Herron v HarperCollins Publishers Australia Pty Ltd (No 2)

In Herron v HarperCollins Publishers Australia Pty Ltd (No 2), the Full Court of the Federal Court of Australia considered issues arising from a defamation claim. John Herron, the applicant, sued HarperCollins Publishers Australia Pty Ltd, the respondents, for defamation. The primary judge had dismissed the case, finding that the defamatory imputations were not conveyed and that the defence of justification was established. The Full Court allowed the appeal, reversing the primary judge’s findings and ordering a retrial of the respondents' defence of justification to some but not all of the defamatory imputations found to have been conveyed.

The key legal issues before the court were whether the defence of partial justification could be considered a common law defence of “contextual imputation,” whether the applicant was entitled to entry of judgment before a retrial, and whether the Full Court should reserve the costs of the deceased applicant’s proceeding pending the retrial of the other proceeding. The publishers argued that the defence of partial justification could be considered a common law “defence of contextual imputation,” but the court rejected this argument. It found that partial justification was a defence at common law to a number of imputations, only some of which could be justified or could be sought to be justified. The court held that it was well established that a pleading of defence of justification of common law required the whole libel that is all the defamatory imputations to be proved as true.

The Full Court allowed the appeal, set aside the orders made by the primary judge, and ordered a retrial of the respondents' defence of justification to some but not all of the defamatory imputations found to have been conveyed. The court also ordered that the respondents pay the second appellant’s costs of the appeal and that the applicant’s costs of and occasioned by the trial that commenced on 1 June 2020, and thrown away, be paid by the respondents. The Full Court dismissed the respondents' interlocutory application with costs.