Griffith v Australian Broadcasting Corporation

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST SIMPSON J 28 February 2002 20301/2001 Jeremy Norman GRIFFITH & Ors v AUSTRALIAN BROADCASTING CORPORATION & Ors.

JUDGMENT 1 SIMPSON J: By statement of claim filed on 6 April 2001 each of the ten plaintiffs claims to have been defamed by one or more of the six named defendants. Collectively they complained of no less than eighteen separate publications, although not each plaintiff sued on each publication, and not each defendant was alleged to be liable for each publication. As well as causes of action in defamation, the plaintiffs pleaded the torts of deceit and injurious falsehood. 2 An amended statement of claim was filed on 8 June 2001. The number of publications sued upon was reduced to twelve, all alleged to have been during 1995. 3 The defendants have raised various challenges to the pleading as it is contained in the amended statement of claim. The present proceeding is a separate trial, pursuant to SCR Pt 31 r 2, of those challenges. 4 In broad terms, each publication concerns the same general subject matter: that is, the conduct of the first and second plaintiffs, Jeremy Norman Griffith and the Foundation for Humanity's Adulthood (said to be a company limited by guarantee). Again in the broadest of terms, and simply to provide an appreciation of the nature of the subject matter, the publications are to the effect that Jeremy Griffith and the Foundation for Humanity's Adulthood promote a particular philosophy, which they direct predominantly to intelligent and educated young men and women; that the philosophy demands a significant degree of loyalty and commitment from its adherents; and that Jeremy Griffith is presented (by himself and others) as "a prophet". The third to eighth named plaintiffs are identified as followers of Jeremy Griffith and adherents to the Foundation for Humanity's Adulthood. It is fair to say that (in varying degrees) disapproval and criticism of individual plaintiffs and of the Foundation can be discerned in each of the publications. 5 The central publication is that described as the fourth matter complained of. That was a documentary telecast on a well known and serious television programme shown on a television channel, the property of the first defendant, the Australian Broadcasting Corporation. I am prepared to note (without specific evidence) that the programme is a current affairs one. The documentary was lengthy - more than half an hour - and detailed. It amounted to an examination of the philosophies and behaviour of Jeremy Griffith and the Foundation, and their involvement with families and young people.

the statement of claim 6 In paragraphs 2 - 8 inclusive of the statement of claim various facts are asserted about some of the parties. For example, Griffith is described as a member and director of the Foundation, a biologist and an author; Timothy John McCartney-Snape (the third plaintiff) as a noted Australian mountaineer, a recipient of the medal of the Order of Australia for his services to mountaineering, and later again for his services to mountaineering and international relations, and as a director and member of the Foundation. The Foundation is described as a company limited by guarantee entitled to sue in its own name, and as holding an authority to raise funds for charitable purposes, and a non-profit organisation dedicated to developing and promoting biological understanding of the human condition. The other individual plaintiffs are identified as members of the Foundation for Humanity's Adulthood (and by their gender). David Millikan (the second defendant) is described as a Doctor of Theology, an ordained minister of the Uniting Church of Australia and a journalist; Lewis Robins (the third defendant) as a Doctor of Theology, an ordained minister of the Presbyterian Church of Australia, and Minister of St Luke's Presbyterian Church in Roseville (in Sydney). 7 Paragraph 9 is in the following terms: "In this statement of claim, where it is alleged that a particular publication is made of and concerning the plaintiffs, that allegation is made in relation to those plaintiffs of whom it is subsequently alleged that defamatory imputations have been conveyed by the publication in question." 8 In paragraphs 10 to 75 inclusive complaints are made of the twelve different publications. Each publication is attributed to one or more of the defendants, and each is said to have defamed one or more of the plaintiffs. Imputations (numbering in all more than 100) defamatory of the various plaintiffs are said to have been conveyed. 9 In paragraph 76 it is alleged that the plaintiffs, individually, have suffered various kinds of damage as a consequence of the publications. 10 In paragraphs 77 - 109 inclusive a claim in deceit is pleaded against David Millikan and the ABC. In paragraph 110 it is alleged that the plaintiffs have suffered loss as a consequence of their reliance upon the asserted acts of deceit. In paragraphs 111 to 113 a claim of injurious falsehood is pleaded against Millikan and the ABC and in paragraph 114 the plaintiffs claim to have suffered loss and damage as a consequence of that injurious falsehood. 11 In paragraph 115 the plaintiffs claim various kinds of damages and other remedies. . . . 12 In response to this extensive and complex statement of claim the defendants have made a series of challenges. The objections are as numerous and varied as the plaintiffs' claims and the imputations they allege have been conveyed. In referring to the numerous imputations, I will adopt the numbering system of the statement of claim. At times during the hearing the first and second, and fourth to sixth defendants were referred to as "the ABC defendants", terminology that I shall adopt. The third defendant, Lewis Robins, was separately represented. 13 It will be necessary to take some time to outline the nature and content of the various publications of which complaint is made. This is best done chronologically, following the course adopted in the statement of claim. In relation to each I will then deal with the challenges to the imputations pleaded. In many cases imputations pleaded identically are said to arise from quite different publications. Where the challenge is as to the form of the imputation the same result will follow in each case. Where the challenge is as to the capacity of the matter complained of to convey imputation, individual considerations will obviously arise. For the purpose of this separate trial only, I assume in each case publication as pleaded in the statement of claim. I further assume certain other non-contentious facts as pleaded in the statement of claim, concerning, for example, the occupations or positions of the various parties. Given the number of parties, and the variety of publications, confusion will be avoided by referring to the individual parties by their surnames, and to the corporate parties (the Foundation for Humanity's Adulthood, and the Australian Broadcasting Corporation) as, respectively, "the Foundation" or "the FHA", and "the ABC". . . . 14 The first challenge to the statement of claim, made on behalf of the ABC defendants and Robins, is as to certain paragraphs which, it is contended, plead immaterial facts to which the defendants ought not be required to plead. These are the paragraphs in which facts concerning the personal circumstances and position of the various parties are asserted - for example, that McCartney-Snape was twice awarded the Order of Australia and that Millikan is an ordained Minister of the Uniting Church of Australia. 15 Counsel relied upon the decision of David Hunt J (as he then was) in Singleton v John Fairfax and Sons Ltd (unreported, 20 February 1980) as authority for the proposition that these paragraphs, asserting non-material facts, are embarrassing for the defendants to plead to. Hunt J said: "It is quite usual in a statement of claim in defamation for the plaintiff to identify the parties to the action by way of their occupations (if material) and their relationship to each other (if any, and material): … but … these preliminary averments should be as short and concise as possible, and care should be taken to avoid a long rigmarole which may not only be quite unnecessary and irrelevant but also positively embarrassing." 16 His Honour accepted an argument from the defendant that the pleading of immaterial facts placed it in a dilemma in that it was forced to choose whether to plead to immaterial facts, thereby possibly raising immaterial issues, or alternatively taking the risk that, by its silence, it was taken to have admitted facts later held to be relevant. 17 On behalf of the plaintiff in the present case it was conceded that: "none of the matters alleged would, by reason of the pleading, come before the jury ultimately empanelled …"

but it was further contended that these matters were appropriately pleaded with a potential defence in mind, or in relation to damages. 18 It is, in my view, inappropriate to plead in a statement of claim matters that do no more than anticipate a possible defence, or that are, properly characterised, no more than particularisation of a damages claim. The plaintiffs have not sought to differentiate between these paragraphs: that is, they have not sought individually to defend any of these paragraphs or to treat any as different from others. They have, it seems, accepted that the same principles govern the challenge in each case, and that the challenge will succeed in each case or fail in each case. 19 I accept the defendants' arguments. Paragraphs 2, 3(b) and (c), 4, 5 and 7 will be struck out. 20 Paragraph 9, which has been set out above, is however, in a different category. The explanation for this paragraph is to be found in the subsequent pleadings. When the statement of claim alleges publication of the various items complained of, it is typically in terms such as: "on or about [date] [named defendants] published of and concerning the plaintiffs , the matter set out in schedule [ - ] hereto." (emphasis added) 21 As mentioned, not every publication is said to be of and concerning every plaintiff. The paragraphs introducing the publications do not identify which plaintiffs claim to have been defamed by each publication although they do identify the defendants alleged to be liable for the publications. In subsequent paragraphs imputations said to be defamatory of individual plaintiffs are pleaded. Paragraph 9 of the statement of claim merely clarifies that the reference to "the plaintiffs" in the introduction to the paragraph in each case, is not intended as an assertion that every plaintiff was defamed by the publication mentioned. It is designed to relieve the pleader of the burden of naming each plaintiff who sues on the individual publication, to make the statement of claim less cumbersome for both pleader and reader, and to abbreviate, as far as possible, an already lengthy document. I can see no possible detriment to the defendants in this manner of pleading. I decline to strike out paragraph 9.

the first matter complained of 22 The first matter complained of was a broadcast on ABC regional radio on 13 April 1995. Griffith and the Foundation have sued the ABC and Millikan on this publication. A journalist, Jackie Bowmer, interviewed Millikan. Ms Bowmer introduced the general subject matter by mentioning Griffith and the Foundation and also McCartney-Snape. To the audience she introduced Millikan as a former head of ABC Religious Affairs, a "reverend doctor", a Uniting Church minister, and an expert on new religion, religious movements, cults and sects. She asked Millikan to tell the audience something about the Foundation, saying that a similar request to Griffith had not been very productive. 23 Millikan said that the Foundation was an organisation set up about four to five years previously, having among its directors Griffith and McCartney-Snape. He described Griffith as "the leading light" behind the Foundation, which was set up "as a vehicle to propagate his understandings and his philosophies to the world". He said Griffith considered himself to be "a prophet" and so described himself; that Griffith believed that he had "actually solved the riddle of life itself" and had "addressed the human condition in a way that philosophies and religions have been unable to through the ages". Ms Bowmer remarked that Griffith was beginning to sound like a cult leader, to which Millikan replied: "Well look he's a fellow who is absolutely convinced that what he is saying is true. And one of the things, he says himself that, for example, he considers himself to be a greater figure than Jesus Christ and even on one occasion when I was talking to him, he said to me you know Jesus Christ said that there was going to be one who would come after him who would speak the truth plainly and he believes that's him. I mean Christians believe that's the Holy Spirit so in a way what he's saying is that he is, he performs the role of the Holy Spirit in contemporary society. So it's a fairly, it's hubris on a large scale if I might say." 24 Asked by Ms Bowmer if he thought Griffith might be "dangerous", Millikan answered: "Well I can't say that because it, I think it or he is making claims that should give us reason to pause." 25 Millikan said that Griffith was: "surrounded by parents and families who are really quite distressed",

and that Griffith was interested in bright, intelligent young people between the ages of eighteen and twenty-five, and that he had been successful in recruiting young people from the "really elite private schools of Australia". 26 Millikan outlined a philosophy that he attributed to Griffith as follows: "Well let me tell you, let me tell you what he is actually saying. He believes that he has, he has this, his system is a sort of semi biology theology sort of new age sort of system. He reckons that he, that two million years ago, when people became intellectually self-aware, that they ceased being animals, that a conflict developed within human beings and he has an understanding that of that which no one else has you see and he asks people to join him and to, and this is where the problem lies. If in fact what he was doing was simply putting information out there and saying look here it is well I'll, I've come to this sort of understanding and believe it or not, but he has a peculiar interest in drawing people close to himself, and he sees it as essential that people develop an extraordinary loyalty to him and quite often feel, people feel themselves torn between what he calls the old world and the new world, and a sort of a, people feel that they are pitted against their families and in some of the recent newsletters that Jeremy Griffith has put out he's beginning to sort of he's beginning to demonise the parents a bit and say look don't allow any of your tapes and newsletters to be lying around, your parents are not going to understand any of this sort of material, and that's the that's the sort of thing that he's been saying." 27 Millikan referred to a television documentary he had made, which was scheduled shortly after the interview to be telecast on the ABC television programme "Four Corners" (the fourth matter complained of). He said again that some parents were very upset, feeling that Griffith had been responsible for tearing their families apart. He cautioned that young people considering participating in any introductory or preliminary events conducted by the Foundation should consider very carefully what they were getting into, because the pressure that developed could be enormous, they could become swept along and become caught up in something they might later regret.

the imputations pleaded in paragraph 11 28 By paragraphs 11 and 12 of the statement of claim respectively Griffith and the Foundation claim to have been defamed by both the ABC and Millikan during the course of this broadcast. Griffith asserts that the publication conveyed the following imputations defamatory of him: 11(a) Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ; 11(b) Jeremy Griffith is so deluded that he claims to perform the role of the Holy Spirit; 11(c) Jeremy Griffith unreasonably demands of his followers such a high level of loyalty to him that he causes their families to be seriously damaged; 11(d) Jeremy Griffith is the founder and leader of a dangerous cult which poses a threat to the community. 29 The Foundation asserts that the broadcast conveyed the following imputations defamatory of it: 12(a) the FHA is an organisation which exerts a harmful and destructive influence on young people; 12(b) the FHA is a dangerous cult which poses a threat to the community.

imputations 11(a) and 11(b) 30 The first challenges concern the imputations numbered 11(a) and (b). There were a number of such challenges.

The first criticism may readily be disposed of. It was that each imputation is ambiguous and should therefore be struck out as embarrassing. Authority was cited for the proposition that ambiguous imputations should be so treated ( Singleton v Ffrench (1986) 5 NSWLR 425; Amalgamated Television Services v Marsden (1998) 43 NSWLR 158). 31 I accept that, if it is correct that either imputation is ambiguous, it should be struck out. I do not, however, accept, in this case, that either imputation is ambiguous. The argument advanced was that the phrase "so deluded" is capable of suggesting either that Griffith is deluded because he claims to be greater than Jesus Christ (in imputation 11(a)) or to perform the role of the Holy Spirit (imputation 11(b)); or, alternatively, that he is deluded for some other reason and coincidentally makes the relevant claim. 32 In my opinion the meaning of each imputation is quite clear. Each contains within it the clear suggestion of a causal connection between the claim Griffith allegedly makes and the delusional state attributed to him. He is said to be "so deluded" that he makes a claim that, by implication, demonstrates the delusional state. I will not strike out either imputation for this reason. 33 That, however, does not dispose of these imputations. A further argument was that each imputation contained within it an un-stated premise which is false; and that, as a consequence, the meaning of the imputation itself is unclear, making it impossible for a jury to determine whether it was or was not conveyed by the matter complained of. In the case of imputation 11(a), the asserted unstated premise is that there is, objectively speaking, no greater figure than Jesus Christ, and that this is a truth so universally acknowledged as to make its contrary untenable and ludicrous. Accordingly, unless this premise is demonstrably correct, the imputation is logically flawed. The final part of the argument is that the premise is not, and cannot be shown to be, factually correct. After much deliberation, I have concluded that this argument should not be accepted. Its fallacy is to treat the reference to a figure greater than Jesus Christ too literally. The drafting of imputations is a difficult and sometimes complex matter, and it is not always easy to capture in words the message that a complained of publication conveys. A draftsperson may, on occasions, achieve that by the use of colloquial language. I appreciate that considerable care needs to be taken with the use of colloquial language in the drafting of imputations, but I do not consider that it is entirely forbidden. That is, in effect, what I think has been done here. I do not think the draftsperson intended that it should be assumed that to every ordinary reasonable reader it is axiomatic and factually incontrovertible that there is no greater figure than Jesus Christ (this in itself presupposes the existence of "Jesus Christ": a belief which is fundamental to many individuals, anathema to others, and immaterial to yet others;) in fact what the draftsperson has done is to use a figure of speech which is so well known as to have its own clear meaning. A claim to be greater than Jesus Christ might be made in a variety of ways: it might be made earnestly; it might be made flamboyantly; it might be made ironically. To say of a person that he or she claims to be "greater than Jesus Christ" is to say of that person that he or she is of overweening ego; to say that such a person genuinely believes that he or she "is greater than Jesus Christ" is tantamount to saying that that person is deluded. That is not because of an acceptance of the existence, or the greatness, of "Jesus Christ", but because the figure of speech is so well known that the meaning is clear even without literal acceptance of the underlying propositions of fact. 34 During the course of argument I put some of this to Mr Walker SC, who advanced the argument. Initially, I found his response persuasive. The response was, as I understood it, to draw a distinction between using the phrase "greater than Jesus Christ" as a figure of speech, comparable with "the best thing since sliced bead"; and using the phrase literally. Here, he contended, the phrase was not used in a way analogous with a phrase extolling the virtues of sliced bread, but one which was intended to be taken seriously and literally. In that sense, the imputation fails to make clear what it claims was conveyed by the publication. 35 On reflection, however, I do not think the distinction drawn by Mr Walker achieves what he seeks. It is to be remembered that all that is presently in issue is whether the imputation is sufficiently clear so that, if it goes to the jury, the jury will understand its meaning - its only meaning - in such a way as to avoid confusion. I am satisfied that the language is quite plain to an ordinary reasonable reader and to a jury. I will therefore not strike out imputation 11(a) on this ground. 36 The position is different, however, in relation to imputation 11(b). I do not think "the role of the Holy Spirit" commands the same public recognition as the phrase "greater than Jesus Christ". Indeed, if resort is had to what is contained in the various publications of which complaint is made, an explanation is forthcoming. Millikan explained that Christians believe that Jesus Christ forecast the coming of another who would, in plain words, speak the truth, and that this being would be "the Holy Spirit". It was from these premises that Millikan deduced that Griffith promoted himself as performing the role of the Holy Spirit. However, at this point of the argument the concern is not with how Millikan arrived at the conclusion that Griffith made such a claim; it is whether the expressions used in the imputation are clear enough to convey the meaning sought to be attributed to them. For this purpose the imputations must be examined in isolation from the matter complained of or any other material or explanation. In my opinion the meaning of imputation 11(b) is obscure and liable to cause confusion. For this reason if for no other, I propose to strike out this imputation. 37 The next argument advanced in relation to these two imputations is that they are not reasonably capable of arising from the first matter complained of. Of course, for the purpose of considering this argument, it is necessary to focus only upon that publication, and exclude reference to any of the other eleven publications the subject of the statement of claim. 38 There are two parts to each of these imputations. One is that Griffith makes the relevant claim - either (i) to be greater than Jesus Christ, or (ii) to perform the role of the Holy Spirit. Each of these is plainly capable of emerging from the matter complained of. Millikan is recorded as saying: "And one of the things, he says himself, that, for example, he considers himself to be a greater figure than Jesus Christ. And even on one occasion when I was talking to him, he said to me you know Jesus Christ said that there was going to be one who would come after him who would speak the truth plainly and he believes that's him. … so in a way what he's saying is that he is, he performs the role of the Holy Spirit in contemporary society."

