Herron v HarperCollins Publishers Australia Pty Ltd - [2022] FCAFC 68

FEDERAL COURT OF AUSTRALIA
Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68

Appeal from:
Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805

Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687

File number: NSD 1387 of 2020

Judgment of: RARES, WIGNEY AND LEE JJ

Date of judgment: 29 April 2022

Catchwords:
DEFAMATION – whether pleaded imputations conveyed by matter complained of – where matter complained of named applicant doctors and later made generalised defamatory assertions as to misconduct not specifically attributed to applicants – whether ordinary reasonable reader would understand imputations conveyed in respect of applicants

HIGH COURT AND FEDERAL COURT – whether s 17(2) of the Royal Commissions Act 1923 (NSW) has application in a federal court – consideration of the principles concerning the relationship between State laws and the exercise of federal jurisdiction – whether s 17(2) Royal Commissions Act purports to regulate the exercise of federal jurisdiction – whether a law of the Commonwealth “otherwise provide[s]” within the meaning of s 79 of the Judiciary Act 1903 (Cth) – s 17(2) Royal Commissions Act directly and logically inconsistent with s 56(1) of the Evidence Act 1995 (Cth)

CONSTITUTIONAL LAW – whether a finding that s 17(2) of the Royal Commissions Act has no application in a proceeding being conducted in a federal court infringes the principle in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 or in some way produces an outcome inconsistent with s 118 of the Constitution

EVIDENCE – statutory construction – Royal Commissions Act s 17(2) – whether s 17(2) prevents evidence given and documents produced under compulsion by applicant to Royal Commission being admissible against applicant

DEFAMATION – defence of qualified privilege – Defamation Act 2005 (NSW) s 30 – whether conduct of publisher in publishing independent author’s book could be found reasonable in circumstances where no evidence led of publisher’s state of mind as to content of book – where author failed to seek comment from applicant or put his side of story – where publisher chose to omit relevant information that favoured applicant – whether publication reasonable in circumstances if publisher relied only on adverse findings by Royal Commission without making enquiries of applicant or putting his side of the story

DEFAMATION – Defamation Act s 10 – whether conduct of appeal against orders dismissing proceeding with costs is assertion, continuation or enforcement of deceased’s cause of action for defamation – whether surviving appellant who gave undertaking at trial to pay deceased’s costs could challenge order dismissing deceased’s proceeding with costs – whether cause of action in defamation merged in judgment creating independent rights and obligations

EVIDENCE – hearsay notices issued pursuant to s 67 of the Evidence Act – consideration of the strictures of s 67 of the Evidence Act and cl 6 of the Evidence Regulations 2018 (Cth)

EVIDENCE – where the primary judge admitted and relied upon the reports of four dead experts who gave evidence to the Royal Commission – whether the primary judge erred by falling to exclude the reports of the dead experts because they do not fall within a hearsay exception or otherwise do not satisfy the statutory precondition to admissibility in s 79 of the Evidence Act – whether the primary judge erred by failing to exclude the reports of the dead experts pursuant to s 135 of the Evidence Act or limit the weight to be attributed to them – principles applicable to the weight to be attributed to the evidence of persons unable to be cross-examined – proper to treat with considerable reserve evidence, or the inference from evidence, which has not been subjected to cross-examination

EVIDENCE – whether the primary judge erred in admitting and relying upon the reports of other experts – whether opinions wholly or substantially based on specialised knowledge – where no literature review had been conducted by the experts – allegations of bias

EVIDENCE – impact of evidentiary findings on defence of substantial truth – consideration of the process of decision making – superficial to conclude that if the evidence directly referenced in support of a finding of truth is not impugned the finding of truth should stand – where other evidence infected by inadmissible evidence – decision making process too intricate to unpack and put back together

Legislation:
Constitution Ch III; ss 39(2), 51(xxxix), 75(iv), 80, 106, 109, 118

Defence Act 1903 (Cth)

Evidence Act 1995 (Cth) Pt 2 cl 6; ss 10(1), 55, 56, 62, 63, 67, 69, 79, 91, 192, 192A, 135, 136

Family Law Act 1975 (Cth) s 60H

Federal Court of Australia Act 1976 (Cth) Pt VB

Judiciary Act 1903 (Cth) ss 39(2), 79

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9(3)

Evidence Regulations 2018 (Cth) cl 6

Federal Court Rules 2011 (Cth) r 23.13

Inspector-General of the Australian Defence Force Regulation 2016 (Cth)

Archives Act 1960 (NSW)

Criminal Procedure Act 2004 (WA) s 114(2)

Defamation Act 1974 (NSW)

Defamation Act 2005 (NSW) s 25

Evidence Act 1995 (NSW) s 8

Misuse of Drugs Act 1981 (WA) s 6(1)(a)

Royal Commissions Act 1923 (NSW) s 17(2)

State Records Act 1998 (NSW)

Status of Children Act 1996 (NSW) ss 14(2), 14(4)

Bill of Rights 1688 (Eng) art 9

Cases cited:
Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185
Austin v Mirror Newspapers Ltd [1986] AC 299
Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136
Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355; (2012) 207 FCR 48
Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (1998) ATPR ¶41-650
Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 2) [2007] FCA 121; (2007) 157 FCR 310
Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764
Australian Securities and Investments Commission v Rich [2006] NSWSC 643; (2006) 201 FLR 207
Axon v Axon (1937) 59 CLR 395
Barilaro v Shanks-Markovina(No 2) (2021) 393 ALR 417
Belan v National Union of Workers (2018) 267 FCR 6
Blair v Curran (1939) 62 CLR 464
Bradshaw v Emirates [2021] FCA 1407; (2021) 395 ALR 97
Briginshaw v Briginshaw (1938) 60 CLR 336
Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331
Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903; (2000) 181 ALR 108
Clarke v Federal Commissioner of Taxation [2009] HCA 33; (2009) 240 CLR 272
Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Dixon v Citiline Developments Pty Ltd [2018] FCA 1446
Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246; (2021) 395 ALR 131
Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
Feldman v Nationwide News Pty Ltd [2018] NSWSC 715
Feldman v Nationwide News Pty Ltd [2020] NSWCA 260; (2020) 103 NSWLR 307
Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News (2020) 102 NSWLR 733
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Fuge v Commonwealth Bank of Australia [2019] FCA 1621
Giannarelli v The Queen (1983) 154 CLR 212
Gill v Walton (1991) 25 NSWLR 190
Giumelli v Giumelli (1999) 196 CLR 101
Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11
Hartmann v Commissioner of Police (1997) 91 A Crim R 141
Hatfieldv TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506
Hejiz v Hejiz [2018] FamCA 301
Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495
Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805
Herron vMcGregor (1986) 6 NSWLR 246
HG v R [1999] HCA 2; (1999) 197 CLR 414
House v King (1936) 55 CLR 499
James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18
John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
Jones v Dunkel 101 CLR 298
Jones v Skelton (1963) 63 SR (NSW) 644
Knight v State of Victoria [2017] HCA 29; (2017) 261 CLR 306
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Lewis v Daily Telegraph Ltd [1964] AC 234
Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352
Lloyd v David Syme & Co Ltd [1986] AC 350
Lord Ashcroft v Foley [2012] EWCA Civ 423
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA; (2001) 52 NSWLR 705
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554
McGuinness v Attorney-General (Vic) (1940) 63 CLR 73
McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646
Melbourne Corporation v Commonwealth (1947) 74 CLR 31
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 5) [2015] FCA 571
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Nichia Corporation v Arrow Electronics Australia Pty Ltd (No 3) [2016] FCA 466; (2016) 240 FCR 13
Northern Territory v GPAO [1999] HCA 8; (1999) 196 CLR 553
Paric v John Holland (Constructions) Pty Ltd(1985) 62 ALR 85
Pontifical Society for the Propagation of the Faith v Scales (1962)107 CLR 9
R v Bayeh [1999] NSWCCA 82
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Rich v Australia Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365
Rizeq v State of Western Australia [2017] HCA 23; (2017) 262 CLR 1
Roberts-Smith v Fairfax Media Publications Pty Ltd (No 18) [2021] FCA 793
Rodger v The Comptoir D’Escompte de Paris (1871) LR 3 PC 465
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rogers v Whitaker (1992) 175 CLR 479
Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473
Ryan v Davies Bros Ltd (1921) 29 CLR 527
Shiels v Manny (2012) 263 FLR 61
Sorby v The Commonwealth (1983) 152 CLR 281
Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355
Stocker v Stocker [2020] AC 593
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549
The Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31
The Commonwealth v McCormack (1984) 155 CLR 273
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150
Triggell v Pheeney (1951) 82 CLR 497
Trkulja v Google LLC (2018) 263 CLR 149
Turner v Windever [2005] NSWCA 73; [2005] Q ConvR ¶54-625
Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2011] NSWSC 395
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259
Walton v Gardiner (1993) 177 CLR 378
Warren v Coombes (1979) 142 CLR 531
Willey v Synan (1935) 54 CLR 175
Witness v Marsden (2000) 49 NSWLR 429
Woolworths LimitedvCrotty (1942) 66 CLR 603
X v Australian Prudential Regulation Authority (2007) 226 CLR 630

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 655

Date of hearing: 23–27 August, 25 November 2021

Counsel for the Appellants: Mr B W Walker SC, Ms S Chrysanthou SC, Mr B Dean, Dr S H Hartford Davis and Ms J McKenzie

Solicitor for the Appellants: Company Giles Pty Ltd

Counsel for the Respondents: Mr T B Blackburn SC, Mr A D’Arville and Mr M Pulsford

Solicitor for the Respondents: Banki Haddock Fiora

Counsel for the Intervener: Dr S P Donaghue SC, Solicitor-General of the Commonwealth, and Mr D Hume

Solicitor for the Intervener: Australian Government Solicitor

ORDERS

NSD 1387 of 2020

BETWEEN:
JOHN HERRON

First Appellant

JOHN GILL

Second Appellant

AND:
HARPERCOLLINS PUBLISHERS AUSTRALIA PTY LTD (ACN 009 913 517)

First Respondent

STEVE CANNANE

Second Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Intervener

ORDER MADE BY:

RARES, WIGNEY AND LEE JJ

DATE OF ORDER:

29 APRIL 2022

THE COURT ORDERS THAT:
1.On or before 4 May 2022 the parties file and serve any submissions limited to 2 pages as to the form of orders to dispose of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
RARES J:
INTRODUCTION

On 19 September 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 (collectively, the publishers). Each proceeding sought an award of damages for defamation and other relief arising out of the publication on or about 19 September 2016 of Mr Cannane’s paperback book “Fair Game: The Incredible Untold Story of Scientology in Australia”.
The back cover of the book informed the reader that some famous Australians were scientologists and that “less well known is that … scientology spies helped expose the Chelmsford Deep Sleep Scandal”. Chapter 14 of the book is entitled “Deep Sleep” and focused on the administration, in the 1960s and 1970s, of deep sleep therapy (DST) and electroconvulsive therapy (ECT) at Chelmsford Private Hospital in Sydney. From 1988 to 1990, Slattery AJ conducted a Royal Commission and prepared a report: New South Wales, Report of the Royal Commission into Deep Sleep Therapy.
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.
Between 1972 and 1974, Dr Gill and companies in which he was interested acquired a one third ownership share of Chelmsford. Dr Gill was a general practitioner and became the de facto medical superintendent of Chelmsford.
In 2018, Dr Gill gave an undertaking to pay any costs that Mr Herron might be ordered to pay in his proceeding (the Herron proceeding). The trial took about 10 weeks before the primary judge who delivered very promptly a comprehensive judgment dismissing both proceedings with costs on 25 November 2020.
Mr Herron and Dr Gill filed a joint notice of appeal on 23 December 2020, however, Mr Herron died on 7 February 2021.
The further amended notice of appeal raised many grounds but it is not necessary to deal with most of them. That is because I have concluded that the appeal should be allowed and that Dr Gill is entitled to a new trial for the reasons below. Many of the grounds that I have not dealt with in these reasons concerned the admissibility and use at the trial of evidence given to the Royal Commission.
The issues that I have addressed in these reasons are:
(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).
Chapter 14 extends between pp 176 and 204 of the book. It deals with two principal themes: first, Mr Cannane’s account of the use of deep sleep therapy (DST) at Chelmsford Hospital and, secondly, the role of scientologists in exposing what had occurred there.
The chapter begins with a description of the experience of one of Mr Herron’s psychiatric patients, Barry Hart, waking up after being subjected, as he later discovered, to DST and to administrations of “electric shock treatment” (scil: ECT) without his consent. The author described Mr Hart as having been sedated with near death doses of barbiturates over 10 days (pp 176–177). Mr Cannane wrote (p 177):
Hart was a victim of gross medical negligence and abuse, but he was lucky to be alive. Between 1963 and 1979 over 1000 patients were subjected to deep sleep therapy at Chelmsford. Of those patients, 24 died at the hospital, and another 24 committed suicide within a year of their release, although it’s hard to pinpoint how many of these suicides related to pre-existing medical conditions. The Church of Scientology played a major role in exposing the atrocities committed at Chelmsford, a rare instance where the Scientologists used their undercover operations as a force for good.
The author discusses how a once eminent psychiatrist, Dr Harry Bailey, whose subsequent public disgrace Mr Cannane details later in chapter 14, had introduced DST at Chelmsford. The author describes that therapy as unproven and controversial.
He discussed warnings against its use by “significant figures in the medical profession”. Mr Cannane tells the reader that those warnings “did not deter Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did the death toll mounting before their eyes” (pp 177–178). After describing the deaths of some patients, and stating that “Chelmsford Hospital operated like a secret cult”, Mr Cannane returns to describing Mr Hart’s experience (pp 179–180). He recounts that The Sydney Morning Herald was planning a major exposé about what occurred to Mr Hart that began with the first article on the front page of the 11 November 1975 edition, headlined: “Shock treatment protest, given against my will, says actor” (being Mr Hart). However, the series of following articles did not run as the Governor-General’s dismissal of the Whitlam Government and subsequent political consequences “buried Hart’s story and the series. Herron and his colleagues at Chelmsford dodged another bullet”.
At this point in the narrative, Mr Cannane introduces Rosa Nicholson, a nurse and scientologist whom he credits with being “the central figure in exposing the truth about dozens of deaths caused by medical malpractice inside Chelmsford Hospital” (p 180). Chapter 14 then discusses scientologists’ beliefs and how they worked with Ms Nicholson (pp 180–183). Mr Cannane tells the reader how Ms Nicholson secretly photocopied medical records and supplied them and other documents to a more senior scientologist, pharmacist Ron Segal. In April 1978, Mr Segal presented the evidence that Ms Nicholson and others had collected to the then State Attorney-General, Frank Walker. The Attorney-General gave the material to his department for further investigation. The following part of chapter 14 discusses what various persons within the church of scientology did to progress their objective of exposing what had occurred at Chelmsford (pp 183–188).

