Two claimants have lost their action against publisher HarperCollins Australia and journalist Steve Cannane after eight-week trial
In Herron v HarperCollins Publishers Australia Pty Ltd (No 3)  FCA 1687 HarperCollins and Australian Broadcasting Corporation journalist Steve Cannane have successfully defended a libel claim in which they were forced to prove the truth of matters that occurred up to 50 years ago, and which were exhaustively examined – and found against the Claimants – in a Royal Commission of enquiry in the late 1980s.
Jagot J in the Federal Court of Australia dismissed the actions by two very elderly doctors (one now deregistered), finding the defamatory meanings to be substantially true, and upholding the defence of statutory qualified privilege, a defence somewhat similar to the former Reynolds defence, but which has had a notoriously low success rate in Australian courts.
The proceedings arose out of a book written by Cannane and published in 2016 that made various allegations against the Church of Scientology in Australia. One chapter, however, dealt with how the Scientologists in fact helped to expose the practice of “deep sleep therapy” at a private hospital in Sydney. This therapy was found to be dangerous, leading to the deaths of at least 26 people.
The Claimants sued for defamation over the contents of the book, despite the issues raised having been comprehensively found against them by the enquiry 30 years previously.
The Defendants pleaded justification, statutory qualified privilege and fair report. On justification, because the findings of the Royal Commission were not admissible in the proceedings, the defendants were forced to prove numerous factual matters that went back as far as the 1960s. Surviving victims and many expert and lay witnesses gave evidence. Very large numbers of documents, including admissible hearsay witness statements and transcripts from the Royal Commission, were also relied on.
The factual complexity of the issues and interruptions for illness led to an eight-week trial, conducted remotely. The judge, counsel and witnesses were in various different locations. The judgment runs to 915 paragraphs over 273 pages.
5RB’s Tom Blackburn SC appeared for the Defendants both from London and Sydney.
The judgment can be downloaded from the ‘Files’ link below.