New South Wales Court of Appeal CITATION: Australian Broadcasting Corporation & Anor. v. Hodgkinson [2005] NSWCA 190 HEARING DATE(S): 11 May 2005 JUDGMENT DATE: 15 June 2005 JUDGMENT OF: Hodgson JA at 1; McColl JA at 42; McClellan AJA at 43 DECISION: Appeal dismissed with costs CATCHWORDS: DEFAMATION - Pleading - Contextual imputation - Whether rhetorical - Whether sufficiently specific and precise - Whether less specificity and precision required than for plaintiff's imputations - Applicability of considerations of practical justice - Relevance of particulars of facts and circumstances relied on to establish truth LEGISLATION CITED: Defamation Act 1974 ss.7A, 16 Ainsworth v. Burden [2000] NSWSC 105 Amalgamated Television Services Pty. Ltd. v. Marsden (1998) 43 NSWLR 158 Drummoyne Municipal Council v. Australian Broadcasting Commission (1990) 21 NSWLR 135 Hansen v. Border Morning Mail, unreported, 24/10/86 CASES CITED: John Fairfax Publications Pty. Ltd v. Blake [2001] NSWCA 434, 53 NSWLR 541 McBride v. Australian Broadcasting Commission [2000] NSWSC 747 Monte v. Mirror Newspapers Ltd. [1979] 2 NSWLR 663 Morris v. Newcastle Newspapers Pty. Ltd. (1985) 1 NSWLR 260 Whelan v. John Fairfax Pty. Ltd. [2002] NSWSC 1028, 56 NSWLR 89 Australian Broadcasting Corporation - 1st appellant PARTIES: Norman Swan - 2nd appellant Suzanne Hodgkinson - respondent FILE NUMBER(S): CA 40579/04 Ms. C.E. Adamson SC with Mr. A.T.S. Dawson for appellants COUNSEL: Mr. R.G. McHugh for respondent Stephen Barry Collins, ABC Legal Services, Ultimo for appellants SOLICITORS: Corrs Chambers Westgarth, Sydney for respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 8645/02 LOWER COURT JUDICIAL OFFICER: Gibson DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40579/04 DC 8645/02 HODGSON JA McCOLL JA McCLELLAN AJA Wednesday 15 June 2005 AUSTRALIAN BROADCASTING CORPORATION & ANOR. V HODGKINSON Headnote FACTS 1 In April 2002, the appellants transmitted three broadcasts of "The Science Show" relating to an investigation into scientific and financial misconduct at the University of New South Wales involving the respondent's husband. The broadcasts included interviews and investigative journalism regarding allocation of grant funds, fraudulent academic misconduct and undeserved credit for scientific publications. 2 The respondent claimed damages for defamation from the appellants. Pursuant to s.7A of the Defamation Act 1974, a jury found that three of the ten imputations pleaded by the respondent were conveyed by the broadcasts and were defamatory. The appellants' defence under s.16 of the Act relied on numerous contextual imputations, which the respondent sought to have struck out. 3 The primary judge ordered that the first contextual imputation, "That the plaintiff is not a fit and proper person to supervise other scientists", be struck out with leave to re-plead on the ground that it was rhetorical. The appellants appealed, and the respondent filed a Notice of Contention contending that the material was not capable of 'making' the contextual imputation struck out by the primary judge. HELD (1) It is doubtful that the broadcasts conveyed the contextual imputation in question, as the material transmitted did not deal directly with the fitness and propriety of the respondent to supervise students. However, the test for capacity to convey an imputation is undemanding, and accordingly the broadcasts passed this test and the Notice of Contention failed. (2) The question whether a contextual imputation is sufficiently precise and specific raises considerations of "practical justice": Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. It may be unjust to allow a defence on the basis of contextual imputations to range widely over alleged discreditable conduct that has nothing to do with matters raised by the subject material. A contextual imputation must be formulated so that facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material: John Fairfax Pty Ltd v Blake (2001) 53 NSWLR 541. (3) The expression "fit and proper" may in some contexts be sufficiently specific and precise: Ainsworth v Burden [2000] NSWSC 105. However, given the huge range of conduct that could make a person not a fit and proper person to supervise other scientists, and the fact that proving the contextual imputation involves the appellants putting a case that would be substantially at odds with the case they put to the jury, greater precision and specificity in the subject contextual imputation is necessary to meet the requirements of practical justice. ORDERS 1. Appeal dismissed with costs. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40579/04 DC 8645/02 HODGSON JA McCOLL JA McCLELLAN AJA Wednesday 15 June 2005 AUSTRALIAN BROADCASTING CORPORATION & ANOR. V. HODGKINSON Judgment 1 HODGSON JA: On 18 June 2004, Gibson DCJ ordered that a contextual imputation, pleaded by the appellants to a claim in defamation brought by the respondent, be struck out with leave to re-plead. The appellants sought leave to appeal from that decision, and leave was granted on 8 November 2004. The Court has now heard argument on the appeal. CIRCUMSTANCES 2 The proceedings arose out of three broadcasts of "The Science Show" on ABC Radio, transmitted respectively on 13 April 2002, 15 April 2002 and 20 April 2002. 