First matter complained of
6 The objection to form is founded upon the decision of Hunt J in Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 421: by way of example the words "when a member of the Tow Truck Industry Advisory Council, a body set up by the government to reform the tow truck industry" are objected to on the basis that they add nothing to, nor qualify in any way, the sting of the imputation and should be deleted.
7 For the plaintiff it is conceded that the principle as enunciated by Hunt J is correct but that it has no application in the present case. I accept the submission of the plaintiff in regard to this question of form as it relates to both imputations said to arise from the first matter complained of. In my view it certainly adds to the sting to identify the plaintiff as a member of the body referred to in the context of the whole of this article.
8 It is further contended that the imputations suffer the traditionally asserted defect in not identifying "corrupt" or, to put it another way, the balance of the imputation does not explain the concept vis-à-vis the plaintiff. With this I must disagree. Whilst I acknowledge that if the complained of clause was omitted, merely to say that the plaintiff employed the criminal and was thus corrupt would not, as such, be proper in form in that it would fail to disclose the nature of the corruption or any suggestion of knowledge. As a whole, however, the imputation is adequately clear.
9 The same considerations relate to the second imputation founded in the first matter complained of.
10 In the light of the matter complained of and viewed discretely as an imputation I do not consider the plaintiff to have offended what was enunciated by the Chief Justice in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 especially at 138, or what was said by Hunt J in Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148 at 152 (see also Hall & Ors v Gould [2002] NSWSC 359, Levine J, at paragraph [13]).
11 A further question of form, especially in relation to the second imputation, is argued to the effect that the word "collusive" is ambiguous and imprecise. Reference is made to the Oxford English Dictionary's definition involving "fraud" and "trickery". I am of the view that there are parts of the matter complained of as well as the overall theme which support the proposition of "collusion" and a deal being done between the plaintiff and the NRMA in secret. By way of example, the plaintiff is referred to as the "favoured operator" for the NRMA, those parts of the matter which refer to the absence of information being passed to the general manager of the Tow Truck Authority and the notion of "surprise" in relation to the announcement of the deal.
12 As to the question of capacity of the matter complained of to carry these imputations the defendant is confronted by an article to which the attributes of the ordinary reasonable reader, as a person who engages in "loose thinking" and reads between the lines, will be particularly relevant. The prominence given to the plaintiff in the opening parts of the matter complained of set a theme: the article proceeds to deal with the plaintiff's employment of the convicted criminal and, to use as neutral a word as possible, "an arrangement" being made with the NRMA. Everything, the ordinary reasonable reader would understand, has been referred to the Independent Commission Against Corruption. That is the thrust of the whole matter complained of. Refined distinctions between the Tow Truck Authority and the Advisory Council could play no part, arguably, in the ordinary reasonable reader's conclusions as to what the defendant has published in the context of the two imputations pleaded.
13 The defendant's complaints in relation to both form and capacity with respect to the first matter complained of fail.