Was their evidence to go to the jury - imputation (b)
88 The defendant did not plead any other imputation apart from those pleaded by the plaintiff as arising from the matter of which the plaintiff complains. The defendant accordingly accepted the burden of proving the truth of the pleaded imputations. The defendant expressly disavowed any corrupt conduct by the plaintiff.
89 The essential element of each imputation is that it was the conduct of the plaintiff which gave rise, in the case of imputation (b) to the "reasonable suspicion", and in the case of imputations (e) and (f) "so as to provide reasonable grounds" for the relevant reference. Although the conduct of the plaintiff cannot be separated from the context in which it occurs, it is her conduct that the defendant must prove to have had the pleaded outcome. It cannot be proved by the statements of others.
90 Imputation (b) was pleaded with precision by the plaintiff. The reasonable suspicion raised by the defamatory matter and sought to be justified by the defendant was "that in handling a planned councillor technology upgrade" for the council she "acted corruptly in accepting BlackBerry devices".
91 Reference to the events which I previously related reveals immediately that such an assertion must fail. The uncontradicted evidence is that it was the plaintiff's company, through its general manager, that received the BlackBerry devices as part of an ordinary transaction with Telstra pursuant to commercial terms available to any prospective business customer of Telstra throughout Australia. Furthermore, there is nothing in the evidence to suggest that the plaintiff "handled a planned councillor technology upgrade". Any suggestion of consideration of new technology for councillors did not come before a council meeting until February 2006. The transaction which provided the BlackBerries to the plaintiff's company was completed in July 2005. The plaintiff had no part in bringing the issue of a "planned councillor technology upgrade" to the council in February 2006 or at any other time.
92 Notwithstanding that the defendant pleaded the truth of the plaintiff's pleaded imputation, faced with the difficulties to which I have referred senior counsel sought to fall back upon a claim of "substantial truth." That submission was founded not upon the receipt of BlackBerries, the matter referred to in the pleaded imputation, but on the receipt of the mini-max modem. That submission faces a number of insurmountable hurdles.
93 Substantial justification of an imputation will satisfy the defence of truth. The defendant needs only to prove the gist or the sting of the imputation. The defendant need not prove comments which do not add to the sting (Edwards v Bell (1824) Bing 403; Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 218). An inaccuracy in a mere detail will not prevent the defence of justification from succeeding.
94 However, where the inaccuracy is material and it alters the character of the imputation or adds to the sting, it must be proved as true or the defence of justification will fail. In Weaver v Lloyd (1824) 2 B&C 678, the defamation could not be justified because it could only be proved that the plaintiff had done various acts of cruelty to his horse, not that the plaintiff had knocked out the eye of his horse, as was alleged. The court said at 679:
"Here, the statement that he knocked out the horse's eye imputed a much greater degree of cruelty than a charge of beating him on other parts of the body. If we were to hold this a sufficient justification, exaggerated accounts of any transaction might always be given with impunity."
95 In the present case there were three essential elements in the pleaded imputation; handling a planned councillor technology upgrade, accepting BlackBerries and acting corruptly. The argument of the defendant seeks to avoid these essential elements and justify the imputation by some generalised assertion that by receiving and using a mini-max modem from Telstra and telling council personnel that it was a useful device and participating in discussions about possible future technology for councillors she acted in a manner which gave rise to a reasonable suspicion that she acted corruptly. To my mind this submission must be rejected. Even if the reference to BlackBerries is put to one side and it is accepted that the mini-max modem can be the foundation for the allegation, the suggestion that the plaintiff corruptly abused her office when handling a technology upgrade is critical. It implies that she had been given particular responsibilities and on behalf of the Council was in control of an upgrade proposal in which position she abused her office. Far from being a suspicion of some generalised act of impropriety the pleaded imputations suggested that the plaintiff may have abused a specific trust placed in her.
