New South Wales Supreme Court CITATION : Garry Dobson v Macquarie Radio Network Ltd [2007] NSWSC 718 HEARING DATE(S) : 20.04.07, 23.05.07, 31.05.07 JUDGMENT DATE : 5 July 2007 JUDGMENT OF : Nicholas J DECISION : Para 131 CATCHWORDS : Defamation - radio programmes - pleading of imputations - whether imputations capable of arising - specificity of imputations - defendant's allegations of plaintiff non-specific - whether imputations differ in substance LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Pt 14, Div 5, r 14.28; Pt 14, Div 6, r 14.30(3); Pt 28, Div 2, r 28.2 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 General Steele Industries Inc v Commissioner for Railways (NSW)& Ors (1964) 112 CLR 125 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 CASES CITED : Jackson & Ors v TCN Channel Nine Pty Ltd [Unreported, NSWSC, 17 October 1996] John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Jones v Skelton (1963) 63 SR 644 Lewis v Daily Telegraph Ltd [1964] AC 234 Piggins v Denton [2006] NSWSC 954 Vella v John Fairfax Publications Pty Ltd [2000] NSWSC 615 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 PARTIES : Garry Dobson - plaintiff Macquarie Radio Network Ltd - defendant FILE NUMBER(S) : SC 20536/06 COUNSEL : D Caspersonn - plaintiff M Lynch - defendant SOLICITORS : Henry Davis York - plaintiff Banki Haddock Fiora - defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST Nicholas J 5 July 2007 20536/06 Garry Dobson v Macquarie Radio Network Ltd JUDGMENT 1 His Honour: The plaintiff has sued the defendant for the publication of three radio programmes on Radio Station 2GB on 24 and 31 July 2006 of which Mr Ray Hadley was the presenter. 2 The defendant applied to strike out many of the imputations pleaded in paras 6, 9 and 12 of the statement of claim on a number of grounds. In respect of some imputations it was contended that they are incapable of being conveyed by the relevant matter complained of. The questions raised by these objections proceeded as separate questions for decision under r 28.2. Objection was also taken to some imputations as being defective in form in that their sense was ambiguous and uncertain, and/or that they did not differ in substance from others. As these objections raised issues of pleading, they proceeded for determination under r 14.28(1). 3 The hearing was spread over 20 April, 23 and 31 May 2007 during which some imputations were amended. On 31 May 2007 the plaintiff tendered a list of the imputations which he proposes to plead in an amended statement of claim which became exhibit A. Some of these imputations were amended during submissions. The imputations in their final form are as set out in these reasons. By consent, the defendant's application proceeded on the basis that these were the relevant imputations. It may be noted that the evidence of each programme consisted of the transcript annexed to the statement of claim, and the court was not asked to listen to an audio recording. The first matter complained of 4 The first matter complained of is the programme broadcast at about 10.05am on 24 July 2006. The transcript is schedule A to the statement of claim. It is convenient to deal separately with the challenge to each imputation in turn. 5 During submissions imputation 6(d) was not pressed, and was no longer relied on. 6 Imputation 6(a) is: "The Plaintiff in his capacity as boss of the Goulburn Police Academy bore responsibility for the sex scandals that occurred at the Goulburn Police Academy from 2002 to 2005." 7 The defendant submitted that the imputation was incapable of arising and, also, was defective in form in that its meaning was rendered ambiguous or equivocal by the use of the phrase "bore responsibility for". 8 The principles applicable to the correct approach of the court on a strike out application on a question of capacity are too well known to justify repetition. (General Steele Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; Lewis v Daily Telegraph Ltd [1964] AC 234; Favell v Queensland Newspapers Pty Ltd(2005) 221 ALR 186; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657.) 9 In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, with reference to a transient publication such as a radio or television programme, Hunt, J said (p 166): "Although (a listener or viewer of matter published in transient form) … must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article ( Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420), and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413. The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed than he or she would in relation to a written document case: Brown v Australian Broadcasting Corporation (at 12-13) . " 10 In this context the following passage from Favell is apt: "21. In considering the imputations pleaded alongside the matter complained of, it is important that courts, deciding issues such as the present, should keep in mind the practical burdens and consequences that flow from excessive refinement in such matters. They should remember that the tribunal established by law (whether a jury or a judge) to decide claims in defamation will normally have a large capacity of its own to deal with far-fetched and remote imputations in a commonsense way. It is a mistake to consider that this capacity is confined to the practice court and appellate judges, stimulated by imaginative pleaders "armed with a bank of dictionaries and a Thesaurus"." 