Defamation - Two television news broadcasts - Strike-out applications on both

First broadcast - Whether pleading discloses reasonable cause of action or alternatively may prejudice, embarrass or delay fair trial of action - Whether imputation capable of arising from broadcast - Whether further imputation that the plaintiff has so conducted himself as to give reasonable grounds for suspicion of criminal conduct is capable of being reasonably held - Whether pleading so ambiguous as to constitute a "weasel word" - Pleading struck out and plaintiff given liberty to amend

Second broadcast - Whether imputation that the plaintiff has so conducted himself as to give reasonable grounds for suspicion of criminal conduct is capable of arising from broadcast - Plaintiff given liberty to amend

Civ 1251 of 2002: Application to strike out par 4 of statement of claim granted

Plaintiff given liberty to amend statement of claim

Lewis v Daily Telegraph [1964] AC 234

Nationwide News Pty Ltd & Ors v Abboud & Ors, unreported; SCt of WA; Library No 960710; 12 September 1996

Singleton v Hudson (1998) 20 WAR 191

1 BARKER J: These reasons relate to two separate applications to strike out imputations pleaded in defamation proceedings instituted by the same plaintiff in respect of separate and distinct publications.

2 I deal first with the application of the defendant ("ABC") in CIV 1252 of 2002, then with the application of the defendant ("TVW") in CIV 1251 of 2002.

3 The reasons concerning the relevant test or approaches to be applied or adopted on applications of this type set out in my reasons dealing with the application of the ABC apply also with respect to the application of TVW.

4 This is an application by the defendant ("ABC") to strike out par 4 of the statement of claim of the plaintiff on the grounds that it discloses no reasonable cause of action or alternatively may prejudice, embarrass or delay the fair trial of the action.

5 In par 3 of his statement of claim, the plaintiff, who is stated to be a final year business administration student at Notre Dame University in the State of Western Australia, pleads that during the 7 pm ABC television news service of 1 November 2002, the following words and images were published of and concerning the plaintiff:

7 In par 4 of the statement of claim the plaintiff pleads that:

"4. The broadcast meant and was understood to mean in its ordinary and natural meaning that the plaintiff had so conducted himself as to give the police reasonable grounds for suspecting that he was guilty of extortion."

8 The imputation pleaded in par 4 is the sole imputation complained of in the statement of claim.

9 Counsel for the ABC contends that the imputation complained of is not capable of arising from the broadcast.

10 Counsel for both the ABC and the plaintiff say the Court should view and have regard to the videotape of the broadcast in determining this application. To that end, the Court was provided with a videotape entitled "ABC News, 1/11/01, Extortion, Court, Michael Lim," which contained the broadcast pleaded, save that the caption and pictures and words marked respectively as item 1 in par 3 of the statement of claim do not appear on the videotape so supplied. Following the hearing of the application, the Court privately viewed and listened to the videotape of the broadcast for the purpose of determining this application.

11 It is well-established that an imputation will only be struck out on the basis that words or images the subject of the broadcast complained of are incapable of giving rise to the pleaded imputation, if it is so obviously untenable that it cannot possibly succeed or, putting it differently, is manifestly groundless: Taylor v Jecks (1993) 10 WAR 309 at 319; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675 and Smith v Littlemore (1996) 15 WAR 289 at 294.

12 In Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 446 - 447, Steytler J stated, in relation to the test to be applied, as follows:

"The usual starting point is the following, often quoted, extract from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 - 1371; [1963] 3 All ER 952 at 958:

'It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital & Counties Bank v Henty & Sons ((1882) 7 App Cas 741 at 745) Lord Selborne LC said: "The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense."

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1964] AC 234. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.'

It should be assumed that reasonable people of ordinary intelligence and education who are also fair-minded and entertain a sense of justice will read the article as a whole and in the context of its publication: see Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 (n) at 683.

It is not enough that the words complained of might be understood in a defamatory sense by some person. Rather, the test is that of whether, under the circumstances in which the writing is published, reasonable people to whom the publication was made would be likely to understand it in a libellous sense: see Capital & Counties Bank Ltd v Henty & Sons (at 745 HL); Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 at 72 - 73; Lewis v Daily Telegraph Ltd (at 259).

The ordinary reasonable person is not unusually suspicious or unusually naive or avid for scandal: see Lewis v Daily Telegraph Ltd (at 259 - 260).

Against that, the ordinary reasonable reader is a lay person and must be regarded as prone to engage in loose thinking in relation to sensational publications (see Farquhar v Bottom (1980) 2 NSWLR 380 at 386; Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd [1995] Aust Tort Rep 62,481 at 62,485) and to have a capacity for implication which is greater than that of the lawyer, especially when the implication is derogatory: see Lewis v Daily Telegraph Ltd (at 277)."

