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.