Hertzberg v McLeod

CATCHWORDS: defamation - section 7A jury trial - late amendment of pleadings - use of actual words from the publication in imputations

Allsop v Church of England Newspapers [1972] 2 QB 161 Bass v TCN Channel 9 Pty Ltd [2006] NSWCA 343 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Falkner v Cooper (1666) Carter 55 Harvey v John Fairfax & Sons Pty Ltd v Gacic (2006) NSWCA 175 Lewis v Daily Telegraph Limited [1964] AC 234 CASES CITED: Liberate v Daily Mirror Newspapers Limited, The Times, June 18, 1959 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Monte v Mirror Newspapers [1979] 2 NSWLR 663 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Singleton v Ffrench (1985-6) 5 NSWLR 425 Thaarup v Hulton Press (1943) 169 LT 309 Whelan v John Fairfax & Sons Pty Ltd (1988) 12 NSWLR 148

PARTIES: Mark Hertzberg (Plaintiff) Karen McLeod (Defendant)

COUNSEL: C A Evatt / A Lakeman (Plaintiff) C Dibb (Defendant)

SOLICITORS: Michael K Rawack & Co (Plaintiff) S Moran & Co (Defendant)

1 The plaintiff by way of Statement of Claim filed on 8 June 2006 brings proceedings for defamation concerning two publications which are dated 12 December 2005 and which are similar in content. One is addressed to the plaintiff's employer and the other is addressed to the Minister for Health. Each of them refers to "particulars of complaint" about the conduct of the plaintiff who is an Associate Professor of Haematology at the University of Sydney and a Staff Haematologist at Westmead Hospital.

2 This is an application by the plaintiff to amend the Statement of Claim. Since the Section 7A jury trial is set down for hearing on Monday 19 February the defendant objects to the granting of leave, first on the basis of lateness and secondly on the basis that a number of the imputations fail to arise or are objectionable in form.

3 I first set out the interlocutory history of these proceedings. I heard this application urgently at 2pm on Friday 9 February 2007 and made rulings as reflected in the orders in this judgment. As the hearing did not finish until 3.55pm, there was insufficient time for me to deliver an ex tempore judgment and the parties agreed that I should hand down my reasons for the rulings I made on 9 February 2007 during the week. These are the reasons for the rulings I made on 9 February 2007.

4 The imputations pleaded in the Statement of Claim filed on 8 June 2006 were as follows: (a) The plaintiff has sacrificed his patients' interests to participate in overseas conference. (b) The plaintiff has received illicit payments and benefits from pharmaceutical companies and has received secret commissions from pharmaceutical companies. (c) The plaintiff has treated patients during the course of his employment, when by reason of fatigue it is not safe to do so. (d) The plaintiff has deliberately and unnecessarily placed the lives of his patients at risk. (e) The plaintiff has abused the entitlements he received as part of his employment with Westmead Hospital. (f) The plaintiff's performance as a haematologist is below that which his employer should expect from a competent and honest practitioner.

5 When the matter first came before me on 21 July 2006, the defendant was directed to notify the plaintiff of any objections to form and capacity. When the matter was next listed on 4 August 2006 I directed that the defendant should advise the court of any challenge to the form and capacity of imputations and that in the event that there was no challenge the matter would be listed for a Section 7A trial. When the matter came before me on 25 August 2006 the matter was listed for argument concerning the form and capacity of imputations on 22 September. Written submissions dated 13 September 2006 complained of a lack of precision. The argument did not proceed because the plaintiff sought and was granted to file an amended Statement of Claim within twenty one days. On 12 October 2006 an amended Statement of Claim was filed. Separate imputations were pleaded for each of the two publications and these were as follows:

(a) The plaintiff acts in a servile and fawning manner to drug companies in order to gain personal benefit (paragraph 1). (b) The Plaintiff drinks excessive amounts of alcohol (paragraph 1). (c) The Plaintiff neglects his patients in order to go on junket conferences paid for by drug companies (paragraph 1). (d) The plaintiff brags he is cooking the system (paragraph 3). (e) The plaintiff is a dysfunctional walking zombie (paragraph 3). (f) The plaintiff is not independent as a doctor because he has been bought by drug companies (paragraph 4). (g) The plaintiff prescribes drugs to his patients because they are made by the drug companies who pay him to attend and speak at their various functions (paragraphs 1 and 2). (h) The plaintiff acts improperly as a doctor because he allows drug companies to pay for his attendance at conferences (paragraph 4). (i) The Plaintiff should be reprimanded by the head of his Department (paragraph 3). (j) The Plaintiff sacrifices his patients' interests to participate in overseas conferences (paragraph 1).

