New South Wales Court of Appeal CITATION: Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 HEARING DATE(S): 11May 2010, 12 May 2010 JUDGMENT DATE: 7 October 2010 JUDGMENT OF: Hodgson JA at 1; Basten JA at 150; McClellan CJ at CL at 151 DECISION: Appeal dismissed with costs. CATCHWORDS: DEFAMATION – Defence of truth – Whether available where the imputation is comment – Whether error by primary judge in finding defence made out. - DEFAMATION – Defence of statutory qualified privilege – Interest or apparent interest – Whether defence defeated by malice – whether defendant must exclude malice in order to show that its conduct was reasonable. - DEFAMATION – Defence of comment – Whether available where imputation is partly comment and partly assertion of fact. LEGISLATION CITED: Defamation Act 1974 ss 7A, 9, 11, 15, 20 – 22, 30 – 33, 35, Evidence Act 1995 s 48 CATEGORY: Principal judgment Austin v Mirror Newspapers Limited [1984] 2 NSWLR 383 Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5; (2004) 218 CLR 366 Bennette v Cohen [2009] NSWCA 60 Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320 Evatt v Nationwide News Pty Limited [1999] NSWCA 99 Greek Herald Pty Limited v Nikolopoulos [2002] NSWCA 41; (2001) 54 NSWLR 165 CASES CITED: Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 John Fairfax Publications v O'Shane [2005] NSWCA 164; (2005) Aust Torts Rep 81-789 Makeig v Derwent [2000] NSWCA 136 Makim v John Fairfax & Sons Ltd (1990) A Def R 40,521 Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 Jeremy Norman GRIFFITH (appellant) PARTIES: AUSTRALIAN BROADCASTING CORPORATION (first respondent) David MILLIKAN (second respondent) FILE NUMBER(S): CA 2008/290293 COUNSEL: K P SMARK SC/ S T CHRYSANTHOU (appellant) B WALKER SC/ E RAPER (respondents) SOLICITORS: Schweizer Kobras (appellant) Mr Rob Simpson, Australian Broadcasting Corporation (respondents) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20300/2001 LOWER COURT JUDICIAL OFFICER: Kirby J LOWER COURT DATE OF DECISION: 1 August 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 - 77 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2008/290293 HODGSON JA BASTEN JA McCLELLAN CJ at CL 7 OCTOBER 2010 Jeremy Norman GRIFFITH v AUSTRALIAN BROADCASTING CORPORATION and Anor Headnote Facts On 24 April and 2 May 1995, ABC (the first respondent) broadcast a television programme produced by Dr Millikan (the second respondent) which dealt with Mr Griffith (the appellant), his writings (in particular his self-published book Beyond the Human Condition ), and the Foundation for Humanity's Adulthood, an organisation which Mr Griffith helped establish and with which Mr Macartney-Snape was affiliated. The appellant and Mr Macartney-Snape brought defamation proceedings against the respondents in respect of the programme. There was a jury trial pursuant to s 7A of the Defamation Act 1974 (the Act) (since repealed); and on 30 May 2003, the jury found that the following imputation was conveyed in respect of the appellant and to have been defamatory: Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community. The imputation was primarily directed to the book Beyond the Human Condition . Section 15 of the Act established substantial truth, public interest and qualified privilege as defences to any defamatory imputation. Section 20 established a defence of statutory qualified privilege in respect of multiple publications, which imported the common law defence of qualified privilege. Under s 22(1), a statutory defence of qualified privilege was established where, in respect of matter published to any person: (a) the recipient had an interest or apparent interest in having information on some subject; (b) the matter was published to the recipient in the course of giving to the recipient information on that subject; and (c) the conduct of the publisher in publishing that matter was reasonable in the circumstances. Under s 22(2), a person had an apparent interest only if at the time of publication the publisher believed on reasonable grounds that that person had that interest. Under s 35, where the matter complained of included comment and included material upon which the comment was based, a defence as to the comment was not a defence as to the material upon which the comment was based. The matter came before the primary judge for decision concerning defences and damages. Evidence was given by a number of scientists. The primary judge held that the defence of substantial truth was made out; that the defence of qualified privilege at common law was not made out; that the defence of qualified privilege under the Act and equivalent statutory provisions in Queensland and Tasmania was made out; and that the defence of comment was established under relevant statutes and at common law. The appellant appealed from the primary judge's decision. Issues Issues arising on appeal: (i) Whether the primary judge erred in his findings concerning evidence given by the scientists. (ii) Whether the primary judge erred in his findings concerning truth, in particular: (a) poor standard; (b) no support; and (c) causation. (iii) Whether the primary judge erred in his interpretation of s 22 of the Act. (iv) Whether, under s 22(1)(a) of the Act, the whole audience of the broadcast had an interest in having information on the subject matter of the programme. (v) Whether the conduct of the respondents in broadcasting the programme was reasonable. (vi) Whether the imputation was comment. (vii) Other elements of the defence of comment. (viii) Costs. HELD (dismissing the appeal) In relation to (i)—Evidence given by scientists ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (1) No error is shown in the primary judge's assessment and weighing of the evidence given by the scientists. In relation to (ii)(a)—Truth: poor standard ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (2) Where a primary judge has reached a conclusion as to the standard of a work, the appeal court should only attempt to reach its own conclusion if it is satisfied that the primary judge's conclusion is vitiated by error. (3) The appellant's book Beyond the Human Condition is to be assessed as a scientific publication for general readership, the object of which is not to inform the readership of what scientific work has achieved and is achieving in the relevant area, but rather to promulgate original scientific ideas of the author. (4) Central to an assessment of the standard of the appellant's work are both assessment of the merit of the appellant's ideas, and assessment of the reasonableness of his arguments in support of them. (5) The approach of the primary judge was entirely consistent with these views. The primary judge was entitled to accord less weight to the evidence of some of the scientists because they lacked expertise in particular areas. The primary judge appropriately took into account the nature of the appellant's work as a grand synthesis, not within a reductionist framework or excluding teleological explanations, and that it was directed to a general readership and not specifically to scientists. The primary judge's extensive reasons appropriately explained his conclusions, and no error was identified which would justify this Court reaching its own view. In relation to (ii)(b)—Truth: no support ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (6) What is relevant is support for the appellant's work, considered as a scientific publication for a general readership, the object of which is not to inform that readership of other scientific work but rather to promulgate the original scientific ideas of the author. Relevant support could be provided even if the central thesis is not endorsed, so long as it is support for the book as presenting respectable scientific ideas and arguments for those ideas that are respectable arguments according to the standards of scientific publications directed at a general audience. (7) The reference to support from the scientific community means that support from just one or two respected scientists might not necessarily be relevant support, unless that support can be understood as expressing or constituting some support from a community. (8) The primary judge was entitled to take the views that he did in respect of statements by some of the scientists. The primary judge's finding that the appellant's work had no support at all from the scientific community is correct. In relation to (ii)(c)—Truth: causation ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (9) The imputation is that the appellant's work is of such a poor standard that it has no support at all from the scientific community; and this conveys that there are degrees to which work can be of a poor standard, that if the appellant's work had been of a materially better standard (whether or not still of a poor standard) it would not have had no support at all from the scientific community, and that the lack of any support at all from the scientific community demonstrates the poorness of the standard of the appellant's work. (10) The Court is not satisfied that, if the appellant's work had been of a materially better standard, it would have received some support from the scientific community; or that the lack of any support from the scientific community demonstrated that the work was of a poor standard, much less any degree of poorness of standard. (11) The primary judge set the bar for the relevant finding of causation too low, and his reasons did not adequately support his conclusion. Causation was not established and on that basis the defence of truth was not made out. In relation to (iii)—Interpretation of s 22 ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (12) The Act draws a clear distinction between the interest in a recipient which is required for the purposes of common law qualified privilege, and the interest (or apparent interest) which is required under s 22(1)(a), the latter being a substantially wider sense. (13) Under the Act, malice is not a separate consideration from reasonableness. Section 20 draws a clear distinction between qualified privilege under the common law and qualified privilege under the Act. The defences created by the Act are different from common law qualified privilege. (14) Under the Act, a publication actuated by malice is not reasonable in the circumstances, and it is for the defendant to prove absence of malice. Echo Publications Pty Ltd v Tucker ; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320 and Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374, considered. Dicta in Austin v Mirror Newspapers Limited [1984] 2 NSWLR 383 and Makim v John Fairfax & Sons Ltd (1990) A Def R 40,521, disapproved. In relation to (iv)—Interest or apparent interest under s 22 ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (15) The whole audience of the broadcast (that is, the community generally) had an interest in having information on a subject, namely the subject of the promulgation as a discovery of science of a potentially socially divisive doctrine with religious overtones, the recruitment of followers of the person promulgating that doctrine, and the effect of this on families. (16) The material giving rise to the imputation was not in any sense extraneous to the giving of this information, and there is no possibility that the matter by which the imputation was made can be regarded as distinct or separate from matter published in the course of giving the audience information on the subject in question. (17) It is not necessary to consider apparent interest and s 22(2). In relation to (v)—Reasonableness and malice under s 22 ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (18) What has to be shown as reasonable under s 22(1)(c) of the Act is the conduct of the publisher in publishing the matter, in its character as making the imputation complained of; not the matter in all of its aspects. Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374, considered. (19) As part of establishing reasonableness, the onus is on the respondents to exclude malice. That is an onus to show that their purpose in publishing the matter, in its character of conveying the defamatory imputation, was to give the audience information which the audience had an interest (or apparent interest) in having, and that the respondents did not have any other reason for this publication which was the dominant reason. (20) Although the primary judge did not address the issue of malice in this way, the Court is affirmatively satisfied that the publication was not actuated by malice in any of the respondents. Accordingly the defence under s 22 of the Act was made out. By parity of reasoning, the defence of statutory qualified privilege in Queensland and Tasmania was also made out. In relation to (vi)—Whether the imputation was comment ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (21) The question whether this imputation was comment does depend on whether the ordinary reasonable viewer would regard it as comment; that is, would consider that it was presented as someone's opinion or evaluation or assessment or judgment, rather than being a bald assertion of fact. (22) That aspect of the imputation that reflects on the standard of the appellant's work is an expression of opinion of the book, rather than a bald assertion of fact. That aspect of the imputation that asserts lack of any support from the scientific community is an assertion of fact, not comment. That aspect of the imputation to the effect that the degree of poorness of standard was such as to cause the lack of support is comment. (23) Where an imputation consists partly of comment and partly of assertion of fact, s 35 of the Act has the effect that the defence of comment applies to so much of the imputation as is comment, and that so much of the imputation as is defamatory assertion of fact can be defended on some other basis, such as truth. (24) The imputation is comment, except to the extent that it asserts lack of support by the scientific community; and that assertion is true and relates to a matter of public interest, and its inclusion in the imputation does not preclude reliance on the defence of comment. (25) This analysis applies equally to New South Wales and other jurisdictions in which there are relevant statutory provisions, and also to jurisdictions in which the common law concerning comment is unmodified. In relation to (vii)—Other elements of the defence of comment ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (26) For the defence of comment under the Act to succeed, it is necessary that the factual basis to the comment be sufficiently indicated and identified in the published material; that this factual basis be substantially true; that the imputation relate to a matter of public interest (this was conceded); and that, when the comment was that of the defendant or servant or agent of the defendant, the relevant opinion was held by the defendant or its servant or agent (there was no error by the primary judge in finding that comments made in the programme represented the actual opinions of Dr Millikan, ABC or its servants). (27) The following factual basis for comment was adequately indicated or identified by the published material: (1) that the appellant had written and published Beyond the Human Condition , thereby inviting comment on it; (2) that the appellant had actively sought support for this work from the scientific community; (3) that the appellant's work had no support at all from the scientific community; and (4) that a prominent scientist Tim Flannery described the appellant's book Beyond the Human Condition in terms set out in the programme. Item (3) is true, and there is no dispute as to the truth of items (1), (2) and (4). (28) The appellant has not made out any ground for overturning the decision of the primary judge on the question of comment under the Act. By parity of reasoning, the challenge to his decision on different statutory provisions concerning comment, and on the defence of fair comment at common law, also fail. In relation to (viii)—Costs ( Per Hodgson JA, Basten JA and McClellan CJ at CL agreeing ) (29) The appellant succeeds on the issue of truth, but that issue is not readily severable from other issues in the case, and did not add substantially to the costs of the case; and it does not affect the appropriate order as to costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2008/290293 HODGSON JA BASTEN JA McCLELLAN CJ at CL 7 OCTOBER 2010 Jeremy Norman GRIFFITH v AUSTRALIAN BROADCASTING CORPORATION and Anor Judgment 1 HODGSON JA: On 1 April 2008, Kirby J gave his decision in defamation proceedings brought against the respondents (the ABC and Dr Millikan) by the appellant and Mr Macartney-Snape: Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764. The primary judge ordered that in respect of the appellant's action there be a verdict for the ABC and Dr Millikan, and that in respect of Mr Macartney-Snape's action there be a verdict for Mr Macartney-Snape in the sum of $448,500. The primary judge made further orders in relation to interest and costs on 4 September 2008. 2 The appellant has appealed to this Court from the decision against him. Circumstances 3 The proceedings arose from a Four Corners programme "The Prophet of Oz" broadcast by the ABC on 24 April 1995, and again on 2 May 1995. 4 There was a jury trial pursuant to s 7A of the Defamation Act 1974 (the Act) (since repealed); and on 30 May 2003, the jury found that the following imputation was conveyed in respect of the appellant and to have been defamatory: Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community. 5 The matter then came before the primary judge for decision concerning defences and damages. Statutory provisions 6 The appeal requires consideration of some provisions of the Act, as they were at the relevant time. 7 The defence of truth was dealt with in s 15: 15 Truth generally (1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section. (2) It is a defence as to any imputation complained of that: (a) the imputation is a matter of substantial truth, and (b) the imputation either relates to a matter of public interest or is published under qualified privilege. There was the following definition of substantial truth in s 7(2): (2) For the purposes of this Act, an imputation or other matter is a matter of substantial truth if, but only if, in substance it is true or in substance it is not materially different from the truth. 8 There were relevant provisions concerning qualified privilege in ss 20 – 22: 20 Multiple publication (1) For the purposes of this section: (a) multiple publication means publication of the same or like matter or of copies of any matter to two or more recipients: (i) at the same time, (ii) by means of the publication in the ordinary course of affairs of numerous copies of a newspaper or other writing, or (iii) otherwise in the course of the one transaction, (b) matter is published under qualified privilege if, but only if, the matter: (i) is published on an occasion of qualified privilege, and (ii) is relevant to the occasion, and (c) an occasion is one of qualified privilege if, but only if: (i) it is an occasion of qualified privilege under the law apart from this Act, or (ii) the circumstances of the publication afford a defence of qualified privilege under section 21 or section 22. (2) Where: (a) a person makes a multiple publication, and (b) the matter published would if published to one or more, but not all, of the recipients be published under qualified privilege as regards that recipient or those recipients, there is a defence of qualified privilege for the publication to that recipient or those recipients, notwithstanding that the publication is not made under qualified privilege as regards any other recipient. (3) Where: (a) a person makes a multiple publication, (b) the matter published would if published to one or more, but not all, of the recipients be published under qualified privilege as regards that recipient or those recipients, and (c) the extent of publication is reasonable having regard to the matter published and to the occasion of qualified privilege, there is a defence of qualified privilege as regards all of the recipients. 