Hertzberg v McLeod [2007] NSWDC 9

New South Wales District Court

CITATION: Hertzberg v McLeod [2007] NSWDC 9

HEARING DATE(S): 9 February 2007

JUDGMENT DATE: 14 February 2007

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: 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.

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

LEGISLATION CITED: Defamation Act 1974 (NSW)

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