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 constructionRoyal 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

DEFAMATIONDefamation 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 Federal Commissioner of Taxation [2009] HCA 33; (2009) 240 CLR 272

Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182

Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503

Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588

Dixon v Citiline Developments Pty Ltd [2018] FCA 1446

Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246; (2021) 395 ALR 131

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186

Feldman v Nationwide News Pty Ltd [2018] NSWSC 715

Feldman v Nationwide News Pty Ltd [2020] NSWCA 260; (2020) 103 NSWLR 307

Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News (2020) 102 NSWLR 733

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Fuge v Commonwealth Bank of Australia [2019] FCA 1621

Giannarelli v The Queen (1983) 154 CLR 212

Gill v Walton (1991) 25 NSWLR 190

Giumelli v Giumelli (1999) 196 CLR 101

Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11

Hartmann v Commissioner of Police (1997) 91 A Crim R 141

Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506

Hejiz v Hejiz [2018] FamCA 301

Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495

Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805

Herron v McGregor (1986) 6 NSWLR 246

HG v R [1999] HCA 2; (1999) 197 CLR 414

House v King (1936) 55 CLR 499

James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227

Jones v Dunkel 101 CLR 298

Jones v Skelton (1963) 63 SR (NSW) 644

Knight v State of Victoria [2017] HCA 29; (2017) 261 CLR 306

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Lee v Lee [2019] HCA 28; (2019) 266 CLR 129

Lewis v Daily Telegraph Ltd [1964] AC 234

Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352

Lloyd v David Syme & Co Ltd [1986] AC 350

Lord Ashcroft v Foley [2012] EWCA Civ 423

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA; (2001) 52 NSWLR 705

Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554

McGuinness v Attorney-General (Vic) (1940) 63 CLR 73

McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646

Melbourne Corporation v Commonwealth (1947) 74 CLR 31

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 5) [2015] FCA 571

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632

Nichia Corporation v Arrow Electronics Australia Pty Ltd (No 3) [2016] FCA 466; (2016) 240 FCR 13

Northern Territory v GPAO [1999] HCA 8; (1999) 196 CLR 553

Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

R v Bayeh [1999] NSWCCA 82

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

Rich v Australia Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365

Rizeq v State of Western Australia [2017] HCA 23; (2017) 262 CLR 1

Roberts-Smith v Fairfax Media Publications Pty Ltd (No 18) [2021] FCA 793

Rodger v The Comptoir D’Escompte de Paris (1871) LR 3 PC 465

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

Rogers v Whitaker (1992) 175 CLR 479

Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473

Ryan v Davies Bros Ltd (1921) 29 CLR 527

Shiels v Manny (2012) 263 FLR 61

Sorby v The Commonwealth (1983) 152 CLR 281

Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355

Stocker v Stocker [2020] AC 593

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549

The Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31

The Commonwealth v McCormack (1984) 155 CLR 273

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150

Triggell v Pheeney (1951) 82 CLR 497

Trkulja v Google LLC (2018) 263 CLR 149

Turner v Windever [2005] NSWCA 73; [2005] Q ConvR ¶54-625

Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2011] NSWSC 395

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259

Walton v Gardiner (1993) 177 CLR 378

Warren v Coombes (1979) 142 CLR 531

Willey v Synan (1935) 54 CLR 175

Witness v Marsden (2000) 49 NSWLR 429

Woolworths Limited v Crotty (1942) 66 CLR 603

X v Australian Prudential Regulation Authority (2007) 226 CLR 630

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

655

Date of hearing:

23–27 August, 25 November 2021

Counsel for the Appellants:

Mr B W Walker SC, Ms S Chrysanthou SC, Mr B Dean, Dr S H Hartford Davis and Ms J McKenzie

Solicitor for the Appellants:

Company Giles Pty Ltd

Counsel for the Respondents:

Mr T B Blackburn SC, Mr A D’Arville and Mr M Pulsford

Solicitor for the Respondents:

Banki Haddock Fiora

Counsel for the Intervener:

Dr S P Donaghue SC, Solicitor-General of the Commonwealth, and Mr D Hume

Solicitor for the Intervener:

Australian Government Solicitor

ORDERS

NSD 1387 of 2020

BETWEEN:

JOHN HERRON

First Appellant

JOHN GILL

Second Appellant

AND:

HARPERCOLLINS PUBLISHERS AUSTRALIA PTY LTD (ACN 009 913 517)

First Respondent

STEVE CANNANE

Second Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Intervener

order made by:

RARES, WIGNEY AND LEE JJ

DATE OF ORDER:

29 April 2022

THE COURT ORDERS THAT:

1.    On or before 4 May 2022 the parties file and serve any submissions limited to 2 pages as to the form of orders to dispose of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

Introduction

1    On 19 September 2017, each of the late John Herron and Dr John Gill filed an originating application and statement of claim against HarperCollins Publishers Australia Pty Ltd and Steve Cannane (collectively, the publishers). Each proceeding sought an award of damages for defamation and other relief arising out of the publication on or about 19 September 2016 of Mr Cannane’s paperback bookFair Game: The Incredible Untold Story of Scientology in Australia”.

2    The back cover of the book informed the reader that some famous Australians were scientologists and that “less well known is that … scientology spies helped expose the Chelmsford Deep Sleep Scandal”. Chapter 14 of the book is entitled “Deep Sleep” and focused on the administration, in the 1960s and 1970s, of deep sleep therapy (DST) and electroconvulsive therapy (ECT) at Chelmsford Private Hospital in Sydney. From 1988 to 1990, Slattery AJ conducted a Royal Commission and prepared a report: New South Wales, Report of the Royal Commission into Deep Sleep Therapy.

3    Mr Herron was a psychiatrist who practised at Chelmsford. He was deregistered as a medical practitioner in the late 1990s for conduct unrelated to the events at Chelmsford.

4    Between 1972 and 1974, Dr Gill and companies in which he was interested acquired a one third ownership share of Chelmsford. Dr Gill was a general practitioner and became the de facto medical superintendent of Chelmsford.

5    In 2018, Dr Gill gave an undertaking to pay any costs that Mr Herron might be ordered to pay in his proceeding (the Herron proceeding). The trial took about 10 weeks before the primary judge who delivered very promptly a comprehensive judgment dismissing both proceedings with costs on 25 November 2020.

6    Mr Herron and Dr Gill filed a joint notice of appeal on 23 December 2020, however, Mr Herron died on 7 February 2021.

7    The further amended notice of appeal raised many grounds but it is not necessary to deal with most of them. That is because I have concluded that the appeal should be allowed and that Dr Gill is entitled to a new trial for the reasons below. Many of the grounds that I have not dealt with in these reasons concerned the admissibility and use at the trial of evidence given to the Royal Commission.

8    The issues that I have addressed in these reasons are:

(1)    whether the primary judge erred in finding that chapter 14 did not convey 7 imputations that Mr Herron and Dr Gill had pleaded (the contested imputations issue);

(2)    whether s 17(2) of the Royal Commissions Act 1923 (NSW) could apply to prevent evidence and documents that Mr Herron and Dr Gill gave or produced to the Royal Commission under compulsion from being admissible at the trial as relevant evidence pursuant to s 56 of the Evidence Act 1995 (Cth) (the operation of s 56 of the Evidence Act issue) (which Lee J deals with in his reasons);

(3)    whether her Honour erred in construing s 17(2) of the Royal Commissions Act as providing no protection to a person who was a plaintiff or applicant in court proceedings (the s 17(2) of the Royal Commissions Act issue);

(4)    whether her Honour erred in admitting and relying, without any reservation, on reports prepared by four now deceased experts that were used in the Royal Commission or otherwise erred in finding that the publishers had established their defence of justification under s 25 of the Defamation Act 2005 (NSW) (the truth defence and dead experts issues) (which each of Wigney J and Lee J deals with in his reasons);

(5)    whether her Honour erred in finding that the publishers had established their defence of statutory qualified privilege under s 30 of the Defamation Act that their publication of the book was reasonable in the circumstances despite, first, failing to lead any evidence as to HarperCollins’ state of mind or, secondly, Mr Cannane’s failure to include Mr Herron’s and or Dr Gill’s side of the story or make any attempt to obtain and publish a response from them (the qualified privilege issue); and

(6)    whether s 10 of the Defamation Act prevented Dr Gill from challenging, on this appeal, the primary judge’s orders dismissing the Herron proceeding with costs, so that he would not be liable on his undertaking, were Mr Herron’s appeal well founded (the s 10 of the Defamation Act issue).

9    Chapter 14 extends between pp 176 and 204 of the book. It deals with two principal themes: first, Mr Cannane’s account of the use of deep sleep therapy (DST) at Chelmsford Hospital and, secondly, the role of scientologists in exposing what had occurred there.

10    The chapter begins with a description of the experience of one of Mr Herron’s psychiatric patients, Barry Hart, waking up after being subjected, as he later discovered, to DST and to administrations of “electric shock treatment” (scil: ECT) without his consent. The author described Mr Hart as having been sedated with near death doses of barbiturates over 10 days (pp 176–177). Mr Cannane wrote (p 177):

Hart was a victim of gross medical negligence and abuse, but he was lucky to be alive. Between 1963 and 1979 over 1000 patients were subjected to deep sleep therapy at Chelmsford. Of those patients, 24 died at the hospital, and another 24 committed suicide within a year of their release, although it’s hard to pinpoint how many of these suicides related to pre-existing medical conditions. The Church of Scientology played a major role in exposing the atrocities committed at Chelmsford, a rare instance where the Scientologists used their undercover operations as a force for good.

11    The author discusses how a once eminent psychiatrist, Dr Harry Bailey, whose subsequent public disgrace Mr Cannane details later in chapter 14, had introduced DST at Chelmsford. The author describes that therapy as unproven and controversial.

12    He discussed warnings against its use by “significant figures in the medical profession”. Mr Cannane tells the reader that those warnings “did not deter Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did the death toll mounting before their eyes” (pp 177–178). After describing the deaths of some patients, and stating that “Chelmsford Hospital operated like a secret cult”, Mr Cannane returns to describing Mr Hart’s experience (pp 179–180). He recounts that The Sydney Morning Herald was planning a major exposé about what occurred to Mr Hart that began with the first article on the front page of the 11 November 1975 edition, headlined: “Shock treatment protest, given against my will, says actor” (being Mr Hart). However, the series of following articles did not run as the Governor-General’s dismissal of the Whitlam Government and subsequent political consequences “buried Hart’s story and the series. Herron and his colleagues at Chelmsford dodged another bullet”.

13    At this point in the narrative, Mr Cannane introduces Rosa Nicholson, a nurse and scientologist whom he credits with being “the central figure in exposing the truth about dozens of deaths caused by medical malpractice inside Chelmsford Hospital” (p 180). Chapter 14 then discusses scientologists’ beliefs and how they worked with Ms Nicholson (pp 180–183). Mr Cannane tells the reader how Ms Nicholson secretly photocopied medical records and supplied them and other documents to a more senior scientologist, pharmacist Ron Segal. In April 1978, Mr Segal presented the evidence that Ms Nicholson and others had collected to the then State Attorney-General, Frank Walker. The Attorney-General gave the material to his department for further investigation. The following part of chapter 14 discusses what various persons within the church of scientology did to progress their objective of exposing what had occurred at Chelmsford (pp 183–188).

14    Next, Mr Cannane describes the jury trial in which Mr Hart recovered $60,000 in damages for false imprisonment, assault and battery from Mr Herron for administering DST and ECT without his consent. Mr Cannane tells the reader that the verdict “was so miserly that Hart had to go on the disability pension”. Mr Cannane says that the trial judge had withdrawn the issue of punitive damages from the jury because, the author asserted, Fisher J “believed that Hart had not suffered long-term damage, was fit for work and only deserved a minimal payout”. The author adds supporting commentary of others for this view and weaves in the role of scientologists in the proceeding (pp 188–190).

15    Then, the reader is told about a 60 Minutes program “The Chelmsford File” that “shocked the public” and that led, at first unsuccessfully, to calls for a Royal Commission. Instead, there were inquiries by police and the Department of Health that became “caught up in legal and bureaucratic red tape, [so] the Chelmsford doctors continued to avoid accountability for their actions”. However, the reader learns that, in 1983, DST was prohibited by the Mental Health Act 1958 (NSW).

16    Mr Cannane recounts how, in 1985, on the eve of a Supreme Court trial against him, Dr Bailey committed suicide, leaving a note that included “let it be known that the Scientologists and the forces of madness have won”. The author tells readers that the campaign of scientologists for a Royal Commission continued, culminating in a meeting in 1988 at the Fairfax building. This led to The Sydney Morning Herald running a two-week long series that “exposed the impact of the medical abuses of Chelmsford Hospital on dozens of victims and their families”.

17    Then, on 6 August 1988, the Government announced the Royal Commission (pp 190–192). The author wrote (p 192):

The Royal Commission ran for close to two years. Nearly 300 witnesses gave evidence, including patients, nurses, the surviving Chelmsford doctors, senior bureaucrats and former Ministers.

The final report ran close to two million words. It revealed that at least 24 deep sleep therapy patients had died at Chelmsford Hospital between 1963 and 1979, with another 24 committing suicide within a year of being released. The commission found that Bailey falsified as many as 17 death certificates and that many patients received treatment without their consent. The Department of Health was criticised for neglecting to carry out proper checks at the hospital and for failing to investigate the deaths.

While the report exposed the truth about deep sleep therapy and how it was practised at Chelmsford, it never quite got to the bottom of the role the Church of Scientology played in exposing it.

18    Mr Cannane then informs the reader about the roles of scientology and Ms Nicholson in exposing matters and of Mr Herron’s counsel’s cross-examination of her before Slattery AJ (pp 192–194). The reader is told of what the scientologists did and how, chapter 14 asserted, they would go to great lengths, including committing perjury, to serve their beliefs. Chapter 14 concludes with Ms Nicholson’s death in 2015 that left her unacknowledged for having “done more than anyone else to expose the dark secrets of Chelmsford Hospital” (pp 194–204).

1.    The contested imputations

19    There was no dispute at the trial that chapter 14 conveyed the following 7 imputations about Mr Herron:

A.    The applicant’s gross negligence as a psychiatrist nearly killed his patient Barry Hart

B.    The applicant, a psychiatrist, falsely imprisoned his patient Barry Hart

C.    The applicant, a psychiatrist, caused his patient Barry Hart to deteriorate, in ten days, from a fit 37-year old man in peak physical condition to a person in agony and distress, vomiting blood and unable to move his limbs

D.     The applicant, a psychiatrist, caused his patient Barry Hart to be sedated and given electric shock treatment on six occasions without Mr Hart’s consent

F.    The applicant, a psychiatrist, continued to use deep sleep treatment on his patients despite the number of deaths it caused

I.    The applicant’s gross negligence as a psychiatrist caused his patient Barry Hart to suffer brain damage and post traumatic stress

N.    The applicant, a psychiatrist, assaulted and battered his patient Barry Hart

(emphasis added)

20    Her Honour also noted the publishers’ concession that chapter 14 conveyed imputation F about Dr Gill.

21    However, the primary judge rejected Mr Herron’s and Dr Gill’s claims that each of imputations E, G, H, J, K, L and M (the contested imputations) was conveyed in respect of him. Ground 2 of the further amended notice of appeal challenged her Honour’s findings that the contested imputations were not conveyed. The contested imputations were:

E.    The applicant, a psychiatrist, used deep sleep treatment on his patients, despite trials by other doctors deeming the practice too dangerous.

G.    The applicant, a psychiatrist, falsified death certificates.

H.    The applicant, a psychiatrist, lied to his patients’ families about how ill the patients were and denied those families visitation.

J.    The applicant’s gross negligence as a psychiatrist caused the death of many of his patients.

K.    The applicant, a psychiatrist, engaged in sustained medical malpractice and abuse of his patients.

L.    The applicant, a psychiatrist, defrauded his patients’ health funds.

M.    The applicant, a psychiatrist, traumatised many of his patients by giving them deep sleep therapy without their consent.

22    Her Honour arrived at her finding that none of the contested imputations was conveyed in Dr Gill’s case on two bases, namely that, first, the imputations referred to him as a psychiatrist, when he was only a general practitioner, and chapter 14 did not convey that he was a psychiatrist (at [594]) and, secondly, if that were wrong, because (other than in the case of Imputation F) the ordinary reasonable reader would not have understood chapter 14 to have included him, as opposed to Dr Bailey also, as one of the persons responsible. Her Honour also applied the second of those bases in rejecting Mr Herron’s claims that each of the contested imputations was conveyed in respect of him.

23    Incongruously to what she had found about the capacity of chapter 14 to convey the contested imputations about Dr Gill as a psychiatrist, her Honour, first, found that it conveyed imputation F, which stated in terms that he was a psychiatrist, and secondly, said later in her reasons, in dealing with the publishers’ pleaded contextual imputations, which, other than pleading ‘doctor’ in place of ‘psychiatrist’, were in the same terms as the contested imputations (at [859]):

The applicants submitted that there is no difference in substance between the two sets of imputations. They noted that the evidence which would justify both sets of imputations is exactly the same, as is demonstrated by the respondents’ particulars of justification. So much may be accepted. But it must also be accepted that this is an unusual case. Insofar as the Chapter conveys the imputation about Dr Gill it does so by identifying him as a doctor. If there is any material difference between Dr Gill being a psychiatrist and being a doctor (which I do not consider there is – see above), it is necessarily the case that the contextual implications are in addition to the pleaded imputations and are substantially true and the defamatory imputations do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations.

(emphasis added)

24    With respect, this later view accords with the thrust of chapter 14 in how the ordinary reasonable reader would understand its treatment of “the doctors” when discussing them generically. Dr Gill was named once, early in chapter 14 (at pp 178–179), as follows:

These advance warnings from significant figures in the medical profession did not deter Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did the death toll mounting before their eyes.

25    Shortly after this (on p 179), the author wrote:

Chelmsford Hospital operated like a secretive cult. The doctors and psychiatrists were operating in an era and environment where their authority was rarely questioned.

26    Thus, the ordinary reasonable reader would have appreciated that the book named Dr Gill as one of Dr Bailey’s “fellow Chelmsford doctors” and referred to him as being one of the doctors and psychiatrists who operated at Chelmsford Hospital “like a secret cult”. In this context, the ordinary reasonable reader would have understood that Dr Gill was one of those doctors or psychiatrists whenever the author used the collective noun “doctors” in connection with the catalogue of issues that chapter 14 discussed as occurring at Chelmsford. Indeed, this must have been the basis of her Honour’s finding, which the publishers conceded at the trial (at [601]), that chapter 14 conveyed imputation F about Dr Gill.

1.1.    The ordinary reasonable reader

27    The test for determining what an ordinary reasonable reader of a publication would have understood it to convey adapts to the nature of the particular publication. Here, the reader is a person who has decided to read a serious paperback work about, as the front cover states, “The incredible untold story of scientology in Australia”, by a well-known investigative journalist. The back cover refers to famous Australian recruits to scientology and portends that the reader will discover that “Less well known is that Australia was the first place to ban Scientology, or that Scientology spies helped expose the Chelmsford Deep Sleep Scandal” (emphasis added). The book cover tells the reader that the book is based “on years of interviews and meticulous research”. As noted above, chapter 14 is headed “Deep Sleep” and is the only chapter in the book that traverses anything to do with Chelmsford, the doctors and others who were there, including Dr Gill and Mr Herron.

28    The ordinary reasonable reader evaluates the matter complained of in deriving an understanding of any defamatory quality in what it conveys about the applicant or plaintiff having regard to the language it uses and the moral or social standards of the community at large: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505–506 per Brennan J, with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed. The essential features of the ordinary reasonable reader are that he or she is, first, an ordinary member of the community, secondly, a reasonable person and, thirdly, a reflex of how such persons would have understood the publication complained of when, and in the circumstances, he or she reads it.

29    Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin agreed) held in Stocker v Stocker [2020] AC 593 at 605 [37]–[38], that where a range of possible meanings presents itself, “the touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning”. He identified that this approach requires a judge to step away from a lawyerly analysis and to put himself or herself in the position of the typical member of the audience of the publication in issue.

30    In Trkulja v Google LLC (2018) 263 CLR 149 at 160–161 [32], Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said:

that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person (Favell (2005) 79 ALJR 1716 at 1719 [6]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ …); and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1162–1163 per Lord Reid). He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs” (Lewis [1964] AC 234 at 258 per Lord Reid; Favell (2005) 79 ALJR 1716 at 1719–1720 [10]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), but such a person also draws implications much more freely than a lawyer, especially derogatory implications (Lewis [1964] AC 234 at 277 per Lord Devlin; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573–574 [134] per Kirby J; Favell (2005) 79 ALJR 1716 at 1720 [11]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), and takes into account emphasis given by conspicuous headlines or captions (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J; Rivkin (2003) 77 ALJR 1657 at 1661–1662 [26]; 201 ALR 77 at 83 per McHugh J; at 1699 [187] per Callinan J; Favell (2005) 79 ALJR 1716 at 1719 [8]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ). Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd ((1998) 193 CLR 519 at 574 [134]), “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.

(emphasis added)

31    In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at 190 [10]–[12], Gleeson CJ, McHugh, Gummow and Heydon JJ said in relation to the capacity of a publication to convey a meaning:

In determining what reasonable persons could understand the words complained of to mean, the court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd:[[1964] AC 234 at 258]

The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, [[1964]] AC 234 at 277] that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said: [[1964] AC 234 at 285]

It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. [Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293] If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance.

(emphasis added)

32    The ordinary reasonable reader would draw the implication that whenever chapter 14 used the word “doctors” it referred to all of the four doctors whom it named on pp 178–179 as “Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner”. And, the reader would have understood them to be psychiatrists because chapter 14 referred expressly to Dr Bailey and Mr Herron as psychiatrists, and that they, as specialists, admitted and treated patients in the hospital. The reader would be led to think that any medical practitioner who could administer DST or ECT treatment at Chelmsford would be a psychiatrist because that had to occur in a hospital and, in Dr Bailey’s frequent absences, other similarly qualified doctors would supervise or prescribe those treatment regimes: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 642 per Mason and Jacobs JJ, with whom Gibbs and Stephen JJ agreed.

33    The primary judge erred in finding that the contested imputations were not conveyed in respect of Dr Gill because he happened not to be a psychiatrist. That is essentially for the contrary reasons she gave at [859] when dealing with the contextual imputations (see [23] above). Moreover, the reader was not told anything about Dr Gill’s qualifications except that he was one of the doctors who administered DST and ECT treatment. The reader would infer that Dr Gill was, like Dr Bailey, a psychiatrist by the inherent capacity of the natural and ordinary meaning of the words of chapter 14 which dealt with the administration of treatment for psychiatric illness by the four named doctors. The reader would be drawn to the conclusion that, as her Honour correctly found later in her reasons when dealing with the publishers’ contextual imputations (at [859]), there was no “material difference between Dr Gill being a psychiatrist or a doctor” – that is, in the context of chapter 14, read as a whole, there was no difference in substance between the imputations it conveyed about Dr Gill, as a doctor, and those that conveyed the same defamatory meanings about him, as a psychiatrist.

34    It is now necessary to consider her Honour’s reasons for finding that, other than Imputation F in respect of Dr Gill, none of the contested imputations was conveyed in respect of either Dr Gill or Mr Herron. It is appropriate to deal with each of the contested imputations in turn by setting out, as her Honour did, the passages in chapter 14 upon which Mr Herron and Dr Gill relied and her Honour’s findings that, in substance, accepted the publishers’ submissions in respect of each contested imputation. The publishers contended on the appeal that her Honour’s reasoning was correct.

1.2.    Imputation E: The applicant, a psychiatrist, used DST on his patients, despite trials by other doctors deeming the practice too dangerous

35    Her Honour held (at [597]–[600]):

597.    The applicants relied on pp 178-179 in which the Book states:

Other psychiatrists had rejected Bailey’s theories. A trial of deep sleep therapy at Parramatta Psychiatric Hospital had been discontinued in 1957 after it was deemed too dangerous and unproductive. In 1959, the American Handbook of Psychiatry warned that the mortality rate for ‘continuous of prolonged sleep treatment’ was on average 1 to 3 per cent…

These advance warnings from significant figures in the medical profession did not deter Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did the death toll mounting before their eyes.

598.    The respondents accepted that the ordinary reasonable reader would understand that other psychiatrists had rejected DST and would understand that there had been one clinical trial which had concluded the practice was too dangerous and unproductive. The respondents submitted, however, that nothing refers to a larger number of trials coming to that conclusion. The ordinary reasonable reader would not have drawn conclusions about multiple trials having been carried out. As such, imputation E is not conveyed.

599.    I agree with the respondents. The ordinary reasonable reader would not have conveyed to them the imputation of trials by other doctors deeming the practice too dangerous. They would understand that what was being conveyed was that one trial had been conducted with that result (as specifically identified) and that other psychiatrists had rejected DST (which is not the pleaded imputation).

600.    Accordingly, imputation E is not conveyed with respect to Mr Herron or Dr Gill.

(emphasis added)

36    With respect, the matter complained of did not state that only one trial had ever occurred. All that it did was to use one trial at Parramatta Psychiatric Hospital as an instance where the use of DST had been “deemed too dangerous and unproductive”. It referred to that trial after telling the reader that other psychiatrists had rejected Dr Bailey’s theories and before informing the reader about the higher mortality rate and “advance warnings from significant figures in the medical profession”.

37    The reader is allowed to draw implications much more freely than a lawyer, especially when the implications are derogatory: Trkulja 263 CLR at 160–161 [32]. Here, the context in which the passage complained of at pp 179–180 appeared was part of an overall attack on the effectiveness of, clinical justification for and mortality rate occasioned by, the DST and ECT treatments that the four Chelmsford doctors administered despite “the death toll mounting before their eyes”.