21 Mistaken character of recipient Where: (a) a publication complained of is made in the course of a communication by the publisher to any person, (b) the publication is made in circumstances in which there would be a defence of qualified privilege for that publication if that person bore some character, and (c) the publisher believes, at the time of the communication, on reasonable grounds, that that person bears that character, there is a defence of qualified privilege for that publication. 22 Information (1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward. 9 There were relevant provisions concerning comment in ss 30 – 33 and 35. 30 Proper material (1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest. (2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest. (3) The defences under this Division are available as to any comment if, but only if: (a) the comment is based on proper material for comment, or (b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. (4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based. 31 Public interest The defences under this Division are not available to any comment unless the comment relates to a matter of public interest. 32 Comment of defendant (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant. (2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant. 33 Comment of servant or agent of defendant (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant. (2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment. ….. 35 Effect of defence Where the matter complained of includes comment and includes material upon which the comment is based, a defence under this Division as to the comment is not a defence as to the material upon which the comment is based. 10 The publication of the programme occurred in all states of Australia, as well as the Northern Territory and the ACT. In some states and territories there were statutory provisions somewhat similar to those in New South Wales, and in some the common law applied unaffected by statute. In relation to each issue, the primary judge in his judgment first dealt with the situation in New South Wales, and then considered whether any different result would be reached according to the law of other jurisdictions. Decision of primary judge 11 In dealing with the claim by the appellant, the primary judge first considered the defence of truth. The appellant acknowledged that the publication of the programme could be assumed to be in the public interest or for the public benefit, so that the only issue was the substantial truth of the imputation. 12 The primary judge set out what he considered to be the elements of the imputation (par [500]): 1. that Jeremy Griffith holds himself out as a scientist; 2. that he published work of such poor standard; 3. that it has no support at all from the scientific community. He accepted that, although the scope of each element could not be viewed in isolation, the respondents were obliged to prove the substantial truth of each element (par [502]). 13 The primary judge noted that the first element was not in dispute, and further noted that the phrase "holds himself out as a scientist" conveys that the person accepts and applies the standards and procedures of the disciplines of science (par [506]). The primary judge then considered the nature of science, as revealed by the evidence (pars [507] – [530]). 14 The primary judge then discussed the meaning of the second and third elements (pars [531] – [551]). In the course of so doing he said this: [532] Science, it was suggested, is a broad church, which I accept (T1685). It comprehends those whose area of study enables them to proceed by way of deduction (reductionists) and others (including those working in the area of evolution and living primates) who do not have that luxury. They must resort to induction. Some scientists favour a narrow focus, whereas others may be described as holistic. Still others may deduce a purpose from the whole once examined. All are engaged in science. Each may differ from others and yet recognise that the others are approaching the issue as scientists. I accept that standards within the scientific community must be framed with these broad differences in mind. 15 In relation to the meaning of support from the scientific community, he said this: [541] I accept that the words in the imputation ("support", "scientific community") should be given their ordinary meaning. In understanding what is meant by "support", actions are relevant but so is the state of the mind of the person said to be giving support. Indeed, a person's actions are simply evidence from which an inference may be drawn as to the state of mind of that person. Giving a donation to charity may amount to support because it is a simple act. It would be unusual to enquire further, although it is not impossible to imagine circumstances where a person making a donation could be said not to be supporting the charity. A request by a trade union to an employer for a donation to the union's picnic fund, for example. The person may disagree with the charitable objective, but feel obliged or embarrassed, or they may feel there is an implied threat were they not to make a donation. If there were an issue, they could give evidence to explain their actions, that although they had given a donation they did not support the charity. [542] Here, the book "Beyond" runs for almost two hundred pages. It contains many ideas. It is rather different from a donation to a charity. An action said to be supportive of a book may require close examination to determine whether it is, in truth, an act in support of the book. The act in support must, I believe, be by a scientist in his or her capacity as a scientist, although the endorsement does not have to relate to the speciality of that scientist. I believe it can be wider than that. On this aspect, I accept the defendants' submissions rather than those of the plaintiffs (DS: para [1.86(b)]; cf PS: para [236(b)]). [543] Turning to the phrase "scientific community", I accept that evidence from experts concerning the practices of the scientific community which signify support within that community are relevant and admissible. For instance, the peer review process, where undertaken, is evidence of support. A favourable review by a scientist, or at least a review that takes the article or book seriously and puts an opposing or different view, is also evidence of support. Further, the citation of the article or book in the work of another scientist is further evidence of support. The actions of scientists (which may suggest support or the reverse) may also be proved. In addition, individual scientists may give evidence of their support or the absence of their support. [544] Here the issue is whether Mr Griffith had any support at all for his published writings from the scientific community. What must the support be directed to? Is it support for the book as a whole as science? Is support for one aspect enough? If so, does it have to be the central thesis, or can it be an incidental theme? The answer, I believe, is provided by Greek Herald Pty Limited v Nikolopolous [220] NSWCA 41; (2002) 54 NSWLR 165 at paras [8] and [21]–[22]. Imputations, although the cause of action, are to be understood in the context of the defamatory publication, and by reference to considerations of practical justice. The plaintiffs said this: (PS: para [297]) … The context of the imputation 5(a) shows that it is lack of endorsement that is the key (Ex N, line 977) and that Mr Griffith is 'alone', because of that lack (Ex N, line 979). [545] Whilst I accept that submission, it does not fully answer the question. Endorsement of what? The matter in respect of which the ABC and Dr Millikan said Mr Griffith was alone was the central thesis of the book "Beyond the Human Condition". It was Mr Griffith's claim that with the aid of science, he had solved the riddle of the universe. He had provided a scientific answer to the "human condition", the capacity of human beings for both good and evil. [546] What was his scientific answer, his main thesis, in respect of which the defendants said Mr Griffith had no support at all from the scientific community? The ideas in the book have already been described (supra paras [27]ff). Stripped to the bare bones, the main thesis may be stated in these terms: first, there was a time in our evolutionary past (after we had made the transition from our ape ancestors to australopithecines) where mankind experienced perfect integration (Ex F: Fig 3, p 131). This was the "Garden of Eden" which lasted approximately from 5 million years ago to 2 million years ago. This was the period where one had an "instinctive orientation to be utterly co-operative, gentle and selfless" (Ex A(20)(1): p 30/1) (supra para [38]); secondly, there followed an increase in our brain size and the development of consciousness (Ex F: Figs 2 and 3, p 130/1); thirdly, intellect was obliged to search for knowledge. That search attracted criticism from instinct, because it deviated from our instinctive orientation to be utterly co-operative. The criticism was unjust and made us feel bad. However, it could not be rebutted because the explanation (later provided by science) was not then available; fourthly, as a consequence of unjust criticism, Man became "upset". To stop himself feeling bad, he resorted to materialism, egocentricity, even violence; fifthly, that Jeremy Griffith, with the advantage of science, was able to provide a scientific explanation. Our bad behaviour was learned behaviour, as we reacted to unjust criticism. The impulse to violence and evil was not part of our genes; sixthly, we can now understand that we were in fact good, that it is no longer necessary to do the things we used to do to comfort ourselves against unjust criticism. Materialism, egocentricity, violence are now not necessary. Indeed, cities which are places of alienation, may be disassembled as we return to our instinctive, co-operative, integrated way of life. [547] That thesis, although not every detail of it, needs to be endorsed by word or action to constitute support. Alternatively, at the very least, the scientific premises which underpin that explanation need to be endorsed. 16 The primary judge then considered whether the second element (concerning the standard of the work) was established (pars [552] – [637]). He discussed the evidence of experts called for the appellant (Professors Hartwig, Churchill and Prosen and Dr Casebeer) and that of experts called for the respondents (Professors Groves, Flannery and Henneberg). 17 The primary judge reached the conclusion that, as a matter of science, the appellant's work was of "such poor standard", giving the following reasons: [638] Can it be said that Mr Griffith's published work, as a matter of science, is of such poor standard? First, it is instructive to examine the terms in which counsel for the plaintiffs, in submissions, sought to rebut the suggestion that Mr Griffith's books were of a poor standard. Counsel said this: (PS: paras [290]–[291]) 290. Mr Griffith's work is, on its face, work of real seriousness. That is, it takes itself seriously and invites the general reader to do likewise. The questions which is asks are (it is submitted) self-evidently worth asking to all but the most narrow or incurious person. In attempting to advance a general hypothesis for why humans are the way they are, Mr Griffith's work no doubt goes beyond the available data, in the same way that any general theory must. No doubt it over-simplifies (perhaps deliberately) complex areas of discourse, and at times presents as settled or received wisdom what was (and remains) contentious or (occasionally) even a minority position. So much, again, may be regarded as unsurprising in a work of its nature and aspirations. 291. In assessing its standard however, it is submitted that it is not rhetorical overstatement or authorial largesse, which ought condemn such a work; indeed, they may be considered in part to be necessary (or at least plausible) features of any work cast on such a canvas. Once it is accepted that Mr Griffith is addressing himself to important questions and is answering them with plausible argument supported by recourse to identified data, then it is the core theory advanced and its development, rather than the minutiae of citation and prevailing scientific convention, which is the measure of his work's standard. [639] The language of these paragraphs is in marked contrast to the books. Mr Griffith's language is that of certainty. He had, with the aid of science, found the answer. Nowhere is there the slightest hint that what he was saying "no doubt goes beyond the available data" (cf PS: para [290]), nor that he had oversimplified "(perhaps deliberately) complex areas of discourse" (cf PS: para [290]). He does not suggest that he is presenting "as settled or received wisdom what was (and remains) contentious or (occasionally) even a minority position" (cf PS: para [290]). Indeed, it is this very quality of laying down the law, often without reference to the data or opposing views, that has attracted criticism from many of the experts called to give evidence. This cannot, in my view, be dismissed as "rhetorical overstatement or authorial largesse" (cf PS: para [291]). [640] Secondly, from my own reading of "Beyond" (Ex F), the inferences drawn by Mr Griffith, fundamental to his thesis, appeared to be questionable in the light of the authorities which he relied upon. Let me give one illustration, which has been the subject of comment by various experts, in the material set out above. Mr Griffith said this: (Ex F: p 65) Our instinctive heritage is one of behaving lovingly towards others and being treated lovingly. [641] He continued, condemning as evasive, those who have taken a different view: (Ex F: p 65) So our forebears were gentle, loving and cooperative, not aggressive, bloodthirsty brutes as has evasively been propounded by such anthropological commentators as Raymond Dart, Konrad Lorenz, Desmond Morris and Robert Ardrey. [642] What, then, was his authority? Mr Griffith set out the following quotations: (Ex F: p 65) We emphatically reject this conventional wisdom [that war and violence are in our genes] … the clues that do impinge on the basic elements of human nature argue much more persuasively that we are a cooperative rather than an aggressive animal. With the growth of agriculture and of materially-based societies, warfare has increased steadily in both ferocity and duration … We should not look to our genes for the seeds of war … Richard Leakey and Roger Lewin, Origins, 1977, both quotes from Chapter 9. Those who believe that man is innately aggressive are providing a convenient excuse for violence and organized warfare . Richard Leakey, The Making of Mankind , 1981. (emphasis in original) [643] The full quote of the first of these passages is instructive. It is as follows (with emphasis given to the words omitted from "Beyond"): (A(14)) We emphatically reject this conventional wisdom for three reasons: first, on the very general premise that no theory of human nature can be so firmly proved as its proponents imply; second, that much of the evidence used to erect this aggression theory is simply not relevant to human behaviour; and last , the clues that do impinge on the basic elements of human nature argue much more persuasively that we are a cooperative rather than an aggressive animal. [644] It is a fundamental aspect of Mr Griffith's thesis that violence and evil are not genetic. They are a reaction to the nagging of instinct in the battle between instinct and intellect. With his explanation, humans may revert to their loving integrated former selves. There are, it seems to me, a number of difficulties with that thesis. First, the authority, "Origins", does not share Mr Griffith's certainty. Indeed, their criticism of the alternative view (by Dart, Lorenz, Morris and Ardrey) was that no theory of human nature can be so firmly proved. Their own conclusion that man is "a co-operative rather than an aggressive animal" is heavily qualified: the "clues" to their mind "argue much more persuasively" to that view. [645] Secondly, there seem to me, as a matter of logic, other possibilities that make any inference problematical. If humans react with violence and evil to instinct's persistent criticism, does that not suggest that genetically we had the capacity, even the predisposition, to react in particular ways to adversity or injustice? Further, Mr Griffith appears to assume that, once given the explanation, we will revert to our instinctive, integrated selves and once again be gentle and non-violent. However, we have, on his thesis, been living with "upset" for 2 million years. One would imagine that some are better than others in surviving and thriving in an upset world. Has 2 million years of "upset" had an impact upon our genes, such that we are no longer able simply to revert to our instinctive selves? Even if we were not genetically violent when we began, are we violent now? [646] Thirdly, let me turn to the scientific evidence as to the standard of the work. It is upon that material that the issue should be determined. The plaintiffs' witnesses, all eminent in their own fields, had, with the exception of Professor Hartwig, expertise which was tangential to the issues being examined. They were, apart from Professor Hartwig, knowledgeable rather than expert in relevant areas. Professor Hartwig was certainly expert in issues central to the matter being examined. [647] As a generality, I prefer and accept the evidence of Professors Groves, Flannery and Henneberg to the witnesses called by the plaintiffs. In the case of Professor Hartwig, it was observed more than once that he was a most courteous man (T41; DS: para [1.38]). He is also, I believe, a charitable man, more forgiving of shortcomings than most. His classification system — "excellent — average — poor" — was, I believe, too blunt an instrument to determine this issue. [648] The shortcomings in Mr Griffith's works, identified by the defendants' witnesses and also Professor Hartwig, were, I believe, significant. They were departures from fundamental aspects of scientific method. The paucity of citations, the absence of bibliography, the failure to meet the standards of presentation for peer review, were small matters compared to the failure to state assumptions, to identify opposing arguments and to argue persuasively to a logical conclusion. [649] I find the defendants have proved the second element of the imputation that Mr Griffith published work of such poor standard as science. 