New South Wales Supreme Court CITATION : Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118 HEARING DATE(S) : 10 September 2007 JUDGMENT DATE : 9 October 2007 JUDGMENT OF : Nicholas J DECISION : Para 18. CATCHWORDS : DEFAMATION - pleadings - imputions of "reasonable suspicion" - specificity of imputations - whether imputations should be struck out as bad in form LEGISLATION CITED : Uniform Civil Procedure Rules (2005) Pt 14 r 14.28, r 14.30 Drummoyne Municipal Council v Australian Boadcasting Corporation (1990) 21 NSWLR 135 Evans v Granada Television [1996] EMLR 429 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 CASES CITED : King v Telegraph Group Ltd (2004) EWCA Civ 613; (2005) 1 WLR 2282 Purcell & Anor v Cruising Yacht Club of Australia Pty Ltd & Ors (2002) NSWSC 557 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Shah v Standard Chartered Bank [1999] QB 241 Whelan v John Fairfax and Sons Ltd (1998) 12 NSWLR 148 PARTIES : Michelina Greig - Plaintiff WIN Television NSW Pty Ltd - Defendant FILE NUMBER(S) : SC 20207/07 COUNSEL : E Cheeseman - Plaintiff M Lynch - Defendant SOLICITORS : Bussoletti Lawyers - Plaintiff Banki Haddock Fiora - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DEFAMATION LIST Nicholas J Tuesday 9 October 2007 20207/07 Michelina Greig v WIN Television Pty Ltd JUDGMENT 1 HIS HONOUR: These reasons concern the defendant's application under Pt 14 r 14.28(1)(b) to have struck out the imputations pleaded in paras 5(c) and (e), and 7(c) and (e), of the statement of claim on the ground that each is bad in form. There was no issue as to capacity. 2 Imputations 5(c) and 7(c) are pleaded in the following terms: "(c) The plaintiff conducted herself in such a way so as to give rise to the reasonable suspicion that in handling a planned councillor technology upgrade for the Shellharbour City Council she had acted corruptly in accepting Blackberry devices from private communications representatives" 3 Imputations 5(e) and 7(e) are pleaded in the following terms: "(e) The plaintiff conducted herself in such a way so as to give rise to the reasonable suspicion that she had acted corruptly in presenting a technology upgrade proposal to the Shellharbour City Council in return for receiving Blackberry devices from private communications representatives" 4 These imputations are claimed to have been conveyed by the natural and ordinary meaning of the matter published by the defendant on 28 March 2007 in a television news programme and on its internet site, which was in the following terms: "Questions are being raised at Shellharbour City Council, over Deputy Mayor Michelle Greig's handling of planned councillor technology upgrade, while filling in for Mayor David Hamilton. The project involved updating councillor communication technology requirements. WIN News understands Ms Greig had a meeting with private communication representatives and later received two Blackberry devices. It's believed the technology upgrade proposal had been listed on Council's business papers for a vote before council, but was taken off by General Manager Brian Weir and referred to the Independent Commission Against Corruption after he discovered a meeting had taken place. As the matter didn't go to council, ICAC did not deliver a finding, however suggested the issue instead be referred back before Council's Code of Conduct Committee. Council and Ms Greig have declined to comment." 5 The defendant submitted that the imputations were embarrassingly imprecise in that each failed to identify any person or body which held the suspicion, or the circumstances in which the suspicion was said to arise. In essence, it was put that without identification of the holder of, or of the basis for, the suspicion, the imputations as formulated may lead to confusion such that they should be struck out under Pt 14 r 14.28(1)(b) as tending to cause embarrassment in the proceedings. It was put that as it was unclear from the matter complained of itself whether the suspicion was held by the Council's General Manager, Mr Brian Weir, or by ICAC, or the reporter, or whether there was some other basis for suspicion, it was necessary that the imputations specify the holder(s) of the suspicion or what is claimed to be the basis for it. 6 Furthermore, it was put that the proposition for which Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 is authority, namely the proposition that it is necessary to specify the holder of the suspicion where the passive voice is used in connection with suspicions, is also applicable to imputations of suspicion in the active voice. 