Griffith & Ors v ABC & Anor

PLAINTIFFS SOLICITORS : Schweizer Kobras DEFENDANTS Baker & McKenzie

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

CL 20300/01 JEREMY NORMAN GRIFFITH & ORS v AUSTRALIAN BROADCASTING CORPORATION & ANOR

JUDGMENT 1 HIS HONOUR: On 24 April 1995 and again on 2 May 1995 the Australian Broadcasting Corporation (ABC) and its presenter David Millikan (the first and second named defendants) published a Four Corners programme entitled "The Prophet of Oz". The programme was directed to the activities of an organisation "Foundation for Humanity's Adulthood" (FHA) (the second named plaintiff) and nine people associated with it. Subsequently FHA and nine people, including Jeremy Griffith (the first named plaintiff) and Timothy Macartney-Snape (the third named plaintiff) commenced defamation proceedings in the Supreme Court. 2 Mr Griffith, FHA and Mr Macartney-Snape have claimed in deceit and Mr Griffith has claimed in injurious falsehood. 3 The defendants have moved the Court for orders striking out the claims in deceit and injurious falsehood. 4 At the trial the jury found one nominated imputation of and concerning Jeremy Griffith and that it was defamatory - viz "Jeremy Griffith who holds himself out as a scientist publishes works of such poor standard that it has no support at all from the scientific community". All other nominated imputations were found either not to have been conveyed, or if they were, not to have been defamatory. It rejected the nominated imputation that FHA was a harmful cult posing a threat to young people. It found two imputations concerning Timothy Macartney-Snape that were defamatory. They were that Timothy Macartney-Snape deceived schools inviting him to talk to students about climbing Mount Everest by exploiting the occasion to promote Jeremy Griffith and his teaching and that Timothy Macartney-Snape abused his position of influence derived from his reputation as a mountaineer to recruit students at schools for Jeremy Griffith. Other nominated imputations were found not to be conveyed. The jury also found that the nominated imputations of and concerning the remaining six plaintiffs were not conveyed by the broadcasts. 5 The defendants have pleaded justification, qualified privilege at common law pursuant to s 22 of the Defamation Act 1974 and comment. The first and third named plaintiffs have alleged, or will allege, malice.

6 In their Fourth Further Amended Statement of Claim (FFASC) the first and third named plaintiffs (Mr Griffith and Mr Macartney-Snape) have alleged that by reason of the publication of the matter complained of (and the imputations found to be defamatory by the jury) each was brought into "public scandal, odium and contempt and has suffered and will continue to suffer loss and damage" (par 10 FFASC).

The particulars of special damage claimed by Jeremy Griffith in the FFASC are:

(i) Payment for consultancy in relation to the ABC publications;

(ii) Full particulars will be supplied in due course.

The particulars of special damage claimed by Mr Macartney-Snape are:

(iii) Tim Macartney-Snape maintains a claim for general damages based on Andrews, and a claim for special damage.

(iv) Full particulars of Tim Macartney-Snape's claim will be supplied in due course. However at this stage the claim is particularised as follows: a. loss of particular speaking engagements, which were booked prior to the matters complained of being broadcast; b. Loss of expected revenue from corporate talks; c. Loss of expected revenue from school talks; d. Loss of prospective endorsements.

7 Both plaintiffs claim aggravated damages the particulars of which were:

(v) failure of the ABC and David Millikan to apologise; (vi) failure of the ABC and David Millikan to apologise, despite recommendation by the Australian Broadcasting Authority that they do so; (vii) the plaintiff's knowledge of the deceit of the ABC and David Millikan ( as pleaded hereafter); and (viii) failure of the ABC to allow the plaintiffs a right of reply to the matter complained of.

Mr Griffith and Mr Macartney-Snape are also claiming exemplary damages the particulars of which are:

(ix) failure of the ABC and David Millikan to apologise, despite recommendation of the Australian Broadcasting Association that they do so;