38    The use of the plural “trials” in Imputation E was the only reason that the primary judge gave as to why the ordinary reasonable reader would not have understood the matter complained of to carry that imputation. However, there is no reason why the reader would have been so constrained when he or she was told that multiple respectable medical sources, being “other psychiatrists”, “significant figures” and an apparently authoritative textbook, had come to the same conclusion. The reader would be entitled and encouraged to infer that the opinions of these other experts were based on sound studies, other trials and evidence that DST should not have been used. The reader was not constrained to think that the book was saying that the reason why DST was too dangerous to use was based only on a single trial at Parramatta Psychiatric Hospital: Trkulja 263 CLR at 160–161 [32]; Favell 221 ALR at 190 [10]–[12].

39    Moreover, the wider context discussed at pp 177–178 of the book, that surrounded the passages quoted above, suggested that doctors had studied the use of DST and ECT. The discussion on pp 177–178 began with a reference to Dr Bailey’s introduction to ECT and DST while studying overseas for 15 months in the mid-1950s on a World Health Organisation fellowship. The book suggested that he had begun using these treatments when he returned here and was appointed in 1959 by the Government of New South Wales as superintendent of Callan Park Mental Hospital (p 177). After Dr Bailey moved to private practice, the book told readers that he “was able to try out these techniques away from the scrutiny of the public hospital system” (p 178).

40    The book said that Dr Bailey’s “experiments” with DST began at Chelmsford Hospital in 1963 and that he had used it to treat a range of disorders, claiming an 85% success rate “without ever producing a single piece of credible evidence to back up his claims” (p 178). At this point, the author tells readers that other psychiatrists had rejected Dr Bailey’s theories and then describes the trial at Parramatta Psychiatric Hospital. In a paragraph (on p 178) between that information and the passage that referred to “These advance warnings”, the author tells readers that the American Handbook of Psychiatry had listed a range of potential complications from use of DST and ECT treatment. The reader was told there that “William Sargant, the British psychiatrist who inspired Bailey’s treatment” had warned about the side effects of continued DST use and that “its results are the least predictable”. The reader would be free to infer that Mr Sargant based his warning on trials and scientific evaluation.

41    In this context, the reader would infer that the author was giving a sample of expert views to justify his condemnation of the use of DST and ECT and the cult-like activities at Chelmsford Hospital. The ordinary reasonable reader was not a clinician or likely to be familiar with the nature of clinical trials for approval or validation of medical treatments. He or she is likely to have understood the matter complained of to have conveyed that the experts had used the common technique of investigating or experimenting known as “trial and error” to determine whether or not DST was an appropriate treatment. An ordinary meaning of the word “trial” as used in Imputation E is an “investigation by means of experience” (cf: Oxford English Dictionary (online), sense 4(a)). It is common to speak of giving a treatment or drug a “trial” to see if it works. The reader would be led by the context of chapter 14 as a whole to conclude that the experts other than Dr Bailey had trialled themselves, or observed the results of others’ use of, DST as a treatment and concluded from those trials or uses that it was too dangerous to use on patients. And the reader would be likely to think that the trial at Parramatta Psychiatric Hospital was an example of other trials that reinforced the author’s statement that “Other psychiatrists had rejected Bailey’s theories”.

42    For these reasons, the reader would have understood that chapter 14 carried Imputation E.

1.3.    Imputation G: The applicant, a psychiatrist, falsified death certificates

43    Her Honour held (at [602]–[606]):

602.    The applicants relied on the following references:

P 178-179: Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner.

P 179: Chelmsford Hospital operated like a secretive cult. The doctors and psychiatrists were operating in an era and environment where their authority was rarely questioned. Death certificates were falsified.

603.    The respondents pointed to p 192 and the statement there that:

The commission [the Royal Commission] found that Bailey falsified as many as 17 death certificates.

604.    The respondents observed that the ordinary reasonable reader would read the whole of the matter complained of, with the critical and cautious attention a book deserves. They would read the first general reference (with the falsification of death certificates not attributed to anybody) as an event which would be described in greater detail later, as is the case (with reference to the Royal Commission’s finding that Dr Bailey falsified 17 death certificates). The ordinary reasonable reader, having noted in the early part of the Chapter the general proposition that “death certificates were falsified”, would come to conclude that this was done by Dr Bailey by reason of the specific reference later in the Chapter.

605.    I agree with the respondents. There is no attribution of responsibility for the falsification on p 179. The ordinary reasonable reader would not assume that each of the doctors mentioned earlier falsified death certificates. They would read the reference proleptically, anticipating further information which they would find on p 192.

606.    Accordingly, imputation G is not conveyed with respect to Mr Herron or Dr Gill.

(emphasis added)

44    In our opinion, her Honour’s reading of the above passages at pp 178–179 and 192 failed to approach the evaluative task from the standpoint of the ordinary reasonable reader. The reader was told that all four named doctors and Chelmsford Hospital “operated like a secret cult” and “Death certificates were falsified”. Rather than narrowing that broad generalised assertion, the passage at p 192 was, the reader would think, an illustration of the broader practice of falsification of death certificates at Chelmsford. However, the reader would not be drawn to think (as the primary judge appears to have reasoned) that the author gave this later illustration somehow so as to exclude any suggestion that the other doctors who were members of the cult were not involved in the direct charge made on pp 178–179 that death certificates were falsified at Chelmsford, rather than reinforcing it.

45    The looseness of the charge “Death certificates were falsified” occurred in an immediate connection with the allegations on pp 178–179, that asserted that all four doctors were operating as a secretive cult, and exercised authority that the staff at Chelmsford rarely questioned despite their obviously doubtful conduct, such as falsifying death certificates. If ever a passage exuded “smoke”, the matters complained of did nothing to temper the presence of an associated fire implying that all four doctors, and in particular Mr Herron and Dr Gill, as members of the secretive cult whose actions were rarely questioned, were involved in the falsification of death certificates.

46    The reader would have understood that the matter complained of was conveying that Mr Herron and Dr Gill, as psychiatrists, falsified death certificates as an aspect of the cult’s modus operandi. The reader would have reasoned that the Royal Commission had made an open-ended finding that Dr Bailey had falsified “as many as 17 death certificates”, so that he was one, but not the only, offender amongst the four doctors who were the cult members.

47    The publishers’ suggested reading, that her Honour accepted, that the reader would have understood the statement at p 179 “Death Certificates were falsified” proleptically, anticipating further information which they would find on p 192, was, with respect, unrealistic and artificial. The reader was told immediately on pp 178–179 who was involved in the falsification. The reader was not told there that the general statement about falsification applied to Dr Bailey alone or that by reading on a further 12 pages, the earlier generalisation would be clearly pared back to refer only to him as the sole one of the four cult members who had engaged in that practice. All that the statement on p 192 did was to tell the reader of the upper end of the scale of Dr Bailey’s falsifications: it did not qualify or exclude Mr Herron and Dr Gill from the earlier attribution of their responsibility for falsified death certificates, along with Dr Bailey and Dr Gardiner.

48    As Lord Devlin’s example in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 demonstrated, having talked at length about smoke on pp 178–179 (in relation to the responsibility of the four doctors for the falsification of death certificates), the publishers did not pick their words with any degree of care to exclude the suggestion of a fire in relation to Mr Herron and Dr Gill (Favell 221 ALR at 190 [11]). The ordinary reasonable reader would not understand that the publishers were carefully qualifying that the assertedly “rarely questioned” authority of the four doctors in the secretive cult was confined, in relation to the falsification of death certificates, to only Dr Bailey’s misdeeds. Such a reading would be fanciful. Rather the reader, on arriving at p 192, would appreciate that the author was reinforcing the general charge on p 179 with a verified example of what it involved.

49    The broad and unqualified generalisation on pp 178–179 would lead the reader to understand that the matter complained of conveyed Imputation G.

1.4.    Imputation H: The applicant, a psychiatrist, lied to his patients about how ill the patients were and denied those families visitation

50    The primary judge found (at [608]–[611]):

608.    The applicants relied on:

P 178: Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner.

P 179: Chelmsford Hospital operated like a secretive cult. The doctors and psychiatrists were operating in an era and environment where their authority was rarely questioned … Family members were regularly denied visitation rights and routinely lied to about how seriously ill their loved ones were.

609.    The respondents submitted that:

Page 179 does not name either Mr Herron or Dr Gill as doctors who were responsible for family members being denied visitation rights and lied to about patients’ conditions. There is no identification in that paragraph of the reasons that this occurred. The focus of the whole chapter, read in context, is Dr Bailey. If the ordinary reasonable reader was to attribute responsibility for this matter to any doctor, it would be to Dr Bailey and not to Mr Herron or Dr Gill. For that reason, the imputation is not conveyed.

610.    When the references on pp 178-179 are read in the context of the Chapter as a whole I agree with the respondents’ submissions. Dr Bailey is mentioned on p 177 as responsible for introducing DST to Chelmsford. The whole of p 178 concerns Dr Bailey. Mr Herron and Dr Gill are mentioned as Dr Bailey’s fellow Chelmsford doctors who were not deterred by the fact that other psychiatrists had rejected Dr Bailey’s theories nor by the mounting death toll. Read in that context the ordinary reasonable reader would not understand that Mr Herron and Dr Gill denied families visitation rights and routinely lied to them about how ill their loved ones were. They would understand that Dr Bailey, the architect of DST, ensured that families could not visits and were not to be told how their loved ones were if they were ill under DST. This is reinforced by the reference on p 178 to the range of complications from “Bailey’s treatment”.

611.    Accordingly, imputation H is not conveyed with respect to Mr Herron or Dr Gill.

(emphasis added)

51    In our opinion, her Honour erred in accepting the publishers’ narrow and technical parsing of the passage complained of. Once again, the allegations about visitation rights and lies were about regular, routine conduct at Chelmsford in which the secretive cult, the authority of whose members was “rarely questioned”, all engaged. Just because the reader was told that Dr Bailey first introduced DST at Chelmsford, this would not convey, in the context of chapter 14 read as a whole, that out of the four cult members, Dr Bailey alone regularly and routinely denied visiting rights and lied to patients’ families. With respect, such a reading is beyond any natural and ordinary meaning capable of being conveyed by the matter complained of read as a whole.

52    When a publisher uses general words to attribute disreputable conduct to a group of named individuals, if he, she or it seeks to persuade the ordinary reasonable reader to read them down to apply to only one of the group, the publisher will need to “pick his words very carefully”: Lewis [1964] AC at 285. Here, the assertions on p 179 of regular denial of visiting rights and routine lying were unqualified and general illustrations of how “Chelmsford Hospital operated like a secretive cult”, through the four named doctors. The reader would have understood Mr Herron and Dr Gill were not deterred from using DST to treat patients by the fact that other psychiatrists had rejected Dr Bailey’s theories and the mounting death toll. Her Honour did not explain why the reader would have understood that the matter complained of excluded Mr Herron and Dr Gill from the general allegation that they regularly denied visitation rights and routinely lied to relatives about how ill the patients being subjected to that DST treatment were. While the reader would have understood that Dr Bailey was “the architect of DST”, the matter complained of said he only rarely attended at the Hospital and that the other three doctors were all an integral part of what occurred there.

53    For these reasons, chapter 14 conveyed Imputation H.

1.5.    Imputation J: The applicant’s gross negligence as a psychiatrist caused the death of many of his patients

54    Her Honour held (at [613]–[616]):

613.    The applicants relied on the statements at p 180:

The Herald had been planning to run a series on the abuse of mental health patients, but the sacking of the Whitlam government that afternoon buried Hart’s story and the series. Herron and his colleagues at Chelmsford had dodged another bullet. A Herald series would surely have brought out more victims of Chelmsford and put pressure on the government to act. It may even have prevented more deaths.

Rosa Nicholson became the central figure in exposing the truth about the dozens of deaths caused by medical malpractice inside Chelmsford Hospital.

614.    The respondents submitted that:

The matter complained of does not go close to conveying that Mr Herron or Dr Gill’s negligence caused the death of many patients. The imputation could only be made out if the chapter identified a significant proportion of the 24 patients mentioned on page 192 as having been the responsibility of Mr Herron or Dr Gill. It does not. The only patient of Mr Herron referred to in the chapter is Barry Hart, who did not die as a result of DST. As mentioned above (in respect of the previous imputation), the focus of the chapter was Dr Bailey and it is Dr Bailey’s responsibility for ‘many’ deaths that would be inferred by the ordinary reasonable reader, not Dr Gill or Mr Herron.

In addition, the matter complained of refers to the treatment that was carried out and the number of deaths which occurred. It does not state that either that [sic] any doctors’ negligence caused the deaths or, even, that DST caused the deaths.

615.    I agree with the respondents’ submissions. There is no imputation conveyed by the matter complained of that the negligence of Mr Herron and Dr Gill caused the death of many of their patients. The ordinary reasonable reader would know that Mr Herron’s patient, Mr Hart, had survived his treatment at Chelmsford. There is no reference to any patient of Dr Gill, let alone one having died. Dr Bailey had also been identified as the person experimenting with DST at Chelmsford (p 178).

616.    Accordingly, imputation J is not conveyed with respect to Mr Herron or Dr Gill.

(emphasis added)

55    The author described the plight of Mr Hart. His treatment by Mr Herron was a focus of chapter 14. The reader is told that after being transferred to Dr Francis from Hornsby Public Hospital, Mr Hart had “realised that his life had changed forever. His brain was damaged”. The book said that as Dr Francis was arranging Mr Hart’s transfer to Hornsby Hospital after examining him at Chelmsford, he told Mr Hart “Don’t worry. You will live”.

56    The reader would understand the statement on p 180 that following the dismissal of the Whitlam Government on 11 November 1975, The Sydney Morning Herald did not publish the rest of an exposé that “may even have prevented more deaths” in the context of the preceding part of chapter 14 including p 177. This included that between 1963 and 1979 over 1000 patients had DST treatment at Chelmsford of whom 24 died at the hospital and 24 others committed suicide within a year of their release from it. The author acknowledged that it was hard to ascribe DST as the cause of the suicides. On p 179, immediately after it named the four doctors, the reader is told about three named patients’ deaths in the hospital and that 11 of the 24 who died there were under the age of 40. The book stated that one of those three named patients “died half an hour after Herron gave him ECT” (emphasis added) (p 179).

57    Chapter 14 later tells the reader that Dr Bailey committed suicide in 1985 and had left a note blaming the scientologists.

58    From p 181, the author discusses some of the activities of the psychiatric nurse, Ms Nicholson. She worked at Chelmsford on and off from late 1972. The reader learns that she had copied and removed medical records that she then provided to persons associated with the Church of Scientology to “blow the whistle on Chelmsford” (p 181). The author tells the reader on p 184 that she “was appalled at what she witnessed inside Chelmsford. The patients who received deep sleep therapy woke up heavily traumatised” (emphasis added). The author says that, in 1977, when she returned to work there, Ms Nicholson “was particularly damning about the cavalier attitude of the doctors. Although Bailey was making hundreds of thousands of dollars out of his patients, he was rarely there and Rosa had been back at Chelmsford for three weeks before she even saw him” (emphasis added). The footnotes to chapter 14 identified her testimony to the Royal Commission as the basis for this information.

59    Then, on p 190, the author informs the reader that, in 1988, the 60 Minutes television program revealed that at least seven people had died at Chelmsford during or after DST treatment between 1974 and 1977. The author said that the program “shocked the public” but, despite police and Health Commission inquiries, “the Chelmsford doctors continued to avoid accountability for their actions”.

60    Next, on p 192, the author tells the reader about the Royal Commission, that the “surviving Chelmsford doctors” gave evidence to it and précises its final report that revealed the 24 deaths and 24 suicides that he had also mentioned earlier on p 177. The author wrote that the Royal Commission had criticised the Department of Health “for failing to investigate the deaths”.

61    The ordinary reasonable reader would be led to think that Mr Hart was lucky to be alive after Mr Herron’s unauthorised treatment of him only because of Dr Francis’ actions in getting him out of Chelmsford. The passages on p 180 told the reader that Ms Nicholson exposed “the truth about the dozens of deaths caused by medical malpractice at Chelmsford Hospital”. The reader was told on p 180 that the dismissal of the Whitlam Government “buried Hart’s story and the series” that The Sydney Morning Herald had planned, and that “Herron and his colleagues at Chelmsford had dodged another bullet” that “may have even prevented more deaths”.

62    The reader was invited to read between the lines of chapter 14 and to adopt a suspicious approach as to what had occurred and on whom the blame for those deaths should be placed: Jones v Skelton (1963) 63 SR (NSW) 644 at 651 per Lord Morris of Borth-y-Gest, giving the advice of Viscount Radcliffe, Lords Jenkins and Guest, Sir Kenneth Gresson and himself; Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H–364C per Lord Keith of Kinkel giving the advice of Lords Elwyn-Jones, Roskill, Griffiths and himself.

63    The reader was invited to associate Mr Herron and his named colleagues, including Dr Gill, with the administration of the discredited, “dangerous and unproductive” treatments of DST and ECT that they, collectively, had administered to the 24 patients who had died at Chelmsford and to the 24 patients who committed suicide within a year after being discharged. Moreover, the reader would have understood that, unlike Mr Herron, Dr Gill and Dr Gardiner, Dr Bailey was not necessarily at Chelmsford often whereas the other three were there treating patients and supervising the administration of DST and ECT on them.

64    The thrust of chapter 14 was that that treatment and the use of DST and ECT was grossly negligent and lacked any medical justification. The reader was told this was “medical malpractice” that caused dozens of deaths. The reader would understand that Mr Herron and Dr Gill were, or were among, the four doctors who administered those treatments and that those were the doctors that had caused the 24 deaths at Chelmsford and possibly up to 24 suicides of patients within a year of their discharge. The matter complained of did not exclude or exculpate either Mr Herron or Dr Gill from responsibility for those outcomes or state for which of the deceased patients any of the four doctors was responsible.

65    The overall impression conveyed by chapter 14 and, in particular, the passages on p 180, was that each of Mr Herron’s and Dr Gill’s gross negligence as a psychiatrist in administering DST and ECT had caused the death of many of his patients. Accordingly, the book conveyed Imputation J.

1.6.    Imputation K: The applicant, a psychiatrist, engaged in sustained medical malpractice and abuse of his patients

66    The primary judge held (at [618]–[621]):

618.    The applicants relied on:

P 180: The Herald had been planning to run a series on the abuse of mental health patients, but the sacking of the Whitlam government that afternoon buried Hart’s story and the series. Herron and his colleagues at Chelmsford had dodged another bullet. A Herald series would surely have brought out more victims of Chelmsford and put pressure on the government to act. It may even have prevented more deaths.

P 180: Rosa Nicholson became the central figure in exposing the truth about the dozens of deaths caused by medical malpractice inside Chelmsford Hospital.

P 181: When she returned as an undercover agent, she copied and removed medical records that became key pieces of evidence exposing a horror show of sustained medical malpractice and abuse.

619.    The respondents noted that the applicants also relied on text at pp 184, 192, 196, 198 and 201 although these references are not identified in the applicants’ final submissions (Schedule 2). On the basis that the respondents are correct, I note the respondents submissions as follows:

What was done to Mr Hart is detailed in the chapter, Mr Hart is identified as a patient of Mr Herron and his conduct in administering DST led to Mr Hart successfully taking civil proceedings against him for false imprisonment and assault and battery. However, the pleaded imputation is much wider and refers to ‘sustained’ medical malpractice and abuse. That would require some suggestion that Mr Herron engaged in similar conduct for more than one patient over a lengthy period of time.

The primary focus for this imputation is page 184 which contains reference to files retrieved by Rosa Nicholson comprising a ‘catalogue of psychiatric abuse and malpractice’. That description is contained in a paragraph which commences with ‘But Bailey was the one who was about to feel rattled’. It follows from a paragraph which sets out in detail various aspects of Dr Bailey’s conduct at Chelmsford Private Hospital. The ordinary reasonable reader is thereby directed to Dr Bailey’s conduct, rather than any suggestion that the ‘catalogue’ related to Mr Herron or Dr Gill.

620.    I agree with the respondents’ submissions. The only patient of Mr Herron’s who is mentioned is Mr Hart and full details are given of his treatment and its consequences. There is no other reference to any patient being one of Mr Herron’s (although there is a reference to Peter Clarke dying less than half an hour after being given ECT by Mr Herron). No patient of Dr Gill’s is mentioned. In contrast, the focus of the Chapter is on Dr Bailey as experimenting with DST at Chelmsford, as using DST, as DST being Dr Bailey’s theory, that Dr Bailey ignored Dr Sargant’s safeguards for narcosis, that Dr Bailey was dismissive and abusive of nurses during emergencies, that Dr Bailey would be rattled by the files showing a catalogue of psychiatric abuse and malpractice, and that Dr Bailey was feeling the heat.

621.    Accordingly, imputation K is not conveyed with respect to Mr Herron or Dr Gill.

(emphasis added)

67    The passages from pp 180 and 181 of the book emphasised in the above quotation from [618] of her Honour’s reasons are not confined, as the publishers asserted and the primary judge accepted, to Dr Bailey’s conduct. Rather, the ordinary reasonable reader would understand that the four named doctors participated in the “horror show of sustained medical malpractice and abuse”. After all, as noted at [59] above, Mr Cannane also told the reader that, “despite all of the press revelations, police and Department of Health inquiries, the Chelmsford doctors continued to avoid accountability for their actions”. The thesis of the author’s criticism of what went on at Chelmsford was that the use there of DST and ECT on the many patients over the years amounted to medical malpractice and abuse, that the Royal Commission ultimately exposed.

68    The reader was invited to conclude that each of Mr Herron and Dr Gill was one of the doctors responsible for that “sustained medical malpractice and abuse of his patients”. Indeed, chapter 14 used Mr Herron’s treatment of Mr Hart to provide a vivid illustration of the alleged malpractice and abuse of a patient. The chapter then went on to deal at a generalised level with the systemic nature of Mr Hart’s treatment at Chelmsford, saying in the caption under his photo “Barry Hart took on Chelmsford Private Hospital doctors [sic] in a series of legal cases” (emphasis added). The reader is told on p 177 that Mr Hart:

was a victim of gross medical negligence and abuse, but he was lucky to be alive. Between 1963 and 1979 over 1000 patients were subjected to deep sleep therapy at Chelmsford. Of those patients, 24 died at the hospital, and another 24 committed suicide within a year of their release, although it’s hard to pinpoint how many of these suicides related to pre-existing mental health conditions. The Church of Scientology played a major role in exposing the atrocities committed at Chelmsford, a rare instance where the Scientologists used their undercover operations as a force for public good.

(emphasis added, footnotes omitted)

69    Thus, the reader was invited to treat Mr Hart’s case as but one of those “atrocities” and him as a person who also helped expose what was going on at Chelmsford. And on p 184, Mr Cannane wrote that by the time that Ms Nicholson finished her last shift at Chelmsford in April 1978 “she had photocopied over 100 files comprising a catalogue of psychiatric abuse and malpractice”.

70    Next, on p 192, the reader is told in July and August 1988 that the Sydney Morning Herald “ran a hard-hitting series that exposed the impact of the medical abuses of Chelmsford Hospital on dozens of victims and their families”. And on p 196, Mr Cannane wrote that the scientologist, Mr Segal, remained “proud of the role he played in exposing the medical abuses of Bailey and his fellow Chelmsford doctors” (emphasis added). He continued (on p 198): “The exposure of psychiatric abuses inside Chelmsford is arguably Scientology’s finest moment in Australia”.

71    Accordingly, the reader would have understood that Imputation K was conveyed by the book about each of Mr Herron and Dr Gill.

1.7.    Imputation L: The applicant, a psychiatrist, defrauded his patients’ health funds

72    Her Honour wrote (at [623]–[626]):

623.    The applicants relied on:

P 184: Rosa… salvaged a number of ECT books from the rubbish bin, which showed doctors defrauding the patient’s health funds.

624.    The respondents submitted:

This imputation is said to arise from the reference on page 184 to ‘doctors defrauding the patient’s health funds’. The reference must be read in context. It appears in a passage devoted to describing the documents obtained by Rosa Nicholson. Later on the page, the author refers to Dr Bailey ‘making hundreds and thousands of dollars out of his patients’ and to Dr Bailey being the ‘one who was about to feel rattled’. In light of those matters, the ordinary reasonable reader would conclude that the reference to defrauding of health funds was a reference to Dr Bailey. Neither applicant is mentioned in this context.

625.    While I accept that the reference on p 184 is to “doctors”, I agree with the respondents that read in context of the page as a whole the ordinary reasonable reader would understand that the reference to doctors defrauding health funds was a reference to Dr Bailey.

626.    Accordingly, imputation L is not conveyed with respect to Mr Herron or Dr Gill.

(emphasis added)

73    Her Honour erred in finding that the statement on p 184 “showed doctors defrauding the patients’ health funds” referred only to Dr Bailey based on a reading “in the context of the page as a whole”. The ordinary reasonable reader reads all of the matter complained of, not an excerpt from it, as a whole. While, as the publishers argued, the reader is fair-minded (Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 467 [6] per French CJ, Gummow, Kiefel and Bell JJ), he or she is not an over-zealous lawyer and does not live in an ivory tower as Lord Reid pungently put it in Lewis [1964] AC at 258: Favell 221 ALR at 190 [10].

74    The primary judge’s construction ignored the balance of chapter 14 which, like p 184, invoked how all of the four named doctors practised at Chelmsford. The author chose the word “doctors”, not “a doctor” or “Dr Bailey” to describe the perpetrators of the fraud that the retrieved “ECT books” revealed. The reader would understand that Mr Herron, not Dr Bailey, had administered ECT to Mr Hart and, presumably, the ECT books would record such treatment and the name of the doctor who administered it. Chapter 14 made pellucid that Dr Bailey was only one of the four doctors who used ECT treatment at Chelmsford. While the author tells the reader on p 184 that Ms Nicholson observed that Dr Bailey was making hundreds of thousands of dollars out of his patients but was rarely at Chelmsford in 1977, the sting of the statement about her salvaging the ECT books is that the books, not her observations of Dr Bailey or rather his absence, showed the fraud by the doctors.