3 The first broadcast was introduced as "a major investigation into scientific and financial misconduct at the University of New South Wales"; and it went on to make allegations of serious misconduct against the respondent's husband Professor Hall. The second broadcast was a repeat of the first. The third broadcast began with a quick reprise of what was in the first broadcast, and continued with a discussion of responses to the first broadcast. 4 The respondent brought proceedings in this District Court, claiming damages for defamation. 5 The Statement of Claim alleged that the first broadcast conveyed the following imputations defamatory of the respondent: (a) The plaintiff is a scientist who has committed scientific fraud. in the alternative to (a). (b) The plaintiff is a scientist who has committed scientific misconduct so extreme that it can only be called fraud. (c) The plaintiff exploited a PhD student for free labour. (d) The plaintiff participated in a fraud on the National Health and Medical Research Council by deliberately making false statements in her curriculum vitae submitted as part of a $130,000 per annum grant application. (e) The plaintiff, a scientist, stole the credit for a scientific paper from 6 other scientists. (f) The plaintiff, a scientist, committed scientific misconduct by passing herself off as an author of a number research papers when she knew that she had not contributed anything to those papers. (g) The plaintiff is a scientist who falsely claimed a patent to which she was not entitled. (i) The plaintiff misused taxpayers funds by funding her own second rate research lab out of grants intended for transplantation research. (j) Omitted. (l) The plaintiff conspired with her husband to commit financial fraud on the National Health & Medical Research Council. (m) The plaintiff conspired with her husband to commit scientific fraud. 6 The Statement of Claim also alleged that the second broadcast conveyed the same imputations; and it alleged that the third broadcast conveyed the following imputations defamatory of the appellant: (a) The plaintiff committed scientific misconduct so severe that it could be construed as fraud. (b) The plaintiff committed scientific misconduct by the misrepresentation of research results. (c) The plaintiff committed scientific misconduct by the presentation of experiments which had never been done. (d) The plaintiff committed scientific misconduct by submitting papers to prestigious journals which included unacknowledged data which had already been published up to 17 years earlier. (e) The plaintiff committed scientific misconduct by including fraudulent data and highly inaccurate curriculum vitae in a grant application to the National Health & Medical Research Council. (f) The plaintiff misappropriated taxpayer sourced research funds. 7 The appellants conceded that the third broadcast did convey the imputations alleged, and that they were defamatory of the respondent. However, they denied that the first and second broadcast conveyed the alleged imputations, and the issues raised by that denial went for trial by a jury pursuant to s.7A of the Defamation Act 1974. The jury found that the imputations identified as (e), (f) and (i) were conveyed and were defamatory of the respondent, but that the imputations identified as (a), (b), (c), (d), (g), (l) and (m) were not conveyed. 8 The appellants' defence, put on after the jury decision, relied on defences of truth, contextual truth and qualified privilege. 9 The defence of contextual truth as regards the first and second broadcasts relied on the following contextual imputations: (a) The plaintiff is not a fit and proper person to supervise other scientists. (b) The plaintiff fostered a deceptive appearance of her and her laboratory's scientific merit in order to enhance her prospects of obtaining grant funds. (c) The plaintiff, without due regard to her husband's conflicting personal and professional interests, was the knowing beneficiary of her husband's allocation of grant funds to her laboratory which allocation she knew was unauthorised. (d) The plaintiff co-operated with her spouse, Professor Bruce Hall, in his serious scientific misconduct; (e) The plaintiff acquiesced in the serious scientific misconduct of her spouse, Professor Bruce Hall. 10 The defence of contextual truth in relation to the third broadcast relied on the following contextual imputations: (a) The plaintiff is not a fit and proper person to supervise other scientists. (b) The plaintiff fostered a deceptive appearance of her and her laboratory's scientific merit in order to enhance her prospects of obtaining grant funds. (c) The plaintiff, without due regard for her husband's conflicting personal and professional interests, was the beneficiary of authorship of scientific papers which she knew was not merited. (d) The plaintiff co-operated with her