New South Wales Supreme Court CITATION : Griffith v ABC [No 1] [2007] NSWSC 711 14-16/3/07 19-23/3/07 26-27/3/07 HEARING DATE(S) : 29-30/3/07 2-5/4/07 10-13/4/07 25-29/6/07 2-3/7/07 JUDGMENT DATE : 4 July 2007 JURISDICTION : Common Law Division Defamation List JUDGMENT OF : Kirby J DECISION : (1) There should be judgment for the defendants in the action by Mr Griffith for injurious falsehood; (2) Mr Griffith should pay the defendants' costs in respect of such action. CATCHWORDS : Defamation - application under R.29.10 Uniform Civil Procedure Rules 2005 re no case to answer in injurious falsehood claim - whether evidence of special damage. LEGISLATION CITED : Defamation Act 1974 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 CASES CITED : Bass v TCN Channel 9 Pty Limited [2006] NSWCA 243 Watts v Rake (1960) 108 CLR 158 Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd 16 ALR 23 Jeremy Norman Griffith (1st Pl) PARTIES : Foundation for Humanity's Adulthood (2nd Pl) Australian Broadcasting Corporation (1st Def) David Millikan (2nd Def) FILE NUMBER(S) : SC 2001/20300 COUNSEL : K P Smark/S Chrystanthou (Pls) B W Walker SC/J Sheahan SC/E Raper (Defs) SOLICITORS : Schweizer Kobras, Solicitors (Pls) ABC in-house Counsel (Defs) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST David Kirby J Wednesday 4 July 2007 2001/20300 JEREMY GRIFFITH & ANOR v AUSTRALIAN BROADCASTING CORPORATION & ANOR. JUDGMENT [No. 1] (No case to answer submission) 1 KIRBY J: Jeremy Griffith (as first plaintiff) has commenced an action against the Australian Broadcasting Corporation and David Millikan (the defendants) in defamation and injurious falsehood. 2 On 28 June 2007, the twenty-fourth day of the trial, the case for Mr Griffith (and the second plaintiff, Mr Macartney-Snape) was closed. Application was then made by the defendants under R.29.10 of the Uniform Civil Procedure Rules 2005 that there was no case to answer in respect of the injurious falsehood claim by Mr Griffith. That claim originally comprised three paragraphs, each said to be false. Paragraphs (a) and (b) were abandoned during the course of the trial (T741). The remaining paragraph, in respect of which the application is now made, was pressed. It is in these terms: "(c) Jeremy Griffith attempts to indoctrinate young people by instructing them in a manner intended to manipulate and control their minds." 3 The elements of the tort of injurious falsehood are set out in Gatley on Libel and Slander (10th Ed) (2004) in these terms: (p579) "(1) the defendant published to third parties words which are false; (2) that they refer to the claimant or his property or his business; (3) that they were published maliciously; and (4) that special damage has followed as a direct and natural result of their publication." 4 It will be noticed that element (2) incorporates three alternatives, suggesting that it may be enough that the words published simply refer to the plaintiff without disparaging either his property or business. That is a matter of some controversy (cf Gleeson CJ in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692-694). For the purposes of this application, the defendants accepted the formulation in Gatley. The plaintiff in the Fifth Further Amended Statement of Claim particularised the special damage (element (4)) in these terms: (paras 10 and 47) " Particulars of special damage (Jeremy Griffith) (i) Payment for consultancy in relation to the ABC publications; (ii) Particulars provided by the plaintiffs in correspondence." 5 An exchange of correspondence between the solicitors for the parties furnished the following elaboration: (MFI 6, para 57) " Particulars of special damage (Jeremy Griffith) (a) On 16 May 1995, Mr Griffith made payment to Jackson Wells Communications in the sum of $18,976.50, being in respect of invoice from Jackson Wells No 950406 dated 28 April 1995, being for all of the services set out in that invoice and its attachment; (b) On 6 June 1995, Mr Griffith made payment to Jackson Wells Communications in the sum of $3,667.13, being in respect of invoice from Jackson Wells No 950505 dated 28 May 1995, being for that part of the services as set out in that invoice and its attachment in the sum of $3,667.13 (that is, the whole of the invoice other than the amount described as 'Nationwide News Pty Ltd: For newspaper advertisement (x2)')." The arguments of the defendants. 