13 As Steytler J further observed in Emerson v Walker [1999] WASC 265 at par 29, it is important to bear in mind the distinction, referred to by Mason J in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301, between a reader's (or for that matter a viewer's) understanding of the publication and judgments or conclusions at which the reader (or viewer) might arrive as a result of his or her own beliefs and prejudices. Mason J stated:

"It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable viewer would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not the second, proposition."

14 Counsel for the ABC submits that an ordinary reasonable viewer of the broadcast complained of, who is not avid for scandal or improperly speculating, would not arrive at the conclusion that any further charges would be preferred against the plaintiff, and so the imputation pleaded in par 4 of the statement of claim could not arise from the broadcast.

15 Counsel for the ABC says of the words in items 11 and 12 of par 3 of the statement of claim, that they are entirely neutral as to the identity of those who may in future be charged. It is also contended that the matter complained of is not capable of conveying the meaning that any further charges would be for the offence of extortion. It is further contended that there is no basis for concluding that the police have the alleged state of suspicion suggested by the pleading in par 4 of the statement of claim. It is said that all that is referred to in the broadcast is an expectation of what may occur in the future and that there is no basis for suggesting that a statement about police expectation would be translated by the ordinary reasonable listener and viewer into an imputation that the police already have the requisite state of suspicion, belief or knowledge, especially as no extrinsic facts are pleaded.

16 Counsel for the ABC accepted that the context in which words are spoken, particularly when juxtaposed with images, may in an appropriate case permit an imputation to be drawn from a broadcast, but submitted that, on viewing and listening to the videotape of the broadcast in this instance, no relevant context is to be found to support the imputation pleaded.

17 In his submissions opposing the strike-out application, counsel for the plaintiff emphasised the test by which the Court should determine the application at this interlocutory stage of proceedings. On his submission, the broadcast should be characterised as "loose" and "sensational". The Court was encouraged to confirm this characterization by viewing the videotape of the broadcast. Counsel claimed that the plaintiff had been linked with the "alleged extortion" referred to in item 1 of the words pleaded in par 3 of the statement of claim so that, when taken as a whole, the statement in item 11 of the words pleaded in par 3 of the statement of claim, that "Police are expecting to lay further charges in connection with the alleged extortion ...", meant that the plaintiff "had so conducted himself as to give the police reasonable grounds for suspecting that he was guilty of extortion", as pleaded in par 4 of the statement of claim; in other words, that the reasonable viewer would expect the plaintiff to be charged with the "alleged extortion".

18 Counsel for the plaintiff contended, in effect, that the words published of and concerning the plaintiff in relation to his appearance in Court that he was "charged with six counts of receiving stolen property" (item 9 of the words pleaded in par 3 of the statement of claim) were not discrete and that by reason of the linkage of those and similar words published in the broadcast the inference could be drawn that the plaintiff was also responsible for the "alleged extortion". Counsel, in particular, sought to draw such linkages between the words pleaded in items 2, 3, 4, 5 and 6 of par 3, and the words pleaded in item 1 of par 3 of the statement of claim. Counsel contended that, when viewed as a whole, the broadcast gave the impression that, because there was one "police operation", in respect of one "shop owner", in relation to which there was said to be one "alleged extortion", the fact that the plaintiff had been charged "with receiving property stolen from the shop" as a result of the "same police operation" led to an inference that he was also suspected of the "alleged extortion" referred to in item 1 and item 11 of the words pleaded in par 3 of the statement of claim.

19 In my view, there is merit in the application of the ABC. Despite the attempts of counsel for the plaintiff to characterise the broadcast as loose and sensational, I do not consider it can be viewed as such. Rather, it is fair to observe that the broadcast carefully segmented the report of the alleged conduct of the plaintiff in relation to his "brief appearance in court today charged with six counts of receiving stolen property ..." (item 9 of par 3) from the reports in the broadcast concerning the "alleged extortion". For example, in item 1 of par 3 the first sentence deals with "an alleged extortion", whereas the second sentence deals quite discretely with "another business student" having "been charged with receiving property stolen from the shop". The same discrete treatment of the matters is maintained in items 2, 3, 4, 5 and 6 of the words spoken as pleaded in par 3. In item 7 of the words pleaded in par 3 the fact of a particular "university student" being "charged with extortion and five counts of receiving $16,000 in stolen property" is set out, as is the fact in item 8 that "He'll appear in the Perth Magistrate's Court on all charges tomorrow". Item 9 of the words pleaded in par 3 then quite separately report that the plaintiff "made a brief appearance in court today charged with six counts of receiving stolen property, including laptops and cameras valued at $18,000". The broadcast in item 10 then clearly discloses that the plaintiff was granted bail and will appear in Court at a later date.