18 The primary judge then considered whether the third element was established, addressing both the question of support and the question of causation, that is whether any lack of support was due to the poor quality of the work. 19 The primary judge first addressed the question of what amounted to support (pars [651] – [664]). He referred to seven matters identified by the experts as signifying support, namely peer review, citation and approval in the work of other scientists of repute, the reputation of an author, the awarding of a University degree, presentation at a scientific conference, selection as a University text or inclusion in a reading list for students, and words and actions of individual scientists. In this case the appellant relied particularly on this seventh category: [665] The final way in which the scientific community may manifest support is by the words and actions of individual scientists. Here, the plaintiffs relied upon a number of scientists (Professors Birch, Morton, Davies and Groves) who provided commendation of the book "Beyond the Human Condition" at the time of its launch. In some cases, some of them did certain other things after the launch, which were also said to be manifestations of support. The defendants denied that such material amounted to support for Mr Griffith's work. The defendants' position was summarised in a submission framed in these terms: (DS: para [1.70]) 1.70 By way of summary: (a) the Plaintiffs called no scientific experts who were supportive of any of Mr Griffith's works at the time of broadcast of the matter complained of, nor any scientific experts who could provide evidence of Mr Griffith's works having support or even recognition in the scientific community at that time; (b) the Defendants called three eminent scientific experts (Professor Groves, Professor Flannery and Professor Henneberg) who were not supportive of Mr Griffith's works at time of broadcast, nor were they aware of Mr Griffith's works having any support or recognition in the scientific community at that time; (c) the Plaintiffs are not able to rely on either Professor Birch or Professor Morton as being scientists who, in their capacity as scientists, were supportive of Mr Griffith's work at the time of broadcast; and (d) the Plaintiffs are not able to rely on Professor Davies given it is without dispute that he was not supportive of Mr Griffith's works at the time of broadcast. 20 The primary judge then considered the relevance of the appellant's own beliefs concerning support and also the question whether any lack of support was causally related to the standard of the work. On this latter matter, the primary judge said this: [674] What inference should be drawn from the tidal wave of silence or the "wall of silence", notwithstanding such efforts? The plaintiffs asserted that, even if it were proved that there was lack of support for Mr Griffith's works from the scientific community (which was not conceded), there was no direct evidence that such lack of support was causally related to the standard of the work (PS: para [310]). Indeed, there were, it was suggested, a number of "simple alternative hypotheses" available as to why Mr Griffith's work had not attracted widespread support from the scientific community to date, including the following: (PS: para [237]) (a) Mr Griffith's work crosses disciplines and even entire fields of endeavour. For many members of the scientific community encountering his work, it may not be the standard of the work, but rather the breadth of it, which leads to it not attracting support; (b) Mr Griffith's work is self-published. It is not always expressed, or presented in a conventional manner. Such matters may mean that for many members of the scientific community, Mr Griffith's work simply does not 'rate a second glance' but that does not mean it does not deserve a second glance; (c) Mr Griffith's work is nothing if not bold. He makes very strong claims and such boldness may not engage many members of the scientific community (but not mean that it is the poor standard of the work that accounts for the lack of their support); and (d) Finally, aspects of Mr Griffith's work are apt to make those who do take the trouble to grapple with it uncomfortable. It involves reflections upon subject-matter including the purpose of human existence which may, of its nature, cause an adverse reaction as it touches upon issues which some would regard as threatening to their ideals, values or even world views. [675] Professor Hartwig, in his report, said this: (Ex Q: p 10) I found no professional academic reference to Beyond the Human Condition. I attribute this in large measure to its limited distribution as a self-published work. [676] I accept that that may account for part of the response. It does not seem to me an appropriate inference in view of the intensive promotion described. "Beyond" is a slim, well-presented volume. A recipient would obviously be aware that someone had gone to some trouble and expense to provide a copy. I infer that most would, at least, glance at it. A number of things would be immediately apparent. It was a book making large claims, which was self-published. Without speculation, I think it reasonable to suppose some of the experts would look at the bibliography to determine whether their works had been cited (and discover there was no bibliography), or look to the index. Some may glance at the text and see immediately the absence of citations and the absence of other conventions of scientific publishing. Others, perhaps, may glance at the pictures and see the captions which are distinctly unscientific, as many of the experts have remarked. Whatever they looked at, if they spent no more than half a minute, a scientist would, I believe, quickly form a judgment that it was not worth going further. I accept, as a matter of probability, that the wall of silence was, in significant measure, a judgment that the work was, as a matter of science, of a poor standard. Few, it must be acknowledged, would be likely to take the trouble to understand Mr Griffith's thesis. I do not believe that a scientist would choose to ignore it because it was cross-disciplinary or because it purported to deal with the purpose of human existence. The boldness of Mr Griffith's claims would no doubt excite scepticism, but interest as well. 21 The primary judge then considered at some length (pars [677] – [743]) the support that the appellant relied on from individual scientists. He drew the following conclusions: [744] I have therefore reached the position that none of the scientists nominated by the plaintiffs in fact gave relevant support. I am satisfied that the defendants have established each of the elements of the imputation and the substantial truth of the imputation. They have therefore succeeded in their defence of justification in New South Wales and the companion defences in other States. There should be a verdict for the defendants in respect of Mr Griffith's action. 22 The primary judge then considered whether the defence of qualified privilege at common law succeeded (pars [746] – [759]), and he rejected that defence. The respondents do not challenge that decision on this appeal. 23 The primary judge then considered statutory qualified privilege in New South Wales (pars [760] – [786]). 24 On the question of reasonableness of the publication, the primary judge gave the following reasons: [761] The defendants asserted that their conduct was reasonable, for the following reasons: (DS: para [1.187]) (a) it is not disputed that the matter, namely the extent of the scientific support of Mr Griffith's works was a matter of public concern and it did concern the performance of public activities of the Plaintiffs; (b) the Defendants took reasonable steps to verify the accuracy of the material and took care to accurately report the material and information which they had in their possession; (c) the Defendants spoke to scientists whom the Plaintiffs alleged were supportive of their ideas and to other scientists; (d) the Defendants spoke directly to the Plaintiffs about the seeming lack of support in the scientific community at the time of broadcast; (e) the Plaintiffs themselves acknowledged the lack of support, the tidal wave of silence they had received from the scientific community, both in their communications with the Defendants and generally; (f) the Plaintiffs themselves predicted and attempted to explain the lack of support in the scientific and academic community; and (g) given that Mr Griffith held himself out as a scientist and believed his 'breakthrough ideas' were a result, in part, of a scientific explanation, the extent of support or lack of support within the scientific community was pertinent to the publication. (emphasis in original) [762] The first defendant swore interrogatories concerning their intention, in these terms: (Ex A(33): Interrog 16(a)) 16. At the time of publication of the matter complained of, did the ABC intend it to convey any of the following imputations and, if so, which; (a) Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community; 16A. (a) Yes. The ABC via least Millikan, Masters and Carroll intended that the matter complained of would convey this imputation in substance. [763] Dr Millikan's sworn response in respect of the same question was as follows: (Ex A(33): Interrog 18(a)) 18A. (a) Yes, in substance. [764] The plaintiffs, in response, asserted that the defendants' conduct was unreasonable. The onus in proving reasonableness is upon the defendants. Rearranging the plaintiffs' submissions, and leaving to one side matters concerning Mr Macartney-Snape, which will be considered separately in Pt 4 of this judgment, the plaintiffs submitted in substance that the defendants' conduct towards Mr Griffith was unreasonable, and the programme was not a fair representation, for the following reasons: first , the defendants did not interview, or attempt to interview, supporting scientists (PS Reply: para [149(a)]); secondly , the defendants only aired one negative comment by a scientist about Mr Griffith's work, even though it had film of positive comments from other scientists (PS Reply: para [149(e); para [157]); thirdly , there was no evidence the defendants put to Mr Griffith the allegations concerning the standard of his work (cf s 22(2A)(g) of the Act) (PS Reply: para [144]); fourthy , the defendants did not speak to or interview any supportive parent (PS Reply: para [149(b)]) and failed to include in the programme the views of supporting parents (PS Reply: para [168(e)]); fifthly , the defendants included in the matter complained of footage of Mr Griffith (swearing) that was taken out of context and not an example of him speaking about his ideas (PS Reply: para [149(g)]); sixthly , the defendants dissembled to the plaintiffs about the proposed content of the matter complained of, as demonstrated by the letter of 20 January 1995 (Ex M) and by representations made, including representations about the millennium documentary (PS Reply: para [149(i)]; seventhly , that for many of these reasons the programme was not a fair representation of Mr Griffith or the Foundation. On the contrary, the programme was "entirely negative and inaccurate" (PS Reply: para [167]); eighthly , in particular, the programme, by including repeated religious references, was not a fair representation of Mr Griffith's work since the defendants well knew that his work was not grounded in religion but in science (PS Reply: para [168(a)]); ninthly , it was unfair to include the footage of Rosy and Howard Whelan without giving the plaintiffs to opportunity to respond (PS Reply: para [168(c)]); tenthly , it was unfair to include the footage of the Belfields without giving the plaintiffs the opportunity to respond (PS Reply: para [168(d)]); finally , the editing of the Juliet Belfield interview suggested a conversion experience, which had not taken place (PS Reply: para [168(f)]). [765] The plaintiffs also challenged whether there was any admissible evidence (given the absence of Dr Millikan) concerning research said to have been undertaken by the ABC in respect of scientists put forward by the plaintiffs as being supportive. I believe, however, that there was evidence, which I have set out above. [766] The plaintiffs asserted that there was no evidence that the defendants believed in the truth of imputation 5(a). They submitted the evidence was confined to the defendants having an intention to convey imputation 5(a) (PS Reply: para [151]). The defendants' silence did not assist them on the question of reasonableness (PS Reply: paras [152]/[153]). However, I infer that each defendant believed in the truth of imputation 5(a). It was acknowledged by the plaintiffs, and known to the defendants, that academia did not support Mr Griffith's ideas. Research was undertaken concerning the nature of Mr Griffith's ideas and the views of scientists said to support those ideas. That research demonstrated that there was no relevant support. Ms Masters, for her part, thought the ideas "simplistic" (T1378) and, in many respects, "unconvincing" (T1378–80). It was her perception, as the producer of the programme, that there was no scientific support for Mr Griffith's ideas (T1410). She was, for over three months, in continuous dialogue with Dr Millikan. She said that Dr Millikan made a real effort to understand the ideas (T1380). He did not accept that Mr Griffith was a prophet (T1395). He remained deeply sceptical about the ideas themselves (T1397). Indeed, his views did not, in the course of preparing the programme, greatly change from those expressed in The Bulletin article, which were adverse to the ideas (T1397). Ms Masters said this: (T1531) (supra para [473]) A — Did he have a closed mind in reference to Jeremy Griffiths ideas? I think his mind was open to exploring them but I think in the end he did not believe that Jeremy was a prophet. He did not believe that the science, or the explanation, was rooted in science and I don't think he believed that this would change the world. That this claim would change the world. [767] No doubt, Ms Masters' account was based upon her conversations with Dr Millikan, which was evidence of his state of mind ( Evidence Act 1995, s 72). [768] Dealing with these submissions, the first two issues are complaints relating to scientists. The defendants spoke to a number of scientists, including those identified by the plaintiffs as providing support. Ultimately the defendants characterised such scientists as not providing support. For the reasons given, I believe that characterisation was accurate (supra paras [678] to [744]). The programme ultimately included only the comments of Professor Flannery, which were certainly negative. The defendants did not include the comments of Professor Groves, interviewed at the same time, which one infers were also negative (supra paras [598]ff). Indeed, no reference was made to conversations with other scientists, although none provided support for the science in Mr Griffith's thesis, or even a significant part of it. [769] That is not to say that the evidence of each scientist was wholly adverse to Mr Griffith. The plaintiffs, in submissions, pointed to favourable comments, such as those given by Professor Colin Groves in his interview, which included the following: (Ex A(70): p5) The book, well, is not without interest, as we've seen and in some cases it's downright intriguing as we've seen and that's what I said. [770] Graham Robertson was another scientist interviewed by Four Corners. He described how he had spent nine months in Antarctica and the experience had made him receptive to Mr Griffith's ideas. His interview included these words: (Ex 32(1): lines 22–27) … I used to get pleasure over watching the weather come and go, and watching the animals I was working on go through their daily cycle, uh, trials and tribulations of life, the simple things. And when I came back, at about that time, Jeremy had produced a first draft of his book and I latched on to it. I liked the fundamental concept that he was peddling at the time. [771] Graham Robertson elaborated in these terms: (Ex A(70): p4) Well, I initially am attracted to the underlying concept of it which is a ah that there is a fundamental nexus between the instinctive self, through our evolution, the instinctive human being and the intellectual self. I'd never thought of that until I read it in Jeremy's prose and I think it struck a chord of common sense with me. And I suppose why I am fairly happy with that observation, with the merit in it, is that you can just look at your weekly and monthly lives and the interactions you have with people round you and people at work and you often notice a very large difference between the words or the sentiments that are coming out of somebody's mouth and the sentiments that are expressed by their body language and I suspect just to extend that thought that their body language is coded in hundreds of thousands of years of evolution that is very strong and their point-of-view might be tempered by the mind at the time to be compatible with the social scene. [772] Balance in the presentation of this issue did not, however, require the inclusion of such statements. Both statements were embedded in material otherwise adverse to Mr Griffith and his ideas as science (Groves: supra paras [598]ff; Robertson: Ex 32(1)). The defendants' approach was to state that Mr Griffith stood alone, rejected by the scientific community (Ex N(2): lines 976–1005), and to include the statement of Professor Flannery which spoke of the book's poor quality. I believe that approach to have been reasonable. An elaboration upon the research undertaken by the ABC concerning the issue of science would, I believe, have created an impression far more unfavourable than that conveyed by the limited material which was in fact broadcast. [773] Let me move to the third criticism, that the defendants did not put to Mr Griffith that his work was of such poor standard (PS Reply: para [144]). The final interview with Mr Griffith on 9 March 1995 was described, but not tendered. The plaintiffs, in their submissions, invite the inference that the issue of the standard of the work was not canvassed or, at least the defendants (having the onus) have not established that it was. [774] However, I believe the poor standard of the work as science was canvassed. It was implicit in questions concerning the absence of academic support. Dr Millikan, for instance, wrote to Mr Macartney-Snape in advance of the second interview (which took place on 22 February 1995), identifying issues which he intended to take up, including the following: (Ex AL) (supra par [235]) How do you maintain your belief in the truth of the Foundation when the response of the academic world has been so negative. [775] Further, an indication of the questions put by Dr Millikan to Mr Griffith in the final interview can be gauged from the appendix prepared by Mr Griffith on 13 March 1995, after that interview. The appendix, it will be remembered, accompanied Mr Macartney-Snape's letter of complaint dated 12 March 1995 (Ex AQ). The appendix included a document with two columns, on one side the allegations put by Dr Millikan and on the other Mr Griffith's response. On the issue of science, Mr Griffith identified Dr Millikan's allegation in these words: (Ex AQ: appendix p2) H. Ideas have absolutely no scientific/authoritative credibility or support … [776] Dr Millikan's letter in response of 14 March 1995, expressly dealt with the standard of Mr Griffith's work. Without offending the s 136 limitation in respect of that letter, it said this: (Ex 4) As to the reception of Jeremy's ideas in the world of academia — I stand by the tone and content of the questions I put to him. The fact is, at the moment he has the endorsement of only one person, John Morton a retired academic in Auckland. [777] The letter then referred to Professor Davies and the circumstances in which, after a hurried look at the book, he had provided a commendation. It then said this, concerning Professor Charles Birch: (Ex 