96 With respect to the modem, like the BlackBerries, the undisputed objective evidence, in contrast to what Mr Gearon and Mr Leonard said they were told by Mr Valentinetti, is that the modem was provided as part of an ordinary commercial transaction. The defendant emphasised that it was initially provided for free for a thirty-day trial period. This was so although again, like the BlackBerry, this was part of the usual offer made at a time when the modem had only just been released and Telstra was endeavouring to provide potential customers with a knowledge of its benefits to encourage a take up of the product. There was absolutely nothing to suggest that in her family or family company being offered a free 30 day trial it was being given a benefit which was not available to any similar potential customer. To suggest that by her company contracting to acquire the modem and the plaintiff using it, she conducted herself so as to give rise to a reasonable suspicion that she had acted corruptly is simply untenable.
97 Nevertheless in pursuit of its defence the defendant submitted that there were other matters which justified the imputation. The plaintiff's conduct in meeting with Mr Valentinetti in the Mayor's office, followed by her open praise of the benefits of the mini max modem in the context of the alleged assertions by Mr Valentinetti of his dealings with the plaintiff were emphasised. The submission is devoid of substance. Although a clandestine meeting with Mr Valentinetti may have legitimately fed a suspicion, a meeting at the council chambers, which any number of persons knew about could not. No doubt false rumours were spread about the meeting but they are not relevant to the present issue. The plaintiff speaking in praise of the device was, without more, entirely neutral. A moments thought would have caused any reasonable person to realise that if it operated as claimed to provide wireless internet access from anywhere within mobile telephone range, the device would be of enormous benefit to many councillors and others who exchange written information as part of their ordinary activities.
98 With respect to the activities of Mr Valentinetti little need be said. Any assertion by him, if he made it, that he had provided the plaintiff or her company with free equipment in order to enhance Telstra's propsects with the council or otherwise was inconsistent with the objective facts and was demonstrably false. It is true that the mini-max modem came with a free trial period but that was part of the conventional Telstra offer which was not special to the plaintiff. No doubt Mr Valentinetti saw the plaintiff's take up of the equipment as useful to his prospects of obtaining business from the council. But any inaccurate assertion by Mr Valentinetti cannot be visited upon the plaintiff when the defendant cannot suggest that there is any evidence in the plaintiff's conduct which could support that assertion.
99 The defendant further submitted that the plaintiff's conduct when she met with Mr Weir on 27 January 2006 could justify the imputation. The submission is of no substance. Corruption involves a state of mind. During that conversation the plaintiff denied the allegation Mr Weir put to her and asserted her innocence of any wrongdoing. It was submitted that because she said that her company had paid for all its equipment, but in fact had received a thirty day free trial of the modem and received three BlackBerries, she had lied to Mr Weir. That lie was said to have been made out of a "consciousness of guilt" and was an event capable of supporting a reasonable suspicion in the terms of imputation (b). Of course, as I have related, the objective evidence is that the free trial was part of the commercial offer which her company later accepted and for which it paid the commercial rate and the BlackBerries were likewise part of a valid commercial transaction. The assertion that a lie was told by the plaintiff was entirely without foundation. To assert that a denial of wrongdoing was conduct capable of supporting a reasonable suspicion that she acted corruptly is a submission lacking both in logic and commonsense. It may be, although in all the circumstances unlikely, that if the plaintiff had declined to respond to Mr Weir this could have supported a suspicion. But she did not do that - she denied this, as it happens, entirely false allegation.
100 It was then submitted that the plaintiff's delay in replying to Mr Weir justified, at least in part, the pleaded imputation. Mr Weir wrote on 1 February 2006. He did so with knowledge that the plaintiff was about to go overseas. After receiving the letter she sought the assistance of Mr McKenzie from Telstra in preparing her response. With her absence from the country and the need to await Telstra's response the delay of 6 weeks, was quite unexceptional. It certainly could contribute nothing to a suspicion of corrupt conduct.
101 Finally it was submitted that by voting for the amendment at the council meeting of 5 February the plaintiff could have been reasonably suspected of acting corruptly. That meeting had before it a general proposal to provide additional communication facilities to councillors. Even if the proposal was adopted, consideration of the equipment and who might supply it was a matter for another meeting. Not even Mr Weir, who obviously harboured suspicion about the plaintiff, suggested to her that she should not sit or vote at that meeting.