Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 | Case summary

Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 | Case summary | Zoe

He accepted that, although the scope of each element could not be viewed in isolation, the respondents were obliged to prove the substantial truth of each element (par [502]). 13 The primary judge noted that the first element was not in dispute, and further noted that the phrase "holds himself out as a scientist" conveys that the person accepts and applies the standards and procedures of the disciplines of science (par [506]). The primary judge then considered the nature of science, as revealed by the evidence (pars [507] - [530]). 14 The primary judge then discussed the meaning of the second and third elements (pars [531] - [551]). In the course of so doing he said this: [532] Science, it was suggested, is a broad church, which I accept (T1685). It comprehends those whose area of study enables them to proceed by way of deduction (reductionists) and others (including those working in the area of evolution and living primates) who do not have that luxury. They must resort to induction. Some scientists favour a narrow focus, whereas others may be described as holistic. Still others may deduce a purpose from the whole once examined. All are engaged in science. Each may differ from others and yet recognise that the others are approaching the issue as scientists. I accept that standards within the scientific community must be framed with these broad differences in mind. 15 In relation to the meaning of support from the scientific community, he said this: [541] I accept that the words in the imputation ("support", "scientific community") should be given their ordinary meaning. In understanding what is meant by "support", actions are relevant but so is the state of the mind of the person said to be giving support. Indeed, a person's actions are simply evidence from which an inference may be drawn as to the state of mind of that person. Giving a donation to charity may amount to support because it is a simple act. It would be unusual to enquire further, although it is not impossible to imagine circumstances where a person making a donation could be said not to be supporting the charity. A request by a trade union to an employer for a donation to the union's picnic fund, for example. The person may disagree with the charitable objective, but feel obliged or embarrassed, or they may feel there is an implied threat were they not to make a donation. If there were an issue, they could give evidence to explain their actions, that although they had given a donation they did not support the charity.

[676] I accept that that may account for part of the response. It does not seem to me an appropriate inference in view of the intensive promotion described. "Beyond" is a slim, well-presented volume. A recipient would obviously be aware that someone had gone to some trouble and expense to provide a copy. I infer that most would, at least, glance at it. A number of things would be immediately apparent. It was a book making large claims, which was self-published. Without speculation, I think it reasonable to suppose some of the experts would look at the bibliography to determine whether their works had been cited (and discover there was no bibliography), or look to the index. Some may glance at the text and see immediately the absence of citations and the absence of other conventions of scientific publishing. Others, perhaps, may glance at the pictures and see the captions which are distinctly unscientific, as many of the experts have remarked. Whatever they looked at, if they spent no more than half a minute, a scientist would, I believe, quickly form a judgment that it was not worth going further. I accept, as a matter of probability, that the wall of silence was, in significant measure, a judgment that the work was, as a matter of science, of a poor standard. Few, it must be acknowledged, would be likely to take the trouble to understand Mr Griffith's thesis. I do not believe that a scientist would choose to ignore it because it was cross-disciplinary or because it purported to deal with the purpose of human existence. The boldness of Mr Griffith's claims would no doubt excite scepticism, but interest as well. 21 The primary judge then considered at some length (pars [677] - [743]) the support that the appellant relied on from individual scientists. He drew the following conclusions: [744] I have therefore reached the position that none of the scientists nominated by the plaintiffs in fact gave relevant support. I am satisfied that the defendants have established each of the elements of the imputation and the substantial truth of the imputation. They have therefore succeeded in their defence of justification in New South Wales and the companion defences in other States. There should be a verdict for the defendants in respect of Mr Griffith's action. 22 The primary judge then considered whether the defence of qualified privilege at common law succeeded (pars [746] - [759]), and he rejected that defence. The respondents do not challenge that decision on this appeal. 23 The primary judge then considered statutory qualified privilege in New South Wales (pars [760] - [786]). 24 On the question of reasonableness of the publication, the primary judge gave the following reasons: [761] The defendants asserted that their conduct was reasonable, for the following reasons: (DS: para [1.187]) (a) it is not disputed that the matter, namely the extent of the scientific support of Mr Griffith's works was a matter of public concern and it did concern the performance of public activities of the Plaintiffs;

[764] The plaintiffs, in response, asserted that the defendants' conduct was unreasonable. The onus in proving reasonableness is upon the defendants. Rearranging the plaintiffs' submissions, and leaving to one side matters concerning Mr Macartney-Snape, which will be considered separately in Pt 4 of this judgment, the plaintiffs submitted in substance that the defendants' conduct towards Mr Griffith was unreasonable, and the programme was not a fair representation, for the following reasons: first , the defendants did not interview, or attempt to interview, supporting scientists (PS Reply: para [149(a)]); secondly , the defendants only aired one negative comment by a scientist about Mr Griffith's work, even though it had film of positive comments from other scientists (PS Reply: para [149(e); para [157]); thirdly , there was no evidence the defendants put to Mr Griffith the allegations concerning the standard of his work (cf s 22(2A)(g) of the Act) (PS Reply: para [144]); fourthy , the defendants did not speak to or interview any supportive parent (PS Reply: para [149(b)]) and failed to include in the programme the views of supporting parents (PS Reply: para [168(e)]); fifthly , the defendants included in the matter complained of footage of Mr Griffith (swearing) that was taken out of context and not an example of him speaking about his ideas (PS Reply: para [149(g)]); sixthly , the defendants dissembled to the plaintiffs about the proposed content of the matter complained of, as demonstrated by the letter of 20 January 1995 (Ex M) and by representations made, including representations about the millennium documentary (PS Reply: para [149(i)]; seventhly , that for many of these reasons the programme was not a fair representation of Mr Griffith or the Foundation. On the contrary, the programme was "entirely negative and inaccurate" (PS Reply: para [167]); eighthly , in particular, the programme, by including repeated religious references, was not a fair representation of Mr Griffith's work since the defendants well knew that his work was not grounded in religion but in science (PS Reply: para [168(a)]); ninthly , it was unfair to include the footage of Rosy and Howard Whelan without giving the plaintiffs to opportunity to respond (PS Reply: para [168(c)]); tenthly , it was unfair to include the footage of the Belfields without giving the plaintiffs the opportunity to respond (PS Reply: para [168(d)]); finally , the editing of the Juliet Belfield interview suggested a conversion experience, which had not taken place (PS Reply: para [168(f)]).

