Herron v HarperCollins Publishers Australia Pty Ltd  FCAFC 68 (on AUSTLII).
Conducted over two years from 1988-1990, the Royal Commission into Mental Health Services, otherwise known as the Chelmsford Royal Commission, examined mental health services in New South Wales. The commission, chaired by Justice John Slattery, specifically focused on the practices of the Chelmsford Private Hospital psychiatric institution from 1963 to 1979. Further background details are available at on the Dictionary of Sydney website.
The appellate decision referred to in this note arose much later as in 2017 each of the late John Herron and Dr John Gill filed an originating application and statement of claim against HarperCollins Publishers Australia Pty Ltd and Steve Cannane. Each proceeding sought an award of damages for defamation and other relief arising out of the publication in 2016 of Mr Cannane’s paperback book “Fair Game: The Incredible Untold Story of Scientology in Australia”.
Mr Herron was a psychiatrist who practised at Chelmsford. He was deregistered as a medical practitioner in the late 1990s for conduct unrelated to the events at Chelmsford. Dr Gill was a general practitioner and became the de facto medical superintendent of Chelmsford.
The trial took about 10 weeks before the primary judge who delivered a comprehensive judgment dismissing both proceedings with costs. Mr Herron and Dr Gill filed a joint notice of appeal on in late 2020, however, Mr Herron died in early 2021.
The appeal was allowed and orders were made such that Dr Gill is entitled to a new trial.
Without attempting to describe the appellate findings, the Court was required to address the following issues:
(1) whether the primary judge erred in finding that chapter 14 did not convey 7 imputations that Mr Herron and Dr Gill had pleaded (the contested imputations issue);
(2) whether s 17(2) of the Royal Commissions Act 1923 (NSW) could apply to prevent evidence and documents that Mr Herron and Dr Gill gave or produced to the Royal Commission under compulsion from being admissible at the trial as relevant evidence pursuant to s 56 of the Evidence Act 1995 (Cth) (the operation of s 56 of the Evidence Act issue) (which Lee J deals with in his reasons);
(3) whether her Honour erred in construing s 17(2) of the Royal Commissions Act as providing no protection to a person who was a plaintiff or applicant in court proceedings (the s 17(2) of the Royal Commissions Act issue);
(4) whether her Honour erred in admitting and relying, without any reservation, on reports prepared by four now deceased experts that were used in the Royal Commission or otherwise erred in finding that the publishers had established their defence of justification under s 25 of the Defamation Act 2005 (NSW) (the truth defence and dead experts issues) (which each of Wigney J and Lee J deals with in his reasons);
(5) whether her Honour erred in finding that the publishers had established their defence of statutory qualified privilege under s 30 of the Defamation Act that their publication of the book was reasonable in the circumstances despite, first, failing to lead any evidence as to HarperCollins’ state of mind or, secondly, Mr Cannane’s failure to include Mr Herron’s and or Dr Gill’s side of the story or make any attempt to obtain and publish a response from them (the qualified privilege issue); and
(6) whether s 10 of the Defamation Act prevented Dr Gill from challenging, on this appeal, the primary judge’s orders dismissing the Herron proceeding with costs, so that he would not be liable on his undertaking, were Mr Herron’s appeal well founded (the s 10 of the Defamation Act issue).