Next, Mr Cannane describes the jury trial in which Mr Hart recovered $60,000 in damages for false imprisonment, assault and battery from Mr Herron for administering DST and ECT without his consent. Mr Cannane tells the reader that the verdict “was so miserly that Hart had to go on the disability pension”. Mr Cannane says that the trial judge had withdrawn the issue of punitive damages from the jury because, the author asserted, Fisher J “believed that Hart had not suffered long-term damage, was fit for work and only deserved a minimal payout”. The author adds supporting commentary of others for this view and weaves in the role of scientologists in the proceeding (pp 188–190).
Then, the reader is told about a 60 Minutes program “The Chelmsford File” that “shocked the public” and that led, at first unsuccessfully, to calls for a Royal Commission. Instead, there were inquiries by police and the Department of Health that became “caught up in legal and bureaucratic red tape, [so] the Chelmsford doctors continued to avoid accountability for their actions”. However, the reader learns that, in 1983, DST was prohibited by the Mental Health Act 1958 (NSW).
Mr Cannane recounts how, in 1985, on the eve of a Supreme Court trial against him, Dr Bailey committed suicide, leaving a note that included “let it be known that the Scientologists and the forces of madness have won”. The author tells readers that the campaign of scientologists for a Royal Commission continued, culminating in a meeting in 1988 at the Fairfax building. This led to The Sydney Morning Herald running a two-week long series that “exposed the impact of the medical abuses of Chelmsford Hospital on dozens of victims and their families”.
Then, on 6 August 1988, the Government announced the Royal Commission (pp 190–192). The author wrote (p 192):
The Royal Commission ran for close to two years. Nearly 300 witnesses gave evidence, including patients, nurses, the surviving Chelmsford doctors, senior bureaucrats and former Ministers.
The final report ran close to two million words. It revealed that at least 24 deep sleep therapy patients had died at Chelmsford Hospital between 1963 and 1979, with another 24 committing suicide within a year of being released. The commission found that Bailey falsified as many as 17 death certificates and that many patients received treatment without their consent. The Department of Health was criticised for neglecting to carry out proper checks at the hospital and for failing to investigate the deaths.
While the report exposed the truth about deep sleep therapy and how it was practised at Chelmsford, it never quite got to the bottom of the role the Church of Scientology played in exposing it.
Mr Cannane then informs the reader about the roles of scientology and Ms Nicholson in exposing matters and of Mr Herron’s counsel’s cross-examination of her before Slattery AJ (pp 192–194). The reader is told of what the scientologists did and how, chapter 14 asserted, they would go to great lengths, including committing perjury, to serve their beliefs. Chapter 14 concludes with Ms Nicholson’s death in 2015 that left her unacknowledged for having “done more than anyone else to expose the dark secrets of Chelmsford Hospital” (pp 194–204).
1. THE CONTESTED IMPUTATIONS
There was no dispute at the trial that chapter 14 conveyed the following 7 imputations about Mr Herron:
A.The applicant’s gross negligence as a psychiatrist nearly killed his patient Barry Hart
B.The applicant, a psychiatrist, falsely imprisoned his patient Barry Hart
C.The applicant, a psychiatrist, caused his patient Barry Hart to deteriorate, in ten days, from a fit 37-year old man in peak physical condition to a person in agony and distress, vomiting blood and unable to move his limbs
D. The applicant, a psychiatrist, caused his patient Barry Hart to be sedated and given electric shock treatment on six occasions without Mr Hart’s consent
F.The applicant, a psychiatrist, continued to use deep sleep treatment on his patients despite the number of deaths it caused
I.The applicant’s gross negligence as a psychiatrist caused his patient Barry Hart to suffer brain damage and post traumatic stress
N.The applicant, a psychiatrist, assaulted and battered his patient Barry Hart
(emphasis added)
Her Honour also noted the publishers’ concession that chapter 14 conveyed imputation F about Dr Gill.
However, the primary judge rejected Mr Herron’s and Dr Gill’s claims that each of imputations E, G, H, J, K, L and M (the contested imputations) was conveyed in respect of him. Ground 2 of the further amended notice of appeal challenged her Honour’s findings that the contested imputations were not conveyed. The contested imputations were:
E.The applicant, a psychiatrist, used deep sleep treatment on his patients, despite trials by other doctors deeming the practice too dangerous.
G.The applicant, a psychiatrist, falsified death certificates.
H.The applicant, a psychiatrist, lied to his patients’ families about how ill the patients were and denied those families visitation.
…
J.The applicant’s gross negligence as a psychiatrist caused the death of many of his patients.
K.The applicant, a psychiatrist, engaged in sustained medical malpractice and abuse of his patients.
L.The applicant, a psychiatrist, defrauded his patients’ health funds.
M.The applicant, a psychiatrist, traumatised many of his patients by giving them deep sleep therapy without their consent.
Her Honour arrived at her finding that none of the contested imputations was conveyed in Dr Gill’s case on two bases, namely that, first, the imputations referred to him as a psychiatrist, when he was only a general practitioner, and chapter 14 did not convey that he was a psychiatrist (at [594]) and, secondly, if that were wrong, because (other than in the case of Imputation F) the ordinary reasonable reader would not have understood chapter 14 to have included him, as opposed to Dr Bailey also, as one of the persons responsible. Her Honour also applied the second of those bases in rejecting Mr Herron’s claims that each of the contested imputations was conveyed in respect of him.
Incongruously to what she had found about the capacity of chapter 14 to convey the contested imputations about Dr Gill as a psychiatrist, her Honour, first, found that it conveyed imputation F, which stated in terms that he was a psychiatrist, and secondly, said later in her reasons, in dealing with the publishers’ pleaded contextual imputations, which, other than pleading ‘doctor’ in place of ‘psychiatrist’, were in the same terms as the contested imputations (at [859]):
The applicants submitted that there is no difference in substance between the two sets of imputations. They noted that the evidence which would justify both sets of imputations is exactly the same, as is demonstrated by the respondents’ particulars of justification. So much may be accepted. But it must also be accepted that this is an unusual case. Insofar as the Chapter conveys the imputation about Dr Gill it does so by identifying him as a doctor. If there is any material difference between Dr Gill being a psychiatrist and being a doctor (which I do not consider there is – see above), it is necessarily the case that the contextual implications are in addition to the pleaded imputations and are substantially true and the defamatory imputations do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations.
(emphasis added)
With respect, this later view accords with the thrust of chapter 14 in how the ordinary reasonable reader would understand its treatment of “the doctors” when discussing them generically. Dr Gill was named once, early in chapter 14 (at pp 178–179), as follows:
These advance warnings from significant figures in the medical profession did not deter Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did the death toll mounting before their eyes.
Shortly after this (on p 179), the author wrote:
Chelmsford Hospital operated like a secretive cult. The doctors and psychiatrists were operating in an era and environment where their authority was rarely questioned.
Thus, the ordinary reasonable reader would have appreciated that the book named Dr Gill as one of Dr Bailey’s “fellow Chelmsford doctors” and referred to him as being one of the doctors and psychiatrists who operated at Chelmsford Hospital “like a secret cult”. In this context, the ordinary reasonable reader would have understood that Dr Gill was one of those doctors or psychiatrists whenever the author used the collective noun “doctors” in connection with the catalogue of issues that chapter 14 discussed as occurring at Chelmsford. Indeed, this must have been the basis of her Honour’s finding, which the publishers conceded at the trial (at [601]), that chapter 14 conveyed imputation F about Dr Gill.
1.1. The ordinary reasonable reader
The test for determining what an ordinary reasonable reader of a publication would have understood it to convey adapts to the nature of the particular publication. Here, the reader is a person who has decided to read a serious paperback work about, as the front cover states, “The incredible untold story of scientology in Australia”, by a well-known investigative journalist. The back cover refers to famous Australian recruits to scientology and portends that the reader will discover that “Less well known is that Australia was the first place to ban Scientology, or that Scientology spies helped expose the Chelmsford Deep Sleep Scandal” (emphasis added). The book cover tells the reader that the book is based “on years of interviews and meticulous research”. As noted above, chapter 14 is headed “Deep Sleep” and is the only chapter in the book that traverses anything to do with Chelmsford, the doctors and others who were there, including Dr Gill and Mr Herron.
The ordinary reasonable reader evaluates the matter complained of in deriving an understanding of any defamatory quality in what it conveys about the applicant or plaintiff having regard to the language it uses and the moral or social standards of the community at large: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505–506 per Brennan J, with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed. The essential features of the ordinary reasonable reader are that he or she is, first, an ordinary member of the community, secondly, a reasonable person and, thirdly, a reflex of how such persons would have understood the publication complained of when, and in the circumstances, he or she reads it.
Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin agreed) held in Stocker v Stocker [2020] AC 593 at 605 [37]–[38], that where a range of possible meanings presents itself, “the touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning”. He identified that this approach requires a judge to step away from a lawyerly analysis and to put himself or herself in the position of the typical member of the audience of the publication in issue.
In Trkulja v Google LLC (2018) 263 CLR 149 at 160–161 [32], Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said:
that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person (Favell (2005) 79 ALJR 1716 at 1719 [6]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ …); and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1162–1163 per Lord Reid). He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs” (Lewis [1964] AC 234 at 258 per Lord Reid; Favell (2005) 79 ALJR 1716 at 1719–1720 [10]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), but such a person also draws implications much more freely than a lawyer, especially derogatory implications (Lewis [1964] AC 234 at 277 per Lord Devlin; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573–574 [134] per Kirby J; Favell (2005) 79 ALJR 1716 at 1720 [11]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), and takes into account emphasis given by conspicuous headlines or captions (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J; Rivkin (2003) 77 ALJR 1657 at 1661–1662 [26]; 201 ALR 77 at 83 per McHugh J; at 1699 [187] per Callinan J; Favell (2005) 79 ALJR 1716 at 1719 [8]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ). Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd ((1998) 193 CLR 519 at 574 [134]), “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.
(emphasis added)
In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at 190 [10]–[12], Gleeson CJ, McHugh, Gummow and Heydon JJ said in relation to the capacity of a publication to convey a meaning:
In determining what reasonable persons could understand the words complained of to mean, the court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd:[[1964] AC 234 at 258]
The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.
Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, [[1964]] AC 234 at 277] that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said: [[1964] AC 234 at 285]
It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. [Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293] If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance.
(emphasis added)
The ordinary reasonable reader would draw the implication that whenever chapter 14 used the word “doctors” it referred to all of the four doctors whom it named on pp 178–179 as “Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner”. And, the reader would have understood them to be psychiatrists because chapter 14 referred expressly to Dr Bailey and Mr Herron as psychiatrists, and that they, as specialists, admitted and treated patients in the hospital. The reader would be led to think that any medical practitioner who could administer DST or ECT treatment at Chelmsford would be a psychiatrist because that had to occur in a hospital and, in Dr Bailey’s frequent absences, other similarly qualified doctors would supervise or prescribe those treatment regimes: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 642 per Mason and Jacobs JJ, with whom Gibbs and Stephen JJ agreed.
The primary judge erred in finding that the contested imputations were not conveyed in respect of Dr Gill because he happened not to be a psychiatrist. That is essentially for the contrary reasons she gave at [859] when dealing with the contextual imputations (see [23] above). Moreover, the reader was not told anything about Dr Gill’s qualifications except that he was one of the doctors who administered DST and ECT treatment. The reader would infer that Dr Gill was, like Dr Bailey, a psychiatrist by the inherent capacity of the natural and ordinary meaning of the words of chapter 14 which dealt with the administration of treatment for psychiatric illness by the four named doctors. The reader would be drawn to the conclusion that, as her Honour correctly found later in her reasons when dealing with the publishers’ contextual imputations (at [859]), there was no “material difference between Dr Gill being a psychiatrist or a doctor” – that is, in the context of chapter 14, read as a whole, there was no difference in substance between the imputations it conveyed about Dr Gill, as a doctor, and those that conveyed the same defamatory meanings about him, as a psychiatrist.
It is now necessary to consider her Honour’s reasons for finding that, other than Imputation F in respect of Dr Gill, none of the contested imputations was conveyed in respect of either Dr Gill or Mr Herron. It is appropriate to deal with each of the contested imputations in turn by setting out, as her Honour did, the passages in chapter 14 upon which Mr Herron and Dr Gill relied and her Honour’s findings that, in substance, accepted the publishers’ submissions in respect of each contested imputation. The publishers contended on the appeal that her Honour’s reasoning was correct.
1.2. Imputation E: The applicant, a psychiatrist, used DST on his patients, despite trials by other doctors deeming the practice too dangerous
Her Honour held (at [597]–[600]):
597.     The applicants relied on pp 178-179 in which the Book states:
Other psychiatrists had rejected Bailey’s theories. A trial of deep sleep therapy at Parramatta Psychiatric Hospital had been discontinued in 1957 after it was deemed too dangerous and unproductive. In 1959, the American Handbook of Psychiatry warned that the mortality rate for ‘continuous of prolonged sleep treatment’ was on average 1 to 3 per cent…
These advance warnings from significant figures in the medical profession did not deter Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did the death toll mounting before their eyes.
598.     The respondents accepted that the ordinary reasonable reader would understand that other psychiatrists had rejected DST and would understand that there had been one clinical trial which had concluded the practice was too dangerous and unproductive. The respondents submitted, however, that nothing refers to a larger number of trials coming to that conclusion. The ordinary reasonable reader would not have drawn conclusions about multiple trials having been carried out. As such, imputation E is not conveyed.
599.     I agree with the respondents. The ordinary reasonable reader would not have conveyed to them the imputation of trials by other doctors deeming the practice too dangerous. They would understand that what was being conveyed was that one trial had been conducted with that result (as specifically identified) and that other psychiatrists had rejected DST (which is not the pleaded imputation).
600.     Accordingly, imputation E is not conveyed with respect to Mr Herron or Dr Gill.
(emphasis added)