7 The requirements for pleading an imputation are well known. Under Pt 14 r 14.30(2)(a) (formerly SCR Pt 67 r 11(2)) a statement of claim must specify each imputation upon which the plaintiff relies. The scope of the pleader's obligation was explained in the judgment of Hunt AJA in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 paras 119 – 129. He said: "124 There has been a lot of judicial time spent in this Court over the years debating the need for precision in the way a plaintiff pleads his imputations in a defamation action. The debate came to a head in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. Gleeson CJ described (at 137) the requirement of Pt 67 r 11(2) that the plaintiff's Statement of Claim "shall … specify each imputation on which the plaintiff relies" as requiring the plaintiff to specify in his Statement of Claim the act or condition which he claims was attributed to him by the matter complained of. The Chief Justice agreed (at 138) with a statement made at first instance in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155, that: The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends. Priestley JA came to the same conclusion as the Chief Justice. He said (at 155) that the plaintiff's imputations must identify the meaning for which he contends with sufficient clarity to let the defendant know the case he has to meet and to enable him to plead substantially in answer to it. On the other hand, Kirby P preferred to follow the earlier decision in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, which permitted (at 687) a plaintiff to plead an imputation which covered "defamations of different seriousness" (cf Pt 67 r 11(3)) and to have any imputation put to the jury "in general terms", and which held (at 688, 693) that the defendant, having used the words, is not entitled to have the plaintiff identify in his imputation the meaning which he will ask the jury to accept how those words were understood by the ordinary reasonable reader. However, Kirby P did quote without apparent dissent (at 143) the first of the two passages from the judgment of Samuels JA in Feros I have already quoted (at par [122] supra). 125 In Rigby v John Fairfax Group Pty Ltd (Court of Appeal, 1 February 1996, unreported; special leave to appeal refused: (1996) 17 Leg Rep SL2a), the approach of Gleeson CJ and of Priestley JA in Drummoyne Municipal Council was held (by Priestley JA (at 12), with whom Meagher JA agreed) to be "well settled". Kirby P (at 1) acknowledged with regret that his dissent in Drummoyne had been "to no avail". In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162, this Court said that, in Drummoyne , it had once again reaffirmed its earlier stand — in cases such as Feros v West Sydney Radio Pty Ltd and Singleton v Ffrench — that an imputation must be stated with sufficient precision as to avoid the likelihood of confusion in relation to the meaning for which the plaintiff contends. That statement made it abundantly clear, if indeed it had not been made clear before, that the plaintiff is not obliged in his imputation to identify what the defendant intended to convey by what was published. What the plaintiff is obliged to do is to identify for the defendant in his imputation the act or condition which he will ask the jury to accept was understood by the ordinary reasonable reader as having been attributed to him by the matter complained of. … 129 To start with, the issue is not what the defendant intended to convey; the issue is how the ordinary reasonable reader interpreted what the defendant said. What the Chief Justice made clear when he commenced his remarks on this subject was that the plaintiff must specify the act or condition "which he claims was attributed to him" and he concluded his remarks by accepting the test formulated at first instance (already quoted in par [124] supra) that the issue which has to be decided in the particular case is "whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends ". The plaintiff is required to specify the act or condition which he contends was understood by the ordinary reasonable reader as being attributed to him by the matter complained of. Unless his imputation identifies that act or condition, the defendant has no way of knowing whether he can plead various defences to the publication. He is entitled to have that identification made before pleading. The trial judge who has to decide the defences pleaded is also entitled to have identified the act or condition found by the jury to have been understood by the ordinary reasonable reader as being attributed to the plaintiff by the matter complained of." 8 In Sergi, Hutley JA (p 671) observed: "… that the pleader can choose his own way to formulate the imputation and he should not be put in a straightjacket. There are no forms of imputations." Although imputations are of infinite variety, the terms in which they are pleaded must meet the test for precision stated in, for example, Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 and Harvey. 9 For the defendant to succeed it is necessary to show that the imputations fail to specify the act or condition which the plaintiff claims was attributed to her by the matters complained of. "The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends" (Harvey, para 124). 