4) We have contacted him. He also repudiates any endorsement he gave in the past. He says such things as — 'his message is obscure, his writing is awful. There is very little science in it. There is nothing new in it. When he gets into behaviour, he take[s] as gospel views that are extremely contentious and at this stage unprovable.' The note that Jeremy read out in the interview is not an endorsement of his ideas, it is a noncommittal note of greeting and best wishes. (emphasis added) [778] Dr Millikan's letter was, or course, sent after the last interview. The parties did not thereafter meet again. Nonetheless, they remained in contact. [779] The fourth issue, said to demonstrate unreasonable conduct on the part of the defendants, concerned supportive parents. I have dealt with that issue when describing the making of the programme (supra paras [363]ff). Although I believe it would have been better and fairer had the programme included a statement from Dr Millikan that there were supportive parents, or a statement from one of the supportive parents (supra para [384]), this issue was one amongst many. In the treatment of that issue, which I have described, I believe the conduct of the defendants was reasonable. [780] The fifth issue concerned the footage of Mr Griffith swearing. I have found that there was nothing unfair (or unreasonable) in the presentation of Mr Griffith swearing in the course of the programme (see especially supra paras [214]–[217]). [781] The sixth issue concerned the deception of Mr Griffith and the Foundation by Dr Millikan. I have discussed the evidence concerning the statement by Dr Millikan: "I got it wrong". It was a misrepresentation and secured Dr Millikan the co-operation of Mr Griffith and the Foundation (supra para [440]). However, Dr Millikan was ultimately forced on the first night of the walk to clarify his position, and did so (supra para [187]). The misrepresentation was then spent (supra paras [456]/[457], [470]). It was not material thereafter to the relationship between the parties. In respect of the representations concerning the millennium series, I have found, as a matter of probability, that Dr Millikan did not misrepresent his position (supra para [448]). He did not misstate the nature of the series or his intention (supra para [454]). He was aware, nonetheless, that Mr Griffith and the Foundation had made assumptions based upon his words and did nothing to disabuse them (supra para [454]). Nonetheless, I do not believe it can be said that his conduct in this respect, was unreasonable. [782] The remaining issues can be dealt with quickly, in the light of findings already made. The programme, contrary to the assertions of the plaintiffs, was not completely negative and inaccurate (supra para [489]). It was not unreasonable for Dr Millikan to employ a religious idiom when describing Mr Griffith's ideas (supra para [238]ff). Mr Griffith, in the final interview, was, I infer, taken to the comments of Rosy and Howard Whelan (leaving aside the comments of Howard Whelan relating to Mr Macartney-Snape, which will be dealt with in Pt 4 below). Mr Griffith, in the programme, described Rosy Whelan's involvement in the Foundation and her dismissal (Ex N(2): lines 476–480). He elaborated on this in his written commentary upon the final interview (Ex AQ: appendix pp3–6). The Belfield footage was part of the segment dealing with the effect upon families of the Foundation and Mr Griffith's ideas. That issue was taken up with Mr Griffith and Mr Macartney-Snape (supra paras [364]ff). [783] The Juliet Belfield interview was edited. However, Ms Masters explained, and I have accepted, that the editing rearranged the interview into chronological order (supra para [203]). It was not edited to give the appearance of a "conversion experience". Indeed, I do not believe the heavily qualified wording of Juliet Belfield could reasonably be described as a conversion experience (supra para [204]). [784] In the context of the imputation concerning Mr Griffith, imputation 5(a), I accept that the defendants' conduct was reasonable. They have, subject to malice, established the defence of statutory qualified privilege in New South Wales. 25 The primary judge then considered the question of malice, as follows: [785] Dealing with the plaintiffs' case on malice, it was said that there was, unanswered, considerable evidence of misconduct on the part of the defendants. It may therefore be inferred that the defendants were actuated by an improper motive in publishing the matter complained of (PS Reply: para [241]). Again, I will confine my comments to the imputation concerning Mr Griffith. The material identified by the plaintiffs included much of the material relied upon to suggest unreasonable conduct on the part of the defendants. In addition, the plaintiffs pointed to the following: first , the letter from Dr Millikan to Mr Carroll of 20 January 1995 (Ex M) which, they suggested, disclosed Dr Millikan's true feelings towards Mr Griffith and his ideas (PS Reply: para [250]) (supra paras [143]ff); secondly , Dr Millikan's statements to the Belfields after each interview (PS Reply: paras [258] to [259]) (Ex A(36); Ex A(40)) (supra paras [262] and [309]); thirdly , Dr Millikan's statement to Professors Flannery and Groves before their interview, where he said that Mr Griffith was acting like a "cult leader" (PS Reply: paras [255] to [257]) (supra paras [615] and [623]); fourthly , other publications including "Backchat" (Ex AX) and the ABC's website (Ex A(61)) (PS Reply: paras [292] to [295]); fifthly , the failure to debate Mr Griffith at the end of the programme, notwithstanding repeated requests (PS Reply: paras [296] to [298]). [786] These issues and the conduct of the defendants generally were considered in Pt 2 of these reasons, "The Making of the Programme" (supra paras [471] to [489]). To repeat my conclusion, I do not accept that the matter complained of was actuated by malice or an improper purpose. The analysis leading to that conclusion did not, however, consider whether the defendants (or either of them) knew that the imputations were false. I later dealt with that issue. I inferred that the defendants each believed that imputation 5(a) was true (supra para [766]). I am therefore not satisfied that the plaintiffs have established malice or an improper purpose. 26 The primary judge then considered statutory qualified privilege in Queensland and Tasmania; and held that the publication was on a subject of public interest and was made in good faith; and he held that the defence was made out (par [787] – [792]). In particular, the primary judge said this at par [788]: [788] Here it was submitted, and I accept, that the publication was on a "subject of public interest", that is "the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invites public criticism or discussion" ( Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215) (DS: para [1.170]). On that basis, I further accept that the defendants believed, on reasonable grounds, that the audience had an interest in knowing the truth about the subject of the programme (DS: para [1.171]). 27 The primary judge then considered the defence of fair comment (par [793] – [819]). He held that the imputation was comment (par [782]); that it was based on proper material (par [807]); and that Dr Millikan and the other relevant agent of the ABC (Ms Liz Jackson) honestly believed the imputations (par [810]). The primary judge did not accept there was any improper purpose (par [814]). 28 On that basis, the primary judge held that the defence of comment was established under relevant statutes and at common law. Issues on appeal 29 The appellant relies on the following grounds of appeal: The appellant contends that the judgment of Justice Kirby delivered on 1 August 2008 ought to be set aside on the following grounds: Defence of truth 1. His Honour erred in finding that the respondents had proved the substantial truth of the imputation that " Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community " (the " imputation "). 2. His Honour erred in finding that the appellant's work was of a poor standard. 3. His Honour erred in finding that the appellant's work had no support at all from the scientific community. 4. His Honour erred in interpreting the term " support " to require endorsement for the appellant's central thesis. 5. His Honour erred in narrowing the term " support " to mean support for the appellant's central thesis in circumstances where the respondents did not make that submission at trial and the appellant was not given an opportunity to address the issue. 6. His Honour erred in finding that as a result of the poor standard of his work; the appellant had no support at all from the scientific community. 7. His Honour erred in failing to find that the evidence of Professor Colin Groves was significantly adversely affected by bias, and in failing to reduce the weight which ought to be given to that evidence accordingly. 8. His Honour erred in finding that Professor Tim Flannery was qualified to give expert evidence on the subjects of the appellant's work. 9. His Honour erred in finding that Professor Harry Prosen, Professor Scott Churchill and Dr William Casebeer were not relevantly qualified to offer an opinion as to the standard of the appellant's work. Defence of statutory qualified privilege 10. His Honour erred in finding that the defence of statutory qualified privilege pursuant to s 22 of the Defamation Act 1974 had been established by the respondents. 11. His Honour erred in making a finding that the defence of statutory qualified privilege had been established without having first made findings as to the following matters: (a) that the respondents published the matter complained of in the course of giving recipients information in relation to a subject in which the recipients had at least an apparent interest; (b) that the respondents believed on reasonable grounds that that recipients had such an apparent interest; and (c) that the matter complained of contained in substance the appellant's side of the story and if not, that a reasonable attempt was made by the respondents to obtain and publish a response from the appellant. 12. Neither the contents of the matter complained of, nor any other evidence adduced at the hearing, nor any matter of which his Honour might properly take judicial notice tended toward a finding that the recipients of the matter complained of had an actual or apparent interest in the subject-matter of the matter complained of. 13. There was no evidence to support a finding that the respondents believed on reasonable grounds (or believed at all) that the recipients of the matter complained of had an actual or apparent interest in the subject-matter of the matter complained of. 14. There was no evidence, or no sufficient evidence, that the respondents had sought the appellant's side of the story prior to publication, nor was there any reasonable attempt made by the respondents to obtain and publish a response from the appellant. 15. His Honour erred in finding that the respondents' conduct in publishing the imputation was reasonable. 16. His Honour erred in considering the question of statutory qualified privilege in relation to the imputation instead of considering the defence in respect of the matter complained of. 17. His Honour erred in finding that the respondents were not actuated by malice in publishing the matter complained of. 18. His Honour erred in failing to find that malice on the part of the respondents defeated any defence of statutory qualified privilege which might otherwise have arisen so far as the appellant's case was concerned. Defence of comment 19. His Honour erred in finding that the defence of comment pursuant to Division 7 of the Defamation Act 1974 had been proved. 20. His Honour erred in finding that the imputation was an expression of opinion as opposed to an assertion of fact. 21. His Honour erred in finding that any comment was based on proper material for comment. 22. His Honour erred in finding that the appellant had failed to prove that the respondents did not honestly hold any opinion congruent with the imputation. 23. His Honour erred in finding that the second respondent was not distorted by malice in the sense that it warped or distorted his judgment. 24. His Honour erred in finding that the respondents' conduct in publishing the imputation was not actuated by malice being an improper motive in publishing the matter complained of. 30 The respondent relies on the following grounds of its Notice of Contention: 1 His Honour erred in considering that the existence of "malice" was capable of defeating the defence of statutory qualified pursuant to section 22 of the Defamation Act 1974 (NSW). 2. His Honour erred in considering that the existence of "malice" was capable of defeating the statutory defence of fair comment pursuant to division 7 of the Defamation Act 1974 (NSW). 31 I will consider in turn the following issues: (1) Alleged errors concerning evidence (appeal grounds 7 – 9). (2) Alleged errors in findings concerning truth (appeal grounds 1 – 6): (a) poor standard; (b) no support; (c) causation. (3) Interpretation of s 22 (appeal grounds 11 – 12, 15 – 16 and Notice of Contention). (4) Interest or apparent interest (appeal grounds 11 – 13). (5) Reasonableness and malice (appeal grounds 14 – 18). (6) Whether the imputation was comment (appeal grounds 19 – 20). (7) Other elements of the defence of comment (appeal grounds 22 – 24). Errors concerning evidence 32 In support of ground 7, it was submitted by Mr Smark SC for the appellant that Professor Groves had provided a commendation for Beyond the Human Condition (1 Blue 342); that he then came to believe that the appellant was leading what was in substance a cult (2 Black 634); that these matters were not disclosed in his three reports; that in his main report he sought to compare the appellant to Lenin and Hitler (3 Blue 1546); that his reports in reply were advocacy; and that the primary judge's conclusion that Professor Groves was not affected by bias was unsupported by reasons other than that Professor Groves struck him as an impressive witness. 33 In support of ground 8, Mr Smark submitted that Professor Flannery commenced his report professing no expertise in human evolution or evolutionary psychology; that the primary judge discounted the reports of Professor Churchill and Dr Casebeer on just that basis; that Professor Flannery's report was of little substance with no indication of detailed consideration of the appellant's work; and that accordingly the primary judge should have given little weight to his views. 34 In support of ground 9, Mr Smark submitted that Professor Churchill had expertise in psychology and the philosophy of science, both of which were highly relevant to the standard of the appellant's work; so that the primary judge erred in holding that he lacked expertise in respect of the central issue (judgment [576]). He submitted that Dr Casebeer had expertise in cognitive science, philosophy of mind and philosophy of science, and that the primary judge erred in discounting his evidence on the basis of expertise (judgment [589], [646]). He submitted that Professor Prosen had expertise in psychiatry and in mental and psychiatric aspects of bonobos, and the primary judge erred in treating his expertise as merely tangential (judgment [646]). 35 As regards ground 7, in my opinion the matters relied on by Mr Smark do not give substantial support to a finding of bias; and in my opinion, the reports of Professor Groves and his evidence, considered as a whole, do not suggest bias. In my opinion, no error is shown in the primary judge's assessment, and in my opinion the circumstances did not require further elaboration of reasons. 36 In my opinion, there was no error by the primary judge in giving weight to the evidence of Professor Flannery, who did have expertise in evolutionary biology. As to whether, consistently with his approach to Professor Flannery, the primary judge should not have discounted the evidence of Professor Churchill, Dr Casebeer and Professor Prosen on the basis that their evidence was only tangential, I will consider this further in relation to particular findings. Truth: poor standard 37 Mr Smark made detailed submissions to the effect that, although the primary judge (in his own assessment of the standard of the appellant's work) considered that the appellant's work could be science, even if it was not carried out by deduction or with in a reductionist framework, or directed to fellow scientists, or devoid of teleological explanations, the primary judge did not consider these attributes in evaluating the standard of the work. Nor did he seek to evaluate the appellant's claims, apart from the statement that "our instinctive heritage is one of behaving lovingly towards others and being treated lovingly"; and he erred in treating that statement as an assumption rather than as an hypothesis. Mr Smark also submitted that the primary judge erred in mistaking what was a matter of form (the use of forceful definite language) for the matter of substance (the merit of the theories). 38 He submitted that the primary judge did not sufficiently explain reasons for each of the steps in reaching his conclusion that the appellant's work was of a poor standard, namely (1) finding that the appellant's experts other than Professor Hartwig had expertise tangential to the issues, (2) his general acceptance of evidence of the respondents' experts, and (3) finding that the shortcoming identified by those experts led to his conclusion. 39 Mr Smark made detailed submissions (in addition to those concerning expertise) concerning the evidence of each expert, the general thrust of which I will briefly summarise. 40 As regards Professor Hartwig, Mr Smark submitted that aspects of his cross-examination relied on by the primary judge, as showing that he identified shortcomings in the appellant's work, did not detract from Professor Hartwig's expert opinion was that the appellant's work was of better than poor standard, in particular when the nature of the appellant's work put it outside the domain of professional academic publishing. 41 As regards Professor Churchill (who found the appellant's work to be of scientific merit insofar as it was grounded in evidence produced by science and of scholarly value insofar as it had helped to clarify existing theories about human evolution, while putting forth his own ideas), Mr Smark submitted that the primary judge's conclusion that he engaged in a significant retreat in cross-examination was in error, because it did not take account of the nature of the appellant's work as an unorthodox grand synthesis. He submitted that Professor Churchill's evidence was also important in supporting the view that any lack of support for the appellant's work from the scientific community was due to its nature as a grand narrative explanation from a holistic approach, involving teleological elements, independently of its standard. 42 As regards Dr Casebeer, Mr Smark submitted that his opinion that the appellant's work was scientific, original, plausible, testable and hence scholarly was entitled to considerable weight; and the primary judge's disregard of it was not supported by appropriate reasoning. 43 As regards Professor Prosen, Mr Smark submitted that the primary judge's rejection of his glowing account of the appellant's work was not supported by appropriate reasoning. 