Facts
In 2017, Dr Gill and Mr Herron had commenced proceedings against HarperCollins Publishers Australia Pty Ltd (HarperCollins) and author, Mr Cannane, (together the Publishers), for the publication of “Fair Game: The Incredible Untold Story of Scientology in Australia”. The publication contained details of the administration of the deep sleep therapy (Therapy) that was said to have occurred in the 1960s and 1970s at Chelmsford Private Hospital.
Following an eight-week trial the Federal Court ruled that the imputations within the publication were substantially true, in that the administration of the Therapy by Dr Gill and Mr Herron (and two other Drs) had been grossly negligent and was medical malpractice causing dozens of deaths. Dr Gill and Mr Herron appealed in late 2020, but Mr Herron died in February 2021.
Outcome
The Full Court of the Federal Court of Australia overturned the primary court’s decision, its most significant contention being the primary court’s reliance on a suite of Royal Commission expert reports (Reports) prepared by doctors who are now deceased.
The Full Court found that there were fundamental problems with the Reports, such as the doctors that authored the Reports did not state with clarity or sometimes at all, the facts or assumptions on which they were basing their decisions or did not disclose their process of reasoning. Further, evidence and material relied on to author the Reports were at times missing, or unavailable. “It was, in all the circumstances, not possible to assess or determine the extent to which the opinions expressed by the doctors were based on their specialised knowledge, as required by section 79 of the Evidence Act.”
The Full Court took particular issue with the fact that these Reports had never been tested by cross-examination during the Royal Commission enquiry, nor had Dr Gill and Mr Herron been given the opportunity to cross-examine the (deceased) doctors who authored these Reports during their defamation trial.
Additionally. although Mr Cannane was of the view that he would not obtain an honest or accurate account from Mr Herron and Dr Gill, that did not make it reasonable to completely omit their account of what occurred. The Full Court stated that Mr Cannane had made a deliberate choice not to obtain and include an account told from Dr Gill and Mr Herron’s view.
A retrial was ordered, the Full Court deciding it was unable to determine whether the Publishers had proved their defence of substantial truth, based on the remaining evidence.
To read the full decision in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68 click here.