spouse, Professor Bruce Hall, in his serious scientific misconduct. (e) The plaintiff acquiesced in the serious scientific misconduct of her spouse, Professor Bruce Hall. 11 The respondent applied to have the contextual imputations struck out. The primary judge struck out contextual imputation identified as (a) as pleaded in relation to all broadcasts, and she dismissed the application as regards other contextual imputations. The primary judge gave the following reasons for striking out the contextual imputation identified as (a): This imputation is objected to on the basis that it is rhetorical. It is not necessary to recite the many cases in which the words "fit" or "unfit" and "proper" or "improper" have been held to be rhetorical. This is a well-known principle of law and I accordingly strike out this imputation with leave to re- plead. This means I need not consider the "swamping" point (Hepburn -v- TCN Channel 9 Pty Limited [1984] 1 NSWLR 396 at 400) for this imputation until such time as the imputation is re-drafted. I have considered the "swamping" argument for the remaining imputations further below. 12 Following this decision of the primary judge, the proceedings have been transferred to the Supreme Court. GROUNDS OF APPEAL 13 The appellants rely on the following grounds: 1. Her Honour Judge Gibson erred in failing to provide proper reasons for her decision. 2. The Defendants' contextual imputation (a) is not rhetorical. 3. There was no basis upon which it was appropriate for the Defendants' contextual imputation (a) to be struck out. 14 The respondent had put on a Notice of Contention, relying on the following grounds: 1 The first matter complained of is not reasonably capable of "making" (within the meaning of section 16 of the Defamation Act) the contextual imputation pleaded in paragraph 4(a) of the Notice of Grounds of Defence filed on 11 September 2003 ("the Defence"). 2 The second matter complained of is not reasonably capable of "making" the contextual imputation pleaded in paragraph 4(a) of the Defence. 3 The third matter complained of is not reasonably capable of "making" the contextual imputation pleaded in paragraph 21(a) of the Defence. DEFAMATION ACT 15 The provisions of the Defamation Act relevant to this appeal are ss.7A and 16, which are as follows: 7A Functions of judge and jury (1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning. (2) If the court determines that: (a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or (b) the imputation is not reasonably capable of bearing a defamatory meaning, the court is to enter a verdict for the defendant in relation to the imputation pleaded. (3) If the court determines that: (a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and (b) the imputation is reasonably capable of bearing a defamatory meaning, the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory. (4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and (b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. (5) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section. 16 Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff. SUBMISSIONS 16 Ms. Adamson SC for the appellants submitted that the case presumably relied on by the primary judge, namely Morris v. Newcastle Newspapers Pty. Ltd. (1985) 1 NSWLR 260, did not support her decision, first because it did not decide that the words "fit" and "proper" are rhetorical, and second because it did not decide that the circumstance that an imputation or words in an imputation are rhetorical justifies the striking out of the imputation. In that case, which dealt with an imputation alleged by a plaintiff, the plaintiff admitted that the implication in question was intended to be no more than a rhetorical flourish, and this assisted Hunt J to reach the conclusion that it should be struck out because it was expressed with insufficient precision and did not differ in substance from other imputations. 17 Ms. Adamson referred to Ainsworth v. Burden [2000] NSWSC 105, where a defendant sought to strike out three imputations alleged by the plaintiff, namely: (a) That the plaintiff was not a fit and proper person to be involved in the management of a company licensed in relation to poker machines; (b) That the plaintiff was not a fit and proper person to have a financial interest in a company licensed in relation to poker machines; (c) That the plaintiff was not a fit and proper person to have a financial interest in a company licensed to be an approved amusement device dealer. Simpson J in that case held to the effect that in their context, which was very different from the context in Morris , the words "not … fit and proper" were sufficiently precise, and her Honour was not satisfied that the imputations did not differ in substance from each other. 