(a) The Plaintiff acts in a servile and fawning manner to drug companies in order to gain personal benefit (paragraph 1). (b) The plaintiff drinks excessive amounts of alcohol (paragraph 1). (c) The plaintiff neglects his patients in order to go on junket conferences paid for by drug companies (paragraph 1); (d) The plaintiff brags he is cooking the system (paragraph 4). (e) The plaintiff is a dysfunctional walking zombie (paragraph 4). (f) The plaintiff is not independent as a doctor because he has been bought by drug companies (paragraph 4). (g) The plaintiff prescribes drugs to his patients because they are made by the drug companies who pay him to attend and speak at their various functions (paragraphs 1 and 2). (h) The Plaintiff acts improperly as a doctor because he allows drug companies to pay for his attendance at conferences (paragraph 5). (i) The Plaintiff should be reprimanded by the head of his Department (paragraph 4). (j) The Plaintiff is unfit to work as a doctor when he returns from holidays because he is jet-lagged (paragraph 3). (k) The Plaintiff sacrifices his patients' interests to participate in overseas conferences (paragraph 1).

6 No objection was taken to the form of this document and a Section 7A jury trial was listed for hearing on Monday 19 February 2007.

7 The matter was then listed before me by the plaintiff on 7 February 2006. The plaintiff sought to file a Further Amended Statement of Claim which substantially amended the imputations. The same imputations are pleaded for both publications. These imputations, and the paragraphs in the matter complained of giving rise to the imputations are as follows:

(a) The plaintiff accepts bribes from drug companies in the form of payment of accommodation, dinners, airfares and cash to prescribe their drugs to his patients (paragraphs 7, 8 and 12). (b) The plaintiff prescribes drugs to patients because they are made by the drug companies who pay for him to attend junket conferences and not because of the merits of the drugs prescribed (7, 8 and 12). (c) The plaintiff has been bought by drug companies. (d) The plaintiff acts unethically as a doctor because he accepts accommodation, dinners, airfares and cash from drug companies for attending junket conferences (7,8 and 12). (e) The plaintiff neglects his patients because he leaves them 3, 4 and 5 times a year in order to attend junket conferences (7, 8 and 12). (f) The plaintiff schmoozes and boozes at junkets when he should be attending to his patients (7, 8 and 12). (g) The plaintiff neglects his patients (paragraphs 7, 8, 9 and 12). (h) The plaintiff comes back to work jet-lagged and not properly fit to treat his patients. (i) The plaintiff does not take enough holidays thereby adversely affecting his ability to treat patients (7, 9, 10, 11, 12 and 13). (j) The plaintiff cooks the holiday system by working five days a week instead of three or four in order to obtain additional holidays (4, 5, 6, 9, 11, 12 and 13). (k) The plaintiff brags he is cooking the system (11). (l) The plaintiff inconveniences the hospital because he deliberately accumulates long period of leave (4, 5 and 6). (m) The plaintiff prescribes drugs to patients because they are made by drug companies who pay for him to attend and speak at their functions (7 and 8).

8 These imputations are new in form, but the sting these imputations seek to convey is substantially similar to the previous pleadings.

9 Leave to amend is opposed on two bases. The first is that the application to amend is brought too close to the Section 7A jury trial, which is to start on Monday 19 February. Counsel for the defendant said he had spent time preparing for this hearing on the basis that the imputations would be the imputations pleaded in the amended Statement of Claim.

10 However, late applications by plaintiffs to amend the imputations are commonplace, and in the context of a Section 7A jury trial, where all that is to be determined is what imputations, if any, are conveyed, leave to amend is usually granted. In the absence of evidence of actual prejudice, it is hard to see why an application to amend pleadings of imputations which has been made two weeks before the trial should be refused.

11 The second basis upon which the application to amend is opposed highlights a legal argument which has been an ongoing source of dispute in defamation proceedings for a number of years. This is the entitlement of a plaintiff to plead imputations which draw the imputation's words directly from the matter complained of. The defendant's objections in this regard were brought in relation to imputation (c) ("the plaintiff has been bought by drug companies"), imputation (f) ("the plaintiff schmoozes and boozes at junkets when he should be attending to his patients"), and imputations (j) and (k) (which refer to the plaintiff "cooking" the holiday system by working five days a week instead of three or four in order to obtain additional holidays, and then bragging about cooking the system). An objection previously taken to the word "junket" was not pressed during the argument.