[786] These issues and the conduct of the defendants generally were considered in Pt 2 of these reasons, "The Making of the Programme" (supra paras [471] to [489]). To repeat my conclusion, I do not accept that the matter complained of was actuated by malice or an improper purpose. The analysis leading to that conclusion did not, however, consider whether the defendants (or either of them) knew that the imputations were false. I later dealt with that issue. I inferred that the defendants each believed that imputation 5(a) was true (supra para [766]). I am therefore not satisfied that the plaintiffs have established malice or an improper purpose. 26 The primary judge then considered statutory qualified privilege in Queensland and Tasmania; and held that the publication was on a subject of public interest and was made in good faith; and he held that the defence was made out (par [787] - [792]). In particular, the primary judge said this at par [788]: [788] Here it was submitted, and I accept, that the publication was on a "subject of public interest", that is "the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invites public criticism or discussion" ( Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215) (DS: para [1.170]). On that basis, I further accept that the defendants believed, on reasonable grounds, that the audience had an interest in knowing the truth about the subject of the programme (DS: para [1.171]). 27 The primary judge then considered the defence of fair comment (par [793] - [819]). He held that the imputation was comment (par [782]); that it was based on proper material (par [807]); and that Dr Millikan and the other relevant agent of the ABC (Ms Liz Jackson) honestly believed the imputations (par [810]). The primary judge did not accept there was any improper purpose (par [814]). 28 On that basis, the primary judge held that the defence of comment was established under relevant statutes and at common law.

Errors concerning evidence 32 In support of ground 7, it was submitted by Mr Smark SC for the appellant that Professor Groves had provided a commendation for Beyond the Human Condition (1 Blue 342); that he then came to believe that the appellant was leading what was in substance a cult (2 Black 634); that these matters were not disclosed in his three reports; that in his main report he sought to compare the appellant to Lenin and Hitler (3 Blue 1546); that his reports in reply were advocacy; and that the primary judge's conclusion that Professor Groves was not affected by bias was unsupported by reasons other than that Professor Groves struck him as an impressive witness. 33 In support of ground 8, Mr Smark submitted that Professor Flannery commenced his report professing no expertise in human evolution or evolutionary psychology; that the primary judge discounted the reports of Professor Churchill and Dr Casebeer on just that basis; that Professor Flannery's report was of little substance with no indication of detailed consideration of the appellant's work; and that accordingly the primary judge should have given little weight to his views. 34 In support of ground 9, Mr Smark submitted that Professor Churchill had expertise in psychology and the philosophy of science, both of which were highly relevant to the standard of the appellant's work; so that the primary judge erred in holding that he lacked expertise in respect of the central issue (judgment [576]). He submitted that Dr Casebeer had expertise in cognitive science, philosophy of mind and philosophy of science, and that the primary judge erred in discounting his evidence on the basis of expertise (judgment [589], [646]). He submitted that Professor Prosen had expertise in psychiatry and in mental and psychiatric aspects of bonobos, and the primary judge erred in treating his expertise as merely tangential (judgment [646]). 35 As regards ground 7, in my opinion the matters relied on by Mr Smark do not give substantial support to a finding of bias; and in my opinion, the reports of Professor Groves and his evidence, considered as a whole, do not suggest bias. In my opinion, no error is shown in the primary judge's assessment, and in my opinion the circumstances did not require further elaboration of reasons. 36 In my opinion, there was no error by the primary judge in giving weight to the evidence of Professor Flannery, who did have expertise in evolutionary biology. As to whether, consistently with his approach to Professor Flannery, the primary judge should not have discounted the evidence of Professor Churchill, Dr Casebeer and Professor Prosen on the basis that their evidence was only tangential, I will consider this further in relation to particular findings.

