New South Wales Court of Appeal CITATION : Griffith v John Fairfax Publications [2004] NSWCA 300 HEARING DATE(S) : 23 August 2004 JUDGMENT DATE : 20 October 2004 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 CATCHWORDS : DEFAMATION - Imputations - Conveyance of - Whether reasonably capable of being conveyed - Whether matter ought to have gone to jury - s7A(1) Defamation Act 1974 LEGISLATION CITED : Defamation Act 1974 CASES CITED : Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657 Jeremy Norman Griffith Foundation for Humanity's Adulthood Timothy John Macartney-Snape PARTIES : The Persons Named in Schedule "A" to the Notice of Appeal with Appointment John Fairfax Publications Pty Ltd David Millikan William Anthony McClelland t/as "Cultaware" FILE NUMBER(S) : CA 40188/04 A: K P Smark COUNSEL : 1R & RS: R Lancaster / N Owens R3: P Menadue A: Schweizer Kobras, Sydney SOLICITORS : 1R & 2R: Freehills, Sydney 3R: William Anthony McClelland LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 20301/01 FILE NUMBER(S) : LOWER COURT Levine J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40188/04 SC 20301/01 SHELLER JA TOBIAS JA YOUNG CJ in Eq Wednesday 20 October 2004 JEREMY NORMAN GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS Judgment 1 SHELLER JA: I agree with Tobias JA. 2 TOBIAS JA: By an Amended Statement of Claim (ASC) filed on 26 July 2002, the appellants sue the first and second respondents in respect of the publication in the "Sydney Morning Herald" on 22 April 1995 of an article under the heading "Profit of the Posh" (the first matter complained of). The second appellant (FHA) is alleged in the ASC to be a company limited by guarantee and, according to the first matter complained of, a "NSW registered charity". The third appellant (Mr Macartney-Snape) is said to be a director of the FHA. The fourth appellants comprise 33 individuals who, for present purposes, were taken to be members of the FHA. 3 The first, second and third appellants also sue the third respondent (CultAware) with respect to the publication by him in or about August 1995 of what is described as the "CultAware Newsletter, August/October 1995" (the Newsletter) and which is headed "CULTWATCH". It is the second matter complained of. The relevant imputations alleged in respect of the first matter complained of 4 The appellants allege that the first matter complained of in its natural and ordinary meaning conveys a number of imputations defamatory of the appellants. Relevantly for present purposes, paragraph 6(g) of the ASC alleges the following imputation as defamatory of the first appellant (Mr Griffith): "Jeremy Griffith is the founder and leader of a dangerous cult which poses a threat to the community." 5 Paragraph 7(a) of the ASC alleges the following imputation as defamatory of the FHA: "The FHA is a dangerous cult which poses a threat to the community." 6 Paragraphs 8(b) and (c) of the first matter complained of allege the following imputations as defamatory of Mr Macartney-Snape: "(b) Tim Macartney-Snape has sought to recruit students at schools to a dangerous cult which poses a threat to the community; (c) Tim Macartney-Snape is a member of a dangerous cult which poses a threat to the community." 7 Finally, paragraph 9(a) of the ASC alleges the following imputation as defamatory of each of the FHA members comprising the fourth appellants: "Each of the FHA members is a member of a dangerous cult which poses a threat to the community." The relevant imputations alleged in respect of the second matter complained of 8 The first, second and third appellants allege that in its natural and ordinary meaning the second matter complained of contains a number of imputations defamatory of them. Relevantly for present purposes, paragraph 12(d) of the ASC alleges that the following imputation as defamatory of Mr Griffith: "(d) Jeremy Griffith is the leader of a destructive cult which poses a threat to the community." 9 Paragraph 13(b) alleges the following imputation as defamatory of the FHA: "The FHA is a destructive cult which poses a threat to the community." 10 Finally, paragraph 14(b) alleges the following imputation as defamatory of Mr Macartney-Snape: "Tim Macartney-Snape is a member of a destructive cult which poses a threat to the community." The dispute 11 The respondents filed a notice pursuant to Part 67 rule 12A of the Supreme Court Rules objecting, inter alia, to each of the aforementioned imputations upon the ground that each was not reasonably capable of arising from the matter complained of read as a whole. 12 Levine J determined these and other objections on 19 February 2004 when he ordered, inter alia, that verdicts in respect of those imputations be entered for the respondents. It is from those orders that the appellants appeal to this Court. 13 It should be noted that Order 1 made by his Honour left to the jury a number of imputations allegedly carried by both matters complained of; Order 2 entered verdicts for the first and second respondents with respect to a number of imputations allegedly carried by the first matter complained of (including those the subject of this appeal) and Order 3 entered verdicts for all three respondents with respect to a number of imputations allegedly carried by the second matter complained of (including those the subject of this appeal). 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. The relevant legal principles 18 Pursuant to s 7A(1) of the Defamation Act 1974 (the Act), the primary judge was required "to determine whether the matter complained of is reasonably capable of carrying the imputations pleaded by the plaintiff." By s 7A(2) of the Act if the court determines that the matter is not reasonably capable of carrying the imputation pleaded, it is required to enter a verdict for the defendant in relation to that imputation. 19 The principles applicable to the correct approach of the primary judge and this Court to the issue posed by s 7A(1) were authoritatively stated by Hunt CJ at CL, with whom Mason P and Handley JA agreed, in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164-167. Relevantly for present purposes, those principles may be summarised as follows: (a) Section 7A(1) of the Act is declaratory of the common law, namely, that the issue of the capacity of the matter complained of in a defamation action was properly described as the task of deciding whether it would be open to the jury in the particular case to find that ordinary reasonable readers would have understood the matter complained of, when read as a whole, in the defamatory sense pleaded. (b) On any appeal, this Court is required to independently come to the conclusion as to whether there is a case to go to the jury. (c) If reasonable persons may differ as to whether the matter complained of was capable of carrying the imputation pleaded, then the issue must be left to the jury; otherwise, it is a matter for the court. (d) The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it; in deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; accordingly, any strained or forced or utterly unreasonable interpretation must be rejected. (e) The ordinary reasonable reader is a person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal. However, that person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs. (f) The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader. (g) The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. (h) There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual. (i) There is a distinction to be drawn in the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded. The distinction is between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said: it is the former approach, not the latter, which must be adopted. 