11 The thrust of the programme is an account by Mr Hadley of what is said to be the defendant's investigation into sex scandals and other matters at the Goulburn Police Academy during the period in which the plaintiff, a senior police officer, was in charge of it. Reference is made to the report in that day's edition of "The Daily Telegraph" newspaper under the heading "Secret Police of Shame" of lecturers trading examination passes for sexual favours from their students, and of allegations of violence and other matters, and of attempts to cover up these incidents. Mr Hadley asserted that all this happened whilst the plaintiff was in charge from 2002 to 2005. The flavour of the programme is conveyed by the final segment in which he said: "We need the Premier today to explain what role, if any, Garry Dobson had in all of this – whether he's party to any of the cover ups or anything else that's involved. Its been flushed out by the "Daily Telly" and now we need to hear from the Premier because he's got a fellow working for him on secondment who was in charge of this while this all allegedly happened." 12 In my opinion there is ample material in the matter complained of which is capable of conveying this imputation to the ordinary reasonable listener. To describe someone as "in charge" or "in charge of" is ordinarily understood to mean that the person is "in command" or "having the care or supervision of" (Macquarie Dictionary, 4th edition). As a matter of common sense and of ordinary English, it is reasonable to conclude that a person in such a position bears responsibility for, or is accountable for, what takes place whilst he or she is in command. 13 On the issue of form, the defendant submitted that "responsible" is a weasel word which has a variety of meanings, so that the use of the phrase "… bore a responsibility for …" is ambiguous or equivocal. It was put that the imputation itself does not make clear the sense in which the phrase is to be understood in that it fails to specify in what respect the plaintiff is said to bear responsibility for the incidents. It was put that in failing to identify any act or condition on the part of the plaintiff which he claims was attributed to him, the imputation is likely to lead to confusion either at the pleading stage or at the trial in relation to the question for which the plaintiff contends, contrary to the principles considered in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, p 155; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, para 119ff). 14 Ordinarily, the sense in which an imputation is to be understood will be clear from its terms considered with regard to the context provided by the publication. Relevantly, in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, Callinan, Heydon, JJ said: "194. … To say that because the words of an imputation may reasonably convey more than one defamatory meaning or impression, or that because implications, inferences and imputations suggest more than one meaning or successive meanings, they must be rejected, would be to introduce unnatural and excessive refinement to the basic factual question whether the words (or the imputation) have defamed the plaintiff. Published matter may well convey a duality of meanings and impressions, not necessarily exclusive of one another, and sometimes with one leading to another, successive, inevitable or almost inevitable one." 15 In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson, CJ (p 137) held that the degree of specificity required in the formulation of a defamatory imputation must be related to the nature and content of the defamatory matter. He said (p 137): "Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology … Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse … The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances." 16 In Jackson & Ors v TCN Channel Nine Pty Ltd [Unreported, NSWSC, 17 October 1996] Levine, J accepted that where the tenor and thrust of the disparagement in the publication is in general terms, and nothing is said of a specific activity, it is not required that the imputation specify some precise act or condition. (See also Vella v John Fairfax Publications Pty Ltd [2000] NSWSC 615, para 10; Piggins v Denton [2006] NSWSC 954, paras 18, 25, 26.) 17 Consistently with the emphasis given in the cases to the relationship between the terms of the pleaded imputation and the matter complained of, Ipp, JA in Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 in a passage approved of by the High Court of Australia in John Fairfax Publications Pty Ltd [2007] HCA 28 (para 174) said: "119. … The question as to the meaning that the words convey to the ordinary person should be a simple and straightforward one, as befits a law that governs the everyday life and actions of all levels of persons in the community. The question should not be obscured by overly complex and subtle metaphysical distinctions that stand as a formidably esoteric barrier to what should be an easily comprehensible reasoning process akin to common sense." 