This is quite sufficient to convey that part of each imputation which attributes a relevant claim to Griffith. 39 The other part of each imputation is that the claim arises from delusion, and what must then be asked is whether the matter complained of is capable also of conveying that. 40 This takes me back to something I said earlier: that a claim to be "greater than Jesus Christ" might be made flamboyantly, or ironically. But that is not this case. What is attributed to Griffith is a serious, literal claim of greatness of the relevant kind. In my view those passages are capable of conveying to the ordinary reasonable reader the imputation that the claim was made as a result of a delusional state. That is because to say that a person seriously and literally makes a claim to being greater than Jesus Christ is (almost axiomatically) to attribute a delusional state to that person. 41 I will not strike out either imputation on the basis that the publication lacks the capacity to convey it. 42 Finally, it was argued that neither imputation is reasonably capable of being considered defamatory. I reject this also. The mere assertion (if it is found in fact to have been conveyed) that Griffith is "deluded", whatever follows, is sufficient to have the capacity to be defamatory. Whether it is or is not defamatory is, of course, a matter for determination by a jury in due course. It is unnecessary to consider whether, absent the assertion of delusion, attribution of a claim to be "greater than Jesus Christ" or "performing the role of the Holy Spirit" is capable of being defamatory, although I incline to the view that each is so capable. 43 Imputation 11(a) will be allowed to go to the jury. Imputation 11(b), will for the sole reason I have given, be struck out.

imputation 11(c) 44 Two complaints are made about imputation 11 (c). By the first it is contended that the imputation is "imprecise and ambiguous". Argument focussed on the use of the word "causes". The argument was drawn from the decision of the Court of Appeal in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158. There, two imputations with common elements were under consideration. The effect of the imputations was that, by reason of conduct in which he had engaged in the past, the plaintiff had caused lasting damage to two individuals, each of whom later committed murder; and that, by reason of that earlier conduct, the plaintiff had caused the subsequent murders. Hunt CJ at CL, with whom Mason P and Handley JA agreed, analysed the sense in which the word "caused" was used in those two imputations. (Subsequently, the imputations were amended by substituting the words "bore a responsibility for" for the word "caused".) Hunt CJ at CL considered that the word "caused" was ambiguous, as potentially meaning the immediate cause, or the last link in the chain of causation (the "causa causans"), or alternatively some preceding but necessary link in the chain of causation (the "causa sine qua non"). 45 It is not, in my opinion, in every case that the use of the words "caused" or "causes" will be susceptible of the same ambiguity. It is to be remembered that what is now being interpreted is the imputation itself - not the imputation in the context of the matter complained of. The two imputations as originally pleaded in Marsden plainly depended upon the assertion of long term and indirect consequences of past behaviour. The ambiguity arose from an examination of the word in its context. That made it plain that one available interpretation of the matter complained of was that the accusation was that the plaintiffs had indirectly been the cause of the murders. As re-drafted, the imputations in Marsden made plain that sole responsibility was not said to have been attributed to the plaintiff although partial responsibility was. 46 It is necessary to consider, by examination of imputation 11(c), whether there is here any parallel ambiguity. 47 In my opinion the imputation as pleaded is not imprecise or ambiguous; it is clear that what is meant by it is that the demands imposed upon his followers by Griffith (unreasonably imposed) are met by those followers at the cost of family relationships - thereby causing family relationships to be damaged. I am satisfied that the imputation is quite clear. I will not strike out imputation 11 (c) as imprecise or ambiguous. 48 It was also argued that the imputation is not reasonably capable of arising from the publication. It is therefore necessary to return to the content of the broadcast, and particularly the words attributed to Millikan. These included a statement that Griffith "is surrounded by parents and families who are really quite distressed"; and a statement that Griffith focuses upon highly intelligent, well educated and highly nurtured nineteen to twenty-five year olds. However, most significantly, Millikan is recorded as saying: "… he sees it as essential that people develop an extraordinary loyalty to him and quite often feel, people feel themselves torn between what he calls the old world and the new world, and a sort of a, people feel that they are pitted against their families and in some of the recent newsletters that Jeremy Griffith has put out he's beginning to sort of he's beginning to demonise the parents a bit …" 49 Later, Millikan "absolutely" agreed with the proposition put to him by Ms Bowmer that some parents felt they had lost their children to Griffith, and then he added: "There are people who feel that he has been responsible for really tearing their families apart." 50 I am satisfied that the matter complained of is capable of conveying imputation 11(c).

imputation 11(d) 51 The only challenge to this imputation is based upon the capacity of the matter complained of to convey it. On behalf of Griffith, reliance was placed upon the whole of the broadcast, without specific reference to any particular passages. 52 There are a number of components to the imputation as pleaded. One is that the Foundation is a cult; another is that it is dangerous; another is that it poses a threat to the community; and the last is that Griffith is its founder and leader. 53 For the imputation to survive it is necessary for Griffith to establish the capacity of the matter complained of to convey each of the components, and also to convey the composite idea expressed in the imputation. 54 It is unnecessary to say very much about the last component; in the broadcast Millikan described Griffith as "the actual leading light behind the thing" (the "thing" being the Foundation); he also stated that Griffith was a director. He said that the Foundation was set up: "as a vehicle to propagate [Griffith's] understandings and his philosophies to the world." 55 This is certainly sufficient to convey the suggestion that Griffith is the leader of the organisation, and, although less clearly so, also the founder. 56 The next question is whether the matter complained of as a whole is capable of suggesting that the Foundation is a "cult". While it is usually, in my opinion, not desirable in the construction of imputations to have recourse to dictionaries - an imputation should, if properly drafted, be self-explanatory - the word "cult" is capable of bearing different connotations. I was provided with an extract from the Collins' Soft Back English Dictionary (undated) containing definitions of the word "cult". Eight such definitions are there provided, of which specific reference was made to the third, which is as follows: "a quasi religious organisation using devious psychological techniques to gain and control adherents." 57 No such definition appears in the 1985 revised edition of the Macquarie Dictionary (which may explain why, although I was given Macquarie Dictionary definitions of other terms used in the various imputations, I was not given that Dictionary's definition of the word 'cult'). There is nothing in the matter complained of capable of suggesting that the Foundation was such an entity, nor an entity within any of the other definitions provided. 58 The Macquarie Dictionary's definitions are four in number, as follows: "1. a particular system of religious worship, esp. with reference to its rites and ceremonies. 2. an instance of an almost religious veneration for a person or thing, esp. as manifested by a body of admirers: a cult of Napoleon. 3. the object of such devotion.; 4. a popular fashion; fad" 59 The word "cult" was used relevantly twice only in the matter complained of. At a fairly early stage Ms Bowmer remarked: "He's [Griffith's] beginning to sound a little bit like perhaps a cult leader",

but this did not draw any affirmatory response from Millikan. Much later, at the end of the discussion, Ms Bowmer asked why so many bright young people join cults, but added: "I am not saying that this is a cult but just for want of a better expression." 60 The notion that the Foundation is a cult within any of these definitions does not therefore emerge directly from the matter complained of. Might it, then, emerge indirectly? Millikan referred to it as "an organisation", and "a vehicle to propagate Griffith's understandings …". In a later passage Millikan referred, in the passage already quoted, to Griffith's interest in drawing people close to him and demanding "extraordinary loyalty". 61 In my view there is nothing in the matter complained of that is capable of conveying any imputation that the Foundation was "a quasi religious organisation using devious psychological techniques to gain and control adherents"; nor anything capable of conveying an imputation that the Foundation is "a particular system of religious worship"; nor the object of devotion of the kind described in the second Macquarie definition; nor a popular fashion or fad. The only possibility is the definition numbered 2 in the Macquarie Dictionary, "an instance of an almost religious veneration for a person or thing, as manifested by a body of admirers". In my opinion what is contained in the matter complained of falls well short of making these suggestions. The programme focused particularly on Griffith, and less upon the Foundation (although it was mentioned, and its existence underlay the discussion); but it was not described in terms that could bring it within any of the definitions to which I have referred. 62 Nor was the Foundation characterised as "dangerous". In one question Ms Bowmer asked Millikan if he considered Griffith to be dangerous, a question Millikan answered in a somewhat equivocal fashion. He said: "Well I can't say that because it, I think it or he is making claims that should give us reason to pause."

However while Millikan expressly cautioned young people to consider carefully their involvement with Griffith, he did not make a similar suggestion about the Foundation. Nor did he suggest that the Foundation posed a threat to the community. 63 It may be thought that the distinctions I have drawn are unduly fine; but in my opinion the imputation is clearly drafted on the basis that the matter complained of spoke of the Foundation as "a dangerous cult which poses a threat to the community"; those words were not used in the matter complained of and nor was such a suggestion remotely conveyed. 64 Having regard to the need for precision in the drafting of imputations, I am satisfied that, on proper analysis, this imputation is not capable of being conveyed by the broadcast constituting the first matter complained of. I will strike out imputation 11 (d).

imputations 12(a) and (b) 65 The first complaint is that the two imputations pleaded in paragraph 12 do not differ in substance as required by SCR Pt 67 rule 11(3). 66 There is obviously a degree of commonality between the two imputations; the question is whether that commonality is such as to render them not different in substance. On behalf of the Foundation it was submitted that imputation 12(a) is concerned with young people, and with actual harm caused; imputation 12(b) is concerned with the wider community, and with the threat of harm. Thus it was that, on behalf of the Foundation, it was argued that there were two matters of substance differentiating the two imputations. 67 However, after consideration, I reject these contentions. The differences are not of substance, but are, rather, properly characterised as insubstantial. Although, in the usual case, determining a difference in substance between two or more imputations can be done by reference only to the imputations, it is, on occasions, permissible to look to the matter complained of in order to determine what the plaintiff is really asserting. When that is done it can be seen that there is no asserted "threat to the community" other than through "a harmful and destructive influence on young people". Thus, when they are read in the proper context of the matter complained of, it can be seen that the two imputations are no more than different ways of complaining of the same message. If it were not for what appears below, it would be necessary for the Foundation to elect on which of these imputations it wishes to go to the jury. 68 Another complaint concerning imputation 12(a) is that it is ambiguous by reason of the use of the word "exerts". It was argued that the imputation as framed is capable of being read as meaning that the Foundation intentionally exerts a harmful and destructive influence, or, alternatively, that the influence it exerts is harmful and destructive although unintentionally so. A subsidiary part of this argument was that if the latter is the case, then no precise act or condition to the Foundation's discredit is attributed. I would firmly reject this latter proposition. To say of an organisation that it exerts a harmful and destructive influence is, in my opinion, clearly to say something to that organisation's discredit. That does not depend upon whether that is said to be intentional or not (although it would be more serious to assert an intentional harmful and destructive influence). In any event, the issue about intention is, in my opinion, a red herring. It would be necessary to import into the imputation an additional concept, and an additional word, to read the imputation as suggesting an intentional malign influence, something for which there is no warrant. There is no ambiguity in the imputation as framed. 69 Finally, it was argued that neither imputation is reasonably capable of being conveyed. For the reasons given in relation to imputation 11(d) I accept the argument advanced on behalf of the defendants. A proper reading of the broadcast demonstrates that it is concerned with Griffith, and says little about the Foundation. Certainly it falls far short of saying that the Foundation exerts a harmful and destructive influence on young persons or is a dangerous cult which poses a threat to the community. 70 The matter complained of is incapable of conveying these imputations. Each of them will be struck out for this reason.

the second matter complained of 71 The second publication sued upon was also broadcast on ABC radio, this time on a metropolitan station, on 20 April 1995. On this occasion the compere was Andrew Olle. Both Griffith and Millikan were, it seems, present, and a discussion ensued, the general topic again being Griffith's philosophies and his promotion of them. 72 It appears from the content of this broadcast that what precipitated the discussion was the then forthcoming Four Corners programme, and a letter written by Griffith in advance of the telecast, seeking to rebut what he expected the programme to contain. 73 Griffith claimed to have written a book "about human nature" about which, he said, some people had become enthusiastic. He referred to the Foundation as having been formed "as a focal point" for a study of the information contained in his book. Millikan asserted that Griffith claimed to be a figure "who is actually greater than Christ" and to be "a prophet, and to have identified "the nature of … the human condition". Griffith denied having claimed to be "a figure greater than Jesus Christ". It is convenient to extract a passage from the transcript attributed to Millikan: "Well let me remind you of a number of conversations we've had. I put it to you and in fact Jeremy himself has said that, that Jesus Christ said that a person was going to come after him who would speak the truth plainly. Jesus said that he spoke in parables and metaphors and that one would come who would speak the truth plainly. Now Christians believe that that referred to the Holy Spirit. Jeremy Griffith believes that refers to him, so he believes that Jesus actually prophesied his coming. So I would argue that, and Jeremy said to me himself at one stage that he said Jesus was good at describing the problems that faced humanity but he wasn't good at actually coming up with the answers, whereas Jeremy does. So I would argue that that puts Jeremy in a superior position to Jesus Christ. That's why I say that he calls himself a person greater than Jesus Christ." 74 Griffith acknowledged that he saw himself as a prophet, but said that he did not use this term in a conventional religious way, but rather to describe a person who was prepared to delve into areas and topics considered too confronting for most people. He said he did not present himself "as a religious deity at all".

the imputations pleaded in paragraph 14 75 Only Griffith has sued upon this publication. He has sued the ABC and Millikan. He claims that it conveyed the following imputations defamatory of him: 14(a) Jeremy Griffith knowingly makes false claims to be greater than Jesus Christ; 14(b) Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ; 14(c) Jeremy Griffith knowingly makes false claims to perform the role of the Holy Spirit; 14(d) Jeremy Griffith is so deluded that he claims to perform the role of the Holy Spirit.

The defendants make a number of challenges to these imputations.

imputations 14(a) and 14(b) 76 Firstly, they claim that imputations 14(a) and 14(b) are imprecise and ambiguous. There is much force in this complaint in relation to imputation 14(a). What is unclear is what is qualified by the adverb "knowingly". The imputation may be interpreted in either of two ways: (i) Jeremy Griffith makes false claims (knowing they are false) to be greater than Jesus Christ; (ii) Jeremy Griffith knowingly makes claims to be greater than Jesus Christ, such claims being in fact false. 77 Either interpretation is reasonably available, but the actual assertion made by one is materially quite different from the assertion made by the other. Apart from the difficulty of determining whether the imputation was in fact conveyed, the ambiguity could cause a difficulty in the assessment of damages, should that eventuate. The matter is therefore of some significance. Imputation 14(a) will, accordingly, be struck out as ambiguous. There being no concept of knowledge incorporated into imputation 14(b), I do not think the same ambiguity contaminates it, and I will not strike it out on that basis. 78 A second argument was that these two imputations do not differ in substance, but I reject that proposition. Far from not differing in substance, in my opinion the two imputations are, in an important respect, the converse of one another: on the one hand it is suggested that Griffith knowingly makes a false claim as to his status; on the other, that his claims result from delusion - the clear implication being that he believes the claims he is alleged to make, or the very antithesis of knowingly making a false claim. 79 The two imputations are, in fact, inherently contradictory, but this alone would not be a ground to strike out either or both, since it is (at least theoretically) possible that two contradictory imputations could be conveyed by the same matter complained of. 80 Finally, it was argued that neither imputation is reasonably capable of arising from the broadcast the subject of the claim. Given the ambiguity in imputation 14(a), it is difficult to assess this challenge in respect of that imputation. After examining the two alternative constructions of the imputation as pleaded, I am satisfied that nothing in the matter complained of is capable of conveying the imputation that Griffith makes false claims, knowing them to be false, to be greater than Jesus Christ. Indeed, the tenor of the subject matter is to the contrary - that, whatever he says, and whatever its truth, he believes it. 81 I take a contrary view in relation to the alternative formulation: in my opinion the matter complained of is capable of conveying an imputation to the effect that Griffith knowingly claims to be greater than Jesus Christ, but that these claims are, objectively, false. The word "objectively" is a little misleading in this context. In this respect I refer to what I have written in paragraphs 25 to 27 above in relation to imputation 11(a). 82 Further, a claim to be "greater" than another, when "greater" is used in the sense of moral value and not physical size, is not one which can be objectively proven or disproven. In each case it is a matter for judgment and assessment. However, adhering to the views I have earlier expressed concerning the meaning which could be taken by the ordinary reader from the phrase "greater than Jesus Christ", I am satisfied that that phrase carries with it the notion that to be "greater than Jesus Christ" is not possible, and therefore that any claim so to be is necessarily false. 83 I would therefore not strike out imputation 14(a) (if re-phrased to accommodate the observations I have made in paragraphs 76 and 77) on the ground that it is not capable of being conveyed by the matter complained of. 84 Nor will I strike out imputation 14(b) on that basis. Millikan is recorded as referring to the prophecy that the Holy Spirit would come and speak the truth plainly, and saying that Griffith believed that that referred to him. In my opinion, although the word "deluded" is not used, and nor is any other word of similar import used, the ordinary reasonable listener might well take that passage as suggesting that Griffith was in a delusional state. I am therefore satisfied that (subject to the other matters I have dealt with) imputation 14(b) should not be struck out as incapable of arising from the matter complained of. 85 A "bane and antidote" argument was also put, by reference to an answer given by Griffith denying that he had ever said that he was a figure greater than Jesus Christ. It is true that something of an antidote is contained in Griffith's denial, but it is not, in my view, sufficient to neutralise what is attributed to Millikan. Imputation 14(b) will be allowed to stand.

imputations 14(c) and 14(d) 86 Imputation 14(c) suffers from the same defect as imputation 14(a) and should be struck out for that reason as well. 87 As I have said above, I take the view that a reference to "the Holy Spirit" does not have the same degree of common understanding as a reference to "greater than Jesus Christ". Understanding of this terminology depends upon some understanding of Christian theology, in a way that understanding of the earlier phrase does not. These imputations therefore lack precision and will both be struck out. 88 It was also argued in respect of these imputations that they are incapable of being conveyed by the matter complained of. It is difficult to consider this argument in relation to imputations I have found to be imprecise and I do not propose to rule upon that aspect of the objection.

the third matter complained of 89 The third matter complained of was published in the print media, the Sydney Morning Herald, on 24 April 1995 by John Fairfax publications Pty Ltd. It appeared in the Media Guide section of that newspaper. It is a brief preview of the Four Corners programme to which reference has already been made, and which was scheduled to go to air that night. The Foundation and McCartney-Snape sue the ABC and Millikan in respect of this publication, asserting that the publication was "the natural and probable consequence of the publication by those defendants of the fourth matter complained of". 90 The preview began by asserting that there was no uncertainty in the mind of Griffith, or in the minds of his followers - Griffith is the last prophet. It went on to refer to the Foundation, describing it unequivocally as a "cult". It described the Foundation's adherents as: "from WASP backgrounds, often rural, certainly not poor to judge by the high priced private schools from which they emerged, and usually university educated". 91 The article suggested that Griffith's philosophy included "a new world" in which, inter alia: "… women return to nurturing, supportive roles to men leading the way out of ignorance."

It identified McCartney-Snape as "Griffith's first disciple", and as a: "… proselytising front man at school speech day functions, to which he is regularly invited". 92 The preview finished by posing a question: "Do the school principals, the students, or the parents know that he has little interest in talking about the triumph of Everest but a lot to say about the works of the last prophet?"

the imputations pleaded in paragraphs 16 and 17 93 In paragraph 16 of the statement of claim the Foundation claims that the publication conveyed a single imputation defamatory of it, which it pleads in the following terms: 16(a) The FHA is a dangerous cult which poses a threat to the community. 94 In paragraph 17 McCartney-Snape claims that the publication contained three imputations defamatory of him, which he pleads in the following terms: 17(a) Tim McCartney-Snape deceives schools who invite him to talk to students about climbing Mount Everest by exploiting the occasion to promote Jeremy Griffith and his teachings; 17(b) Tim McCartney-Snape has behaved disgracefully by seeking to convert school students to an organisation which he knows to be dangerous; 17(c) Tim McCartney-Snape has willingly allowed himself to be used as the public face of an organisation which he knows to be dangerous.

imputation 16(a) 95 The challenge to imputation 16(a) is that it is not reasonably capable of being conveyed by the matter complained of. Rather than point to any individual passages in the matter complained of, the Foundation claims that, taken as a whole, the publication is capable of conveying the imputation. 96 This is another imputation which has a number of component parts, each one of which must be capable of being conveyed, as well as the composite imputation, before the imputation can be said to be capable of being conveyed. 97 In the publication the Foundation was identified, in terms, as a "cult". There is, however, nothing in the publication from which it could properly be inferred that the Foundation is "dangerous" or that it "poses a threat to the community". The article reflected upon the asserted self-assurance of Griffith, the background from which the Foundation's adherents are drawn, gave a potted account of the philosophy espoused by Griffith, including a reference to the subservient role of women, and spoke of the role of McCartney-Snape. Nothing in this is in the remotest fashion capable of suggesting that the Foundation is "a dangerous cult" or that it "poses a threat to the community". This imputation will be struck out.

imputation 17(a) 98 The defendants challenge imputation 17(a) on two bases; firstly, that it is ambiguous, and secondly, that it is not reasonably capable of arising from the matter complained of. The ambiguity is said to lie in uncertainty as to whether the "deception" is alleged to have been done "innocently or deliberately with evil intent". Even if there were such uncertainty, I doubt that it would matter. The sting in the imputation lies in the asserted deception, not in its motive. Of course, as is the case in relation to imputation 12(a) (see paragraph 68 above), the damage done by the imputation might be different according to whether it is read as meaning deliberate deception or innocent deception, but, in my opinion, this is largely an artificial argument. The primary meaning of "deceives" involves an element of intent; it is only rarely that "deception" will be seen as innocent. That this is the meaning intended by the word as it is used in imputation 17(a) is emphasised by the use of the word "exploiting" which appears later in the imputation. I reject the proposition that imputation 17(a) is ambiguous. 99 A secondary argument advanced in relation to this matter was that "deception" was not qualified by reference to the purpose asserted, that is "to promote Jeremy Griffith and his teachings" because the imputation contains an un-stated assumption that Griffith and his teachings are evil or involve danger to students. This argument does not advance the position. For the reasons I have given, I am satisfied that imputation 17(a) is unambiguous. 100 The second challenge to this imputation was that it is not reasonably capable of arising from the matter complained of. This argument also must be rejected. The matter complained of contains the following two significant paragraphs: "But the crux of concern about the cult is its use of Griffith's first disciple, the Mount Everest climber Tim McCartney-Snape, as the proselytising front man at school speech day functions, to which he is regularly invited. Do the school principals, the students, or the parents know that he has little interest in talking about the triumph of Everest but a lot to say about the words of the last prophet?" 101 I am satisfied that these two paragraphs alone are capable of conveying imputation 17(a).