18 Morris and Ainsworth dealt with imputations relied on by plaintiffs. Ms. Adamson submitted that there was less precision required in relation to contextual imputations relied by a defendant. She referred to Hansen v. Border Morning Mail (unreported 24/10/86), where Hunt J pointed out that a plaintiff's imputation identifies the plaintiff's cause of action, and precision is required so that the defendant can plead to it and knows what case it has to meet; whereas a plaintiff is required to do no more than join issue on a defendant's contextual imputation and it is the defendant who must prove its truth, and the plaintiff can obtain particulars to enable it to know the case it has to meet. Ms. Adamson submitted that the continued correctness of this approach is supported by the decision of the majority in John Fairfax Publications Pty. Ltd. v. Blake [2001] NSWCA 434, 53 NSWLR 541, especially in par.[5], [16] and [19] in the judgment of Spigelman CJ. 19 Ms Adamson submitted that there was no unfairness in the level of generality in this case. Particularly in the case of a broadcast as opposed to written material, what is conveyed and understood is a general impression, not necessarily closely tied to the actual words used: see Monte v. Mirror Newspapers Ltd. [1979] 2 NSWLR 663 at 678, Amalgamated Television Services Pty. Ltd. v. Marsden (1998) 43 NSWLR 158 at 165-6. 20 Mr. McHugh for the respondent submitted that what was said in Hansen was no longer applicable, because it did not refer to the requirements of the Supreme Court Rules Pt.67 r.15B that each contextual imputation be specified (and see McBride v. Australian Broadcasting Commission [2000] NSWSC 747 at [48]-[52]), and (more importantly) because Hansen was decided before the s.7A procedure was introduced. The significance of this was that, before the introduction of the s.7A procedure, there was an inhibition on defendants pleading unduly broad contextual implications from the circumstance that plaintiffs could "plead back" such imputations by amending the Statement of Claim, and also, whether this was done or not, at least both the plaintiff's imputations and the defendant's contextual imputations were determined at the same time and by the same tribunal. Mr. McHugh submitted that Blake at [17]-[19] in fact confirmed that defendant's contextual imputations should meet no lesser requirement of specificity than plaintiff's imputations, with questions of appropriate specificity and appropriate precision being determined on the basis of "practical justice", in accordance with Drummoyne Municipal Council v. Australian Broadcasting Commission (1990) 21 NSWLR 135 at 137. 21 Mr. McHugh submitted that considerations of practical justice in this case meant that the contextual imputation was expressed with insufficient precision and specificity. The appellants were in substance seeking to defeat the respondent's claim by alleging a broad and general contextual imputation, the conveying of which by the material was in substance contrary to the case the respondent had successfully put to the jury in relation to the respondent's imputations. In particular, in so far as the challenge to contextual imputation was based on anything apart from the respondent's surviving imputations and the appellants' other contextual imputations, it depended on an association of the respondent with serious imputations made against her husband, in a way which the jury must have been taken to have rejected, in accordance with submissions put to it by the appellants. Even if, as stated by Levine J in Whelan v. John Fairfax Pty. Ltd. [2002] NSWSC 1028, 56 NSWLR 89 at [20], the question of the capacity of material to convey a contextual imputation had to be approached afresh, nevertheless the way the case had been conducted before the jury and the findings of the jury was relevant to the question of practical justice. In this case, it would be unfair if the appellants were permitted to rely on a very general imputation, which was as a matter of substance inconsistent with the case it successfully put to the jury, so as to be able to rely on wide ranging facts and circumstances remote from the broadcast with a view to "swamping" the respondent's imputations. 22 The contextual imputation, he submitted, was imprecise because in this case, unlike Ainsworth, there was no context to give sufficient precision to the meaning of "not … fit and proper": those words could cover a huge range of matters, both as to type and degree of seriousness. 23 Mr. McHugh submitted that it had been put to the primary judge that the contextual imputation was rhetorical, and insufficiently specific in that it did not specify the standard or criteria by which fitness and propriety was to be measured. The primary judge in substance accepted this argument; and particularly having regard to the considerations put forward above, she was not shown to be wrong in doing so. 24 Mr. McHugh supported the Notice of Contention by going through the particular passages of the broadcast relied on by the appellants as supporting the contextual imputation, and submitting that the broadcasts could not carry the contextual imputation. In particular, he submitted, there was nothing in the first broadcast to criticise the respondent's supervision of students. 