(x) plaintiffs' knowledge of the deceit of the ABC and David Millikan (as pleaded hereafter). 8 The claims in deceit by all plaintiffs are set out in paragraphs 11 to 43 of the FFASC. In short it is alleged that the ABC and its presenter David Millikan misrepresented to the plaintiffs that the ABC had been approached by a filmmaker in America to participate in an international sixteen part documentary series about "seminal thinkers of the later twentieth century". The plaintiffs alleged that David Millikan misrepresented to them that, in order to be included in the United States programme, a programme had first to appear on Australian television. It is alleged that David Millikan said that although he had been previously dismissive of the views of the plaintiffs he had come to regard himself as mistaken. The plaintiffs' case is that these representations were untrue and known to be so and made in order to induce the plaintiffs to participate in the making of the Four Corners programme. It is alleged that David Millikan had not been approached by any person as he claimed and that he did not regard Jeremy Griffith as one of the world's seminal thinkers and, moreover, he had not changed a view previously held by him adverse to the plaintiffs. The plaintiffs claim that in reliance on and induced by the fraudulent representations made they cooperated in the making of the Four Corners programme and as a consequence suffered loss. 9 The plaintiffs' particulars of their loss and damage were as follows:

"(i) As a result of the conduct referred to in each of pars 39 to 40 ( a summary of which is included above) the publication of the matter complained of took place.

(ii) In consequence of the publication of the matter complained of the plaintiffs suffered loss and damage.

(iii) The plaintiffs repeat the particulars of damage previously set out in their defamation claims". 10 It is to be noted that the claim for damages in defamation included aggravated and exemplary damages consequent upon the deceit of the ABC and Mr Millikan. 11 The first plaintiff Mr Griffith has claimed that the matters published by the ABC and David Millikan were published falsely and maliciously. The allegations included, it was alleged, that Jeremy Griffith believed he was a greater figure than Christ, that he believes he is the third person of the Trinity, the Holy Spirit as referred to by Christ and that he attempted to indoctrinate young people by instructing them in a manner to manipulate and control their minds. Mr Griffith claims that he has never believed a spiritual status greater than Christ or that he is the third person of the Trinity and he has not attempted to indoctrinate young people as alleged. 12 The particulars of malice against the ABC and David Millikan are those set out in pars 11 to 42 of the FFASC. The particulars of loss or damage claimed by Mr Griffith are "the plaintiffs ( now only Mr Griffith) repeat the particulars of damage previously set out in relation to their defamation claims." 13 By letter dated 27 October 2003 the solicitor for the plaintiffs wrote to the lawyers for the defendants headed "Consolidated Particulars of Damage" as follows: 1. Particulars of special damage in respect of all causes of action are set out in the fourth amended statement of claim together with the following particulars (a) Mr Griffith paid $18,238.50 on 28 April 1995 to Jackson Wells Communications Pty Ltd and he paid a further $3,667.13 on 28 May 1995 to the same consultants. The nature of the consultancy was to advise in relation to action to be taken in respect of the impending broadcast of the "Four Corners programme". (b) On 28 May 1995 the FHA (the second plaintiff) paid $10,782.72 to Jackson Wells Communications Pty Ltd in respect of two advertisements being one of the 19 April 1995 in "The Australian" newspaper and one of 25 April 1995 also in "The Australian" newspaper (copies enclosed as requested). (c) Speaking engagements for which Mr Macartney-Snape was booked prior to the 4C Broadcast that were subsequently cancelled, together with amounts he was to receive: 5/12/1995 Canberra Grammar School Monaro Crescent Redhill ACT 2603 (no payment) 8/5/1995 Samuel Gilbert Public School Ridgecrop Drive Castle Hill NSW 2154 ($360)

9/5/1995 Margaret Throsby ABC Radio (no payment)

6/6/1995 Applause Lunch Speakers Network Level 3 339 Military Road Cremorne NSW 2090 (no payment) 16/5/1995 Speakers Network Level 3 339 Military Road Cremorne NSW 2090 ($2,450) 2 to 4/9/1995 Speakers Network Level 3 339 Military Road Cremorne NSW 2090 ($2,450) 2. Mr Macartney-Snape also seeks general damages in the basis outlined in Andrews v John Fairfax (1980) 2 NSWLR 225. 3. In relation to the claim for deceit Mr Griffith and Mr Macartney-Snape rely, in addition to special damages claimed above to anxiety, distress and upset caused thereby and for each of the remaining plaintiffs' claim aggravated and exemplary damages as set out in the fourth amended statement of claim. 14 Later the plaintiffs sought to supplement the existing particulars as follows: "The plaintiffs now seek to supplement the existing particulars subjoined to par 43 in the present pleadings as follows: iv The FHA incurred significant telephone charges induced by the making of the representations pleaded in pars 39 to 40 above full particulars of which will be shortly provided".