18 I am unpersuaded that, having regard to the general tenor and language of the matter complained of referable to the plaintiff, the imputation lacks precision. The attack upon the plaintiff is directed, in general terms, to his conduct whilst in charge of the Goulburn Police Academy between 2002 and 2005. Its general tenor and language is to demand that he be held to account for the incidents which took place on his watch. I accept the plaintiff's submissions that the smear is couched in general terms, without specification of his conduct other than that he was the person in charge for the relevant period. 19 The imputation, in terms, pleads that it is "… in his capacity as boss of the Goulburn Police Academy …" that the plaintiff "… bore responsibility for the sex scandals that occurred at the Goulburn Police Academy from 2002 to 2005". In my opinion the pleading itself is unambiguous as to the sense in which "bore responsibility for" is to be understood. In any event, its clarity of meaning is reinforced by the words of the programme. In the circumstances, in my opinion, the plaintiff is entitled to plead as he has. 20 Accordingly, I decline to strike out imputation 6(a). 21 Imputation 6(b) is: "The Plaintiff was a party in the attempts to cover up the sex scandals that occurred at the Goulburn Police Academy from 2002 to 2005." 22 The defendant submitted that the imputation was incapable of arising and, also, that it was defective in form in that the phrase "a party in the attempts" was ambiguous. 23 On the issue of capacity the defendant submitted that the imputation was an allegation of guilt or that the plaintiff was, in fact, a party in the cover up attempts, which was an unreasonable construction of what was said. It was put that, at its highest, the programme was capable of suggesting no more than that the plaintiff was suspected of being involved in the attempts. 24 Having regard to the attributes of the ordinary reasonable listener, in my opinion it is arguable that the programme would be understood in terms of the imputation. It is introduced with reference to attempts to allegedly cover up sex scandals. The listener is told of investigations into incidents which took place on the plaintiff's watch, which had been cleaned up since his successor took charge. The impression is generated of the need for an investigation, which reinforces the suggestion that there have been attempts to cover up in which the plaintiff was involved. In my opinion, such an impression is given strong support by the words of the final segment earlier quoted which themselves encourage the listener to engage in some loose thinking. 25 In my opinion the imputation is reasonably capable of being conveyed by the matter complained of. 26 On the issue of form, the defendant's objection should not be upheld. The use of the phrase in the imputation "a party in the attempts" properly pleads the allegation expressed in general terms by Mr Hadley. He did not descend to greater specificity and, in the circumstances the plaintiff should not be required to do so. In my opinion, considered in the context of the programme as a whole, the sense of the imputation is sufficiently clear. 27 Accordingly, I decline to strike out imputation 6(b). 28 Imputation 6(c) is: "The Plaintiff in his capacity as boss of the Goulburn Police Academy bore responsibility for the violence that occurred at clubs at Goulburn involving student police officers from the Goulburn Police Academy." 29 The defendant's objections were addressed to capacity and form on grounds similar to those put in support of the challenge to imputation 6(a). They should suffer the same fate for the reasons given in respect of that imputation. 30 I decline to strike out imputation 6(c). 31 Imputation 6(e) is: "The Plaintiff as the senior officer in charge of the Goulburn Police Academy from 2002 to 2005 engaged in grossly incompetent behaviour." 32 This imputation was challenged on grounds that there was no support for use of the word "grossly", and that it did not differ in substance from imputation 6(f) and (g). It was accepted that, absent the word "grossly", it was arguable that the imputation was reasonably capable of being conveyed. 33 In my opinion the question of the degree of incompetent behaviour attributed to the plaintiff in the programme is quintessentially one for the jury. Having regard to the whole of the programme, it is arguable that the likely impression given to the ordinary reasonable listener is that the plaintiff had engaged in grossly incompetent behaviour as pleaded. This objection fails. 34 I also reject the submission that imputation 6(e), (f), and (g) do not differ in substance one from each other. In my opinion, once consideration is given to the terms of each imputation, it is self evident that the defamatory sting of each is different in that the act or condition attributed to the plaintiff in each case is plainly different. 35 Accordingly, I decline to strike out imputation 6(e). 36 Imputation 6(f) is: "The Plaintiff was such a failure as a police officer that he should be sacked from the NSW Police Force." 37 The defendant submitted that the programme was incapable of conveying a meaning that the plaintiff should be sacked from the NSW Police Force. 