25 Ms. Adamson in reply again referred to Monte and Marsden, to support the contention that the circumstance that the material was in transient broadcasts supported the generality of the contextual imputation. The relevant restrictions on the width of the contextual imputation were that it must be conveyed, must not be ambiguous, must fall within the words "another imputation" in s.16, and must not be an imputation rejected by the jury. It would absurd to say the appellants could not change their submissions from those put to the jury, particularly in circumstances where, in relation to the imputations found in favour of the respondent by the jury, the appellants' submissions were rejected by the jury. Ms. Adamson submitted that the range of matters that could amount to unfitness and/or impropriety was appropriately limited by the reference to supervision of other scientists. 26 On the Notice of Contention, Ms. Adamson submitted that the threshold for capacity was low, especially in a transient broadcast. The broadcasts were well capable of conveying that the respondent had been involved in a course of conduct extending over years, which indicated that the respondent did not set the kind of example appropriate for students of an institution funded by the public, who would need to be protected against her methods and her approach. DECISION 27 I find it convenient to consider first the Notice of Contention. 28 In my opinion, even though the first broadcast conveys various matters to the discredit of the respondent as found by the jury, and even if it also conveys other matters to the discredit of the respondent, such as the appellants' other contextual imputations, it is very doubtful that it conveys the contextual imputation in question. Matters to the discredit of the respondent that are or may be conveyed do not appear directly or obviously to point to the issue of her fitness and propriety to supervise other scientists: the bearing of these matters on this issue, if any, may well be something that needs to be supplied by way of indirect inference by the listener. 29 The view that the broadcast has no direct bearing on the fitness and propriety of the respondent to supervise other scientists would be all the more strongly supported if one could have regard to the decision of the jury to any extent beyond that it found some particular imputations not to be conveyed. 30 However, the test for capacity to convey an imputation is undemanding; and I agree with Levine J in Whelan at [20] to the extent that I do not think it appropriate, at the stage of deciding capacity, to attempt to draw inferences as to the basis on which the jury reached its decision. Further, there is force in the consideration that the matters to the discredit of the respondent conveyed by the first broadcast would at least convey that she does not set an appropriate example to persons under her supervision, and convey this while referring to her in her capacity as a supervisor of scientists. Accordingly, I think the first broadcast does pass the undemanding test; and the same is true a fortiori of the second broadcast. 31 It is not suggested by the respondent that the subject contextual imputation, if conveyed, is not "another imputation" within s.16; that is, that it is not different in substance from the respondent's imputation. But in my opinion, the question of whether the contextual imputation is sufficiently precise and specific raises considerations of "practical justice" as indicated by Drummoyne; and in this regard, it is relevant to consider to what extent this contextual imputation is based on material that supports it, otherwise than through the respondent's imputations and the appellants' other contextual imputations. If it is not supported otherwise than by inference from these other imputations, which the appellants can address directly, it could well be unjust to allow the appellants to defend on the basis of this contextual imputation by ranging widely over alleged discreditable conduct of the respondent having nothing to do with matters raised by the broadcast. 32 It is submitted for the appellants that the majority decision in Blake means that less precision and specificity is required for a defendant's contextual imputation than for a plaintiff's imputation. In my opinion, Blake does not support such a general proposition. 33 The question in that case concerned the contextual imputation that the plaintiff assaulted someone; and the difficulty lay in the huge range of seriousness of conduct that could be involved, including technical assaults of minor contact, threats of various degrees, and batteries of various degrees. The majority view was that the place within this range of the facts, matters and circumstances relied on for the truth of the contextual imputation did not have to be spelt out in the contextual imputation itself, because the relevant damage to reputation against which the question of "further damage" within s.16 was to be assessed could be gathered from the facts, matters and circumstances themselves. That view achieved substantial justice in that case, because those facts, matters and circumstances were at the lower end of the relevant range of seriousness of conduct. 