With respect, the matter complained of did not state that only one trial had ever occurred. All that it did was to use one trial at Parramatta Psychiatric Hospital as an instance where the use of DST had been “deemed too dangerous and unproductive”. It referred to that trial after telling the reader that other psychiatrists had rejected Dr Bailey’s theories and before informing the reader about the higher mortality rate and “advance warnings from significant figures in the medical profession”.
The reader is allowed to draw implications much more freely than a lawyer, especially when the implications are derogatory: Trkulja 263 CLR at 160–161 [32]. Here, the context in which the passage complained of at pp 179–180 appeared was part of an overall attack on the effectiveness of, clinical justification for and mortality rate occasioned by, the DST and ECT treatments that the four Chelmsford doctors administered despite “the death toll mounting before their eyes”.
The use of the plural “trials” in Imputation E was the only reason that the primary judge gave as to why the ordinary reasonable reader would not have understood the matter complained of to carry that imputation. However, there is no reason why the reader would have been so constrained when he or she was told that multiple respectable medical sources, being “other psychiatrists”, “significant figures” and an apparently authoritative textbook, had come to the same conclusion. The reader would be entitled and encouraged to infer that the opinions of these other experts were based on sound studies, other trials and evidence that DST should not have been used. The reader was not constrained to think that the book was saying that the reason why DST was too dangerous to use was based only on a single trial at Parramatta Psychiatric Hospital: Trkulja 263 CLR at 160–161 [32]; Favell 221 ALR at 190 [10]–[12].
Moreover, the wider context discussed at pp 177–178 of the book, that surrounded the passages quoted above, suggested that doctors had studied the use of DST and ECT. The discussion on pp 177–178 began with a reference to Dr Bailey’s introduction to ECT and DST while studying overseas for 15 months in the mid-1950s on a World Health Organisation fellowship. The book suggested that he had begun using these treatments when he returned here and was appointed in 1959 by the Government of New South Wales as superintendent of Callan Park Mental Hospital (p 177). After Dr Bailey moved to private practice, the book told readers that he “was able to try out these techniques away from the scrutiny of the public hospital system” (p 178).
The book said that Dr Bailey’s “experiments” with DST began at Chelmsford Hospital in 1963 and that he had used it to treat a range of disorders, claiming an 85% success rate “without ever producing a single piece of credible evidence to back up his claims” (p 178). At this point, the author tells readers that other psychiatrists had rejected Dr Bailey’s theories and then describes the trial at Parramatta Psychiatric Hospital. In a paragraph (on p 178) between that information and the passage that referred to “These advance warnings”, the author tells readers that the American Handbook of Psychiatry had listed a range of potential complications from use of DST and ECT treatment. The reader was told there that “William Sargant, the British psychiatrist who inspired Bailey’s treatment” had warned about the side effects of continued DST use and that “its results are the least predictable”. The reader would be free to infer that Mr Sargant based his warning on trials and scientific evaluation.
In this context, the reader would infer that the author was giving a sample of expert views to justify his condemnation of the use of DST and ECT and the cult-like activities at Chelmsford Hospital. The ordinary reasonable reader was not a clinician or likely to be familiar with the nature of clinical trials for approval or validation of medical treatments. He or she is likely to have understood the matter complained of to have conveyed that the experts had used the common technique of investigating or experimenting known as “trial and error” to determine whether or not DST was an appropriate treatment. An ordinary meaning of the word “trial” as used in Imputation E is an “investigation by means of experience” (cf: Oxford English Dictionary (online), sense 4(a)). It is common to speak of giving a treatment or drug a “trial” to see if it works. The reader would be led by the context of chapter 14 as a whole to conclude that the experts other than Dr Bailey had trialled themselves, or observed the results of others’ use of, DST as a treatment and concluded from those trials or uses that it was too dangerous to use on patients. And the reader would be likely to think that the trial at Parramatta Psychiatric Hospital was an example of other trials that reinforced the author’s statement that “Other psychiatrists had rejected Bailey’s theories”.
For these reasons, the reader would have understood that chapter 14 carried Imputation E.
1.3. Imputation G: The applicant, a psychiatrist, falsified death certificates
Her Honour held (at [602]–[606]):
602.     The applicants relied on the following references:
P 178-179: Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner.
P 179: Chelmsford Hospital operated like a secretive cult. The doctors and psychiatrists were operating in an era and environment where their authority was rarely questioned. Death certificates were falsified.
603.     The respondents pointed to p 192 and the statement there that:
The commission [the Royal Commission] found that Bailey falsified as many as 17 death certificates.
604.     The respondents observed that the ordinary reasonable reader would read the whole of the matter complained of, with the critical and cautious attention a book deserves. They would read the first general reference (with the falsification of death certificates not attributed to anybody) as an event which would be described in greater detail later, as is the case (with reference to the Royal Commission’s finding that Dr Bailey falsified 17 death certificates). The ordinary reasonable reader, having noted in the early part of the Chapter the general proposition that “death certificates were falsified”, would come to conclude that this was done by Dr Bailey by reason of the specific reference later in the Chapter.
605.     I agree with the respondents. There is no attribution of responsibility for the falsification on p 179. The ordinary reasonable reader would not assume that each of the doctors mentioned earlier falsified death certificates. They would read the reference proleptically, anticipating further information which they would find on p 192.
606.     Accordingly, imputation G is not conveyed with respect to Mr Herron or Dr Gill.
(emphasis added)
In our opinion, her Honour’s reading of the above passages at pp 178–179 and 192 failed to approach the evaluative task from the standpoint of the ordinary reasonable reader. The reader was told that all four named doctors and Chelmsford Hospital “operated like a secret cult” and “Death certificates were falsified”. Rather than narrowing that broad generalised assertion, the passage at p 192 was, the reader would think, an illustration of the broader practice of falsification of death certificates at Chelmsford. However, the reader would not be drawn to think (as the primary judge appears to have reasoned) that the author gave this later illustration somehow so as to exclude any suggestion that the other doctors who were members of the cult were not involved in the direct charge made on pp 178–179 that death certificates were falsified at Chelmsford, rather than reinforcing it.
The looseness of the charge “Death certificates were falsified” occurred in an immediate connection with the allegations on pp 178–179, that asserted that all four doctors were operating as a secretive cult, and exercised authority that the staff at Chelmsford rarely questioned despite their obviously doubtful conduct, such as falsifying death certificates. If ever a passage exuded “smoke”, the matters complained of did nothing to temper the presence of an associated fire implying that all four doctors, and in particular Mr Herron and Dr Gill, as members of the secretive cult whose actions were rarely questioned, were involved in the falsification of death certificates.
The reader would have understood that the matter complained of was conveying that Mr Herron and Dr Gill, as psychiatrists, falsified death certificates as an aspect of the cult’s modus operandi. The reader would have reasoned that the Royal Commission had made an open-ended finding that Dr Bailey had falsified “as many as 17 death certificates”, so that he was one, but not the only, offender amongst the four doctors who were the cult members.
The publishers’ suggested reading, that her Honour accepted, that the reader would have understood the statement at p 179 “Death Certificates were falsified” proleptically, anticipating further information which they would find on p 192, was, with respect, unrealistic and artificial. The reader was told immediately on pp 178–179 who was involved in the falsification. The reader was not told there that the general statement about falsification applied to Dr Bailey alone or that by reading on a further 12 pages, the earlier generalisation would be clearly pared back to refer only to him as the sole one of the four cult members who had engaged in that practice. All that the statement on p 192 did was to tell the reader of the upper end of the scale of Dr Bailey’s falsifications: it did not qualify or exclude Mr Herron and Dr Gill from the earlier attribution of their responsibility for falsified death certificates, along with Dr Bailey and Dr Gardiner.
As Lord Devlin’s example in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 demonstrated, having talked at length about smoke on pp 178–179 (in relation to the responsibility of the four doctors for the falsification of death certificates), the publishers did not pick their words with any degree of care to exclude the suggestion of a fire in relation to Mr Herron and Dr Gill (Favell 221 ALR at 190 [11]). The ordinary reasonable reader would not understand that the publishers were carefully qualifying that the assertedly “rarely questioned” authority of the four doctors in the secretive cult was confined, in relation to the falsification of death certificates, to only Dr Bailey’s misdeeds. Such a reading would be fanciful. Rather the reader, on arriving at p 192, would appreciate that the author was reinforcing the general charge on p 179 with a verified example of what it involved.
The broad and unqualified generalisation on pp 178–179 would lead the reader to understand that the matter complained of conveyed Imputation G.
1.4. Imputation H: The applicant, a psychiatrist, lied to his patients about how ill the patients were and denied those families visitation
The primary judge found (at [608]–[611]):
608.     The applicants relied on:
P 178: Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner.
P 179: Chelmsford Hospital operated like a secretive cult. The doctors and psychiatrists were operating in an era and environment where their authority was rarely questioned … Family members were regularly denied visitation rights and routinely lied to about how seriously ill their loved ones were.
609.     The respondents submitted that:
Page 179 does not name either Mr Herron or Dr Gill as doctors who were responsible for family members being denied visitation rights and lied to about patients’ conditions. There is no identification in that paragraph of the reasons that this occurred. The focus of the whole chapter, read in context, is Dr Bailey. If the ordinary reasonable reader was to attribute responsibility for this matter to any doctor, it would be to Dr Bailey and not to Mr Herron or Dr Gill. For that reason, the imputation is not conveyed.
610.     When the references on pp 178-179 are read in the context of the Chapter as a whole I agree with the respondents’ submissions. Dr Bailey is mentioned on p 177 as responsible for introducing DST to Chelmsford. The whole of p 178 concerns Dr Bailey. Mr Herron and Dr Gill are mentioned as Dr Bailey’s fellow Chelmsford doctors who were not deterred by the fact that other psychiatrists had rejected Dr Bailey’s theories nor by the mounting death toll. Read in that context the ordinary reasonable reader would not understand that Mr Herron and Dr Gill denied families visitation rights and routinely lied to them about how ill their loved ones were. They would understand that Dr Bailey, the architect of DST, ensured that families could not visits and were not to be told how their loved ones were if they were ill under DST. This is reinforced by the reference on p 178 to the range of complications from “Bailey’s treatment”.
611.     Accordingly, imputation H is not conveyed with respect to Mr Herron or Dr Gill.
(emphasis added)
In our opinion, her Honour erred in accepting the publishers’ narrow and technical parsing of the passage complained of. Once again, the allegations about visitation rights and lies were about regular, routine conduct at Chelmsford in which the secretive cult, the authority of whose members was “rarely questioned”, all engaged. Just because the reader was told that Dr Bailey first introduced DST at Chelmsford, this would not convey, in the context of chapter 14 read as a whole, that out of the four cult members, Dr Bailey alone regularly and routinely denied visiting rights and lied to patients’ families. With respect, such a reading is beyond any natural and ordinary meaning capable of being conveyed by the matter complained of read as a whole.
When a publisher uses general words to attribute disreputable conduct to a group of named individuals, if he, she or it seeks to persuade the ordinary reasonable reader to read them down to apply to only one of the group, the publisher will need to “pick his words very carefully”: Lewis [1964] AC at 285. Here, the assertions on p 179 of regular denial of visiting rights and routine lying were unqualified and general illustrations of how “Chelmsford Hospital operated like a secretive cult”, through the four named doctors. The reader would have understood Mr Herron and Dr Gill were not deterred from using DST to treat patients by the fact that other psychiatrists had rejected Dr Bailey’s theories and the mounting death toll. Her Honour did not explain why the reader would have understood that the matter complained of excluded Mr Herron and Dr Gill from the general allegation that they regularly denied visitation rights and routinely lied to relatives about how ill the patients being subjected to that DST treatment were. While the reader would have understood that Dr Bailey was “the architect of DST”, the matter complained of said he only rarely attended at the Hospital and that the other three doctors were all an integral part of what occurred there.
For these reasons, chapter 14 conveyed Imputation H.
1.5. Imputation J: The applicant’s gross negligence as a psychiatrist caused the death of many of his patients
Her Honour held (at [613]–[616]):
613.     The applicants relied on the statements at p 180:
The Herald had been planning to run a series on the abuse of mental health patients, but the sacking of the Whitlam government that afternoon buried Hart’s story and the series. Herron and his colleagues at Chelmsford had dodged another bullet. A Herald series would surely have brought out more victims of Chelmsford and put pressure on the government to act. It may even have prevented more deaths.
Rosa Nicholson became the central figure in exposing the truth about the dozens of deaths caused by medical malpractice inside Chelmsford Hospital.
614.     The respondents submitted that:
The matter complained of does not go close to conveying that Mr Herron or Dr Gill’s negligence caused the death of many patients. The imputation could only be made out if the chapter identified a significant proportion of the 24 patients mentioned on page 192 as having been the responsibility of Mr Herron or Dr Gill. It does not. The only patient of Mr Herron referred to in the chapter is Barry Hart, who did not die as a result of DST. As mentioned above (in respect of the previous imputation), the focus of the chapter was Dr Bailey and it is Dr Bailey’s responsibility for ‘many’ deaths that would be inferred by the ordinary reasonable reader, not Dr Gill or Mr Herron.
In addition, the matter complained of refers to the treatment that was carried out and the number of deaths which occurred. It does not state that either that [sic] any doctors’ negligence caused the deaths or, even, that DST caused the deaths.
615.     I agree with the respondents’ submissions. There is no imputation conveyed by the matter complained of that the negligence of Mr Herron and Dr Gill caused the death of many of their patients. The ordinary reasonable reader would know that Mr Herron’s patient, Mr Hart, had survived his treatment at Chelmsford. There is no reference to any patient of Dr Gill, let alone one having died. Dr Bailey had also been identified as the person experimenting with DST at Chelmsford (p 178).
616.     Accordingly, imputation J is not conveyed with respect to Mr Herron or Dr Gill.
(emphasis added)
The author described the plight of Mr Hart. His treatment by Mr Herron was a focus of chapter 14. The reader is told that after being transferred to Dr Francis from Hornsby Public Hospital, Mr Hart had “realised that his life had changed forever. His brain was damaged”. The book said that as Dr Francis was arranging Mr Hart’s transfer to Hornsby Hospital after examining him at Chelmsford, he told Mr Hart “Don’t worry. You will live”.
The reader would understand the statement on p 180 that following the dismissal of the Whitlam Government on 11 November 1975, The Sydney Morning Herald did not publish the rest of an exposé that “may even have prevented more deaths” in the context of the preceding part of chapter 14 including p 177. This included that between 1963 and 1979 over 1000 patients had DST treatment at Chelmsford of whom 24 died at the hospital and 24 others committed suicide within a year of their release from it. The author acknowledged that it was hard to ascribe DST as the cause of the suicides. On p 179, immediately after it named the four doctors, the reader is told about three named patients’ deaths in the hospital and that 11 of the 24 who died there were under the age of 40. The book stated that one of those three named patients “died half an hour after Herron gave him ECT” (emphasis added) (p 179).
Chapter 14 later tells the reader that Dr Bailey committed suicide in 1985 and had left a note blaming the scientologists.
From p 181, the author discusses some of the activities of the psychiatric nurse, Ms Nicholson. She worked at Chelmsford on and off from late 1972. The reader learns that she had copied and removed medical records that she then provided to persons associated with the Church of Scientology to “blow the whistle on Chelmsford” (p 181). The author tells the reader on p 184 that she “was appalled at what she witnessed inside Chelmsford. The patients who received deep sleep therapy woke up heavily traumatised” (emphasis added). The author says that, in 1977, when she returned to work there, Ms Nicholson “was particularly damning about the cavalier attitude of the doctors. Although Bailey was making hundreds of thousands of dollars out of his patients, he was rarely there and Rosa had been back at Chelmsford for three weeks before she even saw him” (emphasis added). The footnotes to chapter 14 identified her testimony to the Royal Commission as the basis for this information.
Then, on p 190, the author informs the reader that, in 1988, the 60 Minutes television program revealed that at least seven people had died at Chelmsford during or after DST treatment between 1974 and 1977. The author said that the program “shocked the public” but, despite police and Health Commission inquiries, “the Chelmsford doctors continued to avoid accountability for their actions”.