44 As regards Professor Groves, Mr Smark submitted that his detailed criticisms (concerning reliance on a unilateral evolutionary model for humans, and factual errors concerning facial features of certain ape species) did not take into account the scale and scope of the appellant's work, and that he did not engage in any wholesale assessment of the appellant's main thesis. The primary judge's acceptance of his evidence in preference to that of the appellant's witnesses was not supported by appropriate reasoning. 45 As regards Professor Flannery, Mr Smark submitted that his opinion was little more than a statement of position, and should have been given little weight. 46 As regards Professor Henneberg, Mr Smark submitted that acceptance of his evidence in preference to the evidence of the appellant's witnesses was not supported by appropriate reasoning. 47 In submissions in reply Mr Smark submitted that an answer by Professor Hartwig to the effect that the book did not rate as a work of science, properly construed, meant only that it was not an original contribution within the limits of the science of human evolution in the light of the fossil record. He also submitted that the book did make original contributions to science in the broader sense, for example the hypothesis of "love indoctrination". 48 It is convenient to consider this issue, as the primary judge did and the parties have done in their submissions, by reference to the book Beyond the Human Condition. The imputation was primarily directed to that book. It is in relation to that book that the appellant's claim of support and the respondents' denial of support were directed. 49 There are three preliminary points I would make. 50 First, the question of the standard of a work like this is problematic in a number of respects, in particular in that (a) it is a matter on which reasonable minds can very widely differ; and (b) it very much depends on what the work is being assessed as: for example, whether it is assessed as an undergraduate essay in science or philosophy of science, a professional scientific publication, a popular science publication to inform a general readership about what is happening in the relevant science, a popular science publication for the promulgation of original scientific work, and so on. I would also note that the identification of the category in which the work is to be assessed may also be a matter on which reasonable minds can differ. 51 Second, while the question of whether the appellant's work is or is not of a poor standard simpliciter is raised by the imputation, in that if the work is not of a poor standard at all, the imputation could not be true, it is to be kept in mind that the thrust of the imputation is that it is of such a poor standard that it has no support at all from the scientific community. This thrust is conveniently dealt with later under the heading of causation; but it does presuppose that there are degrees to which a work can be of poor standard, and that it is the degree to which this work is of a poor standard that accounts for its lack of support. The relevant finding of the primary judge was that the work was of "such" poor standard; but in my opinion a finding as to "such" should be considered in connection with the question of causation. The primary judge's finding necessarily involved a finding that the work was of "a" poor standard, and it is that finding I will be considering here. 52 Third, it will later be seen that (like the primary judge) I consider that the assertion in the imputation as to the standard of the appellant's work was comment; and a question arises whether there can be both a defence of truth and also a defence of comment to the same imputation or element of an imputation. It is accepted in the judgment of the primary judge that there can be both defences, because the primary judge has upheld both defences; and although the appellant has submitted that the primary judge was wrong to find that the imputation was comment, he has not submitted that the primary judge was necessarily wrong to uphold both defences, on the ground that only one of them can possibly succeed. 53 There are statements in the authorities to the effect that, although the distinction between a statement of fact and a comment is difficult to draw, a decision has to be made as to whether an imputation is one or the other. For example, in John Fairfax Publications v O'Shane [2005] NSWCA 164; (2005) Aust Torts Rep 81-789 at [27], Giles JA said this: [27] There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important. 54 Certainly, for a defence of comment to succeed, the Court must determine that the relevant material is comment, not a statement of fact; and as I have said, I agree with the primary judge that what the imputation in this case says about the standard of the appellant's work is comment. However, I think the better view is that this does not necessarily exclude the possibility of a successful defence of truth. If the content of what is asserted is in fact true, I see no reason why the defendant should be deprived of the defence of truth, merely because what is asserted is comment rather than a statement of fact. However, it is not necessary for me to express a concluded view on this because, as will be seen, my opinion is that the defence of truth fails for other reasons. 55 Even accepting that my preferred view is correct, the fact remains that, because reasonable minds can differ so widely on the matter, imputations about the standard of a work of science or art are more often defended as comment, so that the question addressed is whether the view was one that was actually held, rather than its truth or falsity. However, where as in this case the defence of truth is raised, the Court has on my preferred view no alternative but to do its best on the question of truth or falsity. This consideration has consequences in relation to the disposal of an appeal. In my opinion, where a primary judge has reached a conclusion as to the standard of a work, the appeal court should only attempt to reach its own conclusion if it is satisfied that the primary judge's conclusion is vitiated by error. 56 As regards the question of what the appellant's work (and in particular Beyond the Human Condition) is to be assessed as, in my opinion this book is to be assessed as a scientific publication for general readership, the object of which is not to inform the readership of what scientific work has achieved and is achieving in the relevant area, but rather to promulgate original scientific ideas of the author. This follows in my opinion from (1) the reference in the imputation to the appellant holding himself out as a scientist and the reference to the scientific community; (2) the content of the work itself, which purports to present to a general readership original and highly significant ideas, rather than to be a popularisation of work done elsewhere; and (3) the content of the respondents' publication (the ABC broadcast) generally, which focuses on the merits and impact of the appellant's own ideas. 57 It follows in my opinion that central to the assessment of the standard of the appellant's work are both assessment of the merit of the appellant's ideas, and assessment of the reasonableness of his arguments in support of them. This latter assessment covers such things as the scope and accuracy of his references to scientific work on which his arguments are based, the cogency of his arguments, the fairness of his treatment of different views, and the reasonableness with which he draws conclusions. Expert evidence would be particularly relevant to the merit of the appellant's ideas and to the scope and accuracy of his references to scientific work, and to a lesser extent to the fairness of his treatment of different views. It would be relevant, but of less significance, in relation to the cogency of his arguments and the fairness and reasonableness with which he draws conclusions, these being matters on which the Court can draw its own conclusions, without necessarily having to rely on expert evidence. To the extent that the expert evidence does not speak with one voice on the matters to which it is more directly relevant, the Court necessarily has to reach its own conclusion on them. 58 In my opinion the approach of the primary judge in this case was entirely consistent with these views. He was justified in considering that the scientific qualifications most relevant to the issues on which expert scientific evidence was important were qualifications in anthropology and in primate and particularly human evolution. The primary judge was justified in giving less weight to the evidence of Professor Churchill, Dr Casebeer and Professor Prosen because they lacked expertise in those areas, and because the evidence which they did give fell more within areas in which the Court could make its own judgment; but it is in any event to be noted that the primary judge did still consider their evidence with some care, and in my opinion gave appropriate reasons for not acceding to their conclusions as to the merits of the appellant's work. 59 It is true, as submitted by Mr Smark, that Professor Flannery's expertise was in evolutionary biology generally rather than primate or human evolution; but in my opinion the field of evolutionary biology was closer to the most relevant area for expert scientific evidence than the fields of expertise of the appellant's experts (other than Professor Hartwig); and his expression of opinion that there was a narrow factual base for the appellant's broad conclusion was within his field of expertise. It is true that this was a brief opinion which did not descend into detail; but in my opinion it was still an opinion to which weight could appropriately be given. 60 In my opinion the primary judge appropriately took into account the nature of the appellant's work as a grand synthesis, not within a deductive or reductionist framework or excluding teleological explanations, and that it was directed to a general readership and not specifically to scientists. Since the merits of the appellant's claims was only one consideration going to the standard of the work, it was sufficient in my opinion for the primary judge to address at length just one claim; and in my opinion that claim (about the instinctive heritage of behaving lovingly) was appropriately regarded by the primary judge as something which the appellant treated as a matter of certainty, not as a mere hypothesis. In my opinion, the primary judge was correct to consider this as reflecting adversely on the standard of the appellant's work as a work of science. The appellant's general use of forceful definite language, when his arguments could at best support merely tentative conclusions, also reflected adversely on the standard of his work. 61 More generally, in my opinion the primary judge's extensive reasons did appropriately explain his conclusions, and Mr Smark's submissions do not identify any respect in which they were inadequate. Neither do the submissions identify any error in the reasoning which would justify this Court reaching its own view. I would add that I have carefully read Beyond the Human Condition (Exhibit F), and I consider the view of the primary judge that the work is of poor standard to be a view that could reasonably be reached, and not itself suggestive of any error. 62 In those circumstances, I would not overturn the primary judge's finding that the work was of a poor standard. Truth: no support 63 Mr Smark submitted that the finding of the primary judge that the appellant's work had no support at all from the scientific community was not open, in the light of various commendations for that work prior to the broadcast of the defamatory matter. 64 Mr Smark relied particularly on commendations from Professor Morton, from Professor Davies, from Professor Birch and from Professor Groves. He submitted that in finding that these commendations did not constitute any support for the scientific community for the appellant's work, the primary judge erred in two important respects: (1) in holding that what was required was an endorsement of the central thesis (purportedly in reliance on Greek Herald Pty Limited v Nikolopoulos [2002] NSWCA 41; (2001) 54 NSWLR 165 at [8], [21] – [22]); and (2) in holding that one could look beyond manifestations of support to the state of mind of alleged supporters. 65 The commendations relied on were set out by the primary judge in his judgment. 66 That from Professor Groves was provided on 24 October 1991, in response to being given a copy of the book Beyond the Human Condition and asked to provide a comment; and it was in the following terms: " Beyond the Human Condition is a bold attempt to find an ethical meaning in biology and anthropology. The book's use of the fossil evidence for human evolution is innovative and intriguing, and suggests paths for future research; but perhaps the most remarkable and unusual aspect is its treatment of the Pygmy Chimpanzee. At one point the author does remark that there is a need for new and integrated fieldwork on Pygmy Chimpanzees, and this is quite right; they have a great deal to teach us, and their behaviour and ecology, taken in conjunction with their morphology, show remarkable parallels to our own. It is where these parallels stop that is going to throw real light on the human condition." 67 It does not appear that prior to the broadcast Professor Groves explicitly withdrew that commendation; but his evidence was that, prior to the broadcast, he received a letter from an organisation called Gateway expressing dismay about what he had written, because of the book's association with what was in substance a cult. Professor Groves said he took that accusation seriously; and the primary judge found he then became hostile to the appellant. Also, Professor Groves was interviewed by Dr Millikan, and although generally not supporting the book he did say "this book, well, is not without interest as we've seen, and in some cases it's downright intriguing as we've seen and that's what I said". 68 The commendation from Professor Davies was provided on 5 November 1991, in response to a request, and it was in the following terms: "Commendation What does it mean to be human? Jeremy Griffith's challenging study of our internal conflicts - our 'upset' - will surely spark fresh debate on the human condition. In this sweeping synthesis, the author draws from the physical sciences, from anthropology, from religion and philosophy, to build a new conception of human beings and our place in the universe. From his penetrating insight into the origins of the human condition Griffith shows how, through understanding it, we may move on to achieve true peace and harmony. Here is a frank, bold and, above all, hopeful message for mankind." 69 However, on 24 September 1993, Professor Davies wrote to the appellant as follows: "Thank you for your letter of 20 September. I confess I am indeed becoming concerned about complications surrounding the use of my name in connection with your book. When I originally provided a few words for you I had no idea that they would be so prominently used, or that I would be dragged into any sort of controversy. I would prefer it if my name could be omitted from future promotion." And on 20 March 1995, he sent Dr Millikan the fax in the following terms: "I made a short comment about the book on the basis of a hurried glance only. This was not intended to be an endorsement of the book, about which I have no considered opinion." 70 The commendation from Professor Birch was provided on 20 October 1991, and it was in the following terms: " Comment on Science and Religion in "Beyond the Human Condition" by Jeremy Griffith . Jeremy Griffith makes the right emphasis when he identifies the order of the universe and its cosmic and biological evolution as the issue that brings science and religion together. Science shows an increasing complexity in order with cosmic and biological evolution but it finds no meaning to that increase in complexity. Jeremy Griffith finds that a religious vision brings an 'integrative meaning' to that order. Moreover it leads him to an ethical vision of integrating love and peace. In all this he gives us a genuinely original and inspiring way of understanding ourselves and our place in the universe. His vision is one I embrace with enthusiasm and commend to all those who are searching for meaning." 71 Later events concerning Professor Birch were summarised as follows by the primary judge: 709 The commendation sent by Professor Birch to Mr Griffith on 20 October 1991, was accompanied by a letter. The opening words of the letter were as follows: (Ex A(67) (supra para [71]) "Here is a statement for what it is worth and to use as you wish." 710 Professor Birch then commended the book "Beyond" as "much more readable than your first effort" (Ex A(67)). He added these words which suggest scholastic naivety on the part of Mr Griffith: (Ex A(67)) (supra para [71]) "My one surprise was to find you quote Duane Gish on page 47. He is the notorious promoter of creation science so called as opposed to evolution. The God he proposes is not the sort of God you want to promote. He is a menace and the main promoter of anti-evolution in the USA. Quoting him will suggest to readers that you agree with his views on other issues." 711 Moving forward to Professor Birch's Open Day speech on 4 December 1993, the speech itself did not deal with Mr Griffith's thesis concerning the human condition (Ex A(15)). It dealt with the nature of science and the differing approaches to science. There was a mechanical or reductionist approach, which was objective, assembling the building blocks step by step. However, science had neglected the subjective response. Professor Birch said this: (Ex A(15): lines 470-476) " … Now that is the most important thing I think that one can begin to think about the nature of the world, the universe. You got to think of it [in] terms of not just external relations which is the story that science tells but in terms of, you know, the internal relations that transform entities. Be they human beings or cells or what have you, and I think this is sort of an exploratory area which could transform a lot of thinking. In other words, science can't deal with subjectivity." 712 Professor Birch went on to speak of God in response to a question from the audience (Ex A(15): p18) and whether there was a purpose in existence (Ex A(15): line 914). Mr Griffith then offered to "interpret" what Professor Birch had said (Ex A(15), lines 1058-1066). The following exchange then took place: (Ex A(15): lines 1083-1090) " Charles Birch: Yes you see I find what you write is quite difficult to read. I don't, does everybody else find it very easy to read maybe, I mean I'm the odd man out maybe. How do you get that off? Jeremy Griffith: Here Charles … Charles Birch: Sorry, okay I'm sorry. I mean maybe of course because it's so profound that they're hard to express … " 713 Mr Griffith referred to the holistic approach to science and the tendency in nature to form "wholes" (Ex A(15): p24). Professor Birch responded as follows: (Ex A(15): lines 1223/4) "But what is the purpose of human life apart from this business of creating a greater order of some of a higher level? What else is the point?" 