imputations 17(b) and (c) 102 On behalf of the defendants it was also contended that imputations 17(b) and 17(c) are ambiguous. Once again, the primary argument was founded upon the contention that the imputations lack precision as to McCartney-Snape's state of mind in behaving as he is alleged to have behaved. It was asked rhetorically: "As to the word 'disgracefully' in 17(b), was this behaviour of Mr McCartney-Snape's done with knowledge that the FHA was a dangerous cult or innocently without such knowledge?" 103 In my opinion this argument is disingenuous. There is no ambiguity about the word "disgracefully". Indeed, the imputation is framed quite clearly to state that McCartney-Snape did know the organisation to be dangerous. A parallel submission was made in relation to imputation 17(c). The submission must meet the same response. That imputation too contains a specific element that he knew the organisation to be dangerous. 104 I decline to strike out either imputation 17(b) or 17(c) on the ground of ambiguity. 105 However, the final submission is one of substance. It is that neither imputation is capable of arising from the matter complained of. This submission must be accepted. Essential to each imputation is that McCartney-Snape knows the Foundation to be a dangerous organisation. There is not the slightest hint in the matter complained of that he had such knowledge, understanding, or belief. Indeed, to the extent that any inference can be drawn about McCartney-Snape's attitude to the Foundation from the matter complained of (and that is very limited) it is to the contrary. He is said to be "Griffith's first disciple", "the proselytising front man". These would tend to suggest that (however misguidedly) McCartney-Snape believed in the philosophy espoused by Griffith, and therefore supported the Foundation. 106 Imputations 17(b) and 17(c) will be struck out.

the fourth matter complained of 107 The fourth matter complained of is the Four Corners programme to which reference has already been made. It went to air on 24 April 1995. It is a lengthy programme and cannot adequately be summarised in these reasons. It will, however, be necessary to refer to the content of the programme in some detail. 108 The programme begins by appearing to depict a camping excursion led by Griffith into a mountainous area. Other participants were a group of young people, male and female, apparently equipped for a camping expedition. At various times Griffith could be seen addressing this group, in terms which it will, in part, be necessary to recount. 109 Footage of this kind was interspersed with footage of other individuals who referred to Griffith and the Foundation and McCartney-Snape. There was footage of McCartney-Snape himself addressing a high school speech night. A narrator's voice from time to time spoke over the other participants. The narrator was Millikan. At the commencement of the programme, when Griffith was depicted at the camping trip, Millikan was heard to say: "This man claims to be a prophet, to have the answer to the human condition." 110 A little later, a presenter, identified as Liz Jackson, introduced herself and said: "Jeremy Griffith claims he is a new Messiah, an Australian prophet whose coming was predicted in the Bible. His small but dedicated band of disciples believe he has the scientific answer to the fundamental problem of human evil. They're prepared to abandon their families, their studies, and their careers to follow him. Tonight on Four Corners we go into the bush with Jeremy Griffith and Tim McCartney-Snape to witness the beginnings of a movement they believe will change the world. Their disciples are recruited from our elite schools and universities. They're young, bright and highly educated. They'll be asked to devote their lives to the promotion of Griffith's ideas and an increasing number are taking up the challenge. The intriguing question is, why? What do they see in a man whose theories are widely derided by the scientific community? How does he command their devotion? Our guest reporter is theologian, Dr David Millikan." 111 A number of references were made to Griffith as a prophet, or as believing himself to be a prophet. 112 At various times Griffith himself was depicted and recorded. For example, at a very early stage in the programme, Griffith appeared, saying: "They never, ever, ever, ever, consider the possibility that it's actually what we're saying it is. We tell them black in the face! It's fucking what we're saying it is! We have solved the fucking human condition!" 113 Later, filmed at a different site, Griffith could be heard to say: "I am saying I am a prophet and I'm saying I, these understandings. They're, it's rational explanation. You can check these understandings right. It's all verifiable. Nothing, this is, as I suggest in my book, the end of faith and belief and the beginning of knowing." 114 Later again, depicted apparently at his home, Griffith could be heard to say: "Well I happen to be a person who, being able to look at truths that other people can't. You know that's my job and it's just as, you know because it's subjected to so much cynicism it's a dastardly job, and I do it reluctantly but I'd be irresponsible not to carry on when I'm able to do this and stand up and say that I, this is making sense and this is the most important arena. You know please have look at this and these people look at it and they're there as evidence that, that it is making sense." 115 There was much more attributed to Griffith, to which it will be necessary to make reference in due course. The foregoing is sufficient to convey something of the flavour of the programme and what was attributed to him. 116 Likewise, much more was attributed to Millikan as narrator. For example, he was heard to say: "It's not only individuals but families whose lives have been turned upside down." … "With these young people, Griffith is setting out to create the world anew but to get there he is asking them to put all other thoughts aside. But they do so with the enthusiasm and conviction of those who have found the truth" … "Jeremy Griffith says that his understanding is the end of faith and religion and the beginning of certainty and he claims for himself the authority of science. He says that two million years ago an internal war developed in human beings as they changed from animals driven by instinct and became conscious and intellectually self-aware. This is his solution to the human condition and his account of sin and evil. The solution is simple. By simply knowing this information, we are released from a deep sense of personal guilt and turmoil. In stating this vision Griffith claims to himself the title of prophet, guide and teacher to those young people who have the ears to hear. He says that he is unique, he is the only truly innocent and unevasive thinker in the history of the world." … "For thirteen years Griffith wrote compulsively. As he did it began to dawn on him that his writings were answering the great questions of life. In the end he was convinced that he was a prophet and he had written half a million words. But he felt like a voice crying in the wilderness. It was not until he met Tim McCartney-Snape and his friends associated with 'Australian Geographic' that Griffith began to find the public recognition he craved." 117 In other sequences reference was made to McCartney-Snape. For example, he was described as: "conqueror of Mount Everest … the journey's guide and Jeremy Griffith's first disciple." 118 Millikan described McCartney-Snape as having given his life to the Foundation, as following Griffith's ideas "with the enthusiasm of convert" and as "Griffith's public face", tirelessly advocating "the prophet's words". He was described as "a contemporary hero" and was visually depicted as a guest speaker at a high school speech night. Of him, Millikan said: "McCartney-Snape is here not just to talk about his conquest of Everest. Wherever the opportunity allows, he talks about the prophet." 119 This was followed by some footage of McCartney-Snape at the speech night claiming to have "the highest regard" for Griffith. He said: "I'm convinced he's gone up river and reached the source of the problem. He's made a crucial breach in our war to understand ourselves." 120 The theme of family disruption, referred to by Millikan, was illustrated by interviews with a Gillian Belfield and her husband Giles. Ms Belfield was heard to say: "We were a very close, very demonstrative family and at the moment we are totally destroyed. It has had incredible effects on all the children, effect on, the stress on our marriage has been almost overwhelming at times and I am not sure how we'll put the pieces back together again." 121 Much later, after a small amount of film showing the Belfield's son Sam (the fourth plaintiff), Ms Belfield was heard to say: "When I asked Jeremy what was Sam's future, Jeremy's answer to me was Sam must sacrifice his life, and I as a mother find that extremely difficult to accept."

Similar sentiments were expressed by Charles Belfield. 122 The demands said to be made by Griffith for total commitment were referred to by a couple identified as Rosemary and Howard Whelan (the fourth and fifth defendants). Howard Whelan also spoke about McCartney-Snape, suggesting that when he is invited to speak at functions it would be assumed that he would speak about "climbing Everest", but that this is not the theme of his talks. The implication was that McCartney-Snape uses such occasions instead to promote Griffith's "agenda". 123 Towards the end of the documentary Millikan turned his attention to the role assigned in the Foundation, and by Griffith, to women. Millikan said that Griffith perceived sex between men and women as rape, used by men "to rob women of their innocence". One of the female members, Bronwyn Fitzgerald (the eighth plaintiff) was depicted giving a somewhat confused explanation for the rape of women by men.

the imputations pleaded: paragraphs 20,21,22,23,24,25,29,32 124 The Four Corners programme has given rise to claims by each of the plaintiffs against both the ABC and Millikan. As well, Griffith sues Rosemary Whelan and McCartney-Snape sues Howard Whelan, each alleging that defamatory imputations were conveyed by the words attributed to them. 125 It is necessary to set out all of the imputations pleaded. In paragraph 20 Griffith asserts that the programme conveyed thirteen imputations defamatory of him, which he has pleaded in the following terms:

20(a) Jeremy Griffith knowingly makes false claims to be greater than Jesus Christ; 20(b) Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ; 20(c) Jeremy Griffith knowingly makes false claims to perform the role of the Holy Spirit; 20(d) Jeremy Griffith is so deluded that he claims to perform the role of the Holy Spirit; 20(e) Jeremy Griffith attempts to indoctrinate young people by instructing them in a manner intended to manipulate and control their minds; 20(f) (withdrawn) 20(g) Jeremy Griffith promotes his ideas as scientific, when in fact they have no basis in science; 20(h) Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community; 20(i) Jeremy Griffith is an evil man in that he has a dark view of women and sexual relations; 20(j) Jeremy Griffith is a male chauvinist; 20(k) Jeremy Griffith is a dangerous lunatic; 20(l) Jeremy Griffith is the founder and leader of a dangerous cult which preys on young people; 20(m) Jeremy Griffith is the founder and leader of a dangerous cult which poses a threat to the community; 20(n) (withdrawn) 20(o) Jeremy Griffith unreasonably demands of his followers such a high level of loyalty to him that he causes their families to be seriously damaged. 126 In paragraph 21 the Foundation asserts that the publication conveyed two imputations defamatory of it. They are: 21(a) The FHA is a dangerous cult which preys on young people; 21(b) The FHA is a dangerous cult which poses a threat to the community. 127 In paragraph 22 McCartney-Snape asserts that the publication conveyed seven imputations defamatory of him. They are framed as follows: 22(a) Tim McCartney-Snape deceives schools who invite him to talk to students about climbing Mount Everest by exploiting the occasion to promote Jeremy Griffith and his teaching; 22(b) Tim McCartney-Snape has betrayed his responsibility as an Australian hero by seeking to recruit young people for Jeremy Griffith through his speeches to school students; 22(c) (withdrawn) 22(d) Tim McCartney-Snape has behaved disgracefully by trying at every opportunity to lure young people into a dangerous cult which poses a threat to the community; 22(e) Tim McCartney-Snape has willingly allowed himself to be used as the public face of an organisation which he knows to be socially destructive; 22(f) Tim McCartney-Snape is a member of a dangerous cult which preys on young people; 22(g) Tim McCartney Snape is a member of a dangerous cult which poses a threat to the community; 22(h) Tim McCartney-Snape is so foolish that he has allowed himself to be duped into believing the ludicrous ideas of Jeremy Griffith. 128 Belfield asserts in paragraph 23 that the publication defamed him by conveying a single defamatory imputation pleaded as follows:

23(a) Sam Belfield has foolishly chosen to follow Jeremy Griffith, thereby causing tremendous harm to his family. 129 In paragraph 24 Armstrong, Fitzgerald, Jones and Rodger, who are collectively identified as "the FHA women" each individually asserts that the programme conveyed a single imputation defamatory of her, as follows:

24(a) The FHA women are so foolish that they have willingly accepted a status which is inferior and subservient to men. 130 In paragraph 25, each of the individual plaintiffs (except Griffiths and McCartney-Snape), including Belfield and the four plaintiffs identified as "the FHA women", asserts that five imputations (additional in the case of Belfield, Armstrong, Fitzgerald, Jones and Rodger) were conveyed of him or her. These plaintiffs (ie, all plaintiffs except for the Foundation, Griffith, and McCartney-Snape) are collectively referred to as "the FHA members". The imputations pleaded are:

25(a) 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; 25(b) Each of the FHA members is so deluded that he or she believes that Jeremy Griffith is greater than Jesus Christ; 25(c) (withdrawn) 25(d) Each of the FHA members is prepared to abandon his or her family, studies and career to follow a dangerous lunatic; 25(e) Each of the FHA members is a member of a dangerous cult which preys on young people; 25(f) Each of the FHA members is a member of a dangerous cult which poses a threat to the community. 131 Further, in paragraph 29, Griffith claims that that part of the telecast attributed to Rosemary Whelan conveyed two imputations defamatory of him, in the following terms: 29(a) Jeremy Griffith unreasonably demands of his followers such a high level of loyalty to him that he causes their families to be seriously damaged; 29(b) Jeremy Griffith is dangerous in that he seeks to manipulate the thinking of his followers so that they cannot think for themselves. 132 In paragraph 32, McCartney-Snape asserts that that part of the telecast attributed to Howard Whelan conveyed three imputations defamatory of him, pleaded as follows: 32(a) Tim McCartney-Snape has betrayed his responsibility as an Australian hero by seeking to recruit young people for Jeremy Griffith through his speeches to school students; 32(b) Tim McCartney-Snape has behaved disgracefully by trying at every opportunity to convert school students to the ideas of Jeremy Griffith; 32(c) Tim McCartney-Snape has behaved disgracefully by trying at every opportunity to lure young people into a dangerous cult which poses a threat to the community. 133 By paragraphs 33 and 34 all plaintiffs assert that the Four Corners programme was published by the ABC and Millikan in such circumstances that its re-publication by others, especially educational institutions, was a natural and probable consequence, and that the telecast had in fact been so re-published at various times.

the challenges to the imputations paragraph 20 imputations - Griffith imputations 20(a) and 20 (b) 134 Imputations 20(a) and 20(b) precisely replicate imputations 14(a) and 14(b). Challenges of a like kind to those made earlier are made to these imputations. For the reasons given in relation to imputation 14(a), I am satisfied that imputation 20(a) is imprecise and ambiguous and should be struck out for that reason; I am not satisfied that imputation 20(b) is imprecise or ambiguous, also for the reasons given in relation to imputation 14(b). It will not be struck out for that reason. 135 It was also submitted that neither imputation 20(a) nor imputation 20(b) is reasonably capable of being conveyed by the matter complained of. Once again, this argument is to be dealt with in the same way as a similar argument put in relation to imputation 14(a); that is, that so long as the ambiguity is present, it is not possible to determine whether the imputation as formulated is capable of being conveyed by the matter complained of. In this respect, of course, the determination depends entirely upon what was contained in the Four Corners documentary, and no guidance is to be gained from the decision made in relation to the earlier publication in respect of which the imputations pleaded in paragraph 14 were said to arise. 136 Counsel for the plaintiffs has helpfully provided a folder extracting from the transcripts of each matter complained of those passages from which each individual imputation is said to arise. This extracts an assertion made by Millikan that Griffith "claims to be a prophet, to have the answer to the human condition"; an assertion by the presenter, Liz Jackson, that "Jeremy Griffith claims he's a new messiah, an Australian prophet whose coming was predicted in the Bible"; and at least two assertions that his followers, or "disciples", believe that he has the scientific answer to the fundamental problem of human evil. In particular, Millikan is recorded as attributing to Griffith's followers the belief that he is greater than Christ and that only he has the words of salvation. To Rosemary Whelan is attributed the following passage: "Jeremy is the prophet. Jeremy is the new messiah and Jeremy can lead us to salvation. This is the way he sees it, so this does require devotion, he does liken himself to Christ and likens his followers to Christ's disciples." 137 It can be seen that these passages in fact contain two separate strands. One is what Griffith is said to claim on his own behalf: this is to be a prophet, to have the answer to the human condition; to be " a new messiah", an Australian prophet whose coming was predicted in the Bible; He was said to liken himself to Christ and his followers to Christ's disciples. The other strand concerns what is attributed to his followers. This is the belief that he has the scientific answer to the fundamental problem of human evil; to be the most important person in the world today; and, most importantly for present purposes, that he is greater than Christ, and that only he has the words of salvation. 138 When properly analysed, it can be seen that the claim that Griffith is greater than Jesus Christ is attributed, not to Griffith himself, but to his followers. The nearest the matter complained of goes to asserting that such a claim is made by Griffith himself is in the words attributed to Rosemary Whelan, that he likens himself to Christ and his followers to Christ's disciples. On no view can this be converted to an assertion that Griffith himself claims to be greater than Jesus Christ. I therefore propose to strike out imputation 20(a) as being incapable of being conveyed by the matter complained of. It is axiomatic that imputation 20(b) must be struck out for the same reason. 139 It was further argued that these imputations do not differ in substance, but having regard to the conclusions above, it is not necessary to take further time considering this matter.

imputations 20(c) and 20(d) 140 Each of these imputations repeats imputations earlier pleaded, and contains the same defects. Imputation 20(c) echoes the ambiguity contained in imputations 14(a) and 20(a); each echoes the defect of lack of clarity contained in imputations 11(c) and (d) and 14(c) in relation to the meaning of "the Holy Spirit". However, the most fundamental challenge concerns the capacity of the matter complained of to convey these imputations. As I have already observed, it is a fairly arid exercise to determine the capacity of the matter complained of to convey an imputation which I have already held to be imprecise and ambiguous. However, since either of those defects would ordinarily result in the plaintiffs being granted leave to reformulate the imputations, it is convenient to consider just what is capable of being conveyed by the matter complained of. Although a number of passages were cited as supporting these imputations, it seems to me that only one is remotely capable of doing so. This is a passage attributed to Millikan in a voice-over in which he said: "As Christ gathered his disciples around him and took them aside from the world, this is what Griffith is doing. Christ talked about another who would come after him, a teacher and comforter. Christians believe this is the third person of the Trinity, the Holy Spirit. Jeremy Griffith believes Christ was talking about him." 141 The first thing to observe about this passage is that it makes not the slightest suggestion that Griffith is making a claim he knows to be false. Rather, it clearly suggests that Griffith believes the assertion he was said to make, no matter how far fetched such a claim might be. Imputation 20(c) is incapable of being conveyed by the programme. It will be struck out. Subject to clarification of what is meant by "the role of the Holy Spirit", I have concluded that the passage I have extracted is sufficient to be capable of conveying an imputation along the lines pleaded in imputation 20(d). 142 Again it is unnecessary to decide whether, as the defendants contend, these imputations do not differ in substance.

imputation 20(e) 143 The first challenge to this imputation is that it is imprecise and ambiguous; particular complaint was made of the use of the words "attempts", "instructing", and "intended". I reject this challenge. There is nothing imprecise or ambiguous about any of the three words used, or about the concepts which are incorporated in the imputation. Of course, it will be necessary for Griffith to persuade a jury that each of the three concepts is conveyed by the matter complained of, but this does not bear upon the precision or clarity of the imputation. A subsidiary argument was that, if the words are taken to mean that Griffith unsuccessfully attempts to manipulate minds, or does so in ignorance, or without intent to achieve the objective result, the imputation is not capable of being defamatory. I reject this also. An unsuccessful attempt to manipulate minds is discreditable, even if less so than a successful attempt; instruction that manipulates and controls minds of young people is discreditable, whether done with knowledge or intent or not. The word "manipulate", and the notion of mind control, particularly in relation to young people, are inherently capable of being defamatory. In any event, the imputation taken as a whole can only be seen as an assertion of a deliberate attempt to indoctrinate. 144 I will not strike out imputation 20(e) on the ground of imprecision or ambiguity. 145 The final complaint made about this imputation is that it is not capable of being conveyed by the matter complained of. It is therefore necessary to have recourse to those passages on which Griffith relies to support the imputation. These are lengthy. It is necessary to refer only to a few. Millikan said: "The isolation of the bush is the opportunity Griffith needs to introduce his disciples to the new world … with these young people, Griffith is setting out to create the world anew. But to get there he is asking them to put all other thoughts aside …" 146 Later, he said: "Griffith demands nothing less than absolute loyalty." and later again: "despite Rosy's commitment, Griffith does not welcome independence in those working for the Foundation." 147 Rosemary Whelan said: "And he was keen for me to be fully devoted to the, to his cause and that's what he was striving for and that's eventually what I, what I gave … I do remember he expressed at one stage he was concerned that I, that he needed the sort of loyalty from me that I was giving to, Howard, that total support for another person and he worried that I wouldn't have enough, in me to give to both of them … I think the danger is that Jeremy wants total devotion to this cause. It's not good enough to be there sometimes. It's something you need to embrace fully and part of that is this danger of letting your mind be in someone else's hands, have someone else controlling what you think and how you think about things." 148 In my view these passages are sufficient to support imputation 20(e). I will not, therefore, strike out this imputation.