20 In those circumstances, the words pleaded in items 11 and 12 of par 3 of the statement of claim, that "Police are expecting to lay further charges in connection with the alleged extortion, an offence carrying a maximum penalty of 14 years' imprisonment", could not, in my view, even on an arguable basis, lead to "reasonable people of ordinary intelligence and education who are also fair-minded and entertain a sense of justice" to understand the words and images complained of in a defamatory sense and, in particular, in the sense pleaded in par 4 of the statement of claim.

21 Nor do I consider there is anything in the context of the broadcast or the particular images broadcast, either alone or in juxtaposition with the words complained of, that arguably could lead such reasonable people to understand the words and images complained of in the defamatory sense pleaded in par 4 of the statement of claim.

22 I consider the imputation pleaded in par 4 to be obviously untenable.

23 For these reasons, it is unnecessary for the Court to express an opinion on the further ground advanced on behalf of the ABC that, if the broadcast is considered capable of supporting a defamatory imputation of the type pleaded, it can only be an imputation of a suspicion of the plaintiff's guilt of the "alleged extortion" and not an imputation in respect of the police having "reasonable grounds for suspecting that he was guilty of extortion".

24 Accordingly, I am not persuaded that it is arguable that the sole imputation pleaded in par 4 of the statement of claim is capable of arising from the words and images of the broadcast pleaded in par 3 of the statement of claim. I propose to strike out par 4 of the statement of claim. I will hear the parties on the question of what orders are now appropriate.

25 This is an application by the defendant ("TVW") to strike out pars 4.1 and 4.2 as well as par 9 of the statement of claim.

26 The application initially was to strike out pars 4.1 and 4.2 but later an attack was also made on par 9. Argument was directed by TVW and the plaintiff to each of these paragraphs. To the extent that it is necessary, the Court grants leave to amend the application so that it includes an application for an order that par 9 of the statement of claim be struck out.

27 In par 3 of his statement of claim, the plaintiff, who is stated to be a final-year business administration student at Notre Dame University in the State of Western Australia, pleads that during the 6 pm Channel 7 television news programme of 1 November 2002, the following words and images were published of and concerning the plaintiff:

29 In par 4 of the statement of claim the plaintiff pleads that:

"4.1 The plaintiff was a participant in an extortion racket involving stand-over tactics to force a Perth businessman to hand over protection money.

4.2 In the alternative, the plaintiff so conducted himself as to give the police reasonable grounds to suspect that the plaintiff was a participant in an extortion racket involving stand-over tactics to force a Perth businessman to hand over protection money."

30 For the purpose of the determination of the application, counsel for the parties agreed the Court should view the first broadcast. Senior Counsel tendered a videotape of the first broadcast, which was marked exhibit 1. Save for the caption and words marked 1 in par 3, the videotape contained the whole broadcast. Following the hearing, the Court privately viewed and listened to the videotape.

31 In respect of each of these paragraphs, TVW contended that the pleading fails to disclose a reasonable cause of action or will prejudice, embarrass or delay the fair trial of the action and so should be struck out.

32 In relation to par 4.1, there are two objections. First, it is said that by using the word "participant" in par 4.1, the plaintiff has used a "weasel" word in respect of which makes it difficult for the defendant to plead and thus embarrassing.

33 Secondly, it is submitted that the imputation pleaded in par 4.1 is not reasonably capable of conveying any imputation that the plaintiff was in fact guilty of extortion.

34 It is appropriate to deal with this second objection to par 4.1 first, in order to put the "weasel word" objection into a proper context.

35 TVW submits that there is no more in the first broadcast than statements that the police have conducted an investigation into an extortion racket and that they allege an associate of the plaintiff used stand-over tactics to demand money from a shop owner, and that the plaintiff has been arrested. It is contended the viewer might interpret the broadcast as suggesting there were "reasonable suspicions" as to the plaintiff's guilt, but not that he was in fact guilty.

36 In essence, counsel for the plaintiff says that the first broadcast conveyed the meaning to the ordinary reasonable viewer that the plaintiff had participated in an extortion racket involving stand-over tactics to force a businessman to hand over protection money.

37 In my view, stated in general terms, such a defamatory meaning of the first broadcast is arguable. This is not a case where it can be said, to use the words of Mason J in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301, that the broadcast is only capable of bearing the pleaded imputation "merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff". Rather, this is a case where, at this interlocutory stage, it would be reasonable to conclude that, again to adapt the words of Mason J in Harrison, the ordinary reasonable viewer would understand it, in the sense pleaded, drawing on his own knowledge and experience of human affairs in order to reach that result.

38 Bearing in mind the test to be applied, as stated by Steytler J in Heytesbury Holdings Pty Ltd v City of Subiaco (supra), it is arguable that, generally speaking, a defamatory meaning was conveyed by the first broadcast to the effect that plaintiff participated in the alleged extortion racket.