Truth: poor standard 37 Mr Smark made detailed submissions to the effect that, although the primary judge (in his own assessment of the standard of the appellant's work) considered that the appellant's work could be science, even if it was not carried out by deduction or with in a reductionist framework, or directed to fellow scientists, or devoid of teleological explanations, the primary judge did not consider these attributes in evaluating the standard of the work. Nor did he seek to evaluate the appellant's claims, apart from the statement that "our instinctive heritage is one of behaving lovingly towards others and being treated lovingly"; and he erred in treating that statement as an assumption rather than as an hypothesis. Mr Smark also submitted that the primary judge erred in mistaking what was a matter of form (the use of forceful definite language) for the matter of substance (the merit of the theories). 38 He submitted that the primary judge did not sufficiently explain reasons for each of the steps in reaching his conclusion that the appellant's work was of a poor standard, namely (1) finding that the appellant's experts other than Professor Hartwig had expertise tangential to the issues, (2) his general acceptance of evidence of the respondents' experts, and (3) finding that the shortcoming identified by those experts led to his conclusion. 39 Mr Smark made detailed submissions (in addition to those concerning expertise) concerning the evidence of each expert, the general thrust of which I will briefly summarise. 40 As regards Professor Hartwig, Mr Smark submitted that aspects of his cross-examination relied on by the primary judge, as showing that he identified shortcomings in the appellant's work, did not detract from Professor Hartwig's expert opinion was that the appellant's work was of better than poor standard, in particular when the nature of the appellant's work put it outside the domain of professional academic publishing. 41 As regards Professor Churchill (who found the appellant's work to be of scientific merit insofar as it was grounded in evidence produced by science and of scholarly value insofar as it had helped to clarify existing theories about human evolution, while putting forth his own ideas), Mr Smark submitted that the primary judge's conclusion that he engaged in a significant retreat in cross-examination was in error, because it did not take account of the nature of the appellant's work as an unorthodox grand synthesis. He submitted that Professor Churchill's evidence was also important in supporting the view that any lack of support for the appellant's work from the scientific community was due to its nature as a grand narrative explanation from a holistic approach, involving teleological elements, independently of its standard. 42 As regards Dr Casebeer, Mr Smark submitted that his opinion that the appellant's work was scientific, original, plausible, testable and hence scholarly was entitled to considerable weight; and the primary judge's disregard of it was not supported by appropriate reasoning. 43 As regards Professor Prosen, Mr Smark submitted that the primary judge's rejection of his glowing account of the appellant's work was not supported by appropriate reasoning. 44 As regards Professor Groves, Mr Smark submitted that his detailed criticisms (concerning reliance on a unilateral evolutionary model for humans, and factual errors concerning facial features of certain ape species) did not take into account the scale and scope of the appellant's work, and that he did not engage in any wholesale assessment of the appellant's main thesis. The primary judge's acceptance of his evidence in preference to that of the appellant's witnesses was not supported by appropriate reasoning. 45 As regards Professor Flannery, Mr Smark submitted that his opinion was little more than a statement of position, and should have been given little weight. 46 As regards Professor Henneberg, Mr Smark submitted that acceptance of his evidence in preference to the evidence of the appellant's witnesses was not supported by appropriate reasoning. 47 In submissions in reply Mr Smark submitted that an answer by Professor Hartwig to the effect that the book did not rate as a work of science, properly construed, meant only that it was not an original contribution within the limits of the science of human evolution in the light of the fossil record. He also submitted that the book did make original contributions to science in the broader sense, for example the hypothesis of "love indoctrination". 48 It is convenient to consider this issue, as the primary judge did and the parties have done in their submissions, by reference to the book Beyond the Human Condition. The imputation was primarily directed to that book. It is in relation to that book that the appellant's claim of support and the respondents' denial of support were directed. 49 There are three preliminary points I would make. 50 First, the question of the standard of a work like this is problematic in a number of respects, in particular in that (a) it is a matter on which reasonable minds can very widely differ; and (b) it very much depends on what the work is being assessed as: for example, whether it is assessed as an undergraduate essay in science or philosophy of science, a professional scientific publication, a popular science publication to inform a general readership about what is happening in the relevant science, a popular science publication for the promulgation of original scientific work, and so on. I would also note that the identification of the category in which the work is to be assessed may also be a matter on which reasonable minds can differ. 51 Second, while the question of whether the appellant's work is or is not of a poor standard simpliciter is raised by the imputation, in that if the work is not of a poor standard at all, the imputation could not be true, it is to be kept in mind that the thrust of the imputation is that it is of such a poor standard that it has no support at all from the scientific community. This thrust is conveniently dealt with later under the heading of causation; but it does presuppose that there are degrees to which a work can be of poor standard, and that it is the degree to which this work is of a poor standard that accounts for its lack of support. The relevant finding of the primary judge was that the work was of "such" poor standard; but in my opinion a finding as to "such" should be considered in connection with the question of causation. The primary judge's finding necessarily involved a finding that the work was of "a" poor standard, and it is that finding I will be considering here. 52 Third, it will later be seen that (like the primary judge) I consider that the assertion in the imputation as to the standard of the appellant's work was comment; and a question arises whether there can be both a defence of truth and also a defence of comment to the same imputation or element of an imputation. It is accepted in the judgment of the primary judge that there can be both defences, because the primary judge has upheld both defences; and although the appellant has submitted that the primary judge was wrong to find that the imputation was comment, he has not submitted that the primary judge was necessarily wrong to uphold both defences, on the ground that only one of them can possibly succeed. 53 There are statements in the authorities to the effect that, although the distinction between a statement of fact and a comment is difficult to draw, a decision has to be made as to whether an imputation is one or the other. For example, in John Fairfax Publications v O'Shane [2005] NSWCA 164; (2005) Aust Torts Rep 81-789 at [27], Giles JA said this: [27] There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important. 54 Certainly, for a defence of comment to succeed, the Court must determine that the relevant material is comment, not a statement of fact; and as I have said, I agree with the primary judge that what the imputation in this case says about the standard of the appellant's work is comment. However, I think the better view is that this does not necessarily exclude the possibility of a successful defence of truth. If the content of what is asserted is in fact true, I see no reason why the defendant should be deprived of the defence of truth, merely because what is asserted is comment rather than a statement of fact. However, it is not necessary for me to express a concluded view on this because, as will be seen, my opinion is that the defence of truth fails for other reasons. 55 Even accepting that my preferred view is correct, the fact remains that, because reasonable minds can differ so widely on the matter, imputations about the standard of a work of science or art are more often defended as comment, so that the question addressed is whether the view was one that was actually held, rather than its truth or falsity. However, where as in this case the defence of truth is raised, the Court has on my preferred view no alternative but to do its best on the question of truth or falsity. This consideration has consequences in relation to the disposal of an appeal. In my opinion, where a primary judge has reached a conclusion as to the standard of a work, the appeal court should only attempt to reach its own conclusion if it is satisfied that the primary judge's conclusion is vitiated by error. 56 As regards the question of what the appellant's work (and in particular Beyond the Human Condition) is to be assessed as, in my opinion this book is to be assessed as a scientific publication for general readership, the object of which is not to inform the readership of what scientific work has achieved and is achieving in the relevant area, but rather to promulgate original scientific ideas of the author. This follows in my opinion from (1) the reference in the imputation to the appellant holding himself out as a scientist and the reference to the scientific community; (2) the content of the work itself, which purports to present to a general readership original and highly significant ideas, rather than to be a popularisation of work done elsewhere; and (3) the content of the respondents' publication (the ABC broadcast) generally, which focuses on the merits and impact of the appellant's own ideas. 57 It follows in my opinion that central to the assessment of the standard of the appellant's work are both assessment of the merit of the appellant's ideas, and assessment of the reasonableness of his arguments in support of them. This latter assessment covers such things as the scope and accuracy of his references to scientific work on which his arguments are based, the cogency of his arguments, the fairness of his treatment of different views, and the reasonableness with which he draws conclusions. Expert evidence would be particularly relevant to the merit of the appellant's ideas and to the scope and accuracy of his references to scientific work, and to a lesser extent to the fairness of his treatment of different views. It would be relevant, but of less significance, in relation to the cogency of his arguments and the fairness and reasonableness with which he draws conclusions, these being matters on which the Court can draw its own conclusions, without necessarily having to rely on expert evidence. To the extent that the expert evidence does not speak with one voice on the matters to which it is more directly relevant, the Court necessarily has to reach its own conclusion on them. 58 In my opinion the approach of the primary judge in this case was entirely consistent with these views. He was justified in considering that the scientific qualifications most relevant to the issues on which expert scientific evidence was important were qualifications in anthropology and in primate and particularly human evolution. The primary judge was justified in giving less weight to the evidence of Professor Churchill, Dr Casebeer and Professor Prosen because they lacked expertise in those areas, and because the evidence which they did give fell more within areas in which the Court could make its own judgment; but it is in any event to be noted that the primary judge did still consider their evidence with some care, and in my opinion gave appropriate reasons for not acceding to their conclusions as to the merits of the appellant's work. 59 It is true, as submitted by Mr Smark, that Professor Flannery's expertise was in evolutionary biology generally rather than primate or human evolution; but in my opinion the field of evolutionary biology was closer to the most relevant area for expert scientific evidence than the fields of expertise of the appellant's experts (other than Professor Hartwig); and his expression of opinion that there was a narrow factual base for the appellant's broad conclusion was within his field of expertise. It is true that this was a brief opinion which did not descend into detail; but in my opinion it was still an opinion to which weight could appropriately be given. 60 In my opinion the primary judge appropriately took into account the nature of the appellant's work as a grand synthesis, not within a deductive or reductionist framework or excluding teleological explanations, and that it was directed to a general readership and not specifically to scientists. Since the merits of the appellant's claims was only one consideration going to the standard of the work, it was sufficient in my opinion for the primary judge to address at length just one claim; and in my opinion that claim (about the instinctive heritage of behaving lovingly) was appropriately regarded by the primary judge as something which the appellant treated as a matter of certainty, not as a mere hypothesis. In my opinion, the primary judge was correct to consider this as reflecting adversely on the standard of the appellant's work as a work of science. The appellant's general use of forceful definite language, when his arguments could at best support merely tentative conclusions, also reflected adversely on the standard of his work. 61 More generally, in my opinion the primary judge's extensive reasons did appropriately explain his conclusions, and Mr Smark's submissions do not identify any respect in which they were inadequate. Neither do the submissions identify any error in the reasoning which would justify this Court reaching its own view. I would add that I have carefully read Beyond the Human Condition (Exhibit F), and I consider the view of the primary judge that the work is of poor standard to be a view that could reasonably be reached, and not itself suggestive of any error. 62 In those circumstances, I would not overturn the primary judge's finding that the work was of a poor standard.