6 The defendants relied upon four arguments, as set out in written submissions. These arguments, as I understand them, can be paraphrased as follows: · First, the plaintiff must prove some measurable pecuniary loss caused by the false statement about Mr Griffith. Here it is suggested that Mr Griffith retained public relations consultants to mitigate damage that he expected to flow from the Four Corners programme. However, the plaintiff, according to the defendants, has failed to adduce evidence of any actual or potential pecuniary loss to Mr Griffith which the expenditure was apt to mitigate (T1286). · Secondly, in the action for defamation which Mr Griffith brought against the same defendants, he alleged an imputation in the same terms as Particular (c) in the injurious falsehood claim, the subject of the present application. The jury, in the s7A defamation hearing determined that the Four Corners programme conveyed that imputation. However, it also determined that it was not defamatory (Ex A16). That finding bound the parties as an issue estoppel (Bass v TCN Channel 9 Pty Limited [2006] NSWCA 243, per Hunt AJA at para [42] (Handley and Basten JJA concurring)). The plaintiff accordingly could not, according to the defendants, prove causation. The only plausible causal link between the alleged falsehood and loss claimed was the prospect of injury to Mr Griffith's reputation. · Thirdly, the work done by the public relations consultants, Jackson Wells Communications ("Jackson Wells") was work done for the Foundation for Humanity's Adulthood ("the Foundation"), not Mr Griffith. It is, according to the defendants, beside the point that Mr Griffith either made himself jointly liable for the cost of these consultants, or chose to discharge the Foundation's liability. · Fourthly, the plaintiff has the onus of proving the special damage he has suffered and the quantification in money that should be adopted in the sum awarded (Watts v Rake (1960)108 CLR 158, per Dixon CJ at 159). If the plaintiff does not adduce evidence which permits a finding of the extent of the loss the claim fails (Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd 16 ALR 23 at 37). Here, according to the defendants, even if one assumed that Jackson Wells had been retained on behalf of both Mr Griffith and the Foundation, there was no evidentiary basis for identifying any appropriate share of their fees. 7 The arguments are cumulative, but distinct. Success by the defendants on any one argument would require that the plaintiff's action for injurious falsehood be dismissed. 8 By reason of the view I have formed on the third matter, it is convenient to begin with the defendants' argument on that issue. Background. 9 A number of matters are not in dispute. Mr Jeremy Griffith was the author, relevantly, of two books, "Free: The End of the Human Condition" (1988) and "Beyond the Human Condition" (1991). They set out his ideas on human evolution and the source of good and evil in human beings. An organisation (ultimately known as "The Foundation for Humanity's Adulthood") ("the Foundation") was established to propagate those ideas. The Foundation is a company limited by guarantee (Ex A13). It is registered as a charity. It has a number of directors. They included, in 1995 and at the present time, Mr Griffith. The intellectual property in Mr Griffith's works was owned by a company associated with the Foundation, or one of it's members. The Foundation sells copies of Mr Griffith's works to the public and retains the proceeds of sale (T722). It also promotes Mr Griffith's ideas to the public (T722). 10 In January 1995, the Reverend Doctor David Millikan (the second defendant) approached Mr Griffith and Mr Macartney-Snape. He sought their co-operation and that of the Foundation in respect of a programme which he intended to make in conjunction with Four Corners. The programme was to examine the ideas of Mr Griffith and the activities of the Foundation. Messrs Griffith and Macartney-Snape agreed to co-operate. It is unnecessary, on this application, to examine the circumstances in which they gave their consent. In February 1995, a walk was conducted by the Foundation in the Snowy Mountains. Messrs Griffith and Macartney-Snape were in attendance, as were a number of members of the Foundation. Dr Millikan and the Four Corners team were invited on the walk. On 9 March 1995, Dr Millikan interviewed Mr Griffith at his home in Terrey Hills. Mr Griffith regarded the interview as hostile. It may be inferred that he feared that the programme would be disparaging of his ideas and the Foundation. Advice was sought from lawyers. 11 The Four Corners programme ultimately went to air on 24 April 1995. It was shown for a second time on 2 May 1995. Before it was shown, Dr Millikan gave a number of interviews, no doubt designed to generate interest in the forthcoming programme. In these interviews he spoke of Mr Griffith, his ideas and the Foundation. These interviews served to confirm the impression formed by Mr Griffith and the Foundation that the programme would indeed be hostile to the Foundation and Mr Griffith's ideas. 