12 I should first briefly review the law in relation to a plaintiff's entitlement to use the precise language of the matter complained of.

13 In Hepburn v TCN Channel 9 Pty Limited [1983] 2 NSWLR 682, a plaintiff who was called an abortionist in a newspaper article appealed from a refusal to allow an imputation "the plaintiff is an abortionist" to go to the jury. At 687G ff, Hutley JA explained that there was no universal rule that a word which does not necessarily have a particular meaning was not capable of identifying a precise act or condition. Where a person alleges that he or she has been characterised in a way calculated to damage reputation in any meaning that a particular word in the publication can bear, that person is entitled to have an imputation submitted to a jury in general terms, and the defendant must justify it accordingly. For example, a person who complains of being called a communist is not required to define it down to one of the different varieties of communism (at 687G).

14 Hutley JA had the following to say about the use of the actual words from the publication: " Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable reader would make of it ."

15 At 693B and following, Glass JA, concurring, noted that much of the argument on appeal was devoted to the argument that an imputation that the plaintiff was an abortionist lacked sufficient precision. Glass JA commented: " I see no reason why the plaintiff should be compelled to define the sense in which the defendant employed a general expression. If the plaintiff is castigated as a criminal, criminality is predicated of him in all its amplitude. He is not faced with the need to choose between the lower end of the range which will moderate his damages and the upper end which, in the context of the publication, the jury may not expect it. The defendant is expected to know what his language conveyed and that, in adopting an epithet with a spread of meanings, he will be understood as imputing them all. "

16 In Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671A Hutley JA referred to his previous decision in Hepburn, supra, noting that: " … the pleader can choose his own way to formulate the imputation and he should not be put in a straight jacket. There are no forms of imputations. "

17 These decisions have been referred to with approval on many occasions both by the Court of Appeal and the Supreme Court. In John Fairfax & Sons Pty Limited v Blake [2001] 53 NSWLR 541 Hodgson JA referred with approval to the statements by Glass JA at 693. His Honour went on to note at [54] the statement by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137: " Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case, a judgment needs to be made as to the degree to particularity or generality which is appropriate to the occasion and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. "

18 Gleeson CJ noted with approval the test set out by Hunt J in Whelan v John Fairfax & Sons (1988) 12 NSWLR 148 at 155, which is that the issue which has to be decided in a 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.

19 The defendant submits that the use of the word in the matter complained of is confusing because it is not capable of being sufficiently precise, by virtue of the fact that it is actually used in the matter complained of. This argument has its origin in statements made by Hunt J in Monte v Mirror Newspapers [1979] 2 NSWLR 663 at 678E, where his Honour noted that in "very few" cases could the true meaning of an imputation be conveyed merely by repetition of the words actually used in the publication. His Honour went on to repeat this view in Harvey v John Fairfax Publications Pty Limited (2005) NSWCA 255 at [118] ff, deploring the practice of pleading imputations taken from the matter complained of rather than identifying the act or condition "which usually has to be distilled or inferred from these words."

20 However, where a word has been used in the matter complained of, it is hard to see why a plaintiff should be obliged to define with greater precision than the matter complained of what is meant by words such as "communist", "abortionist" or "criminal", for the reasons explained by Glass JA and Hutley JA. Similarly, if the matter complained of simply says that the plaintiff is "disgusting" then an imputation that "the plaintiff is disgusting" is all that the pleader is required to do, for the reasons explained by Gleeson CJ in Drummoyne Council at 137. Where a defendant has made a clear allegation in expressed terms (as opposed to a hint or inference) is hard to see how the words need to be further refined or distilled, or for what purpose. In Lewis v Daily Telegraph Limited [1964] AC 234 at 285, Devlin LJ explained that the fundamental question was "what is the meaning that the words convey to the ordinary man; you cannot make a rule about that." In John Fairfax & Sons Pty Limited v Gacic (2006) NSWCA 175 at [119] Ipp JA referred to Lord Devlin's words with approval, adding that the question of the meaning conveyed to the ordinary person "should be a simple and straightforward one, as befits a law that governs the every day life and actions of all levels of persons in the community" adding that the question should not be obscured by "overly complex and subtle metaphysical distinctions that stand as a formidably esoteric barrier to what should be an easily comprehensible reasoning process akin to common sense."

21 It is against this background of repeated references at appellate level to common sense and practical justice that I consider the decision in Mahommed v Channel Seven Sydney Pty Limited [2006] NSWCA 213. In the course of rejecting a submission based on the principles enunciated by Hunt A-JA in Harvey v John Fairfax Publications Limited, supra to the effect that the use of the exact words of the matter complained of obscured rather than distilled any meaning and the jury's rejection of an imputation drafted in such a way could not be set aside as perverse, McColl JA noted that the overall impression of the matter complained of was such that "this was not a case where the use of the exact words of the broadcast lead to any obscurity" (at 20 [29]).

