Griffith v Australian Broadcasting Corporation

Plaintiff's Experts Hartwig, Churchill, Prosen, Casebeer Research including reading publications/books by these experts; conferences; instructing experts $45,000 Preparation of Reports $10,000 Costs of witness attendance $75,000 Hearing: examination, cross-examination and re-examination (3 days) $30,000

Defendants' Experts Groves, Flannery, Henneberg Research including reading publications, books by experts $10,000 Read and consider Reports $11,000 Cross examination preparation $20,000 Hearing: examination, cross-examination and re-examination (3 days) $30,000

Submissions Plaintiff's Submissions Prepare Submissions in chief (17 of 103pp); $4,000 Defendants' Submissions Read and consider (41 of 196pp) $5,000 Plaintiff's Submissions Prepare Submissions in Reply (15 of 72pp) $7,000 Oral Submissions Half a day $5,000 TOTAL Approx. $300,000

21 The above table only represents the appellant's approximate costs of the justification defence in relation to the Imputation. 22 Kirby J ordered that the appellant pay the respondents' costs below. I am informed by and on behalf of Mr Griffith and verily believe that, subsequent to the making of the costs order by Kirby J, the respondents have provided the appellant with estimates of their costs below. I am informed and verily believe that the total costs incurred by the respondents that is solely attributable to the justification defence is likely to be in the order of $200,000 to $300,000. 5Mr Duhs' affidavit annexed a notice to admit facts and authenticity of documents served on 1 March 2007, and Mr Griffith's response of 13 March 2007; and also (as Annexure C) a letter dated 29 October 2010, which stated inter alia : Further again, there are readily apparent reasons why the findings of the Court of Appeal described above are correct. In that regard: a. In considering the justification defence, the Court of Appeal took the view that three essential issues were relevant: whether your client's work had any support from the scientific community, whether your client's work was of a poor standard, and whether such lack of support was caused by the work being of such standard. b. The Court of Appeal did not interfere with Kirby J's finding that your client's work had no support from the scientific community. Apart from its relevance to the justification defence, that fact was an essential aspect of the comment defence (on which our clients succeeded, as you know) as it formed part of the proper material for comment. It may also have relevance to the assessment of whether the relevant opinion was honestly held and expressed without malice. In addition, in our view that matter also had relevance to the assessment of "reasonableness" for the purposes of the statutory qualified privilege defence. While proof of that fact was neither necessary nor decisive in relation to the assessment of "reasonableness" (reasonableness being ultimately more concerned with what the defendants knew and believed at the time and why), the fact it was true that there was no support from the scientific community for your client's work does have a bearing on the assessment of the defendants' evidence concerning state of mind and the defendants' conduct generally. No doubt if the evidence had been that your client's work was supported by the scientific community, your clients would have submitted that that should be seen as evidence of a failure by our clients to act reasonably, e.g. on the basis that either they must have known about the existence of that support and hence knew the content of the matter complained of was false in that regard, or else that if our clients were not aware of that support it indicated a failure to take appropriate steps to verify that the contents of the matter complained of was true. Without accepting that such a submission ought to have been accepted in the circumstances of the case, it nonetheless shows the relevance of the existence or otherwise of support for your client's work from the scientific community. c. The Court of Appeal also did not interfere with Kirby J's finding that your client's work was of a poor standard. That fact is relevant to the comment and statutory qualified privilege defences, in addition to being relevant to justification. Regarding the statutory qualified privilege defence, it is relevant for the same sorts of reasons that the fact your client's work had no support from the scientific community is relevant. Regarding the comment defence, again it has a bearing on the assessment of whether the relevant opinion was honestly held and expressed without malice. d. All witnesses who gave evidence relevant to the truth of the assertions that your client's work was of a poor standard and that it lacked support from the scientific community (and indeed the cause of such lack of support) also gave evidence relevant to other matters. For example, as you will be aware, Professor Groves and Professor Flannery gave expert evidence but also, because they participated in the production of the matter complained of, gave evidence about their participation in the production process. That evidence was clearly relevant to the defence statutory qualified privilege, and in our view also to the comment defence. e. In addition, there is the issue of the assessment of damages in the event that your client's claim for defamation had succeeded. In that circumstance, evidence about the truth of aspects of the matter complained of, such as whether or not your client's work was of a poor standard and whether or not his work had support from the scientific community would have been relevant notwithstanding that the Court was not satisfied that the imputation as a whole had been proved true. The relevance of those matters would have been all the greater in view of your client's claim for aggravated damages, one of the particulars of which was that our clients knew that the matters complained of were false. The truth or otherwise of components of the imputation would have had a bearing, no doubt, on an assessment of the egregiousness of our clients' conduct and hence whether aggravated damages were payable and if so, in what sum. In the circumstances, it is clear that the issue of whether poor standard was causative of lack of support added little to the cost of the proceedings. On that basis, even if the Court of Appeal was to decide that there are appropriate grounds to reopen the order, taking into account all of the circumstances discussed above, in our view it is clear that the Court of Appeal would conclude that the orders made should not be varied. Finally, there is an additional matter which we will raise in the event that the Court of Appeal decides there are grounds to reopen the order. On 1 March 2007 a Notice to Admit Facts and Authenticity of Documents was served on your client. Your client responded to that notice by way of correspondence from his solicitors dated 13 March 2007 in which almost all of the relevant facts were denied. Copies of the notice and your client's response are attached for your reference. Having regard to the fact that a number of the matters which your client declined to admit were directly relevant to the issues of whether your client's work had any support from the scientific community and whether his work was of a poor standard, and our clients' success in proving those matters to be true, in our view your client's failure to make the relevant admissions provides yet another reason why the costs order made by the Court of Appeal should not be disturbed. 6Mr Duhs' affidavit continued: 6. Even if a defence of justification had not been pleaded, the defendants would still have put on expert evidence at trial concerning the standard of the applicant's relevant work, whether or not at the time of broadcast of the matter complained of there was any support from the scientific community for that work, and whether the standard of that work was the reason for a lack of support from the scientific community. That is because in my view that evidence would have been relevant to an assessment of the issues referred to in the letter which is Annexure C to this affidavit. 7Neither party sought to cross-examine on those affidavits, though the respondents did submit that there was no justification for admitting the further evidence. 8The application raises two issues: (1) Can and should the Court entertain the application? (2) If so, what order should be made?

