Griffith v John Fairfax Publications - [2004] NSWCA 300 - NSWCA 2004 case summary — Zoe

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Griffith v John Fairfax Publications

[2004] NSWCA 300

Court of Appeal (NSW)|2004-08-23|Before: Sheller JA, Tobias JA, Young CJ, Levine J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2004-08-23

Before

Sheller JA, Tobias JA, Young CJ, Levine J

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

CITATION : Griffith v John Fairfax Publications [2004] NSWCA 300 HEARING DATE(S) : 23 August 2004 JUDGMENT DATE : 20 October 2004

[2]

JUDGMENT OF : Sheller JA at 1; Tobias JA at 2; Young CJ in Eq at 57 DECISION : (a) Appeal allowed in part; (b) Vary Order 1 made by Levine J on 19 February 2004 by deleting therefrom the reference to imputation 6(i) and by adding thereto a reference to imputations 12(d), 13(b) and 14(b); (c) Vary Order 2 made by Levine J on 19 February 2004 by adding thereto a reference to imputation 6(i); (d) Vary Order 3 made by Levine J on 19 February 2004 by deleting therefrom the reference to imputations 12(d), 13(b) and 14(b); (e) Order that paragraph 15 of the Amended Statement of Claim be struck out but that leave be granted to the appellants to replead the allegation of republication of part of the first matter complained of by its inclusion within the second matter complained of by filing a further amended statement of claim within 21 days of the date of those orders; (f) Order that the appellants pay the first and second respondents' costs of the republication issue including the costs of the Notice of Contention; (g) Order that the first and second respondents pay the costs of the appeal with respect to the first matter complained of; (h) Order that the third respondent pay the costs of the appeal with respect to the second matter complained of but to have, if qualified, a certificate under the Suitor's Fund Act, 1951

[11]

The primary judge's reasons 14 As to imputation 6(g), the primary judge noted that this imputation contained a component cognate with components of the other imputations to which I have referred, this being the notion of "dangerous". He then said: "29. The ordinary reasonable reader could understand the first plaintiff to be the founder and leader of the second plaintiff. The ordinary reasonable reader could understand the matter complained of as speaking of the second plaintiff as a cult, especially by reference to the religious connotations arising from statements about the first plaintiff vis-à-vis Jesus Christ and as a prophet. 30. What I am unable to conclude is that this matter complained of is capable of carrying the idea that the " cult " is dangerous and that it poses a threat to the community. Not all elements of this imputation can be made out on a capacity basis: compare Simpson J in Griffith v Australian Broadcasting Corporation , supra at paras [51]-[64]. 31. Accordingly, I find the matter complained of incapable of carrying imputation 6(g) and therefore enter a verdict in favour of the first and second defendants against the first plaintiff in respect of that cause of action." 15 As to imputations 7(a), 8(b), 8(c) and 9(a), his Honour concluded (at [37], [42] and [47]-[49]) that for the reasons referred to by him with respect to imputations 6(g), the matter complained of was incapable of carrying those imputations. 16 As to imputation 12(d) alleged with respect to the second matter complained of, the primary judge said: "84. In relation to this imputation an objection is taken as to form on the basis that the imputation is vague and embarrassing because it does not specify the form of " destruction " or the type of " threat to the community ". It is suggested that " destructiveness " and, presumably, " threat " is cognate with " corrupt " as referred to and dealt with by the Chief Justice especially in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. 85. It is to be noted in relation to this matter that the first plaintiff simply relies on the whole of the matter complained of. Whether that is so or whether the first plaintiff can be understood as divining paths to the imputation from other parts of the matter, it seems to me that the argument as to form is hair-splitting to say the least. The simplest answer is that that imputation means what it says, and nothing in the second matter complained of as a whole, and certainly the SMH extract, is capable of carrying it. 86. Accordingly I hold that imputation 12(d) is incapable of being carried by the second matter complained of and there shall be a verdict for the defendants against the first plaintiff in respect of that cause of action." 17 As to imputations 13(b) and 14(b), the primary judge held that for the reasons stated by him with respect to imputation 12(d), the second matter complained of was incapable of carrying those imputations.