39 When read as a whole, it is, in my view, arguable that the words and images the subject of the first broadcast so relate the alleged "extortion racket" to the plaintiff's alleged "central part in an international stealing ring" and the plaintiff's conduct in filling "shopping lists for stolen laptops and other electrical equipment, supplying some of the goods overseas to Hong Kong", that the ordinary reasonable viewer would understand the broadcast to mean that the plaintiff was also involved or had participated, either directly or indirectly, in the alleged "extortion racket".

40 In my view, the arguable imputation pleaded in par 4.1 is made even more so by the use of the words in item 17 of par 3 that the plaintiff "has been released on bail but ordered not to have contact with two other suspects in the case, including one described as the 'ringleader' who will appear in court tomorrow", in a context in which no differentiation or other clarification is made in the first broadcast as to what charge the plaintiff appeared in Court on and in respect of which he was apparently "released on bail".

41 The result is that it is arguable that the ordinary reasonable viewer would, on the basis of the first broadcast, have the understanding that the plaintiff not only "played a central part in an international stealing ring" but also was involved, either directly or indirectly, in an "extortion racket involving stand-over tactics to force a Perth businessman to hand over protection money".

42 In these circumstances, the second objection of TVW to par 4.1 must fail.

43 I now turn to TVW's first objection to par 4.1. In advancing this objection, Senior Counsel for TVW referred to Gascoine v McGinty (1995) 14 WAR 542 in which Steytler J confirmed the need for precision in defamation pleadings. It is generally accepted that if a pleaded imputation raises "confusion as to the meaning contended for", then it may be considered embarrassing: see Steytler J at 547B.

44 In Gascoine v McGinty at 546, Steytler J noted as follows:

"There is an accepted rule of practice, recently confirmed in this State, that the plaintiff should set out in the statement of claim what is contended to be the defamatory meaning alleged to arise from the words complained of unless that defamatory meaning is so clear that elucidation is obviously unnecessary: see Gumina v Williams (No 2) (1990) 3 WAR 351 at 355 per Malcolm CJ; at 367, per Seaman J; Taylor v Jecks (1993) 10 WAR 309 at 315, per Anderson J, with whom Kennedy and Franklyn JJ were in agreement.

In Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 (applied in Taylor v Jecks (at 319)) Hunt J said that the plaintiff must plead 'the precise act or condition asserted of, or attributed to, him or with which he is charged' and that 'it is the meaning alleged to have been conveyed by the words, rather than the words themselves which it is important to have precisely defined in the imputation complained of by the plaintiff'.

The same Judge, in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 154, made the point that 'the question is not whether the defendant knows what meaning was in fact conveyed by his words (or even what he intended to convey by his words) but whether he knows what meaning the plaintiff will assert was in fact conveyed by his words to the ordinary reasonable reader'.

His Honour said also (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': (see also Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138 per Gleeson CJ)."

45 Steytler J in Gascoine v McGinty went on to emphasise that in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, at 137, Gleeson CJ stated that the requirement that a plaintiff specify the "act or condition" which he claims was attributed to him is one which, in its practical application, raises questions of degree. Gleeson CJ explained that almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation and that, 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. Gleeson CJ stated that the solution would usually be found in "considerations of practical justice rather than philology".

46 Senior counsel for TVW submits that the use of the word "participant" has been identified by the authorities as undesirable because the word lacks the necessary specificity required of a pleaded imputation. In that respect, the Court was referred to the unreported decision of Hunt J in the Supreme Court of New South Wales, Common Law Division in Armitage v Double Bay Newspapers Pty Ltd, unreported; SCt of NSW (Hunt J); 26 September 1991 in which his Honour complained about the increased use by some pleaders of the word "participated" and characterised such a word as a "weasel word" which should not be used in the pleading of an imputation unless the imputation itself makes clear the sense in which the word is to be understood. His Honour described a "weasel word" as "one which has a variety of meanings so that it is ambiguous or equivocal". The particular vice in the use of the verb "participated", according to Hunt J, is as follows:

"To say that someone participated in an action may mean that he did the action himself, or it may mean that he was merely an accessory to the action of some other person by inciting, approving or assisting in that action. To use the word 'participating' without making it clear the sense in which the word is to be understood leaves it open for the plaintiff to support the capacity of the matter complained of to convey the imputation in question upon the basis that it means only, for example, that the plaintiff approved of the action but did not himself do that action, yet leave the jury with the impression that the part played by the plaintiff was somewhat greater, and (if truth is pleaded as a defence) to shift his or her ground as to its meaning according to the nature of the evidence produced by the defendant."

47 Senior Counsel for TVW submitted that in this case if the defendant wishes to justify the pleaded imputation, it needs to know exactly what amongst a range of possible meanings the plaintiff attributes to the words and images complained of. For example, in relation to par 4.1, the question might be raised whether the plaintiff wishes the imputation to be understood to mean that the plaintiff personally engaged in the stand-over tactics pleaded or, for example, organised others to so conduct themselves.