22 A further complaint often raised in relation to the use of the precise words of the publication, where such words are slang words, is that there is confusion because the defendant does not know the case he must bring in order to justify the imputation. However, in Bass v TCN Channel 9 Pty Limited [2006] NSWCA 343 a defendant was successfully able to prove the truth of an imputation that the plaintiff was "shonky" although this word was (as Hunt A-JA noted) a slang word of considerable imprecision. Although defendants often make this complaint (as Hutley JA noted in Hepburn, supra), it is a complaint which has never been substantiated in those applications where it has been made. For the reasons explained by Glass JA and Hutley JA in Hepburn, arguments of this nature should be given limited weight when considering whether the asserted need for precision is in fact required when the matter complained of has expressly (as opposed to obliquely or by inference) made the allegation.

23 Having set out these principles I now turn to a consideration of the imputations the subject of challenge by the defendant.

24 The word "schmooze" means "to converse informally" or "make small talk or chat", although it can also have a pejorative overtone suggesting the conversation is of a fawning or flattering nature. The word comes from the Yiddish shmuesn which means to converse, a word with origins in the Hebrew word semuah ("rumor") and the German schmusen ("to canoodle"). The "sch" sound when added to a consonant is used in Yiddish for a number of words of a pejorative nature (schlimazel, schlep, schlock, schlong, schlub, schmaltz, schmeer, schmatte, schmendrik, schmo, schmuck, schmutter, schmutz, schnook, schnorrer, schnoz). Many of these words have come into the English language because there simply is no way to translate them; according to Wikipedia, the word "schlimazel" (which means a chronically unlucky person), was one of the ten non-English words voted as the words hardest to translate by an English translation company.

25 The use of the word "schmooze" in the phrase "schmooze and booze" has a strong impact by reason of the onomatopoeia of the "schm" sound and the rhyming between the two words "schmooze" and "booze". It is hard to see how this colourful expression could be more precisely defined by a pleader, or why.

26 Counsel for the defendant complained that the word "schmooze" had two meanings, the first being the comparatively harmless one of an informal chat about trivial matters (when used as a noun or an intransitive verb) and the second being the process of being ingratiating towards somebody, namely to talk persuasively to obtain personal advantage, when it is used as a transitive verb. The defendant complained that the plaintiff has indicated through his counsel that he will rely on the more serious meaning, and that evidence that the plaintiff is merely engaging in trivial talk on these occasions might not be accepted by a court as satisfying the onus of proof in regard to what is necessary to establish justification.

27 The use of the word in the phrase "schmoozing and boozing" is precisely the kind of example to which Glass JA was referring when in Hepburn v TCN Channel 9 Pty Limited, supra, when he warned that to call a person a criminal was to accuse him of criminality "in all its amplitude". The plaintiff is under no obligation to choose where in the range of possible meanings he should pitch his imputation, because the defendant is expected to know what his language conveyed and the defendant will be understood as imputing all meanings from the spread of meanings where the defendant uses a word with more than one such meaning. Accordingly, I reject the submission that this imputation is embarrassing in form and should be repleaded.

28 The objection to the words "bought" (imputation (c)), "cooks"(imputation (j)) and "cooking" (imputation (k)) is slightly different. In each case it is asserted that the word is ambiguous because each of these words has an innocent meaning as well as a slang meaning. It is asserted that the word "bought" is a word which means to acquire title to property for money or other valuable consideration, and that no such meaning is capable of being conveyed in the matter complained of. It is impossible for the ordinary reasonable reader to interpret this reference in the matter complained of to doctors being "bought" literally, because the only persons who can literally be bought are slaves or persons who are kidnapped for use in the sex trade. It is submitted that the word is used in order to smuggle what counsel for the defendant called "wriggle room" into the pleadings, under cover of it being the very word used in the matter complained of, so that the plaintiff can subsequently argue what must be proved in support of a defence to it is that the defendant has to prove the plaintiff was "bought" in the proper strong sense of the word.

29 This submission is based on a misconception. It is quite clear from the matter complained of what is meant by the word "bought". Indeed, the defendant's subsidiary argument was that if this imputation was permitted, it did not differ in substance from imputation (a) namely, that the plaintiff accepted bribes from drug companies in the form of payment of accommodation, dinners, airfares and cash to prescribe their drugs to his patients.