imputations 20(g) and (h) 149 Of imputations 20(g) and (h) one complaint was that they "are bad in form and ambiguous". However, the argument advanced in support of this was that "they do not attribute or identify with any precision any act or condition of Mr Griffith to his discredit". This is, in truth, an argument that the imputations are not capable of being defamatory. I reject this argument. In each imputation, although they are framed differently, the assertion is that Griffith puts himself forward as a scientist, or his ideas as scientific, but that he is misguided or worse in doing so. These are capable of being defamatory. Secondly, in relation to imputation 20(g), complaint was made of the use of the word "promotes"; and as to imputation 20(h) similar complaint was raised in relation to the phrase "holds himself out as a scientist". But the tenor of the argument throughout was that neither imputation (if conveyed) conveyed any message discreditable to Griffith. It was argued that, for the imputations to be defamatory, it would be necessary also to assert that Griffith promoted his unscientific ideas as scientific, or published poor quality work, deliberately or fraudulently, or knowing of the inadequacies of his work. This cannot be sustained. An assertion that a scientist (or other professional) turns out poor quality work, whether knowingly or unknowingly, is capable of being defamatory. 150 It was next argued that neither imputation is capable of being conveyed by the matter complained of. 151 Each imputation is a composite of two ideas - one, that Griffith promotes his ideas as scientific, or holds himself out as a scientist; second, that the ideas he promotes are, and his published work is, unscientific and unsupported by the scientific community. Each part must find support in the matter complained of before the imputation as a whole can be conveyed. There is ample in the matter complained of to support the second part of each imputation. At a very early stage Liz Jackson said that Griffith's theories "are widely derided by the scientific community". Later, a Tim Flannery, who was identified by sub titles as a scientist of the Australian Museum, critically commented on a book written by Griffith which he described as "a pretty poor book about the subject", and singularly unimpressive "as an attempt to explain human nature and what humans are about". Immediately before that Millikan said that, although Griffith had sent eight hundred copies of his book to leading scientists and journals around the world he "is alone, rejected by the scientific community". 152 It remains to consider whether the matter complained of also suggests that Griffith "promotes his ideas as scientific"; or "holds himself out as a scientist". Once again, some of what Griffith relies on as conveying the imputations, is, in fact, attributed to his followers or disciples and not to himself. For example, Liz Jackson said that his disciples believe he has the scientific answer to the fundamental problem of human evil. This is insufficient to convey what is claimed in either imputation. However, Millikan said: "and he claims to himself the authority of science." A little later Millikan said: "the answer, he believed, lay in the evolutionary process." 153 That is all there is in the matter complained of to convey the notion that Griffith "promotes his ideas as scientific", or "holds himself out as a scientist". In my view the assertion by Millikan that Griffith "claims to himself the authority of science" is the sole support in the matter complained of for these parts of the two imputations. It is, however, in my view, sufficient, bearing in mind the relatively undemanding test of capacity as distinct from the actuality, of the conveyance of the imputation. I will not strike out either imputation on the ground of incapacity. 154 That makes it necessary to consider the final challenge, which is that the two imputations do not differ in substance. Counsel for Griffith supported the imputations as having a qualitative distinction - he argued that imputation 20(g) asserts that Griffith's work is not science at all whereas imputation 20(h) is of lesser seriousness, asserting that his work is of poor quality. I am not persuaded that the distinction is sufficient. This is particularly so when regard is had to the whole of imputation 20(h), the final part of which is that Griffith's work is "no support" from the scientific community. 155 Griffith will have to elect upon which of these two imputations he wishes to proceed.

imputation 20(i) 156 The principal complaint about imputation 20(i) is that it is imprecise and ambiguous. With this I agree. The imputation as framed uses language that is, perhaps, intended to be redolent with imagery, and might create a mood, more suited to a creative writer than a legal draftsperson. It is of no assistance in capturing what is said to have been conveyed by the Four Corners broadcast. For this reason alone, imputation 20(i) will be struck out. 157 Further, the imputation contains within it faulty logic. It can only be read as meaning that a person (at least, a male person) who has "a dark view of women and sexual relations" is necessarily "an evil man". This is an exaggeration of the views to be attributed to ordinary reasonable people - while many might think that a man who has "a dark view of women and sexual relations" is worthy of criticism, and that to say such a thing of a person is to denigrate him (or her), it does not follow that a man with such views is necessarily "an evil man", and so to imply is very significantly to overstate the views of ordinary reasonable people. 158 Finally, it was argued that the imputation is not capable of being conveyed by the matter complained of. Given the serious defect in this imputation, in its form, it is quite impossible finally to determine this question. However, it is worth considering whether any imputation of similar substance is capable of being conveyed. 159 Counsel for Griffith relied upon a number of passages in the matter complained of, beginning with one which appears towards the end of the documentary. Millikan said: "Griffith sees a world of struggle and alienation between men and women. When Adam first killed he corrupted his own soul and set a pattern of aggression that has darkened the world ever since." 160 This was followed by some footage of Griffith and words spoken directly by him. It is fair to say that this passage portrays Griffith as appearing to be something less than rational. He makes some reference to Adam and Eve but this is scarcely comprehensible and I do not propose to attempt to paraphrase it. However, Millikan's voice was then superimposed over Griffith's voice. Millikan said: "And so Adam's aggression is like a plague. It infects all contests between men and women. For the last two million years sex became rape as men used it to rob women of their innocence." 161 This was followed by footage of the female Foundation members having a group discussion, and then there was some more of Millikan, saying: "It's a dark and confused dimension of Griffith's philosophy which the women of the Foundation find almost impossible to explain." 162 Plainly, this passage is the source of part of the imputation pleaded. 163 This was followed by some footage of female members of the Foundation having a discussion, none of which appears to be relevant to the imputation, and much of which is difficult to follow. Millikan then said: "… Griffith sees sex as essentially something that men do to women, but when women allowed it to occur, at what Griffith calls a more noble level, to soothe and comfort the aggression in men, they also lost their innocence." Millikan was then shown addressing Griffith directly, asking the question: "Sex has been the major weapon that men have used to destroy women's innocence, am I right?"

to which Griffith replied: "Yes, yes for sure. But, but …"

After a discussion, Griffith said: "… Sex kills innocence in women, I mean, but but at a more noble level the greater truth is, its been one of the greatest supports and comforts and, and forms of reinforcements. There's this amazing paradox about everything about the human condition."

The programme returned to film of the Snowy Mountains trip, where Millikan could be seen, saying: "In Griffith's scheme of things, women find themselves caught in a relationship with men which assigns them to cooking, cleaning and serving."

A male follower, John Biggs (the fifth plaintiff) made an apparent attempt to explain why "women have instinctively a different role to men". He said: "They are at base very different creatures, and have been ignorant. It's been men's job to take up the sword … to champion the ego, to become egocentric and alienated. Women have been the nurturers, have nurtured children, and have been in that role, but now, but have been always previously ignorant of the greater battle on earth and why it occurred. But now we can explain to women. Women, for women this is very much a discovery." Millikan asked Jones (the ninth plaintiff) if her role (as a woman) was "like a servant role" to which she replied: "It is a servant role in a sense but not in the classical sense of the past because it's just a case of there's a lot to do here and because at the moment men are a bit tied up with their egos and that women do have more of a freedom to get things done." 164 One additional thing to be observed about the imputation as pleaded is that it in fact refers to Griffith's "dark view" in relation to not one, but two separate subjects - firstly, women, and, secondly, sexual relations. 165 There are passages in the matter complained of which purport to recount Griffith's "dark" view of sexual relations. These include the first of the passages extracted above, attributing to him a view that there is: "struggle and alienation between men and women" and "a pattern of aggression". There was the reference to Adam's aggression being like a plague, infecting all contacts between men and women; to sex being rape perpetuated by men to rob women of their innocence; to sex as being "essentially something that men do to women"; to sex killing innocence in women. 166 There is less to identify what is said to be Griffith's "dark view of women". Certainly, in some of the passages quoted, women are portrayed as victims, as vulnerable to the aggression of men, and, in the depictions of the women performing traditional roles of cooking, cleaning and serving, and the discussion between the members, especially the female members but including Biggs, the suggestion of exploitation, within the Foundation, of women. 167 There is much in the broadcast that could be taken as critical of Griffith and his attitude to women, and his attitude to sexual relations between men and women. However, even when a penetration of the murky language of the imputation is attempted, the telecast falls far short of conveying any imputation that Griffith is "an evil man" because of those attitudes. It is incapable of conveying any imputation that may be encompassed within imputation 20(i) as presently pleaded.

imputation 20(j) 168 The principal challenge made to imputation 20(j) is that it is not reasonably capable of being conveyed by the telecast; this was put initially on the basis that the word "chauvinist" was not used in the matter complained of. The fact that a word used in an imputation is not expressly contained in the matter complained of is not conclusive that the matter complained of is incapable of conveying the imputation in which it appears. The very point of requiring a plaintiff to frame imputations is to capture the defamatory sting of the matter complained of and this is frequently done by resorting to language other than that used by the publisher. No submission was made that the meaning of the imputation is in any way unclear, or that the term "male chauvinist" is not sufficiently well-known in its meaning to be clear to a jury. Notwithstanding that, counsel for Griffith pointed to the definition of "male chauvinist" as it appears in the Macquarie Dictionary, mainly, it seemed, to show that, as it is a term defined in that dictionary, it must be taken to have a sufficient level of currency. 169 The real challenge was, as I have noted, based on the capacity of the matter complained of to convey the imputation. To support it, counsel for Griffith relied upon the same portions of the matter complained of as were cited in support of imputation 20(i). The Macquarie Dictionary definition of "male chauvinist" is: "A man who discriminates against women by applying to them stereotyped ideas of female incompetence, inferiority, female roles, etc." 170 There is material contained in the matter complained of that suggests that Griffith relegates women to a position of inferiority in relation to men. For example, Millikan said: "In Griffith's scheme of things, women find themselves caught in a relationship with men which assigns them to cooking, cleaning and serving." In other parts of the documentary women were portrayed as vulnerable, exploited, and ignorant. Adhering to the Macquarie Dictionary definition - and to the common notions of the expression - the centre point of male chauvinism is discrimination against women by reason of the application of stereotyped ideas. Certainly the portrayal of Griffith relegating women to positions of service to men is capable of conveying that part of the imputation that relies upon discrimination; cooking, cleaning and serving roles may well be seen by the ordinary reasonable reader as traditional "female roles", and the portrayal of women performing these functions may well be seen as denoting stereotyped ideas of the role and worth of women. I am therefore satisfied that the matter complained of is capable of conveying this imputation. 171 A further challenge to the imputation was based on the asserted lack of difference in substance from imputation 20(i); given that I have determined imputation 20(i) should be struck out it is unnecessary further to consider this challenge. Imputation 20(j) will be allowed to go to the jury.

imputation 20(k) 172 The only challenge to imputation 20(k) is a capacity challenge: that is, it was submitted that the matter complained of is not reasonably capable of conveying the imputation that Griffith is a dangerous lunatic. There are two parts to this imputation, the first that Griffith is dangerous, and the second that he is a lunatic. There is much in the programme to support the imputation that what Griffith teaches to his followers creates danger to them, their families, and to the cohesion of the community as a whole. In particular, there is much that suggests that Griffith, through his teachings, is the cause of family disintegration. This, I think, is enough to support the first part of the imputation. The second part concerns Griffith's sanity. This gives rise to an interesting question. There is, in my opinion, material in the programme which is plainly capable of raising questions about Griffith's sanity. The question is interesting because, except for one sentence, all of these passages are attributed to Griffith himself: he could be seen on the television screen uttering words, and behaving in a fashion, that cause questions about his sanity to arise. In some of the sequences his words appear to be irrational and his attitude and behaviour unbalanced. The fact that it appears to be his own speech that conveys the imputation does not bear upon the question whether the matter complained of is capable of conveying the imputation. 173 Senior counsel for the ABC defendants argued that the imputation overstates what could reasonably be drawn from the programme, arguing that what the programme suggests is that Griffith is, not a "dangerous lunatic", but rather "somewhat misguided". 174 It may well be that a jury would find that "dangerous lunatic" overstates the impact of the programme. However, my task at this stage is merely to decide whether a reasonable jury, properly instructed, could find that the programme conveyed the imputation that Griffith is a dangerous lunatic. I think that it could. Accordingly, I will not strike out imputation 20(k).

imputations 20(l) and (m) 175 The two challenges to these imputations are that they do not differ in substance, and that neither is reasonably capable of arising form the programme. 176 I think there is substance in the first argument that the imputations do not differ in substance. Once again, it is appropriate to have recourse to the matter complained of in order to determine whether there may, in that context, be any difference in substance. The only danger attributed to the Foundation is the danger to the lives and families of young people who fall under Griffith's influence. It is only through the threat to young people that there is any suggestion of a threat to the community. No separate threat to the community is postulated. This demonstrates that the danger to young people mentioned in imputation 20(l) is really the same danger which is represented as a threat to the community in imputation 20(m). Despite a difference in language, therefore, on proper analysis the two imputations are no more than alternative ways of making the same assertion. It will, therefore, be necessary for Griffith to elect on which of the imputations he wishes to go to the jury. 177 Are these imputations capable of arising from the matter complained of? Imputation 20(m) is pleaded in identical terms to imputation 11(d) and has the same four components. As was the case in respect of imputation 11(d), for the imputation to survive, it is necessary for Griffith to establish the capacity of the matter complained of to convey each of the components and also the composite idea expressed in the imputation. In relation to imputation 20(k) I considered the extent to which it could be said that the matter complained of conveys the imputation that Griffith and/or his teachings were dangerous. For the same reasons I there gave, I am persuaded that the matter complained of is capable of conveying the imputation that the Foundation is dangerous. It is necessary then to consider whether the matter complained of is capable of portraying the Foundation as a cult. In the telecast, little attention is specifically paid to the Foundation, at least by name. 178 To sustain this imputation it is not necessary that the Foundation itself be identified as "dangerous cult". There are numerous references to Griffith's teachings, his "small but dedicated band of disciples"; their willingness to abandon their families, their studies and their careers to follow him; the demands made upon them by him; the belief of his followers in his importance and greatness; and the magnitude of Griffith's vision. 179 This is adequate, in my view, to support the conclusion that whatever organisation it is that Griffith leads, it is a cult. 180 The next component of imputation 20(l) is that the cult (or the Foundation) "preys on young people". The passages to which I have already referred - those which identify the demands made upon Griffith's alleged young followers, and the disruption to families, are sufficient to justify the imputation that Griffith preys on young people. Accordingly, all components of imputation 20(l) are capable of being conveyed by the matter complained of. Imputation 20(l) will not be struck out on the ground of incapacity. 181 The same applies to imputation 20(m). Since I have concluded that it does not differ in substance from imputation 20(l) it is axiomatic that it is capable of being conveyed. 182 Although Griffith will have to elect between these two imputations, he will be permitted to go to the jury on one or the other.

imputation 20(o) 183 The first challenge to imputation 20(o) was that it is imprecise and ambiguous. The same argument was advanced as was advanced in relation to imputation 11(c) and is rejected for the same reasons. The second challenge is on the ground of the capacity of the matter complained of to convey the imputation. The argument was simply stated. It was: "It is not said that the level of loyalty demanded by Mr Griffith is unreasonable nor that his demands for such loyalty causes serious damage to families." 184 I reject this argument. There is abundant material in the matter complained of that is capable of conveying the various components, and the composites, of the imputations. These include the following, attributed as indicated: Jackson: "Their disciples are recruited from our elite schools and universities. They're young, bright and highly educated. They'll be asked to devote their lives to the promotion of Griffith's ideas and an increasing number are taking up the challenge. …" Millikan: "Like Christ, Griffith has chosen his disciples carefully … Griffith is calling them to turn their backs on the past and join him on a journey into the new world." Rosemary Whelan: "and I had pretty much cut myself off from friends and family and turned my back on the so-called old world which was held up as, to ridicule, basically." Gillian Belfield: "We were a very close, very demonstrative family and at the moment we are totally destroyed …and I am not quite sure how we'll put the pieces back together again." Millikan: "But to get there he [Griffith] asking them to put all other thoughts aside." Rosemary Whelan: "Jeremy was, was very keen for me to embrace his philosophy, his ideas fully and that takes time. … and he was keen for me to be fully devoted to the, to his cause and that's what he was striving for and that's eventually what I, what I gave." Millikan: "Rosy discovered what many have since, believing is not enough. Griffith demands nothing less than absolute loyalty." Rosemary Whelan: "I do remember he expressed at one stage he was concerned that I, that he needed the sort of loyalty from me that I was giving to, to Howard, the total support for another person and he worried that I wouldn't have enough, in me to give to both of them." Rosemary Whelan: "I think the danger is that Jeremy wants total devotion to this cause. It's not good enough to be there sometimes. It's something that you need to embrace fully and part of that is this danger of letting your mind be in someone else's hands, have someone else controlling what you think and how you think about things." Gillian Belfield: "When I asked Jeremy what was Sam's future, Jeremy's answer to me was Sam must sacrifice his life …" Millikan: "Since Sam joined the Foundation two years ago, their family life has been shattered by endless arguments. Sam's response to the call of the prophet has brought confusion and struggle and a relationship which was full and close has now been strained to breaking point." Millikan: "The Belfields have two other children who are caught in the struggle between Sam and his parents. They are particularly worried about their daughter, Juliet." Millikan: "As Christ gathered his disciples around him and took them aside from the world, this is what Griffith is doing." Millikan: "As Griffith moves forward the family traumas increase. The Belfield's daughter Juliet, returned from the camp convinced by what she had seen." Charles Belfield: "I just feel that Sam and Jules will become so consumed by this, or that Jeremy will become so consumed, where they isolate themselves from society having rejected society. And then they'll be just become a lost island." 185 I decline to strike out imputation 20(o).

paragraph 21 imputations - the Foundation 186 Two originally pleaded imputations having been withdrawn, only two imputations remain in paragraph 21. These are, making necessary adaptations to accommodate the identity of the plaintiff, in parallel terms to imputations 20(l) and 20(m). The first challenge made to these imputations is that they do not differ in substance. For the reasons given in relation to imputations 20(l) and 20(m) I accept this submission. Subject to what follows (that is assuming these imputations survive the additional challenges) it will be necessary for the Foundation to elect on which of the two it wishes to go to the jury. 187 The second challenge is, again in parallel terms to that raised in relation to imputations 20(l) and 20(m): that is, that neither imputation is reasonably capable of being conveyed by the broadcast. Again, for the reasons given in relation to those earlier imputations, I reject this submission. The Foundation will be permitted to go to the jury on either imputation 21(a) or imputation 21(b), but not both.

imputation 22(a) 188 Imputation 22(a) is in identical terms to imputation 17(a). The first challenge, that it is imprecise and ambiguous, echoes the challenge made to imputation 17(a), and must meet the same fate. I do not find the imputation to be imprecise or ambiguous. 189 The second challenge is that it is incapable of being conveyed by the matter complained of. I reject this submission. The broadcast contained some footage of McCartney-Snape at a high school speech night, introduced by the principal of the school and one of the students. Much later, Howard Whelan is shown saying: "It usually works, Tim is going to give a talk about climbing Everest, and the kids go out and go 'Oh great, we're going to meet an Australian hero'. I wonder how much the administration of these schools know what is going to be perpetrated. Do they know that in the background is Jeremy with his separate agenda and this is what concerns me. I think it's got to be out in the open." 190 I am satisfied that this is sufficient to enable a jury to find that the imputation was in fact conveyed. Imputation 22(a) will be allowed to stand.