38 I do not accept the submission. A significant component of Mr Hadley's attack upon the plaintiff was by questioning his continued employment in the police force following the incidents which happened under his watch at the Police Academy. In schedule A, para 3 he says: "… Now, he is actually still in the New South Wales Police Force, Garry Dobson but, wait for it, he's on secondment to the Premier's Office". The programme concludes, as earlier quoted, with a demand for the Premier to explain what was the plaintiff's role with regard to the incidents and attempts at cover ups "… because he's got a fellow working for him on secondment who was in charge of this while this all allegedly happened" (para 5). 39 To the ordinary reasonable listener of the whole programme Mr Hadley's language is reasonably capable of suggesting that, rather than being seconded to the Premier's Department, the plaintiff should have been dismissed for having failed to do his duty whilst in charge of the Police Academy. In so concluding, I take into account that much may turn on the impression made upon the jury by listening to the programme and evaluating the effect that the manner of its delivery (e.g. intonation, pauses, emphases) has upon the meanings it would be reasonably understood to convey. 40 I find that imputation 6(f) is reasonably capable of arising and, accordingly, decline to strike it out. 41 Imputation 6(g) is: "The Plaintiff did not deserve to be seconded to the Premier's Department as Project Director, Crime Prevention." 42 The defendant objected to this imputation on grounds that it is incapable of arising, and is incapable of being defamatory. In my opinion these objections must fail. 43 The programme as a whole is calculated to leave the ordinary reasonable listener with the impression that the plaintiff, in a general sense, failed in the discharge of his duties whilst in charge of the Police Academy. The passages relevant to imputation 6(f) are also capable of suggesting incredulity that, in the circumstances alleged, the plaintiff was seconded to the Premier's Department thus giving rise to the reasonable inference that he did not deserve that appointment. 44 As to its defamatory quality, it is difficult to see how an imputation in these terms considered in the context of the publication from which it arises, would not be defamatory as that notion is usually understood. 45 I decline to strike out imputation 6(g). 46 Imputation 6(h) is: "The Plaintiff was suspected of having engaged in improper behaviour in that he procured his secondment to the Premier's Department in suspicious circumstances." 47 The defendant submitted this imputation was incapable of arising. It was put that the programme was incapable of suggesting that the plaintiff was under suspicion of engaging in improper behaviour in the sense alleged, namely that he procured his secondment in suspicious circumstances. 48 The plaintiff relies on the whole of the programme and, in particular, the concluding passages in which his secondment to the Premier's Department is questioned. He argued that the impression is given of the appointment taking place in suspicious circumstances, even as a reward, which could not be justified by his performance whilst in charge of the Police Academy. The plaintiff argued that it would be reasonable for the listener to infer from the demand for an explanation from the Premier that the plaintiff was under suspicion from improperly procuring the appointment. 49 I uphold the defendant's objection. Recognising that it is always a matter of impression, in my opinion a conclusion in terms of this imputation would not be open to a reasonable listener. Nothing in the programme indicates that the plaintiff was himself involved in procuring the appointment or, if he was, that his behaviour was improper. Although incredulity is expressed about the appointment, the language of the programme is incapable of leading the ordinary reasonable listener to understand that the plaintiff was subject to the suspicion as alleged. 50 Accordingly, I propose to order that imputation 6(h) be struck out. The second matter complained of 51 The second matter complained of is the programme broadcast at about 11.30am on 24 July 2006. The transcript is schedule B to the statement of claim. 52 Imputation 9(a) is: "The Plaintiff acted reprehensibly in that he allowed a culture of sexual harassment to thrive at the Goulburn Police Academy." 53 The defendant submitted this imputation was incapable of arising. It was argued that in the programme a clear distinction is drawn between conduct described as sexual harassment and conduct involving consensual, but inappropriate, sexual liaisons between lecturers and students. It was put that the listener would understand that sexual harassment involved lecturers improperly imposing upon students to engage in sex to secure a pass, a notion which was substantially different from consensual activity, which did not involve conduct which was threatening or intimidating. It was put that, on the programme, the then Police Minister, Mr Scully, denied in clear terms that the plaintiff ignored allegations of sexual harassment or allowed a culture to develop in which students were sexually harassed. It was submitted that, overall, there was sufficient material in the programme to negate the suggestion that a culture of sexual harassment was allowed, although the listener could reasonably conclude that inappropriate sexual liaisons took place on occasions whilst the plaintiff was in charge. 