Herron v HarperCollins Publishers Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 29 April 2022
• Neutral Citation: [2022] FCAFC 68
• Date: 29 April 2022

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...