75    The ordinary reasonable reader was invited to think that the doctors who ran the cult-like hospital were all consciously engaged in the administration of the dangerous and unproductive DST and ECT treatments, abuse of patients and restrictions on visiting rights. The reader would have understood that the ECT books that Ms Nicholson salvaged from the rubbish bin had exposed more than one of those same four doctors. No doubt, the reader would conclude that Dr Bailey was one of the doctors committing the fraud. But, having been told throughout chapter 14 of the discreditable conduct of all of the four doctors at Chelmsford, the ordinary reasonable reader would have eschewed parsimony when inferring who the asserted fraudsters were, especially when the chapter conveyed so many adverse imputations about all four doctors: Trkulja 263 CLR at 160–161 [32].

76    The reader would have understood chapter 14, read as a whole, to convey that each of Mr Herron and Dr Gill, as psychiatrists, had defrauded his patients’ health funds.

1.8.    Imputation M: The applicant, a psychiatrist, traumatised many of his patients by giving them deep sleep therapy without their consent

77    The primary judge wrote (at [628]–[631]):

628.    The applicants relied on:

P 184: The patients who survived deep sleep therapy woke up heavily traumatisedMany were given deep sleep therapy without their consent.

629.    The respondents submitted that such an imputation:

…can be envisaged in relation only to Mr Herron (not Dr Gill) and only relating to the treatment of Mr Hart (not any other patients). The pleaded imputation is far wider. Read in context, the reference on page 184 to patients being treated without their consent would be read by the ordinary reasonable reader as a description of Dr Bailey’s treatments. The same can be said for page 192. The reference to patients being treated without consent is contained in the same sentence as the reference to Dr Bailey falsifying death certificates. The imputation is not conveyed by the matter complained of.

630.    I agree with the respondents. In the context of the Chapter as a whole it is not open to infer that the ordinary reasonable reader would understand that Mr Herron or Dr Gill traumatised many of their patients by giving them deep sleep therapy without their consent. Apart from Mr Herron’s treatment of Mr Hart, there is no reference to Mr Herron or Dr Gill administering DST. There are numerous references to DST being Dr Bailey’s treatment.

631.    Accordingly, imputation M is not conveyed with respect to Mr Herron or Dr Gill.

(emphasis added)

78    The opening three paragraphs of chapter 14 on p 176 describe Mr Hart “waking up from a deep sleep in agony and distress” and close to death, 10 days after his admission as a healthy fit man “in peak physical condition”. It stated: “When he tried to alleviate the pain by moving his arms, Hart realised that he was shackled. ‘Get these things off!’ he screamed. He could not understand what was going on, or what version of hell he had descended into”. The reader is told that while under DST, Mr Hart received ECT on six occasions over ten days (p 177). The reader would understand that this graphic description was of a man severely traumatised by the situation in which he found himself.

79    The reader is told, on p 177, that on his admission to Chelmsford in 1973, Mr Hart refused to sign a consent form to electric shock treatment (ie: ECT). The reader was told that Mr Hart’s solicitors had obtained access to his medical records at Chelmsford, but that these were missing a signed consent form for any DST or ECT treatment. In the photograph pages for the book that appeared in the middle of chapter 14, a picture of Mr Hart had a caption that began “Barry Hart took on Chelmsford Private Hospital doctors in a series of legal cases” (emphasis added). Next on pp 188–189 the reader learns that Mr Hart sued Mr Herron and that, in 1980, a jury found Mr Herron had falsely imprisoned, assaulted and battered Mr Hart because he had not consented to the DST and ECT treatment to which he had been subjected.

80    The primary judge’s reasons in [630] overlooked the detailed treatment in chapter 14 of Mr Herron’s failure to obtain Mr Hart’s consent to the administration of DST and ECT treatment, including its description of the jury verdict that Mr Herron committed assault and battery on Mr Hart because the latter had not consented. And Chapter 14 made clear that Mr Herron’s patient, Mr Hart, was deeply traumatised by that treatment, including when he awoke from the DST treatment and “could not understand what was going on, or what version of hell he had descended into”.

81    The ordinary reasonable reader would have immediately identified Mr Hart as a patient that the passage on p 184 described as a survivor of DST and ECT who woke up heavily traumatised and who had not consented to that treatment. And, chapter 14 left no doubt that Mr Herron was the doctor responsible for Mr Hart’s experience, as its description of the jury’s verdict made clear.

82    Similarly, although Dr Gill was named only once, on p 179, as one of the four Chelmsford doctors, that very passage on p 179, and in addition, chapter 14 read as a whole, referred to them collectively as the persons responsible for the administration of DST and ECT treatment. While chapter 14 described Dr Bailey as the person who began using DST in Chelmsford, the reader would have understood that all the four doctors used that treatment and ECT and that this use was the source of the categorisation on p 181 of a “horror show of sustained medical malpractice and abuse”. After all, the reader had been told at pp 178–179 that the “advance warnings from senior figures in the medical profession did not deter Bailey and his fellow Chelmsford doctors, John Herron, John Gill and Ian Gardiner. Nor did the death toll mounting before their eyes”.

83    While, as the publishers argued, Mr Hart is the only person named in chapter 14 as having been treated without his consent, that argument ignored the implication that the reader would draw from the passage on p 184 that many patients “were given deep sleep therapy without their consent”. The reader was invited to think that the author had researched the subject-matter in chapter 14 with the benefit of the findings of both the jury in Hart v Herron and of the Royal Commission.

84    With respect, there was no basis for the primary judge to conclude that the ordinary reasonable reader would not have understood the passage on p 184 to refer to both Mr Herron and Dr Gill. Read in the context of chapter 14 as a whole, Imputation M was conveyed about each of Mr Herron and Dr Gill.

2.    The operation of s 56 of the Evidence Act issue

85    I have had the advantage of reading the reasons of Lee J on the operation of s 56 of the Evidence Act issue and agree with them.

3.    The s 17(2) of the Royal Commissions Act issue

86    On the third day of the trial, the primary judge ruled that s 17(2) of the Royal Commissions Act (the NSW Act) did not preclude the publishers from tendering in evidence two documents that Dr Gill contended had been produced by him to the Royal Commission under compulsion pursuant to s 17(1): Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805.

87    At the time of the Royal Commission proceeding, s 17 provided:

17     Answers and documents

(1)    A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate him, or on the ground of privilege, or on any other ground.

(2)    An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

(3)    Nothing in this section shall be deemed to render inadmissible:

(a)    any answer, document or other thing in proceedings for an offence against this Act,

(b)    any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1),

(c)    any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

(4)    This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.

88    Even though, as discussed in Lee J’s reasons, the consequence of ss 8 and 56 of the Evidence Act is that s 17(2) of the NSW Act did not have any operative effect in this Court, Mr Herron and Dr Gill gave evidence and produced documents to the Royal Commission under the compulsion of s 17(1) and in the circumstances that they could expect that s 17(2) would apply to that evidence and those documents in the future. Indeed, at the time they did so, the enactment of the Evidence Act was over 5 years in the future.

89    Accordingly, if s 17(2) of the NSW Act would have precluded the publishers from being able to tender evidence or documents that Mr Herron and Dr Gill produced to the Royal Commission under compulsion, but for the operation of ss 8 and 56 of the Evidence Act, that fact may be relevant to the exercise of the discretions under each of ss 135 or 136 to refuse to admit or limit the use of particular evidence or documents. Therefore, it is necessary to consider whether the important evidentiary ruling that the primary judge made on the construction of s 17(2) was correct.

90    Her Honour reasoned that, while s 17(2) provided a statutory protection that was the correlative to the removal of the common law privileges in s 17(1), the publishers were not seeking to have the documents admitted “against” Dr Gill, but rather they sought to justify the admission of those documents as being in support of their defence of justification.

91    Her Honour held that the decision of Campbell J in Feldman v Nationwide News Pty Ltd [2018] NSWSC 715, which arrived at a similar construction of an analogue of s 17(2), s 6DD of the Royal Commission Act 1902 (Cth) (the Commonwealth Act), was compelling, namely that, as she said:

… the natural and ordinary meaning of a provision such as s 17(2) is to provide a protection against the use of compelled evidence to establish a civil liability or criminal responsibility in the person whose privileges were abrogated by s 17(1).

92    The primary judge then found that the proceeding:

does not involve the establishing of any civil liability or criminal responsibility on the part of the applicants. Rather, the documents are sought to be deployed by the respondents to defend proceedings brought against them by the applicants. In my view, for these reasons, s 17(2) does not operate to prevent the use of documents of the Royal Commission in this proceeding.

93    As a result, the publishers thereafter tendered many documents from the Royal Commission that Mr Herron and Dr Gill had produced to it under compulsion and used parts of their evidence to the Royal Commission to make findings of fact and credit adverse to Mr Herron and Dr Gill. Her Honour’s findings as to their credibility drew heavily on aspects of the oral evidence that Mr Herron and Dr Gill had given to Slattery AJ. For example, her Honour found at the outset of her principal reasons (Herron (No 3) [2020] FCA 1687 at [24]):

Dr Gill’s unreliability as a witness is evident from the examples on which the respondents relied as follows, which I accept:

(a)    Dr Gill’s evidence was that he did not accept that his patients were given deep sleep therapy and that he gave his patient John Adams ‘light’ sedation. That is contrary to what Dr Gill told the Royal Commission where he clearly stated his involvement in ‘Deep Sleep Therapy’ and set out his reasons: Ex. 12, tab 2, pg. 4. It is also contrary to the actual regime of drugs given to John Adams, which involved the maximum number of drugs with the minimum amount of time between doses: Gill XXN [cross-examination] at T269.6-10.

(d)    Dr Gill could not explain the stark contrast between his evidence to the inquest of John Adams that he was ‘absolutely satisfied’ with the level of nursing care and his evidence to the Royal Commission that the monitoring of patients in the DST ward was not good enough on that occasion. Had Dr Gill come clean and admitted that he was concealing the truth from the Coroner, one might have more reason to believe his current evidence. Dr Gill could not bring himself to make that obvious admission: Gill XXN at T292.19-293.8.

94    After her Honour reserved her judgment, the Court of Appeal of the Supreme Court of New South Wales affirmed Campbell J’s decision in Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307. There, Bell P, with whom Macfarlan and Payne JJA agreed, reviewed the legislative history of s 6DD of the Commonwealth Act and other decisions on it and its analogues. His Honour said that s 6DD had its origins in provisions that were designed to ensure that answers given by a person under compulsion to a royal commission or a commissions of enquiry “could not be used in a way that would expose him or her to liability, whether criminal or civil” (emphasis added) (at 327 [91]). Bell P said that this protection was a trade-off for compelling candour from witnesses in such a commission. He followed both Campbell J and the primary judge here in finding that the reasoning of Young JA on s 17(2) of the NSW Act in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 at 537 [154] not persuasive or correct, saying (103 NSWLR at 328 [93]–[96]):

93.    By way of contrast, one finds no support in the legislative history for the proposition that s 6DD was designed to preclude the availability of a fair report defence for the purposes of the law of defamation. As was pointed out in Hood v R (1997) 91 A Crim R 526 at 536, royal commissions historically have been called in relation and/or in response to events of great public interest. It would be passing strange if both the Commonwealth and State legislatures intended, by a side wind, to eliminate by s 6DD and its cognate State counterparts an important element of the law of defamation, and one which recognises the importance and encourages the fair report of evidence given at such commissions.

94.    As with both the primary judge and Jagot J in Herron, I do not consider that Hatfield is persuasive or dictates that the primary judge erred in admitting the transcript of the appellant’s testimony at the Royal Commission.

95.    Hatfield treated the issue in a single paragraph (at [154]) as follows:

“[154] In my view there is no room for any waiver of the statutory protection given by the Act. The statute plainly says that the evidence is not to be admissible against the witness. During argument, appellant’s counsel put that ‘against that person’ meant in any way against that person’s interest. Although this was said in reply, it was based on R v Bayeh [1999] NSWCCA 82 and must be correct.”

96.    As to that paragraph, the following matters may be observed. First, the issue was evidently raised in reply and so necessarily was not the subject of any argument or exploration in argument. Secondly, nothing in Bayeh supports the argument. Indeed, it would appear that, to the extent that there was any argument in that case coming close to the issue sought to be relied upon in this appeal, it was regarded by the court in Bayeh at [23] as “unsuitable for [its] resolution” as a court constituted pursuant to s 6AA of the Criminal Appeal Act 1912 (NSW), and was only raised orally and not in any written submissions. Thirdly, the paragraph from Hatfield makes no reference to matters of legislative purpose or history which point significantly towards a construction of s 6DD which only precludes the admissibility of compelled evidence in circumstances where it is being sought to be used in proceedings against the person who has given the compelled testimony in the Royal Commission. Fourthly, Hatfield was not a decision concerned with s 6DD of the Royal Commissions Act.

(italics in original, bold emphasis added)

95    The Court of Appeal held that s 6DD did not prevent the transcripts or a video of the plaintiff’s evidence in a Royal Commission from both being admitted into evidence and relied on in support of the fair report defence (at 329 [97]).

96    The publishers argued that the primary judge correctly construed and applied s 17(2) of the NSW Act and that the subsequent reasoning in Feldman 103 NSWLR 307 and Roberts-Smith v Fairfax Media Publications Pty Ltd (No 18) [2021] FCA 793 on its analogues should be followed.

3.1.    Consideration

97    The researches of the parties and the Court have not disclosed any authority prior to the primary judge’s decision that applied as a matter of ratio decidendi to the construction or application of s 17(2) of the NSW Act. However, s 6DD of the Commonwealth Act had been discussed in several decisions, including in the High Court, albeit not in the present context. Relevantly, s 6DD has been amended several times since it was first enacted in 1912, but the amendments have broadened the subject-matter connected to compulsory disclosure of matter to a Royal Commission while the terms of the prohibition of the use of such matter in civil or criminal proceedings has remained substantially as it has been since the amendment in the Royal Commissions and Other Legislation Amendment Act 2001 (Cth), namely (as was considered in Feldman 103 NSWLR at 320 [52]):

6DD    Statements made by witness not admissible in evidence against the witness

(1)    The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

(a)    a statement or disclosure made by the person in the course of giving evidence before a Commission;

(b)    the production of a document or other thing by the person pursuant to a summons, requirement or notice under section 2 or subsection 6AA(3).

(2)    Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act.

(emphasis added)

98    In Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39], French CJ, Hayne, Crennan, Bell and Gageler JJ said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

(emphasis added)

99    The words of s 17(2) preclude the evidence or document being “admissible in evidence against that person in any civil or criminal proceeding” (emphasis added). “Proceeding” in s 17(2) of the NSW Act includes a proceeding in a tribunal: Hartmann v Commissioner of Police (1997) 91 A Crim R 141 at 148 per Cole JA, Handley and Powell JJA agreeing.

100    The words of s 6DD are different, and preclude the evidence or document being “admissible against a natural person in any court of the Commonwealth, a State or Territory” (emphasis added). In contrast to s 17(2), s 6DD is confined to court proceedings and does not include a proceeding in a tribunal: Belan v National Union of Workers (2018) 267 FCR 6 at 9 [16] per Rares, Perry and Charlesworth JJ.

101    Whether Feldman 103 NSWLR 307 was correctly decided does not arise directly here because of the differences in the wording of the two provisions and their separate statutory contexts: cf McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 661 [40] per McHugh, Gummow and Heydon JJ.

102    Importantly, s 29(1) of the Defamation Act provides for a defence of fair report of proceedings of public concern, which s 29(4)(f) defines as meaning “any proceeding in public of an inquiry held under the law of any country or under the authority of the government of any country”. That definition necessarily includes a Royal Commission held under the NSW Act. And, as McHugh JA, with whom Glass JA agreed, held in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481C–D, some common law rights (such as the right to publish a fair and accurate report of court proceedings) are of such importance that a legislative intention to repeal or amend them will only be found “when the language of [the] statute is unmistakably clear”.

103    However, the issue in Feldman 103 NSWLR 307 arose because s 6DD of the Commonwealth Act was a federal law that, read literally in its natural and ordinary meaning, would be inconsistent with, and preclude the operation of, s 29 of the Defamation Act as a defence to Rabbi Feldman’s defamation action. Hence, Bell P’s reasoning that s 6DD, as a federal law, ought be construed so as not to preclude reliance on a common law right, and a defence under s 29 of the Defamation Act, to make a fair report of the proceeding in the federal Royal Commission (see 103 NSWLR at 322 [63], 331–332 [108]–[117]). Because proceedings in the Supreme Court and the Court of Appeal concerned the construction of s 6DD, the matter was in federal jurisdiction.

104    The issue of statutory construction here also involves consideration of the interaction between federal and State law. This led to the Court raising with the parties, at the commencement of the appeal, the operation of s 56 of the Evidence Act issue.

105    In considering the construction of s 17(2), it is important to bear in mind what Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ held in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at 269–270 [29]–[31], namely that prior judicial decisions that construed a different statute containing an identically worded phrase or section to the one currently in issue, cannot be applied as if they elucidated a “common law principle” established by the earlier constructions. They said (at 270 [31]):

The caution required in construing modern Australian legislation by reference to “principles” derived in this way is indicated by McHugh J in Marshall v Director-General, Department of Transport ((2001) 205 CLR 603 at 632-633 [62]). That case concerned the expression “injuriously affecting” as it appeared in s 20 of the Acquisition of Land Act 1967 (Qld); ss 49 and 63 of the 1845 Act had used the same phrase as had the subsequent legislation in various jurisdictions. Differing interpretations had been given to the expression in question. McHugh J noted the similarity in the terms of the legislation and went on (205 CLR at 632-633 [62]):

“But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court’s jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.”

(emphasis added)

106    The consideration that the High Court has given to the scope of s 6DD of the Commonwealth Act has focused on the admissibility of evidence or statements given, or documents produced, by an individual under compulsion to a Royal Commission in the context of an actual or possible criminal proceeding against him or her.

107    In Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182 at 196, 218–219, Griffith CJ and Isaacs J upheld the constitutional validity of s 6DD of the Commonwealth Act, as Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ noted in X v Australian Prudential Regulation Authority (2007) 226 CLR 630 at 640 [33] (footnote 27). Griffith CJ regarded the legislative power to compel information on subjects necessary for the effectual performance of governmental functions as carrying with it “the power to protect witnesses from the consequences of self-crimination” (15 CLR at 196). Isaacs J held (15 CLR at 218–219):

It cannot be supposed, reading the Act as a whole, that Parliament intended that the heavy penalties enacted should be incurred without the full condition of immunity granted by the challenged section. The condition is an essential part of the scheme

The power to compel the attendance of witnesses and their answers to questions, includes a discretion as to the best means of eliciting the truth, and manifestly one method of inducing a man to speak the truth is to free him from any apprehension of prejudice from doing so.

The evidence extracted might otherwise be misleading and so tend to defeat the object of the enactment. Complete immunity in this respect being then within the power of the Commonwealth Parliament, it follows that if provision for that purpose overlaps an inconsistent State law, or practice, sec. 109 of the Constitution confers paramountcy on the federal law.

(emphasis added)

108    In Sorby v The Commonwealth (1983) 152 CLR 281 at 310–311, Mason, Wilson and Deane JJ held that where a legislature abrogates the privilege against self-incrimination, it often gives the witness compensatory protection by providing that his or her answers should not be admissible in any civil or criminal proceedings other than in a proceeding for an offence in giving that evidence or contempt. They said (at 310) that the presence of a protective provision (such as s 17(2) of the NSW Act here) provokes the question “[w]hat purpose is the subsection intended to serve if it is not to protect the witness from the abrogation of the privilege?” (emphasis added).

109    Next, in Giannarelli v The Queen (1983) 154 CLR 212 at 220, Gibbs CJ explained that s 6DD of the Commonwealth Act left no room for the operation of any State law that regulated admissibility of evidence given before a Commonwealth Royal Commission and held (see too at 221–222 per Murphy J, 224 per Wilson J):

Any statement or disclosure made by a witness in the course of giving such evidence is rendered inadmissible, except in proceedings for an offence against the Royal Commissions Act 1902, and it is expressly provided that the prohibition of the admission of the evidence extends to any criminal proceedings in the court of a State.

(emphasis added)

110    Brennan J said (at 228):

Section 6DD is a law relating to the admissibility of evidence in any civil or criminal proceedings in any Australian court. The occasion for its application is the tendering against a witness (i.e., a witness who has given evidence before a Commonwealth commission) of evidence of what the witness stated or disclosed in the course of giving his evidence before the commission. The section requires the court to refuse admission in evidence of any such statement or disclosure. The section does not apply to proceedings for an offence against the Royal Commissions Act. The operation of the section may well assist in eliciting information from witnesses before the commission, but the section does not affect the powers of the commissioner or his conduct of the commission. Section 6DD denies admissibility to evidence of the witness statement or disclosure which would or might otherwise be admissible evidence against him.

(emphasis added)

111    The purpose of s 6DD is to protect a witness in a Royal Commission in civil or criminal proceedings in his or her capacity as a witness, not as a party, from the consequences of disclosing information under compulsion of law in an inquiry by the executive branch of government without the ordinary protections to which the witness would be entitled in judicial proceedings. In most instances, the clearest example of the need for such protection is the impact of the loss of the right of a witness before a Royal Commission to claim privilege against self-incrimination as a ground for refusing to answer a question. But, the wording of both s 6DD of the Commonwealth Act and, importantly here, s 17(2) of the NSW Act, is not limited to prevent the subsequent admissibility of the evidence of, or a document produced by, the witness before a Royal Commission in a criminal proceeding against the witness. That is because each section proscribes use of the witness’ evidence or document that he or she produced under compulsion to a Royal Commission in both criminal and civil proceedings. Moreover, the witness may not be the accused or defendant in the subsequent curial proceeding, but a witness in it who, surely, must be able to retain the right to invoke his or her privilege against self-incrimination if asked about what he or she said in giving evidence, or whether he or she produced a document, to a Royal Commission under compulsion.

112    For some purposes, the presence on the court record of a person as a respondent or defendant is an accident of form over substance. For example, it is not uncommon that two proceedings are heard together, where one is commenced by an applicant who is a respondent in the second, so that the position of the parties on the record in each is obverse, and the court orders that the two be heard together with evidence in the one proceeding be evidence in the other. And, in cases such as Willey v Synan (1935) 54 CLR 175, a person who is in substance in the position of a defendant or respondent may have to bring a proceeding as the plaintiff or applicant. There, a collector of customs seized goods on a ship and gave the plaintiff, a crew member, a statutory notice that, unless he commenced proceedings under the Customs Act 1901 (Cth), the goods would be forfeited. The plaintiff, who lived overseas, commenced a proceeding and the collector then sought security for costs. Latham CJ said (at 180) that the plaintiff there was “really in the position of a defendant” because he was “forced to commence the proceeding, not merely to enforce his claim, but to prevent his claim from being extinguished”. Dixon J, with whom Rich J agreed, said (at 184) that the principle on which security for costs would be ordered against an individual who resides out of the jurisdiction was that “however the parties are arranged upon the record, he is the person invoking or resorting to the jurisdiction for the purpose of establishing rights or obtaining relief”, and that, in that case, the plaintiff on the record was really the defendant.

113    If s 17(2) of the NSW Act were construed by having regard to whether a witness before a Royal Commission were a party to a proceeding on a particular side of the record, the legislative purpose of ensuring that the evidence that he or she gave to the Commission was complete and truthful would be defeated. That is because, in giving evidence or producing documents to the Commission, the witness would not have the complete assurance, conveyed by s 17(2) in its literal meaning, of the plenary prohibition of admissibility of his or her evidence or documents against him or her: Colonial Sugar 15 CLR at 196, 218–219; Giannarelli 154 CLR at 220, 228. Rather, the assurance would be qualified and uncertain, its applicability being subject to the vagaries of whether he or she was an applicant (or plaintiff) or a witness in some subsequent civil or criminal proceeding.

114    With respect, the analysis in Feldman 103 NSWLR 307, Roberts-Smith (No 18) [2021] FCA 793 and by the primary judge, that confined the scope of the protection in s 17(2) or its analogues, stopped short of considering what would happen if, for example, a witness before the Royal Commission is later asked in the court proceeding whether he or she gave particular evidence or produced a document to the Royal Commission. Nothing in the Evidence Act, or at common law, would prevent the witness (or party) objecting to answer such a question if its answer would tend to criminate him or her, reveal a communication the subject of legal professional, client legal, or without prejudice, privilege. And, likewise, the witness could object to answering a question about a document that he or she had produced to a Royal Commission on the same basis.

115    It cannot have been the legislative intention that the witness who gave the compelled evidence or produced the compelled document to a Royal Commission could not object in other proceedings, on any ground that s 17(1) of the NSW Act or its analogues had abrogated, if subsequently he or she is called to give evidence, or required to produce or identify himself or herself as the source of, or being connected to, the compelled production of the document to the Royal Commission: cf Sorby 152 CLR at 294–295, 300 per Gibbs CJ, 305, 310–311 per Mason, Wilson and Dawson JJ, 311–312, 313 per Murphy J and see too at 324 per Brennan J.

116    While s 17(2) does not inhibit the use of knowledge that the witness gave the compelled evidence or produced a document in the Royal Commission, it does prohibit in terms the admission of the evidence or document into evidence “against the person in a civil or criminal proceeding”. Nor could the use or tender of a compelled document, being the very document that a person produced to a Royal Commission, in a civil or criminal proceeding be allowed subsequently to cause the loss of the protection given by the operation of s 17(2).

117    That is not to say that a party is precluded from using the processes of discovery or a subpoena to the person to produce the same document. The purpose of s 17(2) is to protect the witness giving evidence, or person producing a document under compulsion, to a Royal Commission from having that evidence, or that production of the document to the Commission, being used against his or her interests in a civil or criminal proceeding.