[24]

The issues on the appeal with respect to the first matter complained of 21 The appellants' approach in their oral argument on the appeal was to take the Court through the matters complained of in some detail indicating the nature of the possible arguments that would, or at least could, be advanced to the jury to persuade it that the matter complained of carried the alleged imputation. To take but one example, at lines 85-88 of the first matter complained of, the following is stated: "In the past four years, Griffith and Macartney-Snape have been organising 'walks' in isolated parts of Eastern Australia, taking parties of 30 to 50 young people on what are first of all concentrated encounters with the prophet [Mr Griffith]." 22 It was submitted that the author, by putting the word "walks" in inverted commas, inferred that the activity was not, in fact some form of bushwalking recreational experience but, in truth, indoctrination sessions, whereby young people were taken to isolated areas and, in their "concentrated encounters" with Mr Griffith, brainwashed. 23 However, as the principles to which I have referred above demonstrate, a judge must be very conscious when dealing with a s 7A(1) issue to avoid the lawyer's temptation to parse the matter complained of by adopting a detailed consideration of the words employed, whilst keeping in mind the imputation objected to, in order to see whether it can be teased out of those words. The ordinary reasonable reader although not living in an ivory tower and capable of, and in fact, reading between the lines in the light of his or her general knowledge and experience of worldly affairs, nonetheless comes to the matter complained of without any preconceptions and without any idea as to what may be inferred from a reading of that matter by the time he or she has finished doing so. It is therefore in accordance with these principles that I approach the issues in the present case. 24 The first matter complained of states that it is about "David Millikan on the 'reconciler of good and evil' [Mr Griffith] who is now gathering adherents at Sydney's top schools." 25 Reference is made to Mr Griffith as an extraordinarily driven man convinced that he is a prophet. It asserts that Mr Griffith is well aware of the outrageous nature of his claims such as, for example, that he believes that he is a "greater figure than Jesus Christ"

[28]

Reference is then made to a 1992 book of Mr Griffith launched by Mr Macartney-Snape and which was met with a "tidal wave of silence", and less than flattering reviews. 29 Next, reference is made to that part of the first matter complained of in which Mr Griffith's relationship with his own family is referred to, including the assertion that he "has had the most savage fight with his family to the point that he will no longer open his mother's letters to him. The split occurred because none but his younger brother Simon, could accept that Jeremy was a prophet." 30 Together with that part of the matter complained of that I have extracted in [26] above, the appellants submit that the following extract from the (first) matter complained of was the high point from which it could be concluded that it was reasonably capable of carrying the subject imputation. I set it out in full: "There is one aspect of Griffith's view of Christ which is a little worrying. He says that Christ had to 'self-eliminate'. What I understand he means is that Christ had the nobility of mind to realise that he was less important as a personality than the ideas that he was putting forward. So he chose to 'take himself out of the picture'. It amounts to an elaborate form of suicide in the cause of the clearer progress of the ideas. It initially made me worry whether Griffith might see the same necessity for himself or his followers. I asked him this question, but I sense that Griffith sees himself as further along the path than Christ and thus is not likely to be confronted with the choice so dramatically." 31 The foregoing extract is followed by reference to Mr Griffith's theory that, long ago, the evolutionary development of human beings reached the stage where they became capable of self-analysis and could question the role of the instincts which created anger, egocentricity and alienation and formed the root of the human struggle as well as souring the relationship between men and women and "turned sex into rape. There is a dark dimension to Griffith's view of women and sex." 32 Reference is then made to bright and intelligent young women "fresh from women's studies" stepping into a world which "has the potential to strip away the gains of the past 100 years. On the walk in the Snowy Mountains, the women did all the cooking, the serving and cleaning up. The culture of the group is a 'strangely old-fashioned' Australian look. The men grouped together, singing drunkenly, burping and urinating." 33 This last-mentioned reference might be taken in conjunction with the photograph at the commencement of the article which shows Mr Griffith, Mr Macartney-Snape and a number of women of which one (to the left of Mr Griffith) was submitted to be "zombie like" in her appearance, it being suggested that the photograph was "sinister". The caption to the photograph is "a strangely old-fashioned Australian look" 34 It was further submitted that it would be open to the jury to find that the photograph depicted women who had been brainwashed into subjugation thus stripping "away the gains of the past 100 years". 35 Although I accept, as pointed out by McHugh J in Rivkin (at [24]) that "for the purposes of a defamation action, the natural ordinary meaning of words contain 'all such insinuations and innuendos as could reasonably be read into them by the ordinary man' ",