714 Mr Griffith then began an explanation of the human condition, by providing part of his thesis, although without reference to the science for that thesis. He then said this: (Ex A(15): lines 1246-1252) "Well because of the problem of the human condition because that if you … develop the idea of relationships, the significance of, right and love, that produces a conflict in humans because if they're not able to love or be a ideal if you like … then that creates a dilemma; then why aren't you ideal? And that I'm suggesting is the human condition, this dilemma about the human situation. Of having to live on this earth … " 715 The dialogue continued: (Ex A(15): lines 1254-1264) " Charles Birch: What is your solution to that dilemma? Jeremy Griffith: Well that's what the book presents … Charles Birch: Yeah but you see I want you to put it into a sentence. (audience laughter) Jeremy Griffith: Well the solution is to explain the dilemma away. Which is… Charles Birch: So it's not a real dilemma?" 716 These exchanges do not suggest that Professor Birch had understood and endorsed Mr Griffith's thesis. Rather, one would infer that they shared a view that a holistic approach to science was needed, including the search for purpose. 717 Moving forward to 1995 and the making of the Four Corners programme, the limited nature of Professor Birch's support emerged on the first day of the Snowy Mountains walk, 4 February 1995. In the campfire talk that evening, Mr Griffith said this concerning Professor Birch: (Ex AJ: lines 486-493) "What other, oh yeah we got a letter the day before we left from Charles Birch, which is nice, saying 'keep up the good work' all of us. Because periodically I send him newsletters, just to update him in case the heat from the sceptics gets too hot, we've got somebody in that academic area that can come in and, although Charles doesn't understand deeply what this is. He's a soldier for holism at least, in a big way and a highly respected person and he was my Professor when I was at Sydney University and he's seen the early drafts of the book from fifteen years ago." (emphasis added) 718 Ms Masters' production diary for the programme was tendered (Ex 23). It was a notebook in which she made contemporaneous notes of conversations important to the production. Her notes included a reference to Professor Birch (Ex 23: p11). She explained that the notes related to a conversation she had had with Dr Millikan. There was an objection on the basis of hearsay. Ms Masters was ultimately permitted, without objection, to give her understanding: (T1364) "Q. So what was, having spoken to Dr Millikan, your understanding as to the degree of support that Charles Birch currently had for Mr Griffith's views? A. Well, I mean, my understanding is what is written there, that he didn't give it, you know, his full support; he did not – well, it says 'written him off', 'never gave unequivocal', 'was one of the ' – 'Jeremy Griffith was one of my students' – 'wrote review of book'; I mean, my sense was that he did not support the book." 719 Mr Griffith, it will be remembered, was interviewed by Dr Millikan on 9 March 1995. There followed a protest from Mr Macartney-Snape by letter of 12 March 1995 (supra para [290]ff). On 14 March 1995, Dr Millikan responded to that letter. His response referred to Professor Davies and the withdrawal of his commendation. It then said this (although it was not evidence of Professor Birch's views (T504)): (Ex 4) (supra para [303]) " … The same is true of Charles Birch. We have contacted him. He also repudiates any endorsement he gave in the past. He says such things as – 'his message is obscure, his writing is awful. There is very little science in it. There is nothing new in it. When he gets into behaviour, he takes as gospel views that are extremely contentious and at this stage unprovable'. The note that Jeremy read out in the interview is not an endorsement of his ideas, it is a non-committal note of greeting and best wishes." 720 Dr Millikan, of course, did not give evidence. The letter may be said to be self-serving. He did, however, swear answers to interrogatories which were in these terms: (Ex A(33): Interrog 40) "40. Prior to publishing the matter complained of, did you believe each of the following matters were true of Professor Charles Birch, and if so, which: (a) That he was a noted scientist; (b) The he was Emeritus Professor of Biology at the University of Sydney; (c) That he was supportive of the work of Jeremy Griffith? 40A. (a) Yes. (b) Yes. (c) No. Based on information given to me by Griffith, I initially believed that Professor Birch was supportive of Griffith's work. However, by the time of the broadcast of the matter complained of, I did not believe this to be the case." 721 The programme was screened on 24 April 1995. On 27 April 1995, Mr Griffith wrote to the managing director of the ABC, Mr Brian Johns. Responding to Dr Millikan's words in the programme (" … today he is alone, rejected by the scientific community") (Ex N(2): lines 980/1) (supra para [492]), Mr Griffith said this: (Ex A(49)) "Dr Millikan interviewed an alleged 'expert' from the Australian Museum (failing to establish this person's credentials for making a critical judgement) but ignoring more expert and distinguished views, such as those of Emeritus Professor John Morton, which provide a more balanced view of the merit of Griffith's work. This was despite the fact that he (Millikan) spoke to Morton on at least one occasion. The result of this failure to present other relevant viewpoints was to create an impression that Griffith had no academic support for his views even though Millikan's own research must have shown this not to be the case." 722 Significantly, there was no reference to Professor Birch providing support. This was not an oversight. When Gerard Stone interviewed Mr Griffith the day before the programme (23 April 1995), the only scientist he mentioned as providing support was Professor John Morton (Ex A(53)(1): lines 583-593). I infer that Mr Griffith knew that Professor Birch did not, at that time, support his thesis. 723 Nonetheless, Professor Birch did not sever his ties with the Foundation. In 1998, he launched the Foundation's website. In 2003, he wrote the foreword to Mr Griffith's book, "A Species in Denial" (Ex A(6)). The terms of the foreword are instructive. It dealt with the objective and subjective approaches to science, and the need for a holistic approach. He ended his review by then referring to "A Species in Denial" with these words: (Ex A(6): pp18/19) "In his book A Species In Denial Jeremy Griffith seeks to bring together the two streams of thought, the objective and the subjective. He is not, of course, the first person to try to do this. The questions the reader will ask are these. Is it true? What light does it throw on the human condition? I don't propose to answer these questions directly but to suggest to the reader to bear in mind that Jeremy Griffith's ideas have taken root in his Foundation for Humanity's Adulthood. Its many supporters testify to the transforming influence of the ideas they have discovered in this Foundation. That is the story that primarily interests me rather than to make critical analysis of the ideas which every reader should be encouraged to do for themselves as they read this book." 724 These words cannot be taken as support for the science of Mr Griffith's thesis. Professor Birch, no doubt, supported the holistic approach of Mr Griffith, but I do not regard that as support in any relevant sense. It is not support for the science of the thesis, Mr Griffith's answer to the question of good and evil, nor even an important aspect of that thesis. 72 The commendation by Professor Morton was provided in about September 1991, and it was in the following terms: "[ Beyond The Human Condition ] is a book about anthropology and the human future. So it is necessarily about Christianity and importantly relates it – as it must be related – to biology. I am sure it should be read by Christians, especially young ones in schools, and also taken home by them. I believe it foresees the same vista as Teilhard de Chardin did in his more orthodox terms, which is in fact the consummation promised for humanity set free, in the Christian Gospel. This book, though not in traditional Christian language should concern all Christians, because it will stir them to think, and its challenging message contains nothing out of line with a Christian world." 73 The primary judge set out the following material concerning subsequent expressions of views by Professor Morton: 731 ….. Dr Millikan spoke to Professor Morton. According to the chronology prepared by the plaintiffs, the conversation took place on 20 March 1995 (Ex A). Dr Millikan, of course, did not give evidence. There is, nonetheless, some material which related to the content of that conversation. Ms Masters, as the producer of the programme, regularly spoke to Dr Millikan. It was obviously important that she keep abreast of the work that he was doing. She gave her understanding of his enquiry with Professor Morton. Referring to the book, "Beyond the Human Condition", she said this: (T1375) "Q. By the time the broadcast went to air what was your understanding of the degree of support that Professor Morton was giving to Mr Griffith's ideas? A. Well, the communication I had about Mr Morton came through David [that is, Dr Millikan], so everything that I kept telling you was as a result of my conversation with David. I did not speak to John Morton. Q. As a result of speaking to David, what was your understanding? A. Was the John Morton didn't see the book as quality science." 732 A letter was sent by Dr Millikan to Mr Griffith (and signed by Ms Masters) on 5 April 1995, which was consistent with Professor Morton having not endorsed the science of Mr Griffith's thesis. The letter included the following paragraph: (Ex 27) "In fact, Jeremy, you will have to concede that both Deb and I have made commitments which we have scrupulously kept. For example – during the interview at Terrey Hills – I said to you that we would not use the material concerning the endorsements of Birch, Morton and Davies. And we have stuck to that arrangement. I know you believe that they were coerced into repudiating their former endorsements, although that is not what they say . But not withstanding the conversation which you and I had subsequently, these men's names do not appear in the film." (emphasis added) 74 There was also evidence of file notes taken by Dr Millikan prior to the broadcast in a 1999 document prepared by the ABC (2 Blue 737). These were file notes of a conversation with Professor Morton, recording the following: "I gave his book an endorsement, but I have kept very little track of it." "It's not science, it's prophetic gloss. It's like a poor man's Teilhard." Although the question does not appear to have been debated below or on appeal, this material would appear to be admissible as to the contents of a business record under s 48(1)(e)(ii) of the Evidence Act 1995; and the primary judge accepted that Professor Morton did say words to that effect (judgment [742]). 75 Turning to the question of alleged errors by the primary judge, Mr Smark did not question the primary judge's summary of the effect of Nikolopoulos as being that implications are to be understood in the context of the defamatory publication and by reference to considerations of practical justice; but he submitted that this did not support the restrictive meaning of support adopted by the primary judge. 76 It is true that the primary judge took the view (judgment [544]-[545], set out at par [15] above) to the effect that it was the central thesis of the book Beyond the Human Condition in respect of which the broadcast asserted that the appellant was alone; and that the imputation of lack of support should be understood as being lack of support for that thesis. However, at [547], the primary judge also gave a broader alternative view that "at the least" the scientific premises that underpin that thesis needed to be endorsed. 77 For my part, I would not adopt the narrower view taken by the primary judge. Although the broadcast did focus on the appellant's central thesis, and the lack of support for it, the imputation is expressed in more general terms; and I do not think the context is sufficient to narrow the meaning of those general terms to the extent of the primary judge's narrower position. In my opinion what is relevant is support for the plaintiff's work, considered as a scientific publication for a general readership, the object of which is not to inform that readership of other scientific work but rather to promulgate the original scientific ideas of the author. Relevant support could then be provided, even if the central thesis is not endorsed, so long as it is support for the book as presenting respectable scientific ideas and arguments for those ideas that are respectable arguments according to the standards of scientific publications directed at a general audience. On that basis, my approach is not greatly different from the broader alternative approach of the primary judge. 78 Further, the reference in the imputation to (lack of) support from the scientific community confirms that it is support for the work as that kind of scientific publication that is relevant, and not (say) support for it as an ethical or quasi religious work. Thus, commendation of the work substantially on the basis that adopts a non-reductionist or non-mechanistic approach to the questions being considered, or that it seeks to promote ethical or optimistic views of human nature, would not in my opinion amount to relevant support. 79 Also, the reference to support from the scientific community means, in my opinion, that support from just one or two respected scientists might not necessarily be relevant support, unless that support can be understood as expressing or constituting some support from a community. Of course, the use of the words "at all" could be considered as pointing in the other direction; but what is in issue is whether there is no support at all from the scientific community, not no support at all from any individual scientist. 80 As regards the question raised in par [541] of the primary judge's judgment, my view is that it is manifestation of support that is primarily in issue. Privately-held reservations would not in my opinion negative manifested support. But manifested support at one time would not necessarily prove support at another time (although with the aid of the presumption of continuance it would often do so); and if manifested support were elicited because of mistake or misunderstanding, it may then not count. This view differs a little from that of the primary judge, but in my opinion the difference may not be material. 81 In my opinion, it was well open to the primary judge to conclude that any support given by Professor Groves to the appellant's work was not support for it as a work of science, and that it was no longer given at the time of the broadcast. The view that it contained interesting or intriguing ideas did not amount either to support for the thesis of the book, or to endorsement of it as presenting scientifically respectable ideas supported by scientifically respectable arguments. 82 In my opinion, the same comment applies to Professor Davies. 83 As regards Professor Birch, undoubtedly he was a highly respected scientist and he did, up to and following the broadcast, give support to the appellant's activities. However, in my opinion it was well open to the primary judge to consider that this support reflected sympathy for the appellant's adoption of an holistic approach to science and a search for purpose, rather than support for his work as a work of science, even popular science. 84 As regards Professor Morton, the primary judge accepted he was an eminent scientist, as well as an eminent theologian; and in my opinion it was well open to the primary judge to hold that Professor Morton's support was as a theologian, and to accept that he said to Dr Millikan that the book was not science but a prophetic gloss. It was thus open to the primary judge to hold that Professor Morton's support did not amount to any support from the scientific community for the work as a work of science. 85 In my opinion, the finding of the primary judge that the appellant's work had no support at all from the scientific community has not been shown to be in error. I do not consider the different shades of meaning I would give to the notion of support from the scientific community to materially affect the primary judge's decision. I would myself reach the same conclusion as the primary judge. Truth: causation 86 The remaining part of the third element in the defence of truth has been labelled causation. However, as foreshadowed in par [51] above, in my opinion this is a somewhat simplistic description of this element. 87 The imputation is not merely that the appellant's work is of a poor standard and has no support at all from the scientific community, or even that the appellant's work is of a poor standard and for that reason has no support at all from the scientific community. It is that the appellant's work is of such a poor standard that it has no support at all from the scientific community; and in my opinion this conveys that there are degrees to which work can be of a poor standard, that if the appellant's work had been of a materially better standard (whether or not still of a poor standard) it would not have had no support at all from the scientific community, and that the lack of any support at all from the scientific community demonstrates the poorness of the standard of the appellant's work. Accordingly, the defence of truth would require that these things be substantially true. 88 The reasons given by the primary judge are primarily set out in par [674] – [676] of his judgment, set out at par [20] above. 89 It was submitted by Mr Smark that there were other explanations for the lack of support from the scientific community for the appellant's work, including the nature and scale of its subject matter (this being supported by the evidence of Professor Churchill, referred to at par [41] above), the manner in which the appellant expressed his theories, and the fact that the work was self-published. 90 In my opinion, particularly having regard to my understanding of what was conveyed by the imputation and thus had to be justified as substantially true, these and associated matters were not adequately considered by the primary judge. 91 In my opinion, the circumstances that the appellant had no affiliation or association with a university or scientific establishment, had no recognition from a university or scientific establishment other than an undergraduate degree, had apparently not published in peer review publications, and had self-published the work under consideration, are not elements of the standard of the work itself, but are nevertheless factors counting heavily against the work receiving consideration and support from the scientific community. The circumstance that the work was a grand narrative explanation from a holistic approach, involving teleological elements, would also count against the work receiving consideration and support from the scientific community, without necessarily impacting on the standard of the work. 92 I accept that the manner in which the appellant expressed his theories, independently of their content, would also count against its receiving consideration and support from the scientific community; but in my opinion, as mentioned previously, this manner, involving expressions of certainty when at best the appellant's arguments could justify only tentative conclusions, is a significant element directly and detrimentally affecting the standard of the work. Accordingly, to the extent that this manner of expression contributed to the lack of support, this was an element of causation truly due to the standard of the work. 93 I do not think the primary judge's discussion at par [676] of his judgment (set out at par [20] above) adequately supports his conclusion that causation was established. The hypothetical judgment by a scientist, on the basis of the cursory consideration described by the primary judge, that the work was as a matter of science of poor standard, having regard to such things as lack of a bibliography, absence of citations, or the captions to the pictures, would not in my opinion be a judgment reached on a sound assessment of the standard of the work. These features of the appellant's work (which, in the case of citations, I would describe as unusual citations rather than absence of citations) are suggestive that the work is of a poor standard and are elements relevant to its standard, but I think a judgment based on those elements alone would be a superficial judgment. 