118    A construction of s 17(2) that imported a qualification to the prohibition on admissibility which depended on whether the witness before the Royal Commission subsequently was exposed as a respondent or defendant in a civil or criminal proceeding to civil or criminal liability would not give the person the protection that Parliament intended. Likewise, there is no policy reason why the compelled disclosure of privileged information, other than that which is potentially criminatory, should be available for all purposes against the witness unless someone is seeking to use that information (whether comprising the witness’ testimony given or documents produced under compulsion to a Royal Commission) to establish civil or criminal liability against him or her.

119    The most immediately obvious situation in which compelled disclosure in a Royal Commission will expose a witness to potential liability is that of a criminal prosecution. However, the existence of such a potential cannot govern the construction of the complementary protection that s 17(2) is intended to provide for the unlimited compulsion to disclose information under s 17(1) that would otherwise be privileged or protected from disclosure by law or a social or moral duty of confidence. Our society values the keeping of secrets that involve no wrongdoing as well as the protection of an individual from the exercise of Governmental power to force him or her to reveal information that would criminate or expose him or her to the imposition of a penalty. Isaacs J described the operation of s 6DD of the Commonwealth Act as giving the witness “complete immunity”: Colonial Sugar 15 CLR at 219. And, in Giannarelli 154 CLR at 220, Gibbs CJ said, without the qualifications now suggested, that s 6DD rendered inadmissible “any statement or disclosure made by a witness in the course of giving” evidence to a Royal Commission, as did Murphy J (at 221) and Wilson J (at 224). And, as Brennan J said (at 228), s 6DD “denies admissibility to evidence of the witness’ statement or disclosure which would or might otherwise be admissible against him” (emphasis added).

120    The parties to this appeal debated the decisional status of what Young JA said about s 17(2) of the NSW Act in Hatfield 77 NSWLR at 537 [154], with whom McColl JA (at 534 [118]) and Sackville AJA (at 539 [168]) expressed agreement. The better view is that those remarks were obiter dicta, as Bell P held in Feldman 103 NSWLR at 328 [96]. Nor does the decision of Grove J, with whom Kirby J agreed, in R v Bayeh [1999] NSWCCA 82 at [22]–[24] assist in the construction of s 17(2). That is because, as Grove J noted, counsel for the offender had tendered the transcript of his client’s evidence before the sentencing judge without seeking any restriction under s 136 of the Evidence Act or otherwise on the use to which the judge could put what that transcript contained.

121    In Hartmann 91 A Crim R at 147, Cole JA held, applying Sorby 152 CLR at 310–311, that the ingrained nature of the common law’s concern to protect an individual against self-incrimination required s 17(1) to be strictly construed and “also requires that a liberal interpretation be given to the protective provisions in a statute purporting to protect a person from the consequences of the abrogation of the protection against self incrimination”. Cole JA (with Handley and Powell JJA agreeing) held that s 17(2) reflected the legislature’s intention that statements, evidence given or documents produced to a Royal Commission under the NSW Act “are not available as evidence against the person providing or giving the statement, document or evidence in any future proceeding, howsoever they are categorised” (at 147).

122    In Roberts-Smith [2021] FCA 793 at [30] and [32], Besanko J held that s 124(2CA) of the Defence Act 1903 (Cth) and reg 32(2) of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth), which are expressed in similar terms to s 6DD of the Commonwealth Act, should be construed consistently with Feldman 103 NSWLR at 328 [93]–[96] and the primary judge’s reasons in Herron [2020] FCA 805. Besanko J held that the natural and ordinary meaning of s 124(2CA) and reg 32(2) was consistent with a legislative purpose “to ensure that a person cannot be exposed to civil or criminal liability by reason of giving compelled evidence” and that those provisions did not preclude use of the compelled evidence where “the person is not exposed to either civil or criminal liability”. His Honour held that the respondents in that case were entitled to use the compelled evidence of third parties, whom the applicant intended to call as witnesses, in support of their defences of justification and contextual truth. He noted that the prohibition was directed to “admission into evidence” of the compelled evidence against an individual as opposed to the use of that compelled evidence (at [31]).

123    Yet, if the principle in Feldman 103 NSWLR at 328 [91] be correct as extending further than the Court of Appeal actually decided, the evidence of an answer to a question in a Royal Commission by an applicant, plaintiff or mere witness will be admissible as evidence against him or her despite the plenary wording of s 6DD of the Commonwealth Act or s 17(2) of the NSW Act.

3.2.    What limits on the operation of s 17(2) apply?

124    It is important to appreciate that, as Bell P emphasised in Feldman 103 NSWLR at 328 [93], there was no basis to suggest that s 6DD was intended to prevent a publisher from relying on a defence of fair report in respect of proceedings in, or the report of, a royal commission.

125    The essence of the defence of fair report is that the publisher relies on its reporting of the fact that something happened or occurred in a proceeding of public concern, such as proceedings in Parliament, a court, tribunal, local government council meeting, or a statement or report made in or to such a proceeding. The purpose of the defence at common law or under statute is to convey information to the audience about the proceeding or what occurred in it as a fair and accurate summary of what was said or done in public (see, eg, s 29 of the Defamation Act). The circumstance that some statement or imputation adverse to a person was made in such a proceeding can form part of such a report, provided that the report is substantially accurate and its publisher is not actuated by malice in publishing it. The tender of evidence to establish the fact that the proceeding reported on occurred and what was said or done in it, does not establish anything more than that something was said or done about, or that related to, the plaintiff in the proceeding. Importantly, the tender of evidence for that purpose does not establish or tend to establish the truth of any fact asserted in the course of the proceeding or report, as opposed to the fact that the assertion occurred there.

126    Critically, the tender of evidence or a document, that a witness gave or produced under compulsion to a Royal Commission, to found a defence of fair report, qualified privilege or honest opinion is not a tender against a witness. Rather, it is a tender against a party in order to prove as a fact that something was said or produced to the Royal Commission which the defendant or respondent reported as a fact that had occurred or used as material on which he, she or it expressed an opinion.

127    This is a familiar distinction similar to how statements made and documents produced under absolute privilege in proceedings in Parliament cannot be questioned in any court or place outside Parliament by force of Art 9 of the Bill of Rights 1688 (Eng). It has long been the law that Art 9 does not prohibit evidence of the fact that such a statement was made or document was produced in proceedings in Parliament in support of a defence of fair report, qualified privilege and honest opinion (previously called fair comment), as I explained in Barilaro v Shanks-Markovina (No 2) (2021) 393 ALR 417 at 426–431 [21]–[40], see too at 436–437 [66]–[68].

128    There is no reference in Bell P’s reasons to any submissions about the application of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and the implied constitutional freedom of communication on government and political matter. There, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said that (at 571):

… each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter….

Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level.

129    To the extent that s 6DD of the Commonwealth Act or s 17(2) of the NSW Act, if applied in its natural and ordinary meaning, would otherwise prohibit the admission into evidence against a party in a civil or criminal proceeding of a transcript or video of evidence of that person, when a witness in a Royal Commission given in public under the Commonwealth Act, for the purpose of supporting a defence of fair report of the proceeding before the Commission (which developed an aspect of the common law defence of qualified privilege), the implied freedom would operate to allow that defence to be maintained.

130    That is because the decision of the Executive Government of the Commonwealth to establish a Royal Commission under the Commonwealth Act (or a decision of the State Government under the NSW Act) necessarily fell within the scope of government and political matter that attracts the operation of the implied freedom. And, accordingly, the proceedings before, and of, such a Royal Commission, including the evidence of witnesses to it and its reports to the Executive, will be the stuff of government and political matter about which electors are entitled to be informed and exchange views.

131    However, the truth of what is said in evidence before a Royal Commission, and the Commission’s findings on that subject, are in a different category. That is because, a Royal Commission does not exercise judicial power and the question of whether a person gave false evidence or perjured himself or herself in giving evidence to it, although able to be made the subject of a Commission’s findings, can only be decided conclusively in a curial proceeding.

132    The Evidence Act provides in s 56(1) that except as otherwise provided in that Act, “evidence that is relevant in a proceeding is admissible in the proceeding”. A party cross-examining a witness about a previous representation or prior inconsistent statement that he or she made which is recorded in a document (including a transcript of evidence) can be ordered, under s 45(2) of the Evidence Act, to produce the document, or such evidence of it as is available to the party. The court can examine the document or evidence under s 45(3) and “admit it even if it has not been tendered by a party”. Sections 81 and 82 make evidence of an out of court admission by a party to a proceeding admissible against that party. And, although s 102 provides that credibility evidence is not admissible (the credibility rule), s 103(1) provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the witness’ credibility. In considering whether to allow cross-examination under s 103(1), the Court must have regard, by force of s 103(2), to whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when under an obligation to tell the truth and the time that has elapsed since the occurrence of the acts or events to which the evidence relates.

133    In order to test the publishers’ contention, let us assume that a witness testifies at a Royal Commission that she was in Sydney at a meeting at a particular restaurant on a particular day when a crime was committed nearby at about the same time. The crime thereafter remains unsolved and no prosecution occurs. Later, in a civil proceeding that she brings, the witness gives evidence. She is cross-examined and declines to answer a question as to her whereabouts at the time. The cross-examiner seeks put to her the evidence she gave at the Royal Commission and she declines to answer on the ground that the answer may tend to criminate her. Can it matter that the application of the prohibition in s 17(2) will depend on whether her status in the civil proceeding is that she is the applicant, respondent or only a witness in the civil proceeding? If the reasoning in Feldman 103 NSWLR 307, Roberts-Smith (No 18) [2021] FCA 793 and of the primary judge be correct, the witness can have her evidence given to the Royal Commission admitted into evidence against her in the civil proceeding to prove where she was or to attack her credibility if she is the applicant or plaintiff, or even a mere witness. But, those authorities would hold that the same evidence would not be admissible if she is the defendant in the civil proceeding.

134    Once one accepts that the purpose of the power given to the Royal Commission in s 17(1) of the NSW Act is to compel the witness to be entirely candid because of the efficacy of the complementary protection that s 17(2) gives her, it is impossible to reconcile any such limitation on that protection with the promotion of that purpose.

3.3.    The proper construction of s 17(2)

135    The policy purpose of s 17(1) of the NSW Act, and its analogue in the Commonwealth Act, is to enable a witness to be compellable to give evidence to the Royal Commission that he or she could not, or as a matter of discretion would not, be compelled to give in any judicial proceeding because the person could assert a common law or statutory privilege, such as legal professional or client legal privilege, the privilege against self-incrimination or self-exposure to a penalty, the privilege attaching to without prejudice communications to settle disputes, the rules of law and equity protecting confidential information, trade secrets, the identity of informers and the common law rule of practice known as “the newspaper rule”, now found in ss 126J and 126K of the Evidence Act, protecting the disclosure of a journalist’s sources of information: see McGuinness v Attorney-General (Vic) (1940) 63 CLR 73; John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346.

136    There is no reason to construe the prohibition on admissibility in s 17(2) (or its analogues such as s 6DD of the Commonwealth Act) other than by giving effect to its natural and ordinary meaning having regard to the operation of the implied freedom to limit the application of the prohibition consistently with ensuring that there can be fair reports of, and discussion, communication of information and comment about, evidence given to and findings of a Royal Commission.

137    While Giannarelli 154 CLR 212 was not concerned with a situation such as the present, the High Court explained the principle upon which s 6DD operated in any civil or criminal proceeding without introducing a gloss of the nature that the primary judge in Feldman 103 NSWLR 307 applied. Nor is s 17(2) expressed so as to be limited only to a proceeding in which the witness might be exposed to civil or criminal liability or be on the record as a defendant or respondent.

138    It follows that the proper construction of s 17(2) is the same as Brennan J held for s 6DD (154 CLR at 228), namely:

The occasion for its application is the tendering against a witness (i.e., a witness who has given evidence before a Commonwealth commission) of evidence of what the witness stated or disclosed in the course of giving his evidence before the commission. The section requires the court to refuse admission in evidence of any such statement or disclosure.

(emphasis added)

139    Accordingly, the primary judge erred in her construction and application of s 17(2) of the NSW Act. Nevertheless, as explained above, s 56 of the Evidence Act made the evidence admissible despite that erroneous conclusion. But, the fact that the evidence was given or documents were produced under the compulsion of s 17(1) of the NSW Act, in circumstances where Mr Herron and Dr Gill were given the “protection” of s 17(2), created a need to consider the discretions to admit or limit the evidence under ss 135 and 136 of the Evidence Act.

140    For the reasons that Lee J has given on the s 56 of the Evidence Act issue, with which Wigney J and I agree, the primary judge’s reasons for admitting evidence to which Mr Herron and Dr Gill objected on the basis of s 17(2) of the Royal Commissions Act were wrong. That evidence was admissible on the basis of s 56 of the Evidence Act, but her Honour did not consider whether to exercise the discretions to exclude or limit its use under ss 135 and 136 of that Act.

141    As Wigney J agrees with my reasons on the s 17(2) of the Royal Commissions Act issue, it follows that the primary judge erred in admitting any of the evidence to which Mr Herron and Dr Gill objected in reliance on s 17(2) without first considering the exercise of the discretions to exclude or limit the use of each item of evidence under ss 135 and 136 of the Evidence Act. Given the large amount of evidentiary material that was before her Honour and on which she relied to which objections based on s 17(2) were taken, it is impossible for this Court, on appeal, to evaluate whether or not either discretion under ss 135 or 136 should have been exercised in respect of individual items of evidence.

142    Her Honour used Dr Gill’s evidence to the Royal Commission in arriving at her overall finding that he was an unreliable witness, as she explained at [24]:

Dr Gill’s unreliability as a witness is evident from the examples on which the respondents relied as follows, which I accept:

(a)    Dr Gill’s evidence was that he did not accept that his patients were given deep sleep therapy and that he gave his patient John Adams ‘light’ sedation. That is contrary to what Dr Gill told the Royal Commission where he clearly stated his involvement in ‘Deep Sleep Therapy’ and set out his reasons: Ex. 12, tab 2, pg. 4. It is also contrary to the actual regime of drugs given to John Adams, which involved the maximum number of drugs with the minimum amount of time between doses: Gill XXN [cross-examination] at T269.6-10.

(d)    Dr Gill could not explain the stark contrast between his evidence to the inquest of John Adams that he was ‘absolutely satisfied’ with the level of nursing care and his evidence to the Royal Commission that the monitoring of patients in the DST ward was not good enough on that occasion. Had Dr Gill come clean and admitted that he was concealing the truth from the Coroner, one might have more reason to believe his current evidence. Dr Gill could not bring himself to make that obvious admission: Gill XXN at T292.19-293.8.

(f)    Dr Gill’s evidence was that he could not provide any observations about the level of sedation used for Dr Bailey and Dr Herron’s patients: Gill XXN at T227.17-23. Yet he told the Royal Commission in 1989 that the means by which he learnt about DST was by “talking to the doctors involved and observing the way it was administered at CPH”: Ex. 12, Tab 2, pg. 24.

(emphasis added)

143    Moreover, at [521], her Honour relied on evidence Dr Gill gave to the Royal Commission, as also set out in [24](a) and (d), specifically to find that Dr Gill was grossly negligent, unethical and had engaged in medical malpractice by subjecting Mr Adams to DST.

144    The primary judge made similar use of Mr Herron’s evidence to the Royal Commission to find his evidence at the trial should not be accepted. For example, she found at [33]–[38] (see also at [557]):

33.    Mr Herron accepted during the Royal Commission that 26 people had died during or immediately after DST and that DST was a significant contributing factor to their deaths but, in this proceeding, said he had changed his mind and did not accept that DST was a cause of these patients’ deaths. It is difficult to imagine Mr Herron having made any concession at any time unless it was unavoidable on the evidence. No cogent reason for the change in position was apparent other than Mr Herron’s self-interest in this proceeding.

34.    Mr Herron’s evidence over time about what happened to Mr Hart’s admission form was inconsistent and unbelievable. The admission form had a space for a consent to ECT. The bottom of the form was cut off and replaced by a photocopy of an X-ray form. In Hart v Herron (1984) Aust Torts Reports 80-201 (Hart v Herron) Mr Herron gave this evidence:

When did you first notice that the bottom had been cut off?

I first found out the bottom, I first noticed, I first saw that the bottom had been cut off when I saw these documents in my barristers [sic] rooms within a few days of the trial starting.

35.    In the Royal Commission Mr Herron initially gave this evidence:

Q. When did you first become aware that Exhibit 196 [the Hart consent form] had been tampered with, on the bottom of the identification page?

A. It was in a conference with my solicitors, as I remember it, prior to Hart v. Herron.

36.    This exchange later occurred in the Royal Commission:

Q. Yes. In those circumstances, have you ever made any enquiries about how this happened?

A. No, I haven’t.

Q. Have you any knowledge at all about how it happened?

A. Yes

Q. What is that knowledge?

A. After it had happened and I can’t really tell you the group of people, that someone as I remember it in the corridor of the hospital or a group of them said that they had solved all of my problems for me and they had cut off this bit of the document. I don’t know who it was that actually cut the piece off and my response at that stage was almost identical to the response in the discussion with the lawyers.

37.    When it was pointed out to him that this was inconsistent with his evidence in Hart v Herron his explanation was that he had been asked the wrong question in that proceeding. This exchange occurred:

Q. Let me take you to another question and answer. The question was, and I will show you the whole passage in a moment so you can look at the context:

‘Q. You did not become conscious of it until your barrister drew your attention to it?

A. That is correct.’

Q. I would suggest to you that that was not an answer where you could say the wrong question was asked, that that’s an answer which was untrue. You will find it about two thirds of the way down the page?

A. I still believe that my comments in relation to the ‘When did you first notice that the bottom had been cut off’ and I believe that the interpretation that I made to the word ‘conscious’ was physical knowledge and that’s what I have answered the question to.”

38.    The answer of Mr Herron is evasive and self-serving.

(emphasis added)

145    Her Honour also found at [499]–[500]:

499.    Further, in his evidence in the Royal Commission Mr Herron admitted the fact of 26 deaths caused by DST, giving evidence as follows:

Q. You know now with the benefit of hindsight that there are at least 26 people who died during or immediately after sleep therapy.

A. Yes.

Q. And you know, do you not, in the overwhelming majority of those cases the deep sleep was probably causative, but at least a significant contributing factor to the deaths.

A. Yes.

500.    These admissions against interest are entitled to significant weight. It may readily be inferred that Mr Herron would not have made such admissions unless the evidence to support them was overwhelming and, in effect, the admissions were unavoidable. While he has now changed his mind about DST being the cause of death, saying in this proceeding that DST was not significant in the deaths, this was the unqualified opinion which Mr Herron gave at a time closer to the events in question and when, it may be inferred, he was suffering no cognitive deficit due to old age. As the respondents submitted this:

…was an admission made by an experienced medical practitioner who was intimately connected with the treatment, had an opportunity to observe its effect, and who had had a period to reflect on it. It should be accepted as correct without hesitation for those reasons. It is in for all purposes.

(emphasis added)

146    These examples show how her Honour used Mr Herron’s and Dr Gill’s evidence to the Royal Commission to find against their versions of critical events and to arrive at her overall assessment of their credit. It will be necessary for the judge at the retrial to evaluate whether any particular evidence of Dr Gill to the Royal Commission or document that he produced to it under compulsion should be excluded or its use limited under ss 135 or 136 of the Evidence Act.

4.    The truth defence and dead experts issues

147    I have also had the benefit of reading Wigney J’s and Lee J’s reasons on the truth defence and dead experts issues raised in ground 4 of the notice of appeal and agree generally with them.

5.    The qualified privilege issue

148    Ground 3 of the further amended notice of appeal challenged the primary’s decision that the publishers had proved, within the meaning of s 30(1)(c) of the Defamation Act, that their conduct in publishing the book was reasonable in the circumstances. Dr Gill argued that her Honour erred in, among others, three separate respects, namely by finding that:

(1)    HarperCollins acted reasonably even though it did not lead any evidence of its decision to publish in circumstances where the publishers’ defence did not plead or prove that, as her Honour inferred, HarperCollins had relied solely on Mr Cannane’s state of mind in publishing (the HarperCollins’ state of mind issue);

(2)    the publishers failed to contact either Mr Herron or Dr Gill so as to publish the substance of his side of the story (the failure to contact issue); and

(3)    Mr Cannane had information that was favourable to Mr Herron and Dr Gill that he chose not to include in the book as published because that information did not conform to what he intended to publish (the deliberate omission issue).

149    It will be convenient to deal with the HarperCollins state of mind issue separately.

150    Relevantly, s 30 of the Defamation Act provided:

30    Defence of qualified privilege for provision of certain information

(1)    There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:

(a)    the recipient has an interest or apparent interest in having information on some subject, and

(b)    the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c)    the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(3)    In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:

(h)    whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(j)    any other circumstances that the court considers relevant.

(emphasis added)

5.1.    The HarperCollins state of mind issue

151    The primary judge found (at [770]–[771]):

770.    According to the respondents, the present case is different. HarperCollins’ defence stands or falls on the reasonableness of Mr Cannane’s conduct. As the respondents put it:

HarperCollins does not seek to run a separate case to the effect that it was reasonable for it to have relied on Mr Cannane, in the event of a finding that Mr Cannane had been unreasonable. If, by virtue of all the matters relied on, it was reasonable for Mr Cannane to publish, it cannot seriously be argued that HarperCollins behaved unreasonably in doing so. To put it another way, it is a powerful circumstance making the publication of the book by HarperCollins reasonable.

In any case, the obvious inference from HarperCollins not having served its own specific evidence is that it simply relied on Mr Cannane and made no enquiries or independent steps of its own. That was not unreasonable and the effect is that HarperCollins’ qualified privilege defence stands or falls based on Mr Cannane’s enquiries.

771.    I agree with the respondents’ submission. The lack of evidence from HarperCollins does not mean it is unable to rely on the s 30 defence. It means that the inference which should be drawn is that HarperCollins took no steps of its own concerning the reasonableness of the publication and instead relied wholly on the conduct of Mr Cannane. The legal result is not that HarperCollins’ defence must fail, but that HarperCollins’ defence is wholly dependent on Mr Cannane’s defence. To conclude otherwise, as the respondents noted, would lead to the potentially absurd result of a finding that it was reasonable for Mr Cannane to publish the defamatory matter yet not reasonable for HarperCollins to do so in circumstances where the obvious inference is that HarperCollins did no more than rely on Mr Cannane for that purpose.

5.1.1.    The parties’ submissions

152    Dr Gill argued that HarperCollins, first, had not pleaded in its defence that it had relied on Mr Cannane in deciding to publish the book and, secondly, as her Honour found, had not adduced any evidence to support the particulars of the qualified privilege defence so far as they concerned its conduct in publishing the book. He contended that it was not open to her Honour to draw the inference that HarperCollins had relied on Mr Cannane’s state of mind and conduct because that was outside its particulars. He submitted that there was no evidence of any interactions between HarperCollins and Mr Cannane, such as commissioning the work, reviewing the manuscript, information it had or sought about the work, or the context of the book prior to publication, or anything else from which her Honour could draw any inference as to the state of mind of the person or persons in HarperCollins who made the decision to publish. In particular, he asserted that there was no evidence that HarperCollins sought legal advice as to the content of the book in the context that it contained serious allegations against Mr Herron and Dr Gill as in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 379–380 [172]–[173].

153    HarperCollins argued that the issue that fell to be considered under s 30 was not the defendant’s agency or vicarious liability for its independent contributor but whether in all of the circumstances the defendant’s conduct was reasonable. It called in aid Austin v Mirror Newspapers Ltd [1986] AC 299 at 316C–H; (1985) 3 NSWLR 354 at 362G–363D, where the Privy Council said that the reliability and reputation of an independent contractor will be a very important factor in considering whether the publisher acted reasonably in publishing defamatory and untrue matter. It submitted that, if it be found that Mr Cannane acted reasonably in publishing, this would be “a very weighty matter”.

5.1.2.    Consideration

154    In Austin [1986] AC 299, Lord Griffiths in giving the advice of Lords Hailsham of St Marylebone LC, Keith of Kinkel, Roskill and himself, considered the provisions of s 22(1)(c) of the Defamation Act 1974 (NSW), an analogue of the present s 30(1)(c). His Lordship cautioned that the circumstances “will vary infinitely from case to case” and disclaimed, as both impossible and unwise, the formulation of any comprehensive list of factors. But, he said that where a newspaper with a wide circulation published defamatory comments on untrue facts, it would have a significant task to persuade the trial judge that its conduct in so publishing was reasonable in all the circumstances ([1986] AC at 313C–E). He added (at 313E):

Those in public life must have broad backs and be prepared to accept harsh criticism but they are at least entitled to expect that care should be taken to check that the facts upon which such criticism is based are true.

155    Lord Griffiths distinguished between the position of a professional publisher, such as a newspaper relying on an author who was its own employed journalist and (as Mr Cannane was here) an independent contributor, saying (at 316F–H):

The newspaper, the publisher, cannot be allowed to hide behind its journalist on the ground that it never occurred to it that its journalist would be so careless. The newspaper must stand or fall by the conduct of its own journalists. Very different considerations will of course apply to the publication of an article by an independent contributor who cannot be considered as either the servant or agent of the newspaper. An independent contributor is in no sense the alter ego of a newspaper for the purpose of producing the article and in such circumstances his reliability and reputation will be a very important matter in considering whether the conduct of the publisher was reasonable in accepting and publishing the article if it turns out to be defamatory and untrue.

(emphasis added)

156    His Lordship added that there (a case of an employed journalist) (at 317B–C):

When a journalist wishes to make such a trenchant and potentially damaging attack it is in the interests of society that he should be expected to take all reasonable steps to ensure that he has got his facts right. The media has enormous power both for good and ill and it would be a sorry day if newspapers were encouraged to believe that under the shield of qualified privilege the reputations of individuals could be attacked by slip-shod journalism that would provide no defence of comment because the facts on which the attack was based were not true. 