15 On behalf of the defendants Mr Smark has reminded me that the jurisdiction to terminate an action summarily is to be sparingly employed. He has referred to General Steel Inc v Commissioner for Railways (1964) 112 CLR 125 at 129 where the Chief Justice referred to the power that was "not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion." That is to say the action should not be struck out unless it is "so obviously untenable that it cannot possibly succeed" or "manifestly groundless" or "so manifestly faulty it does not admit an argument" etc. However the Chief Justice also said: ".…I do not think the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 16 The essence of the defendants' submission is that the three plaintiffs are claiming (or in the case of the second plaintiff had claimed) damages for injury to reputation by reason of the publication of the defamatory matter and (in the case of the first and third plaintiffs) for hurt feelings and that such claims are properly and exclusively in the domain of defamation law. 17 In Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 Levine J struck out a claim in negligence where the damage alleged was for injury to reputation consequent on publication of defamatory matter. In arriving at his conclusion Levine J was influenced by the observation Cook P in Bell-Booth Group v Attorney-General [1989] 3 NZLR 148. In Bell-Booth the plaintiff had sued in defamation and in negligence. It failed in defamation because the defendant established truth but it was awarded damages in negligence because of loss of sales and the like. Effectively it was awarded damages for loss of reputation. 18 In the Court of Appeal Cook P reviewed the authorities. He said: "It was argued for the appellant, inter alia, that neither defamation nor slander of goods requires a background duty of breach; and if injury does or may involve those separate elements, there is no ground for depriving the plaintiff of a separate cause of action. That is really no more than a semantic point. The duty and defamation may be described as a duty not to defame without justification or privilege or otherwise than by way of fair comment. The duty in injurious falsehood may be defined as a duty not to disparage goods untruthfully and maliciously. In substance the appellant would add to these duties a duty in such a case as this to take care not to injure the plaintiff's reputation by untrue statements. All the arguments for the appellant, though put skilfully in various ways by counsel, reduce to that proposition. In our opinion, to accept it would be to introduce negligence law into a field for which it was not designed and is not appropriate". 19 In reaching his decision Levine J declined to follow the majority in Spring v Guardian Assurance plc [1995] 2AC 296 in which a plaintiff succeeded in negligence in a claim for negligent misstatement when the negligence resulted in reputational damage. 20 The plaintiffs refer to the circumstance that there has been no case in which it has been determined that a claim cannot be brought in deceit if the essence of the claim for damages is the publication of material injuring reputation and causing distress. Moreover they submit that statements in the High Court concerning the need to preserve the coherence of legal principles are obiter and not binding - at least in their application to concurrent claims in deceit and defamation for reputational harm. 21 In Sullivan v Moody (2001) 207 CLR 562 the Court was concerned with claims in negligence by fathers of children brought against the Department of Community Welfare claiming that the investigation into allegations of sexual abuse had been negligently conducted causing them shock, distress and psychiatric injury. In each case the actions were struck out as not disclosing a cause of action and that finding was upheld in the High Court. 22 In the course of its reasons the Court made the following observations (page 580): "Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is "fair" or "unfair". There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted. The present cases can be seen as focusing as much on the communication of information by the respondents to the appellants and to third parties as upon the competence with which the examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well developed principles about privilege and the like. To apply the law of negligence in the present case would be to resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not." 23 In Tame v The State of New South Wales (2002) 211 CLR 317 the nominal defendant was sued on account of the claimed negligence of a police officer incorrectly recording that the plaintiff had a blood alcohol level of 0.14. Before correction the uncorrected report had been provided to others including the insurance company handling the driver's claim against the nominal defendant. The plaintiff alleged negligence and claimed to have suffered psychiatric injury as a consequence. The High Court held the police officer did not owe a duty to take reasonable care to avoid psychiatric injury to the driver. 24 In the course of reasons Gleeson CJ at 335 made the following observation: "Furthermore, as in Sullivan v Moody , this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation and the same need to preserve legal coherence. In the events that occurred Mrs Tame's reputation was not harmed. But supposing it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence." 25 Although, in the present case, an attempt was made to claim damages in deceit that could not be claimed in defamation the FFASC, in terms, claims the same damage, viz harm to reputation and hurt feelings. Moreover I think the somewhat belated claim for the cost of telephone calls by FHA would have been recoverable by FHA had it successfully maintained its claim in defamation. 