94 Given the disadvantages referred to in par [88] above, I would not be satisfied that, if the appellant's work had been of a materially better standard, it would have received some support from the scientific community; or that the lack of any support from the scientific community demonstrated that the work was of a poor standard, much less any degree of poorness of standard. 95 Although in this element also, this Court should not displace the primary judge's decision unless satisfied it was wrong, this is a matter on which there is less room for discretionary assessment than in relation to the standard of the work; and in my opinion the primary judge set the bar for the relevant finding of causation too low, and his reasons did not adequately support his conclusion. On this element, I would give effect to my own view that causation (in the sense explained above) was not established; and on that basis, I would hold that the defence of truth was not made out. Interpretation of section 22 96 I come now to the defence of statutory qualified privilege. 97 Mr Smark submitted that, in his consideration of s 22 of the Act, the primary judge overlooked the need to show that the publication was to persons who had a real or apparent interest in having the information in some subject; and that this requirement mirrored the common law defence of qualified privilege, so that what needed to be found to exist (or appear to exist, on reasonable grounds) was an interest that was real and direct, not remote or tenuous: Bennette v Cohen [2009] NSWCA 60 at [20]; Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5; (2004) 218 CLR 366 at [71]. 98 Mr Smark submitted that the appellant's concession that public interest was not in dispute for the purposes of the truth defence under s 15 of the Act did not amount to a concession that the viewing audience of the programme had an interest or apparent interest for the purposes of s 22. This was confirmed by the consideration that, unlike s 15(2)(a) of the Act, s 22(1)(a) individuated the question of interest to particular recipients; and s 20 made detailed provisions for circumstances where some but not all recipients had the relevant interest. At most, s 22 relieved the publisher of the need to prove a duty to impart the information: Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 705. 99 Mr Smark submitted that, in finding that viewers did not have the requisite interest for common law qualified privilege, the primary judge made the following findings: (a) the appellant does not concede that any of the 1.8 million viewers had the requisite interest for (common law) qualified privilege [748], RB 237F; (b) the statutory obligations of the ABC do not create the necessary interest [751]-[755], RB 237S; (c) the information communicated by the programme concerned a relatively small group of people, the audience, on the other hand, was massive [756], RB 238T; (d) the information communicated was important, but some parts were more important than others [756], RB 238T; (e) none of the information was " life or death " [756], RB 238T; (f) there was no duty or interest to impart the information and there was no correlative interest in receiving it [756], RB 238T; and (g) by no stretch could it be considered an exceptional case so as to justify the publication of defamatory material [756], RB 238T. 100 Mr Smark submitted that in those circumstances, there should not be any finding made that viewers had either an interest or apparent interest within s 22(1)(a) of the Act. To the extent that the primary judge made a finding to that general effect at par [788] of his judgment, in considering the Queensland and Tasmanian legislation, the evidence did not support that finding. 101 Mr Smark also submitted that the requirement of s 22(1)(c), that the conduct of the publisher be reasonable, was a requirement directed to the objective circumstances of the publication rather than the subjective intentions and motives of the publisher, the latter being something to be dealt with when considering malice, which would defeat statutory qualified privilege in the same way as it defeats common law qualified privilege. 102 Mr Smark submitted that the reference to "a defence of qualified privilege" in s 22(1) meant that what was being done was to provide an adjunct to that common law defence, subject to the same qualification, that it is defeated by malice. He submitted that this was confirmed by s 11 of the Act (preserving common law defences), and supported by dicta in Austin v Mirror Newspapers Limited [1984] 2 NSWLR 383 at 389, and Makim v John Fairfax & Sons Ltd (1990) A Def R 40,521 at 40,525. 103 On the first question, that is, what is required to show an interest or apparent interest, I referred to relevant authorities in Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320 at [7]-[8]: [7] It is necessary first to determine whether readers of The Echo had an interest in having information on some relevant subject, and to identify that subject. As to what can constitute such an interest, in Barbaro , Hunt J said this ((1985) 1 NSWLR at 40): It was not disputed by the plaintiff that those viewers who identified him in the telecast had a legitimate interest in the situation in Griffith as so described. The interest or apparent interest of the recipients need not be a proprietary one, nor even a pecuniary one: Howe v Lees (1910) 11 CLR 361 at 369 and 396. The word "interest" is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news: (ibid at 369, 398); Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (1947) 47 SR(NSW) 357 at 363 and 366 ; 64 WN 46 at 50. The interest must be definite; it may be direct or indirect, but it must not be vague or insubstantial — so long as the interest is of so tangible a nature that it is expedient to protect it for the common convenience and welfare of society, it will come within the privilege afforded by the section: Howe v Lees (at 377); Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (at 364; 50). [8] That approach was supported by the Privy Council in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 358–59: It is possible as a matter of construction to place a narrow or a broad construction on the words "an interest". The narrow construction would equate "an interest" with that type of interest which is usually looked for as an ingredient of the defence of qualified privilege at common law, that is to say, an interest material to the affairs of the recipient of the information such as would for instance assist in the making of an important decision or the determining of a particular course of action. It is for this narrow construction that the appellant contends. But it is clear that the courts in New South Wales have placed a broader construction upon the words "an interest" and have taken them to include any matter of genuine interest to the readership of the newspaper. In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 Reynolds JA, with whom Glass JA agreed, said (at 711), when considering s 22(1)(a) in respect of a television broadcast: "It cannot be denied that the recipient, in this case the general public, had an interest in having information on the subject of public affairs." In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 the Court of Appeal drew a contrast between the interest required to find qualified privilege at common law with the wider interest referred to in s 22. They said (at 797): The limited application of the common law principles of qualified privilege to publications in newspapers has already been discussed. Section 22 was designed to enlarge the protection afforded by these principles to defamatory publications generally, and it has a particular relevance to publications in newspapers; but it gives no carte blanche to newspapers to publish defamatory matter because the public has an interest in receiving information on the relevant subject. What the section does is to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established. In Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Hunt J said (at 40): … The word 'interest' is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news. In Field v John Fairfax & Sons Ltd , (Court of Appeal, 23 May 1974, unreported), it was held that the public had an interest in the greyhound racing industry. Bearing in mind that this Act was clearly intended to widen the scope of the common law defence of qualified privilege, their Lordships see no reason to differ from the wider construction adopted by the courts in New South Wales and, applying this construction, accept the view of both the trial judge and the Court of Appeal that the readership of this daily newspaper had an interest in the performance and training of the Manly Rugby Football Club within the meaning of s 22(1)(a). 104 Thus in my opinion there is a clear distinction drawn between the interest in a recipient which is required for the purposes of common law qualified privilege, and the interest (or apparent interest) which is required under s 22(1)(a), the latter being a substantially wider sense. I will consider the application of s 22(1)(a) to this case in the next section. 105 On the second question, it could be contended that Mr Smark's submission is also supported by the analysis of what is required for reasonableness by Hunt AJA (with the concurrence of Samuels JA) in Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 at 387-8: "(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant's conduct in relation to the publication of that particular imputation. (2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case [ Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493], and perhaps also that discussed in Collins v Ryan [(1991) 6 BR 229]) have believed in the truth of that imputation. (3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish: (a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and (b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed. If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood: Evatt v John Fairfax & Sons Ltd at 13-14 [Hunt J, 20 June 1985, unreported]; Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 at 209; see also Wright v Australia Broadcasting Commission [[1977] 1 NSWLR 697] at 712 (whether the defendant 'knew whether he was likely to convey a misleading impression'); Austin v Mirror Newspapers Ltd [[1985] 3 NSWLR 354] (at 362) (Privy Council). (4) The defendant must also establish: (a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right (where appropriate) by making proper inquiries and checking on the accuracy of his sources; (b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained; (c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and (d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers. The extent to which the inquiries referred to in para(4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd [1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 55-56. It is necessary to keep in mind that each of the matters referred to in para(4) are relevant to the reasonableness of the defendant's conduct; they do not raise questions independently of that issue. This is important in relation to the functions of judge and jury. If, for example, there is a dispute as to whether the defendant made a particular inquiry, that dispute is to be decided by the jury. But if there is a dispute as to whether reasonable conduct in the circumstances required inquiries to be made or as to whether the inquiries in fact made were sufficient, those disputes are to be decided by the judge as part of the ultimate question as to whether the defendant's conduct was reasonable in the circumstances." This passage was adopted by Giles JA (Sheller and Powell JJA agreeing) in Evatt v Nationwide News Pty Limited [1999] NSWCA 99 at [18]. 106 This passage would be consonant with the view that malice was a consideration separate from reasonableness, and appropriate to be raised as a reply to a defence of statutory qualified privilege, in the same way as with common law qualified privilege. 107 However, in my opinion the words of the Act do not support this approach, nor the view taken by the dicta in Austin and Makim. 108 Section 11 of the Act does not suggest that a reply relying on malice should be available in relation to a defence not available at common law but created by the Act. Although s 22 identifies the defence it creates as a defence of qualified privilege, s 20 draws a clear distinction between qualified privilege under the common law and qualified privilege under s 21 or s 22 of the Act. Further, for s 21(b) to apply, there must be a defence of qualified privilege apart from s 21; and in the case of common law qualified privilege, that defence would only be available where the plaintiff cannot prove malice. Accordingly, if the statutory defence created by s 21 would itself be subject to defeasance by proof of malice, that qualification would apply twice, which would seem surprising. 109 In my opinion, there is no sufficient reason for reading down the plain words of s 22 that, in the circumstances specified, there is a defence of qualified privilege, with no further qualifications. The fact that it is called a defence of qualified privilege does not in my opinion take the matter further, when the Division in which s 22 appears itself makes it clear that the defences created by ss 21 and 22 are different from common law qualified privilege. The dicta to the contrary in Austin and Makim were not supported by any reasoning, and I would not follow them. 110 This view has consequences that are not necessarily favourable to defendants. I would take the view that a publication that was actuated by malice, in the sense that it was made for a dominant reason apart from the purpose referred to in s 21, would not be reasonable in the circumstances. On that view, it would be for the defendant to prove absence of malice, rather than for the plaintiff to prove its presence. To that extent, the requirements for reasonableness laid down in Morgan may not be exhaustive. I will return to this when I come to consider reasonableness. Interest or apparent interest 111 It was submitted by Mr Walker SC for the respondents that the whole audience of the broadcast did have an interest in having information on a subject, namely the subject of the promulgation under the cloak of science of a socially divisive and quasi religious doctrine; and that the broadcast, by means of which the imputation was made, was published in the course of giving the audience information on that subject; so that the requirements of s 22(1)(a) and (b) were satisfied. 112 In my opinion, this submission is substantially correct; although I would express the subject a little differently, as being the promulgation as a discovery of science of a potentially socially divisive doctrine with religious overtones, the recruitment of followers of the person promulgating that doctrine, and the effect of this on families. In my opinion this was not simply a matter of curiosity, but a matter of substance apart from its mere quality as news; and it was so not merely to the families of young people who might be attracted to the appellant's ideas to the possible detriment of family relationships, but to the community generally. 113 In my opinion also, the material giving rise to the imputation was not in any sense extraneous to the giving of this information, and there is no possibility that the matter by which the imputation was made can be regarded as distinct or separate from matter published in the course of giving the audience information on the subject in question. 114 Accordingly, there is no need to consider apparent interest and s 22(2); and the substantial question to be considered is whether the conduct of the respondents was shown to be reasonable in the circumstances, within s 22(1)(c). To the extent that it bears on the question of reasonableness, I will also consider the question of malice. Reasonableness and malice 115 Mr Smark submitted that the primary judge erred in a number of respects in finding that the respondents' conduct in publishing the matter was reasonable. In particular: (1) The primary judge inferred that each of the respondents believed in the truth of the imputation even in the absence of evidence from the respondents, particularly Dr Millikan, to that effect. (2) Ms Masters, Dr Millikan and Ian Carroll of the ABC made a conscious decision not to inform the appellant or Mr Macartney-Snape of the allegations to be made against them prior to the broadcast; the primary judge found this contrary to good faith and unreasonable in relation to Mr Macartney-Snape; and the primary judge should have made the same finding in relation to the appellant. (3) The primary judge should have found the respondents, and particularly Dr Millikan, had published the matter for an improper purpose, namely to harm the appellant and/or Mr Macartney-Snape and/or the Foundation for Humanity's Adulthood, having regard to the conduct of Dr Millikan in stating to Professor Groves and Professor Flannery, immediately prior to their being interviewed, that the appellant was acting like a cult leader and splitting up families; the failure of the respondents to include in the broadcast or refer to the existence of supporting scientists or parents; statements by Dr Millikan to the parents Mr and Mrs Belfield that he would "relish" the opportunity to "harass" the appellant; the conduct of the respondents, especially Dr Millikan, in disguising their true intentions (referring to an alleged millennium documentary, and telling the appellant he had got it wrong in his earlier unfavourable review of Beyond the Human Condition); the conduct of the respondents in inducing Mr Macartney-Snape to refer to the appellant in his speech at Concord High School, and their knowledge of the falsity of the imputations concerning Mr Macartney-Snape; the style and content and selective editing of the broadcast; and the respondents' failure to apologise. The primary judge failed to take into account the cumulative effect of the above, and to consider whether the publication of the matter (not just the imputation against the appellant) was actuated by malice. 116 In my opinion, the primary judge addressed and dealt satisfactorily with all of these issues, except possibly for (1) the question whether unreasonable conduct as regards Mr Macartney-Snape meant that the respondents conduct in publishing the matter was not shown to be reasonable, and (2) the question whether the primary judge's finding that malice had not been established is sufficient for reasonableness, in the light of my conclusion that the onus on the respondents to show they acted reasonably includes an onus to show that they did not publish for a dominant reason aside from the purpose specified in s 22. 