Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119

Federal Court of Australia

Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119 Appeal from: Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687 Herron v HarperCollins Publishers Australia Pty Ltd (No 4) [2021] FCA 1021

File number(s): NSD 1387 of 2020

Judgment of: RARES, WIGNEY AND LEE JJ

Date of judgment: 3 June 2022

Catchwords: DEFAMATION – where Full Court allowed appeal reversing primary judge's findings that defamatory imputations not conveyed and the defence of justification was established – where retrial of publishers' defence of justification to some but not all of defamatory imputations found to have been conveyed – where publishers had no defence to one defamatory imputation – whether defence to other imputations precluded applicant being entitled to entry of judgment before retrial – whether there is common law defence of "contextual imputation" COSTS – where applicant in one proceeding heard together with another gave undertaking to pay costs ordered against applicant in other proceeding – where primary judge dismissed both proceedings with costs – where applicant for payment of whose costs undertaking given by applicant in other proceeding died before hearing of appeal – where Full Court set aside judgments for respondents in both proceedings but found deceased applicant's cause of action abated on his death – whether Full Court should reserve costs of deceased applicant's proceeding pending retrial of other proceeding

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M and 43 Defamation Act 1974 (NSW) Defamation Act 2005 (NSW) ss 10, 26, 30, Sch 4 Defamation Amendment Act 2020 (NSW) Sch 1