Power to re-open 9Uniform Civil Procedure Rule 36.16 provides as follows: 36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9) (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. 10It was submitted for the respondents that r 36.16(3) does not apply: Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140 at [20]-[21]; Habib v Nationwide News Pty Limited (No 2) [2010] NSWCA 291 at [35]. I remain of the tentative view expressed in the latter case that Palmer is binding on the Court, and prevails over the contrary obiter in Hancock v Arnold (No 2) [2009] NSWCA 19 at [10], and so would accept the respondents' submission on this point. 11However, in my opinion r 36.16(3A) does apply, because the notice of motion was filed within fourteen days after the order disposing of the appeal was made; so that the Court does have power to make a different order concerning the costs of the first instance proceedings. 12It was submitted for the respondents that the power remains circumscribed by the limitations that the general law imposed on the power to set aside or vary a judgment or order prior to that judgment or order being entered. Accordingly, the respondents submitted, exceptional circumstances were required; and generally the power would not be exercised unless the applicant could show that without fault on its part it has not been heard: State Rail Authority of NSW v Codelfa Construction Pty Limited [1982] HCA 51; (1982) 150 CLR 29 at 38, Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 674, Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303. 13However, in my opinion, as submitted for Mr Griffith, there are acceptable reasons why the submissions now sought to be made were not made at the hearing of the appeal. There were many issues in the case, and it would not have been a reasonable use of resources to devote submissions as to the appropriate order as to costs, particularly the costs at first instance, until the Court of Appeal gave its decision on these issues. I note that it is only the first instance costs order that Mr Griffith now seeks to have changed. 14In my opinion, the Court should now consider, without any inhibition, what is the appropriate order for costs at first instance in the light of its decision of the appeal.

