, 116-117, 132-134, 220-221, 230-231, 443, 448-449, 453-454, 436-437, 487-488, 515-516, 629-631).

82 The first and second defendants did not take any objection to equivalent imputations in SMH . The third defendant submitted that the ordinary reasonable reader could expect, in the normal course, that some families would be unhappy that their children had joined a close-knit organisation of any kind (whether it be the army, a sports club, a religious group, etc). That, however, does not suggest that those children joined that organisation unwillingly or that the demands made upon them are unreasonable. It is submitted that there is no suggestion in CultAware that the demands of the Foundation are unreasonable. Further, the ordinary reasonable reader would judge the various plaintiffs on the basis of the SMH extract without reference to other material in the newsletter. In other words, the ordinary reasonable reader is sophisticated enough to judge the plaintiffs on the basis of what was specifically reported about them. Further, if a reader did judge the plaintiffs on the basis of the material outside the SMH extract (which is not submitted to be an available approach), that reader could see the newsletter containing specific caveats about not treating the various groups mentioned in an undifferentiated way (lines 44-46 and 218-221). I have reflected upon these submissions; they are certainly appropriate for a jury. However, on a capacity argument, there are two particular components of the SMH extract that persuade me that the imputation can go to the jury and those are first, lines 633-636 relating to the first plaintiff’s “towering self-certainty” and so-on, and the preceding three lines in relation to families being “torn apart”. Accordingly, imputation 12(c) I find to be capable of being carried by CultAware and capable of being defamatory.

83 Imputation 12(d): “Jeremy Griffith is the leader of a destructive cult which poses a threat to the community” (the whole of the second matter complained of).

84 In relation to this imputation an objection is taken as to form on the basis that the imputation is vague and embarrassing because it does not specify the form of “destruction” or the type of “threat to the community” . It is suggested that “destructiveness” and, presumably, “threat” is cognate with “corrupt” as referred to and dealt with by the Chief Justice especially in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.

85 It is to be noted in relation to this matter that the first plaintiff simply relies on the whole of the matter complained of. Whether that is so or whether the first plaintiff can be understood as divining paths to the imputation from other parts of the matter, it seems to me that the argument as to form is hair-splitting to say the least. The simplest answer is that that imputation means what it says, and nothing in the second matter complained of as a whole, and certainly the SMH extract, is capable of carrying it.

86 Accordingly I hold that imputation 12(d) is incapable of being carried by the second matter complained of and there shall be a verdict for the defendants against the first plaintiff in respect of that cause of action.

87 Imputation 12(e): “Jeremy Griffith uses mind control techniques on unwitting victims” (The whole of the matter complained of, in particular lines 11-12, 56-57, 97-98, 139, 143-151, 624-627, 651-652).

This is a far-fetched and fanciful imputation. There is not the slightest suggestion of anything remotely close to it in the SMH component of the matter complained of. However, the plaintiff relies on certain passages in the bulk of the article which from time to time, although not referring to any of the plaintiffs in this action, refers to the concept encapsulated in the imputation. Indeed lines 10, 11 and 12 point to the objective of CultAware in terms of mental health implications of destructive groups and mind-control techniques. The second plaintiff is item 7 in the contents, lines 56-57, the Chairperson of CultAware refers to his organisation’s “targets” and “deceptive recruitment…uninvited mind control or thought reform techniques”.


88 On the other hand, at lines 43-44 there is a disclaimer in relation to the mere fact of a group being mentioned does not necessary indicate that it is “destructive, or cultic” in nature.

89 The ordinary reasonable reader of the whole of the material, as I have said above, could be taken to be capable of exercising sensible discrimination in reading the whole of the second matter complained of and not leaping to conclusions of the kind encapsulated in this imputation merely by reason of the first and second plaintiffs being referred to or, indeed, the third plaintiff being referred to in the SMH extract.

90 There is a further difficulty that precludes a finding that rationally and reasonably any such control techniques vis-à-vis the plaintiffs in this action involved “unwitting victims” . The extract, particularly at lines 624-627, points to the contrary.

91 Accordingly, I hold as a matter of law that the second matter complained of is incapable of carrying imputation 12(e) and I enter a verdict for the third defendant in respect of this cause of action.

92 Imputation 12(f): “Jeremy Griffith engages in deceptive practices to recruit followers” (The whole of the matter complained of, in particular lines 10-12, 55-57, 60-64, 97-98, 146-148, 624-627, 651-652).

The same considerations which are referred to in relation to imputation 12(e) apply to 12(f). The plaintiff is seeking to “scoop up” one passing reference to “deceptive practices” in a way that in my view is unreasonable as applied to the first plaintiff.


93 Accordingly, I hold that the second matter complained of is incapable of carrying imputation 12(f) and I enter a verdict for the third defendant against the first plaintiff in respect of this cause of action.

94 Imputation 12(g): “ Jeremy Griffith is a dangerous lunatic” (The whole of the matter complained of, in particular lines 11-12, 45, 55-57, 61-62, 92-93, 109-111, 132-155, 144-148, 219-221, 443, 448-449, 458-459, 487-488, 516, 601-659).

95 For the reasons given in relation to the same imputation said to arise from the first matter complained of I am of the view that it is incapable of being carried by the second matter complained of, even taking into account the abundance of references to parts of it other than the extract from the SMH.

96 Accordingly, I hold that imputation 12(g) is incapable of being carried by the second matter complained of and I enter a verdict in favour of all defendants against the first plaintiff in respect of that cause of action.


