Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687 (available on the Federal Court website) dealt with two applicant’s claims for defamation arising from a chapter in a book titled Fair Game: The Incredible Untold Story of Scientology in Australia (HarperCollins Publishers Australia Pty Limited, 2016).
The background to Chapter 14 of the book “Deep Sleep” is the Royal Commission conducted by Acting Justice Slattery between 1987 and 1989 (Royal Commission into Deep Sleep Therapy) and the resulting multi-volume Royal Commission report. Mr Cannane’s thesis, which the Chapter explores, is that the Royal Commission did not expose the role of the Church of Scientology in bringing to light the abuse of patients in the administration to them of so-called deep sleep therapy (DST) and electro-convulsive therapy (ECT) at Chelmsford Private Hospital (Chelmsford). The applicants are referred to in the Chapter as two of the four doctors involved in DST at Chelmsford (Dr Herron and Dr Hart).
The primary judge noted at [4] that the applicants sought to use the vehicle of this litigation, in effect, to prove that the Royal Commission did them a serious injustice by accepting a “Scientology version of events”. However:
“The reality is that the expert evidence called by the respondents and the otherwise admissible evidence from experts who were involved in the Royal Commission leaves room for only one credible version of events – that at the time it was administered it should have been obvious to those doctors with knowledge of its details (including the applicants) that DST was a dangerous experimental treatment for which there was no medical indication for any patient subjected to it at Chelmsford. However, the applicants’ evidence and submissions are fixated on a single objective – to have the findings in this proceeding rewrite history and vindicate their conduct despite the overwhelming evidence to the contrary and the lack of any cogent evidence to support them.”
The judgment is quite lengthy – some 915 paragraphs. However as made clear at the outset, the primary judge concluded at [6] that a number of the pleaded defamatory imputations are not conveyed by the matter complained of. To the extent that defamatory imputations are conveyed, they are substantially true so the respondents have the benefit of the defence of justification in s 25 of the Defamation Act 2005 (NSW). The respondents are also entitled to the defence of qualified privilege for the publication of defamatory matter as provided for in s 30 of the Act. As a result, the proceedings were dismissed with costs. At [3] the primary judge commented:
“DST was a dangerous experimental treatment with no medical justification by the 1960s and 1970s when it was being administered at Chelmsford. The way in which ECT was given at Chelmsford, without oxygen, muscle relaxants and anaesthetics, also did not meet the appropriate standards at the time. Further, it should be inferred from the evidence that none of the patients were informed about the dangers associated with DST and thus were not in a position to give informed consent to the treatment. A significant number of patients died while under or immediately after the administration of DST in circumstances where it should be inferred from the evidence that DST caused their deaths. Mr Herron and Dr Gill continued to administer DST despite knowing of the deaths and took none of the steps that would have been necessary at the time to investigate the cause of death and suspend or cease the treatment if the cause could not be mitigated. On the evidence in this case, the unavoidable conclusion is that the dangers of DST were so great the cause of death could not be mitigated if DST continued. The conclusion which must be drawn on the evidence is that DST should never have been performed at all at Chelmsford. To subject patients to it as occurred at Chelmsford in the 1960s and 1970s was unethical, grossly negligent and involved sustained medical malpractice by reference to the applicable standards at the time.”