Next, on p 192, the author tells the reader about the Royal Commission, that the “surviving Chelmsford doctors” gave evidence to it and précises its final report that revealed the 24 deaths and 24 suicides that he had also mentioned earlier on p 177. The author wrote that the Royal Commission had criticised the Department of Health “for failing to investigate the deaths”.
The ordinary reasonable reader would be led to think that Mr Hart was lucky to be alive after Mr Herron’s unauthorised treatment of him only because of Dr Francis’ actions in getting him out of Chelmsford. The passages on p 180 told the reader that Ms Nicholson exposed “the truth about the dozens of deaths caused by medical malpractice at Chelmsford Hospital”. The reader was told on p 180 that the dismissal of the Whitlam Government “buried Hart’s story and the series” that The Sydney Morning Herald had planned, and that “Herron and his colleagues at Chelmsford had dodged another bullet” that “may have even prevented more deaths”.
The reader was invited to read between the lines of chapter 14 and to adopt a suspicious approach as to what had occurred and on whom the blame for those deaths should be placed: Jones v Skelton (1963) 63 SR (NSW) 644 at 651 per Lord Morris of Borth-y-Gest, giving the advice of Viscount Radcliffe, Lords Jenkins and Guest, Sir Kenneth Gresson and himself; Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H–364C per Lord Keith of Kinkel giving the advice of Lords Elwyn-Jones, Roskill, Griffiths and himself.
The reader was invited to associate Mr Herron and his named colleagues, including Dr Gill, with the administration of the discredited, “dangerous and unproductive” treatments of DST and ECT that they, collectively, had administered to the 24 patients who had died at Chelmsford and to the 24 patients who committed suicide within a year after being discharged. Moreover, the reader would have understood that, unlike Mr Herron, Dr Gill and Dr Gardiner, Dr Bailey was not necessarily at Chelmsford often whereas the other three were there treating patients and supervising the administration of DST and ECT on them.
The thrust of chapter 14 was that that treatment and the use of DST and ECT was grossly negligent and lacked any medical justification. The reader was told this was “medical malpractice” that caused dozens of deaths. The reader would understand that Mr Herron and Dr Gill were, or were among, the four doctors who administered those treatments and that those were the doctors that had caused the 24 deaths at Chelmsford and possibly up to 24 suicides of patients within a year of their discharge. The matter complained of did not exclude or exculpate either Mr Herron or Dr Gill from responsibility for those outcomes or state for which of the deceased patients any of the four doctors was responsible.
The overall impression conveyed by chapter 14 and, in particular, the passages on p 180, was that each of Mr Herron’s and Dr Gill’s gross negligence as a psychiatrist in administering DST and ECT had caused the death of many of his patients. Accordingly, the book conveyed Imputation J.
1.6. Imputation K: The applicant, a psychiatrist, engaged in sustained medical malpractice and abuse of his patients
The primary judge held (at [618]–[621]):
618.     The applicants relied on:
P 180: The Herald had been planning to run a series on the abuse of mental health patients, but the sacking of the Whitlam government that afternoon buried Hart’s story and the series. Herron and his colleagues at Chelmsford had dodged another bullet. A Herald series would surely have brought out more victims of Chelmsford and put pressure on the government to act. It may even have prevented more deaths.
P 180: Rosa Nicholson became the central figure in exposing the truth about the dozens of deaths caused by medical malpractice inside Chelmsford Hospital.
P 181: When she returned as an undercover agent, she copied and removed medical records that became key pieces of evidence exposing a horror show of sustained medical malpractice and abuse.
619.     The respondents noted that the applicants also relied on text at pp 184, 192, 196, 198 and 201 although these references are not identified in the applicants’ final submissions (Schedule 2). On the basis that the respondents are correct, I note the respondents submissions as follows:
What was done to Mr Hart is detailed in the chapter, Mr Hart is identified as a patient of Mr Herron and his conduct in administering DST led to Mr Hart successfully taking civil proceedings against him for false imprisonment and assault and battery. However, the pleaded imputation is much wider and refers to ‘sustained’ medical malpractice and abuse. That would require some suggestion that Mr Herron engaged in similar conduct for more than one patient over a lengthy period of time.
The primary focus for this imputation is page 184 which contains reference to files retrieved by Rosa Nicholson comprising a ‘catalogue of psychiatric abuse and malpractice’. That description is contained in a paragraph which commences with ‘But Bailey was the one who was about to feel rattled’. It follows from a paragraph which sets out in detail various aspects of Dr Bailey’s conduct at Chelmsford Private Hospital. The ordinary reasonable reader is thereby directed to Dr Bailey’s conduct, rather than any suggestion that the ‘catalogue’ related to Mr Herron or Dr Gill.
620.     I agree with the respondents’ submissions. The only patient of Mr Herron’s who is mentioned is Mr Hart and full details are given of his treatment and its consequences. There is no other reference to any patient being one of Mr Herron’s (although there is a reference to Peter Clarke dying less than half an hour after being given ECT by Mr Herron). No patient of Dr Gill’s is mentioned. In contrast, the focus of the Chapter is on Dr Bailey as experimenting with DST at Chelmsford, as using DST, as DST being Dr Bailey’s theory, that Dr Bailey ignored Dr Sargant’s safeguards for narcosis, that Dr Bailey was dismissive and abusive of nurses during emergencies, that Dr Bailey would be rattled by the files showing a catalogue of psychiatric abuse and malpractice, and that Dr Bailey was feeling the heat.
621.     Accordingly, imputation K is not conveyed with respect to Mr Herron or Dr Gill.
(emphasis added)
The passages from pp 180 and 181 of the book emphasised in the above quotation from [618] of her Honour’s reasons are not confined, as the publishers asserted and the primary judge accepted, to Dr Bailey’s conduct. Rather, the ordinary reasonable reader would understand that the four named doctors participated in the “horror show of sustained medical malpractice and abuse”. After all, as noted at [59] above, Mr Cannane also told the reader that, “despite all of the press revelations, police and Department of Health inquiries, the Chelmsford doctors continued to avoid accountability for their actions”. The thesis of the author’s criticism of what went on at Chelmsford was that the use there of DST and ECT on the many patients over the years amounted to medical malpractice and abuse, that the Royal Commission ultimately exposed.
The reader was invited to conclude that each of Mr Herron and Dr Gill was one of the doctors responsible for that “sustained medical malpractice and abuse of his patients”. Indeed, chapter 14 used Mr Herron’s treatment of Mr Hart to provide a vivid illustration of the alleged malpractice and abuse of a patient. The chapter then went on to deal at a generalised level with the systemic nature of Mr Hart’s treatment at Chelmsford, saying in the caption under his photo “Barry Hart took on Chelmsford Private Hospital doctors [sic] in a series of legal cases” (emphasis added). The reader is told on p 177 that Mr Hart:
was a victim of gross medical negligence and abuse, but he was lucky to be alive. Between 1963 and 1979 over 1000 patients were subjected to deep sleep therapy at Chelmsford. Of those patients, 24 died at the hospital, and another 24 committed suicide within a year of their release, although it’s hard to pinpoint how many of these suicides related to pre-existing mental health conditions. The Church of Scientology played a major role in exposing the atrocities committed at Chelmsford, a rare instance where the Scientologists used their undercover operations as a force for public good.
(emphasis added, footnotes omitted)
Thus, the reader was invited to treat Mr Hart’s case as but one of those “atrocities” and him as a person who also helped expose what was going on at Chelmsford. And on p 184, Mr Cannane wrote that by the time that Ms Nicholson finished her last shift at Chelmsford in April 1978 “she had photocopied over 100 files comprising a catalogue of psychiatric abuse and malpractice”.
Next, on p 192, the reader is told in July and August 1988 that the Sydney Morning Herald “ran a hard-hitting series that exposed the impact of the medical abuses of Chelmsford Hospital on dozens of victims and their families”. And on p 196, Mr Cannane wrote that the scientologist, Mr Segal, remained “proud of the role he played in exposing the medical abuses of Bailey and his fellow Chelmsford doctors” (emphasis added). He continued (on p 198): “The exposure of psychiatric abuses inside Chelmsford is arguably Scientology’s finest moment in Australia”.
Accordingly, the reader would have understood that Imputation K was conveyed by the book about each of Mr Herron and Dr Gill.
1.7. Imputation L: The applicant, a psychiatrist, defrauded his patients’ health funds
Her Honour wrote (at [623]–[626]):
623.     The applicants relied on:
P 184: Rosa… salvaged a number of ECT books from the rubbish bin, which showed doctors defrauding the patient’s health funds.
624.     The respondents submitted:
This imputation is said to arise from the reference on page 184 to ‘doctors defrauding the patient’s health funds’. The reference must be read in context. It appears in a passage devoted to describing the documents obtained by Rosa Nicholson. Later on the page, the author refers to Dr Bailey ‘making hundreds and thousands of dollars out of his patients’ and to Dr Bailey being the ‘one who was about to feel rattled’. In light of those matters, the ordinary reasonable reader would conclude that the reference to defrauding of health funds was a reference to Dr Bailey. Neither applicant is mentioned in this context.
625.     While I accept that the reference on p 184 is to “doctors”, I agree with the respondents that read in context of the page as a whole the ordinary reasonable reader would understand that the reference to doctors defrauding health funds was a reference to Dr Bailey.
626.     Accordingly, imputation L is not conveyed with respect to Mr Herron or Dr Gill.
(emphasis added)
Her Honour erred in finding that the statement on p 184 “showed doctors defrauding the patients’ health funds” referred only to Dr Bailey based on a reading “in the context of the page as a whole”. The ordinary reasonable reader reads all of the matter complained of, not an excerpt from it, as a whole. While, as the publishers argued, the reader is fair-minded (Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 467 [6] per French CJ, Gummow, Kiefel and Bell JJ), he or she is not an over-zealous lawyer and does not live in an ivory tower as Lord Reid pungently put it in Lewis [1964] AC at 258: Favell 221 ALR at 190 [10].
The primary judge’s construction ignored the balance of chapter 14 which, like p 184, invoked how all of the four named doctors practised at Chelmsford. The author chose the word “doctors”, not “a doctor” or “Dr Bailey” to describe the perpetrators of the fraud that the retrieved “ECT books” revealed. The reader would understand that Mr Herron, not Dr Bailey, had administered ECT to Mr Hart and, presumably, the ECT books would record such treatment and the name of the doctor who administered it. Chapter 14 made pellucid that Dr Bailey was only one of the four doctors who used ECT treatment at Chelmsford. While the author tells the reader on p 184 that Ms Nicholson observed that Dr Bailey was making hundreds of thousands of dollars out of his patients but was rarely at Chelmsford in 1977, the sting of the statement about her salvaging the ECT books is that the books, not her observations of Dr Bailey or rather his absence, showed the fraud by the doctors.
The ordinary reasonable reader was invited to think that the doctors who ran the cult-like hospital were all consciously engaged in the administration of the dangerous and unproductive DST and ECT treatments, abuse of patients and restrictions on visiting rights. The reader would have understood that the ECT books that Ms Nicholson salvaged from the rubbish bin had exposed more than one of those same four doctors. No doubt, the reader would conclude that Dr Bailey was one of the doctors committing the fraud. But, having been told throughout chapter 14 of the discreditable conduct of all of the four doctors at Chelmsford, the ordinary reasonable reader would have eschewed parsimony when inferring who the asserted fraudsters were, especially when the chapter conveyed so many adverse imputations about all four doctors: Trkulja 263 CLR at 160–161 [32].
The reader would have understood chapter 14, read as a whole, to convey that each of Mr Herron and Dr Gill, as psychiatrists, had defrauded his patients’ health funds.
1.8. Imputation M: The applicant, a psychiatrist, traumatised many of his patients by giving them deep sleep therapy without their consent
The primary judge wrote (at [628]–[631]):
628.     The applicants relied on:
P 184: The patients who survived deep sleep therapy woke up heavily traumatised … Many were given deep sleep therapy without their consent.
629.     The respondents submitted that such an imputation:
…can be envisaged in relation only to Mr Herron (not Dr Gill) and only relating to the treatment of Mr Hart (not any other patients). The pleaded imputation is far wider. Read in context, the reference on page 184 to patients being treated without their consent would be read by the ordinary reasonable reader as a description of Dr Bailey’s treatments. The same can be said for page 192. The reference to patients being treated without consent is contained in the same sentence as the reference to Dr Bailey falsifying death certificates. The imputation is not conveyed by the matter complained of.
630.     I agree with the respondents. In the context of the Chapter as a whole it is not open to infer that the ordinary reasonable reader would understand that Mr Herron or Dr Gill traumatised many of their patients by giving them deep sleep therapy without their consent. Apart from Mr Herron’s treatment of Mr Hart, there is no reference to Mr Herron or Dr Gill administering DST. There are numerous references to DST being Dr Bailey’s treatment.
631.     Accordingly, imputation M is not conveyed with respect to Mr Herron or Dr Gill.
(emphasis added)
The opening three paragraphs of chapter 14 on p 176 describe Mr Hart “waking up from a deep sleep in agony and distress” and close to death, 10 days after his admission as a healthy fit man “in peak physical condition”. It stated: “When he tried to alleviate the pain by moving his arms, Hart realised that he was shackled. ‘Get these things off!’ he screamed. He could not understand what was going on, or what version of hell he had descended into”. The reader is told that while under DST, Mr Hart received ECT on six occasions over ten days (p 177). The reader would understand that this graphic description was of a man severely traumatised by the situation in which he found himself.
The reader is told, on p 177, that on his admission to Chelmsford in 1973, Mr Hart refused to sign a consent form to electric shock treatment (ie: ECT). The reader was told that Mr Hart’s solicitors had obtained access to his medical records at Chelmsford, but that these were missing a signed consent form for any DST or ECT treatment. In the photograph pages for the book that appeared in the middle of chapter 14, a picture of Mr Hart had a caption that began “Barry Hart took on Chelmsford Private Hospital doctors in a series of legal cases” (emphasis added). Next on pp 188–189 the reader learns that Mr Hart sued Mr Herron and that, in 1980, a jury found Mr Herron had falsely imprisoned, assaulted and battered Mr Hart because he had not consented to the DST and ECT treatment to which he had been subjected.
The primary judge’s reasons in [630] overlooked the detailed treatment in chapter 14 of Mr Herron’s failure to obtain Mr Hart’s consent to the administration of DST and ECT treatment, including its description of the jury verdict that Mr Herron committed assault and battery on Mr Hart because the latter had not consented. And Chapter 14 made clear that Mr Herron’s patient, Mr Hart, was deeply traumatised by that treatment, including when he awoke from the DST treatment and “could not understand what was going on, or what version of hell he had descended into”.
The ordinary reasonable reader would have immediately identified Mr Hart as a patient that the passage on p 184 described as a survivor of DST and ECT who woke up heavily traumatised and who had not consented to that treatment. And, chapter 14 left no doubt that Mr Herron was the doctor responsible for Mr Hart’s experience, as its description of the jury’s verdict made clear.
Similarly, although Dr Gill was named only once, on p 179, as one of the four Chelmsford doctors, that very passage on p 179, and in addition, chapter 14 read as a whole, referred to them collectively as the persons responsible for the administration of DST and ECT treatment. While chapter 14 described Dr Bailey as the person who began using DST in Chelmsford, the reader would have understood that all the four doctors used that treatment and ECT and that this use was the source of the categorisation on p 181 of a “horror show of sustained medical malpractice and abuse”. After all, the reader had been told at pp 178–179 that the “advance warnings from senior figures in the medical profession did not deter Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did the death toll mounting before their eyes”.
While, as the publishers argued, Mr Hart is the only person named in chapter 14 as having been treated without his consent, that argument ignored the implication that the reader would draw from the passage on p 184 that many patients “were given deep sleep therapy without their consent”. The reader was invited to think that the author had researched the subject-matter in chapter 14 with the benefit of the findings of both the jury in Hart v Herron and of the Royal Commission.
With respect, there was no basis for the primary judge to conclude that the ordinary reasonable reader would not have understood the passage on p 184 to refer to both Mr Herron and Dr Gill. Read in the context of chapter 14 as a whole, Imputation M was conveyed about each of Mr Herron and Dr Gill.
2. THE OPERATION OF S 56 OF THE EVIDENCE ACT ISSUE
I have had the advantage of reading the reasons of Lee J on the operation of s 56 of the Evidence Act issue and agree with them.
3. THE S 17(2) OF THE ROYAL COMMISSIONS ACT ISSUE
On the third day of the trial, the primary judge ruled that s 17(2) of the Royal Commissions Act (the NSW Act) did not preclude the publishers from tendering in evidence two documents that Dr Gill contended had been produced by him to the Royal Commission under compulsion pursuant to s 17(1): Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805.
At the time of the Royal Commission proceeding, s 17 provided:
17 Answers and documents
(1)A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate him, or on the ground of privilege, or on any other ground.
(2)An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.
(3)Nothing in this section shall be deemed to render inadmissible:
(a)any answer, document or other thing in proceedings for an offence against this Act,
(b)any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1),
(c)any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.
(4)This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.
…