54 In response, the plaintiff submitted that Mr Hadley bluntly rejected Mr Scully's explanations and, furthermore, that with regard to the whole programme the reasonable listener would not draw the distinction to which the defendant referred. 55 Analysis of the whole programme demonstrates that it is arguable that the ordinary reasonable listener would not necessarily understand any distinction was made between sexual harassment and other kinds of inappropriate sexual activity as argued by the defendant. It is also arguable that such a listener would understand that, in context, the term "sexual harassment" was used to refer to the different kinds of sexual misconduct identified. It is relevant to take into account that the listener may not have devoted the same degree of concentration to each part of the programme, and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in it (Marsden p 166; Rivkin para 187). 56 Furthermore, in the programme it is Mr Scully who contends, in effect, that allegations of sexual harassment were neither ignored nor upheld after investigation. However, his statements were rejected in various parts of the programme by Mr Hadley and one Paul (e.g. paras 27, 29, 40–60, 71–85). Although the listener is expected to take the bane and antidote together, in the circumstances it should not be assumed that contrary statements in the programme will automatically negate the effect of other defamatory statements in the programme (Rivkin para 26). 57 Further, in my opinion, if the ordinary reasonable listener could conclude that the programme alleged the plaintiff had allowed a culture of sexual harassment to thrive under his command, it would also be open for him or her to conclude that, in doing so, the plaintiff had acted reprehensibly. 58 I accept the plaintiff's submission that the imputation is reasonably capable of being conveyed. I decline to strike out imputation 9(a). 59 Imputation 9(b) is: "The Plaintiff had engaged in disgusting behaviour in that as the commander at Goulburn Police Academy he had sexual intercourse with young recruits." 60 The defendant submitted this imputation was incapable of arising. 61 The passage relied upon by the plaintiff in support says: "37. Well, why is it taking Tony Aldred to change it and now when someone goes down there he says "OK, what's been happening in the past where you did the Lateral Tango with the professor or the lecturer or the commander – that's all out the window – you do it on your own merits now." 62 The argument proceeded on the basis that the activity described as "the Lateral Tango" was sexual intercourse. 63 The defendant accepted that the passage, if taken alone, was capable of carrying the imputation. However, it submitted that the basis for the meaning was negated by many parts of the programme including, particularly, paras 69-77 which strongly suggest to the listener that Mr Hadley's criticism of the plaintiff was solely because he was asleep at the wheel. 64 For present purposes it is unnecessary to rehearse the arguments which each party might put to the jury. With regard to the principles relevant to my decision to allow imputation 9(a), it is sufficient to say that the submissions before me have demonstrated that the question is arguable. In my opinion the imputation is capable of being conveyed by para 37. As I am constrained by authority to exercise my discretion with great caution, it is appropriate that the question whether the imputation is negated by other matter in the programme should be left for the trial. In my opinion the imputation is not so clearly incapable of arising that it should be struck out. 65 It was also submitted that this imputation did not differ in substance from imputation 9(c). In my opinion consideration of their terms demonstrates that each has a different defamatory sting. I reject this submission. 66 I decline to strike out imputation 9(b). 67 Imputation 9(c) is: "The Plaintiff was a disgraceful senior police officer who should be dismissed from the NSW Police Force because he sexually harassed students at Goulburn Police Academy." 68 The defendant's objection to capacity was on grounds similar to those put in support of the challenge to imputation 9(b). I reject them for the reasons given in respect of that imputation. 69 I decline to strike out imputation 9(c). 70 Imputation 9(d) is: "The Plaintiff was a grossly incompetent police officer in that he knowingly allowed an endemic culture of sexual harassment between senior personnel and junior recruits to exist at the Goulburn Police Academy." 71 As I understood it, the defendant's objection as to capacity was on grounds similar to those put in support of the challenge to imputation 9(a). I reject it for the reasons given in respect of that imputation. 72 It was also put that this imputation did not differ in substance from imputations 9(a) and 9(e). In my opinion consideration of their terms demonstrates that each has a different defamatory sting. I reject the submission. 73 Accordingly, I decline to strike out imputation 9(d). 74 Imputation 9(e) is: "The Plaintiff engaged in gravely serious misconduct in that he would arrange for recruits to pass at the Goulburn Police Academy and become police officers in return for having sex with him rather than the recruits passing on their merits." 