Truth: no support 63 Mr Smark submitted that the finding of the primary judge that the appellant's work had no support at all from the scientific community was not open, in the light of various commendations for that work prior to the broadcast of the defamatory matter. 64 Mr Smark relied particularly on commendations from Professor Morton, from Professor Davies, from Professor Birch and from Professor Groves. He submitted that in finding that these commendations did not constitute any support for the scientific community for the appellant's work, the primary judge erred in two important respects: (1) in holding that what was required was an endorsement of the central thesis (purportedly in reliance on Greek Herald Pty Limited v Nikolopoulos [2002] NSWCA 41; (2001) 54 NSWLR 165 at [8], [21] - [22]); and (2) in holding that one could look beyond manifestations of support to the state of mind of alleged supporters. 65 The commendations relied on were set out by the primary judge in his judgment. 66 That from Professor Groves was provided on 24 October 1991, in response to being given a copy of the book Beyond the Human Condition and asked to provide a comment; and it was in the following terms: " Beyond the Human Condition is a bold attempt to find an ethical meaning in biology and anthropology. The book's use of the fossil evidence for human evolution is innovative and intriguing, and suggests paths for future research; but perhaps the most remarkable and unusual aspect is its treatment of the Pygmy Chimpanzee. At one point the author does remark that there is a need for new and integrated fieldwork on Pygmy Chimpanzees, and this is quite right; they have a great deal to teach us, and their behaviour and ecology, taken in conjunction with their morphology, show remarkable parallels to our own. It is where these parallels stop that is going to throw real light on the human condition." 67 It does not appear that prior to the broadcast Professor Groves explicitly withdrew that commendation; but his evidence was that, prior to the broadcast, he received a letter from an organisation called Gateway expressing dismay about what he had written, because of the book's association with what was in substance a cult. Professor Groves said he took that accusation seriously; and the primary judge found he then became hostile to the appellant. Also, Professor Groves was interviewed by Dr Millikan, and although generally not supporting the book he did say "this book, well, is not without interest as we've seen, and in some cases it's downright intriguing as we've seen and that's what I said". 68 The commendation from Professor Davies was provided on 5 November 1991, in response to a request, and it was in the following terms: "Commendation What does it mean to be human? Jeremy Griffith's challenging study of our internal conflicts - our 'upset' - will surely spark fresh debate on the human condition. In this sweeping synthesis, the author draws from the physical sciences, from anthropology, from religion and philosophy, to build a new conception of human beings and our place in the universe. From his penetrating insight into the origins of the human condition Griffith shows how, through understanding it, we may move on to achieve true peace and harmony. Here is a frank, bold and, above all, hopeful message for mankind." 69 However, on 24 September 1993, Professor Davies wrote to the appellant as follows: "Thank you for your letter of 20 September. I confess I am indeed becoming concerned about complications surrounding the use of my name in connection with your book. When I originally provided a few words for you I had no idea that they would be so prominently used, or that I would be dragged into any sort of controversy. I would prefer it if my name could be omitted from future promotion."