48 Senior counsel for TVW accepted that, depending on the actual words published of a plaintiff, it may be reasonable and appropriate for the plaintiff to plead an imputation that uses the same word or words that had been published by a defendant, notwithstanding that those words could be characterised as "weasel words". However, in this case it was contended that the first broadcast of the defendant complained of did not itself use such weasel words and it was therefore inappropriate for the plaintiff to employ them in the pleaded imputations.

49 By contrast, counsel for the plaintiff submitted that the first broadcast involved a publication that failed to condescend to particularity and, as such, (to coin a phrase) should be characterised as a "weasel publication". He contended that the imputation pleaded, while expressed with a certain degree of generality, was sufficiently capable of being understood and should not be struck out at an interlocutory stage of proceedings, as the issue ultimately is a matter for the trial Judge and the jury.

50 Counsel for the plaintiff drew attention to what Levine J said in Pickering v Publishing and Broadcasting Pty Ltd, unreported; SCt of NSW (Levine J); 21 June 1996 in respect of an imputation: "That the first and second plaintiffs were involved in illegal business operations." Objection was taken to the form of that imputation on the basis that by reason of the use of the words "involved" and "illegal" the imputation is so vague, so imprecise and ambiguous as to be embarrassing.

51 His Honour observed that questions would arise "not so much to my mind in relation to the word 'involved', but in relation to 'illegal business operations'". However, Levine J also found "attractive in the context" a submission to this effect:

"Where the publisher has used a 'big brush smear' has itself spoken in broad, wide, imprecise, if you like, terms, a plaintiff is entitled to plead an imputation that conveys not only the same substance in terms of breadth, but in the same or equivalent language in terms of breadth."

By way of example, it was suggested that if the word "scam" had been published of the activities of the businessman, it would not be embarrassing to plead an imputation in terms of "an illegal business operation".

52 Levine J recognised that a defendant usually wants an imputation precisely pleaded so that a defence can be precisely pleaded, or justification provided. However, his Honour further observed that:

"One can easily understand why a defendant would wish to say that, not to accept that a plea by a defendant for such an imputation is an appropriate device, would be a further step in the trend that has developed, contrary to good sense, contrary to commonsense and contrary to reality, which seeks to detach the matter complained of completely from the imputation."

53 In this regard it may be seen that Levine J was echoing what Gleeson CJ in Drummoyne Municipal Council (supra) had said about the extent to which specificity is required and that the solution will usually be found in "considerations of practical justice rather than philology".

54 There will undoubtedly be some circumstances in which a publication may truly leave it unclear and ambiguous whether the plaintiff has in fact participated in some activity, whether as a principal or an agent, whether actively or passively, whether as a leader or a follower, and so on. Where more than one meaning might be ascribed to a publication, and each of the meanings is open, it should not be considered objectionable for the plaintiff to plead each of the available imputations.

55 In light of my finding that the first broadcast arguably conveys a defamatory meaning in the sense substantially pleaded in par 4.1, the defendant's first objection is much less of substance than it is of form. For example, if the plaintiff, in substitution of the imputation pleaded in par 4.1 of the statement of claim, had pleaded words to the effect that the "plaintiff participated, either directly or indirectly, in an extortion racket ...", then, in my view, any proper basis of objection to the pleading in these circumstances would have been wholly removed.

56 In the circumstances, therefore, I consider there is a proper basis to the first objection of TVW to the imputation pleaded in par 4.1 in that no attempt has been made to make more specific the meaning or meanings complained of from the range of possible meanings that might flow from the use of the word "participant".

57 Accordingly, I would strike out par 4.1 of the statement of claim but give the plaintiff liberty to amend.

58 In relation to par 4.2 of the statement of claim, the defendant submits that the pleaded imputation that the plaintiff "was a participant" in an extortion racket is embarrassing for the same reasons given in relation to the imputation pleaded in par 4.1.

59 For the reasons expressed above in relation to the imputation pleaded in par 4.1, I consider there is merit in the defendant's objection, but that the plaintiff should have liberty to amend.

60 A further objection is taken in respect of par 4.2. It is that, assuming that the police, on the basis of the first broadcast, might be said to harbour a suspicion concerning the plaintiff in respect of the "extortion racket", the only imputation that may be pleaded is that the police have such suspicion, and not that the plaintiff has "so conducted himself as to give the police reasonable grounds to suspect that the plaintiff was a participant in an extortion racket ...". In short, the defendant submits that the latter imputation is not reasonably capable of arising from the broadcast.

61 It is also submitted that the imputation that "the plaintiff so conducted himself" fails to state the precise act or condition attributed to the plaintiff and, hence, is embarrassing.

62 In support of these latter submissions the defendant refers to, and relies upon, in particular the unreported decision of Levine J in Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10. This decision was also referred to by Hasluck J in this Court in Ronci v Nationwide News Pty Ltd [2001] WASC 239, a decision delivered on 7 September 2001.