I will consider each of these findings in turn.
The Fawdry meeting
In canvassing the evidence of Ms Fawdry (at J [103]–[105]), her Honour noted that “Ms Fawdry recalled an occasion where she, Dr Gill, Mr Herron and Mollie Sansom (the receptionist) were in the Matron’s office discussing Mr Hart”. To the best of her recollection the conversation in the Matron’s office was as follows:
In that conversation [it] was being discussed about how they could disguise the fact that Barry’s ECT wasn’t signed. The ECT authority was on the bottom of the identification sheet - the front page of the notes, and so it was sort of, like, I guess, a half an A4 size, and that wasn’t signed. So I can recall someone suggesting that perhaps we could - they could put a pathology report over the top of it to disguise the fact that that particular form wasn’t signed for.
In explaining why she had earlier denied the existence of this conversation to police, Ms Fawdry said:
I was very reticent to be part of anything that was going to threaten my registration. I was working as a registered nurse, I was a sole parent with three children, and I didn’t actually lie, but I just didn’t expand on the truth and I dodged around the issue so that I didn’t have to talk about it at all.
Ms Fawdry said the first time she ever told the truth about the conversation was at the Royal Commission because she did not have much to lose by then.
In respect of this evidence, her Honour ultimately concluded (at J [560]):
Contrary to the applicants’ submissions about the form for Mr Hart which had the bottom cut off (where the consent to ECT with a place for a signature appeared cut off and replaced by a copy of another form), I find Ms Fawdry’s evidence to this Court wholly believable. She said that in about 1978 she was involved in a meeting with Dr Gill, Mr Herron and Ms Sansom where it was discussed how the fact that Mr Hart’s ECT form was not signed could be disguised. Someone suggested that they could put a pathology paper over the top of it to disguise the fact that the form was not signed. Ms Fawdry’s evidence that she had not previously been frank in her dealings with police and others about her knowledge of this meeting due to fear for her nursing registration made sense. The applicants’ convoluted attempts to dismiss or explain away Ms Fawdry’s evidence are unconvincing. Having seen and heard Ms Fawdry’s evidence I have no doubt she was telling the truth about the meeting in the Royal Commission and in this proceeding.
Dr Gill submitted that this finding is “glaringly improbable” in circumstances where Ms Sansom denied being present at any such meeting, as did he and Mr Herron. It is said that notwithstanding Ms Sansom was called by the publishers, the primary judge failed to have regard to her evidence. It is said that this evidence should have been preferred in circumstances where Ms Fawdry denied being present at or aware of any such meeting to police in 1981 and made subsequent denials to police and to Mr Herron to the same effect over a number of years. Further, it is said that the content of the meeting as it is alleged by Ms Fawdry makes no sense given that the document in question had already been discovered by Mr Hart’s lawyers to not include his signature when they had custody of the medical records before this meeting is said to have occurred.
Dr Gill submitted this finding affected her Honour’s conclusion as to the truth of Imputation D. Although it might be thought this submission has some substance, for reasons I will explain, it is again unnecessary to express a concluded view on this issue.
Falsification of death certificates by Dr Gill
While the primary judge found that the imputation that relates to this finding (Imputation G) was not conveyed, her Honour went on to conclude that it was nevertheless true with respect to Dr Gill, based on the findings her Honour made in respect of Ms Bennett. The details of Ms Bennett’s death, as recorded by Dr Joseph, are detailed above (J [475(2)]). Relevantly, Ms Bennett’s death certificate, signed by Dr Bailey, records the cause of death and other information as follows:
(1)the direct cause of death was a coronary occlusion;
(2)the antecedent cause of death was excess obesity;
(3)chronic lumbar spine disease and excess obesity contributed to the death; and
(4)Dr Bailey had last seen Ms Bennett on 30 October 1975.
As will be recalled, Dr Joseph examined the relevant documents and concluded that the stated cause of death was probably incorrect and the most probable cause of death was that she had drowned in her own secretions, and that DST was the primary cause of death: see J [475(2)].
In the light of this evidence, her Honour found (at J [705]–[706]):
There is no reason not to accept Dr Joseph’s opinions in preference to those of Dr Bailey who had a strong motive not to wish to see another inquest into a DST caused death. It must be inferred that Dr Bailey falsified the death certificate to avoid identifying DST as the cause of death. There is also no evidence that Dr Bailey saw Ms Bennett on 30 October 1975 and I conclude that [this] part of the certificate is also false.
Dr Bailey was with Dr Gill at the time he signed the death certificate. The nurse’s notes for Ms Bennett record that both Dr Bailey and Dr Gill attended Ms Bennett shortly after her death. The cause of death from the death certificate is recorded next to their names in the notes.
(Internal citation omitted).
Her Honour went on to accept the submissions of the publishers that “despite stating that he had no recollection of Ms Bennett’s death, Dr Gill refused to accept that as an attending doctor he would have discussed with Dr Bailey, or even considered, her possible cause of death”, and that Dr Gill must have known the cause of death listed by Dr Bailey and that it was false: J [706]. Her Honour concluded (at J [707]):
It is inconceivable that Dr Bailey and Dr Gill did not discuss and agree upon the stated cause of death of Ms Bennett. They both had good reason to wish to avoid implicating DST in her death. The objective evidence combined with their strong motive establishes the inference that they agreed to identify her cause of death as coronary occlusion despite there being no evidence to support that conclusion. In other words, Dr Bailey and Dr Gill were involved in the falsification of Ms Bennett’s death certificate.
The difficulty on appeal with this reasoning is that I have reached the conclusion that the evidence of Dr Joseph, as one of the Dead Experts, should not have been before her Honour. In circumstances where Dr Joseph’s opinion that “I do not think that Dr Bailey who signed the death certificate was in a position to know the true cause of death” was a critical – if not the critical – integer in her Honour reaching the conclusion that Dr Gill falsified the death certificate of Ms Bennett, this finding cannot be sustained. This part of Ground 4(o) should succeed.
Falsification of death certificates and fraud committed by Mr Herron
As was the case with Dr Gill, while the primary judge found that the imputations that related to these findings (Imputations G and L) were not conveyed, her Honour went on to conclude that they were nevertheless true with respect to Mr Herron.
In respect of the first matter, that Mr Herron falsified death certificates, her Honour relied on the evidence concerning Ms Francis. Her Honour found that the evidence establishes on 14 March 1976 Mr Herron completed the death certificate for Ms Francis, stating she had died of myocardial infarct and did not mention that she had been receiving DST when she died: J [696]. Her Honour noted that Mr Herron completed the death certificate despite the fact that Ms Francis had died within 24 hours of being administered anaesthetic, which was an offence according to s 57(4) of the Registration of Births, Deaths and Marriages Act 1973 (NSW): J [697].
Based on what the primary judge found to be a number of inconsistencies in the evidence given by Mr Herron in earlier proceedings and to the Royal Commission, her Honour rejected any contention that he did not falsify the death certificate, and instead accepted the submissions of the publishers that he “signed the death certificate for Ms Francis, despite knowing that this was unlawful”: see J [698]–[703]. As to the motive for this act, her Honour accepted the publishers’ submissions that “he did so to avoid a coronial inquiry into Ms Francis’ death so as to avoid scrutiny of the experimental drug regime which caused Ms Francis’ death”: see J [702]. The primary judge concluded (at J [703]):
Mr Herron’s self-serving and inconsistent evidence over the years leads to the conclusion that he signed the death certificate to avoid a coronial inquiry into Ms Francis’ death when, on the evidence, the actual cause of death was DST. In any event, the evidence of Dr Kariks, a pathologist, is clear – there was no evidence of a myocardial infarction in Ms Francis’ death. Mr Herron’s stated cause of death was false. In all of the circumstances it must be inferred that Mr Herron identified myocardial infarction as the cause of Ms Francis’s death rather than DST deliberately because he wished to avoid any scrutiny of DST as the cause of her death. As such, the evidence establishes that Mr Herron falsified the death certificate of Ms Francis.
As to the second matter, that Mr Herron and Dr Gill defrauded their patients’ health funds, while the primary judge found that the imputation was not conveyed, her Honour nevertheless concluded it was true with respect to Mr Herron (but not Dr Gill). In reaching this conclusion, her Honour noted that it is not in dispute that Mr Herron overcharged his patients and the Commonwealth for anaesthetic that he did not provide in the period 1973 to 1978: J [745]. Her Honour then summarised the publishers’ contentions as to the arrangements in place for the billing at Chelmsford, namely that Mr Herron would instruct his wife, Mrs Herron, what to charge each patient, and that he had an arrangement with Dr Gardiner whereby, when Dr Gardiner saw one of Mr Herron’s patients, Mr Herron kept a small amount of the fee and he paid the rest to Dr Gardiner: see J [747]–[748]. In respect of these matters, her Honour concluded (at J [479]) that:
Given the confusion in the evidence I am not persuaded that I can infer the existence of a fraudulent arrangement between Mr Herron and Dr Gardiner. However, the evidence about Mr Herron’s routine charging for anaesthetic in relation to ECT in circumstances where he mostly did not administer anaesthetic to DST patients is in a different category. Mr Herron must have instructed his wife to submit charges for anaesthetic. He knew he administered many ECTs without anaesthetic. It is impossible to believe that Mr Herron did not know that he was charging over many years for anaesthetics which had not been administered. The inference of dishonest intent must be drawn.
(Emphasis added).
On appeal, in respect of both matters, the core submission advanced by Dr Gill is that the evidence is simply insufficient to ground such serious findings.
As to the falsification of death certificates, it was said that the primary judge erred in concluding that it must be inferred that Mr Herron identified myocardial infarction as the cause of death to avoid scrutiny, as there is no evidence of knowledge on the part of Mr Herron that the stated cause of death was wrong.
As to the finding of fraudulent overcharging, it was said that the evidence reveals a number of patients received anaesthetic administered by Mr Herron, and he relied on handwritten documents that the Chelmsford staff prepared, which did not obviously identify which patients received an injection, nor is it known what records the Chelmsford staff relied on to create these handwritten documents. It was submitted that the accuracy of records is critical in assessing whether or not the publishers have proven the billings were not simply a result of oversight or shambolic practices. Indeed, it was said that in circumstances where Mr Herron has continued to deny this allegation, and the evidence reveals that alongside instances of overcharging, there are also instances of undercharging, the primary judge could not have reached the level of satisfaction necessary to conclude that Mr Herron engaged in fraud.
With respect to her Honour, I am inclined to agree, particularly when one appreciates the findings which I have made in respect of the evidence of the Dead Experts.
The allegations are very serious. As Sir Owen Dixon emphasised in a number of cases: when the law requires proof of any fact, the tribunal of fact “must feel an actual persuasion of its occurrence or existence before it can be found” (Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361)); a party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon (1937) 59 CLR 395 (at 403)); and the “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied” (Jones v Dunkel 101 CLR 298 (at 305)). These statements now find statutory force by way of s 140 of the Evidence Act, which not only requires (by way of subs (1)) that the decision maker must be satisfied on the balance of probabilities, but also (by way of subs (2)) requires the decision maker to consider each of the following matters when determining whether a case is proved on the balance of probabilities: (a) the nature of the cause of action or defence; (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged.
It is of note that the primary judge’s findings in this respect were necessarily based on the rejection of the evidence of Mr Herron. That underlying credibility finding itself was informed by Mr Herron’s denial that DST caused deaths at Chelmsford, which her Honour found was inconsistent with the weight of the evidence, including, notably, the reports of Dr Gandevia and the other Dead Experts. In circumstances where the evidence of the Dead Experts should not have been before the primary judge, for reasons I elaborate upon below, it is unknown the extent to which this assessment of credibility would have been the same, and whether the level of satisfaction required to sustain such serious findings of fraudulent activity should have been reached on the evidence properly admitted. In my view, this aspect of Ground 4(o) is made out.
D IMPLICATIONS OF THE FINDINGS AS TO GROUND 4
Having dealt with the substance of Ground 4, it is necessary to turn to consider how these findings affect the primary judge’s conclusions as to truth.
At this point, it is important to note that for reasons explained by Rares J, all imputations were conveyed. The consequence of this is that the primary judge’s findings as to substantial truth are brought into sharp focus. This is because, notwithstanding the primary judge’s findings as to meaning, her Honour found that for all but one of the imputations in respect of Dr Gill, the imputations were substantially true.
It should also be emphasised that the reason why it is necessary to consider the imputations relevant to Mr Herron in this section is for the reasons outlined by Rares J above – that is, notwithstanding the operation of s 10 of the Defamation Act, Dr Gill is entitled to contest the findings underpinning Mr Herron’s claim for defamation.
D.1 The imputations and the primary judge’s reasoning
Before turning to consider the impact of my findings on the primary judge’s conclusions as to truth, it is necessary to canvass, on an imputation by imputation basis, the reasoning that led her Honour to conclude the vast bulk of the imputations (whether found to be conveyed or not), were substantially true (noting that imputations A, B, C, D, I and N, are relevant to Mr Herron only).
In respect of Imputation A, that Mr Herron’s gross negligence as a psychiatrist nearly killed his patient Mr Hart, the primary judge rejected that the publishers were unable to demonstrate Mr Herron was negligent as a psychiatrist, and that the truth of this imputation turns on the evidence of Mr Hart who was not subjected to cross-examination but who was seriously discredited at the Royal Commission: J [645]–[646]. Importantly, her Honour found that “[b]y administering DST to Mr Hart in 1973 Mr Herron’s conduct fell so far below the standard of care of a reasonable psychiatrist that the infliction of the treatment on Mr Hart must be found to constitute gross negligence”, and “[t]he evidence is also clear that the treatment nearly killed” him: J [646]. The evidence of Dr Smith and Dr Phillips was said to support this finding, and the “grossly negligent” treatment Mr Hart was subjected to at Chelmsford more generally.
In addressing Imputation B, that Mr Herron falsely imprisoned his patient Mr Hart, her Honour rejected the submissions of Mr Herron and Dr Gill that Mr Hart was an “opportunistic liar”, that “[h]e knew about the treatment he was prescribed and consented to it”, and any assertion that he was given a “magic white pill” was a complete fabrication: J [649]–[650]. Her Honour found “Mr Hart’s consistent evidence that he did not consent to DST and ECT should be accepted”, noting that “[e]ven if Mr Hart’s reference to having been given a pill which made him unconscious is incorrect, that does not undermine the credibility of the essence of his complaint, that he was subjected to DST and ECT without his consent”: J [650]. Her Honour observed that, in any event, “it is clear Mr Hart was rendered unconscious and maintained in a drugged and stuporous state without his consent which made him effectively a prisoner at Chelmsford”: J [650].
As to Imputation C, that Mr Herron caused his patient Mr Hart to deteriorate, in ten days, from a fit 37 year old man in peak physical condition to a person in agony and distress, vomiting blood and unable to move his limbs, her Honour observed that “Mr Hart’s evidence about his peak physical condition was persuasive” and when he came around from DST he was in agony, felt paralysed, suffered severe chest pain and vomited blood: J [654]. Her Honour stated that “[i]t is obvious that Mr Herron’s subjecting of Mr Hart to DST and ECT had caused him to deteriorate from a fit 37 year old man in peak physical condition to a person in agony and distress, vomiting blood and unable to move his limbs”: J [654].
In respect of Imputation D, that Mr Herron caused his patient Mr Hart to be sedated and given electric shock treatment on six occasions, without Mr Hart’s consent, her Honour found that “the inferences that must be drawn from the evidence are clear”; namely that Mr Hart was never told what DST involved and did not consent to DST and refused to consent to ECT, but Mr Herron nevertheless caused Mr Hart to be sedated and given ECT on six occasions: J [660]. This finding was based on, among other things, Mr Hart’s evidence, the lack of a consent form from Mr Hart for ECT, and the “cavalier attitude taken by all the doctors involved in DST at Chelmsford to the fundamental issue of consent”: J [660].
Imputation E is that Mr Herron and Dr Gill used deep sleep treatment on their patients, despite trials by other doctors deeming the practice too dangerous. In finding this imputation was substantially true, her Honour relied on a statement given by Dr Barclay to the Royal Commission that there was a small trial involving patients at Parramatta Psychiatric Centre in 1957, in relation to which Dr Barclay said: “We decided that we didn’t think it was terribly effective and it scared the living daylights out of us. We thought it was too dangerous to go on with at least so far as we were concerned in that setting. I mean, we just didn’t like it”: J [679]. In doing do, her Honour rejected the submission of Mr Herron and Dr Gill that this three line statement to the Royal Commission, in respect of which they had no opportunity to cross-examine, was insufficient to prove this imputation: J [679]–[681].