12 Against that background, let me turn to the third submission of the defendants. The retainer of Jackson Wells. 13 The essential question arising from the defendants' third argument concerned the retainer of the public relations consultants, Jackson Wells Communications. Was Jackson Wells acting on behalf of the Foundation, or Mr Griffith, or both? 14 Mr Belfield, the Chief Executive Officer of the Foundation since 1999, gave evidence that, for the purposes of this litigation, and in his role as Chief Executive Officer, he had familiarised himself with the records of the Foundation. He was obliged, amongst other things, to form a judgment in respect of categories of documents required for discovery. He acknowledged that Mr Griffith frequently made donations to the Foundation, as did other members (T810). The donations were either in the form of goods and services which he provided, or money which he paid (T811). If money had been advanced by Mr Griffith by way of loan, Mr Belfield said that he would have expected contemporaneous documentation (T811). It was common ground that Mr Griffith ultimately paid the accounts of Jackson Wells. There were no documents in the Foundation's records recording a loan arrangement between the Foundation and Mr Griffith or his partner, Ms Williams (the money coming from a joint account) as to the amount paid or any part of it (T811). 15 Mr Belfield was not involved in the retention of Jackson Wells before the Four Corners programme. As mentioned, he became Chief Executive Officer four years later, in 1999. He did, nonetheless, express the opinion in cross examination that the work of Jackson Wells was not limited to the Foundation (T812). He said that, "arguably", it was reasonable to view their fees as having been incurred by Messrs Macartney-Snape and Griffith, as well as the Foundation (T812/13). One gathered that his opinion was based simply upon his construction of the correspondence and his view that the potential beneficiaries of the work included Messrs Griffith and Macartney-Snape as well as the Foundation. 16 Mr Griffith did not give evidence. Nor did the plaintiff call Mr John Wells (a Partner of Jackson Wells), nor Mr Keith Jackson, its Managing Director. Nonetheless, I infer that before the programme Mr Griffith and the Foundation each feared that the programme may well be disparaging or derogatory of Mr Griffith's ideas and the Foundation. 17 I will shortly set out the correspondence which bears upon the retention of Jackson Wells and the work they performed. Mr Jeremy Griffith and his ideas are referred to in that correspondence. In considering the inferences that should be drawn, or may be drawn, from this material, however, it is important that Mr Griffith was also a director of the Foundation. Moreover, the propagation of his ideas was an objective of the Foundation. 18 It appears from the work summaries that Jackson Wells were retained in March 1995 (Ex A23). In the same work summaries there are a number of references to Mr Jeremy Griffith, and others, who are either Directors or Members of the Foundation. 19 On 6 April 1995, Mr John Wells of Jackson Wells wrote to Mr Ian Carroll, the Executive Producer of Four Corners. The letter began with these words: (Ex A23) "Thank you for your patient discussions with me about the forthcoming program on the Foundation for Humanity's Adulthood. I am disappointed that you have rejected the Foundation's request to allow a brief debate following the packaged program. The reason you gave was that the Foundation, through Jeremy Griffith, had been given ample opportunity by the interviewer (Dr Millikan) to present its case." (emphasis added) 20 There followed a number of paragraphs which were framed in terms of "the Foundation". They included: (Ex A23) " The Foundation does not believe that Four Corners has adopted an even handed approach on what is a difficult and sensitive issue impinging on the beliefs of a group of people who are harming no-one and who, above all, have the right to live peacefully with their own understandings. Given that the Foundation believes Dr Millikan misrepresented the purpose of his assignment, and was not candid about his real views, we believe your decision to deny a debate is unjust." (emphasis added) 21 The letter continued: (Ex A23) "If this story is worth telling, and you obviously believe it is, then surely it is worth telling in full and it is worth Jeremy Griffith and Dr Millikan coming together, face to face, to offer their competing views. After all, at the very heart of this story are two different philosophies of the human condition. The manner in which these differences are able to be expressed goes to the heart of free speech and fair broadcasting. As you know, the Foundation has serious doubts that Dr Millikan can address these differences with the required journalistic dispassion because he is an adherent and a proponent of a particular view. … " (emphasis added) 22 The letter concluded by asking that, at the very least, the ABC "acknowledge within the program that the Foundation has made an offer to debate Dr Millikan and that Four Corners - for its own reasons - has rejected the offer". 