63 In Rakhimov the broadcast included the following words spoken in respect of the plaintiff:

"He claims to be a successful businessman but the FBI think differently. They suspect him of drug trafficking and the list of his associates include some of the most dangerous criminals in the World."

64 Levine J took the opportunity, following a submission on behalf of the second defendant, to consider whether words published to the effect that a plaintiff is "suspected" of certain criminal conduct imputes the meaning that the plaintiff has "so conducted himself" as to give "reasonable grounds" for such suspicion. Levine J considered a number of earlier dicta by Hunt J in the Supreme Court of New South Wales, including Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148. In Whelan at 160C, Hunt J finally expressed the view that a statement of suspicion, without more, "is obviously capable of conveying the suggestion that the plaintiff had so conducted himself as to have warranted that suspicion".

65 In Mirror Newspapers Ltd v Harrison (supra) at 301 - 302, Mason J (with whom Wilson J agreed) accepted that, if a charge is said to have been laid against the plaintiff, the ordinary reasonable reader may conclude that the police suspected, with reasonable cause, that he is guilty. However, Gibbs CJ at 295 and Brennan J at 303 - 304 each preferred to reserve his opinion upon that question. The fifth member of the Court (Aickin J) passed away prior to the handing down of the decision.

66 In Rakhimov Levine J, at par 21, observed that, without a concession concerning the point, "I do not agree that the 'compressed' statement of suspicion is 'obviously capable' of conveying the suggestion as to conduct as a fixed rule of universal application." His Honour acknowledged in par 22 that a particular publication could be understood as stating specified conduct, on the one hand, and the existence of suspicion arising therefrom, on the other; or sufficient material that identifies the conduct or behaviour as the basis for the suspicion.

"The evolution of the imputation in the form he had pleaded or in a similar form (the plaintiff so conducted himself/so misconducted himself) has in my respectful view been the result of a pre-occupation with technical matters of form (active passive voice) and with the application of the test ("the real test") namely, what would the defendant have to prove, which test, in my view, is not a sole test but no more than an available test. The evolution has been at the expense of commonsense in regard to the fundamental question of what the matter complained of 'means'".

68 Levine J at pars 24 and 25 questioned the grammatical sense of the form of words, "a plaintiff has so conducted himself ...", by asking what precisely does it mean. He expressed the view that this "evolved imputation" is neither precise, crisp, clear or in ordinary reasonable English. His Honour expressed the opinion that the statement in a publication that "Mr Rakhimov is suspected by the FBI of drug trafficking", is a statement which can be pleaded in the passive voice and contain the substance of the sting, namely, that he is suspected by the FBI of drug trafficking.

69 Levine J further expressed the view that a statement of suspicion does not always infer that the suspicion is based on conduct. His Honour stated at par 27:

"I do not accept the proposition encapsulated in the first basis argued for the plaintiff that the ordinary reasonable reader as a matter of direct inference from the statement of the fact that the FBI's suspicion could conclude that suspicion is based on conduct. When one thinks about it, it is pure speculation and not a matter of natural inference. An ordinary reasonable viewer could consider any number of bases upon which the FBI harboured its suspicion of the plaintiff: intelligence gathering based upon multiple layers of hearsay, for example. I am not persuaded that in every case the statement in the passive voice that someone is suspected cannot constitute a properly formed imputation by reason of not attributing a 'condition'. I am not persuaded that someone being 'suspected' leads inevitably and always to an inference that the object of the suspicion had conducted himself or 'behaved' in a way that leads to it. There could be many reasons why that person is suspected."

70 Accordingly, Levine J, at par 28, considered that in the case of words raising suspicion, it would be open to a plaintiff to plead, in a case like Rakhimov, that, "The plaintiff is suspected by the FBI of drug trafficking". His Honour expressed the view that, "This is a statement of a condition of the plaintiff which could lower him in the estimation of ordinary, right-thinking members of the community", and therefore would be a defamatory meaning.

71 Levine J, at par 30, expressly avoided remarking upon what he termed "extraordinarily interesting questions as to the practicalities of the defendant justifying an imputation so framed or the evidentiary difficulties that might confront a plaintiff in asserting that it was false".

72 In reliance on Rakhimov, therefore, senior counsel for TVW submits it is not open to the plaintiff, in a case such as this where it is said there are only grounds of "suspicion" in respect of an "extortion racket", for the imputation to be pleaded in respect of "conduct", as it has been in par 4.2. If the defendant is right in this submission, it would be incumbent on the plaintiff to plead that, or to the effect that: "The plaintiff is suspected by the police of participating, directly or indirectly, in an extortion racket ...".

73 It is clear that, in an appropriate case, as acknowledged by Levine J in Rakhimov at pars 21 and 22, depending on the terms of the publication, there might be reference to "conduct" or "behaviour" which will support an imputation with the form of words pleaded in par 4.2.