imputation 22(b) 191 Similar objections were made to imputation 22(b). I have concluded that this imputation is deficient because it is imprecise. It depends upon a notion that McCartney-Snape has some "responsibility as an Australian hero", but this is a phrase, and a concept, which is anything but clear. I will strike out this imputation for imprecision. 192 That makes it difficult, and unnecessary, to consider the remaining challenges, one of which is that the imputation is incapable of being defamatory, and the second of which is that it is incapable of being conveyed by the matter complained of.

imputation 22(d) 193 Imputation 22(d) is in similar, though not identical, terms, to imputation 17(b). Imputation 17(d) was struck out only because of the incapacity of the matter complained of it convey it. That has no bearing upon the present challenges. 194 The first challenge to imputation 22(d) is that it is ambiguous. I see no ambiguity. The argument advanced in relation to this imputation was a reprise of the argument advanced in relation to imputation 17(b) and 17(c). For the reasons I rejected those challenges, I also reject this challenge. 195 The final challenge concerned the capacity of the matter complained of to convey the imputation. I have already extracted the passages in which reference was made to McCartney-Snape's participation in school speech nights and the assertion that he took those opportunities to promote Griffith's teachings, rather than to speak of mountaineering. 196 However, the imputation as pleaded significantly overstates the import of those passages. The accusation of "disgraceful" conduct goes very much further than the remarks attributed to Howard Whelan, which were far more moderate; the accusation that he takes "every opportunity" to entice young people into the Foundation likewise goes much further than the programme; and the accusation that he takes opportunities " to lure young people into a dangerous cult which poses a threat to the community" contains elements of malevolence and intention not to be found in the programme. Accordingly, imputation 22(d) will be struck out.

imputation 22(e) 197 Imputation 22(e) is in identical terms to imputation 17(c). For the reasons given in imputation 17(c) I reject the claim that this imputation is imprecise or ambiguous. The second challenge concerns the capacity of the matter complained of to convey the imputation. This challenge falls to be determined in the same way as a similar challenge to imputations 17(b) and 17(c). In the fourth matter complained of there is, as in the third, not the slightest suggestion that McCartney-Snape knows the Foundation to be socially destructive; indeed, the converse is the case. The tenor of the broadcast was that, however misguided he may have been, McCartney-Snape believed in the value of the Foundation. For this reason imputation 22(e) is incapable of being conveyed by the matter complained of and will be struck out.

imputations 22(f) and (g) 198 Imputations 22(f) and 22(g) parallel imputations 20(l) and 20(m), pleaded on behalf of Griffith. For the reasons given in relation to those two imputations, I conclude that these imputations do not differ in substance, and, subject to the capacity of the matter complained of to convey the imputations, McCartney-Snape will have to elect on which he is to go to the jury. 199 A further challenge to these imputations is that they fail to identify the precise act or condition said to be to McCartney Snape's discredit other than membership of the Foundation. This, it was argued, of itself does not attribute to him anything to his discredit. I reject this argument. To attribute to a person membership of a dangerous cult which preys on young people, or which poses a threat to the community, is, in my view, sufficiently precise and is capable of conveying something discreditable of the person of whom it is published. 200 Further, it was argued that neither imputation is reasonably capable of being conveyed by the broadcast. This, it was said, was because the Foundation is not identified in the broadcast as a dangerous cult that preys on young people or that poses a threat to the community. For reasons given in paragraphs 180-181 above, I reject this argument. The imputations are capable of being conveyed, but, since they do not differ in substance, only one will go to the jury.

imputation 22(h) 201 Imputation 22(h) was challenged on the basis of ambiguity, it being suggested that "foolish" is capable of a number of different meanings; and that the use of the word "ludicrous" fails to identify whether McCartney-Snape knew Griffith's ideas to be ludicrous or whether it was suggested that they were, objectively speaking, ludicrous. Finally, it was rhetorically asked whether the imputation suggested that McCartney-Snape was generally foolish or was foolish because he had permitted himself to be duped by Griffith. 202 I am unpersuaded by any of these arguments. In my opinion the word "foolish" is an ordinary English word which conveys its meaning quite adequately. There is nothing in the imputation to suggest that McCartney-Snape knew that Griffith's ideas were "ludicrous"; far from it, within the imputation itself it is asserted that he believed Griffith's ideas. Plainly, the suggestion is that, despite McCartney-Snape's belief, those ideas were, to sensible people, ludicrous. The final question is immaterial: the imputation does not deal with McCartney-Snape's alleged foolishness other than as said to be indicated by his belief in Griffith's ideas. 203 It was also argued that the telecast was incapable of conveying the imputation. There is substance in this argument. While there is much to suggest that McCartney-Snape is foolish because of his adherence to Griffith's ideas, there is nothing to suggest that he "has allowed himself to be duped" into that belief. Imputation 22(h) will be struck out.

paragraph 25 imputations - Biggs, Gemmell, Armstrong, Fitzgerald, Jones, Rodger

imputation 23(a) 204 The plaintiff whose case is pleaded in paragraph 23 is Belfield, and Belfield alone. In that paragraph he pleads only one imputation. However, in paragraph 25 Belfield, Biggs, Gemmell, Armstrong, Fitzgerald, Jones and Rodger all plead that they were defamed by imputations conveyed by the Four Corners broadcast. The first criticism that is made of imputation 23(a) is that it does not differ in substance from imputation 25(a), which Belfield also pleads. Although there are certain common elements in the two imputations - foolishness in accepting Griffith's ideas - imputation 23(a) contains an additional element, the causation of harm to Belfield's family. For that reason I reject the proposition that the two imputations do not differ in substance. 205 Imputation 23(a) was also challenged on the basis of ambiguity and lack of precision. Once again rhetorical questions were asked about proposed alternative meanings of the words "foolishly chosen". As before (see paragraphs 201-202) I am of the view that the notion of foolishness is a simple one, readily comprehensible to a jury and unambiguous. I decline to strike out imputation 23(a) on this basis. 206 The final challenge to imputation 23(a) concerned capacity of the broadcast to convey it. In order to support that part of the imputation that asserts harm to Belfield's family it is necessary to go no further than the passages attributed to his mother. She said: "We were a very close, very demonstrative family and at the moment we are totally destroyed. It has had incredible effects on all the children, effect on, the stress on our marriage has been almost overwhelming at times and I'm not quite sure how we'll put the pieces back together again." 207 Millikan described the Belfield's family life as "shattered by endless arguments". 208 What remains is to determine whether the broadcast is capable of conveying that part of the imputation that asserts that Belfield had "foolishly chosen to follow" Griffith. Again, this can be supported by reference to a brief passage attributed to Belfield himself. He said: "I'm in with a group of people that have, would sort of nearly die for each other, you know cause they're just so you know supportive of each other, so that that feeling is tremendous." 209 There were additional passages, in which Belfield's father described the impact on their family life, and his relationship with his son; and there are many passages from which it could fairly be concluded that the programme was suggesting, in unmistakable terms, the foolishness of the young followers, including Belfield, in pursuing Griffith's philosophies. Accordingly I am satisfied that the imputation is capable of being conveyed.

imputation 24(a) 210 In paragraph 24 Armstrong, Fitzgerald, Jones and Roger, collectively identified as "the FHA women" plead that the same single imputation was conveyed of each of them. The first criticism that is made of this paragraph is as to form, it being argued that an imputation said to have been conveyed of multiple plaintiffs is improperly pleaded. 211 I reject this submission. Paragraph 24 is unmistakeable in its terms: it is pleading that the same imputation was severally conveyed of each of the four plaintiffs there named. The pleading would be no clearer if it were divided into four separate paragraphs, in which each of these four plaintiffs alleged that the same imputation was conveyed of her. The pleading in its present form is plainly a device, and a sensible and clear one, to compress what is already an extensive and complex statement of claim. There can be no possible embarrassment to, or difficulty created for, the defendants in the form of the pleading. When the matter comes to be put before the jury, of course the jury will have to be asked the same question separately of each of the named plaintiffs. But at the pleading stage what is intended is perfectly clear and, in my opinion, a legitimate and sensible means of limiting the length of the statement of claim. 212 The next criticism made of the imputation was a reworking of the argument that the word "foolish" is imprecise and ambiguous. For the reasons already given I reject that submission. A similar argument was advanced in relation to the phrase "inferior and subservient to men". Again, I am satisfied that the phrase is easily understood and conveys what is intended of it. 213 Finally, it was argued that the imputation is incapable of arising from the broadcast. (It was not suggested that any different answer would eventuate in relation to any of the women - that is, the argument proceeded upon the basis that if the broadcast were capable of conveying the imputation of one of these four plaintiffs, the same result would eventuate in relation to the others.) 214 A good deal of the matter complained of on which reliance was placed on behalf of these plaintiffs was conversations or statements attributed directly to the women themselves, or their male colleagues. Some of it is attributed to Griffith. Much of it, particularly that spoken by the members, is suggestive of confused thinking and the adoption of ideas not clearly, or at all, understood. 215 In my view there are only two passages which support the notion that the women have willingly accepted a status inferior and subservient to that of men. They are the following: Millikan: "In Griffith's scheme of things women find themselves caught in a relationship with men which assigns them to cooking, cleaning and serving." Jones: "It is a servant role in a sense but not in the classical sense of the past because its just a case of there's a lot to do here and because at the moment men are a bit tied up with their egos and that women do have more of a freedom to get things done." 216 Although these passages are but a tiny part of the entire programme, they are, in my opinion, sufficient to convey the imputation. It will therefore be permitted to go to the jury.

the paragraph 25 imputations 217 Paragraph 25 is pleaded in a similar form to paragraph 24 in that a series of identical imputations are said to have been conveyed of each of "the FHA women", Belfield, Biggs and Gemmell. For the reasons given in relation to the paragraph 24 imputation, I reject that contention. 218 In this instance a distinction is drawn between the sixth plaintiff, Gemmell, and the other plaintiffs named in the paragraph. That is because, unlike the other plaintiffs, Gemmell is not referred to by name and no particulars of identification have been provided. This point is valid. Whether it is remediable or not depends upon whether he is able adequately to particularise his identification. I propose to grant him a short period of time to provide such particulars; in the event that he fails to do so, the imputations so far as they are pleaded to have been conveyed of him will be struck out.

imputation 25(a) 219 Imputation 25(a) was attacked on the ground of imprecision and ambiguity, following the similar attack on imputation 22(h). It also has parallels with imputation 24(a). I reject the submission that the imputation is imprecise or ambiguous, for the reasons given in considering those imputations. It was also argued that the telecast was incapable of conveying the imputation of any of the seven identified plaintiffs. Subject to what has already been said about the identification of Gemmell, I am satisfied that the broadcast was capable of conveying the imputation of each of these plaintiffs. As with so many earlier imputations, this is a composite of a number of component parts. A particular submission was made that Griffith's ideas were not described as "ludicrous", but this I reject. In the opening sequence of the programme the presenter, Liz Jackson, asked: "What do they see in a man whose theories are widely derided by the scientific community?" Further, the presentation of Griffith himself and his tirades would be capable of giving rise to such an inference. Other parts of the imputation - that the plaintiffs were foolish and were duped into believing Griffith's ideas - emerged from passages already cited and from the overall tenor of the programme, which is that the philosophy espoused by Griffith is not only unscientific, but also irrational. I decline to strike out imputation 25(a) on the ground of incapacity.

imputation 25(b) 220 Identical challenges were made to imputation 25(b). For reasons given in relation to imputation 11(a) I do not find that this imputation is imprecise or ambiguous. A second complaint of this imputation is that it, in effect, falls into that class of imputations in which a group is said to have been defamed, and that, thereby, all individual members of the group claim to have been defamed. Reference was made to David Syme, and Co v Canavan (1918) 25 CLR 234; McCormick v John Fairfax & Sons Limited (1989) 16 NSWLR 485. The principle stated by the defendants is, of course, correct, but the circumstances of this publication are not those of either Canavan or McCormick. Except for Gemmell, each of the plaintiffs who sued on this imputation was depicted visually, and most, if not all, were identified by name. This takes the publication out of that class of group defamation. 221 However, I have more concern about the use of the word "deluded" in relation to these plaintiffs. There is a specific reference to their belief that Griffith is "greater than Christ" and that "only he has the words of salvation". In the end, I have concluded that, if Griffith's own belief that he is greater than Jesus Christ is capable of conveying an imputation of delusion, then, equally, a belief attributed to the members that he is greater than Jesus Christ is also so capable. Accordingly, imputation 25(b) will be allowed to stand.

222 Similarly, imputation 25(d) is attacked as imprecise and ambiguous, as failing to convey any defamatory meaning, and as being incapable of arising. I see no imprecision or ambiguity; I am satisfied that the imputation is capable of defaming any plaintiff of whom it is found to have been published; the only real question is whether it is capable of being conveyed by the matter complained of. A particular argument was directed to the words "a dangerous lunatic" in reference to Griffith, the argument being that there is no passage in the matter complained of which directly or indirectly asserts that Griffith is a dangerous lunatic. In similar fashion to that adopted in relation to the previous imputation, part of the criticism was that the imputation does not specify whether the individual plaintiffs were aware that Griffith was "a dangerous lunatic" or not. 223 Since I have already held (see imputation 20(k)), that the programme was capable of conveying the imputation that Griffith was a dangerous lunatic, the only question in relation to capacity is whether it was also capable of conveying the imputation that any of these plaintiffs was prepared to abandon his or her family, studies or career in order to follow him. Once again it is only necessary to refer to the opening remarks by Liz Jackson, to the effect that the followers would be asked to devote their lives to the promotion of Griffith's ideas, and that an increasing number were taking up the challenge. 224 However, beyond that, and while there is material identifying each of the named plaintiffs as a person who had succumbed to Griffith's so-called philosophy, with the exception of Belfield, I do not think that the programme goes so far as to say, or convey, that each of these plaintiffs was prepared to abandon his or her family, studies or career. In relation to each of the named plaintiffs except Belfield this imputation will be struck out.

imputations 25(e) and (f) 225 Imputations 25(e) and 25(f) fall into the same category as imputations 20(l) and 20(m) and, accordingly, do not differ in substance. It will be necessary for the plaintiffs to elect on which of the two imputations he or she wishes to go to the jury. 226 Further, it was argued that the imputations fail to convey any meaning defamatory of the plaintiffs, but, for reasons already given, I reject this proposition. 227 Finally, it was argued that the programme was incapable of conveying either imputation, but, again, for reasons already given, I reject that. Subject to election, the plaintiffs will be permitted to go to the jury on one or other of the imputations.

the paragraphs 29 and 32 imputations imputations 29(a) and (b) 228 In paragraph 29 Griffith sues Rosemary Whelan in relation to the portion of the programme attributed to her. In paragraph 32 McCartney-Snape sues Howard Whelan in respect of those portions of the broadcast attributed to him. 229 In paragraph 29 Griffith complains that that portion of the telecast attributed to Rosemary Whelan conveyed the following imputations defamatory of him: a) Jeremy Griffith unreasonably demands of his followers such a high level of loyalty to him that he causes their families to be seriously damaged; b) Jeremy Griffith is dangerous in that he seeks to manipulate the thinking of his followers so that they cannot think for themselves. 230 In paragraph 32 McCartney-Snape asserts that that portion of the telecast attributed to Howard Whelan carried the following imputations defamatory of him: a) Tim McCartney-Snape has betrayed his responsibility as an Australian hero by seeking to recruit young people for Jeremy Griffith through his speeches to school students; b) Tim McCartney-Snape has behaved disgracefully by trying at every opportunity to convert school students to the ideas of Jeremy Griffith; c) Tim McCartney-Snape has behaved disgracefully by trying at every opportunity to lure young people into a dangerous cult which poses a threat to the community. 231 Rosemary Whelan and Howard Whelan filed notices of objection to those parts of the statement of claim in which Griffith and McCarney-Snape seek to make them liable for those portions of the telecast in which they were seen and heard. 232 Rosemary Whelan contends that, when the words attributed to her are segregated from the balance of the programme, neither of these imputations is capable of being conveyed. 233 Given the manner in which these plaintiffs seek to make these defendants liable, I think the segregation approach is correct. The Whelans cannot be made liable for what was published by the ABC, or by other individuals who participated in the programme. 234 The argument that the portions of the telecast spoken by Rosemary Whelan are incapable of conveying either imputation pleaded in paragraph 29 is correct. Although Ms Whelan said that Griffith was keen for her to embrace his philosophy, to devote herself fully to the cause, and that he demanded excessive loyalty, she made no reference whatever to damage to families; nor to attempts by Griffith to manipulate the thinking of his followers so that they did not think for themselves. There is nothing in the words that could, without strain, convey those meanings. 235 Imputations 29(a) and (b) will be struck out.

imputation 32(a) 236 Imputation 32(a) is in the same terms as imputation 22(b), which I have already held to be imprecise (although that is not the objection now taken). If it is imprecise when pleaded in one part of the statement of claim, it does lose its imprecision because the point is taken in relation to another. 237 More importantly though, Mr Whelan contends that the imputation, as framed, is not capable of being conveyed by the words attributed to him. Having regard to the opinions I have formed concerning precision, I declined earlier to rule on the capacity question. I do think I can do so again. In my opinion Mr Whelan is correct in his challenge. There is nothing in what he said that could reasonably be taken to convey imputation 32(a). It will be struck out.

imputation 32(b) 238 This imputation is framed in identical terms to imputation 22(c) which, curiously enough, was withdrawn. A glance at the statements made by Mr Whelan demonstrates why this course was adopted. Nothing Mr Whelan said could convey this imputation. It will be struck out.

imputation 32(c) 239 This imputation is in the same terms as imputation 22(d). That imputation was struck out for incapacity. Plainly, the same result must here eventuate. If the broader publication, that is the whole of the programme, is incapable of conveying the imputation, then, obviously, the narrower portion, that attributed to Mr Whelan, is at least equally incapable. Imputation (32c) will be struck out.

the fifth matter complained of 240 The fifth matter complained of was broadcast the following day, 25 April, and consisted of a radio interview of Millikan by a Peter Thompson. In an introductory passage Thompson referred to the Four Corners programme, and to Griffith, saying: "He says he's mentioned in the Bible"

and said that Griffith had a following of about one hundred and fifty young Australians; that Griffith was supported publicly by McCartney-Snape, whom he described as "national hero of course, conqueror of Mount Everest twice". He mentioned the Belfield family, and said the Foundation had been very distressed about the programme "in advance" and had tried to persuade the ABC not to broadcast it. 241 Millikan recounted meeting McCartney-Snape in about 1992, when Griffith's book was published. He said that McCartney-Snape was "captured" and "a convert". He referred to the disturbing and damaging effect on some people of becoming involved with Griffith and said that, in some instances, it was "tearing families apart".

the imputations pleaded in paragraphs 37, 38 and 39 242 Griffith, the Foundation, and McCartney-Snape have each sued the ABC and Millikan on this publication. In paragraph 37 Griffith claims that it conveyed a single imputation defamatory of him: 37(a) Jeremy Griffith is the leader of an organisation which tears families apart. 243 By para 38 the Foundation claims that the broadcast conveyed a single imputation defamatory of it, as follows: 38(a) The FHA is an organisation which profoundly damages its members by tearing their families apart. 244 By para 39 McCartney-Snape claims that the broadcast conveyed two imputations defamatory of him. They are: 39(a) Tim McCartney-Snape has willingly allowed himself to be used as the public face of an organisation which he knows to be socially destructive; 39(b) Tim McCartney-Snape is so foolish that he has allowed himself to be duped into believing the ludicrous ideas of Jeremy Griffith.

imputation 37(a) 245 Imputation 37(a) is challenged as being incapable of arising from the broadcast which constitutes the fifth matter complained of. There are two components to this imputation - that Griffith is the leader of an organisation, and that the organisation is one which tears families apart. The latter emerges directly from something said by Millikan - that for some of those involved the experience was "profoundly disturbing, profoundly damaging". He added: "As we saw last night it is tearing families apart." 246 In the earlier part of the interview, the subject of Griffith and his philosophy was introduced and he was said to have a following of about 150 young Australians. He was referred to as "the self-styled prophet", and the Foundation was referred to as "his Foundation for Humanity's Adulthood". 247 On behalf of the defendants it was argued that, on proper analysis, what was said by Millikan was that it was the experience of living in a group such as the Foundation, and not the Foundation itself, which is tearing families apart. Although this argument was unattractive at first, it has more substance than initially appears. What Millikan said was: "Well, I think for some people live within these groups quite quite happily. I think they become enlivened and sort of enriched but for other people it's profoundly disturbing, profoundly damaging and as we saw last night it is tearing families apart." 248 However, on balance, I am satisfied that the final two clauses are capable of being read as referring either to the Foundation, or to the experience of living in a group such as the Foundation. That is sufficient to enable the imputation to go to the jury. In any event, I am of the view that the defendants' formulation may require an unduly literal construction of the passage. Imputation 37(a) will be allowed to stand.