23 Annexed to the letter was a document headed "Annex - Dr Millikan & the Foundation". The document referred variously to Mr Griffith's views on a number of issues and to the Foundation. 24 On 7 April 1995, on the letterhead of the Foundation, a fax was sent by Mr Griffith to Mr Ian Carroll of the ABC. The letter enclosed a copy of a letter written by Mr Griffith to the Rev Dr David Millikan. On the coversheet of the fax, Mr Carroll's address and fax number appeared. Opposite Mr Carroll's name and address, on the right hand side of the fax cover sheet, the following appeared: (Ex A23) "Jeremy Griffith Director - FHA 3 Echunga Rd Terrey Hills 2084 Ph & fax as above" 25 It will be noticed that Mr Griffith referred to himself as "Director - FHA". The enclosed copy letter to Dr Millikan was also on Foundation letterhead, signed by Mr Griffith. It canvassed representations said to have been made by the Rev Dr Millikan when he approached Mr Griffith and the Foundation in early 1995. The letter to Dr Millikan concluded with the following words where Mr Griffith, speaking on behalf of the Foundation, said this: (Ex A23) "Regretfully we do not agree to you or Four Corners using any of our tapes (film or otherwise) simply because we are no longer able to trust you." 26 On 7 April 1995, Mr Wells of Jackson Wells wrote to Mr Brian Johns, the Managing Director of the ABC. The letter is important. It should be set out in full. It is on the letterhead of Jackson Wells and is in these terms: (Ex A42) "We wish to draw to your attention the attached letter to Mr Ian Carroll, executive producer of Four Corners. The letter refers to a matter of considerable concern to our client and, we believe, to the ABC. In brief: · the Four Corners program is preparing a program on our client, the Foundation for Humanity's Adulthood · the program fails to live up to the ABC's values of objectivity and fairness in that the reporter, Dr David Millikan, has approached his task from a demonstrably partisan position and, in doing so, has misled our client · Four Corners has refused to allow this imbalance to be corrected by agreeing to a face-to-face debate or discussion between the reporter and the Foundation's director, Mr Jeremy Griffith · the copyright in this ABC program has, through some process unknown to us, been assigned to Dr Millikan which means that the hurt suffered by our client will be intensified by the program material being used for other purposes. On behalf of our client , we seek your intervention in this matter to ensure that the program, when broadcast, records a truthful view of our client and its activities." (emphasis added) 27 It will be noticed that the letter repeatedly uses the phrase "our client" (singular). It identified the client as "the Foundation for Humanity's Adulthood". Although Mr Griffith is mentioned, he is described as "the Foundation's Director, Mr Griffith". 28 On 12 April 1995, a letter was sent to Jackson Wells on the letterhead of the Foundation, signed by Mr Griffith. Opposite the name and address of Jackson Wells, on the right hand side of the page, the same details appeared, as had been provided to Mr Carroll in the faxed cover sheet, namely: (Ex A23) "Jeremy Griffith Director - FHA 3 Echunga Rd Terrey Hills 2084 Ph & fax as above" 29 The body of the letter was as follows: (Ex A42) "This letter is to confirm that Jackson Wells Communications are and have been employed by Jeremy Griffith and the Foundation For Humanity's Adulthood to represent its public relations interest in the Foundation's current saga with ABC Four Corners ." 30 Obviously the text is grammatically confused. Each party drew comfort from the words which had been used. The plaintiff emphasised the opening words that Jackson Wells "have been employed by Jeremy Griffith and the Foundation For Humanity's Adulthood". The defendants drew attention to the way in which Mr Griffith described himself as "FHA Director". It was suggested that the phrase which created the client relationship was "to represent its public relations interest in the Foundation's current sage with ABC Four Corners." The defendants said that phrase, "its public relations interest", is not apt to refer to Jeremy Griffith personally. It is also noteworthy that the saga is characterised by Mr Griffith as "the Foundation's current saga". 