(emphasis added)

157    Here, the focus of the enquiry as to HarperCollins’ conduct under s 30(1)(c) is on its servants and agents who were responsible for its publication of the book: John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [12] (applying Austin [1986] AC at 316) per Handley JA with whom Spigelman CJ and McColl JA agreed.

158    As Lee J and I have explained in our reasons, the trial miscarried to the extent that there must be a retrial of other substantive defences including justification. Thus, at this stage, it is not possible to analyse how HarperCollins’ conduct in publishing the book should be assessed. That is because her Honour’s findings that the publishers’ defence of justification succeeded on the assumed basis that, if the contested imputations were conveyed, they were substantially true (except for Imputation L in respect of Dr Gill: [743]), must be set aside. If the imputations were proved to be substantially true, determination of the defence of qualified privilege would be largely academic but would occur, in that event, with the truth of the imputations conveyed by the matter complained of being a very material matter in those circumstances.

159    However, if it were assumed that some or all of the imputations are found to be untrue, the evaluative task under s 30(1)(c) would need to focus on those imputations that were untrue and how HarperCollins came to publish them in the circumstances established on the evidence in the retrial. The back cover of the book asserted that the work was “based on years of interviews and meticulous research, Walkley Award-winning journalist Steve Cannane tells for the first time the fascinating story of Australia’s vital involvement with this powerful, secretive and punitive cult”. Those statements by HarperCollins, if admitted into evidence without any limitation on use, would be some evidence of HarperCollins’ state of mind.

160    In that context, as a matter of principle, the materiality of HarperCollins’ knowledge and state of mind about the reliability and reputation of the book’s independent author is likely to be significant: Austin [1986] AC at 316G–H. The publisher’s state of mind and knowledge, ordinarily, are not self-evident or able to be inferred merely because objectively the publisher decided to publish the work. The ability of a tribunal of fact to ascertain the state of mind of a publisher in HarperCollins’ position ordinarily would depend on admissible evidence and pleaded or particularised facts from which its reasonableness could be inferred or found.

5.2.    The failure to seek comment and the deliberate omission issues

161    Mr Cannane did not contact or seek any comment, before publishing the book, from either Mr Herron or Dr Gill for his response to the damning criticism that chapter 14 made of them. Nor did he include material that might favour, or explain the position of, Mr Herron or Dr Gill. In particular, Mr Cannane omitted any mention of a criminal proceeding that had been dismissed or of the disciplinary proceedings that the Courts had ordered to be permanently stayed despite him giving evidence that he was aware of them when he wrote the Book. The Courts had held, in 1986 and 1991, that by reason of the delays of complainants, including the Department of Health, Mr Herron, Dr Gill and Dr Gardiner had suffered such substantial prejudice in respect of their ability to defend disciplinary proceedings that those proceedings should be permanently stayed.

162    At the trial, Mr Herron and Dr Gill argued that the primary judge should have taken into account the consideration in s 30(3)(h) of the Defamation Act. They also relied at the trial on other alleged omissions by Mr Cannane that it is not necessary to discuss.

163    The publishers contended that the primary judge was correct in her evaluation of Mr Cannane’s conduct and her Honour’s conclusion that it was reasonable in the circumstances. They also asserted that it would have been obvious to the ordinary reasonable reader that Mr Herron and Dr Gill disputed what Slattery AJ had found about them and, by implication, that they had not agreed with those findings.

164    Her Honour found (at [774]–[775]), at the commencement of her reasons for upholding the publishers’ defence of qualified privilege provided by s 30, that Mr Cannane was entitled to treat the report of the Royal Commission written by Slattery AJ:

as a definitive account of the appalling events which had occurred at Chelmsford. The Chapter was intended to expose the role of Ms Nicholson, a Scientologist, in ensuring that Chelmsford was itself exposed – a matter which had not been the subject of attention during the Royal Commission. It was not intended to investigate any supposed shortcomings in the Royal Commission report.

As the respondents submitted, it was eminently reasonable for Mr Cannane to rely on the findings of Slattery AJ. The applicants’ approach to the case, as if the Royal Commission report did not exist and could not be reasonably relied upon, is without merit.

(emphasis added)

165    The primary judge rejected the argument that, despite his acceptance that he could have done so, Mr Cannane’s failure to seek Mr Herron’s and Dr Gill’s side of the story was not reasonable in the circumstances. Her Honour reasoned (at [783]–[787], [804], [816]):

783. Section 30(3)(h): Mr Cannane chose not to seek the applicants’ “side of the story” although he accepted he could have done so. Relevant to the reasonableness of that conduct is the fact that the applicants had been involved in the extensive hearings of the Royal Commission and their “side of the story”, which had been given at length during the Royal Commission, had been resoundingly rejected in the most strenuous of terms by Slattery AJ. As the respondents noted, the Royal Commission made damning findings about the honesty and credibility of the applicants.

784. As to Mr Herron, the Royal Commission said:

Dr Herron was an unsatisfactory witness. He was a man who clearly knew much but was prepared to reveal little either in terms of facts or in terms of expertise or opinion. In my view he deliberately concealed knowledge about a number of patients who died at the hospital. …

I think there are large parts where he has deliberately concealed the truth. Indeed in the 29 days of his evidence, he only provided factual information in situations where it was clear the information would be available from other sources. Further, when he provided that information, he provided it in a manner which concealed the truth. There were times when his answers became almost incomprehensible.

785. As to Dr Gill, the Royal Commission said:

In summary, Dr Gill was a most unsatisfactory witness. He was prepared to lie when the occasion demanded. He obstinately continued his delusional attacks on innocent people in the witness box in the face of clear evidence that he was wrong. He was prepared to involve himself in the falsification or removal of records if his interests were threatened.

786. It was reasonable for Mr Cannane to rely on those findings. It was reasonable for Mr Cannane to conclude (as he did) that he would have “zero confidence that they would tell the truth” so that it would have been a “waste of time” speaking to the applicants: Affidavit of Stephen Cannane dated 3 October 2019 (Cannane 1) [172(cb)] (CB2 AFF0003, pp. 34–35).

787. Further, the matters in the Chapter not based on the Royal Commission findings concerned Mr Hart. As the respondents submitted:

Mr Cannane was aware of the jury’s findings in respect of Mr Herron in Hart v Herron. Again, it was reasonable for Mr Cannane to conclude that he did not need to speak to Mr Herron about those matters. As to Mr Hart’s personal experiences at Chelmsford, the best source for those was Mr Hart himself: Cannane XXN at T719.19-25. In circumstances where Mr Herron was not present at Chelmsford when Mr Hart was admitted, there is little that Mr Herron could have added. In light of the Royal Commissioner’s finding that Mr Herron gave misleading evidence about Barry Hart’s consent form and had been a party to the 1977 conversation to create a false form, it was again reasonable for Mr Cannane to consider that any response that Mr Herron might have provided in respect of Mr Hart was unlikely to be truthful: OTH00010.188, pg. 180ff (RTB11).

804. As the respondents also put it, the focus of the Chapter was to expose the role of Scientology in bringing to light the medical abuses at Chelmsford. This aspect of the history of Chelmsford had not been disclosed in the Royal Commission. Otherwise, insofar as the applicants are mentioned in the Chapter, Mr Cannane relied on the Royal Commission report. The purpose of the Chapter was not to investigate the Royal Commission’s own investigation or to challenge findings which have stood undisturbed for decades. The respondents are correct to assert that Mr Cannane’s reasonableness must be assessed through this prism.

816. Mr Cannane had the benefit of the Royal Commission report which exposed atrocities and horrors at Chelmsford and the applicants’ roles in perpetuating those atrocities and horrors on patients who, on any reasonable view, were the victims of the applicants’ gross negligence, unethical conduct and medical malpractice. It was not Mr Cannane’s “narrative design” that had this effect. It was the findings of the Royal Commission which had stood unchallenged and undisturbed for decades. Those findings include that the applicants did nothing about the serious dangers of the treatment resulting in an unacceptable number of deaths. Mr Cannane did not need to create a narrative design about the applicants. He merely needed to refer to the Royal Commission’s findings about what went on at Chelmsford for the applicants to appear in a highly negative light. The applicants appear to work on the assumption that Mr Cannane was obliged to disregard the Royal Commission and was not entitled to treat it as an authoritative statement of the events at Chelmsford which had stood unchallenged for decades. There is no rational reason why Mr Cannane would have taken the approach the applicants appear to assume was necessary in order for his conduct to be reasonable.

(emphasis added)

166    The primary judge dealt with Mr Cannane’s failure to inquire of Mr Herron and Dr Gill about legal proceedings in which they and Drs Bailey and Gardiner had, or could have, been defendants as follows (at [827]–[829], [840]–[841]):

827. The applicants submitted:

Mr Cannane knew at the time of publication that the New South Wales Court of Appeal had held that it was inappropriate to have charged the doctors, and that the High Court had dismissed disciplinary proceedings recommended by the Royal Commissioner. Mr Cannane also knew that Dr Bailey had been charged with manslaughter over the death of Miriam Podio, but that the case was dismissed at committal for lack of evidence, and that Dr Herron was not charged over the death of Audrey Francis, and Dr Gill was not charged over the death of John Adams, also for lack of evidence. Mr Cannane did not refer to any of these matters in the book, despite asserting at page 190 of the matter complained of that ‘the Chelmsford doctors continued to avoid accountability for their actions’.

(Footnotes omitted).

828. The applicants’ focus on these events as somehow exculpatory of them is untenable. Having criminal and disciplinary proceedings stayed due to the passage of time must have involved a great relief for the applicants, as must have been other decisions which meant that they would not face prosecution in relation to deaths at Chelmsford, but it involves no form of exculpation or vindication of them. The findings of the Royal Commission remained. The respondents also noted the statement in Gill v Walton (1991) 25 NSWLR 190 at 202 per Gleeson CJ as follows:

The resolution of the issues that arise in relation to the application for a stay of proceedings in respect of the principal complaints against the claimants involves an unusually difficult task of balancing conflicting interests and considerations; a task that is made even more difficult by the extraordinary history of the matter. The allegations against the claimants are serious and they are supported by the findings of the Royal Commission. On the other hand, the delay in bringing the complaints was both extreme and unjustifiable. The Royal Commission was very critical of the department’s performance in that regard. That delay has significantly prejudiced the claimants in relation to their capacity to defend themselves, yet the prejudice is not so extreme that it can be concluded that they cannot now be given a fair hearing. The public has an interest in due enforcement of the standards applicable to medical practitioners, and the Royal Commission has found that there were serious breaches of those standards by the claimants. The first opponent has invoked the statutory procedure established to deal with such breaches. However, this Court held, back in 1986, at a time when it was well aware of the seriousness of the allegations against the practitioners involved, and of the widespread public concern about what had gone on at Chelmsford, that, in the light of the delay in taking action against them, it would be harsh and oppressive to pursue disciplinary proceedings closely related in nature to the proceedings presently in question. The High Court refused special leave to appeal from that decision.

The matter is finely balanced but, in the end, I consider that the decision that was made in Herron v McGregor in 1986 is the factor which tips the scales in favour of the claimants. What is involved is not merely consistency of adjudication, although that is significant. More important, it seems to me that it would be oppressive to require the claimants to face new proceedings, some five years after the original proceedings against them were stayed. That consideration, combined with the significant prejudice they have already suffered by reason of the department’s unreasonable delay, produces the result that the new proceedings, in so far as they relate to the principal complaints, should also be stayed.

829. The applicants’ conduct, so roundly condemned by the Royal Commission, was not vindicated by the stays of the disciplinary and criminal proceedings against them or the fact that they could not be made to face criminal prosecution for their conduct. The stays and other decisions changed nothing about the Royal Commission’s findings. The fact that the applicants escaped potential disciplinary and criminal sanctions for their conduct because of the passage of time or the lack of proof to the criminal standard was not some kind of victory for the applicants which Mr Cannane should have reported as such. He was quite right to note that “the Chelmsford doctors continued to avoid accountability for their actions” as this was the practical effect of the stays and other decisions.

840. The applicants submitted that:

Mr Cannane became aware during the writing of the matter complained of that both Dr Herron and Dr Gill were still alive, and he knew that they strongly contested the version of events given by former patients at the Royal Commission, yet he did not approach either of them for comment before publication.

841. This is correct. Contrary to the applicants’ submissions, however, Mr Cannane’s three reasons for so conducting himself were rational and compelling. First, the Book is about Scientology not Chelmsford. Second, Mr Cannane was right to conclude that the Royal Commission’s findings were “by far the best available source for information about Chelmsford”. Third, Mr Cannane’s lack of confidence as to the truthfulness of the applicants about Chelmsford was a sound judgment based on the Royal Commission findings. This case is not analogous to other cases. The circumstances of a two year Royal Commission culminating in a multi-volume report which has stood unchallenged for decades (which had made findings of dishonesty against the applicants about the very subject matter involved in the strongest possible terms), as well as the outcome in Hart v Herron where Mr Hart succeeded in his claims of false imprisonment and assault and battery, take this case far outside of the ordinary course. Mr Cannane was entitled to treat these sources of information as authoritative and unimpeachable.

(emphasis added)

167    The publishers argued that s 30(3) should be treated as a non-exhaustive and non-mandatory list of matters that the Court may take into account in considering whether a publisher’s conduct in publishing defamatory matter was reasonable in the circumstances. They contended that the factor in s 30(3)(h) did not entail that a publisher, such as Mr Cannane, had an obligation in every situation to seek comment from, or to publish the side of the story of, a claimant, such as Mr Herron or Dr Gill, “regardless of the veracity of what he was likely to be told”. The publishers submitted that s 30 operates having regard to the reasonableness of the publisher’s conduct in all of the circumstances in which untrue, defamatory matter was published, including, as s 30(3)(j) contemplates, any other circumstances which the Court considers relevant, and that there are no prescriptive or mandatory factors that apply in any particular situation. They sought to call in aid what the Court said in Lange 189 CLR at 574, namely their conduct would not be unreasonable “where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond”.

168    The publishers argued that central to the reasonableness of their conduct in not seeking a response from Dr Gill (and, by inference, Mr Herron) were the following:

    the Royal Commission specifically examined the practices at Chelmsford, was conducted by an eminent judge and gave each of Mr Herron and Dr Gill, who was represented by eminent counsel, the opportunity to put his case, as a result of which it was unnecessary for Mr Cannane to seek further comment from Dr Gill or Mr Herron;

    Slattery AJ “made damning findings” in respect of the honesty and credibility of both Mr Herron and Dr Gill that made it reasonable for Mr Cannane to conclude, as he had, that he had “zero confidence” that either would be truthful and that speaking to either would have been a waste of time, as the primary judge found at [785]–[786];

    those parts of chapter 14 concerning the doctors at Chelmsford that were not based on the Royal Commission’s findings related to Mr Herron, and not to Dr Gill, and the circumstances of Mr Hart, and the primary judge was correct in [787] to accept the publishers’ submissions about those parts.

169    The publishers submitted that, as her Honour found at [846], it was reasonable for Mr Cannane to rely on the findings of the Royal Commission without more, or those findings amounted to “a very weighty additional factor” that was relevant under s 30(3)(j) to be weighed against s 30(3)(h) in the overall assessment of the reasonableness of the publishers’ conduct. The respondents contended that while the book was not a report of the Royal Commission, it was reasonable in the circumstances for Mr Cannane to rely on its findings. They submitted that Slattery AJ had considered Mr Herron’s and Dr Gill’s side of the story extensively and “debunked” it.

5.2.1.    The failure to seek comment and deliberate omission issues – consideration

170    An appellate court must exercise restraint in reviewing credibility based findings by a trial judge. Only in confined circumstances can it interfere with factual findings that are informed by the judge’s impressions as to witnesses and credibility, including findings of secondary facts based on those impressions and other inferences from primary facts: Lee v Lee (2019) 266 CLR 129 at 148–149 [55] per Bell, Gageler, Nettle and Edelman JJ. However, as their Honours recognised, based on what Gibbs ACJ, Jacobs and Murphy JJ had held in Warren v Coombes (1979) 142 CLR 531 at 551, thereafter the appellate court must decide on “the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.

171    The operation of the statutory defence of qualified privilege under s 30, and the modification of the common law defence of qualified privilege to accommodate the implied constitutional freedom of political communication on government and political matters as elaborated in Lange 189 CLR at 571–574, enables a publisher to publish untrue defamatory matter about a claimant provided that his, her or its conduct in so publishing is reasonable in the circumstances.

172    In Rogers 216 CLR at 339 [30], Gleeson CJ and Gummow J said, in the context of discussing an analogue of s 30, that “reasonableness is not a concept that can be subjected to inflexible categorisation”. They observed that, for the purposes of assessing whether a publisher’s conduct was reasonable in all of the circumstances so as to attract the statutory defence of qualified privilege, the Court needed to have regard to the legitimate interests that the law seeks to protect. Those interests include the public interest in freedom of speech and the claimant’s interest in his or her reputation. They said that if a person was defamed as a result of an avoidable error, ordinarily, the defence of a publisher who sought to rely on statutory qualified privilege would “involve explaining how the error came to be made, and why it could not reasonably have been avoided, bearing in mind the harm it was likely to cause” (216 CLR at 340 [32]; see too at 379–380 [173] per Heydon J).

173    In Rogers 216 CLR 327, the publisher had relied on the reasons for judgment of Hill J delivered in a case about the taxation liability of the successful plaintiff in an earlier, well known, medical negligence action: Rogers v Whitaker (1992) 175 CLR 479. Hill J’s summary simply recorded that the taxation issue arose as to whether the amount of pre-judgment interest on the plaintiff’s award in the negligence case was assessable income. Hill J did not record that Dr Rogers had been found liable for Mrs Whitaker’s contraction of sympathetic ophthalmia, after he performed a professionally competent operation, only because earlier he had failed to warn her of the 1 in 14,000 chance that, after a successful operation on her good eye, she could develop that condition. The matter complained of asserted, falsely, that Mrs Whitaker was “blinded by a surgeon’s negligence”, which was not what Hill J’s reasons stated. His Honour only found that Ms Whitaker succeeded in a professional negligence claim, without identifying the negligent act or omission. The journalist had relied solely on Hill J’s reasons for her report and drew the incorrect conclusion from it that Dr Rogers had blinded Mrs Whitaker by operating on her negligently (see 216 CLR at 332–333 [3]–[5], 334–335 [12], 338–339 [27]). Accordingly, the publisher there could not establish that its conduct was reasonable in publishing the incorrect conclusion based on what Hill J had written.

174    Here, the primary judge found that each of the contested imputations was not conveyed. However, those findings were erroneous for the reasons above. Her Honour found that Mr Cannane intended to convey imputation E ([179], [193]) and imputation F ([180], [195]) about both Mr Herron and Dr Gill and imputation I ([184]) and imputation M ([190]) about Mr Herron. The primary judge accepted Mr Cannane’s evidence that he did not intend to convey, about each of Mr Herron and Dr Gill, imputation G (that each had falsified death certificates: see [182], [198]), imputation H (that each had lied to his patients’ families about how ill they were and denied those families visitation: [183], [199]) or imputation L (that each defrauded his patient’s health funds: [189], [202]).

175    Her Honour quoted Mr Cannane’s evidence (at [182]) that, when he wrote (at p 179) that death certificates were falsified at Chelmsford, “I’m not saying which doctors did it. And then later in the chapter [at p 192], I say Harry Bailey did it” (emphasis added). The primary judge found that Mr Cannane believed (but did not intend to convey) that Mr Herron had falsified one death certificate, and did not believe that Dr Gill had falsified any ([182], [198]). Her Honour also found that Mr Cannane did not intend to convey about Dr Gill imputation J (that his gross negligence as a psychiatrist caused the death of many of his patients: [200]) or imputation M (that he traumatised many of his patients by giving them deep sleep therapy without their consent: [203]). The primary judge accepted Mr Cannane’s evidence that he had no knowledge of Dr Gill ever treating anyone without their consent ([203]).

176    In Austin [1986] AC at 316A–C, Lord Griffiths explained that because words are often capable of more than one meaning and the fact that an author did not intend the matter complained of to convey an imputation that the jury (or judge) finds was conveyed does not entail that he or she did not honestly believe in the truth of what he or she wrote and reasonably intended a different meaning to be given to the language used. Nonetheless, the statutory defence of qualified privilege requires the publisher to establish that his, her or its conduct in conveying imputations or meanings that the author did not intend to convey, was reasonable in all the circumstances.

177    Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said in Lange 189 CLR at 574:

Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendants conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond [Stephens’ Case (1994) 182 CLR 211 at 252-253].

(emphasis added)

178    For the reasons I have given above, chapter 14 conveyed each of the contested imputations to the ordinary reasonable reader. The looseness of Mr Cannane’s unqualified language at p 179 that “death certificates were falsified at Chelmsford” is illustrated by his own evidence that “I’m not saying which doctors did it”, allowing the reader to conclude Mr Herron and Dr Gill falsified death certificates. It was obvious and practical for him either to include Mr Herron’s and Dr Gill’s side of the story in the book or seek their comment on what he was intending to publish.

179    The primary judge at [816] (as she had in other contexts) placed considerable emphasis on the findings of the Royal Commission which had “stood unchallenged and undisturbed for decades” as one of the two key factors in assessing the reasonableness of Mr Cannane’s conduct. The other factor on which her Honour placed emphasis (at [841]) was that the book was about scientology, not Chelmsford.

180    However, chapter 14 was about Chelmsford and Mr Cannane wove it into his narrative about scientology. Mr Cannane was not seeking to write a fair report of the Royal Commission’s report and its findings about Chelmsford or the conduct of Mr Herron or Dr Gill.

181    The subject-matter of chapter 14 consisted of Mr Cannane’s detailed exposition of the evils of Chelmsford Hospital, and the four doctors who practised there, as he portrayed them, that had caused the outcomes he lambasted. This included his account of Mr Hart’s experience, its consequences and the role of scientologists, which helped to expose what had occurred at Chelmsford and to provoke the appointment of the Royal Commission. As the back cover of the book and the end notes to chapter 14 asserted, Mr Cannane had not simply relied on the Royal Commission’s findings or report. Nor did he rely only on the jury verdict in Hart v Herron. Rather, Mr Cannane added new material in chapter 14 to what was in the material in the Royal Commission’s report and could be deduced from the jury verdict. This included Mr Cannane’s interview with Mr Hart, interviews Mr Hart gave for the 60 Minutes program, Mr Hart’s unpublished manuscript and a speech Mr Hart gave in 1996 (see at footnote 1 of chapter 14).

182    The ability of anyone to challenge findings of a Royal Commission is limited. That is because the function and purpose of a Royal Commission, unlike a judicial proceeding, is not to resolve a controversy, but to exercise the power of the executive branch of government to inquire into and report on a subject. However distinguished a Royal Commission may be, experience has shown that clear or conclusive findings that one makes often are not vindicated in subsequent judicial proceedings, whether criminal or civil.

183    While a lay person, such as Mr Cannane, was entitled to treat the Royal Commission as an authoritative source for his wider narrative, he went further and made his own value judgements in chapter 14 about the four named doctors. Importantly, he made the serious, unqualified assertion that, after the Royal Commission, the four doctors had “continued to avoid accountability for their actions” (p 190).

184    Whatever reliance Mr Cannane could place on the findings of the Royal Commission, that assertion was a conclusion that he could only have drawn from subsequent conduct or events. It reinforced the imputations by suggesting that, relevantly, Mr Herron and Dr Gill should have been made liable to legal consequences to reflect the “accountability” that they had acted to “avoid”. The Royal Commission’s findings were anterior, and irrelevant, to this assertion and could not have provided any basis for it.

185    With respect, Mr Herron’s and Dr Gill’s submission, reproduced at [827], that her Honour then rejected was not that the matters set out were “exculpatory”, but that, as the passage her Honour quoted in [828] from Gleeson CJ’s reasons in Gill v Walton (1991) 25 NSWLR 190 at 202 made clear, Mr Herron and Dr Gill could not contest the “unchallenged” findings of the Royal Commission because the delays of the Department of Health had, by 1991, “severely prejudiced [Mr Herron, Dr Gill and Dr Gardiner] in relation to their capacity to defend themselves”. The Chief Justice made that finding after the Royal Commission had reported and some years after 1986, when the Court of Appeal had decided Herron v McGregor (1986) 6 NSWLR 246. In Gleeson CJ’s words, Herron 6 NSWLR 246 had decided that “in the light of the delay in taking action against them, it would be harsh and oppressive to pursue disciplinary proceedings” (Gill 25 NSWLR at 202).

186    On appeal, in Walton v Gardiner (1993) 177 CLR 378 at 398–399, Mason CJ, Deane and Dawson JJ characterised the conclusion of the majority in the Court of Appeal (Gleeson CJ and Kirby P) as the result of a weighing process that the continuation of the disciplinary proceedings in the Medical Tribunal against Mr Herron, Dr Gill and Dr Gardiner “would be so unfairly and unjustifiably oppressive of [the three doctors] as to constitute an abuse of the Tribunal’s process”. Their Honours said that the majority’s decision “was clearly open in all the circumstances of this quite exceptional case”.

187    The primary judge’s characterisation (at [829]) that these factors did not “vindicate” Mr Herron and Dr Gill from the Royal Commission’s findings was, with respect, misconceived. The point that Mr Herron and Dr Gill were making in their submissions that her Honour set out at [827] was that, first, Mr Cannane had chosen not to inform the reader about two different curial findings in 1986 and 1991 that, because of the delays of others, they had suffered such severe prejudice in their ability to defend themselves against disciplinary proceedings that those proceedings had to be stayed and, secondly, no criminal proceedings had been brought against them because of lack of evidence. Far from making the Royal Commission’s findings irrefragable, those facts could have explained to a reader that Mr Herron and Dr Gill had not “continued to avoid accountability for their actions” (as asserted at p 190 of the book), but rather had, or could have given, such an explanation about their position. Mr Cannane chose to publish without taking the simple and practical steps of either informing the reader of the above facts or seeking comment from Mr Herron or Dr Gill whom, he would have appreciated, were likely to inform him of them. That failure was unreasonable.