30 The requirement that the plaintiff use a word other than "bought" in my view is unnecessary where the expressed terms of the matter complained of make it clear that the plaintiff by accepting these free benefits has allowed himself to be bought by these drug company activities. There can be no question of any imputation that he has been sold into sexual servitude (as the defendant asserted) or in some other fanciful way actually been purchased by the drug companies. What is being conveyed is the Faustian concept of having sold his soul, as counsel for the plaintiff pointed out in his written submissions, not a literal claim that the plaintiff has been sold into slavery.

31 As to the words "cooked" and "cooking", again, there is no suggestion that this has something to do with the plaintiff's culinary endeavours, and I find the defendant's submission that the use of "cooking" is, for this reason, "quite unclear", to be disingenuous. Counsel for the defendant referred me to Gatley on Libel and Slander (9th edition 1998) paragraph 3.26 where the learned authors say: " The question of whether a slang expression has become part of ordinary usage is one of degree but in all but the plainest cases the plaintiff will be required to plea the defamatory meaning he ascribes to the expression. "

The cases on the requirement for pleading a particular meaning for a slang expression go back to Liberace v Daily Mirror Newspapers Limited (The Times June 18 1959), where the plaintiff was unable to assert that the word "fruit flavoured" connoted homosexuality because he had not pleaded a true innuendo. In Thaarup v Hulton Press (1943) 169 LT 309 there was doubt as to what was meant by the word "pansy". As late as 1972 the courts were worried about the true meaning of the word "bent" as connoting sexual deviance: Allsop v Church of England Newspapers [1972] 2 QB 161. However, in the 10th edition of Gatley on Libel and Slander at paragraph 3.27, the passage relied upon by counsel for the defendant has been dropped, (i.e. the words following "degree") and this requirement for special pleading is not a feature of more recent pleadings.

32 As long ago as 1666, Bridgman CJ (in Falkner v Cooper (1666) Carter at 55) said that "it is use which makes words have force". Current general usage of words such as "cook" or "cooking" are capable of being considered by a jury to connote that the plaintiff is manipulating the holiday system in order to obtain additional holidays without the need for any additional explanatory pleadings. Juries are familiar with expressions such as "cooking the books". To require a restatement of these words in "legal English" (to use counsel for the defendant's term) is to impose just the kind of "esoteric barrier" to the jury reasoning process that Ipp JA warned against in Gacic, supra.`

33 An additional argument in relation to imputation 7(k) is that the imputation is rolled up. However, this imputation states that the plaintiff is bragging about what he has done. Bragging about what he has done is an act which is different in substance to actually doing it, and I am satisfied that the imputations differ in substance.

34 An argument was also brought that imputation (d) should be struck out because the word "unethically" was ambiguous in the same sense as the phrase "breach of trust": Singleton v Ffrench (1985-1986) 5 NSWLR 425. By reason of my acceptance of an application by the plaintiff to replead this imputation, it has not been necessary for me to deal with this argument.

Objections to imputations not differing in substance

35 Mr Evatt for the plaintiff conceded that imputation (m) did not differ in substance from imputation (b) and also that imputation (c) did not differ in substance from (a). He also sought leave to amend imputations (d) and (e) and to delete the true innuendo cause of action in paragraph 4.

36 Although the plaintiff was substantially successful in the argument before me, there were nevertheless defects in the pleadings which resulted in the deletion of two imputations, the amendment of two others and the withdrawal of the true innuendo case. In those circumstances, it is appropriate that each party bear their own costs.

1. Imputation 3(a) struck out.
2. Imputation 3(d) struck out.
3. Grant leave to the plaintiff to plead the following imputation in lieu of 3(d): "3(d) - the plaintiff so conducted himself that his conduct requires investigation by the South Western Area Health Service.
4. Grant leave to re-plead imputations 3(e) as follows: "the plaintiff neglected his patients because he left them 3, 4 or 5 times a year in order to attend junket conferences."
5. Imputation 3(m) struck out.
6. Paragraph 4 of Statement of claim struck out.
7. Imputation 6(a) struck out.
8. Imputation 6(d) struck out.
9. Grant leave to plead 6(d) as follows: "the plaintiff so conducted himself that his conduct requires investigation by the Minister of Health."
10. Grant leave to amend imputation 6(e) as follows: "The plaintiff neglected his patients 3, 4, 5 times a year to attend junket conferences."
11. Imputation 6(m) struck out.
12. Paragraph 7 of Statement of Claim struck out.
13. Each party pay their own costs.

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