Imputation F relates to deaths at Chelmsford, namely that Mr Herron and Dr Gill continued to use deep sleep treatment on their patients despite the number of deaths it caused. This imputation was found to be conveyed: J [601]. In concluding that the imputation was true, her Honour stated that “[t]here is ample evidence that DST caused a significant number of deaths” and that “[t]he evidence is also clear that Mr Herron and Dr Gill knew that patients had died while undergoing DST at Chelmsford”: J [687]. Her Honour observed that “[t]he reliable evidence is that of the respondents’ experts and the patients”: see J [688]. This included the evidence of the Dead Experts.
The reasoning of the primary judge in respect of Imputation G, relating to whether Mr Herron and Dr Gill falsified death certificates, has been detailed extensively above: see [604]–[608], [609]–[618]. There is no need to repeat it here.
Although the primary judge found Imputation H was not conveyed, her Honour found that if it were, it was substantially true. Imputation H is that Mr Herron and Dr Gill lied to their patients’ families about how ill the patients were and denied those families visitation. In reaching this conclusion, her Honour made reference to various aspects of the evidence, including: Ms Bothman’s evidence that she was “given strict orders that patients were not allowed to have visitors while they were in the Sedation Wards”; Ms CO’s evidence that she was told, in respect of her husband, “[y]ou’re not allowed to see him while he’s in sedation, it’s out of bounds”; Mr Nam’s evidence that he was told not to come in and see his wife while she was in sedation; Mrs Clarke’s evidence that she was not allowed to see her husband and told he was “doing well”, when this was not the case; and the fact that Mr Hart’s mother and sister were apparently told he was sleeping and not to be disturbed when in fact he was severely ill during DST: see J [719]–[725]. Her Honour concluded that it must be inferred that there was a general policy which was adopted by all of the doctors involved in DST that patients were not to have visitors while under DST and that their families were not to be informed about complications arising during DST including, if necessary, lying to the family by telling them the patient was asleep or doing well when in fact they were suffering from one of the many known complications of DST: see J [727]. Her Honour noted that in “a small hospital such as Chelmsford Mr Herron and Dr Gill must have been actively complicit in the existence and enforcement of such a policy”: J [727].
As to Imputation I, that Mr Herron’s gross negligence as a psychiatrist caused Mr Hart to suffer brain damage and post-traumatic stress, her Honour found that “there is good reason to accept Dr Smith’s evidence that Mr Hart suffered anoxic brain damage”, given “Dr Smith interviewed Mr Hart in 1979 for four and a half hours and reached this conclusion” and “was qualified to do so”: J [664]–[665]. Her Honour stated that “Dr Smith is the only expert who has assessed Mr Hart in person post-Chelmsford, and therefore his evidence should be accepted”: J [665]. The primary judge found that this was corroborated by Mr Hart’s evidence “that he suffered post-traumatic stress as a result of his experiences at Chelmsford”, which her Honour found to be consistent with the potentially traumatising nature of DST and the evidence of other patients about the impact their treatment at Chelmsford has had on their lives: J [666].
Imputation J again relates to the purported gross negligence of Mr Herron and Dr Gill causing the death of patients. While the primary judge found that this imputation was not conveyed, her Honour concluded that if it was conveyed, it was true: J [732]–[732]. The primary judge relied on the evidence of the Dead Experts and the Publishers’ Other Experts to support this finding, stating that, “[o]n the evidence, 23 deaths were caused by DST”: J [732]. Her Honour noted that “[a]ll of this involved continuing gross negligence by Mr Herron and Dr Gill … [t]hey must have been wilfully blind to the harm which they were involved in perpetrating”, and “by their conduct, Mr Herron and Dr Gill materially contributed to (that is, caused) the death of many patients at Chelmsford from DST”: J [732].
Imputation K was similarly found not to be conveyed, but substantially true in any event; that is Mr Herron and Dr Gill engaged in sustained medical malpractice and abuse of their patients. In rejecting the submissions of Mr Herron and Dr Gill that the use of DST on patients could not be considered malpractice given the literature, its long term use by Dr Bailey, and that no abuse of patients was ever put to Mr Herron or Dr Gill, her Honour stated that “the administration of DST by Mr Herron and Dr Gill to their patients … constituted sustained medical malpractice and abuse of patients”: J [736]–[737].
I have already dealt above with the primary judge’s reasoning in respect of Imputation L, which relates to whether Mr Herron and Dr Gill defrauded patients’ health funds: see [609]–[618].
While the primary judge found Imputation M was not conveyed, her Honour noted that even if it was, it was substantially true: J [753]–[754]. That is, Mr Herron and Dr Gill traumatised many of their patients by giving them DST without their consent. Her Honour was “satisfied that DST patients did not give informed consent to the procedure”, because to do so they would have to have been informed of the risk of death and serious complications associated with DST; disclosures her Honour found it was highly implausible Mr Herron and Dr Gill were willing to make: J [753]. The process of informed consent, her Honour said, “would have ensured that no patient was willing to undergo the procedure”: J [753]. Her Honour concluded that “[f]rom the evidence, it must be inferred that there was a deliberate policy of describing DST to patients, if at all, in misleadingly euphemistic terms (such as a nice sleep or rest) without any reference to the risks or side effects involved”, which ensured “no patient could give meaningful consent”: J [753].
In respect of Imputation N, that Mr Herron assaulted and battered his patient, Mr Hart, her Honour accepted that “the ordinary reasonable reader would understand the term ‘assault and battery’ as being harmful or offensive contact with another person’s body without that person’s consent and without lawful excuse”: J [673]. Her Honour found that Mr Herron caused Mr Hart “to be administered sedating drugs which kept Mr Hart effectively unconscious for 10 days … [and] he administered ECT to Mr Hart on six occasions”, in both cases the contact with Mr Hart being harmful and offensive and done without his consent: see J [674].
D.2 Examining the implications
As I have canvassed above, the grounds of appeal which succeed are Grounds 4(d) and 4(o) (except in respect of the Fawdry meeting). The effect of these findings is that the evidence of the Dead Experts should never have been before the primary judge, and the conclusion of the primary judge that Mr Herron and Dr Gill falsified death certificates, and Mr Herron defrauded patients cannot be sustained. While the direct consequences of these findings may be relatively simple to ascertain, it is necessary to consider their broader impact carefully.
The direct consequences
In the light of the above findings, attention is immediately drawn to Imputations F, G, J and L, where the direct consequences of these findings can be easily seen.
Imputations G and L are simple. The conclusion of the primary judge that Mr Herron and Dr Gill falsified death certificates, and Mr Herron defrauded patients, was erroneous, and the findings of truth in this respect should be overturned.
Imputations F and J add a layer of complexity. As is evident from the above, a critical integer in the reasoning of the primary judge in respect of these imputations was the premise that DST at Chelmsford caused multiple deaths.
The publishers contend that the primary judge’s use of the evidence of the Dead Experts was limited in the ultimate finding that DST caused deaths, noting that Dr Gandevia’s report was one of a number of items of evidence upon which the primary judge relied, and the reports of the other three Dead Experts were used by the primary judge to “confirm” that a particular death was caused by DST: see J [502]. It is submitted that her Honour’s ultimate conclusion as to the causal connexion between DST and deaths at Chelmsford would not have altered in the absence of the reports of the Dead Experts.
For reasons that follow, this submission ought not to be accepted.
I have detailed above the principles applicable to appellate restraint: see [398]–[401]. I am conscious that appellate restraint is not confined to credibility findings per se, but also all the advantages enjoyed by the trial judge, which may vary on a case by case basis, but generally includes facts in relation to which a judge made findings based on the evidence of a witness seen and heard by the judge.
Part of the evidence relied upon by her Honour in resolving the question of substantial truth in respect of Imputations F and J falls into this category. At J [502], when considering whether DST caused deaths at Chelmsford, her Honour referred to the evidence of the serious risks presented by DST, the kinds of complications to which DST is expected to give rise, the evidence of Professor Whyte about dosage regimes and the death rate he calculated from DST, the report of Dr Gandevia, and the admissions of Mr Herron. The primary judge found that the weight of the evidence overall was compelling and that even without Mr Herron’s admissions, the evidence was sufficient to be satisfied that DST caused the death of 23 patients (including the evidence referred to in the numbered subparagraphs of J [502]).
In forming the view that Mr Herron’s admissions were significant, the primary judge explained (at J [33]) that Mr Herron accepted during the Royal Commission that 26 people had died during or immediately after DST and that DST was a significant contributing factor to their deaths. This was in contrast to his evidence below that he did not accept that DST was a cause of these patients’ deaths. After having had the benefit of seeing Mr Herron, the primary judge concluded that it was difficult to imagine him having made any concession at any time unless it was unavoidable and that no cogent reason for the change in position was advanced.
But while her Honour’s conclusion was based on this evidence of Mr Herron, and the evidence as a whole, it is evident that the reports of the Dead Experts were clearly of importance. Indeed, the report of Dr Gandevia was a basis upon which her Honour considered it could be “safely inferred that DST caused (in the sense that it was a material contributor to) no less than 23 deaths at Chelmsford”: J [502].
As I have explained, the problem is that this report, together with the opinions of the other Dead Experts, ought not to have been before her Honour. This means we are dealing with more than a question of excessive weight to be given to part of the evidentiary mosaic, when a conclusion is based on the whole of the mosaic including evidence, in respect of which, the trial judge enjoys an advantage in assessing. The opinions of the Dead Experts were of importance and the Full Court cannot, as it were, unscramble the egg. The consequence is that it is unrealistic for a Full Court to unpack all the evidence on the topic of deaths at Chelmsford and conclude that the same finding should have been reached as to the truth of imputations F and J with elements of the evidentiary material absent.
The indirect consequences
Demarcating clear lines within the broader penumbra is less certain.
In respect of all of the other imputations, it is not immediately apparent that her Honour placed reliance on the evidence of the Dead Experts in finding that the relevant imputation was substantially true. But it would be superficial to conclude, if the evidence directly referenced in support of a finding of truth is not impugned, that the finding of substantial truth should stand.
The difficulty of attempting to reassess the whole of evidence that is left is compounded where, as here, the findings below build upon and complement each other. For example, it is no stretch to say that the conclusion a medical practitioner was negligent or engaged in malpractice is far easier to draw where there is evidence that that practitioner’s treatment caused the death of patients.
Any attempt to ascertain defined boundaries in the decision making process is also complicated where the decision-maker has accepted, and relied upon other evidence, which takes as a central premise the factual finding which is infected by the inadmissible evidence. This issue is particularly acute when one considers the evidence of the Publishers’ Other Experts. For example, as outlined above (at [581]), Professor Parker gave the following evidence:
I think we have to look at what is the basic issue of concern. The basic [issue] of concern is at least 24 people died. And that is an extraordinary event. And that deaths occurred for an extended period of time without those deaths being seemingly notified.
(Emphasis added).
As the primary judge recorded, Professor Parker had assumed that DST had caused deaths: see J [282]. At the time of hearing this evidence, the primary judge would have identified no difficulty with the expert proceeding upon this assumption – it largely accorded with the evidence of Dr Gandevia that her Honour had accepted. Indeed, her Honour ultimately concluded that nothing “came close to challenging [Professor Parker’s] fundamental proposition” that “DST continued at Chelmsford after several patients had died which was unacceptable clinical practice”: see J [299(2)]. But when the evidence of the Dead Experts is put to one side, the problem is brought into focus. Should the opinions of Professor Parker be accepted if the evidence of the Dead Experts is not admissible? Should greater scrutiny be applied to the assumptions upon which Professor Parker proceeded in giving his evidence? What effect does the answer to these questions have on the weighing of other evidence? All of these complexities arise in one simple example, the cascading ramifications of which (as to the gross negligence or malpractice Imputations A, B, C, D, E, H, I, K, M and N) are far too intricate to unpack and put back together.
I accept that the finding of truth in respect of a number of these imputations relied heavily on other evidence, such as the hearsay notice of Mr Hart and the evidence of past patients and their relatives. But in circumstances where the evidence of the Dead Experts formed an integral part of what might be described as the consequences of the practices at Chelmsford (that is, death), and this evidence influenced that of the Publishers’ Other Experts, it is speculation for a Full Court to determine on appeal that substantial truth had been proved on only the material that ought to have been in evidence (and assessing this evidence in the absence of the excluded material).
To the extent it is necessary, I am fortified in this view by reason of:
(1)the fact that there are, with respect, difficulties with ascribing weight to some of the evidence relied upon to sustain a finding of truth in respect of those imputations which might be said to lay on the outer limits of the penumbra. For example, the primary judge’s finding of truth in respect of Imputation E was based on a three line statement made by Dr Barclay to the Royal Commission. The difficulty is that this evidence is in much the same boat as that of the Dead Experts, and critically, Dr Barclay’s evidence could not be tested in cross-examination.
(2)the impracticality of the Full Court, for reasons explained above, considering the discretionary exclusion of the Royal Commission Material in some sort of omnibus fashion. Given the reasons of Rares and Wigney JJ, it is at least possible that if the alternative s 17 argument advanced by Dr Gill is successful (that is, parts of the Royal Commission Materials should be the subject of discretionary exclusion), the extent of the properly admitted Royal Commission Materials on the question of substantial truth may be different than those Royal Commission Materials before the primary judge in reaching her conclusions.
E CONCLUSION AND ORDERS
In the light of the above, Dr Gill is entitled to a retrial on the defence of substantial truth in respect of Imputations E, F, G, H, J, K, L and M. I agree with what Rares J has said about the position of Mr Herron and with the form of orders proposed by Rares J.