imputation 38(a) 249 Imputation 38(a) was also challenged on the ground of asserted incapacity. In this respect, in my opinion, the defendants are on firmer ground. While there is the clearest statement that the families of Foundation members are damaged by reason of membership of the Foundation, there is nothing to suggest that the members themselves are damaged, whether by the Foundation and its teachings, or (as stated in the imputation) by the fact that their families are torn apart. Imputation 38(a) will be struck out.

imputations 39(a) and (b) 250 Imputation 39(a) is in similar, though not identical terms, to imputation 17(c). Imputation 39(b) is in identical terms to imputation 22(h). Each was challenged on the basis of imprecision and ambiguity, but, for reasons given in relation to the earlier imputations, I reject that submission. 251 Each imputation was also challenged on the basis of asserted incapacity. In relation to imputation 39(a) this submission is made out. There is not the slightest suggestion in the broadcast that McCartney-Snape knew, or even believed, the Foundation to be "socially destructive"; the message is the very converse, that McCartney-Snape was "captured" and "a convert". 252 Imputation 39(a) will be struck out as being incapable of being conveyed by the matter complained of. 253 Nor is imputation 39(b) capable of being conveyed by the fifth matter complained of. There is no suggestion in that material that McCartney-Snape had "allowed himself to be duped into believing" Griffith's ideas and philosophies. Accordingly, imputation 39(b) will also be struck out.

the sixth matter complained of: 254 The sixth matter complained of was also broadcast on ABC Radio National on 25 April. The transcript notes that the broadcast consisted of an interview with Gemmell, Phil McSharry and Rachel Kohn (the sixth defendant). The interviewer was Geraldine Doogue. 255 Ms Doogue introduced the segment of the programme by mentioning the previous evening's Four Corners programme. She used the word "cult". Gemmell was presented as a twenty-three year old member of the Foundation who had been involved with it for four years and was a law student. Mr McSharry was introduced as the father of a participant who was supportive of the Foundation. Kohn was introduced as the presenter of Radio National's Religion Report and a specialist in the formation and rationale of cults. Kohn is recorded as saying: "I think the Foundation for Humanity's Adulthood if it's not already a cult it's certainly well on its way to being one and it's partly because it undertakes certain activities which ensure that the leader has absolute control over his followers. I think one of the most important aspects is that the leader controls the individual's environment, psychological environment, places an inordinate demand on them, makes them feel powerless and does so in a fairly authoritarian setting … The group is probably well on its way to being one [a cult]. The setting for example an isolated one, the constant barrage of a one way communication. The highly emotional leader. One of the things that came across very strongly last night in the Four Corners programme is that Jeremy Griffith is a very driven, very self-convinced and highly emotional person who really cannot be engaged intellectually, partly because he has a closed system of logic. There is no, there is no other truth when you've got the absolute truth and that's perhaps the greatest danger in groups like this. There is no other valid form of information …" 256 Ms Doogue then spoke to Gemmell who, in short, defended Griffith and the Foundation; she spoke to Mr McSharry who adopted a similar stance. She then took some calls from listeners.

the imputations pleaded in paragraphs 41, 42, 43 and 45 257 Griffith, the Foundation, and Gemmell have each sued the ABC claiming that portions of the broadcast defamed them. In paragraph 41 Griffith claims that three imputations which were defamatory of him were conveyed. These are: 41(a) Jeremy Griffith makes excessive demands on his followers which deprive them of their freedom; 41(b) Jeremy Griffith promotes ideas which have no intellectual credibility; 41(c) Jeremy Griffith is the leader of a dangerous cult which poses a threat to the community. 258 In paragraph 42 the Foundation claims that two imputations defamatory of it were conveyed. These are: 42(a) The FHA is an organisation which seeks to maintain excessive control over its members; 42(b) The FHA is a dangerous cult which poses a threat to the community. 259 By paragraph 43 Gemmell complains that the following defamatory imputation was conveyed of him: 43(a) Angus Gemmell is a member of a dangerous cult which poses a threat to the community. 260 Additionally, Griffith has sued Kohn, claiming in paragraph 45 that the words attributed to her conveyed a single imputation defamatory of him. That imputation is: 45(a) Jeremy Griffith is the leader of a dangerous cult which poses a threat to the community.

imputation 41(a) 261 Imputation 41(a) was challenged on a number of bases, including its form and asserted imprecision and ambiguity. This attack was supported by the rhetorical question asking whether it is asserted that Griffith makes the demands intending to deprive his followers of his freedom, or innocently of that intention. Yet again, this argument is misconceived. It is not for the plaintiff to refine what has been said by the defendant, or to explain or clarify anything that is unclear in the original publication. If the matter complained of is reasonably capable of conveying this imputation, then the defendant/s must live with what it/he/she/they has or have published. 262 Further, it was contended that if the imputation were intended to assert that Griffith made the demands without intending to deprive his followers of their freedom, then it contained no defamatory meaning. This also must be rejected. Even if what was published was that, unintentionally, Griffith made excessive demands depriving his followers of their freedom, that would be capable of being defamatory. 263 The last challenge to this imputation was on the ground of asserted incapacity. In one passage Kohn said: "… the leader controls the individual's environment, social environment, psychological environment, places an inordinate demand on them, makes them feel powerless and does so in a fairly authoritarian setting." 264 This is sufficient in my opinion to convey the imputation as framed. Imputation 41(a) will be allowed to stand.

imputation 41(b) 265 Imputation 41(b) was challenged on the basis, initially, that it was bad in form as being incapable of conveying any meaning defamatory of Griffith. In my opinion this submission is misconceived. Yet again, the challenge was supported by a rhetorical inquiry as to whether it was asserted that he promoted such ideas knowingly or fraudulently; that is, to my mind, immaterial. In my opinion to say of somebody that he promotes ideas having no intellectual credibility is capable of being defamatory of that person. It was also argued that, for the same reasons, the imputation is ambiguous and uncertain, but again, I reject this proposition. There is no ambiguity in the imputation as framed. 266 Finally, it was argued that the imputation was not reasonably capable of being conveyed by the sixth matter complained of. 267 In my opinion there is substance in this submission. In referring to the characteristics of leaders of cults, Kohn said that they had had no credibility in the wider world, but this was not only not a specific reference to Griffith, but not a reference to the ideas he is said to promote. It was also said that Griffith could not be engaged intellectually, in part because he had "a closed system of logic". However, this all falls far short of asserting that the ideas promoted by Griffith lacked intellectual credibility. In my opinion the broadcast was not capable of conveying imputation 41(b) and it will be struck out.

imputation 41(c) 268 The only challenge made to imputation 41(c) was on the basis of capacity. Again, I am persuaded that this submission is made good. The programme did make it clear that Griffith is the leader of the Foundation, and contained a clear suggestion that it is a cult, or "certainly well on its way to being one"; and it contained suggestions of undue influence by Griffith upon the members of the Foundation. However, in this programme (as distinct from the Four Corners Programme) it is not possible to discern an imputation that the Foundation is "dangerous" or "a threat to the community". Imputation 41(c) will be struck out.

imputation 42(a) 269 The imputations pleaded in paragraph 42 concern the Foundation. Imputation 42(a) was challenged as bad in form, the basis being the absence of any indication of whether the Foundation achieved or has achieved the control which, the imputation claims, it "seeks" to maintain. This submission is rejected. For reasons given earlier, it is not necessary for a plaintiff to delineate what lies behind a defamatory imputation conveyed by a defendant. 270 It was also argued that imputation 42(a) is ambiguous, as not defining with precision what is meant by "seeks to maintain excessive control". I will not strike out the imputation on that basis; I am satisfied that it is unambiguous and clear. 271 However, it was also argued that the imputation was not reasonably capable of being conveyed. 272 By this argument the defendants seek to draw a distinction between what was stated about the Foundation, and what was stated about Griffith. There is no doubt that, in a passage attributed to Kohn, the assertion was made that "the leader has absolute control over his followers" and "places an inordinate demand on them". The question is whether, within the matter complained of, Griffith and the Foundation are treated as so inseparable that what is said of Griffith is also said of the Foundation or may reasonably be interpreted as being said of the Foundation. 273 Although I have hesitated over this conclusion, I have come to the view that in the passage attributed to Kohn, she does draw a sufficient distinction between the Foundation and Griffith as to separate what she says of Griffith from what she says of the Foundation. The "absolute control over his followers" to which she referred was said to lie in "the leader" - Griffith - and not in the Foundation. Accordingly, I am satisfied that the matter complained of is incapable of conveying imputation 42 (a), and it will be struck out.

imputation 42(b) 274 Imputation 42(b) was challenged on the ground of incapacity. For the reasons I have given in relation to imputation 41(c), I am satisfied that this imputation is not capable of being conveyed and it, too, will be struck out.

imputation 43(a) 275 Imputation 43(c) was similarly challenged, and meets the same fate. It depends upon a conclusion that the matter complained of is capable of conveying the imputation that the Foundation is a dangerous cult which poses a threat to the community, and I have already held that the sixth matter complained of is not so capable. 276 Imputation 43(a) was also challenged as bad in form and imprecise and being incapable of defaming Gemmell. I reject each of these submissions. They echo submissions which have earlier been made and dealt with and it is unnecessary further to explain my reasons. Imputation 43(a) will be struck out on incapacity grounds.

imputation 45(a) 277 In paragraph 45 Griffith sues Kohn as a result of statements attributed to her. Once again, the imputation depends upon the matter complained of conveying the message that the Foundation is a dangerous cult which poses a threat to the community, and for reasons already explained, it is not so capable. Imputation 45(a) will be struck out.

the seventh matter complained of: 278 The seventh matter complained of was published on 26 April in a newspaper, the Wellington Dominion, circulating in New Zealand. 279 The article appeared under the headline "Tiger hunting prophet targets schools" and a sub heading "Australia Watch". It opened with a reference to Griffith, referred to as "the prophet of Oz". Griffith is described as: "A self proclaimed guru ready to usher young Australians and New Zealanders into the new world." 280 He was reported to claim to have discovered the answers of the fundamental problem of the human condition (human evil), and to have attracted scathing criticism from the scientific world. The author wrote: "But to Griffith, public ridicule is all part and parcel of being a prophet. Didn't Jesus Christ go unrecognised?" 281 Griffith was quoted as having said: "I have reconciled good and evil, God and man, women and men, young and old, religion and science, emotion and reason, left wing and right wing, idealism and realism, blacks and whites, country and city, yin and yang … brought peace to the human situation or condition." 282 Reference was also made to McCartney-Snape, who was described as Griffith's "number one disciple" and "something of a hero in Australia". Of him, it was said: "Now he does the rounds of Rotary Clubs and schools as an inspirational guest speaker. Students and teachers think they are going to get the full bottle on climbing Mount Everest. What they don't expect is a lecture on McCartney-Snape's 'prophet', Jeremy Griffith". 283 There was reference to "some strange aspects to the Griffith philosophy". It was said that "he equates sex with rape". 284 Finally, it was said that on the bush camps the women do all the food preparation, cooking, serving and washing up - in deference to their nurturing natures. Men were described as hanging around the campfire drinking beer and swearing a lot, while the women look after them. The author concluded with the observation: "Which may be what this religion is mostly about anyway. Perpetuating the patriarchy." 285 Griffith and McCartney-Snape and the Foundation have sued the ABC and Millikan in relation to this publication. The circumstances in which they seek to make the ABC and Millikan liable for publication in a foreign newspaper is one of the matters to be considered on the various objections raised on behalf of the defendants. This will be canvassed below.

the imputations pleaded in paragraphs 47, 48 and 49 286 By paragraph 47 of the statement of claim Griffith asserts that the publication conveyed three imputations defamatory of him. They are: 47(a) (withdrawn) 47(b) Jeremy Griffith is the founder and leader of a dangerous cult which poses a threat to the community; 47(c) Jeremy Griffith is a male chauvinist; 47(d) Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community. 287 By paragraph 48 the Foundation complains that the publication conveyed a single imputation defamatory of it, in the following terms: 48(a) The FHA is a dangerous cult which poses a threat to the community. 288 By paragraph 49 McCartney-Snape claims that publication conveyed three imputations defamatory of him. They are as follows: 49(a) Tim McCartney-Snape deceives schools who invite him to talk to students about climbing Mount Everest by exploiting the occasion to promote Jeremy Griffith and his teachings; 49(b) Tim McCartney-Snape has betrayed his responsibility as an Australian hero by seeking to recruit young people for Jeremy Griffith through his speeches to school students; 49(c) Tim McCartney-Snape has willingly allowed himself to be used as the public face of an organisation which he knows to be socially destructive.

imputation 47(b) 289 Imputation 47(b) is challenged on the basis of the capacity of the matter complained of to convey it. Once again, the imputation depends upon there being sufficient in the matter complained of to suggest that the Foundation is a dangerous cult which poses a threat to the community. There is nothing in the matter complained of to support the imputation. There is a good deal of reference to Griffith, and to criticism of his work, and there is a brief reference to the Foundation. It is not directly referred to as a "cult"; there is an indirect suggestion that it is a cult, in a paragraph in which it is stated that at least one family had employed the services of a "cult expert" in an attempt to extricate their son from the grasp of "his new found philosophy". But, even if it could be said that this is sufficient to identify the Foundation as a cult, there is nothing that suggests that it is dangerous or poses a threat to the community. Imputation 47(b) will be struck out.

imputation 47(c) 290 Imputation 47(c) was also challenged as being incapable of being conveyed by the publication. Neither the phrase "male chauvinist" nor the word "chauvinist" is used in the publication, but this, of course, would not alone be sufficient to warrant the conclusion that such an imputation was not conveyed. In support of the imputation, counsel for Griffith referred only to two consecutive paragraphs in the publication. The first described some "strange aspects" of Griffith's philosophy, he being said to equate sex with rape. This is not indicative of male chauvinism in its commonly accepted meaning. In the final paragraph of the matter complained of the women are described as doing all the food preparation, cooking serving and washing up, and the men as indolently drinking beer, swearing and being looked after by the women. In the last sentence an accusation is made that Griffith's "religion" may really be about "perpetuating the patriarchy". 291 Given that Griffith was earlier referred to as a "self proclaimed guru" and was portrayed as a leader, it would not be unreasonable for a jury to conclude that the patterns of behaviour described in the last paragraph reflect Griffith's attitude. If this is so, then it would be not unreasonable for a jury further to conclude that Griffith's attitudes include the stereotyping of male and female roles. This is sufficient to amount to a charge that he is a male chauvinist. Accordingly, imputation 47(c) will be allowed to stand.

imputation 47(d) 292 Imputation 47(d) is said to be imprecise, ambiguous and bad in form. Reasons advanced were the same as those advanced in relation to imputations 20(g) and (h). They must meet the same fate. The imputations are not imprecise, ambiguous or bad in form. 293 Further, it was argued that imputation 47(d) is not reasonably capable of arising from this publication. This submission has substance. Only two paragraphs were cited by Griffith to support the imputation. The first of these contained an assertion that, having spent thirteen years writing his "theories", and being unable to find a publisher, he had self-published his book. The author wrote: "I tried to read it once, but it is rather muddled and two tortuous to encourage perseverance." 294 She went on to write: "His writings have attracted scathing criticism from the scientific world from which he has sought endorsement. Prominent Australian biologist and writer Tim Flannery described them as low on facts, big on interpretation and distinctly unimpressive." 295 The personal comment made by the author of the article has no bearing on whether the imputation is capable of being conveyed. There is nothing to suggest that she has scientific qualifications or is a member of the scientific community. The report that his work has been criticised by "the scientific world", and the reference to a particular scientist, is insufficient to suggest that Griffith's work lacks any support from the scientific community. What was published is no more than a report that some scientists - one in particular - were unimpressed by his work. Imputation 47(d) is incapable of being conveyed by the publication and will be struck out.

imputation 48(a) 296 Imputation 48(a) was similarly challenged as being incapable of arising. Again, I am of the view that the challenge is made good. The only paragraph in the matter complained of which could remotely give rise to the imputation is the paragraph which asserts that at least one family employed the services of a cult expert, and another family told how they had lost a son and a daughter to the cult. This is insufficient to convey the imputation either that the Foundation is "a cult" or that it is "dangerous" or that it "poses a threat to the community". This imputation will be struck out.

the paragraph 49 imputations 297 Each of the imputations pleaded in paragraph 49 is attacked as bad in form and ambiguous. The imputations are in identical terms, respectively, to imputations 17(a) and 22(a) (imputation 49(a)); imputation 22(b) (imputation 49(b)); and imputations 17(c) and 22(e) (imputation 49(c)). The challenges to form and on the basis of ambiguity fall to be determined in the same manner as the identical challenges to these earlier imputations. Imputation 49(a) is neither ambiguous nor bad in form. Likewise imputation 49(c) is not ambiguous or imprecise. However, for the same reasons that imputation 22(b) is to be struck out, imputation 49(b) will similarly be struck out. 298 It was also submitted that none of these imputations is reasonably capable of arising from the newspaper article.

imputation 49(a) 299 The submission fails in relation to imputation 49(a). It is capable of being conveyed by the three sentences: "Now he [McCartney-Snape] does the rounds of Rotary Clubs and schools as an inspirational guest speaker. Students and teachers think they are going to get the full bottle on climbing Mount Everest. What they don't expect is a lecture on McCartney-Snape's 'prophet', Jeremy Griffith." 300 I will not strike out imputation 49(a) on the ground of incapacity.

imputations 49(b) and (c) 301 The position is, however, different in relation to imputations 49(b) and 49(c). As to imputation 49(b), although there is a suggestion that McCartney-Snape behaves in a somewhat deceptive fashion, betrayal of any responsibility he might have as an Australian hero is absent from the matter complained of. Similarly, and in parallel with the reasoning expressed in relation to imputation 17(b) above, there is no suggestion that McCartney-Snape knows the Foundation to be socially destructive; to the contrary, as before, he is portrayed as being a believing adherent of the Foundation. Imputations 49 (b) and (c) will be struck out.

the eighth matter complained of 302 The eighth matter complained of was a letter written by the third defendant, Robins, to the North Shore Times, a newspaper, and published on 10 May 1995. After referring to Griffith, and the Four Corners documentary, McCartney-Snape, and Griffith's book, Robins wrote: "The Foundation for Humanities(sic) Adulthood seeks to spread the word of Griffith, who by his own admission is a prophet, and of his followers that he is greater than Christ - a new Messiah who alone has the words of salvation." 303 Robins claimed that Griffith's theories were not accepted by any other scientist and said that Griffith uses the Bible to establish his belief in himself, succeeding in doing so only by taking selected passages out of context. Robins went on to write: "His teaching has divided families, caused great pain and stress and has set up an elitist hierarchy which seeks ultimately to create a new world in which they will be top of the pack. An alert observer will detect that within Griffith's methods lie the classical features of a cult." 304 Robins then listed six features which he claimed to be typical of cults. He referred to "the forces he is releasing", and wrote: "They are forces he will not be able to control; forces the same as those released by Jim Jones before he led 913 of his followers to commit suicide in Guyana; forces that resulted in David Koresh and his followers self-destructing in Waco."

He went on: "Griffith speaks of his followers having to 'sacrifice their life'. Parents are concerned that their children may be consumed by this as they describe their returning children 'as if there is just a shell there'. There is no freedom in this brave new world promoted by Jeremy Griffith." 305 Robins concluded by issuing a caution to young people approached by "one of the servants" of Griffith. He signed the letter as "Rev Lewis M Robins" of St Luke's, Roseville.

the imputations pleaded in paragraphs 53, 54, 55, 56, 57, 58 and 59 306 By paragraph 53 Griffith complains that the letter conveyed nine imputations defamatory of him. They are: 53(a) Jeremy Griffith knowingly makes false claims to be greater than Jesus Christ; 53(b) Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ; 53(c) Jeremy Griffith attempts to indoctrinate young people by instructing them in a manner intended to manipulate and control their minds; 53(d) (withdrawn) 53(e) Jeremy Griffith promotes his ideas as scientific, when in fact they have no basis in science; 53(f) Jeremy Griffith, who holds himself as a scientist, publishes work of such a poor standard that it has no support from the scientific community; 53(g) Jeremy Griffith is a dangerous lunatic; 53(h) Jeremy Griffith is the founder and leader of a dangerous cult which preys on young people; 53(i) Jeremy Griffith is the founder and leader of a dangerous cult which poses a threat to the community; 53(j) (withdrawn) 53(k) Jeremy Griffith unreasonably demands of his followers such a high level of loyalty to him that he causes their families to be seriously damaged. 307 By paragraph 54 Griffith pleads a further defamatory imputation as follows: 54(a) Jeremy Griffith teaches ideas to young people which are likely to lead some of them to commit suicide.