117 Dealing with the first issue, I note that s 9(2) of the Act identifies the cause of action as being one in respect of the defamatory imputation for the publication of the matter that makes the imputation. What has to be shown to be reasonable under s 22(1)(c) of the Act is the conduct of the publisher in publishing that matter, in its character as making the imputation complained of; not, in my opinion, the matter in all of its aspects. 118 This view is supported by the following passage from Morgan at 383: Those opposing arguments require further discussion of the nature of the requirement imposed by s 22, that the conduct of the defendant in publishing the "matter" was reasonable in the circumstances. The extent of this requirement was first considered by this Court in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697. Moffitt P (with whom Glass JA agreed) said (at 705): "… s 22(1)(c) requires that particular attention is paid as to [the] reasonableness of the conduct in relation to [the] publication of this particular matter, ie that which carries the defamatory imputation." He then gave an example which underlines the issue as being whether the defendant acted reasonably in publishing the particular imputation concerning the plaintiff. The defendant, his Honour made it clear, must establish that the particular imputation against the plaintiff was reasonable. Reynolds JA (with whom Glass JA also agreed) said (at 712): "… Section 22(1)(c) calls for the consideration of a wide range of matters. Some are to be found in the published material itself and the manner and extent of its publication, and others from the whole of the surrounding circumstances. The connection between the subject and defamatory imputation remains relevant. It may be tenuous, or it may be real and substantial. If what was said includes comment, it is relevant to consider whether it was fair and whether it followed logically from facts known or stated. Questions of the exercise of care before the defamatory utterance are also relevant, and questions as to whether the maker of the statement knew whether he was likely to convey a misleading impression." 119 This passage indicates that the relevant conduct is the conduct of a defendant in publishing the particular imputation, not its conduct in publishing the whole matter; so that different results might eventuate in relation to different imputations: Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937 at [51] per Simpson J. See also Makeig v Derwent [2000] NSWCA 136 at [43] per Spigelman CJ (Mason P and Heydon JA agreeing). 120 Accordingly, in my opinion, unreasonableness of the respondents' conduct in publishing matter in its character of making imputations against Mr Macartney-Snape does not constitute relevant unreasonableness so as to defeat a defence under s 22 to the appellant's claim. It may conceivably have some factual relevance to the question whether the respondents have proved they have acted reasonably in publishing the matter in its character as making the imputation against the appellant, but not otherwise. In my opinion, the appellant has not identified any respect in which the primary judge should have taken unreasonableness as against Mr Macartney-Snape into account in this way, but did not do so. 121 I have said that, as part of establishing reasonableness, the onus is on the respondents to exclude malice; that is, in my opinion, relevantly an onus to show that their purpose in publishing the matter, in its character of conveying the defamatory imputation, was to give the audience information which the audience had an interest (or apparent interest) in having, and that the respondents did not have any other reason for this publication which was the dominant reason: cf Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [104]. 122 The primary judge did not address this issue of malice in this way, because he treated the onus as being on the appellant to prove malice. However, he did make the positive finding of reasonableness, and he did make the positive finding that the respondents believed that the imputation against the appellant was true. I have earlier held that there was a subject on which the audience of the broadcast had an interest in having information, namely the promulgation as a discovery of science of a potentially socially divisive doctrine with religious overtones, the recruitment of followers of the person promulgating that doctrine, and the effect of this on families; and in my opinion the evidence consistently points to a conclusion that the central purpose of the respondents in making the broadcast, and in particular the broadcast in its character as making the imputation against the appellant, was to give the audience information on that subject matter. 123 It is true that the evidence suggests that the respondents, and in particular Dr Millikan, considered the activities of the appellant to be highly undesirable in their impact on his followers and their families, and it can be inferred that a purpose of his in making the publication was to set back these activities. And it is true that the primary judge found that Dr Millikan engaged in misrepresentation to obtain the appellant's co-operation in making the broadcast. However, in my opinion neither of the these considerations suggest a dominant reason for the publication other than the purpose of providing information on the subject. The only means by which Dr Millikan was pursuing a purpose of setting back Mr Griffith's activities was by publishing matter, including matter making the imputation against the appellant which Dr Millikan believed to be true, and publishing it by conduct which was otherwise reasonable, thereby giving information to an audience on a subject on which the audience had an interest to have that information; and in my opinion, the purpose of setting back the appellant's activities cannot reasonably be considered a purpose distinct from his purpose of giving information in this way, much less a distinct dominant reason for making the publication. Certainly, the setting back of the appellant's activities was not the dominant purpose, and the publication of matter to give information that the audience had an interest in having was not merely subsidiary or incidental to it. The misrepresentation was also engaged in to enable the giving of information, not for any other purpose. I am affirmatively satisfied that the publication was not actuated by malice in any of the respondents. 124 For those reasons, I would not overturn the primary judge's finding that the conduct of the respondents in publishing the matter was reasonable, and that accordingly the defence under s 22 of the Act was made out. 125 In my opinion also, by parity of reasoning, the defence of statutory qualified privilege in Queensland and Tasmania was also made out. Was the imputation comment? 126 I turn now to the question of comment. It was submitted by Mr Smark that the primary judge erred in treating the imputation as comment. 127 Mr Smark submitted that the onus was on the respondents to satisfy the tribunal of fact that the material in question would be regarded as comment by an ordinary reasonable viewer: John Fairfax Publications v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789 at [27]-[29]. This was more difficult to establish in the case of a broadcast, where a viewer has no opportunity to review and reflect on what is presented: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 at [37]. Particularly was this so in the present case, where the broadcast interwove various themes. 128 Mr Smark submitted that the imputation was plainly a factual assertion. Either the appellant's work had support or it did not, and the reason for that state of affairs was either right or wrong: this was confirmed in that the respondents had sought to justify the imputation as being of substantial truth. 129 In my opinion, the question whether this imputation was comment does depend on whether the ordinary reasonable viewer would regard it as comment; that is, would consider that it was presented as someone's opinion or evaluation or assessment or judgment, rather than being a bald assertion of fact. As stated by Gleeson CJ in Manock at [4], a statement is more likely to be recognisable as a statement of opinion (or evaluation, etc) if the facts on which it is based are identified or identifiable. 130 Before the primary judge, the appellant identified the following passages from the broadcast as giving rise to the imputation: Jackson : They'll be asked to devote their lives to the promotion of Griffith's ideas and an increasing number are taking up the challenge. The intriguing question is, why? What do they see in a man whose theories are widely derided by the scientific community? How does he command their devotion? Our guest reporter is Theologian, Doctor David Millikan. (Ex N: lines 46–51) Millikan: The answer, he believed, lay in the evolutionary process. As human beings developed minds, they became aggressive and took it out on the innocence of animals. Griffith became obsessed with his ideas but he'd been a poor student and in the world of philosophy and theology he was an amateur. (Ex N: lines 380–385) Macartney-Snape: He didn't do very well at university. You know, he was described as almost backward at school. And you know, he's a kid from the Australian bush it's. You know he's not in the main stream of, of intellectual thought, yet he's dealing with the most important idea of all. (Ex N: lines 390–394) Millikan: For thirteen years Griffith wrote compulsively. As he did it began to dawn on him that his writings were answering the great questions of life. In the end he was convinced that he was a prophet and he had written half a million words. But he felt like a voice crying in the wilderness. It was not until he met Tim Macartney-Snape and his friends associated with 'Australian Geographic' that Griffith began to find the public recognition he craved. (Ex N: lines 398–405) Millikan: But is it an understanding based on science? Griffith has gone to enormous lengths to find endorsement. He sent eight hundred copies of his book to leading scientists and journals around the world. But today he is alone, rejected by the scientific community. (Ex N: lines 976–980) Flannery: No, it's a pretty poor book about the subject. It's it's very selective. It doesn't take into account the various important points of views, or differences in points of views. Its interpretation is based upon this very, very narrow data base with a very large interpretation at the top. No, I'd from what I've seen of it, I must say, I'm singularly unimpressed as, as an attempt to explain human nature and what humans are about. (Ex N: lines 986–993) Macartney-Snape: I think, you know we are just going to have to put up with the fact that academia won't accept us, at least academia as it is now won't accept us. It's up to young people coming up in the ranks to, who who are sufficiently outrageous if you like in their preparedness to accept new ideas who who will take it on, who will realise the truth in it. (Ex N: lines 997–1002) 131 I would note in addition that the book being referred to by Dr Millikan and Professor Flannery was identified in the programme as Beyond the Human Condition, this book being identified by Mr Macartney-Snape at line 258 of the broadcast, and also being shown on the screen just before Professor Flannery's comment. 132 In my opinion, it is clear that the audience would have appreciated that the book being referred to by Dr Millikan and Professor Flannery was Beyond the Human Condition, this being a book which the appellant had published and thereby invited comment on. In relation to that kind of factual material, although readers or viewers may not be able to make their own judgment purely on the basis of what is presented to them, the identification of what has been submitted for comment is sufficient indication of the facts on which the comment may be based: Manock at [7]-[8]. 133 In my opinion, viewers would readily have recognised statements by Dr Millikan and Professor Flannery reflecting on the standard of the appellant's work as expression of their opinion of the book, rather than a bald assertion of fact. In my opinion, this is not altered by the circumstance that the respondents raised truth, and sought to defend the case inter alia by showing that the assessment by these persons was true. 134 That aspect of the imputation that asserts lack of any support from the scientific community appears to be based primarily on Ms Jackson's assertion that the appellant's "theories are widely derided by the scientific community" and Dr Millikan's assertion that the appellant is "alone, rejected by the scientific community". I do not think that the audience would recognise these assertions, or the part of the imputation based on them, as mere comment. I do not think there are distinct facts identified on which these assertions are based, nor do I think that these are the kind of assertions that would readily be recognised as comment. Accordingly, in my opinion, so much of the imputation as asserts lack of support is an assertion of fact, not comment. 135 This gives rise to the question of whether an imputation which consists partly of comment and partly of assertion of fact can be defended as comment. Certainly, if the sting of the defamation lies solely in the comment, I see no reason why not. In this case, however, it would seem that part of the sting lies in the assertion that the appellant's work has no support at all from the scientific community; so a defence that goes only to that part of the imputation that is comment might not be sufficient. 136 At common law, this position could have been addressed by what was called the rolled-up plea, which asserted to the effect that insofar as the material complained of consisted of statements of fact it was true, and insofar as it consisted of comment it was bona fide and fair comment on a matter of public interest. The Act does not explicitly provide for a defence along those lines; although s 35 (set out at par [9] above) could be taken as supporting that approach. 137 Certainly, if there is an imputation which contains a defamatory element that is comment (and is not shown to be true) and also a defamatory element that is not comment but assertion of fact (which is true), it would be highly unreasonable if there could be no defence at all because comment could apply only to the former but not the latter, while truth could apply only to the latter and not the former. I do not consider that the Act discloses an intention that this should be the case, and I do not accept it. 138 I think the better view is that s 35 has the effect that the defence of comment applies to so much of an imputation as is comment, and that so much of the imputation as is defamatory assertion of fact can be defended on some other basis, such as truth. 139 An alternative view is that one should take a broad view as to whether the imputation is, as a matter of substance, assertion of fact or comment; and deal with the totality of the imputation on this basis. On that alternative view, I would say that, although the imputation of lack of support in this case can be considered as having some defamatory sting, the predominant sting of the defamation goes to the standard of the appellant's work; so that if one must determine, as a matter of substance, whether the imputation is assertion of fact or comment, the imputation in this case should be considered as comment rather than assertion of fact. 140 As will be seen, I would consider a defence is made out, whichever of these views is adopted. 141 There is a further question whether what I have previously identified as part of the third element of the imputation (to the effect that the degree of poorness of standard was such as to cause the lack of support) can be considered comment. That element is not explicitly asserted in the passages relied on by the appellant, but rather is implied from a combination of the passages. In my opinion, since this aspect is so dependent on what is asserted about the standard of the appellant's work, and so directed towards an assessment of that standard, it would be understood by viewers as comment rather than bald assertion of fact. 142 Accordingly, in my opinion the imputation is comment, except to the extent that it asserts lack of support by the scientific community; and for reasons I have previously given, that assertion is true and relates to a matter of public interest, and its inclusion in the imputation does not preclude reliance on the defence of comment. 143 This analysis applies equally to New South Wales and other jurisdictions in which there are relevant statutory provisions, and also to jurisdictions in which the common law concerning comment is unmodified. Other elements of the defence of comment 144 For the defence of comment under the Act to succeed, it is necessary also that the factual basis to the comment be sufficiently indicated and identified in the published material; that this factual basis be substantially true; that the imputation relate to a matter of public interest (this was conceded); and that, when the comment was that of the defendant or servant or agent of the defendant, the relevant opinion was held by the defendant or its servant or agent. 145 Mr Smark submitted that any comment was not based on proper material for comment, relying particularly on his submissions concerning the truth of the imputation concerning support by the scientific community; and that the primary judge should not have been satisfied that Ms Jackson and Dr Millikan held the opinion represented by the comment. 146 In my opinion the following factual basis for comment was adequately indicated or identified by the published material: (1) that the appellant had written and published Beyond the Human Condition , thereby inviting comment on it; (2) that the appellant had actively sought support for this work from the scientific community (as set out at lines 976 – 980 of the broadcast); (3) that the appellant's work had no support at all from the scientific community; and (4) that a prominent scientist Tim Flannery described the appellant's book Beyond the Human Condition in the terms set out at lines 986 – 994. I have found item (3) to be true, and there is no dispute as to the truth of items (1), (2) and (4). 147 In my opinion there was no error by the primary judge in finding that the comment by Ms Jackson represented her opinion, that the comments actually made by Dr Millikan represented his opinion, and that the comment expressed by the imputation represented the opinion of Dr Millikan. 148 In my opinion, the appellant has not made out any ground for overturning the decision of the primary judge on the question of comment under the Act. Again, by parity of reasoning, the challenge to his decision on different statutory provisions concerning comment, and on the defence of fair comment at common law, also fail. Conclusion 149 Thus it is my opinion that, while the appellant succeeds on the issue of truth, he fails on the issues of statutory qualified privilege and comment. The issue on which the appellant succeeded is not readily severable from other issues in the case, and did not add substantially to the costs of the case; and in my opinion, it would not affect the appropriate order as to costs. In my opinion the following order should be made: Appeal dismissed with costs. 150 BASTEN JA: I agree that the appeal should be dismissed with costs, for the reasons given by Hodgson JA. 151 McCLELLAN CJ at CL: I agree with Hodgson JA. ********** 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.