Second matter complained of ( CultAware )

Second plaintiff (FHA)

97 Imputation 13(a): “The FHA places unreasonable demands on its members such that their families are torn apart” (the whole of the matter complained of).

For reasons already stated in relation to imputation 12(c) I am prepared to hold that this matter complained of is capable of carrying this imputation and that the imputation is capable of being defamatory.

98 Imputation 13(b): “The FHA is a destructive cult which poses a threat to the community” (the whole of the matter complained of).

For the reasons stated above I am of the view that CultAware is incapable of carrying this imputation and accordingly there will be a verdict in favour of all defendants against the second plaintiff in respect of this cause of action.

99 Imputation 13(c): “The FHA uses mind control techniques on unwitting victims” (the whole of the matter complained of).

For the reasons stated in relation to imputation 12(e) I hold that the second matter complained of is incapable of carrying this imputation and I enter a verdict in favour of the third defendant against the second plaintiff in respect of this cause of action.

100 Imputation 13(d): “The FHA engages in deceptive practices to recruit followers” (the whole of the matter complained of).


For the reasons stated in relation to imputation 12(f) I am of the view that the second matter complained of is incapable of carrying this imputation and accordingly I enter a verdict in favour of the third defendant against the second plaintiff in respect of this cause of action.

Second matter complained of ( CultAware )

Third plaintiff (Macartney-Snape)

101 Imputation 14(a): “ Tim Macartney-Snape is a member of an organisation which is responsible for tearing families apart” (the whole of the matter complained of).

An objection is taken as to form based upon observations of Hunt J in McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 at 492 concerning the use of such phrases as “associated with” and “involved in” as being hopelessly imprecise – in that case in terms of perverting the course of justice.


102 As to being a “member” : context is available, in my mind, for consideration: Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165. The form of objection is without merit. In any event, I do not see any ambiguity or imprecision in the formulation of the imputation. On this occasion I will deal with another objection as to form which the third defendant has from time to time taken, namely, that it is improper or insufficient as a matter of form merely to particularise that the whole of the matter complained of is relied upon. That really does not quite make sense. If the plaintiff pleads an imputation proper in form and can only rely upon the whole of the matter complained of in support of it, the plaintiff is entitled to do so. The plaintiff is required further to particularise matters, if that plaintiff can, specifically contained in the matter complained of if the plaintiff relies upon such further specified components. Relying on the “whole” is not a defect in form; it may affect capacity; if it does not, it may or may not affect the merit of the case that goes to the jury.

103 In relation to this imputation for the reasons stated with respect to imputation 12(c) I hold that the matter complained of is capable of carrying this imputation and that it is capable of being defamatory.

104 Imputation 14(b): “Tim Macartney-Snape is a member of a destructive cult which poses a threat to the community” (the whole of the matter complained of).

For the reasons set out in relation to imputation 12(d), above, I hold that CultAware is incapable of carrying this imputation of the third plaintiff and I enter a verdict in favour of all defendants against the third plaintiff in respect of this cause of action.


105 Imputation 14(c): “Tim Macartney-Snape is a brainwashed follower of Jeremy Griffith” (lines 11, 55-57, 97-98, 139, 143-151, 610-616, 644).

106 I am at a loss to find reasonable basis for concluding that the ordinary reasonable reader could understand the whole of CultAware as carrying, of the third plaintiff, an imputation in those terms. There is no suggestion in the matter that this third plaintiff followed Mr Griffith as a result of some process of systematic indoctrination against his will. A person who has “thrown in his lot with” a person in respect of whom the ordinary reasonable reader could consider to be highly unlikely to have been “brainwashed” . His “throwing in his lot with” the first plaintiff could be understood only as voluntary. I hold that the imputation is incapable of being carried by the second matter complained of and capable of being defamatory and I enter a verdict in favour of all defendants against the third plaintiff in respect of this cause of action.

107 Imputation 14(d): “Tim Macartney-Snape is so foolish that he believes the ludicrous ideas of Jeremy Griffith” lines 610-622, 633-636).

For reasons given in relation to cognate imputations I am of the view that CultAware is capable of carrying this imputation of the third plaintiff.


108 Accordingly, I hold that the second matter complained of is capable of carrying imputation 14(d) and that that imputation is capable of being defamatory.

109 As mentioned above, there is no claim made against the third defendant by the fourth plaintiffs.

110 I do not grant automatic leave to amend consequent upon my ruling. The plaintiffs will formally have to move the Court. The defendants have been predominantly successful.

111 Accordingly, the formal orders are:


1. The following imputations shall go to the jury in accordance with my reasons: 6(a), 6(c), 6(d), 6(e), 6(h), 7(b), 8(e), 12(a), 12(c), 13(a), 14(a), 14(d).

2. In relation to the following imputations verdicts will be entered for the first and second defendants in accordance with my reasons: 6(b), 6(f), 6(g), 6(i), 7(a), 8(a), 8(b), 8(c), 8(d), 9(a), 9(b), 9(c), 10(a), 10(b), 10(c), 10(d).

3. In relation to the following imputations verdicts will be entered for the first second and third defendants in accordance with my reasons: 12(b), 12(d), 12(e), 12(f), 12(g), 13(b), 13(c), 13(d), 14(b), 14(c).

4. Paragraph 16 of ASC is struck out.

5. The plaintiffs are to pay the defendants’ costs.

6. I place the matter in the Registrar’s list at 9.00am on Friday 27 February 2004.
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Last Modified: 02/24/2004