I certify that the preceding three-hundred-and-fifty-two (352) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.
Associate:
Dated: 29 April 2022

Appeal from:	Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805 Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687
File number:	NSD 1387 of 2020
Judgment of:	RARES, WIGNEY AND LEE JJ
Date of judgment:	29 April 2022
Catchwords:	DEFAMATION – whether pleaded imputations conveyed by matter complained of – where matter complained of named applicant doctors and later made generalised defamatory assertions as to misconduct not specifically attributed to applicants – whether ordinary reasonable reader would understand imputations conveyed in respect of applicants HIGH COURT AND FEDERAL COURT – whether s 17(2) of the Royal Commissions Act 1923 (NSW) has application in a federal court – consideration of the principles concerning the relationship between State laws and the exercise of federal jurisdiction – whether s 17(2) Royal Commissions Act purports to regulate the exercise of federal jurisdiction – whether a law of the Commonwealth “otherwise provide[s]” within the meaning of s 79 of the Judiciary Act 1903 (Cth) – s 17(2) Royal Commissions Act directly and logically inconsistent with s 56(1) of the Evidence Act 1995 (Cth) CONSTITUTIONAL LAW – whether a finding that s 17(2) of the Royal Commissions Act has no application in a proceeding being conducted in a federal court infringes the principle in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 or in some way produces an outcome inconsistent with s 118 of the Constitution EVIDENCE – statutory construction – Royal Commissions Act s 17(2) – whether s 17(2) prevents evidence given and documents produced under compulsion by applicant to Royal Commission being admissible against applicant DEFAMATION – defence of qualified privilege – Defamation Act 2005 (NSW) s 30 – whether conduct of publisher in publishing independent author’s book could be found reasonable in circumstances where no evidence led of publisher’s state of mind as to content of book – where author failed to seek comment from applicant or put his side of story – where publisher chose to omit relevant information that favoured applicant – whether publication reasonable in circumstances if publisher relied only on adverse findings by Royal Commission without making enquiries of applicant or putting his side of the story DEFAMATION – Defamation Act s 10 – whether conduct of appeal against orders dismissing proceeding with costs is assertion, continuation or enforcement of deceased’s cause of action for defamation – whether surviving appellant who gave undertaking at trial to pay deceased’s costs could challenge order dismissing deceased’s proceeding with costs – whether cause of action in defamation merged in judgment creating independent rights and obligations EVIDENCE – hearsay notices issued pursuant to s 67 of the Evidence Act – consideration of the strictures of s 67 of the Evidence Act and cl 6 of the Evidence Regulations 2018 (Cth) EVIDENCE – where the primary judge admitted and relied upon the reports of four dead experts who gave evidence to the Royal Commission – whether the primary judge erred by falling to exclude the reports of the dead experts because they do not fall within a hearsay exception or otherwise do not satisfy the statutory precondition to admissibility in s 79 of the Evidence Act – whether the primary judge erred by failing to exclude the reports of the dead experts pursuant to s 135 of the Evidence Act or limit the weight to be attributed to them – principles applicable to the weight to be attributed to the evidence of persons unable to be cross-examined – proper to treat with considerable reserve evidence, or the inference from evidence, which has not been subjected to cross-examination EVIDENCE – whether the primary judge erred in admitting and relying upon the reports of other experts – whether opinions wholly or substantially based on specialised knowledge – where no literature review had been conducted by the experts – allegations of bias EVIDENCE – impact of evidentiary findings on defence of substantial truth – consideration of the process of decision making – superficial to conclude that if the evidence directly referenced in support of a finding of truth is not impugned the finding of truth should stand – where other evidence infected by inadmissible evidence – decision making process too intricate to unpack and put back together
Legislation:	Constitution Ch III; ss 39(2), 51(xxxix), 75(iv), 80, 106, 109, 118 Defence Act 1903 (Cth) Evidence Act 1995 (Cth) Pt 2 cl 6; ss 10(1), 55, 56, 62, 63, 67, 69, 79, 91, 192, 192A, 135, 136 Family Law Act 1975 (Cth) s 60H Federal Court of Australia Act 1976 (Cth) Pt VB Judiciary Act 1903 (Cth) ss 39(2), 79 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9(3) Evidence Regulations 2018 (Cth) cl 6 Federal Court Rules 2011 (Cth) r 23.13 Inspector-General of the Australian Defence Force Regulation 2016 (Cth) Archives Act 1960 (NSW) Criminal Procedure Act 2004 (WA) s 114(2) Defamation Act 1974 (NSW) Defamation Act 2005 (NSW) s 25 Evidence Act 1995 (NSW) s 8 Misuse of Drugs Act 1981 (WA) s 6(1)(a) Royal Commissions Act 1923 (NSW) s 17(2) State Records Act 1998 (NSW) Status of Children Act 1996 (NSW) ss 14(2), 14(4) Bill of Rights 1688 (Eng) art 9
Cases cited:	Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185 Austin v Mirror Newspapers Ltd [1986] AC 299 Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355; (2012) 207 FCR 48 Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (1998) ATPR ¶41-650 Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 2) [2007] FCA 121; (2007) 157 FCR 310 Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764 Australian Securities and Investments Commission v Rich [2006] NSWSC 643; (2006) 201 FLR 207 Axon v Axon (1937) 59 CLR 395 Barilaro v Shanks-Markovina(No 2) (2021) 393 ALR 417 Belan v National Union of Workers (2018) 267 FCR 6 Blair v Curran (1939) 62 CLR 464 Bradshaw v Emirates [2021] FCA 1407; (2021) 395 ALR 97 Briginshaw v Briginshaw (1938) 60 CLR 336 Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903; (2000) 181 ALR 108 Clarke v Federal Commissioner of Taxation [2009] HCA 33; (2009) 240 CLR 272 Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Dixon v Citiline Developments Pty Ltd [2018] FCA 1446 Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246; (2021) 395 ALR 131 Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Feldman v Nationwide News Pty Ltd [2018] NSWSC 715 Feldman v Nationwide News Pty Ltd [2020] NSWCA 260; (2020) 103 NSWLR 307 Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News (2020) 102 NSWLR 733 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Fuge v Commonwealth Bank of Australia [2019] FCA 1621 Giannarelli v The Queen (1983) 154 CLR 212 Gill v Walton (1991) 25 NSWLR 190 Giumelli v Giumelli (1999) 196 CLR 101 Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 Hartmann v Commissioner of Police (1997) 91 A Crim R 141 Hatfieldv TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 Hejiz v Hejiz [2018] FamCA 301 Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495 Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805 Herron vMcGregor (1986) 6 NSWLR 246 HG v R [1999] HCA 2; (1999) 197 CLR 414 House v King (1936) 55 CLR 499 James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 Jones v Dunkel 101 CLR 298 Jones v Skelton (1963) 63 SR (NSW) 644 Knight v State of Victoria [2017] HCA 29; (2017) 261 CLR 306 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 Lewis v Daily Telegraph Ltd [1964] AC 234 Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 Lloyd v David Syme & Co Ltd [1986] AC 350 Lord Ashcroft v Foley [2012] EWCA Civ 423 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA; (2001) 52 NSWLR 705 Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 5) [2015] FCA 571 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Nichia Corporation v Arrow Electronics Australia Pty Ltd (No 3) [2016] FCA 466; (2016) 240 FCR 13 Northern Territory v GPAO [1999] HCA 8; (1999) 196 CLR 553 Paric v John Holland (Constructions) Pty Ltd(1985) 62 ALR 85 Pontifical Society for the Propagation of the Faith v Scales (1962)107 CLR 9 R v Bayeh [1999] NSWCCA 82 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Rich v Australia Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365 Rizeq v State of Western Australia [2017] HCA 23; (2017) 262 CLR 1 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 18) [2021] FCA 793 Rodger v The Comptoir D’Escompte de Paris (1871) LR 3 PC 465 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rogers v Whitaker (1992) 175 CLR 479 Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473 Ryan v Davies Bros Ltd (1921) 29 CLR 527 Shiels v Manny (2012) 263 FLR 61 Sorby v The Commonwealth (1983) 152 CLR 281 Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355 Stocker v Stocker [2020] AC 593 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549 The Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 The Commonwealth v McCormack (1984) 155 CLR 273 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Triggell v Pheeney (1951) 82 CLR 497 Trkulja v Google LLC (2018) 263 CLR 149 Turner v Windever [2005] NSWCA 73; [2005] Q ConvR ¶54-625 Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2011] NSWSC 395 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 Walton v Gardiner (1993) 177 CLR 378 Warren v Coombes (1979) 142 CLR 531 Willey v Synan (1935) 54 CLR 175 Witness v Marsden (2000) 49 NSWLR 429 Woolworths LimitedvCrotty (1942) 66 CLR 603 X v Australian Prudential Regulation Authority (2007) 226 CLR 630
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	655
Date of hearing:	23–27 August, 25 November 2021
Counsel for the Appellants:	Mr B W Walker SC, Ms S Chrysanthou SC, Mr B Dean, Dr S H Hartford Davis and Ms J McKenzie
Solicitor for the Appellants:	Company Giles Pty Ltd
Counsel for the Respondents:	Mr T B Blackburn SC, Mr A D’Arville and Mr M Pulsford
Solicitor for the Respondents:	Banki Haddock Fiora
Counsel for the Intervener:	Dr S P Donaghue SC, Solicitor-General of the Commonwealth, and Mr D Hume
Solicitor for the Intervener:	Australian Government Solicitor

NSD 1387 of 2020
BETWEEN:	JOHN HERRON First Appellant JOHN GILL Second Appellant
AND:	HARPERCOLLINS PUBLISHERS AUSTRALIA PTY LTD (ACN 009 913 517) First Respondent STEVE CANNANE Second Respondent
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener

ORDER MADE BY:	RARES, WIGNEY AND LEE JJ
DATE OF ORDER:	29 APRIL 2022