75 The defendant's objection to capacity was on grounds similar to those put in support of the challenge to imputations 9(b) and (c). I reject it for the reasons given in respect of those imputations. 76 I decline to strike out imputation 9(e). 77 Imputation 9(f) is: "That the Plaintiff in his capacity as commander of the Goulburn Police Academy bore responsibility for a criminal sexual assault that occurred at the Goulburn Police Academy." 78 The defendant submitted this imputation was incapable of arising. It was put that the programme gave no support for an allegation that the plaintiff bore responsibility for a criminal sexual assault which occurred whilst he was in charge of the Police Academy. 79 Contrary to the submission, in my opinion, taken in context the references to sexual assault are capable of suggesting that these were incidents which took place under the plaintiff's watch just as incidents involving other kinds of sexual misconduct had. Sufficient support, on a capacity issue, is found in the matter in e.g. paras 31-33, 40-51, 56, 63-73, 77-79. These passages are capable of suggesting that there was a wide range of incidents, including sexual assaults and sexual harassments, which happened as a product of the culture allowed to develop whilst the plaintiff was in charge. In particular, the passages at paras 31-35 and paras 40-51 clearly demonstrate the point. 80 For these reasons, in addition to those given in respect of imputation 6(a), I hold that imputation 9(f) is capable of arising and decline to strike it out. 81 Imputation 9(g) is: "That the Plaintiff in his capacity as commander of the Goulburn Police Academy bore responsibility for a culture of deliberately ignoring complaints about sexual misconduct at the Goulburn Police Academy." 82 The defendant submitted this imputation was incapable of arising. It was put that the programme did not suggest the existence of a culture of deliberately ignoring complaints about sexual misconduct. It was put that during the course of the programme Mr Scully denied that complaints were ignored and described the steps taken by the plaintiff from time to time to investigate allegations about sexual misconduct. Reference was made e.g. to paras 28, 30, 34, 38, and 76. 83 In reply, the plaintiff referred to Mr Hadley's statements in, e.g., paras 57-59, 63, 65, 68-72 in which Mr Scully's responses were contradicted, and suggestions of lack of investigation and deliberate ignoring of complaints as part of a "duck shoving", "old mates" culture were made. 84 With regard to the principles referred to in respect of imputation 9(a), I find this imputation is reasonably capable of being carried by the programme. Accordingly, I decline to strike out imputation 9(g). 85 Imputation 9(h) is: "The Plaintiff was such a failure as a police officer that he should be sacked from the NSW Police Force." 86 The defendant submitted that this imputation was incapable of arising on the basis that there was no support for the suggestion that the plaintiff should be sacked. 87 I do not accept the submission and find that, taken in context, the matter in paras 65-75 provides ample support for the imputation on a capacity issue. Mr Hadley there challenges the Minister for rewarding the plaintiff by giving him a job in circumstances where it is said that the identified incidents took place under his stewardship. The language is strongly suggestive of Mr Hadley's incredulity at this outcome, and, in my opinion, is calculated to induce the listener to conclude that, instead, the plaintiff should have been sacked. An inference in terms of the imputation is one the ordinary reasonable listener could make. 88 I decline to strike out imputation 9(h). 89 Imputation 9(i) is: "The Plaintiff did not deserve to be seconded to the Premier's Department as Project Director, Crime Prevention." 90 The defendant challenges this imputation on grounds that it is incapable of arising, and is incapable of being defamatory. In my opinion, these objections must fail. 91 The passages in the programme which support the imputation are those which I found capable of carrying imputation 9(h). For the reasons given in respect of that imputation, I find that imputation 9(i) is also reasonably capable of arising. Further, I am satisfied that an allegation in terms of this imputation understood in the context of the whole programme is reasonably capable of being defamatory of the plaintiff. 92 I also find that the imputation differs in substance from imputations 9(a), (b), and (g). 93 I decline to strike out imputation 9(i). 94 Imputation 9(j) is: "The Plaintiff was suspected of having engaged in improper behaviour in that he procured his secondment to the Premier's Department in suspicious circumstances." 95 The defendant's objection was that this imputation was incapable of arising. It relied upon the submissions put in support of the challenge to imputation 6(h). 