188    The fact that a publisher, such as Mr Cannane, has so closed his mind to the possibility of any different or credible explanation that the person the subject of his proposed publication might be able to give does not conclude the question as to whether it was reasonable not to seek such an explanation. The purpose of seeking such a response can be seen by analogy with Dixon CJ’s observation in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20:

The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his.

(emphasis added)

189    Yet, Mr Cannane was not prepared to make a practicable enquiry of Mr Herron or Dr Gill despite being aware of the reasons for the 1986 and 1991 stays of disciplinary proceedings and the lack of evidence to support any criminal charges against them. The Royal Commission was established only after the Court of Appeal had held in 1986 that the delay of others had caused significant prejudice to Mr Herron and Dr Gill in relation to their capacity to defend themselves in disciplinary proceedings. It follows that her Honour’s adoption of the damning, unchallenged findings of Slattery AJ against Mr Herron and Dr Gill, who were merely witnesses before his Honour, albeit important ones, overlooked the significance of the significant prejudice they had suffered by then in their ability to challenge allegations made in 1991 on the basis of those findings. Those findings could never have been made in any disciplinary proceedings based on events at Chelmsford Hospital brought after 1985 because the Courts had found that Mr Herron and Dr Gill “would be significantly prejudiced in defending” them because of the delay: Walton 177 CLR at 385, 398–399.

190    Mr Cannane made no mention in chapter 14 of those significant, consistent findings of the Courts from 1986 to 1993, or of the impact of the significant prejudice that the delay between events over a decade earlier would occasion Mr Herron and Dr Gill in dealing with allegations in, or the findings of, the Royal Commission.

191    The primary judge erred in finding that Mr Cannane’s reasons for failing to approach Mr Herron or Dr Gill for comment were reasonable. His conduct was unreasonable particularly because he knew each of them was alive and strongly disputed the findings of the Royal Commission. Yet, he made no reference to those matters or the findings of the Courts about the significant prejudice to which they had been exposed since 1985, by delay of others in bringing proceedings against them, well before the Royal Commission, so as to require these proceedings to be stayed. Nor did he refer to the lack of evidence to support any criminal proceeding being brought against either Mr Herron or Dr Gill.

192    It follows that her Honour should have found that the defence of statutory qualified privilege was not proved. Dr Gill is entitled to judgment in his favour on that defence, as was Mr Herron.

6.    The s 10 of the Defamation Act issue

193    As noted at [1] above, on 19 September 2017 each of Mr Herron and Dr Gill filed his own proceeding against the publishers claiming damages for defamation arising from the publication of the Book. Neither applicant was a party to the other’s proceeding.

194    As stated at [5] above, on or about 26 September 2018, Dr Gill, who funded the litigation for Mr Herron and himself, gave an undertaking to the Court that he (Dr Gill), would pay the costs of both proceedings.

195    On 23 December 2020, Mr Herron and Dr Gill filed a joint notice of appeal against her Honour’s orders of 25 November 2020 in both proceedings.

196    On 10 February 2021, Dr Gill’s solicitor (who had acted for both him and Mr Herron throughout this litigation) informed the publishers’ solicitors of his death.

197    On 3 June 2021, Mr Herron’s solicitor in the appeal formally informed the publishers’ solicitors that she no longer acted for her late former client.

198    On 11 June 2021, the solicitor acting for Mr Herron’s named executor in his will, his son, Grant, informed the publishers’ solicitors that the estate was insolvent and that Grant Herron did not wish to intermeddle in or administer it or be heard in the appeal. No grant of probate or letters of administration have been issued by the Supreme Court of New South Wales in respect of Mr Herron’s estate.

199    The publishers challenge the maintenance of any appeal by or on behalf of Mr Herron against the final orders dismissing the Herron proceeding and ordering him to pay their costs on the basis of s 10 of the Defamation Act which, at the time of his death, provided:

10 No cause of action for defamation of, or against, deceased persons

A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to –

(a) the publication of defamatory matter about a deceased person (whether published before or after his or her death), or

(b) the publication of defamatory matter by a person who has died since publishing the matter.

6.1.    The publishers’ submissions

200    The publishers argued that because he was not a party to the Herron proceeding, Dr Gill requires leave to appeal against the orders dismissing it with costs. However, they conceded that, but for the effect of s 10 of the Defamation Act, it is likely that leave would be granted, given Dr Gill’s interest in the costs of the Herron proceeding.

201    The publishers asserted that by seeking to demonstrate error in the primary judge’s reasoning and final orders in respect of the Herron proceeding, Dr Gill was acting contrary to s 10 because he was asserting the deceased’s cause of action. They contended that s 10 of the Defamation Act prevented anyone, including Dr Gill, on behalf of Mr Herron from “asserting, continuing or enforcing” the deceased’s cause of action for defamation in this appeal in reliance on the decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory in Shiels v Manny (2012) 263 FLR 61 at 71–72 [52]–[55]. There, a plaintiff died after judgment in a trial was reserved and Refshauge, Burns and Marshall JJ held that the plaintiff’s cause of action abated on his death.

202    The publishers’ submitted that, when dismissing an appeal against a respondent who had died after the Court of Appeal had reserved its decision in the appeal, Simpson AJA erred in not following Shiels 263 FLR at 72 [55] in Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News (2020) 102 NSWLR 733 at 780 [260]. They argued that the institution and prosecution of an appeal from a verdict in a defamation cause of action was an assertion of the cause of action within s 10.

6.2.    Consideration

203    In The Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 at 36–38 [17]–[20], Black CJ, Tamberlin and Sundberg JJ held that a non-party to a proceeding can invoke the appellate jurisdiction of this Court under s 24 of the Federal Court of Australia Act 1976 (Cth) by satisfying the principles for obtaining a grant of leave to appeal, namely that the decision below is attended by sufficient doubt to warrant reconsideration by the Full Court and substantial injustice would result if leave to appeal were not granted. Their Honours applied Heydon JA’s reasoning to the same effect in Witness v Marsden (2000) 49 NSWLR 429 at 446–448 [76]–[82]. Mason P at 431 [1] and Priestley JA at 432 [9] agreed with Heydon JA.

204    It is not necessary to decide whether Dr Gill can maintain, as of right, so much of the appeal as relates to the orders that the primary judge made dismissing the Herron proceeding with costs. Dr Gill is an appellant in the appeal that he commenced jointly with Mr Herron. As the publishers accepted, Dr Gill has a real interest in challenging the primary judge’s orders dismissing the Herron proceeding with costs, given that Dr Gill funded and was liable, by force of his undertaking, for any costs for which Mr Herron was found liable.

205    Dr Gill has demonstrated that the primary judge’s decision is attended by sufficient doubt, and, if leave to appeal is necessary, given our findings that Dr Gill is entitled to a new trial (as Mr Herron would also have been had he lived), he would suffer substantial injustice. Because Dr Gill is liable on his undertaking in respect of Mr Herron’s costs, he should be granted leave to appeal in the Herron proceeding, nunc pro tunc, to remove any doubt as to his capacity to do so.

206    In Feldman 102 NSWLR at 756–757 [126], White JA said that the death of a respondent to an appeal (who was a successful defendant in the trial) that occurred after judgment was reserved, could attract the operation of s 10(b) if the appeal were allowed, but that the provision did not prevent the Court from dismissing the appeal, as it did. Emmett AJA held that he would not deal with the issue because the appellant had not applied to maintain his appeal against the deceased respondent (at 759 [139]). Simpson AJA held that an appeal was not the assertion, continuation or enforcement of a cause of action in defamation and was not affected by s 10(b), albeit she said that the provision would have had “implications” for the appellant had he succeeded in the appeal (at 780 [260]). Thus, in Feldman 102 NSWLR 733, each of White JA and Simpson AJA held that s 10(b) did not preclude the dismissal of the appeal.

207    Shiels 263 FLR 61 was concerned with the position of a plaintiff in a trial who died after the trial judge had reserved judgment. Refshauge, Burns and Marshall JJ held that the effect of an analogue of s 10 was “to bring to an end any action for defamation which is on foot at the time of the death of the plaintiff or the defendant” (at 71–72 [53]).

208    The purpose of s 10 is to reflect the common law rule that a personal action dies with the person whether he or she is a plaintiff or defendant. This rule is embodied in the Latin maxim actio personalis moritur cum persona: see Woolworths Limited v Crotty (1942) 66 CLR 603 at 611–612 per Latham CJ; see too at 620 per Rich J and at 622 per McTiernan J. However, as Latham CJ explained (at 613–615), the common law recognised exceptions. For example, if a wrongdoer obtained property of the deceased, the executor could sue in detinue, ejectment or for money had and received (indebtitatus assumpsit) for pecuniary profits derived from the misappropriation. Moreover, the common law rule did not apply to actions in contract, although the remedy in damages for a person’s death that results from a breach of contract may be affected.

209    In Ryan v Davies Bros Ltd (1921) 29 CLR 527 at 532, Knox CJ, Higgins and Starke JJ observed: “As a general rule the death of a party pending appeal does not destroy and end the appeal”. Their Honours held this rule also applied in a libel action in which the deceased plaintiff had filed an appeal against the verdict of the jury and an order that he pay the defendant publisher’s costs. They held (at 533):

The right of action for the original wrong has merged in the judgment, and a new, higher and different obligation has been created. by the judgment (King v. Hoare (3 M & W 494 at 504). The right under the judgment has never been treated as an actio personalis or a right of action based upon the original wrong. The right to enforce the judgment survives to the personal representative of the deceased (Williams on Executors, 9th ed., voL II., p. 1614; Whitacres v. Onsley (Dyer 322); Farrands v. Melbourne Corporation ((1909) VLR 531; 31 ALT 78), and also the right to maintain that judgment to a Court of final appeal (see Carr v. Rischer (119 NY 117); Lewis v. St. Louis and Iron Mountain Railroad Co. (21 Am Rep 385). The obligation upon the judgment is thus at once beyond the limits of the doctrine expressed in the maxim already referred to, because according to that doctrine the right of action is put an end to by the death of either party. If the obligation on the judgment survives for the benefit of the representative of the plaintiff, the burden of discharging that obligation falls upon the defendant and his representative. And the defendant and his representative must have the right of attacking and destroying the judgment by appeal or other legal process.

(emphasis added)

210    Importantly, Knox CJ, Higgins and Starke JJ held (at 534) that the original cause of action that was merged in the judgment would not revive if the appeal set aside the judgment and obligation (to pay costs). In Triggell v Pheeney (1951) 82 CLR 497 at 518, Dixon, William, Webb and Kitto JJ noted that Ryan 29 CLR 527 supported the substitution, as appellant, of the plaintiff’s executor after the plaintiff appellant had died following his institution of the appeal: see too: Giumelli v Giumelli (1999) 196 CLR 101 at 127 [60] per Gleeson CJ, McHugh, Gummow and Callinan JJ and 128 [65] per Kirby J. In my opinion, the same principles apply to the construction of s 10.

211    Dr Gill’s challenge to Mr Herron’s estate’s liability for costs necessarily involves his contesting the foundation of the primary judge’s orders dismissing the Herron proceeding with costs. However, on this appeal that challenge is not one in which Dr Gill is asserting, continuing or enforcing a cause of action for defamation in relation to the publication of defamatory matter of and concerning the late Mr Herron within the meaning of s 10 of the Defamation Act. Rather, he is challenging his own liability under his undertaking in respect of the costs of the Herron proceeding.

212    Relevantly, Mr Herron was capable of exercising, and did exercise, his right to file the joint appeal while he was alive. Once he died, any right, the subject of his appeal, concerned whether the primary judge was correct to find that his cause of action for defamation, that, in the trial, he had asserted or sought to enforce was determined by the order dismissing the Herron proceeding with costs. Dr Gill does not seek to assert, continue or enforce any such cause of action if the order dismissing the Herron proceeding is set aside. The subject matter of the joint appeal in respect of the Herron proceeding is whether Dr Gill can establish error by the primary judge in her decision to dismiss Mr Herron’s cause of action with costs and thereby render Dr Gill liable on his undertaking to pay the costs of the Herron proceeding.

213    The primary judge’s order dismissing the Herron proceeding created a res judicata as between Mr Herron and the publishers that merged any cause of action for defamation he had in the judgment so that it no longer had any independent existence: Blair v Curran (1939) 62 CLR 464 at 531–532 per Dixon J; Ryan 29 CLR at 533–534. Therefore, this appeal does not constitute an assertion, continuation or enforcement of a cause of action for defamation, because that cause of action had passed and merged into the final order (or judgment) dismissing the Herron proceeding. An order on appeal setting aside that final judgment would have effect as, first, leaving un-adjudicated and incapable of any further adjudication, Mr Herron’s cause of action for defamation, because of Mr Herron’s death and the operation of s 10(a), and secondly, releasing Dr Gill, or entitling him to be released, directly or indirectly from his undertaking to pay the costs ordered against Mr Herron. This Court would give effect to such a finding either by setting the costs order aside or ordering that Dr Gill be released from his undertaking and restraining any proceedings on it.

214    The preclusion that s 10 mandates does not affect the existence, or otherwise, of a cause of action for defamation that the deceased may have been able, had he or she been alive, to assert, continue or enforce. Rather, that preclusion prevents anyone initiating or taking steps in existing proceedings on a cause of action for defamation that, had he or she been alive, a deceased person would have had. Moreover, s 10 does not preclude an appellate court from setting aside a judgment that has the legal effect of merging a cause of action for defamation in an order or verdict so as to restore the position that the cause of action will not have been determined, albeit that will mean that, because of the death of the party, nothing further can be done in relation to it by force of s 10; Ryan 29 CLR at 534.

215    An undertaking to the Court is enforceable as if the Court made an order to that effect. Here, the undertaking was made to this Court as a superior court of record that can enforce it by its statutory, inherent or implied powers including its power to deal with contempt: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 164–165 per Gibbs CJ, Stephen, Mason and Wilson JJ. If the publishers sought to rely on the undertaking as a contract (being that, in consideration of their not seeking or further pursuing security for Mr Herron’s costs, Dr Gill promised that he would pay himself any costs ordered against Mr Herron), it becomes clear that the question is whether the underlying liability for costs was correctly found. In The Commonwealth v McCormack (1984) 155 CLR 273 at 276, Murphy, Wilson, Brennan, Deane and Dawson JJ applied the restitutionary principle that Lord Cairns identified in Rodger v The Comptoir D’Escompte de Paris (1871) LR 3 PC 465 at 475, namely:

one of the first and highest duties of all Courts is to take care that the act of the court does no injury to any of the Suitors, and when the expression ‘the act of the Court’ is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.

216    If the act of the Court in accepting Dr Gill’s undertaking, or giving effect to the contractual force of it, would cause Dr Gill to be subjected to a liability to pay costs that Mr Herron should not have been ordered to pay, the Court must have power to provide Dr Gill with a remedy by determining that the liability does not exist or should not be enforced.

217    Here, Dr Gill’s undertaking to the Court and inter partes was in the nature of a promise or contract to pay the publishers any sum in respect of costs for which Mr Herron was liable. The fact that Dr Gill’s liability on the undertaking was based on the Herron proceeding did not convert Dr Gill’s liability to one on a cause of action for defamation. His liability arose only in respect of the undertaking to pay the costs for which Mr Herron was legally liable to the publishers.

218    Accordingly, the process of ascertaining on appeal whether Mr Herron was in fact liable to pay the publishers’ costs of the Herron proceeding involves a different cause of action, albeit one that, as an element, requires the Court to ascertain whether the primary judge erred in finding that Mr Herron had no cause of action for defamation. The end result is that in pursuing so much of the appeal as challenges the primary judge’s orders dismissing the Herron proceeding with costs, Dr Gill is not asserting, continuing or enforcing a cause of action for defamation in relation to the late Mr Herron. Rather, Dr Gill is disputing his liability under his undertaking to the Court or to the publishers on the basis that the underlying foundation (being the orders dismissing the Herron proceeding with costs) should be set aside as erroneous: Ryan 29 CLR at 532–534.

219    It would be anomalous if the effect of s 10 were that the Court is incapable of determining that, despite establishing that the joint trial miscarried, and that he is entitled to a new trial, Dr Gill remains liable on his undertaking to pay Mr Herron’s costs, which, in this scenario, the primary judge should not have ordered.

6.3.    Conclusion

220    For these reasons, despite Mr Herron’s death, s 10 of the Defamation Act does not prevent Dr Gill contesting on this appeal any liability that he would otherwise have had pursuant to the undertaking he gave to pay Mr Herron’s costs.

Disposition of the appeal

221    Given the primary judge’s errors in admitting, and her significant reliance on, the evidence of the dead experts, as Wigney J and Lee J have explained, it is impossible for us, on appeal, to reassess the remaining evidence before, and unchallenged findings of, her Honour to determine whether the publishers have proved their defence of substantial truth of imputations E, F, G, H, J, K, L and M in respect of Dr Gill.

222    For the reasons I have given (with which Wigney J agrees) in dealing with the s 17(2) of the Royal Commissions Act issue at [138]–[144], her Honour arrived at many of her adverse findings of fact and her overall unfavourable assessment of credibility in respect of Mr Herron and Dr Gill using evidence each provided to the Royal Commission under compulsion without correctly addressing the admissibility or any need to exclude or make any limitation on the use of that evidence under ss 56, 135 and 136 of the Evidence Act. It is impossible on the appeal to reevaluate those issues, not least because they permeated the whole conduct of the trial. We do not have the complete record before us and cannot exercise those discretions as will need to occur on the retrial.

223    In my opinion, the appeal should be allowed with costs, the orders made by the primary judge dismissing both proceedings below with costs should be set aside and there should be a new trial of the proceeding brought by Dr Gill, subject to Dr Gill having judgment dismissing the publishers’ defence under s 30 of the Defamation Act. Dr Gill is entitled to be released from his undertaking to pay Mr Herron’s costs of the Herron proceeding. The Herron proceeding abates without the need for any order because of s 10 of the Defamation Act.

224    The parties should have the opportunity within 3 days to comment on the following draft orders before we make them:

(1)    The appeal be allowed with costs.

(2)    The orders made on 25 November 2020 in proceedings NSD1620/2017 (the Herron proceeding) be set aside and it be ordered that:

(a)    John Gill be released from his undertaking in the Herron proceeding to pay any costs that may be ordered against the applicant, John Herron.

(3)    The orders made on 25 November 2020 in proceedings NSD1621/2017 (the Gill proceeding) be set aside and in lieu thereof it be ordered that:

(a)    Judgment be entered for the applicant on the respondents’ defence of qualified privilege.

(b)    The proceeding be allocated to a docket judge for a retrial on the remaining issues in accordance with the reasons for judgment delivered by the Full Court.

I certify that the preceding two-hundred-and-twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

Associate:

Dated:    29 April 2022

REASONS FOR JUDGMENT

WIGNEY J:

225    In September 2016, HarperCollins Publishers Australia Pty Ltd published a book, authored by Mr Steve Cannane, entitled “Fair Game: The Incredible Untold Story of Scientology in Australia”. As the title suggested, the main focus of the book was the activities of the Church of Scientology in Australia. One of the chapters in the book, chapter 14, titled “Deep Sleep”, concerned the role that some scientologists played in exposing the administration of certain controversial therapies at the Chelmsford Private Hospital in the 1960s and 1970s. It would be fair to say that the book painted a damning picture of those therapies and the activities of the doctors who administered them. Those doctors included Dr John Herron, subsequently deregistered and now deceased, and Dr John Gill.

226    In September 2017, Mr Herron and Dr Gill commenced defamation proceedings against HarperCollins and Mr Cannane. They alleged that chapter 14 of Fair Game conveyed a number of imputations which injured their reputations and brought them into “public scandal, odium and contempt”. They sought damages, including aggravated damages. HarperCollins and Mr Cannane defended the proceedings. Amongst other things, they denied that the book conveyed some of the alleged imputations, contended that the imputations that were conveyed were substantially true, and maintained that they had, in any event, acted reasonably.

227    The trial of the action was long, difficult and complex. That was mainly due to the fact that the events and circumstances at the Chelmsford Private Hospital, which were the subject of chapter 14 of Fair Game and the alleged imputations, had occurred so long ago and had become somewhat notorious. The notoriety largely came about as a result of a long-running Royal Commission, but also as a result of legal proceedings involving Mr Herron and Dr Gill. Issues arose at trial because the justification defence mounted by HarperCollins and Mr Cannane relied heavily on material from the Royal Commission which had been compulsorily acquired, including from Mr Herron and Dr Gill. The Royal Commission material also included statements or reports from medical experts who had since died, as well as transcripts of the evidence of various witnesses who had also since died.

228    The primary judge dismissed Mr Herron and Dr Gill’s claim: Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687 (Judgment). Her Honour held, in emphatic and categorical terms, that: the contested imputations were not conveyed by the book; the alleged imputations (both those found to have been conveyed and those that were not) were substantially true; and both HarperCollins and Mr Cannane had acted reasonably in publishing the alleged defamatory matter. Her Honour made other findings to which it is unnecessary to refer for present purposes.

229    I have had the considerable advantage of reading, in draft, the separate reasons to be published by Rares J and Lee J. Their Honours have set out in considerable detail the nature of the proceedings at first instance and the issues raised by the appeal. I respectfully agree with their Honours’ conclusion that the appeal must be allowed in part and that, regrettable as it may be, there must be a retrial of the justification defence in respect of the imputations relating to Dr Gill. Subject to what follows, which is largely by way of brief further explication, I also agree with their Honours’ reasons for so concluding.

APPEAL GROUNDS 1 AND 1A – THE ROYAL COMMISSION EVIDENCE

230    Mr Herron and Dr Gill objected to the tender of material which had been produced by Mr Herron and Dr Gill to the Royal Commission under compulsion (the Royal Commission material). Lee J has explained in detail the general nature of the material and, more importantly, the manner and circumstances in which the objection to the Royal Commission material was taken and resolved by the trial judge. In short, the objections by Mr Herron and Dr Gill were primarily based on the contention that the material was inadmissible by reason of s 17(2) of the Royal Commissions Act 1923 (NSW).

231    The primary judge held that s 17(2) did not apply to the Royal Commission evidence in the particular circumstances and admitted the evidence. Her Honour reasoned that s 17(2) only applied where the evidence produced to a Royal Commission was sought to be deployed to establish civil liability or criminal responsibility against the party who had produced the evidence. It did not apply where, as in this case, the evidence was sought to be deployed by a party to defend proceedings brought against them: Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805 at [24]. In so construing s 17(2) of the Royal Commissions Act, her Honour relied on and followed the reasoning of Campbell J in Feldman v Nationwide News Pty Limited & Ors [2018] NSWSC 715 (Feldman SC) in relation to the construction of the similar provision in s 6DD of the Royal Commissions Act 1902 (Cth). The judgment of Campbell J was subsequently upheld by the Court of Appeal: Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260 (Feldman CA).

232    I agree with Lee J, for the reasons his Honour has given, that s 17(2) of the Royal Commissions Act did not apply so as to render the Royal Commission material inadmissible in the proceeding, though not for the reasons given by the primary judge. The reason that s 17(2) of the Royal Commissions Act did not directly render the Royal Commission material inadmissible is that s 17(2) does not have any direct application in proceedings in a federal court. It is also not relevantly ‘picked up’ and applied in such a proceeding by s 79 of the Judiciary Act 1903 (Cth). That is because s 17(2) of the Royal Commissions Act is relevantly inconsistent with s 56 of the Evidence Act 1995 (Cth), which provides that, except as otherwise provided by the Evidence Act, “evidence that is relevant in a proceeding is admissible in the proceeding”.

233    I also agree with Lee J, for the reasons his Honour has given, that the constitutional arguments advanced by Dr Gill in relation to the application of s 17(2) of the Royal Commissions Act have little merit and must be rejected.

234    Is it necessary in those circumstances to address Dr Gill’s argument in respect of ground 1 of the appeal to the effect that the primary judge’s construction of s 17(2) of the Royal Commissions Act was incorrect. Lee J has decided not to deal with that issue given his Honour’s conclusion that s 17(2) did not apply in any event. Rares J, however, has dealt with the issue at length, essentially because, in his Honour’s view, the proper construction of s 17(2) is relevant to the possible discretionary exclusion or limitation on the use of the Royal Commission material in the exercise of the discretions in s 135 and s 136 of the Evidence Act respectively. Ground 1A of the appeal concerns the discretionary exclusion of the Royal Commission material.

235    I generally agree with Rares J that it is necessary and desirable to determine whether the primary judge’s construction of s 17(2) of the Royal Commissions Act was erroneous. If, contrary to the primary judge’s finding, s 17(2), but for the operation of s 56 of the Evidence Act, would otherwise have operated to render the Royal Commission material inadmissible, that may have provided a basis for excluding that material, or limiting its use, pursuant to s 135 and s 136 of the Evidence Act. It is at least arguable, in those circumstances, that the admission of the Royal Commission material against Mr Herron and Dr Gill could give rise to a danger of unfair prejudice arising from the fact that, at the time they were compelled to give evidence or produce documents to the Royal Commission, they were entitled to the protection, and had every reason to believe that they were entitled to the protection, afforded to them by s 17(2) of the Royal Commissions Act. Their entitlement to that protection only changed upon the later enactment of the Evidence Act.

236    In those circumstances, the primary judge may have erred in not considering whether to exclude or limit the use of the Royal Commission material, even though no argument for the discretionary exclusion or limitation on the use of that material based on s 17(2) of the Royal Commissions Act was directly put to her Honour. That is essentially the argument now raised by appeal ground 1A.