732 A letter was sent by Dr Millikan to Mr Griffith (and signed by Ms Masters) on 5 April 1995, which was consistent with Professor Morton having not endorsed the science of Mr Griffith's thesis. The letter included the following paragraph: (Ex 27) "In fact, Jeremy, you will have to concede that both Deb and I have made commitments which we have scrupulously kept. For example - during the interview at Terrey Hills - I said to you that we would not use the material concerning the endorsements of Birch, Morton and Davies. And we have stuck to that arrangement. I know you believe that they were coerced into repudiating their former endorsements, although that is not what they say . But not withstanding the conversation which you and I had subsequently, these men's names do not appear in the film." (emphasis added) 74 There was also evidence of file notes taken by Dr Millikan prior to the broadcast in a 1999 document prepared by the ABC (2 Blue 737). These were file notes of a conversation with Professor Morton, recording the following: "I gave his book an endorsement, but I have kept very little track of it." "It's not science, it's prophetic gloss. It's like a poor man's Teilhard." Although the question does not appear to have been debated below or on appeal, this material would appear to be admissible as to the contents of a business record under s 48(1)(e)(ii) of the Evidence Act 1995; and the primary judge accepted that Professor Morton did say words to that effect (judgment [742]). 75 Turning to the question of alleged errors by the primary judge, Mr Smark did not question the primary judge's summary of the effect of Nikolopoulos as being that implications are to be understood in the context of the defamatory publication and by reference to considerations of practical justice; but he submitted that this did not support the restrictive meaning of support adopted by the primary judge. 76 It is true that the primary judge took the view (judgment [544]-[545], set out at par [15] above) to the effect that it was the central thesis of the book Beyond the Human Condition in respect of which the broadcast asserted that the appellant was alone; and that the imputation of lack of support should be understood as being lack of support for that thesis. However, at [547], the primary judge also gave a broader alternative view that "at the least" the scientific premises that underpin that thesis needed to be endorsed. 77 For my part, I would not adopt the narrower view taken by the primary judge. Although the broadcast did focus on the appellant's central thesis, and the lack of support for it, the imputation is expressed in more general terms; and I do not think the context is sufficient to narrow the meaning of those general terms to the extent of the primary judge's narrower position. In my opinion what is relevant is support for the plaintiff's work, considered as a scientific publication for a general readership, the object of which is not to inform that readership of other scientific work but rather to promulgate the original scientific ideas of the author. Relevant support could then be provided, even if the central thesis is not endorsed, so long as it is support for the book as presenting respectable scientific ideas and arguments for those ideas that are respectable arguments according to the standards of scientific publications directed at a general audience. On that basis, my approach is not greatly different from the broader alternative approach of the primary judge. 78 Further, the reference in the imputation to (lack of) support from the scientific community confirms that it is support for the work as that kind of scientific publication that is relevant, and not (say) support for it as an ethical or quasi religious work. Thus, commendation of the work substantially on the basis that adopts a non-reductionist or non-mechanistic approach to the questions being considered, or that it seeks to promote ethical or optimistic views of human nature, would not in my opinion amount to relevant support. 79 Also, the reference to support from the scientific community means, in my opinion, that support from just one or two respected scientists might not necessarily be relevant support, unless that support can be understood as expressing or constituting some support from a community. Of course, the use of the words "at all" could be considered as pointing in the other direction; but what is in issue is whether there is no support at all from the scientific community, not no support at all from any individual scientist. 80 As regards the question raised in par [541] of the primary judge's judgment, my view is that it is manifestation of support that is primarily in issue. Privately-held reservations would not in my opinion negative manifested support. But manifested support at one time would not necessarily prove support at another time (although with the aid of the presumption of continuance it would often do so); and if manifested support were elicited because of mistake or misunderstanding, it may then not count. This view differs a little from that of the primary judge, but in my opinion the difference may not be material. 81 In my opinion, it was well open to the primary judge to conclude that any support given by Professor Groves to the appellant's work was not support for it as a work of science, and that it was no longer given at the time of the broadcast. The view that it contained interesting or intriguing ideas did not amount either to support for the thesis of the book, or to endorsement of it as presenting scientifically respectable ideas supported by scientifically respectable arguments. 82 In my opinion, the same comment applies to Professor Davies. 83 As regards Professor Birch, undoubtedly he was a highly respected scientist and he did, up to and following the broadcast, give support to the appellant's activities. However, in my opinion it was well open to the primary judge to consider that this support reflected sympathy for the appellant's adoption of an holistic approach to science and a search for purpose, rather than support for his work as a work of science, even popular science. 84 As regards Professor Morton, the primary judge accepted he was an eminent scientist, as well as an eminent theologian; and in my opinion it was well open to the primary judge to hold that Professor Morton's support was as a theologian, and to accept that he said to Dr Millikan that the book was not science but a prophetic gloss. It was thus open to the primary judge to hold that Professor Morton's support did not amount to any support from the scientific community for the work as a work of science. 85 In my opinion, the finding of the primary judge that the appellant's work had no support at all from the scientific community has not been shown to be in error. I do not consider the different shades of meaning I would give to the notion of support from the scientific community to materially affect the primary judge's decision. I would myself reach the same conclusion as the primary judge.

Truth: causation 86 The remaining part of the third element in the defence of truth has been labelled causation. However, as foreshadowed in par [51] above, in my opinion this is a somewhat simplistic description of this element. 87 The imputation is not merely that the appellant's work is of a poor standard and has no support at all from the scientific community, or even that the appellant's work is of a poor standard and for that reason has no support at all from the scientific community. It is that the appellant's work is of such a poor standard that it has no support at all from the scientific community; and in my opinion this conveys that there are degrees to which work can be of a poor standard, that if the appellant's work had been of a materially better standard (whether or not still of a poor standard) it would not have had no support at all from the scientific community, and that the lack of any support at all from the scientific community demonstrates the poorness of the standard of the appellant's work. Accordingly, the defence of truth would require that these things be substantially true. 88 The reasons given by the primary judge are primarily set out in par [674] - [676] of his judgment, set out at par [20] above. 89 It was submitted by Mr Smark that there were other explanations for the lack of support from the scientific community for the appellant's work, including the nature and scale of its subject matter (this being supported by the evidence of Professor Churchill, referred to at par [41] above), the manner in which the appellant expressed his theories, and the fact that the work was self-published. 90 In my opinion, particularly having regard to my understanding of what was conveyed by the imputation and thus had to be justified as substantially true, these and associated matters were not adequately considered by the primary judge. 91 In my opinion, the circumstances that the appellant had no affiliation or association with a university or scientific establishment, had no recognition from a university or scientific establishment other than an undergraduate degree, had apparently not published in peer review publications, and had self-published the work under consideration, are not elements of the standard of the work itself, but are nevertheless factors counting heavily against the work receiving consideration and support from the scientific community. The circumstance that the work was a grand narrative explanation from a holistic approach, involving teleological elements, would also count against the work receiving consideration and support from the scientific community, without necessarily impacting on the standard of the work. 92 I accept that the manner in which the appellant expressed his theories, independently of their content, would also count against its receiving consideration and support from the scientific community; but in my opinion, as mentioned previously, this manner, involving expressions of certainty when at best the appellant's arguments could justify only tentative conclusions, is a significant element directly and detrimentally affecting the standard of the work. Accordingly, to the extent that this manner of expression contributed to the lack of support, this was an element of causation truly due to the standard of the work. 93 I do not think the primary judge's discussion at par [676] of his judgment (set out at par [20] above) adequately supports his conclusion that causation was established. The hypothetical judgment by a scientist, on the basis of the cursory consideration described by the primary judge, that the work was as a matter of science of poor standard, having regard to such things as lack of a bibliography, absence of citations, or the captions to the pictures, would not in my opinion be a judgment reached on a sound assessment of the standard of the work. These features of the appellant's work (which, in the case of citations, I would describe as unusual citations rather than absence of citations) are suggestive that the work is of a poor standard and are elements relevant to its standard, but I think a judgment based on those elements alone would be a superficial judgment. 94 Given the disadvantages referred to in par [88] above, I would not be satisfied that, if the appellant's work had been of a materially better standard, it would have received some support from the scientific community; or that the lack of any support from the scientific community demonstrated that the work was of a poor standard, much less any degree of poorness of standard. 95 Although in this element also, this Court should not displace the primary judge's decision unless satisfied it was wrong, this is a matter on which there is less room for discretionary assessment than in relation to the standard of the work; and in my opinion the primary judge set the bar for the relevant finding of causation too low, and his reasons did not adequately support his conclusion. On this element, I would give effect to my own view that causation (in the sense explained above) was not established; and on that basis, I would hold that the defence of truth was not made out.