26 On behalf of the plaintiffs it was submitted that the plaintiffs have not, in fact, sought to maintain a claim which would expose the defendants to liability for general damages flowing from harm to reputation. However as I have said it would seem to me that the damages that are claimed in deceit are the damages that are claimed (or would have been claimed) in defamation. 27 The plaintiffs also submit that there is no conflict between the application of the law of defamation and the law of deceit in the present case because if it turns out that the defendants succeed in their claim of justification, privilege or comment then that would be regarded by the law as the effective cause of the plaintiffs' damage and hence damages would not be recoverable in the action in deceit. However, this, as it seems to me, is merely another way of saying why it is that, in the present case, the claim in deceit should be struck out. The case FHA brought against the defendants in defamation was unsuccessful. If FHA is allowed to proceed in deceit it will, on the argument advanced by the plaintiffs, be entitled to damages because there will have been no defence of justification, privilege or comment found in favour of the defendants. In my opinion if the damages claimed are for reputational harm and distress consequent upon publication of defamatory material a claim in deceit is foreclosed whether or not there is a concurrent claim in defamation. 28 The plaintiffs have also submitted that the claim for deceit ought not be struck out because the claim in defamation precludes the awarding of exemplary damages but a claim in deceit does not. However that submission tells against allowing the plaintiffs to recover exemplary damages in deceit for injury to reputation and distress. The law of defamation resolves the competing interests of parties and derives from the common law and the Parliament. The Parliament has enacted that exemplary damages may not be awarded in defamation proceedings. 29 It is true as the plaintiffs have said that there is no concluded authority in favour of or against the defendants' primary contention that damages in deceit are available for harm to reputation. Moreover the plaintiffs have referred to a decision of Simpson J in Warren v Tweed Shire Council [2002] NSWSC 1105 in which her Honour declined to strike out a claim in deceit. Her Honour was referred to the decision of Levine J in Sattin as authority for the proposition that because the plaintiff's claim in deceit was, when properly analysed, a claim for damage to reputation it should be struck out. Her Honour referred to Levine J's reasoning and said: "However it also appears to have been material to his decision that the publication, in that case, was undoubtedly untrue and that there was no prospect of a successful defence of privilege, comment or justification." 30 Her Honour also referred to the fact that on the pleadings the claim was not one for reputational damage which would, in any event, have distinguished it from Sattin. However, in my respectful opinion the ratio of Sattin was not confined to a circumstance where there is no prospect of a successful defence to a defamation case. As Levine J made clear his Honour relied on the decision of Cook P in Bell-Booth and to the observation of Cook P where it was said: "….the law as to injury to reputation and freedom of speech is a field of its own. To impose the law of negligence upon it by accepting that there may be common law duties of care not to publish the truth would be to introduce a distorting element." 31 The present case is not, of course, a case in negligence. It is a case in deceit. If the claim in deceit were allowed and made out and the plea of justification made out the plaintiffs could recover damages for harm to reputation. As has been pointed out in a number of cases the rules established by the common law and the legislature in the field of defamation represent a compromise between free speech and harm to reputation. 32 Finally I should mention that it has been submitted that claims in deceit should not be viewed in the same way as claims in negligence because claims in deceit involve reprehensible conduct whereas claims in negligence do not. However claims in negligence are concerned with morally culpable conduct and, as it would seem to me, the weight of authority is that these claims cannot run in harness with defamation claims where damage is injury to reputation and hurt feelings. In the present case that is the damage claimed and in my opinion the claims in deceit should be struck out. 33 As I have said there is one claim for injurious falsehood by Mr Griffith the first named plaintiff. In my opinion the case is not so clear. I think it is correct to say that damages claimed relate to reputation. In order to succeed in a claim for injurious falsehood it is necessary for the plaintiff to establish that the defendants maliciously published a false statement about the plaintiff, its property or business and that actual damage resulted from that publication. An issue can arise as to how far an action for injurious falsehood extends beyond a concept of business or property. This matter was referred to by Gleeson CH in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at page 393. It may be that the damage to which the first named plaintiff is entitled should it make out its claim for injurious falsehood is the same as it made out or could have made out in defamation. However, on the material before me I am not prepared to strike that claim out. 34 Accordingly the orders of the Court will be:

1. The claims of the first three plaintiffs in deceit are struck out.
2. I dismiss the application to strike out the claim of injurious falsehood raised by the first named plaintiff.
3. Costs are reserved.

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