237    I agree with Rares J, in substance for the reasons given by his Honour, that the primary judge’s construction of s 17(2) of the Royal Commissions Act was erroneous. Nothing in the text, context or purpose of s 17(2) supports a construction which involves reading into that provision the limitation or restriction that an answer given or document produced by a person to a Royal Commission is only rendered inadmissible in circumstances where it is tendered in civil or criminal proceedings against that person (that is, in proceedings in which they are the respondent or defendant), or to establish civil liability or criminal responsibility against the person. I am also unpersuaded that anything in any of the extrinsic material concerning s 17(2) of the Royal Commissions Act or the equivalent provision in the Commonwealth Act supports that restrictive construction of the provision which was accepted by the primary judge. While the provision may well have been primarily directed at preventing evidence or documents given or produced by a person at a Royal Commission from subsequently being used to incriminate, or render liable, the person in subsequent proceedings, it does not follow that the protective effect of the provision was or was intended to be limited to that specific circumstance. The natural and ordinary meaning of the text would suggest otherwise.

238    I am equally unpersuaded that the restrictive interpretation of the provision which was accepted by the primary judge is compelled by considerations flowing from the fair report defence in s 29 of the Defamation Act 2005 (NSW). As Rares J has explained, s 17(2) of the Royal Commissions Act would not prevent the tender of evidence to prove what was said by a witness at a Royal Commission if the evidence was tendered simply to prove that that evidence was given in order to found a defence of fair report, qualified privilege or honest opinion. That is altogether different to tendering evidence of what the witness said to prove, as against the witness, the truth of what they said in evidence.

239    Did the erroneous construction of s 17(2) of the Royal Commissions Act cause the judge to err in considering whether to exclude, or limit the use of, the Royal Commission material in the exercise of the discretions in s 135 and s 136 of the Evidence Act? Mr Herron and Dr Gill never put to the primary judge that s 17(2) might provide a basis for the discretionary exclusion or limitation of the evidence. That was because the parties and the primary judge proceeded on the basis that the evidence either was or was not rendered admissible by reason of s 17(2). I nevertheless tend to agree with Rares J that, as a result of the erroneous construction of s 17(2) of the Royal Commissions Act, the primary judge erred in not considering whether, notwithstanding that the evidence was not directly rendered inadmissible by s 17(2) of the Royal Commissions Act, the existence and operation of s 17(2) might provide a basis for excluding the evidence, or limiting its use, under s 135 and s 136 of the Evidence Act.

240    That is not to say that the entirety of the Royal Commission material should have been excluded, or its use limited, pursuant to s 135 and s 136 of the Evidence Act. I agree with both Rares J and Lee J that the discretionary exclusion or limitation on the use of the Royal Commission material cannot be addressed or determined on a global basis, as Dr Gill effectively contended. The probative value and danger of unfair prejudice of each individual item of evidence will differ. The probative value and danger of unfair prejudice arising from the admission of some statements made, under compulsion, by Mr Herron and Dr Gill at the Royal Commission would, for example, most likely differ from the probative value and danger of unfair prejudice arising from the tender of some of the documents that Mr Herron and Dr Gill were compelled to produce to the Royal Commission. The discretionary exclusion or limitation of each item comprising the Royal Commission material would need to be addressed and determined separately.

241    It is neither realistic nor possible for the Full Court to undertake that exercise on appeal, particularly given the way the issue arose and was argued. Moreover, it is neither necessary nor desirable for the Full Court to express a concluded view concerning the discretionary exclusion or limitation of the Royal Commission material given that there must, in any event, be a retrial.

APPEAL GROUND 2 – IMPUTATIONS E, G, H, L, J, K AND M

242    I agree with Rares J, for the reasons that his Honour has given, that the primary judge erred in finding that the contested imputations (imputations E, G, H, L, J, K and M) were not conveyed by chapter 14 of Fair Game.

243    The principles which were to be applied in determining whether the contested imputations were conveyed by chapter 14 of Fair Game were not in issue before the primary judge. The issue was the application of those principles. In simple terms, the question was whether chapter 14 of Fair Game would have conveyed the contested imputations to the hypothetical ordinary reasonable reader, having regard to the qualities typically possessed by such a person and the way that such a person would typically read or digest such a book. In my view, the ordinary reasonable reader would not have read chapter 14 in the narrow, literal and parsimonious way urged upon the primary judge by HarperCollins and Mr Cannane, and ultimately accepted by her Honour. For the reasons given by Rares J, each of the contested imputations would have been conveyed to the ordinary reasonable reader of Fair Game.

APPEAL GROUND 3 – QUALIFIED PRIVILEGE

244    I also agree with Rares J that, for the reasons that his Honour has given, the primary judge erred in finding that Mr Cannane acted reasonably for the purposes of s 30(1)(c) of the Defamation Act.

245    There was essentially no dispute that Mr Cannane was able to, but made no attempt to, contact Mr Herron and Dr Gill to obtain and publish their response to what was said about them in chapter 14 of Fair Game. Nor could it have been seriously contended that Fair Game contained the substance of Mr Herron’s and Dr Gill’s “side of the story”: cf s 30(3)(h) of the Defamation Act. Mr Cannane made a conscious decision not to obtain and publish Mr Herron’s and Dr Gill’s response or side of the story. In HarperCollins and Mr Cannane’s submission, that was not a significant consideration in determining whether Mr Cannane’s conduct in publishing the material was reasonable for three reasons: first, because Fair Game was about Scientology, not Chelmsford Private Hospital; second, because he was entitled to treat the Royal Commission report as the best available source of information about Chelmsford Private Hospital; and third, because he had “zero confidence” that Mr Herron’s and Dr Gill’s response or side of the story would be truthful. The primary judge accepted those explanations and accordingly gave little or no weight to the fact that Fair Game did not contain Mr Herron’s and Dr Gill’s response or side of the story when it came to assessing the reasonableness of Mr Cannane’s conduct.

246    I am unable to accept that Mr Cannane’s explanations for not obtaining or publishing Mr Herron’s and Dr Gill’s response or side of the story were reasonable in all the circumstances. None of the explanations given by Mr Cannane absolved him from obtaining and including at least some reference to Mr Herron’s and Dr Gill’s response or side of the story as part of his narrative about the goings-on at Chelmsford Private Hospital. That is so for a number of reasons.

247    First, while Fair Game may have predominantly been about Scientology, chapter 14 nevertheless contained damning assertions concerning Mr Herron’s and Dr Gill’s conduct at Chelmsford Private Hospital. It made no reference to Mr Herron’s or Dr Gill’s response to those damning assertions.

248    Second, chapter 14 was not simply about the Royal Commission and its findings. It was certainly not suggested that chapter 14 was a fair report of the Royal Commission. Many of the assertions in the chapter about the conduct of Mr Herron and Dr Gill are not, and are not said to be, based on findings of the Royal Commission. Moreover, the chapter says little if anything about what Mr Herron’s and Dr Gill’s response or side of the story was before the Royal Commission. The fact that it may have been reasonable for Mr Cannane to treat the Royal Commission report as the best available source of information is, in those circumstances, somewhat beside the point.

249    Third, as for Mr Cannane’s “zero confidence” about whether Mr Herron’s and Dr Gill’s response or side of the story would be honest or reliable, Mr Cannane was no doubt entitled to be sceptical that he would obtain an honest or accurate account from Mr Herron and Dr Gill. Mr Cannane’s scepticism, however, could hardly have made it reasonable or unnecessary for him to effectively say nothing about Mr Herron’s and Dr Gill’s response or side of the story, either at the Royal Commission or in respect of the assertions or imputations conveyed in chapter 14. It would have been open to Mr Cannane to outline Mr Herron’s and Dr Gill’s response or side of the story in relatively short and summary terms. More significantly, it would have been open to Mr Cannane to express his scepticism about their responses, or to refer, in that context, to the Royal Commission’s adverse findings concerning the credibility and reliability of Mr Herron’s and Dr Gill’s evidence. It was not, however, reasonable in all the circumstances for Mr Cannane to do or say nothing at all in respect of the topic.

250    A publisher’s failure to include a person’s response or side of the story is not always determinative of the question of reasonableness. It is only one relevant consideration. It is, however, often a particularly important or weighty consideration.

251    In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 at 574, the High Court made it tolerably clear that a defendant’s conduct “will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond” (emphasis added). Contrary to Mr Cannane’s contention, the Royal Commission report and Mr Cannane’s scepticism about Mr Herron’s and Dr Gill’s credibility did not make it unnecessary for Mr Cananne to give Mr Herron and Dr Gill an opportunity to respond. Nor could it be said that it was not practicable for Mr Cannane to seek and publish Mr Herron’s and Dr Gill’s response or side of the story.

252    I also tend to agree with Rares J that Mr Cannane’s failure, in all the circumstances, to refer to the court proceedings in which criminal and disciplinary actions against Mr Herron and Dr Gill were permanently stayed demonstrated a selective approach which counted against the reasonableness of Mr Cannane’s conduct. That was particularly so given Mr Cannane’s assertion (at p 190 of Fair Game) that the “Chelmsford doctors continued to avoid accountability for their actions”.

253    There could be no dispute that Mr Cannane was aware of the relevant court decisions. His reference to “legal and bureaucratic red tape” (at p 190) was undoubtedly an oblique reference to them. It could, however, scarcely be said that the relevant superior court decisions were mere legal “red tape”. It was and is not to the point that those decisions were not “exculpatory”: Judgment at [828]. It is equally beside the point that Mr Herron’s and Dr Gill’s actions were not “vindicated” by the decisions: Judgment at [829]. The material point was that the decisions established that delays in the investigation and legal pursuit of Mr Herron and Dr Gill had significantly prejudiced their capacity to defend themselves against the allegations which had been levelled against them. That was an important point to which some reference should have been made in all the circumstances. The failure to refer at all to the relevant decisions counted against the reasonableness of Mr Cannane’s conduct.

254    I should finally note that I agree with what Rares J has said concerning ground 3(a) and HarperCollins’ defence of qualified privilege. Whether, and to what extent, inferences can be drawn about HarperCollins’ knowledge and state of mind relevant to the reasonableness of its conduct in publishing will ultimately be a matter which will need to be determined at the retrial.

APPEAL GROUND 4 – SUBSTANTIAL TRUTH

255    Ground 4 of the appeal challenges the primary judge’s findings that the pleaded imputations were substantially true, with the result that HarperCollins and Mr Cannane’s defence of justification pursuant to s 25 of the Defamation Act was made out. The challenge to the primary judge’s findings that the imputations were substantially true is based, in turn, on: first, challenges to a series of evidentiary rulings made by the primary judge during the course of the trial; second, the contention that the primary judge erred in “having regard to” or “relying upon” or “accepting as credible” certain evidence; and third, challenges to certain factual findings which were said to be not “reasonably open” on the evidence.

256    As I have already indicated, I ultimately agree with both Rares J and Lee J that there must be a retrial in relation to the defence of justification. I would, however, wish to make a few brief observations about the individual grounds that make up ground 4.

257    I would also wish to make the following short observation about Dr Gill’s general approach to ground 4. As has already been noted, the trial proceeded over many weeks. The evidence which related to the alleged truth of the imputations was voluminous and complex. Ground 4 comprises a series of broad and sweeping assertions about the admissibility and probative value of all, or virtually all, of that voluminous evidence. Regrettably, however, Dr Gill’s submissions, both written and oral, did not descend to the level of detail necessary to assist and enable the Court to determine most of the assertions about the evidence. Rather, the submissions addressed many of the challenges to both the admissibility and probative value of the evidence in a global and broad brush manner.

Ground 4(a) – the Royal Commission material

258    Ground 4(a) relates to the admission over objection of the Royal Commission material. That issue has been dealt with in the context of grounds 1 and 1A.

259    At risk of repetition, I agree with Lee J that the Royal Commission material was not rendered inadmissible by reason of s 17(2) of the Royal Commissions Act because that provision did not directly apply to the proceeding in this Court and was not relevantly picked up by s 79 of the Judiciary Act.

260    I also agree with Rares J that the primary judge’s construction of s 17(2) was erroneous and that the proper construction of s 17(2) is potentially relevant to the discretionary exclusion or limitation on the use of the Royal Commission material in the exercise of the discretions under s 135 and s 136 of the Evidence Act. I also generally agree with Rares J that, as a result of the erroneous construction of s 17(2) of the Royal Commissions Act, the primary judge effectively erred in not considering the discretionary exclusion or limitation of the evidence on the basis that, at the time they were compelled to give evidence or produce documents to the Royal Commission, Mr Herron and Dr Gill had, and had every reason to believe they had, the protection afforded to them by s 17(2) of the Royal Commissions Act.

261    That said, as Lee J has explained, it is simply not possible, nor realistic, to expect the Full Court to determine whether the Royal Commission material in its entirety should have been excluded, or that its use should have been limited, on the discretionary basis now advanced. That is an issue which should be determined at the retrial.

Ground 4(b) – the “unparticularised patients”

262    Lee J has identified the somewhat unsatisfactory way in which the parties dealt with the issues arising from the fact that HarperCollins and Mr Cannane did not provide adequate particulars of the patients relevant to their defence of justification. It is regrettable that this issue was not brought to a head before objection was taken at the trial to evidence relating to the “unparticularised patients”. Nevertheless, I agree with Lee J that Dr Gill did not demonstrate that the primary judge erred in admitting evidence relating to the “unparticularised patients”, particularly given the absence of any demonstrable prejudice or practical unfairness arising from the reception of the evidence in all the circumstances.

Ground 4(c) – the Royal Commission transcripts

263    I agree with Lee J that, while the notices pursuant to s 67 of the Evidence Act which HarperCollins and Mr Cannane served in respect of at least some of the Royal Commission transcripts were plainly deficient, Dr Gill failed to demonstrate that the primary judge’s exercise of discretion to waive the notice requirements and admit the evidence miscarried.

Ground 4(d) – admission of the reports of the “dead experts”

264    Perhaps the most significant evidentiary issue raised in the appeal concerned the admissibility of reports by various doctors (Drs Gandevia, Greenaway, Hassall and Joseph) which had been prepared for, and tendered at, the Royal Commission. The opinion evidence of those doctors was not tested by cross-examination at the Royal Commission. Nor was it able to be tested at the trial in this proceeding as the doctors had all died well before the trial.

265    I agree with Lee J that, contrary to the findings made by the primary judge, the reports of the so-called “dead experts” were not admissible pursuant to s 79 of the Evidence Act (and were therefore inadmissible by reason of the opinion rule in s 76 of the Evidence Act), or ought to have been excluded pursuant to s 135 of the Evidence Act on the basis that their probative value was substantially outweighed by the danger of unfair prejudice to Mr Herron and Dr Gill.

266    As for whether the reports were admissible pursuant to s 79 of the Evidence Act, the deficiencies in the reports were manifest and by no means merely technical or formal. The facts or assumptions upon which the doctors based their opinions were, for the most part, not disclosed or made sufficiently clear in the reports. Nor was the reasoning process which lay behind the opinions exposed, or at least adequately exposed. In some cases the documents or other material relied upon by the doctors was unclear, unavailable or not in evidence. It was, in all the circumstances, not possible to assess or determine the extent to which the opinions expressed by the doctors were based on their specialised knowledge, as required by s 79 of the Evidence Act.

267    As for the prospect of discretionary exclusion under s 135 of the Evidence Act, the problems arising from the deficiencies in the reports were compounded by the fact that the opinions expressed by the doctors were not tested by cross-examination at the Royal Commission and were not able to be tested by cross-examination in this proceeding. The inability of Mr Herron and Dr Gill to cross-examine the doctors went not only to the danger of unfair prejudice, but also to the probative value of the evidence. The primary judge erred in not having regard to the fact that the opinions of the doctors had not been, and were unable to be, tested when assessing the probative value of the evidence for the purposes of s 135 of the Evidence Act. Indeed, it would appear that the primary judge did not accept that the fact that the opinions expressed by the doctors were not able to be tested or challenged in cross-examination had any material effect on the probative value of the evidence.

268    Even if the reports were admissible pursuant to s 79 of the Evidence Act, they should have been excluded pursuant to s 135 of the Evidence Act. On the one hand, the probative value of the reports was low given the deficiencies in the reports themselves, the unavailability of much of the supporting material, and the inability of the opinions in the reports to be explored or tested in cross-examination. On the other hand, the danger of unfair prejudice to Mr Herron and Dr Gill arising from the fact that the opinions of the experts were unable to be tested was high.

Grounds 4(e) to 4(l) – other expert witnesses called by HarperCollins and Mr Cannane

269    The other expert witnesses called by HarperCollins and Mr Cannane included Professor Ian Whyte, Dr John Smith, Professor Gordon Parker, Professor Ian Hickie and Dr Jonathan Phillips. The primary judge admitted, over objection, reports prepared by each of those expert witnesses. They were each extensively cross-examined at the trial. Lee J has detailed the substance of the evidence given by each of the “live” expert witnesses.

270    Grounds 4(e) to 4(l) contend that the primary judge “erred in admitting over objection and relying upon” the evidence of the expert witnesses called by HarperCollins and Mr Cannane.

271    The criticisms of the expert evidence which were advanced in support of these appeal grounds were extensive and wide-ranging.

272    Some of Dr Gill’s criticisms relating to the expert evidence went to the admissibility of the reports of the expert witnesses. It was, however, very difficult to ascertain precisely what arguments were put to the primary judge in support of the objections to the admissibility of the individual reports, particularly as the submissions advanced by Dr Gill addressed the criticisms in a way which tended to confuse and conflate arguments that related to the admissibility of the reports with issues about the evidence that arose after the reports were admitted as a result of evidence given in the course of cross-examination. It was equally difficult to determine precisely how the primary judge addressed the arguments that went to the admissibility of the reports, particularly as some of the objections appeared to be resolved on the basis of ‘representative’ rulings.

273    Most of the criticisms of the experts that were advanced by Dr Gill went to the probative value and weight that should be given to the evidence of the expert witnesses, particularly in light of evidence given in the course of cross-examination. It would be fair to say that the primary judge dealt with and categorically rejected virtually every criticism of the evidence of the expert witnesses, and gave their opinions significant weight.

274    There are legitimate issues about the admissibility and probative value of the evidence of the expert witnesses called by HarperCollins and Mr Cannane. There is some apparent merit in at least some of the criticisms of the experts and their evidence, as well as some apparent merit in some of the criticisms of the primary judge’s almost unqualified acceptance of the opinions given by the experts. I nevertheless agree with both Rares J and Lee J that it is unnecessary to reach a concluded view on whether grounds 4(e) to 4(l) are made out given that there must be a retrial as a result of the findings concerning the inadmissibility of the reports of the “dead experts”. I would, however, make the following brief observations.

275    First, as has already been noted, most of Dr Gill’s substantive criticisms of the expert evidence in reality went more to the issue of the probative value and weight to be given to the evidence, as opposed to its admissibility. It is true that objection was taken to all of the reports on the basis that they were not prepared in accordance with the formal requirements for expert reports in the Federal Court Rules 2011 (Cth) and the Harmonised Expert Witness Code of Conduct in Annexure A of the Federal Court’s Expert Evidence Practice Note (GPN-EXPT). I agree with Lee J that the primary judge did not err in principle in the way she dealt with that formal objection.

276    It is equally true that Dr Gill asserted, in relation to all the expert reports, that the reports did not contain adequate reasoning and did not establish that the opinions expressed in the reports were wholly or substantially based on the experts’ specialised knowledge. Those assertions, if substantiated, were at least capable of going to the admissibility of the reports. The primary judge found, however, that the assertions about the reasoning in the reports, upon analysis, went more to the weight that should be given to the evidence than to its admissibility. Dr Gill’s submissions did not squarely address why it was not open to the primary judge to approach his assertions about the reasoning in the reports on that basis.

277    Second, Dr Gill’s complaints concerning the evidence of the experts must be considered in light of the fact that the experts were all cross-examined, many at considerable length. Some of the criticisms involved issues of credibility and reliability, such as the contention that Dr Smith was biased and the claims that some of the opinions expressed by Professor Whyte and Dr Smith were outside their area of specialised knowledge. Other complaints related to issues that arose in the course of cross-examination, such as the complaint that Professor Hickie refused to answer questions that changed the assumptions with which he had been briefed. Plainly the primary judge had the considerable advantage of observing the experts as they gave evidence. Her Honour also had the advantage of considering the complaints levelled against the experts in the context of the unfolding evidence as a whole.

278    Third, and flowing from the previous point, the primary judge was plainly in a better position than the Full Court to consider and address many, if not most, of the complaints about the experts’ evidence and the probative value and appropriate weight to give to their opinions. The primary judge dealt at length with all of the complaints concerning the evidence of the experts. As already noted, almost without exception her Honour categorically rejected the substance of the complaints and found that the experts were all highly credentialed and credible witnesses who were giving their honest opinions within their area of expertise. Her Honour’s findings in that regard were plainly based, at least in part, on her observations of the witnesses as they gave their evidence. An appellate court must generally exercise some restraint before interfering with a trial judge’s findings based on impressions about the credibility and reliability of witnesses as a result of seeing and hearing them give evidence: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55] (Bell, Gageler, Nettle and Edelman JJ).

279    Fourth, Dr Gill’s contention that the primary judge erred in “relying upon” the evidence of the expert witnesses tends to suggest that, having admitted the experts’ reports and having seen and heard their evidence during cross-examination, her Honour should have effectively disregarded all of their evidence and given it no weight. As has already been noted, there would appear to be some merit in at least some of Dr Gill’s criticisms of the expert evidence. There might be some merit in the complaint that the primary judge gave some of the opinion evidence too much weight. It is, however, somewhat fanciful to suggest that virtually all of the expert opinion evidence was deserving of no weight at all and should have been disregarded.

280    Be that as it may, the admissibility and weight to be given to the expert opinion evidence will ultimately be a matter for the judge who hears the retrial.

Ground 4(m) – finding that deep sleep therapy was experimental

281    This ground challenged the primary judge’s finding that “there can be no real doubt that narcosis therapy of any kind was by the 1960s an experimental and largely abandoned treatment” and that “DST was an experimental form of an experimental treatment and unproven”: Judgment at [732]. While those findings were based on the evidence as a whole, the primary judge appears to have relied particularly on the expert evidence called by HarperCollins and Mr Cannane.

282    I agree with Rares J and Lee J that it is unnecessary to determine this appeal ground given that there must in any event be a retrial in relation to Dr Gill’s justification defence. I would add, however, that, in order to properly address this ground, it would be necessary to give close attention to a considerable body of complex evidence. The problem is that Dr Gill’s challenge to these factual findings did not descend to any detailed analysis of the evidence. Rather, it was essentially premised on the contention that the primary judge should have rejected all of the expert evidence or given it no weight. While there may have been some issues with the expert evidence, it is somewhat difficult to accept that the entirety of the expert evidence called by HarperCollins and Mr Cannane was inadmissible or deserving of no weight at all.

283    Moreover, given that these findings would appear to have been based, at least in part, on the impressions that the primary judge formed about the expert witnesses as a result of having seen them give their evidence, to succeed on this ground Dr Gill would effectively have to demonstrate that the findings were “glaringly improbable” or “contrary to compelling inferences”: Lee v Lee at [55], citing Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] (Gleeson CJ, Gummow and Kirby JJ). That would, in all the circumstances, be a very tall order.

Ground 4(n) – evidence of past patients

284    Ground 4(n) in effect involves the general assertion that the primary judge should have rejected, as lacking credibility, the evidence of all the “past patients (or relatives of past patients)” where that evidence was “contradicted, in material and significant ways, by the contemporaneous medical records”.

285    There were five witnesses who fell into the category of “past patients” or “relatives of past patients”: the witness identified as “CO”; Mr John Finn; the witness identified as “GW”; the witness identified as “CW”; and Mr Ernest Nam. The primary judge dealt at length with the evidence of those witnesses: Judgment at [109]-[145]. Dr Gill’s written submissions dealt with the challenges to the primary judge’s findings concerning the evidence of these five witnesses in one paragraph. The submissions identified one example of one alleged contradiction in respect of one of the witnesses. Dr Gill’s oral submissions also gave relatively little attention to the evidence of these five witnesses.

286    The primary judge rejected the attacks on the credibility of the past patients and their relatives, and accepted the substance of their evidence. Her Honour also found, in effect, that so far as there were any contradictions between the evidence of the witnesses and the medical records, those contradictions were in respect of minor chronological matters of little significance.

287    The primary judge had the benefit of seeing and hearing the evidence of these witnesses. I agree with Lee J that Dr Gill’s challenge to the primary judge’s findings in relation to these five witnesses is not made out.

Ground 4(o) – other specific findings

288    Ground 4(o) challenges four factual findings made by the primary judge which relate to the substantial truth of some of the imputations.

289    Ground 4(o)(i) challenges the finding that, in 1978, Mr Herron and Dr Gill had a meeting with a nurse, Ms Marcia Fawdry, and a receptionist, Ms Mollie Sansom, during which there was a discussion about disguising the fact that a patient, Mr Barry Hart, had not signed a form denoting his consent to undergo ECT. The primary judge found that this meeting occurred, essentially on the strength of the evidence of Ms Fawdry. Dr Gill contended that this finding was not reasonably open because the circumstances of the meeting were said to be “inherently improbable” and that it was contrary to the evidence of Ms Sansom, who had denied that the meeting occurred.

290    I agree with Lee J that it is unnecessary to reach a concluded view in respect of this meeting. I would, however, be somewhat disinclined to interfere with the primary judge’s finding given that it was clearly based on Ms Fawdry’s evidence. Having seen and heard Ms Fawdry give her evidence, the primary judge found that she had “no doubt she [Ms Fawdry] was telling the truth” and that her evidence was “wholly believable”: Judgment at [560]. While it is true that Ms Fawdry had given inconsistent accounts, and that Ms Sansom had denied that the meeting as described by Ms Fawdry had taken place, it is nevertheless difficult to see how it could be said that the primary judge’s finding was glaringly improbable in all the circumstances.