What order should be made: principles 15It was submitted for Mr Griffith that a successful party may be deprived of costs, and ordered to pay the other party's cost, in respect of an issue lost by the successful party, where that issue was clearly dominant or severable: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64], Waters v P C Henderson (Australia) Pty Ltd [1994] NSWCA, 338. 16I accept that a successful party may be deprived of costs and ordered to pay the other party's costs in those circumstances. I adhere to what I said on this question (Beazley and McColl JJA agreeing) in Turkmani v Visvalingam (No 2) [2009] NSWCA 279 at [9]-[13]: [9] The applicable principles were stated as follows in the joint judgment of Beazley, Tobias and McColl JJA in James v Surf Road Nominees (No 2) [2005] NSWCA 296 at [31]-[33]: [31] Costs orders in the Supreme Court are governed by the provisions of s 76 of the Supreme Court Act 1997 and the Supreme Court Rules . Section 76 provides, relevantly that subject to the Act and the Rules, costs shall be in the discretion of the Court: s 76(1)(A). Part 52A r 11 acts as a limited proscription of the Court's discretion conferred by s 76. Part 52A r 11 provides that, subject to Pt 52A, the Court shall order that costs follow the event "except where it appears to the Court that some other order should be made as to the whole or any part of the costs". [32] The effect of Pt 52A r 11 is that an unsuccessful party may be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues. However, as is specified by the rule itself, the Court is entitled to make a different order. That may occur where there are multiple issues involved. This was the subject of comment in Waters v P C Henderson (Aust) Pty Ltd (unreported CA(NSW) Kirby P, Mahoney and Priestley JJA, 6 July 1994) where Mahoney JA said: Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless, unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed. [33] Similarly, Toohey J made the following observations in Hughes v Western Australian Cricket Association (1986) ATPR 40-748:

1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.
2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. (references omitted) [10] Those paragraphs were quoted with approval in Roads and Traffic Authority v McGregor (No 2) [2005] NSWCA 453 at [17]: and there are similar statements of principle in Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [63]-[65] and Rockdale City Council v Micro Developments Pty Ltd [2008] NSWCA 128 at [115]. [11] In the present case, in my opinion, the issues of liability and apportionment for contributory negligence were not clearly severable: all the arguments relied on by the appellant with a view to negativing liability had, to a greater or lesser extent, some bearing on the Court's overall assessment of the respective degrees of fault of the appellant and the deceased. [12] The principles stated in the cases have an alternative basis for departure from the usual order as to costs, namely where the successful party fails on a "clearly dominant issue". That seems to suggest that if an issue can be identified that was clearly dominant, on which the successful party failed, the usual order may be departed from even though that issue was not clearly severable. Here, the respondents argued to the effect that the issue of liability was clearly dominant. [13] The question of whether a departure from the ordinary rule might be justified on this basis should, in my opinion, be approached having regard to the idea of fairness underlying the making of costs orders, which I expressed as follows in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]: [121] In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach. 17Other cases in which similar principles have been expressed include Elite Protective Personnel Pty Limited v Salmon (No 2) [2007] NSWCA 373, and Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304. 18It is clear that this approach is not limited to cases where it was unreasonable for the successful party to raise the issue on which it failed: Rosniak v GIO (1997) 41 NSWLR 608 at 615D. However, the principles only identify cases in which it may be appropriate to depart from the usual result as to costs, not cases in which the court must do so: James at [34]-[36]. 19Further, in my opinion, the underlying principles concerning costs identified in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121] and Ohn v Walton (1995) 36 NSWLR 77 at 79 (referred to in Turkmani at [13]) suggest that the application of these principles may not be exactly the same for successful defendants as for successful plaintiffs. In the former case, the defendant has been caused to incur costs in defending a claim which the decision in the case has wholly rejected, and has thus determined should not have brought about the incurring of any costs at all. In those circumstances, it may be considered appropriate that the defendant have costs associated with reasonable defences, even if they ultimately proved to be unsuccessful and severable. In the latter case, the plaintiff has chosen to bring the whole proceedings and thereby to incur costs and cause costs to be incurred which otherwise would not have been incurred; and in those circumstances, it may be seen more readily as appropriate that the plaintiff be liable for the costs of unsuccessful severable claims or issues, even if it was reasonable to include those claims or issues. 20Most of the cases in which these principles have been considered are cases where a successful plaintiff (or appellant) has not recovered full costs. Two cases which did concern successful defendants (or respondents) give some support to the distinction I have drawn in the previous paragraph: Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24]-[25], and Sydney Ferries v Morton (No 2) [2010] NSWCA 238 at [18]. However, this distinction is not necessary for my decision in this case.