74 In Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 8 December 1997, the Full Court dealt with imputations said to arise from a letter written by the appellant to the police fraud squad, a copy of which was subsequently distributed by him at a meeting of a trade union branch council. The letter purported to be an official complaint about the conduct of the plaintiff, the union secretary, and referred to an occasion three years earlier, when it appeared to the branch council that there was "a prima facie case of criminal misconduct by our branch secretary".

75 The author of the letter went on to say that the branch secretary was "charged with offences, which for one reason or another, were subsequently not proceeded with".

76 The letter was said to contain an imputation that the union secretary was guilty of criminal misconduct in the conduct of his office. The words were also said to convey a second imputation that the branch council was, at some time in the past, of the opinion that the plaintiff had a case to answer for criminal misconduct.

77 Counsel for the plaintiff in this case relies upon the dicta at page 14 of the judgment of the Court in Corse v Robinson in support of the proposition that an allegation of suspicion carries with it the assertion that the person so suspected has "so conducted himself" as to have warranted the suspicion. Thus, counsel contends that there is a conflict on this point of imputation between the decision of the Full Court of this State in Corse v Robinson and that of Levine J at first instance in Rakhimov.

78 As Hasluck J said in Ronci v Nationwide News Pty Ltd (supra) at page 9:

"The Full Court [in Corse v Robinson] noted that at the heart of the case was the distinction between a statement of mere suspicion and a statement imputing guilt of criminal conduct. The Full Court held as to the first imputation that the ordinary reasonable reader would have inferred from the words that the appellant believed that the respondent was guilty of criminal misconduct and that he was going to endeavour to persuade the police investigators to that point of view. Accordingly, the Full Court was not prepared to uphold the appeal on the ground that the learned trial Judge had erred in law in finding that the words complained of were capable of bearing the imputation pleaded, that is to say, that the respondent was guilty of criminal misconduct in the conduct of his office.

In dealing with the second imputation, the Full Court noted that a plea which sets up an imputation of mere suspicion, without more, is not capable of carrying a defamatory meaning. However, to say that someone believed that there was a 'prima facie' case brings with it an assertion that the person has so conducted himself as to give reasonable grounds for the other person to hold the suspicion. However, it is necessary to support the imputation by pleading the precise act or condition asserted of or attributed to the alleged wrongdoer. One way to test it, is to consider what must be proved in order to justify the truth of the imputation insofar as it concerns the alleged wrongdoer. The Full Court held that, in the circumstances of the case before it, the second imputation had failed to identify the precise act or condition complained of.

In the course of its reasoning, the Full Court appeared to approve the notion to be found in Jackson v John Fairfax & Sons Ltd (supra) and a number of earlier cases that that second imputation was not capable of being defamatory if it was a statement of mere suspicion and no more. If it extended beyond mere suspicion and contained the assertion that the suspicion was held on reasonable grounds which themselves objectively lead to a conclusion that the person charged is probably guilty of the crime charged, then it could be regarded as defamatory."

79 I generally agree with what Hasluck J stated in Ronci as to the relevant principles to be derived from the reasons of the Full Court in Corse v Robinson.

80 In this case, counsel for the plaintiff, as I understood it, contended that the decision of the Full Court in Corse v Robinson supported the view that a statement of suspicion conveyed the imputation that a person had "so conducted himself" as to warrant the suspicion. Like Hasluck J in Ronci v Nationwide News Pty Ltd, I am not convinced that the dicta of the Full Court in Corse v Robinson stands for the unqualified proposition advanced by counsel for the plaintiff in this case.

81 In Ronci, Hasluck J, at par 56, went on to state as follows:

"In my view, it is unnecessary for me to attempt to resolve a supposed conflict between the reasoning in the two cases just mentioned. Both cases acknowledged that if the words complained of convey to the mind of an ordinary reasonable reader nothing more than a statement of mere suspicion, this will not be sufficient. In the present case, however, it appears from the summary of the plaintiff's argument that I have just outlined, that there are circumstances referred to which, when added to the assertion that the plaintiff has been questioned at length by the police, are arguably capable of conveying defamatory meaning of the kind contended for in the imputations pleaded in pars 5.1 to 5.3. The reader was informed that the deceased was not a suicidal type and had seemed fine to his mother shortly before his death.

It seems to me that, unlike the assertions in the Rakhimov case, the suspicion raised by the words complained of is arguably referable to the plaintiff's conduct because she was said to have been present at the death and is the party who was subsequently questioned at length by the police. One does not find such a link between the suspicions of the FBI in the Rakhimov case and some particular event, such as questioning, which points to the plaintiff's conduct.

I take account of the observations of Levine J concerning the use of the passive voice in regard to a pleading of this kind. It therefore seems to me that it is open to the plaintiff to advance a case based upon an imputation pleaded in the form set out in par 5.3."

