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