10 In my opinion imputations 5(c) and 7(c) unambiguously, and with precision, specify the act or condition which the plaintiff claims to be attributed to her by the matters complained of. Each identifies her conduct or behaviour which provided the basis for the reasonable suspicion that she had acted corruptly, i.e.: that in handling a planned councillor technology upgrade for the Shellharbour City Council she accepted Blackberry devices from private communications representatives. 11 The sting is clear. It is that the plaintiff's conduct has given rise to a suspicion on reasonable grounds that she had acted corruptly. So understood, it cannot reasonably be said that the imputations as pleaded are likely to lead to confusion. The defendant's application that they be struck out as defective in form is refused. 12 There is nothing confusing about what is required of the defendant if it wishes to defend its publication. Apart from other defences which may be available, it is open to the defendant to justify the imputation by establishing that there were reasonable grounds to suspect the plaintiff from an objective point of view (Evans v Granada Television [1996] EMLR 429). 13 In Shah v Standard Chartered Bank [1999] QB 241, May LJ said (p 266): "A publication that a person is guilty of something differs from a publication that there are reasonable grounds to suspect that he is guilty. Each is normally capable of being defamatory. The second will usually be less serious than the first. To justify the first publication, you have to establish that the person is guilty. To justify the second publication, you have to establish that there are objectively reasonable grounds for suspicion." 14 In Shah, Hirst LJ pointed out (p. 261) that an essential requisite of a defence of justification is that it should focus on some conduct on the plaintiff's part giving rise to reasonable suspicion. Relevantly, in Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148, Hunt J said (p 160): "… if the plaintiff pleaded the imputation in the active voice (that he had so conducted himself as to have warranted that suspicion), the defendant would have to establish such conduct ..." 15 Accordingly, in my opinion, the defendant could, in general terms, mount a case to the effect that there were at the date of publication of the matters complained of facts that gave rise, objectively judged, to reasonable grounds to suspect the plaintiff of acting corruptly in accepting Blackberry devices from communications representatives whilst handling a planned councillor technology upgrade for the Shellharbour City Council. (King v Telegraph Group Ltd (2004) EWCA Civ 613; (2005) 1 WLR 2282, paras 22, 23) 16 In concluding that the defendant's challenge has failed, it is unnecessary to resort to an analysis of the reasons in Sergi, and of Levine J in Purcell & Anor v Cruising Yacht Club of Australia Pty Ltd & Ors (2002) NSWSC 557, and of Kirby J in Purcell (2003) NSWSC 245. It is sufficient to say that, in my opinion, Sergi is a case of limited application. The Court disallowed imputations cast in the passive voice on the basis that their capacity to defame the plaintiff could not be judged because they failed to identify the accuser (pp 761, 679, 680). It went no further than holding that where the passive voice is used in connection with accusations, it is necessary to specify the accuser (Hutley JA, p 671). I also agree, with respect, that Kirby J in Purcell (2003) NSWSC 245, correctly accepted the defendant's argument which he stated to be: "28 A plaintiff, in framing an imputation, or a defendant in framing a contextual imputation, may, according to the defendants, formulate the imputation in one of two ways. Either the suspicion must be attributed to an authority figure, such as the police, or the imputation (as here) must be framed in terms of "reasonable grounds to suspect", or the plaintiff having acted in such a way as to warrant suspicion. To say that the police "suspect" a person of murder is defamatory. It is also defamatory to say that there are reasonable grounds for suspecting that person committed murder." 17 The reasons and conclusions referable to imputations 5(c) and 7(c) are equally applicable to the defendant's submissions in respect of imputations 5(e) and 7(e). I find each is sufficient in form, and is not likely to lead to confusion. Accordingly, the defendant's challenge has failed. Conclusion 18 The defendant's application to strike out imputations 5(c) and (e), and 7(c) and (e), is refused. 19 Failing agreement on the question of costs of the proceedings heard on 10 September 2007, the parties may raise the issue of costs at the directions hearing at 9.30 am, 12 November 2007. ********** 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.