96 The plaintiff relies on the whole of the programme and, in particular, the matter in paras 65-75. Although made with reference to numerous parts of the programme, his submissions were substantially similar to those made in respect of imputation 6(h). It is unnecessary to recite them. 97 I uphold the defendant's objection. For the reasons given in respect of imputation 9(h), I find that the programme could not be reasonably understood to convey the imputation as pleaded. Similarly, I find no reasonable support for the suggestion either that the plaintiff procured the secondment, or that he was suspected of acting improperly in doing so. 98 I propose to order that imputation 9(j) be struck out. The third matter complained of 99 The third matter complained of is the programme broadcast on 31 July 2006. The transcript is schedule C to the statement of claim. The relevant parts are paras 15-20 and 26-30. The thrust of the attack upon the plaintiff is similar to that in the other matters complained of. 100 Imputation 12(a) is: "The Plaintiff in his capacity as commander of the Goulburn Police Academy bore responsibility for an endemic situation of sexual harassment at the Goulburn Police Academy that occurred from 2002 to 2005." 101 The imputation was challenged on grounds that it was incapable of arising, and that it did not differ in substance from imputations 12(b), (d), (g), and (h). 102 I do not accept the submission that these imputations do not differ in substance one from the other. It is self evident from their terms that the defamatory sting of each is different. As in this case, it is not unusual that a particular part, or combination of parts, of a publication may be reasonably capable of conveying a number of defamatory meanings. It is the obligation of the pleader under r 14.30(3) to formulate imputations conveyed by the same publication which are different in substance. In my opinion, the pleader in this case has done so. 103 On the issue of capacity, in my opinion there is arguably sufficient support for this imputation in paras 15, 16 and 19. There Mr Hadley describes a situation or culture as endemic, in which lecturers traded passes for sexual favours from students whilst the plaintiff was in charge but asleep at the wheel. Further, in my opinion, and for the reasons given in respect of imputation 6(a), the meaning of the imputation is unambiguous. 104 I find the imputation is reasonably capable of arising. I decline to strike out imputation 12(a). 105 Imputation 12(b) is: "The plaintiff in his capacity as commander of the Goulburn Police Academy bore responsibility for corrupting the Police Academy in Goulburn from 2002 to 2005 so that recruits at the Academy did not pass on capacity, ability or merit but on whether they had sex with a lecturer." 106 As I understood it, the defendant's objection was that the use of the words "so that" did not assist in defining the sense in which the use of the word "corrupting" is to be understood. However, the defendant accepted that if the words "so that" were understood to mean "in that", the perceived difficulty was overcome. 107 It is sufficient for me simply to state that to take the objection was to waste the court's time. 108 I hold the imputation is reasonably capable of being conveyed by the programme. I decline to strike out imputation 12(b). 109 Imputation 12(c) is: "The Plaintiff as head of the Goulburn Police Academy from 2002 to 2005 ran the Academy as an institution which had no standards or discipline." 110 The defendant's challenge as to capacity and form was directed to the earlier version of the imputation in which the words "a hopeless free love shemozzle" were used. The challenge prompted the plaintiff to amend by substituting for them the words "an institution" as presently appear. 111 In my opinion, but for the amendment, the imputation should have been struck out. However, I am persuaded that, taken as a whole, the programme is reasonably capable of conveying this imputation, and that it is sufficient in form. 112 I decline to strike out imputation 12(c). 113 Imputation 12(d) is: "The Plaintiff in his capacity as commander of the Goulburn Police Academy bore responsibility for the scandal at the Goulburn Police Academy from 2002 to 2005 of male lecturers having sex with female students in return for which the female students would receive higher marks." 114 The defendant's objection to capacity was on grounds similar to those put in support of the challenge to imputation 12(a). I reject it for the reasons given in respect of that imputation. 115 I decline to strike out imputation 12(d). 116 It is convenient to deal with imputations 12(e) and (f) together. Imputation 12(e) is: "The Plaintiff was such a failure as a police officer that he should be sacked from the NSW Police Force." Imputation 12(f) is: "The Plaintiff did not deserve to be on secondment to the Premier's Office, which was a senior position in the NSW Police Force." 117 The defendant submitted that these imputations are incapable of arising. It was put that the programme provided no support for either the suggestion that the plaintiff should be sacked, or that he did not deserve to be on secondment to the Premier's office. 118 In reply, the plaintiff submitted that the listener would reasonably infer the meanings pleaded from the language of paras 15 and 19 in which Mr Hadley questions Police Commissioner Moroney as to the action taken against, inter alios, the plaintiff, and of para 20 in which Mr Moroney refers to his expectation that commanders should be accountable. Further weight is placed on Mr Hadley's statement in para 19 that "… His predecessor is on secondment to the Premier's Office and appears to be a fairly senior position in the NSW Police Force to be on secondment to the Premier's Office." It was put that, in context, these passages are capable of conveying the impression that, in all the circumstances, the plaintiff should be sacked and/or did not deserve secondment to the Premier's office. 