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[2004] NSWSC 66
Supreme Court of NSW
2003-02-20
Levine J
Original judgment source is linked above.
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 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.
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:
Last Modified: 02/24/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
GRIFFITH & ORS
JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS
CITATION : GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS [2004] NSWSC 66 HEARING DATE(S) : 20 February 2003 JUDGMENT DATE : 19 February 2004
CATCHWORDS : Defamation - imputations - capacity - form Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 CASES CITED : 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 JEREMY NORMAN GRIFFITH (First Plaintiff)
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.
(1990) 21 NSWLR 135
(2001) 54 NSWLR 165
(1989) 16 NSWLR 485