(g) by no stretch could it be considered an exceptional case so as to justify the publication of defamatory material [756], RB 238T. 100 Mr Smark submitted that in those circumstances, there should not be any finding made that viewers had either an interest or apparent interest within s 22(1)(a) of the Act. To the extent that the primary judge made a finding to that general effect at par [788] of his judgment, in considering the Queensland and Tasmanian legislation, the evidence did not support that finding. 101 Mr Smark also submitted that the requirement of s 22(1)(c), that the conduct of the publisher be reasonable, was a requirement directed to the objective circumstances of the publication rather than the subjective intentions and motives of the publisher, the latter being something to be dealt with when considering malice, which would defeat statutory qualified privilege in the same way as it defeats common law qualified privilege. 102 Mr Smark submitted that the reference to "a defence of qualified privilege" in s 22(1) meant that what was being done was to provide an adjunct to that common law defence, subject to the same qualification, that it is defeated by malice. He submitted that this was confirmed by s 11 of the Act (preserving common law defences), and supported by dicta in Austin v Mirror Newspapers Limited [1984] 2 NSWLR 383 at 389, and Makim v John Fairfax & Sons Ltd (1990) A Def R 40,521 at 40,525. 103 On the first question, that is, what is required to show an interest or apparent interest, I referred to relevant authorities in Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320 at [7]-[8]: [7] It is necessary first to determine whether readers of The Echo had an interest in having information on some relevant subject, and to identify that subject. As to what can constitute such an interest, in Barbaro , Hunt J said this ((1985) 1 NSWLR at 40): It was not disputed by the plaintiff that those viewers who identified him in the telecast had a legitimate interest in the situation in Griffith as so described. The interest or apparent interest of the recipients need not be a proprietary one, nor even a pecuniary one: Howe v Lees (1910) 11 CLR 361 at 369 and 396. The word "interest" is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news: (ibid at 369, 398); Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (1947) 47 SR(NSW) 357 at 363 and 366 ; 64 WN 46 at 50. The interest must be definite; it may be direct or indirect, but it must not be vague or insubstantial - so long as the interest is of so tangible a nature that it is expedient to protect it for the common convenience and welfare of society, it will come within the privilege afforded by the section: Howe v Lees (at 377); Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (at 364; 50).

[8] That approach was supported by the Privy Council in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 358-59: It is possible as a matter of construction to place a narrow or a broad construction on the words "an interest". The narrow construction would equate "an interest" with that type of interest which is usually looked for as an ingredient of the defence of qualified privilege at common law, that is to say, an interest material to the affairs of the recipient of the information such as would for instance assist in the making of an important decision or the determining of a particular course of action. It is for this narrow construction that the appellant contends. But it is clear that the courts in New South Wales have placed a broader construction upon the words "an interest" and have taken them to include any matter of genuine interest to the readership of the newspaper. In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 Reynolds JA, with whom Glass JA agreed, said (at 711), when considering s 22(1)(a) in respect of a television broadcast: "It cannot be denied that the recipient, in this case the general public, had an interest in having information on the subject of public affairs." In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 the Court of Appeal drew a contrast between the interest required to find qualified privilege at common law with the wider interest referred to in s 22. They said (at 797): The limited application of the common law principles of qualified privilege to publications in newspapers has already been discussed. Section 22 was designed to enlarge the protection afforded by these principles to defamatory publications generally, and it has a particular relevance to publications in newspapers; but it gives no carte blanche to newspapers to publish defamatory matter because the public has an interest in receiving information on the relevant subject. What the section does is to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established.

This passage was adopted by Giles JA (Sheller and Powell JJA agreeing) in Evatt v Nationwide News Pty Limited [1999] NSWCA 99 at [18]. 106 This passage would be consonant with the view that malice was a consideration separate from reasonableness, and appropriate to be raised as a reply to a defence of statutory qualified privilege, in the same way as with common law qualified privilege. 107 However, in my opinion the words of the Act do not support this approach, nor the view taken by the dicta in Austin and Makim. 108 Section 11 of the Act does not suggest that a reply relying on malice should be available in relation to a defence not available at common law but created by the Act. Although s 22 identifies the defence it creates as a defence of qualified privilege, s 20 draws a clear distinction between qualified privilege under the common law and qualified privilege under s 21 or s 22 of the Act. Further, for s 21(b) to apply, there must be a defence of qualified privilege apart from s 21; and in the case of common law qualified privilege, that defence would only be available where the plaintiff cannot prove malice. Accordingly, if the statutory defence created by s 21 would itself be subject to defeasance by proof of malice, that qualification would apply twice, which would seem surprising. 109 In my opinion, there is no sufficient reason for reading down the plain words of s 22 that, in the circumstances specified, there is a defence of qualified privilege, with no further qualifications. The fact that it is called a defence of qualified privilege does not in my opinion take the matter further, when the Division in which s 22 appears itself makes it clear that the defences created by ss 21 and 22 are different from common law qualified privilege. The dicta to the contrary in Austin and Makim were not supported by any reasoning, and I would not follow them. 110 This view has consequences that are not necessarily favourable to defendants. I would take the view that a publication that was actuated by malice, in the sense that it was made for a dominant reason apart from the purpose referred to in s 21, would not be reasonable in the circumstances. On that view, it would be for the defendant to prove absence of malice, rather than for the plaintiff to prove its presence. To that extent, the requirements for reasonableness laid down in Morgan may not be exhaustive. I will return to this when I come to consider reasonableness.