20 Although in dissent as to the result, the foregoing principles were re-stated by McHugh J in John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657 where his Honour observed (at 1161 [26]) (omitting citations): "However, although a reasonable reader may engage in some loose thinking, he or she is not a person 'avid for scandal'. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If '[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together'. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article." See also Callinan J, with whom Gleeson CJ agreed, at 1699 [181]. 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" and that he has taken the missing step which eluded Christ by providing an answer to the problem of the human condition itself. 26 After quoting from one of the FHA's newsletters in which Mr Griffith says that he has reconciled good and evil, God and man, women and men etc, and "brought peace to the human situation or condition" and that his followers are from the homes of the healthy and privileged, being highly intelligent, well-educated and highly nurtured 19-25 year olds, the matter complained of asserts that Mr Griffith is intent "on nothing less than articulating a total world order with a new educational system, a new view of law and business in human relationships." 27 A particular passage relied upon by the appellants is as follows: "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. In 1993, a family in Brisbane spent considerable amounts of money employing the American cult expert and one-time deprogrammer, Steven Hassan, to prevail on their son to step away from the foundation, but without success. At the University of New England at Armidale, the Master of Robb College, Mrs Jan Wyles, is concerned about the influence of a small group of Griffith followers within the college. The other students, employing the black humour of undergraduates everywhere, call them 'the Waco mob'." It was submitted that this statement and the opening sentence in particular carries with it the inference of danger to the community. 28 There follows a reference to a Mr Petrie, a follower of Mr Griffith, who asserts that Mr Griffith's ideas broke open new vistas into the world of literature, unlocking "the metaphorical, allegorical and symbolic constructions prevalent in great literary works." 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' ", and that, as his Honour points out at [25], "a reader may be acting reasonably even though he or she engages in 'a certain amount of loose thinking' " in my respectful opinion, an ordinary reasonable reader considering the first matter complained of as a whole would find it impossible to regard it as carrying the imputation that the FHA is a " dangerous cult which poses a threat to the community ". 36 I have not attempted to highlight every part of the first matter complained of relied on by the appellants, but I have extracted those that formed the high points of their submissions. In this respect, I refer in particular to the first sentence of the passage extracted in [27] above. When that sentence is read in the context of the whole of the matter complained of, and accepting that that sentence, like a number of others, is itself the subject of an imputation which the primary judge has left to the jury, I do not consider that an ordinary reasonable reader could possibly regard that or any other part of the first matter complained of as taking it to the much higher level of evil encompassed in the subject imputations. 37 We were reminded, and it was accepted by the appellants, that this Court should not disregard what is the judgment of a highly experienced defamation trial judge as his Honour clearly is. I thus have no difficulty in agreeing with the primary judge that, read as a whole, the first matter complained of is not reasonably capable of carrying any of the subject imputations. 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" It was accepted by the appellants that, whether or not this form of disclaimer or antidote achieved its objective, it was essentially, and properly, a jury function: see also the disclaimer extracted in [39] above, and the last sentences in the extract from Rivkin at [20] above. 45 There then follows a list of some 55 groups in respect of which there had been an "enquiry" including the FHA as well as Christian Science, Hari Krishna, Jehovah Witnesses, Mormans/Latter Day Saints, Opus Dei and Scientology. It was stated that the listed groups represented only a small proportion of the inquiries addressed to CultAware. 46 After referring to some seven of the groups listed, including Scientology but not the FHA, the heading "CULT – DAMAGED LIVES!" followed. Readers of the Newsletter were then exhorted to write in confidence to CultAware if they were interested in discussing involvement in a book devoted to a description of "AUSTRALIAN CULT-DAMAGED LIVES". It was then stated that: "THE INTENTION IS TO DEMONSTRATE TO READERS THE RANGE OF CULTS THAT EXIST AND THE DAMAGE THEY ARE CAUSING TO AUSTRALIAN LIVES" 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). The first and second respondents' Notice of Contention 54 The first and second respondents' Notice of Contention concerned paragraph 15 of the ASC. It is unnecessary to consider it further as those respondents and the appellants have reached agreement as to its disposition, which is reflected in the order proposed in [56(e)] and [56(f)] below. 55 The parties were also in agreement as to a further amendment to his Honour's orders relating to imputation 6(i) which is reflected in the orders proposed. Conclusion 56 I would propose the following orders: (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. 57 YOUNG CJ in Eq: I agree with Tobias JA. ********** Last Modified: 10/21/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.