119 In my opinion the defendant's submission should be accepted, and the objections to these imputations should be upheld. In my assessment, this programme could not be reasonably understood to make the allegations of the plaintiff in the terms of these imputations. Accordingly, I propose to order that imputations 12(e) and (f) be struck out. 120 Imputation 12(g) is: "The Plaintiff as the head of the Goulburn Police Academy from 2002 to 2005 knew there was an endemic situation of many students who were sleeping with lecturers in order to gain favours in terms of marks but the Plaintiff deliberately chose to ignore this situation." 121 Although the defendant originally challenged this imputation as incapable of arising, it did so only faintly. In my opinion sufficient support for the imputation is found in Mr Hadley's questions in para 19: "… This person, was he asleep at the wheel? I mean, did he not know that the students were having sex with the lecturer? Did he choose to ignore it". The publication raises for consideration issues similar to those in Jones v Skelton (1963) 63 SR 644 in which the question posed was held to be capable of inviting the reader to adopt a suspicious approach. 122 In my opinion the programme is reasonably capable of suggesting to the listener that the plaintiff at the relevant time knew of the situation but deliberately chose to ignore it. I hold the imputation is reasonably capable of being conveyed. 123 I decline to strike out imputation 12(g). 124 Imputation 12(h) is: "The Plaintiff was a grossly incompetent commander of the Goulburn Police Academy, who should be punished for the endemic culture of sexual misconduct he left at the Goulburn Police Academy." 125 In its challenges to capacity, the defendant's objection was to the use of the word "grossly". It appeared to accept that, but for this, the imputation was capable of arising. For the reasons given for rejecting a similar challenge to imputation 6(e), the objection fails. 126 I decline to strike out imputation 12(h). 127 Imputation 12(i) is: "That the Plaintiff in his capacity as commander of the Goulburn Police Academy bore responsibility for a criminal sexual assault that occurred at the Academy." 128 The defendant submitted that this imputation was incapable of arising. Similar to the objection taken to imputation 9(f), it was put that the programme gave no support for the suggestion of responsibility for a criminal assault which occurred at the Academy whilst the plaintiff was in command. It was put that the programme itself made a clear distinction between incidents of sexual harassment and misconduct for which, as commander, the plaintiff was responsible and a criminal sexual assault for which he would not reasonably be understood from the programme to have been responsible. 129 In my opinion this imputation is no so clearly incapable of arising that it should be struck out. It is arguable that the words in paras 16 and 17: "16. Moroeny: … You know if we look at the history of these issues, and I was asked well, perhaps the level of penalty hasn't been severe enough, well, explain that to one of my former officers who is serving a period of imprisonment … 17. Hadley: Yes, but that was for sexual assault. That's a different matter entirely. That was for a criminal offence as opposed to adults, consenting adults having sex with each other one being a lecturer, one being a student …" taken in context are reasonably capable of suggesting to the listener that the history of activity referred to was whilst the plaintiff was commander, and included the sexual assault for which the officer was punished. Although Mr Hadley describes the assault as a different matter to the sexual liaisons between lecturers and students, the programme does not necessarily suggest that it did not occur under the plaintiff's watch. Given the attributes of an ordinary reasonable listener to a radio programme such as this, in my opinion the question should be left to the jury. 130 Accordingly, I decline to strike out imputation 12(i). Conclusion 131 (1) I hold that: (i) the first matter complained of is reasonably capable of conveying imputations 6(a), (b), (c), (e), (f), (g); (ii) the second matter complained of is reasonably capable of conveying imputations 9(a), (b), (c), (d), (e), (f), (g), (h), (i); (iii) the third matter complained of is reasonably capable of conveying imputations 12(a), (b), (c), (d), (g), (h), (i); and (iv) each of imputations 6(h), 9(j), 12(e) and 12(f) is incapable of being conveyed by the relevant matter complained of and should be struck out. (2) I stand the proceedings over to the defamation directions list 9.30am 9 July 2007. The plaintiff should file an amended statement of claim in accordance with these findings. The parties should then have the opportunity to propose directions for the future conduct of the proceedings, and, failing agreement, address on the question of costs. ********** 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.