[31]

The issues on the appeal with respect to the second matter complained of 38 The Newsletter was headed "An Australian Review of Press Articles relating to Cultism and Unethical Social Influence". It stated that CultAware's objective "is to focus on activities and mental health implications of destructive groups and mind-control techniques" 39 Having set out a Table of Contents which included a reference to the FHA, it then contained the following disclaimer: "All the views expressed in this newsletter are not necessarily those of CultAware. Neither does the mention of a group necessarily imply that CultAware considers it destructive, or cultic, in nature. Enquiries may well be received about groups that are, in fact, constructive and ethical." 40 There follows a section said to be "From the Chairperson", being the third respondent. It contains the following assertion: "CultAware avoids making comments about belief systems as we believe that people have a right to any freely chosen belief system. Our 'targets' are deceptive recruitment, hidden agendas, uninvited mind control or thought reform techniques, and reprehensible behaviour." 41 In the following paragraph a reference is made to the desirability of a potential recruit being fully informed before, or soon after, the first approach "by a destructive group". 42 The section of the Newsletter "From the Chairperson" concludes in the following terms: "Finally, I hope that readers of this first newsletter will appreciate the contents and gain an increased awareness of the impact of destructive groups in our society. Australia is no cult-free island. There are hundreds of such groups in our midst. Most never reach the level of press exposure gained by the activities of the more 'sensational' groups." 43 There follows the heading - "EXIT COUNSELLING DEBUNKED?". An extract from an article by a Richard Giles is quoted dealing with "deprogramming" which is said to be the process of removing "unwanted brainwashing from a former cult member'. It is stated to be based "on the assumption that people in organisations and religions which have been deemed destructive have been 'brainwashed' through isolation, sleep and food deprivation, information censorship and manipulation through hypnosis or forms of suggestibility." 44 The Newsletter then has the heading "CULTAWARE INQUIRIES (to June 30th 1995)". Immediately following is this "Note": " The fact that an enquiry was made DOES NOT render the group destructive"

[33]