Reasonableness and malice 115 Mr Smark submitted that the primary judge erred in a number of respects in finding that the respondents' conduct in publishing the matter was reasonable. In particular: (1) The primary judge inferred that each of the respondents believed in the truth of the imputation even in the absence of evidence from the respondents, particularly Dr Millikan, to that effect. (2) Ms Masters, Dr Millikan and Ian Carroll of the ABC made a conscious decision not to inform the appellant or Mr Macartney-Snape of the allegations to be made against them prior to the broadcast; the primary judge found this contrary to good faith and unreasonable in relation to Mr Macartney-Snape; and the primary judge should have made the same finding in relation to the appellant. (3) The primary judge should have found the respondents, and particularly Dr Millikan, had published the matter for an improper purpose, namely to harm the appellant and/or Mr Macartney-Snape and/or the Foundation for Humanity's Adulthood, having regard to the conduct of Dr Millikan in stating to Professor Groves and Professor Flannery, immediately prior to their being interviewed, that the appellant was acting like a cult leader and splitting up families; the failure of the respondents to include in the broadcast or refer to the existence of supporting scientists or parents; statements by Dr Millikan to the parents Mr and Mrs Belfield that he would "relish" the opportunity to "harass" the appellant; the conduct of the respondents, especially Dr Millikan, in disguising their true intentions (referring to an alleged millennium documentary, and telling the appellant he had got it wrong in his earlier unfavourable review of Beyond the Human Condition); the conduct of the respondents in inducing Mr Macartney-Snape to refer to the appellant in his speech at Concord High School, and their knowledge of the falsity of the imputations concerning Mr Macartney-Snape; the style and content and selective editing of the broadcast; and the respondents' failure to apologise. The primary judge failed to take into account the cumulative effect of the above, and to consider whether the publication of the matter (not just the imputation against the appellant) was actuated by malice. 116 In my opinion, the primary judge addressed and dealt satisfactorily with all of these issues, except possibly for (1) the question whether unreasonable conduct as regards Mr Macartney-Snape meant that the respondents conduct in publishing the matter was not shown to be reasonable, and (2) the question whether the primary judge's finding that malice had not been established is sufficient for reasonableness, in the light of my conclusion that the onus on the respondents to show they acted reasonably includes an onus to show that they did not publish for a dominant reason aside from the purpose specified in s 22. 117 Dealing with the first issue, I note that s 9(2) of the Act identifies the cause of action as being one in respect of the defamatory imputation for the publication of the matter that makes the imputation. What has to be shown to be reasonable under s 22(1)(c) of the Act is the conduct of the publisher in publishing that matter, in its character as making the imputation complained of; not, in my opinion, the matter in all of its aspects. 118 This view is supported by the following passage from Morgan at 383: Those opposing arguments require further discussion of the nature of the requirement imposed by s 22, that the conduct of the defendant in publishing the "matter" was reasonable in the circumstances.

He then gave an example which underlines the issue as being whether the defendant acted reasonably in publishing the particular imputation concerning the plaintiff. The defendant, his Honour made it clear, must establish that the particular imputation against the plaintiff was reasonable. Reynolds JA (with whom Glass JA also agreed) said (at 712): "… Section 22(1)(c) calls for the consideration of a wide range of matters. Some are to be found in the published material itself and the manner and extent of its publication, and others from the whole of the surrounding circumstances. The connection between the subject and defamatory imputation remains relevant. It may be tenuous, or it may be real and substantial. If what was said includes comment, it is relevant to consider whether it was fair and whether it followed logically from facts known or stated. Questions of the exercise of care before the defamatory utterance are also relevant, and questions as to whether the maker of the statement knew whether he was likely to convey a misleading impression." 119 This passage indicates that the relevant conduct is the conduct of a defendant in publishing the particular imputation, not its conduct in publishing the whole matter; so that different results might eventuate in relation to different imputations: Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937 at [51] per Simpson J. See also Makeig v Derwent [2000] NSWCA 136 at [43] per Spigelman CJ (Mason P and Heydon JA agreeing). 120 Accordingly, in my opinion, unreasonableness of the respondents' conduct in publishing matter in its character of making imputations against Mr Macartney-Snape does not constitute relevant unreasonableness so as to defeat a defence under s 22 to the appellant's claim. It may conceivably have some factual relevance to the question whether the respondents have proved they have acted reasonably in publishing the matter in its character as making the imputation against the appellant, but not otherwise. In my opinion, the appellant has not identified any respect in which the primary judge should have taken unreasonableness as against Mr Macartney-Snape into account in this way, but did not do so. 121 I have said that, as part of establishing reasonableness, the onus is on the respondents to exclude malice; that is, in my opinion, relevantly an onus to show that their purpose in publishing the matter, in its character of conveying the defamatory imputation, was to give the audience information which the audience had an interest (or apparent interest) in having, and that the respondents did not have any other reason for this publication which was the dominant reason: cf Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [104]. 122 The primary judge did not address this issue of malice in this way, because he treated the onus as being on the appellant to prove malice. However, he did make the positive finding of reasonableness, and he did make the positive finding that the respondents believed that the imputation against the appellant was true. I have earlier held that there was a subject on which the audience of the broadcast had an interest in having information, namely the promulgation as a discovery of science of a potentially socially divisive doctrine with religious overtones, the recruitment of followers of the person promulgating that doctrine, and the effect of this on families; and in my opinion the evidence consistently points to a conclusion that the central purpose of the respondents in making the broadcast, and in particular the broadcast in its character as making the imputation against the appellant, was to give the audience information on that subject matter. 123 It is true that the evidence suggests that the respondents, and in particular Dr Millikan, considered the activities of the appellant to be highly undesirable in their impact on his followers and their families, and it can be inferred that a purpose of his in making the publication was to set back these activities. And it is true that the primary judge found that Dr Millikan engaged in misrepresentation to obtain the appellant's co-operation in making the broadcast. However, in my opinion neither of the these considerations suggest a dominant reason for the publication other than the purpose of providing information on the subject. The only means by which Dr Millikan was pursuing a purpose of setting back Mr Griffith's activities was by publishing matter, including matter making the imputation against the appellant which Dr Millikan believed to be true, and publishing it by conduct which was otherwise reasonable, thereby giving information to an audience on a subject on which the audience had an interest to have that information; and in my opinion, the purpose of setting back the appellant's activities cannot reasonably be considered a purpose distinct from his purpose of giving information in this way, much less a distinct dominant reason for making the publication. Certainly, the setting back of the appellant's activities was not the dominant purpose, and the publication of matter to give information that the audience had an interest in having was not merely subsidiary or incidental to it. The misrepresentation was also engaged in to enable the giving of information, not for any other purpose. I am affirmatively satisfied that the publication was not actuated by malice in any of the respondents. 124 For those reasons, I would not overturn the primary judge's finding that the conduct of the respondents in publishing the matter was reasonable, and that accordingly the defence under s 22 of the Act was made out. 125 In my opinion also, by parity of reasoning, the defence of statutory qualified privilege in Queensland and Tasmania was also made out.