The imputation as presently pleaded is an amendment to that earlier pleaded. 308 By paragraph 55 the Foundation complains that the letter conveyed two imputations which defamed it. They are: 55(a) (withdrawn) 55(b) The FHA is a dangerous cult which poses a threat to the community; 55(c) The FHA is an organisation which exerts a harmful and destructive influence on young people. 309 By paragraph 56 the Foundation pleads that two additional defamatory imputations were conveyed. They are: 56(a) The FHA is an organisation which uses a great degree of deception to get young people to join it; 56(b) The FHA is an organisation which should be shunned by parents because it poses a terrible risk to their children. 310 By paragraph 57 McCartney-Snape pleads that the letter conveyed two imputations defamatory of him. They are: 57(a) Tim McCartney-Snape has willingly allowed himself to be used as the public face of an organisation which he knows to be socially destructive; 57(b) Tim McCartney-Snape is a member of a dangerous cult which poses a threat to the community. 311 By paragraph 58 McCartney-Snape, Belfield, "the FHA women" (Armstrong, Fitzgerald, Jones and Rodger), Biggs and Gemmell plead that the letter conveyed one imputation defamatory of each of them, that being: 58(a) Each…is so deluded that he or she believes that Jeremy Griffith is greater than Jesus Christ. 312 In addition, Belfield, Biggs, Gemmell and each of the FHA women plead that the letter conveyed an imputation defamatory of him or her, that being: 58(c) [name] … is a member of a dangerous cult which poses a threat to the community. 313 By paragraph 59 McCartney-Snape, Belfield, Biggs, Gemmell and "the FHA women" plead that the letter conveyed the following two additional defamatory imputations. These are: 59(a) Each of Tim McCartney-Snape, Sam Belfield, John Biggs, Angus Gemmell and the FHA women pose a terrible danger to young people of the North Shore of Sydney; 59(b) Each of Tim McCartney-Snape, Sam Belfield, John Biggs, Angus Gemmell and the FHA women mindlessly follow Jeremy Griffith. 314 By paragraph 60 the plaintiffs assert that publication of the letter was the natural and probable consequence of the publication by the ABC and Millikan of the Four Corners programme thus rendering the ABC and Millikan, in addition to Robins, liable for publication of the letter. 315 Both Robins and the ABC defendants take objections to the imputations pleaded in paragraphs 53 - 59 inclusive. It is not necessary separately to identify the grounds on which the parties put their objections. There is a large degree of commonality between the two; generally speaking if an objection is a good one, it will operate to the benefit of all defendants, even in the event that it has not been taken by that defendant or those defendants. Imputation 53(a) is in identical terms to imputations 14(a) and 20(a); imputation 53(b) replicates imputations 11(a), 14(b) and 20(b); imputation 53(c) replicates imputation 20(e); imputation 53(e) replicates imputation 20(g); imputation 53(f) replicates 20(h) and 47(d); imputation 53(g) replicates imputation 20(k); imputation 53(h) replicates imputation 20(l); imputation 53(i) replicates imputation 20(m) and, with the exception of the words "founder and" imputations 41(c) and 45(a); imputation 53(k) replicates imputations 20(e), 29(a) and 49(b). In as much as the objection taken depends upon form, these imputations must stand or fall with those earlier pleaded in the same or almost the same terms. 316 In addition, all parties challenge the capacity of the publication to convey any of the imputations except imputations 53(c) and 53(h).

imputation 53(a) 317 To support imputation 53(a), counsel for Griffith relies only on a four line sentence which is as follows: "The Foundation for Humanities (sic) Adulthood seeks to spread the word of Griffith, who by his own admission is a prophet, and of his followers that he is greater than Christ - a new Messiah who alone has the words of salvation." 318 Plainly, this sentence is not sufficient to convey the imputation that Griffith himself makes a false claim (however that is interpreted) to be greater than Jesus Christ. Imputation 53(a) will, accordingly, be struck out.

imputation 53(b) 319 Exactly the same passage is relied upon to support imputation 53(b), and it is equally deficient in doing so. Imputation 53(b) will be struck out.

imputation 53(c) 320 No such complaint is made about imputation 53(c), and it will stand.

imputation 53(e) 321 Counsel for Griffith relied also upon that sentence and another, to support imputation 53(e). The additional sentence is: "The theories he proposes, as based upon scientific knowledge, are not accepted by any other scientists. He uses the Bible to establish his belief in himself, although only succeeding in this by taking selected passages out of context." 322 Although the second paragraph is certainly capable of conveying criticism of Griffith's science, I don't think it can be read, by any ordinary reasonable reader, as conveying the imputation that Griffith's ideas have no basis in science. That is different from saying that his theories are not accepted by any other scientists. Accordingly, imputation 53(e) will be struck out.

imputation 53(f) 323 This same paragraph (the second paragraph quoted above) was relied upon on behalf of Griffith to support imputation 53(f). It is insufficient to sustain that imputation. 324 Counsel for the defendants sought to draw a distinction between the publication of work, such as is referred to in the imputation, and the proposal of theories, as referred to in the matter complained of, but I do not find this distinction very persuasive. To propose a theory may also be to publish work, although, when considering the publication of scientific work, one would normally expect this to be in written form and this is not necessarily so with the proposal of theories. There is a distinction between non-acceptance by some other scientists, and the absence of any support at all from the scientific community. It may well be that this is a difference in degree only, but in my view the publication falls short of what is contained in the imputation. Imputation 53(f) will be struck out.

imputation 53(g) 325 There is nothing in Robin's letter which is capable of conveying the imputation that Griffith is a dangerous lunatic. Although there is some reference to the pain and stress his teaching has caused families, the letter does not state or suggest that Griffith is dangerous, nor that he is a lunatic. Imputation 53(g) will be struck out.

imputation 53(h) 326 No complaint is made that imputation 53(h) is incapable of arising from Robin's letter. Imputation 53(h) will stand.

imputation 53(i) 327 The letter contains an unmistakable suggestion that the Foundation is a cult, even giving what is said to be the classical features of a cult. That it is said to be a dangerous cult is to be found in the paragraph which claims that Griffith's teaching has divided families and caused great pain and stress. Even more, the suggestion is made that Griffith is releasing forces that he would be unable to control; and these forces were compared with those that led to the deaths of hundreds of people in two previous group suicides. Of Griffith it was said that he tells his followers they may have to "sacrifice their lives", and the author wrote of the concern experienced by parents of children who become members of the Foundation or the followers of Griffith. The letter concluded by cautioning against becoming involved with Griffith. 328 In my opinion this is sufficient to convey imputation 53(i) and it will be allowed to stand.

imputation 54(a) 329 The principal objection to imputation 54(a) is as to form. However, in each case the objection was taken prior to the amendment of the imputation. There has really been no argument directed to the imputation as amended, in its current form.

imputations 55(b) and (c) 330 Imputations 55(b) and 55(c) are in the same or similar terms to imputations 12(b), 16(a) and 42(b); and 12(a) (respectively imputation 55(e) and imputation 55(b). For the various reasons given, these imputations are not deficient in form. 331 It was contended that neither imputation is capable of arising from the letter. In my opinion either imputation is capable of arising; the references to the division of families, the features of a cult, and particularly to mass suicides that were said to have occurred following involvement in similar cults, are sufficient to give rise to one or other of the imputations. 332 However, I am satisfied that the two imputations do not differ in substance and it will be necessary for the Foundation to elect on which it wishes to proceed.

imputation 56(a) 333 The argument about 56(a) was that the letter was incapable of conveying it. This cannot be accepted. In writing the letter, Robins observed that Griffith's methods had the classical features of a cult, one of which, he said, was the use of a great degree of deception in its recruitment of members. It does not take a logician to infer that Robins was saying that Griffith (through his Foundation) used such tactics. This, again, depends upon a reader inferring that there is considerable overlap between Griffith and the Foundation, but this is, in my opinion, available within the letter. Imputation 56(a) will stand.

imputation 56(b) 334 Similarly, 56(b) will stand. The passages concerning the division of families and pain and stress, that Griffith demands that his followers sacrifice their lives, concern expressed by parents, and the final caution, add up to sufficient to convey the imputation. Imputation 56(b) will stand.

imputation 57(a) 335 Imputation 57(a) will be struck out, for the same reason as imputations 17(c), 22(e), 39(a) and 49(c) were struck out. There is no suggestion in the letter that McCartney-Snape knew or knows the Foundation to be socially destructive. On the contrary, to the extent that anything is said about McCartney-Snape, it implies that he has faith in the Foundation. The publication is incapable of conveying the imputation.

imputation 57(b) 336 Imputation 57(b) is capable of being conveyed if the letter is capable of suggesting that McCartney-Snape was a member of the Foundation. Since he is described as "his (that is, Griffith's) prime spokesman", and since it is said that the Foundation seeks to spread Griffith's word, I think a reasonable reader could infer that McCartney-Snape is a member of the Foundation. I have already held that the letter is capable of conveying the imputation that the Foundation is a dangerous cult which poses a threat to the community. Accordingly, imputation 57(b) will stand. 337 Contrary to the defendants' contention, there is no lack of precision in the framing of the imputation.

the paragraph 58 imputations 338 In relation to the imputations pleaded in paragraph 58, a similar complaint is made as was made in relation to imputations pleaded in paragraph 24. This complaint should be treated in the same way. In my view the pleading is clear and there is no prejudice to the defendants in meeting it. 339 A further complaint was made that the letter was not reasonably capable of conveying any of the imputations pleaded. 340 In seeking to support imputation 58(a), the plaintiffs cite only the sentence which asserts Griffith's own "admission" that he is a prophet, and that his followers believe that he is greater than Christ - a new Messiah who alone has the words of salvation. 341 Having regard to the conclusion I have reached in relation to imputation 25(b) above, I must conclude in relation to this imputation, that that passage is sufficient to convey the imputation. Imputation 58(a) will be allowed to stand. 342 For reasons given in relation to imputation 25(b) above, imputation 58(c) is also capable of being conveyed, and will be allowed to stand.

imputations 59(a) and (b) 343 The letter is incapable of conveying imputation 59(a) of any of the named plaintiffs. There is no suggestion that any of the individuals named poses "a terrible danger" to anybody, let alone to "young people of the North Shore of Sydney". The letter began when the author expressed his wish to bring the subject matter of the letter to the attention of young people of the North Shore, proceeded to refer to family disruption, and ended with a caution to recipients who might be approached by "one of the servants of Jeremy Griffith". Of the plaintiffs who sue on this imputation only McCartney-Snape and Biggs were named. No particulars of identification in relation to any other plaintiff have been provided. 344 The references to McCartney-Snape and Biggs do not suggest that they pose any kind of danger to anybody. Rather, the features of a cult that were listed, reference was made to Griffith, and it was asserted that "any brief contact" with McCartney-Snape, Biggs or any other follower "will serve to display the reverence they have for him". This is insufficient to come anywhere near conveying the imputation pleaded. 345 The same applies to imputation 59(b). Certainly, McCartney-Snape and Biggs were identified as followers of Griffith, but it was not suggested that their devotion is "mindless". The letter is not capable of conveying either imputation. Both will be struck out.

the ninth matter complained of 346 The ninth matter complained of is a television programme called "Backchat", which is said to deal with "Four Corners, The Prophet of Oz" - i.e. the fourth matter complained of. It was broadcast on 16 May 1995. The transcript makes it plain that the programme, which is short (only six minutes), is one of review and viewer responses to past telecasts. It was introduced by Donna Meiklejohn, who commented on the volume of mail received following "The Prophet of Oz". Some extracts of the documentary were shown, including a short excerpt from the interview with Rosemary Whelan. While the excerpts from "The Prophet of Oz" appeared on the screen, sub titles, apparently quotes of viewer comments, also appeared, and these were simultaneously read by a disembodied voice. The comments attributed to viewers include the following: "How dare an idiot like this presume to call himself a god." … "Haven't our youth enough devils in their lives without letting a fool like this loose in our schools? As for Tim McCartney-Snape, I think the hypothermia has knocked his senses around." … "Perhaps the most galling aspect was the way in which, in accordance with his ideas, the female followers assumed the role of servants, waiting on the male followers. (Ostensibly because, as one female servant put it, the males were having a bit of an ego problem.)" … "However, I do have some questions. Are the young people suffering from the combined effects of arrested adolescence and surfeit of privilege? Is Griffith, an unappealing Messiah, pulling the old trick almost guaranteed to appeal to the young called 'Those who are not with me or against me are either stupid or old?'" 347 There were also other comments, including some critical of the programme and supportive either of Griffith or McCartney-Snape.

the imputations pleaded in paragraphs 62, 63 and 64 348 Griffith, Jones and McCartney-Snape sue the ABC and Millikan in respect of this programme. In paragraph 62 Griffith claims that three imputations defamatory of him are conveyed. They are: 62(a) Jeremy Griffith is a dangerous lunatic; 62(b) Jeremy Griffith is responsible for destroying families; 62(c) Jeremy Griffith is a male chauvinist in that he casts women in a subservient role. 349 In paragraph 63 Jones complains that the telecast conveyed a single imputation defamatory of her, pleaded in the following terms: 63(a) Lee Jones is so foolish that she has willingly accepted a status which is inferior and subservient to men. 350 By paragraph 64 McCartney-Snape claims that the programme conveyed three imputations defamatory of him, as follows: 64(a) Tim McCartney-Snape has behaved disgracefully by promoting a deluded lunatic in schools; 64(b) Tim McCartney-Snape has willingly allowed himself to be used as the public face of an organisation which he knows to be socially destructive; 64(c) Tim McCartney-Snape is so foolish that he has allowed himself to be duped into believing the ludicrous ideas of Jeremy Griffith.

imputation 62(a) 351 Imputation 62(a) is challenged on the basis that it is not reasonably capable of arising from the matter complained of. Examination of the extracts upon which Griffith relies upon to support the imputation show that there is substance in this submission. At one point Griffith was described by one of the viewer commentators as "that fanatic"; and at another stage as "an idiot"; and another as "a fool". Some of the footage from the Four Corners programme showing Griffith delivering less than rational speeches were shown, and while these might be capable of portraying him as irrational, they do not portray him as "a dangerous lunatic". Imputation 62(a) will be struck out.

imputation 62(b) 352 It was argued that imputation 62(b) is imprecise and bad in form, again because it fails to specify in what way Griffith is said to be responsible for destroying families. Once again, the imputation cannot be bad in form because it does not provide more precision than the publication from which it is said to be drawn. In a passage attributed to Millikan, an excerpt from the Four Corners programme, the following appears: "While they are close to the prophet, life is filled with promise and excitement, but the price is the ruin of families, cultural isolation and in the end the terrible possibility that Griffith may in fact be wrong." 353 It will be seen that extracts such as this do not specify, as it is suggested the plaintiff should specify, the manner in which Griffith is said to be responsible for the destruction of families. I will not strike out imputation 62(b) on this basis. 354 It was also argued that the matter complained of is incapable of conveying the imputation, but, again, reference to the extract above is sufficient to demonstrate its capacity. Imputation 62(b) will stand.

imputation 62(c) 355 Imputation 62(c) was challenged on the ground of capacity. True it is, that the term "male chauvinist" is not used in the broadcast. However, there is a good deal of reference to Griffith's alleged treatment of women. One commentator remarked upon his casting women in a subservient role to men. Millikan's comment from the Four Corners programme concerning the role of cooking, cleaning and serving assigned to women was replayed, and a number of comments were made. In my opinion that passage attributed to Millikan is sufficient to enable the imputation to be conveyed. Imputation 62(c) will be allowed to stand.

imputation 63(a) 356 Imputation 63(a) was challenged, on the ground of ambiguity and imprecision, but that submission is rejected for reasons given in relation to imputation 22(h). It was also argued that the imputation is incapable of being conveyed by the telecast. It is to be noted that Jones was not named in this programme and no particulars of identification has been provided. Unless such particulars are provided, this imputation will be struck out for that reason alone. 357 However, assuming that proper particulars of identification may be given, I have concluded that the imputation is capable of being conveyed. A commentator is quoted as saying: "…the female followers assumed the role of servants, waiting on the male followers." 358 A person, who may have been Jones, was depicted on the screen saying that there was a lot to do because men were tied up with their egos and women had more freedom to get things done. In my opinion the broadcast falls short of conveying the imputation as framed. The imputation has contained within it a suggestion of permanence, or at least acceptance of a status over a period of time, which goes beyond what is conveyed in the broadcast, which has more of a sense of a temporary situation intended to accommodate a short term need. Imputation 63(a) will be struck out.

imputation 64(a) 359 It was argued that imputation 64(a) is imprecise and ambiguous. I do not accept this. The imputation states clearly what it is intended to state. 360 It was also argued that this imputation is incapable of being conveyed by the programme. In this respect the defendants are on much stronger ground. There were suggestions, in the comments attributed to viewers, that McCartney-Snape was misguided, and even that his rationality had been compromised by his mountaineering; and there was some reference to the earlier footage showing McCartney-Snape in his role at a high school speech night. However, there was no suggestion that his behaviour was disgraceful or that he promoted a deluded lunatic. Imputation 64(a) will be struck out.

imputations 64(b) and 64(c) 361 Imputations 64(b) and 64(c) were also said to be imprecise and ambiguous. I have already dealt with imputations in identical form and these must be treated in the same way. (See the discussions relating to imputations 17(c), 22(e), 39(a), 49(c) and 57(a); and 22(h) and 39(b).) It was also argued that these imputations were incapable of being conveyed. Imputation 64(b) suffers from the same defect as has been referred to in relation to imputations framed in the same terms said to have arisen from earlier publications. (See reasoning in relation to imputations 17(c), 22(e), 39(a), 49(c) and 57(a).) As with the earlier publication, there is not the slightest hint that McCartney-Snape knows the Foundation to be socially destructive - to the contrary. Imputation 64(b) will, accordingly, be struck out. Imputation 64(c) is in the same terms as imputations 22(h) and 39(b). The same reasoning requires that it also be struck out.

the tenth matter complained of 362 The tenth matter complained of is another newspaper item, published on 19 May 1995 in the Armidale Express, which I assume to be a local newspaper circulating in the Armidale district. It appeared under the headline: "Controversial cult buster David Millikan heading for Armidale." 363 The item was a straightforward report to the effect that Millikan was planning a visit to Armidale which was described as "a preferred centre for [the Foundation]". The report stated that a number of Armidale's young people had joined the Foundation, including a small group of students from the local University. A local chaplain was quoted as saying: "I think that it is most important that [Millikan] come to Armidale and speak more extensively about his understanding of the Foundation for Humanity's Adulthood. I also believe that the issue of cults, sects and new religions is a much wider issue, especially as we live in a 'post-Christian' world."

the imputations pleaded in paragraphs 66 and 67 364 Both Griffith and the Foundation have sued Millikan in respect of this publication, each asserting that it conveyed a single imputation defamatory of him or it. In paragraph 66 Griffith claims that it conveyed the imputation that: 66(a) Jeremy Griffith is the leader of a dangerous cult which poses a threat to the community. 365 In paragraph 67 the Foundation claims that the publication conveyed the following imputation: 67(a) The FHA is a dangerous cult which poses a threat to the community.