What order should be made: application of principles 21It was submitted for Mr Griffith that the issue of justification, on which the respondents were unsuccessful, was severable from other issues in the trial below, so that the respondent should pay the very substantial costs caused by the raising of that issue. The appellant placed reliance on paragraphs 13 to 22 of Mr Hazan's affidavit of 8 November 2010, submitting that the respondents had not put on evidence to contradict this, or sought to cross-examine Mr Hazan. 22However, I note that a different view is expressed in paragraph 6 of Mr Duhs' affidavit; and in my opinion it is necessary for the Court to come to its own view as to the extent to which the issue of justification was severable from issues on which the respondents succeeded. Then the Court must decide whether this would justify a departure from the usual result of costs following the event, and if so to what extent. 23The principal submission for Mr Griffith (reflected in order 1(b) sought in the notice of motion), that the issue of justification was severable from other issues, is plainly wrong. An important part of the issue of justification was the question whether or not the appellant's published work had no support at all from the scientific community; and that question squarely arose, and was determined in favour of the respondents, in relation to the defence of comment on which the respondents succeeded. 24If any different order for costs is to be justified, it must be on a narrower basis than this. I take Mr Griffith also to be submitting that two sub-issues in relation to the issue of justification, namely the question whether or not the appellant's published work was of a poor standard, and what has been called the question of causation, were severable from other issues. On the first of those sub-issues, Mr Griffith failed, while on the second he succeeded. I take Mr Griffith to be contending (1) that these two sub-issues are severable from the sub-issue concerning support from the scientific community, but are not severable from each other; and (2) that Mr Griffith succeeded on these two sub-issues considered together (because the respondents needed to succeed on both of them in order to make out the defence of justification). 25However, in my opinion the sub-issue as to whether the appellant's work was of a poor standard, on which the respondents succeeded, cannot be severed from other issues on which the respondents succeeded, as Mr Griffith contends; and the costs now claimed by Mr Griffith concern that sub-issue, at least as much as the "causation" sub-issue on which Mr Griffith succeeded. 26If the respondents proved that the work was of a poor standard, this would be of relevance to and would tend to assist the respondents' contention that the work had no support at all from the scientific community (and thereby to assist the defence of comment). For example, it would assist contentions to the effect that what otherwise might be interpreted as support was not relevant support for the work (that is, as a work of science) but rather support for it as an ethical or quasi-religious work. It would also assist the defence of comment by suggesting that the opinion expressed in the comment was an opinion which the relevant persons associated with the ABC could, as reasonable people, have genuinely held. 27In my opinion, proof that the work was of a poor standard would also assist the defence of statutory qualified privilege, as going to the reasonableness of the respondents' conduct in publishing the imputation. By tending to support a finding that the relevant people, as reasonable people, believed the imputation to be true, it would support a contention that their purpose was to give the audience information which it had an interest in hearing, and that there was no other reason for publishing the imputation which was the dominant reason. It would also help to explain why the respondents did not include supportive opinions in the broadcast. 28Having regard to all these considerations, in my opinion a case is not made out for departing from the usual result as to costs.