The Newsletter went on to state that it was essential, with respect to cult issues, for contributors to provide, inter alia, any material forwarded to them by " A GROUP THAT MAY BE DESTRUCTIVE IN NATURE ". 47 The Newsletter then proceeded to deal in more detail with a further five of the 55 groups listed including the FHA. It did this by setting out extracts from various publications - particularly newspapers - concerning the particular groups. I shall set out in full the extract relating to the FHA: "FOUNDATION FOR HUMANITIES' ADULTHOOD (FHA) This group was the focus of the ABC's Four corners program of April 1995. The program was produced by Rev. Dr. David Millikan. On the afternoon of the same day Radio National interviewed CultAware supporter Rick Larsen and FHA leader Jeremy Griffith. Extract from Sydney Morning herald, April 22nd 1995. 'Prophet of the Posh … Tim McCartney-Snape (sic), Australian hero, Order of Australia, whom thousands of young bushwalkers and adventurers take as a model, has thrown in his lot with a man who is calling himself Australia's only true prophet. Jeremy Griffith is an unlikely person to capture the allegiance. Griffith is an extraordinarily driven man who is convinced he is a prophet. In fact he says he is the only truly "innocent" and enlightened prophet that the world has ever seen … Jeremy Griffith is well aware of the outrageous nature of the claims that he makes. And he makes many of them. For example, he believes that he is a greater figure than Jesus Christ … Griffith believes he has taken the missing step which eluded Christ, and provided an answer to the problem of the human condition itself … Griffith is gathering his followers from the homes of the healthy and privileged. He says: "Those who cope best with this understanding are the highly intelligent, well-educated and highly nurtured 19-25 year olds." … But the foundation is surrounded by controversy and the complaints of parents who say that the demands of the foundation are tearing their families apart … Extract from: 'The Northern Daily Leader', May 27th 1995. '…The FHA strongly objected to the way the documentary was presented, describing it as a witch hunt, and to statements Dr Millikan had made…' Since the documentary, Messrs Griffith and Macartney-Snape (sic) have demanded apologies from Dr Millikan and the ABC due to the manner in which the FHA has been portrayed. Dr Millikan however stands his ground… Dr Millikan described the FHA as an eccentric, small organisation which believes implicitly in the status of Jeremy Griffith as a modern-day prophet. He said Mr Griffith's 100-plus followers, the majority of which are under the age of 25, see him as a type of messiah bringing the truth to this generation. 'They see themselves as a vanguard, as the first troops in an assault to create a new era, a new age,' Dr Millikan said. 'This is about changing the face of the world as we know it. They believe they have the truth to change the world - I wish they did.' …" 48 It was submitted by the respondents that the extract from the first matter complained of, and reproduced in part in the second matter complained of, was but a sanitised version of the original containing some 26 lines compared to the original of 210 lines. Furthermore, it contained only a small portion of what the appellants submitted were the high points of that matter namely, the reference to the FHA being surrounded by controversy and the complaints of parents who said that its demands "were tearing their families apart". 49 It was further submitted by the respondents and, in particular, by the third respondent, that upon the assumption that the first matter complained of did not carry the imputation of a "dangerous cult which poses a threat to the community", it would inevitably follow that the extract from that matter set out in [47] above, was incapable of carrying the imputation that the FHA was a "destructive cult which poses a threat to the community". It was submitted that the reference to the demands of the FHA tearing families apart was not of itself capable of conveying that imputation. In this respect it was contended that the vague notion of a "threat to the community" should be construed by reference to a threat to the social fabric or bonds of the community. 50 Furthermore, it was submitted by the third respondent that all the second matter complained of was doing was quoting extracts from other publications and did not consist of any independent inquiries that would enable the ordinary reasonable reader to link the FHA to the other cults referred to in other parts of the Newsletter. It was then submitted that firstly, the Newsletter was simply asserting that the reader was in the same position as the third respondent to judge the FHA and, secondly, in any event the reference in other parts of the matter complained of to "destructive groups" was a reference to the impact of such groups upon individuals rather than the community at large. 51 In my opinion, there are a number of significant distinctions between the first and second matters complained of. Firstly, the latter contains a number of express references to "destructive groups". Secondly, it refers to the "targets" of CultAware as "deceptive recruitment, hidden agendas, uninvited mind control or thought reform techniques and reprehensible behaviour". Thirdly, out of some 55 groups, in respect of which it is asserted that inquiries have been addressed to CultAware, only a relative few are referred to again or in more detail. However, the FHA is one of these few. Fourthly, the extract with respect to the FHA immediately follows that relating to "AUM SUPREME TRUTH" and its leader, Shoko Asahara who, according to an extract from the "West Australian", was accused of the Tokyo subway gas attack. That extract also refers to that cult's purpose in developing nuclear weapons and nerve gas in preparation for an Armageddon that Shoko Asahara predicted for later "this decade" and that he had predicted a war between Japan and the United States as part of his Armageddon prophecy. There could be little doubt that the references to that group could carry the subject imputation without difficulty. 52 Certainly, those portions of the Newsletter that identify particular groups including the FHA are confined to extracts from other publications including a number of newspapers. Nevertheless, although the reference to the FHA is confined relevantly to what I would accept as a sanitised version of the first matter complained of, the Newsletter singles out the FHA among a limited number of others as a group apparently worthy of particular mention in the context of a newsletter whose express objective is to focus on the "activities and mental health implications of destructive groups". It would, in my opinion, be open to an ordinary reasonable reader to infer "guilt by association" between those groups and the FHA. 53 In my opinion, therefore, I regard the second matter complained of as being in a different category to the first matter complained of. In my view it would be open to the ordinary reasonable reader, when considering that matter as a whole, to conclude that it carried the imputation in question. It follows, with respect, that I consider that the primary judge erred in failing to determine that the second matter complained of was reasonably capable of carrying imputations 12(d), 13(b) and 14(b).