I think, you know we are just going to have to put up with the fact that academia won't accept us, at least academia as it is now won't accept us. It's up to young people coming up in the ranks to, who who are sufficiently outrageous if you like in their preparedness to accept new ideas who who will take it on, who will realise the truth in it. (Ex N: lines 997-1002) 131 I would note in addition that the book being referred to by Dr Millikan and Professor Flannery was identified in the programme as Beyond the Human Condition, this book being identified by Mr Macartney-Snape at line 258 of the broadcast, and also being shown on the screen just before Professor Flannery's comment. 132 In my opinion, it is clear that the audience would have appreciated that the book being referred to by Dr Millikan and Professor Flannery was Beyond the Human Condition, this being a book which the appellant had published and thereby invited comment on. In relation to that kind of factual material, although readers or viewers may not be able to make their own judgment purely on the basis of what is presented to them, the identification of what has been submitted for comment is sufficient indication of the facts on which the comment may be based: Manock at [7]-[8]. 133 In my opinion, viewers would readily have recognised statements by Dr Millikan and Professor Flannery reflecting on the standard of the appellant's work as expression of their opinion of the book, rather than a bald assertion of fact. In my opinion, this is not altered by the circumstance that the respondents raised truth, and sought to defend the case inter alia by showing that the assessment by these persons was true. 134 That aspect of the imputation that asserts lack of any support from the scientific community appears to be based primarily on Ms Jackson's assertion that the appellant's "theories are widely derided by the scientific community" and Dr Millikan's assertion that the appellant is "alone, rejected by the scientific community". I do not think that the audience would recognise these assertions, or the part of the imputation based on them, as mere comment. I do not think there are distinct facts identified on which these assertions are based, nor do I think that these are the kind of assertions that would readily be recognised as comment. Accordingly, in my opinion, so much of the imputation as asserts lack of support is an assertion of fact, not comment. 135 This gives rise to the question of whether an imputation which consists partly of comment and partly of assertion of fact can be defended as comment. Certainly, if the sting of the defamation lies solely in the comment, I see no reason why not. In this case, however, it would seem that part of the sting lies in the assertion that the appellant's work has no support at all from the scientific community; so a defence that goes only to that part of the imputation that is comment might not be sufficient. 136 At common law, this position could have been addressed by what was called the rolled-up plea, which asserted to the effect that insofar as the material complained of consisted of statements of fact it was true, and insofar as it consisted of comment it was bona fide and fair comment on a matter of public interest. The Act does not explicitly provide for a defence along those lines; although s 35 (set out at par [9] above) could be taken as supporting that approach. 137 Certainly, if there is an imputation which contains a defamatory element that is comment (and is not shown to be true) and also a defamatory element that is not comment but assertion of fact (which is true), it would be highly unreasonable if there could be no defence at all because comment could apply only to the former but not the latter, while truth could apply only to the latter and not the former. I do not consider that the Act discloses an intention that this should be the case, and I do not accept it. 138 I think the better view is that s 35 has the effect that the defence of comment applies to so much of an imputation as is comment, and that so much of the imputation as is defamatory assertion of fact can be defended on some other basis, such as truth. 139 An alternative view is that one should take a broad view as to whether the imputation is, as a matter of substance, assertion of fact or comment; and deal with the totality of the imputation on this basis. On that alternative view, I would say that, although the imputation of lack of support in this case can be considered as having some defamatory sting, the predominant sting of the defamation goes to the standard of the appellant's work; so that if one must determine, as a matter of substance, whether the imputation is assertion of fact or comment, the imputation in this case should be considered as comment rather than assertion of fact. 140 As will be seen, I would consider a defence is made out, whichever of these views is adopted. 141 There is a further question whether what I have previously identified as part of the third element of the imputation (to the effect that the degree of poorness of standard was such as to cause the lack of support) can be considered comment. That element is not explicitly asserted in the passages relied on by the appellant, but rather is implied from a combination of the passages. In my opinion, since this aspect is so dependent on what is asserted about the standard of the appellant's work, and so directed towards an assessment of that standard, it would be understood by viewers as comment rather than bald assertion of fact. 142 Accordingly, in my opinion the imputation is comment, except to the extent that it asserts lack of support by the scientific community; and for reasons I have previously given, that assertion is true and relates to a matter of public interest, and its inclusion in the imputation does not preclude reliance on the defence of comment. 143 This analysis applies equally to New South Wales and other jurisdictions in which there are relevant statutory provisions, and also to jurisdictions in which the common law concerning comment is unmodified.

Griffith v Australian Broadcasting Corporation

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Cases Cited (23)

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