Conclusion 29In my opinion the following order should be made: Notice of Motion dismissed with costs. 30BASTEN JA: The appellant seeks to vary the orders made by the Court on 7 October 2010 in two respects. First, with respect to the costs of the appeal, the appellant seeks an order that he pay the respondent's costs of the appeal. The order made by this Court was "Appeal dismissed with costs": the proposed variation is purely semantic and is unnecessary. 31Secondly, the appellant seeks an order varying the costs order made by the trial judge, requiring him to pay the costs of the defendants. The variation he now seeks is to except from that order the costs of the defence of truth, which was rejected in this Court, although other defences were upheld, with the result that the appeal was dismissed. 32It is slightly curious that the appellant did not seek to make a similar exception with respect to the burden of costs payable by him in relation to the appeal. He may have thought that the issues were more intertwined at the appeal than at trial, or that the amount involved in respect of the one aspect of the appeal on which he succeeded was not worth separate consideration. 33Subject to the remarks which follow, I agree with Hodgson JA that: (a) the Court has power to consider the application to vary the costs orders; (b) there are cases in which a party successful on one issue but ultimately unsuccessful may be relieved of the obligation to pay the costs in relation to that issue, and (c) in the present case, the notice of motion should be dismissed and the applicant ordered to pay the respondent's costs of the motion.

Power to reopen entered orders 34Because an application was made to vary the order with respect to costs, within 14 days after entry of the judgment and orders of this Court, the Court has power to vary the judgment or orders pursuant to the Uniform Civil Procedure Rules, r 36.16(3A). In that circumstance, it is not necessary to consider whether such a power is also available under sub-r (3). Having been party to the decision in Hancock v Arnold (No 2) [2009] NSWCA 19, I acknowledge the apparent inconsistency between the view expressed in that case (that a costs order might be varied pursuant to sub-r (3), where no notice of motion had been filed within 14 days) and the contrary view expressed in Roads and Traffic Authority of New South Wales v Palmer (No 2) [2005] NSWCA 140 at [20]-[21], with respect to the predecessor of sub-r (3), namely Supreme Court Rules, Pt 40, r 9(4). That authority was not referred to in Hancock v Arnold (No 2) ; it should, as Hodgson JA states, be followed as applicable to the equivalent rule in the UCPR, until expressly departed from in a reasoned judgment of the Court. Accordingly, I agree that the present application cannot be brought under sub-r (3).

Propriety of order made 35I agree with Hodgson JA that the application should not be rejected because the issue was not raised at the hearing of the appeal. While the application might have been foreshadowed, depending on the outcome of the appeal proceedings, little would have been gained by taking such a course. 36The principle underlying an award of costs is that they are "compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings": see Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 543 (Mason CJ); see also 567 (McHugh J). 37The general rule in this jurisdiction is that "costs follow the event": Civil Procedure Act , s 98 and UCPR, r 42.1. How "the event" should be defined will depend upon the nature of the litigation. Similarly, the rule allows, in express terms, for exceptions. 38In Australian Conversation Foundation v Forestry Commission (1988) 81 ALR 166, at 169, Burchett J, referring to Hughes v Western Australian Cricket Association Inc (1986) ATPR 48-134 at 48,136-7, stated: "In that judgment Toohey J cited the warning of Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 16 against the too ready assumption that a party who has substantially failed may nevertheless recoup something in respect of costs by virtue of his success on a particular issue. Undoubtedly, in some cases he may; but in others he may not. In the case before him, Toohey J proceeded on the basis that, though there should be some allowance against the successful party in respect of issues on which he failed he 'succeeded substantially in what he set out to achieve through his application'. ... A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably he may suffer in costs. Ultimately, the question is one of discretion and judgment." 39Even were it otherwise, caution should be taken in allowing an unsuccessful plaintiff to resist payment of costs in respect of particular independent defences which are unsuccessful or need not be addressed. There may be reasons why the Court should properly deal with more than one sufficient defence - see Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1 at [12] - but the need to make some adjustment to costs orders on account of defences unnecessary for the defendant's success should not become a reason for extending the scope of a judgment. 40It could not be said in the present case that the defence of truth was unreasonably raised; nor was it, as explained by Hodgson JA, entirely severable in all its aspects from other defences. Accordingly, the motion should fail. 41McCLELLAN CJ at CL: I agree with Hodgson JA.

Amendments 14 June 2011 - corrected name of appellant's solicitors Amended paragraphs: cover sheet 14 June 2011 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2011