31 On 13 April 1995, (Exs A23 and A42) Mr Keith Jackson sent a memorandum to Mr Brian Johns. The memorandum included the following heading: (Ex 42) "DR MILLIKAN & FOUNDATION FOR HUMANITY'S ADULTHOOD" 32 The memorandum drew attention to an interview given by Dr Millikan on New England radio. It continued as follows: (Ex A42) "This interview demonstrates clearly that Dr Millikan is using the apparatus of the ABC to pursue some kind of personal obsession against the Foundation and Jeremy Griffith, its director, in particular." 33 On 19 April 1995, a media release, presumably drafted by Mr Wells, was issued which included these words: (Ex A23) "'The ABC must be accountable to the Australian community for the actions of its programs' makers', the Director of The Foundation for Humanity's Adulthood, said this morning." 34 The following day there was a further release under the heading "Four Corners Fails to Satisfy Foundation's Concerns". The release included: (Ex A23) "Director of the Foundation, Mr Jeremy Griffith, believes the Four Corners program, due to go to air next Monday, will misrepresent their views and try and discredit the organisation." 35 However, it also included these words: "Mr Griffith also flatly denied Dr Millikan's claim that he had said he was a figure greater than Jesus Christ or that he set himself up as a prophet." 36 As mentioned, the programme was broadcast on 24 April 1995. On 28 April 1995, Jackson Wells sent an account. The account was addressed as follows: (Ex A42) "Mr Jeremy Griffiths Foundation for Humanity's Adulthood 3 Echunga Road, Terry Hills NSW 2084" 37 The account included work summaries, to which reference has been made. A further account was sent on 28 May 1995, addressed in the same way. Mr Jeremy Griffith, as mentioned, paid each account by a personal cheque drawn on a joint account which he had with his partner, Ms Anne Williams. 38 It was argued by the plaintiff that there was an identity of interests between Mr Griffith and the Foundation in respect of the forthcoming programme. Their interests were inseparable and intertwined. The retainer letter of 12 April 1995 was ambiguous. According to the plaintiff, it was capable of referring to Mr Griffith in his personal capacity, as the client, as well as the Foundation. In considering the application by the defendants, the Court was obliged to take the plaintiffs' case at its highest. On that test, according to the plaintiff, the evidence of payment by Mr Griffith from a joint account was reasonably capable of satisfying the tribunal of fact that special damage had been suffered by Mr Griffith personally. 39 However, I cannot accept these submission. In my view, Jackson Wells was acting on behalf of the Foundation, and only the Foundation. If the letter of 12 April 1995 stood alone, it may be arguable that there was ambiguity in respect of the retainer. However it does not stand alone. The correspondence repeatedly refers to "the Foundation". Where Mr Griffith is mentioned, it is in his capacity as a Director of the Foundation. The matter is ultimately put beyond doubt by the letter from Mr Wells to Mr Brian Johns on 7 April 1995 (Ex A42). That letter uses the expression "our client" (singular) on a number of occasions and then identifies that client as "The Foundation for Humanity's Adulthood". Any ambiguity in the letter of 12 April 1995 is thereby resolved. The construction of that letter suggested by the defendants is, in my view, correct. 40 The accounts of 28 April 1995 and 28 May 1995 are not directed to Mr Griffith c/- The Foundation. Each was directed to "Mr Griffith, Foundation for Community's Adulthood". To my mind, that suggests that the client was the Foundation and Mr Griffith the relevant Director of the Foundation, to whose attention each account was being drawn. The accounts themselves are not dissected. 41 These documents are to be construed in the context of there being no evidence from Mr Griffith, Mr Jackson or Mr Wells. I am persuaded by the defendants' third argument. I believe that there is no evidence of special damage incurred by Mr Griffith on his own behalf. The Foundation sought to mitigate its loss by the retention of public relations consultants. He did not. Judgement in favour of the plaintiff in respect of the claim of injurious falsehood could, therefore, not be supported. 42 It is unnecessary for me to consider the remaining arguments. Orders. 1. There should be judgment for the defendants in the action by Mr Griffith for injurious falsehood. 2. Mr Griffith should pay the defendants' costs in respect of such action. ********** 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.