34 In my opinion, in other cases the approach of the majority in Blake would if anything require greater precision and specificity for a defendant's contextual imputation. To take the contextual imputation under consideration here, a defendant could, in order to show that a person was not a fit and proper person to supervise other scientists, rely on facts, matters and circumstances such as that the plaintiff had supplied prohibited drugs to students or even murdered students. It would be absurd to suggest that the injury to reputation against which the question of further injury to reputation was to be assessed under s.16(2)(c) was to be gathered from those facts, matters and circumstances; but in my opinion, the approach of the majority in Blake would mean that in such a case, the relevant injury to reputation would be at the outer limit of the injury that could be caused by this rather generally and imprecisely worded contextual imputation. And that could be disproportionate to what is actually conveyed by the material. So I think Blake requires that a contextual imputation be formulated so that facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff. 35 There is a huge range of conduct, ranging through various degrees of incompetence, dishonesty and criminality, that could make a person not a fit and proper person to supervise other scientists. It is true that the particulars of facts, matters and circumstances relied on to establish truth, as presently specified, do not extend beyond matters referred to in the broadcast; but if the contextual imputation is reinstated, the particulars could be amended to include matters having nothing to do with the broadcast, anywhere within the huge range referred to above. 36 These considerations are exacerbated in this case by the circumstances that, for the appellants to make out that the contextual imputation in question is conveyed, they will be putting a case that will be substantially at odds with the case they put to the jury, and had accepted by the jury by its rejection of many of the respondent's imputations. The two-stage procedure of s.7A has been prescribed by the legislature, and this does require that a defendant's contextual imputations be ruled on at a different time and by a different tribunal from the plaintiff's imputations; and this can be changed only the legislature. However, courts can and should strive to minimise injustices that can arise from this procedure. 37 In my opinion, for those reasons practical justice requires greater precision and specificity than displayed by the subject contextual imputation. 38 It will be apparent from what I have said that I do not accept that problems associated with lack of precision and specificity in the pleading of contextual imputations can always be overcome by the provision of particulars. It is true that particulars of a contextual imputation can alert the plaintiff to the case it has to meet; but this does not overcome the unfairness of allowing the particulars to extend to matters in the plaintiff's life that go beyond what is fair and reasonable having regard to the content of the material complained of and the imputations relied on by the plaintiff. 39 I agree with Ms. Adamson that Morris does not decide that the words "fit" and "proper" are rhetorical, and that it does not decide that anything that is rhetorical should be struck out. Rather, the circumstance that an imputation or words in it are rhetorical may suggest that the imputation is expressed with insufficient precision or does not differ in substance from other imputations. I also accept, as suggested by Ainsworth, that the expression "not … fit and proper" may in some contexts be sufficiently specific and precise. However, in my opinion Hansen can no longer be regarded as supporting a general proposition that less precision and specificity is required for contextual imputations than for plaintiff's imputations, particularly having regard to the subsequent introduction of the s.7A procedure and its implications. The considerations of practical justice referred to in Drummoyne are applicable in each type of case. I think that this case can be distinguished from Ainsworth because in that case, the question of fitness and propriety of the plaintiff in relation to licences for poker machines was the very subject of the defendant's publication, and involved qualities of character that were quite readily identifiable; and because the factors pointing to unfairness in this case were not present in Ainsworth. 40 For these reasons, I would dismiss the appeal. I would leave in place the liberty to re-plead. A contextual imputation which commences with the words of the subject contextual imputation, and continues with words introduced by "in that", could possibly be sufficiently specific and precise. CONCLUSION 41 I propose that the appeal be dismissed with costs. 42 McCOLL JA: I agree with Hodgson JA 43 McCLELLAN AJA: I agree with Hodgson JA. ********** 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.