82 In Ronci, par 5.3 was in the following terms:

"5.3 In the alternative to par 5.1 above, the plaintiff is suspected on reasonable grounds of killing Geoffrey Higgins."

83 It is therefore relevant first to ascertain whether there is a context that gives rise to a defamatory meaning arising from conduct or behaviour or other circumstances that support the type of imputation pleaded in par 4.2. In relation to the present application, the question is whether it can be said that the first broadcast merely imputes suspicion of the plaintiff being (generally speaking) "a participant in an extortion racket", or whether there are circumstances referred to in the broadcast which, when added to the assertion giving grounds to suspicion, are arguably capable of conveying a defamatory meaning substantially of the kind pleaded in par 4.2.

84 Paragraph 4.2 is pleaded in the alternative to par 4.1. I have already found that it is arguable that the first broadcast, generally speaking, may give rise to the imputation pleaded in par 4.1, that is to say, that the plaintiff participated in the "extortion racket".

85 As an alternative, I consider it is also open to argue that the first broadcast gives rise to the imputation pleaded in par 4.2 - that is, the "conduct" imputation. When one has regard to the words that appear in items 6, 7, 8, 9 and 10 of par 3 of the statement of claim, together with the reference in items 11, 12 and 13 to the effect that "an associate of" the plaintiff "used stand-over tactics to demand money from the shop owner", as well as the words the subject of items 15 and 16 of par 3 of the statement of claim, the first broadcast as a whole arguably conveys the meaning that, by reason of his conduct, the police have reasonable grounds for the suspicion pleaded in par 4.2 in respect of the plaintiff.

86 In those circumstances, it seems to me, as it did to Hasluck J in the circumstances of Ronci v Nationwide News Pty Ltd (supra), that there are circumstances in the words and images published as part of the first broadcast which, when added to the imputation conveyed by the first broadcast that the plaintiff is suspected by the police of participation in the "extortion racket", which arguably convey the defamatory meaning substantially pleaded in par 4.2.

87 However, as noted above, in relation to the use of the phrase, "was a participant in" in par 4.2, I consider that the form of imputation pleaded is embarrassing and for that reason the pleading should be struck out. I consider the plaintiff should be given liberty to amend.

88 The plaintiff also complains about a second broadcast, which is pleaded in par 7 of the statement of claim. It is alleged that at 7.30 pm on 1 November 2001, in a Channel 7 television news item, the defendant published of and concerning the plaintiff, the following words and images:

90 Paragraph 8 of the statement of claim pleads that the second broadcast referred to and was understood to refer to the plaintiff. This is not contested for the purposes of this application.

91 In par 9 of the statement of claim, the plaintiff pleads that -

"9. The second broadcast meant and was understood to mean in its ordinary and natural and ordinary meaning that the plaintiff had so conducted himself as to give the police reasonable grounds to suspect that he was guilty of extortion."

92 TVW objects to the imputation pleaded on what might be called the Rakhimov ground. In short, it is submitted that, if the second broadcast conveyed the meaning that the plaintiff was suspected of extortion, then, without more, an imputation that "the second broadcast in its ordinary and natural meaning so conducted himself as to give the police reasonable grounds to suspect he was guilty of extortion" cannot be sustained. For the reasons set out above, I accept this submission. That is to say, an allegation of suspicion, without more, does not convey the meaning that there are necessarily reasonable grounds for the suspicion.

93 In such circumstances, it is necessary to determine whether arguably there are circumstances referred to in the second broadcast which, when added to the imputation of suspicion of extortion, are capable of conveying the defamatory meaning pleaded in par 9.

94 Paragraph 9, as drafted, in effect pleads that in part the second broadcast conveyed the imputation that the plaintiff was suspected by the police of being guilty of extortion. There can be no doubt that that imputation can be drawn from the second broadcast. The published words are few. The first sentence pleaded is that "Perth police claim they've busted an extortion racket". The next pleaded sentence, which was spoken while the video picture circled and highlighted the face of the plaintiff, was that "One man faced court today in connection with claims that three men demanded money from a shop owner". There can be little doubt that the words and imaged conveyed the meaning that the plaintiff is one of three men suspected of having demanded money from a shop owner; that is to say, that he was suspect of being part of the "extortion racket" which the police claimed they had "busted".

95 However, apart from those words and images, there is no other circumstance specifying conduct from which it is possible to plead that the second broadcast conveyed an imputation concerning the conduct or behaviour of the plaintiff in the terms alleged in par 9 of the statement of claim.

96 In those circumstances, I consider there is merit in the objection of TVW that the imputation pleaded in par 9 of the statement of claim does not arise from the second broadcast. However, I consider that the plaintiff should be granted liberty to amend the imputation pleaded.

97 I will hear from the parties on the question of what orders are now appropriate.