the challenges to the imputations 366 The first issue that arises in respect of this publication concerns the assertion of Millikan's responsibility for it. In paragraph 65 an allegation of publication is made in the conventional fashion: that is, what is pleaded is that: "… Millikan published of and concerning the plaintiffs the matter set out in schedule 10 hereto". Publication is then purportedly particularised. It is said that the matter complained of was published in the Armidale Express on 19 May 1995. The following particular then appears: "(iii) It appears from the contents of the tenth matter complained of that David Millikan participated in its publication. Further particulars of publication will be supplied after discovery and interrogatories." 367 One objection that is taken is framed in the following way: "Dr Millikan does not admit publication of the tenth matter complained of which was an article written by Ms Lisa Finnerty and published in the Armidale Express of 19 May 1995, a publication over which Dr Millikan has no control or authority. The plaintiff has alleged as a material fact that Dr Millikan himself published the tenth matter complained of and not that it was a re-publication for which either of the ABC or Dr Millikan were responsible … as a matter of law, such a bare allegation is incapable of amounting to a publication by Dr Millikan for the purposes of the law of defamation and the plaintiffs have not provided any sufficient particulars of the facts, matters or circumstances which established sufficient participation by Dr Millikan in the publication …" 368 It is to be borne in mind that the present matters concern only the adequacy of pleading. I am not at this stage concerned with evidentiary matters. A number of evidentiary matters are asserted in the defendants' submissions. While, having regard to the pleading, and to common sense, it may be that these matters are of some weight, they are not matters which may properly be determinative of the adequacy of the pleading. Paragraph 65 of the statement of claim pleads what is said to be a material fact - that Millikan published the tenth matter complained of - and, no matter how unlikely it may seem that the plaintiffs will be able to support this by evidence, there is nothing defective about the manner of pleading. The particularisation of the publication weakens the plaintiff's pleading, because it tends to substantiate the factual matters asserted by the defendants. However, particulars do not constitute a pleading, and there is nothing defective in the allegation of publication contained in paragraph 65. 369 Accordingly, although as a factual matter, Millikan's argument appears to rest on a very solid foundation indeed, I do not think it affords me the opportunity at this stage to strike out this part of the claim.

imputations 66(a) and 67(a) 370 Imputations 66(a) and 67(a) are in the same terms respectively as imputations 11(d), 20(m), 41(c), 45(a), 47(a) and 53(b) (with, in some cases, the minor discrepancy that the imputation also asserts that he is the founder as well as the leader of a dangerous cult); and imputations 12(b), 21(a) and 42(b). However, the complaint made of each is as to the capacity of the matter complained of to convey the imputations and this of course depends upon the individual content of the publications. Essential to each of the imputations is the notion that the Foundation is a dangerous cult which poses a threat to the community. There is no such statement, direct or indirect, in the item. Certainly there are many references to "cults" or "cult busters", and a reference to the Foundation as the focus for Millikan's attention. However, the item does not go so far as to identify the Foundation either as dangerous or as a threat to the community. Accordingly imputations 66(a) and 67(a) will be struck out.

the eleventh matter complained of 371 The eleventh matter complained of is, again, a publication in the North Shore Times, of 14 June 1995. As originally pleaded, the article appeared under the headline "Minister fears for recruits to 'cult'", and contained an introduction: "A Presbyterian minister claims a religious group has all the hallmarks of a cult. However, the group's leader says the Liberal Party is more of a cult. Reporter Paul Fraser talks to both men." 372 There then followed an article about Robins, who was quoted as referring to "the methods used to attract people" to the Foundation, and as saying that all the signs pointed to the Foundation being a cult. He referred again to signs, such as he had mentioned in his earlier letter (the eighth matter complained of). He was quoted as saying: "These groups target the youth because they are young and idealistic and they know there are problems with the world. Then they offer a solution. He says he has reconciled science and religion and has gone beyond them into knowledge. It's handing over their minds that worries me. Then someone else takes control of their mind and I don't believe they have the right to do that." 373 "He" was a reference to Griffith. Robins was also quoted as having expressed concern about McCartney-Snape's visits to schools, visits Robins said he used to promote Griffith and the Foundation to students. 374 The second part of the article, which was not originally pleaded, but which has, by amendment, been added to the pleading, focused on Griffith. He was quoted as describing Robins' accusations as "cowardly", and saying that: "All of history's great thinkers had faced opposition". 375 Essentially, this part of the article amounts to a detailed rebuttal by Griffith of the criticisms made by Robins.

the imputations pleaded in paragraphs 69, 70, 71 and 72 376 Griffith, the Foundation, and McCartney-Snape all sue Robins in respect of this publication. In paragraph 69 Griffith asserts that the article conveyed three imputations defamatory of him, as follows: 69(a) Jeremy Griffith attempts to indoctrinate young people by instructing them in a manner intended to manipulate and control their minds; 69(b) Jeremy Griffith leads an organisation which preys upon students' vulnerability; 69(c) Jeremy Griffith is the leader of a dangerous cult which poses a threat to the community. 377 In paragraph 70 the Foundation alleges that the publication conveyed two imputations defamatory of it, they being: (a) The FHA is an organisation which exerts a harmful and destructive influence on young people; (b) The FHA is a dangerous cult which poses a threat to the community. 378 In paragraph 71 McCartney-Snape alleges that the publication conveyed two imputations defamatory of him, these being: 71(a) Tim McCartney-Snape deceives schools who invite him to talk to students about climbing by exploiting the occasion to promote Jeremy Griffith and his teachings; 71(b) Tim McCartney-Snape is a member of a dangerous cult which poses a threat to the community. 379 By paragraph 72 McCartney-Snape alleges that a further imputation defamatory of him was conveyed. This is: 72(a) Tim McCartney-Snape preys upon students' vulnerability in order to recruit them to follow Jeremy Griffith.

the liability of the defendant for the publication 380 Further, each of these plaintiffs alleges in paragraph 73 that this publication was the natural and probable consequence of the publication of the Four Corners documentary and that the ABC and Millikan are thereby additionally liable for the imputations pleaded to arise from the eleventh matter complained of. 381 Of this part of the pleading, Robins, the ABC and Millikan all make a similar attack as was made in relation to paragraph 65: that is, that, on its face, the matter complained of was published in a newspaper of which they (it was put by way of submission) had no responsibility or control. The position is different in relation to Robins as distinct from the ABC and Millikan. In paragraph 68, as in paragraph 65, the conventional allegation of publication (by Robins) is made. This is purportedly supported by particulars of publication but these are limited to the identification of the newspaper and the date in which it is said the matter complained of was published. There is no attempt at particularisation of the manner in which Robins is said to be responsible for that publication. 382 As before, as a pleading point the argument must fail. I am not in a position to make assumptions about factual matters which can or cannot be proven. By the pleading in paragraph 68 the relevant plaintiffs undertake to establish Robins' involvement in and responsibility for the publication. The defendants are, of course, entitled to particulars of the manner in which it will be said that he is so liable, but I am not able to make assumptions about their capacity to discharge that onus. 383 Similarly, the allegation in paragraph 73 that publication was the natural and probable consequence of the publication by the ABC and Millikan of the Four Corners Programme is an adequate pleading. Again, the defendants will be entitled to particularisation, and it may be, if particulars are sought and not forthcoming, that a different approach might be taken. Further, it may be open to the defendants to seek a separate trial on the issue of publication. But that is a different question, and is a matter for the future. Once again, although there are obvious concerns about the capacity of the plaintiffs to establish the allegations of fact that they have pleaded, it is not open to me, at this stage, to strike out this part of the pleading on that basis.

imputations 69(b) and (c) 384 Objection was taken to imputations 69(b) and 69(c) as not being capable of being defamatory. It was argued, for example, that the only act or condition stated about Griffith in these imputations is that he is the leader of an organisation. This is simply not correct. Imputation 69(b) says more than that Griffith leads an organisation: it describes that organisation as one which "preys upon students' vulnerability". This is plainly capable of being defamatory. "Preys" is a word which carries adverse connotations. Imputation 69(c) repeats the now familiar refrain that the Foundation is a dangerous cult that poses a threat to the community. I will not strike out either of these imputations on this basis. No argument that imputation 69(b) was not capable of arising from the matter complained of was put and accordingly it will stand. However, it was argued that imputation 69(c) is incapable of being conveyed by the matter complained of. 385 That Griffith is the leader of the Foundation is clearly conveyed. Robins was reported to be concerned about the methods used by the Foundation "led by self-proclaimed prophet Jeremy Griffith". The issue, therefore, is whether there is sufficient in the matter complained of to convey the imputation that the Foundation is a dangerous cult which poses a threat to the community. Robins was quoted as expressing concern for young people who are drawn into such things; to have identified the features of a cult that applied to the Foundation; and to be worried by the "handing over their minds". In my opinion this is sufficient to justify a jury finding that the imputation had been conveyed. Imputation 69(c) will stand. 386 One further objection taken to these imputations is that they do not differ in substance. This I think is correct; the Foundation will have to elect on which it wishes to proceed.

imputations 70(a) and (b) 387 Robins takes objection to the form of imputation 70(a). The basis for this objection is the combination of adjectives - ie "harmful" and "destructive". It was argued that two acts or conditions are rolled up in a single imputation. It is not at all unusual to see imputations pleaded containing two adjectives joined by a conjunction. There is a difference, though not a very great one, between the notions of "harmful" and "destructive". However, the validity of the objection may be tested by considering whether, if two separate imputations were pleaded, one would be struck out as not differing in substance from the other. I would be inclined to do so. On the other hand, a defendant confronted with this imputation may wish to justify the assertion of harmfulness, but not the assertion of destructiveness. It must be remembered, however, that, in the first instance, the onus lies upon the plaintiff who pleads the imputation to persuade a jury that, in its composite form, it is conveyed by the matter complained of. If the plaintiff succeeds in doing that - and it will be more difficult to do so given the combination of concepts - the defendants against whom the imputation is pleaded will have to decide whether to seek to justify that imputation or not. 388 After considering all of these matters, and recognising that there is much to be said each way, I have come to the view that the imputation is not bad in form and that the Foundation is entitled to put it to the jury (subject to electing which of these two imputations it wishes to pursue). 389 The ABC defendants have challenged these imputations arguing that they do not differ in substance. The Foundation made no response to the challenge, which I think is well founded. The Foundation will have to elect between the two imputations. 390 Finally, it was argued that neither imputation is capable of being conveyed by the matter complained of. The fact that the Foundation is identified as a cult, with the features outlined including "an authoritarian edge encouraging dependence"; "having a persecution complex" and the reference to surrendering control of minds of young people is, in my opinion, sufficient. Either imputation 70(a) or 70(b) will stand.

imputations 71(a) and (b) 391 Imputations 71(a) and 71(b) were challenged as ambiguous. As these imputations are in the same form as, respectively, imputations 17(a), 22(a) and 49(a) and imputations 22(g) and 57(b), these objections must be determined in the same way as the corresponding objections to those imputations. Imputation 71(a) is not ambiguous. Oddly enough, the ABC defendants did not challenge either imputation 22(g) or 57(b) on this basis. The challenges to those imputations were as to asserted lack of precision in identifying the discreditable act or condition attributed to McCartney-Snape. I see no difficulty in understanding what is said, in the imputations, to be the sting in the publication. There is no imprecision. 392 It was also argued that neither imputation could reasonably be conveyed. In relation to imputation 71(a), I consider that this argument is made good. There was a reference in the matter complained of to McCartney-Snape visiting schools promoting Griffith and the Foundation, and, separately, to his having addressed students on his climbing achievements about four years earlier. However, there is nothing in this publication to suggest that McCartney-Snape deceives schools who invite him to speak to students about climbing, nor that he exploits the occasion of his visits to schools. Imputation 71(a) will be struck out. 393 Imputation 71(b), however, is capable of being conveyed. McCartney-Snape is identified as "Foundation director"; I have already held that the matter complained of is capable of conveying the imputation that the Foundation is a dangerous cult. Accordingly, the matter complained of is capable of conveying this imputation. Imputation 71(b) will stand.

imputation 72(a) 394 The final imputation pleaded in relation to this publication is that pleaded in paragraph 72(a), again in relation to McCartney-Snape. The challenge to this imputation is that it is not capable of being conveyed by the matter complained of. I accept this argument. There is no suggestion that McCartney-Snape "preys upon students' vulnerability" for the purpose stated or for any purpose. He was alleged to visit schools, in the course of which he promotes Griffith and the Foundation but he was not accused of conduct of the kind contained in the imputation. Imputation 72(a) will be struck out.

the twelfth matter complained of 395 The twelfth and final matter complained of is an article written by Millikan, published in a magazine called "National Outlook" in June 1997. The article is headed "No heights left to scale?". The predominant subject matter of the article is a book written by a Francis Fukuyama called "The End of History and the Last Man". Millikan was critical of the ideas contained in the book. He then wrote: "The pretentiousness of the theory is amazing. It is the sort of thing I hear from the people who run the groups that I have dealings with. People like David Berg, the leader of "The Family", Jeremy Griffith, the guru and prophet of the Foundation for Humanity's Adulthood, and Stuart Walker, the Masters of The Pod. They are given to these absurd assessments of history …"

the imputations pleaded in paragraph 75 396 Griffith sues Millikan in respect of this article, alleging in paragraph 75 that it contains two imputations defamatory of him. These are: 75(a) Jeremy Griffith is the leader of a dangerous cult which poses a threat to the community; 75(b) Jeremy Griffith deserves to be dismissed as fool. 397 Imputation 75(a) is challenged on the ground of capacity. This challenge is valid. There is nothing in the matter complained of that suggests that the Foundation is a dangerous cult, or poses a threat to the community. The only adverse comment made about Griffith or the Foundation is that his or its theories are pretentious. Imputation 75(a) will be struck out. 398 Similarly, imputation 75(b) is not capable of being conveyed by the matter complained of. It also will be struck out for that reason. A second challenge to imputation 75(b) as to form, fails. The argument was that the imputation, if conveyed, is not capable of being defamatory of Griffith. This is plainly wrong. However, as the imputation is not capable of being conveyed, it will also be struck out. . . .

republication 399 Four of the publications are alleged to have taken place in newspapers not said to be under the direct responsibility of the ABC or any of the named defendants. These are the third, seventh, eighth and eleventh matters complained of, said to have been published respectively in the Sydney Morning Herald, the Wellington Dominion, the North Shore Times and the Armidale Express. Nevertheless, in each of these cases, the plaintiffs who sue plead that the ABC and Millikan are liable because these allegedly defamatory publications were the natural and probable consequence of the publication of the Four Corners programme, and those defendants are therefore liable under the principles concerning republication of defamatory matter. 400 Complaint is made by the ABC and Millikan as to the form of the pleadings. The plaintiffs accept that there are deficiencies in the pleading and seek leave to re-plead. It is appropriate to grant such leave.

Statute of Limitations (New Zealand) 401 As to the seventh matter complained of, published in the Wellington Dominion on 26 April 1995, the defendants raise the New Zealand Limitation Act (1950). I was provided, without demur on behalf of the plaintiffs, copies of s 6A and 6B of the Limitation Act 1950. These sections were inserted into the Limitation Act by the Defamation Act 1992, and by s 6A, limited the time for commencement of a defamation action to two years from the date on which the course of action accrued. S 6B makes provision for the court to grant an extension of time to six years from the date on which the cause of action accrued, but this, apparently not having been invoked, is not presently relevant. 402 The defendants' argument was that the cause of action accrued on the date of publication, i.e. 26 April 1995, and the New Zealand limitation period thus expired on 26 April 1997. Even if the power to extend time were exercised in favour of the plaintiffs, the bar would operate from 26 April 2001. Should the plaintiffs invoke s 6B, and should they be successful, a question may arise as to whether the extension of time thus granted retrospectively validates the claim made in the original statement of claim filed on 6 April 2001. However, it is unnecessary to consider that question at this stage. 403 The submission put on behalf of the defendants is, in essence, that the action taken by the plaintiffs in respect of the New Zealand publication is an action taken in respect of a foreign tort; that, in order to bring proceedings on a foreign tort, a plaintiff must establish that the tort is actionable in the place where the tort was committed; Phillips v Eyre (1870) LR 6QB 1; McKain v R. W. Miller and Co (SA) Pty Ltd (1991) 174 CLR 1. Further, the High Court held in John Pfeiffer Pty Ltd v Rogerson [2000 HCA 36; 203 CLR 503] that limitation law is substantive as distinct from procedural. Accordingly, on the present state of the law, the publication in the Wellington Dominion is not actionable at the suit of any of the plaintiffs. 404 In response, counsel for the plaintiffs argued that the New Zealand Limitation Act is irrelevant, but did not further expand on this submission. 405 In my view the defendants' submissions are persuasive. I say that with one reservation. Senior counsel for the defendants noted that the question was again under consideration by the High Court in Regie National Des Usines Renault SA v Fuzu Zhang, a decision in which that court is presently reserved. 406 Since this is an interlocutory proceeding, there is nothing to prevent it being reconsidered when the High Court delivers judgment. However, for the present, I am satisfied on the defendants' arguments, that the pleading concerning the seventh matter complained of should be struck out as not actionable.

DAMAGES 407 In paragraph 76 of the statement of claim it is asserted that each plaintiff has suffered damage as a consequence of the publications. In relation to Griffith, the Foundation, and McCartney-Snape, particulars of special damage are provided. Particulars of aggravated and exemplary damage claimed against the ABC and Millikan are also provided. 408 A complaint is made about the manner of the pleading that the plaintiffs have suffered damage, this being that the pleading "contains a rolled-up allegation", without specificity, and without reference to the damage caused by the matters complained of. 409 I do not find this complaint persuasive. The meaning of the pleading is clear. True it is that each plaintiff may be required to particularise his/her or its claim for damage, but as a pleading the claim is, in my opinion, unexceptionable. 410 In relation to the claim for special damage, additional particulars were, apparently, provided by way of correspondence. Certain amounts were, it is said, claimed in relation to the plaintiffs' attempts to prevent the broadcast of the Four Corners programme. The defendants claim that such special damage is not, as a matter of law, recoverable because it is not sufficiently causally related. 411 I am satisfied that it is not open to me to rule on this matter on the scanty material available to me. The defendants may well be correct, but there is insufficient material for a ruling on this question to be made.

DECEIT 412 The claim in deceit, which is brought against Millikan and the ABC, is said to arise from misrepresentations made to some of the plaintiffs, including Griffith, concerning the making of the programmes. In short, it appears to be alleged that Millikan led the plaintiffs (or at least Griffith) to believe that a favourable programme would be made, and this in turn led those plaintiffs to cooperate with Millikan and the ABC. Again, although matters relevant to the issue were stated in the submissions, the material before me is not such as to permit a ruling. I decline to strike out the portions of the statement of claim through which a claim in deceit is made. 413 An additional complaint made about these passages is that the claim adds nothing to the claim in defamation. I reject this proposition also. It is open to plaintiffs to plead alternatively or conjuctively if so advised. INJURIOUS FALSEHOOD 414 The statement of claim includes the injurious falsehood claim against Millikan and the ABC in the following way: 112. By publishing the fourth matter complained of, the ABC and David Millikan published the allegations that: (a) Jeremy Griffith believes that he is a greater figure than Christ; (b) Jeremy Griffith believes he is the third person of the Trinity, the Holy Spirit as referred to by Christ; (c) Jeremy Griffith's work has no scientific support. 113. The said words were published falsely and maliciously. 415 Particulars of falsity, loss and damage are subscribed. 416 The first challenge that is made to this part of the pleading is that none of the three assertions contained in para 112 is reasonably capable of being drawn from the Four Corners broadcast. It is to be observed that the first two of these purport to be statements about Griffith's belief about his position and importance and are thus to be contrasted with imputations earlier dealt with. If the defendants are correct in claiming that none of the three assertions is capable of being conveyed by the telecast, then the injurious falsehood claim must, axiomatically, fail. However, having regard to what was said by Millikan, I am of the view that the telecast was capable of conveying those statements. I am less certain that it was capable of the assertion that Griffith's work has no scientific support, although it plainly asserts that his work is not well regarded by the scientific community. However, since the first two assertions are capable of being conveyed, the injurious falsehood claim cannot be struck out for this reason. 417 The next complaint made was that the particulars of malice merely repeat material facts pleaded in the deceit claims. This is correct, and there is substance in the defendants' complaint. Although, as I have made plain in this very lengthy judgment, there is much to be said for condensing the statement of claim where this can properly be done, I am of the view that malice for purpose of the injurious falsehood claim cannot be compendiously particularised in this way. The plaintiffs must properly particularise their plea of malice in relation to the injurious falsehood claim. 418 I propose to make orders in accordance with the conclusions and findings expressed herein. It will be necessary for the parties to bring in short minutes to reflect those conclusions. I will hear the parties in respect of costs and consequential orders.

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