291    Ground 4(o)(ii) challenges the primary judge’s finding that Mr Herron falsified the death certificate of a patient, Ms Audrey Francis. This finding was based, to a large extent, on inconsistencies in the evidence that Mr Herron gave at the Royal Commission and evidence that he gave in the civil proceedings instituted against him by Mr Hart. As noted earlier, I agree with Rares J that the primary judge’s admission, over objection, of statements made by Mr Herron at the Royal Commission was tainted to an extent by the erroneous construction of s 17(2) of the Royal Commissions Act. Some consideration should have been given to excluding the evidence in the exercise of the discretion in s 135 of the Evidence Act.

292    As Lee J has also explained, the finding that Mr Herron falsified the death certificate relating to Ms Francis was also to an extent reliant on credibility findings that in turn relied to a degree on the evidence of the “dead experts”. The finding is accordingly tainted by the wrongful admission of that evidence and cannot stand.

293    It should perhaps also be added that the finding against Mr Herron, which involved serious dishonesty, relied on fairly tenuous inferences.

294    Ground 4(o)(iii) challenges the primary judge’s finding that Dr Gill falsified the death certificate of a patient, Ms Ann Bennett. The problem for HarperCollins and Mr Cannane in relation to this finding is that it was based in part on the report of one of the “dead experts” – Dr Joseph – regarding the cause of Ms Bennett’s death. That report should not have been admitted, or should have been excluded. It follows that this finding cannot stand. The substantial truth of the imputation to which this finding relates should, however, be the subject of the retrial.

295    I would again observe, however, that even putting the complication arising from Dr Joseph’s report to one side, the inference that Dr Gill was knowingly involved in the falsification of Ms Bennett’s death certificate, which was signed by Dr Bailey, was at best fairly tenuous.

296    Ground 4(o)(iv) challenges the primary judge’s finding that Mr Herron knowingly charged for services that he did not provide. This finding is subject to the same difficulties as those referred to in relation to the finding the subject of ground 4(o)(ii). The finding against Mr Herron was based almost entirely on statements that he made at the Royal Commission. For the reasons given earlier, consideration should have been given to excluding those statements in the exercise of the discretion in s 135 of the Evidence Act.

297    I would also again observe that the finding against Mr Herron, which involved serious dishonesty, relied on fairly weak and unconvincing inferences in any event.

Conclusions in relation to ground 4 and substantial truth

298    The critical finding in respect of ground 4 that has been made by Lee J, with which both Rares J and I agree, is that the evidence of the “dead experts” was either inadmissible or should have been excluded. I agree with Lee J that the primary judge’s findings concerning the substantial truth of all of the imputations were directly or indirectly infected or influenced to some extent by the evidence of the “dead experts”. While the primary judge’s findings of substantial truth in respect of some of the imputations relied on other evidence, it is, as Lee J has put it, impossible or unrealistic for the Full Court to “unscramble the egg”.

299    It is ultimately not possible to excise the evidence of the “dead experts” from the primary judge’s reasoning process in respect of the substantial truth of the imputations. It cannot be concluded that her Honour would necessarily have made the same findings even without the evidence of the “dead experts”, or that the substantial truth of the imputations had been proved on the basis of the other evidence.

300    I should also add that, as Rares J has explained, the primary judge’s findings in respect of the substantial truth of the imputations were also undoubtedly influenced by credit and other findings based on statements made by Mr Herron and Dr Gill at the Royal Commission. As I have already indicated, I agree with Rares J that the primary judge misconstrued s 17(2) of the Royal Commissions Act. As a result, her Honour failed to consider whether s 17(2), properly construed, may have provided a basis for the discretionary exclusion of the Royal Commission material pursuant to s 135 of the Evidence Act. The fact that the primary judge’s findings were influenced by the Royal Commission material, some of which may have been open to discretionary exclusion, makes it doubly hard to unscramble the egg.

301    It follows that I agree with Rares J and Lee J that there must be a retrial of the justification defence in respect of the imputations concerning Dr Gill. It is on that basis that I agree that it is unnecessary, and probably undesirable, to reach a concluded view in respect of some of the individual grounds in ground 4.

SECTION 10 OF THE DEFAMATION ACT

302    I agree with Rares J’s resolution of the issue arising from Mr Herron’s death and the operation of s 10 of the Defamation Act.

DISPOSITION

303    I agree with the manner in which Rares J proposes to dispose of the appeal and with the order proposed by his Honour.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

Associate:

Dated:    28 April 2022

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

304    I have had the benefit of reading in draft the reasons of Rares J. His Honour has set out the details of the proceeding below, and identified the issues on appeal. I will adopt the abbreviations used in those reasons.

305    As to the contested imputations issue, I agree that each of the contested imputations were conveyed. This conclusion is warranted because of the reasons expressed by Rares J and, speaking generally, because of the need to give full effect to the reality that the hypothetical lay referee draws derogatory implications much more freely than a lawyer. I also generally agree with his Honour’s reasons as to the “qualified privilege issue” and the “s 10 of the Defamation Act issue”.

306    As to the “s 17(2) of Royal Commissions Act issue”, I prefer not to deal with the issue of the principled construction of the section (and the practical effect of recent judicial analysis of similar provisions in Feldman v Nationwide News Pty Ltd [2020] NSWCA 260; (2020) 103 NSWLR 307). This is because s 17(2) of the Royal Commissions Act had no application in proceedings in a federal court. In Section B below, I explain why s 17(2) is not “picked up” (and resolve what Rares J describes as the “operation of s 56 of the Evidence Act issue”).

307    In these reasons at Section C, I will also deal with relevant parts of Ground 4 concerning the truth defence (and in doing so express my reasons in relation to the “truth defence and dead experts issues).

308    Finally, I should state by way of introduction that I agree with the orders proposed by Rares J and, as unfortunate as it may be, with the conclusion that a retrial is necessary.

B    GROUNDS 1 AND 1A: THE ROYAL COMMISSIONS ACT

309    The primary judge was, with respect, correct to conclude that s 17(2) of the Royal Commissions Act did not preclude evidence being adduced of representations made, and documents produced, by Mr Herron and Dr Gill to the Royal Commission (Royal Commission Material). But the reason why this is the case, was not raised before her Honour. To explain why I have reached this conclusion, it is well to commence with an understanding as to how this issue arose below. This involves close attention to the record.

B.1    The relevant chronology

310    Mr Herron and Dr Gill informed the publishers that they intended to rely upon s 17 of the Royal Commissions Act to object to any Royal Commission Material proposed to be adduced in evidence (or even referred to) by the publishers at trial. It is unclear precisely when this occurred, although senior counsel for Mr Herron and Dr Gill below said the issue had been raised as long ago as “four years” before the hearing. This chronology suggests this must be somewhat of a rhetorical flourish, but it suffices to note that it was raised a long time before the trial.

311    In any event, the general objection to the Royal Commission Material was referred to in an affidavit read in opposition to the publishers’ application to dismiss the proceedings summarily as an abuse of process, which was heard in September 2018 and determined in October 2018. During that application, senior counsel for the publishers identified the reliance on s 17 of the Royal Commissions Act as a matter “which would complicate the proceedings” and submitted that it was an issue that should be taken into consideration on the summary dismissal application. The primary judge admitted some of the Royal Commission Material (most importantly, those aspects referred to in the report of the Royal Commission (Report)) at that interlocutory hearing: see Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495 (at [28]).

312    In the light of this, and the early recognition that the Royal Commission Material was likely to be of real importance in the publishers’ case, it is regrettable that no party considered it appropriate to assist the primary judge by moving the Court for an advance ruling pursuant to s 192A of the Evidence Act. It was a short but highly important point. Such a course would have clarified, well in advance of an initial trial, whether s 17 of the Royal Commissions Act applied and, if it was not applicable (as was found by the primary judge), informed any later arguments as to discretionary exclusion of the Royal Commission Material.

313    In any event, nothing happened, and in late April 2020 the publishers served their proposed tender bundle of documents, to which, a month later, Mr Herron and Dr Gill served their objections in accordance with earlier directions of the Court. This included objections to various documents (including parts of hearsay notices) based on s 17 of the Royal Commissions Act.

314    It was only on the first day of the trial on 1 June 2020, shortly after Dr Gill’s cross-examination commenced, that the issue was brought into focus before the primary judge. Mr Herron and Dr Gill objected to cross-examination on the Report (which, obviously enough, was one of the documents in respect of which an objection based on17 had been notified). That part of the Report included direct reference to other Royal Commission Material, being evidence given by Dr Gill at the Royal Commission. Argument then ensued.

315    Pragmatically, the primary judge ruled she would allow the questions but noted “we can have an argument later as to admissibility” and confirmed that the position of Mr Herron and Dr Gill as to the general objection was “protected”.

316    On the same day, the publishers provided Mr Herron and Dr Gill with documents they had received from the State Archives in respect of a former patient, Mr John Adams (Adams Material). The publishers had previously advised, on 18 May 2020, that they had been informed that State Archives had located the Adams Material and that they anticipated tendering some or all of those documents once received. On 2 June 2020, objections were foreshadowed to the Adams Material based on claims of legal professional privilege and the applicability of s 17 of the Royal Commissions Act. Later that day (during the cross-examination of Dr Gill) Mr Herron and Dr Gill objected to cross-examination on the “Statement of J Gill to the Royal Commission”. Arguments based on s 17 and legal professional privilege were deferred.

317    The following day, Mr Herron and Dr Gill served an affidavit in relation to the claims of legal professional privilege and “s 17 privilege” in respect of three specific documents. One of these documents related to Mr Herron and two related to Dr Gill. The affidavit also deposed to the fact that Dr Gill had given evidence at the Royal Commission unwillingly. Submissions were then advanced as to the claims of legal professional privilege and the applicability of s 17 in respect of documents on which the respondent intended to cross-examine Dr Gill. This resulted in the ex tempore judgment Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805 (s 17 judgment).

318    What then happened is to be seen in the light of her Honour’s ruling rejecting the argument as to the applicability of s 17. Although Mr Herron and Dr Gill did not abandon their objections, the parties jointly proceeded on the basis that the objections to documents served pre-trial (including parts of various hearsay notices) were covered by the ruling explained in the17 judgment. This approach was referred to on various occasions later in the trial, for example on 10 June 2020, 22 June 2020 and 13 August 2020.

319    As will be seen below, in respect of a number of these documents, it appears a discretionary exclusion was also sought pursuant to s 135 of the Evidence Act.

B.2    The applicability of s 17

320    At the time of the Royal Commission proceeding, s 17 of the Royal Commissions Act provided:

17     Answers and documents

(1)    A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate him, or on the ground of privilege, or on any other ground.

(2)    An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

(3)    Nothing in this section shall be deemed to render inadmissible:

(a)    any answer, document or other thing in proceedings for an offence against this Act,

(b)    any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1),

(c)    any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

(4)    This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.

321    As has been explained by Rares J, the primary judge reasoned that, while s 17(2) provided a statutory protection that was correlative to the removal of the common law privileges in s 17(1), the publishers were not seeking to have the documents admitted against Dr Gill, but rather they sought to justify the admission of those documents as being in support of their defence of justification: see s 17 judgment (at [23]–[24]).

B.3    Articulation of the grounds and a potential constitutional argument

322    Following a process of refinement, two grounds of appeal were pressed with respect to the Royal Commission Material. These can be summarised as follows:

(1)    the primary judge erred in finding that s 17(2) of the Royal Commissions Act operated to provide a witness a protection only against the use of the compelled evidence to establish civil liability or criminal responsibility in the person whose privileges were abrogated by s 17(1) (Ground 1); and

(2)    the primary judge erred in failing to exclude or limit the use of the Royal Commission Material pursuant to ss 135 and/or 136 of the Evidence Act (Ground 1A).

323    As noted above, I consider it is unnecessary to deal with the issue of the principled approach to the application of s 17(2) because the section has no application in a proceeding in a federal court. The primary judge cannot be faulted for not dealing with this argument because it was raised only by the Full Court at the commencement of oral argument on the appeal.

324    The consequences of the question of the applicability of s 17 being raised on appeal was the filing of a notice of contention by the publishers and the issuance of s 78B notices to the Attorneys General. As it happened, the Commonwealth Attorney intervened, and the Court reconvened to hear additional arguments.

325    In dealing with Ground 1, it is necessary to first detail why s 17 is not “picked up”, before turning to consider the constitutional arguments.

B.4    Section 17 is not “picked up”

326    This “matter” (to use that word in its Constitutional sense) is wholly within federal jurisdiction. The proceeding is also within the subject matter jurisdiction of this Court because, as was explained by Robertson J in Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451 (at 458 [35] and 460 [45], with whom Bennett and Perram JJ agreed), s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) has the effect of conferring upon this Court original jurisdiction over a proceeding that would be within the jurisdiction of the Australian Capital Territory or Northern Territory Supreme Courts. There was no issue below as to publication in the Territories. Accordingly, in quelling this controversy in federal jurisdiction, this Court is required to apply the statutory law of the Commonwealth, any “surrogate” federal law “picked up” by s 79 of the Judiciary Act 1903 (Cth) (being applicable State laws and applying them as federal laws), and the common law of Australia.

327    In demonstrating why s 17(2) has no present applicability, it is necessary to recall some basic principles concerning federal jurisdiction.

State laws and the exercise of federal jurisdiction

328    The relationship between State laws and the exercise of federal jurisdiction was addressed in detail by the High Court in Rizeq v State of Western Australia [2017] HCA 23; (2017) 262 CLR 1.

329    In that case, the State of Western Australia had indicted a resident of New South Wales in the District Court of Western Australia on two charges of offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). After a trial by a judge and a jury of 12, the jury was unable to reach a unanimous verdict on either charge. Under s 114(2) of the Criminal Procedure Act 2004 (WA), the District Court took the decisions of 11 of the 12 jurors to be verdicts of guilty, and convicted the defendant of both offences. The District Court was exercising federal jurisdiction under s 39(2) of the Judiciary Act in resolving the controversy as to the defendant’s criminal liability (because there was a “matter” between a State and a resident of another State within the meaning of s 75(iv) of the Constitution). As a consequence, the defendant contended that the Western Australian law (the Misuse of Drugs Act) did not apply as a State law, but was rather picked up and applied as a law of the Commonwealth by s 79 of the Judiciary Act. Hence, the argument went, the trial in the District Court was a trial on indictment of offences against a law of the Commonwealth and s 80 of the Constitution requires that, in a trial on indictment of any offence against a law of the Commonwealth, the verdict of the jury must be unanimous.

330    In dismissing the appeal, the Court found that, notwithstanding the District Court was exercising federal jurisdiction, s 6(1)(a) of the Misuse of Drugs Act applied to impose criminal liability on the defendant as a law of Western Australia, and was therefore outside the operation of s 79 of the Judiciary Act. Section 80 of the Constitution had no application. By contrast, s 79 of the Judiciary Act was engaged to pick up and apply the text of s 114(2) of the Criminal Procedure Act as a law of the Commonwealth, filling a gap in the law governing the exercise of federal jurisdiction by that Court.

331    Relevantly, Bell, Gageler, Keane, Nettle and Gordon JJ stated (at 24 [58], 26 [61]) that:

The incapacity of a State law to affect the exercise of federal jurisdiction by a State court is a manifestation of the general incapacity of any Parliament or legislature other than the Parliament of the Commonwealth to affect the exercise of federal jurisdiction conferred by or conferred or invested under Ch III of the Constitution. That general incapacity stems from the exclusory operation of Ch III explained in the Boilermakers’ Case [R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270] and reinforced in Re Wakim; Ex parte McNally [(1999) 198 CLR 511 at 575].

Just as State Parliaments have no power to add to or detract from federal jurisdiction, State Parliaments have no power to command a court as to the manner of exercise of federal jurisdiction conferred on or invested in that court.

(Emphasis added).

332    And, as their Honours went on to explain (at 26 [63]):

The incapacity of a State Parliament to enact a law which governs the exercise of federal jurisdiction by a court, whether it be a federal court or a State court, explains the necessity for s 79 of the Judiciary Act and is the key to understanding the nature and extent of its operation. Section 79 is a law, enacted under s 51(xxxix) of the Constitution, which serves to ensure that the exercise of federal jurisdiction is effective. The section fills a gap in the law governing the actual exercise of federal jurisdiction which exists by reason of the absence of State legislative power. The section fills that gap by picking up the text of a State law governing the exercise of State jurisdiction and applying that text as a Commonwealth law to govern the manner of exercise of federal jurisdiction. The section has no broader operation.

333    In applying this reasoning to the two provisions in question, their Honours stated (at 41 [104]–[105]):

Section 114(2) of the Criminal Procedure Act, governing what is to be taken to be the verdict of a jury, is a useful illustration. Its application to a Western Australian court exercising federal jurisdiction is beyond the competence of the Parliament of Western Australia. … The text of s 114(2) is applied, as Commonwealth law, to a Western Australian court when exercising federal jurisdiction through the operation of s 79 of the Judiciary Act, except as otherwise provided by the Constitution or by some other Commonwealth law. That is what occurred in the trial of Mr Rizeq, there being no provision of the Constitution or of other Commonwealth law preventing it.

Section 6(1)(a) of the Misuse of Drugs Act, in contrast, is a law having application independently of anything done by a court. It is squarely within State legislative competence and outside the operation of s 79 of the Judiciary Act. It applied in the trial of Mr Rizeq as Western Australian law just as it applied to him before any court was called upon to exercise jurisdiction in relation to the charges brought against him.

(Citation omitted).

334    The interaction between State laws and the exercise of federal jurisdiction was again considered by the High Court in Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554. There, s 60H of the Family Law Act 1975 (Cth) regulated the parentage of children born by artificial conception. Further, s 14(2) of the Status of Children Act 1996 (NSW) provided that if a woman (married or unmarried) became “pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy” and s 14(4) provided that such a presumption was “irrebuttable”. A male (M) provided semen to a female (F) in the hope she could conceive a child. At the time of the resulting conception, M believed that he was fathering the child and when the child was born, M’s name was entered on the birth certificate as the father. The child thereafter lived with F and F’s female “partner”, but M continued to have an ongoing role in the child’s welfare. F later resolved to relocate to New Zealand with the child and M sought orders conferring shared parental responsibility, restraining relocation of the child, and providing for the child to spend regular time with M.

335    The primary judge found that M qualified as a parent within the ordinary meaning of that word and was therefore a parent of the child for the purposes of the Family Law Act. On appeal, the Full Court of the Family Court held that M was not a parent of the child, reasoning that, because the matter was one within federal jurisdiction, s 79 of the Judiciary Act picked up and applied s 14 of the Status of Children Act as a law of the Commonwealth, such that M was irrebuttably presumed not to be a parent of the child.

336    The High Court disagreed. Relevantly, the plurality, consisting of Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, concluded that ss 14(2) and (4) of the Status of Children Act do not purport to regulate the exercise of jurisdiction and therefore are not provisions to which s 79(1) of the Judiciary Act is capable of applying. Their Honours stated (at 576–577 [34]):

… the presumptions stated in ss 12(1) and 14(1)-(3) of the Status of Children Act are “irrebuttable” rules determinative of a status to which rights and duties are attached. In particular, ss 14(2) and 14(4) of the Status of Children Act operate as an irrebuttable rule of law that, in specified circumstances, the biological father of a child born as a result of a fertilisation procedure is not the father of the child. That is not a law relating to evidence or otherwise regulating the exercise of jurisdiction. It is a rule of law determinative of parental status which applies independently of anything done by a court or other tribunal, and which, as such, stands in contrast to a provision that regulates the exercise of jurisdiction.

(Citations omitted, emphasis in original).

337    Further, the plurality found that even if ss 14(2) and (4) were properly to be conceived of as provisions which regulate the exercise of State jurisdiction, they could not be picked up and applied under s 79 of the Judiciary Act because the Family Law Act has otherwise provided.

338    In summary, three things can be said to emerge from the reasoning in Rizeq and Masson: first, as a foundational proposition, State parliaments lack the power to regulate the exercise of federal jurisdiction or command a federal court in the exercise of its jurisdiction; secondly, in determining whether a State law purports to regulate the exercise of federal jurisdiction, it is relevant to ask whether the impugned law operates independently of anything done by a court; and thirdly, the categories of laws identified in s 79 of the Judiciary Act, such as whether a law is a law of evidence, are of assistance in identifying whether a State law purports to regulate the exercise of federal jurisdiction.

339    So, the question arises: does s 17(2) of the Royal Commissions Act purport to regulate the exercise of federal jurisdiction?

Does s 17(2) purport to regulate the exercise of federal jurisdiction?

340    The parties disagree as to the proper characterisation of s 17(2) of the Royal Commissions Act, and more fundamentally, on how to approach the question of characterisation.

341    Dr Gill submitted, relying on the reasoning in Masson (at 574–575 [30] and 578 [39] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ), that the characterisation task is approached by application of the following dichotomy: (1) if the law is “determinative of the rights and duties of persons” it will apply of its own force; and (2) if the law is concerned with “the manner of exercise of jurisdiction” it can apply only via s 79 of the Judiciary Act.

342    Applying this dichotomy, it is said that while s 17(2) may present as a rule of evidence, and while a rule of evidence is not typically concerned with creating rights and duties, s 17(2) of the Royal Commissions Act is determinative of the “substantive” rights of persons, namely “the right not to be compelled to incriminate yourself”. Dr Gill submitted that s 17(2) is therefore, in substance, a statutory adjustment (by way of expansion and contraction) of a substantive right recognised by the common law of Australia, and for that reason, applies of its own force in federal jurisdiction.

343    This submission should be rejected.

344    Even if it is the case that s 17(2) is concerned with the “substantive” rights of persons (whatever that amorphous concept may mean in the present context), the dichotomy suggested by Dr Gill proceeds upon a false premise. So much is clear from the reasoning in Masson. While Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ concluded (at 576–577 [34]) that ss 14(2) and (4) of the Status of Children Act “is not a law relating to evidence or otherwise regulating the exercise of jurisdiction”, their Honour’s emphasised, by reference to other provisions under scrutiny, that this characterisation was not dependent upon the law being determinative of the rights and duties of persons. Their Honours stated (at 578 [38]):

… it is to be observed that ss 14(2) and 14(4) stand in contrast to provisions such as, for example, s 4 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), which, although determinative of rights and obligations, are directed to the manner of exercise of jurisdiction. Section 4 of the Civil Liability (Third Party Claims Against Insurers) Act governs the exercise of State jurisdiction in relation to claims against defendants who are indemnified under policies of insurance against civil liabilities by providing for claimants to bring claims directly against defendants’ insurers. If such a claim is brought in a court exercising federal jurisdiction, as it might be perhaps as part of the whole of the matters in controversy in a proceeding before the Federal Court of Australia, s 79(1) of the Judiciary Act would pick up and apply s 4 of the Civil Liability (Third Party Claims Against Insurers) Act – as a Commonwealth law governing the manner of exercise of federal jurisdiction – in order to fill the gap in the Federal Court’s powers to deal with such a claim.

(Citations omitted, emphasis added).

345    The conclusion reached by the High Court in Masson is unsurprising, and is distinguishable from the current facts. Nowhere in ss 14(2) or (4) of the Status of Children Act, unlike s 17(2) of the Royal Commissions Act, is reference made to proceedings in a Court. Here, s 17(2) is a command to a Court as to the manner of the exercise of its jurisdiction. This is evident from the text of the provision, which states that “[a]n answer made, or document or other thing produced by a witness to or before the commission shall not … be admissible in evidence against that person in any civil or criminal proceedings”.

346    It follows that s 17(2) purports to regulate the exercise of federal jurisdiction, meaning s 79 of the Judiciary Act is brought into focus and the next question arises: does the Constitution or a law of the Commonwealth “otherwise provide”?

Does the Constitution or a law of the Commonwealth “otherwise provide”?

347    It is only the case that s 79 of the Judiciary Act picks up a State law if there is not a law of the Commonwealth that “otherwise provide[s]”. That expression was clarified by the High Court in Masson (at 579–580 [43]), where Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ explained that the applicable principles are similar to those applied when determining whether a State law is inconsistent with a Commonwealth law for the purposes of s 109 of the Constitution:

… s 79(1) of the Judiciary Act operates only in the area of exclusive Commonwealth legislative power which comprises the regulation of the exercise of federal jurisdiction, and thus in which s 109 of the Constitution necessarily has no application. Acknowledging this to be so, there is no reason to construe “otherwise provided” in s 79(1) of the Judiciary Act as importing a more stringent test than the terms of s 109 of the Constitution, within their respective spheres of application. The coherence of the body of law applicable in federal jurisdiction is maximised by treating the test for contrariety between Commonwealth and State laws applied to regulate the exercise of federal jurisdiction as identical to that between Commonwealth and State laws operating outside federal jurisdiction. The meaning of the expression “otherwise provided” in s 79(1) of the Judiciary Act is thus to be equated with the concept of inconsistency in s 109 of the Constitution.

(Citations omitted, emphasis added).

348    The synonymous nature of determining whether a Commonwealth law “otherwise provide[s]” for the purpose of s 79 of the Judiciary Act and determining an inconsistency pursuant to s 109 of the Constitution was the subject of some recent discussion by the Court of Appeal of New South Wales in Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246; (2021) 395 ALR 131. There, Leeming JA observed (at 144–145 [54]–[58], with whom Bathurst CJ and Bell P agreed) that the preceding sentences in Masson (at 579–580 [43]) state, consistently with what was thought to be settled principle, that s 79 imports a test distinct from s 109, and analogous to “resolv[ing] the problem that arises by conflict between conflicting statutes having the same source”. Leeming JA went on to note (at 145 [57]–[58]):

That was the explanation given in Northern Territory v GPAO [(1999) 196 CLR 553; [1999] HCA 8] at [80] by Gleeson CJ and Gummow J, with whom Gaudron and Hayne JJ agreed (at [135] and [254]), which was applied thus by the joint judgment of a majority of the Court in Austral Pacific Group Limited v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39 at [17]:

“The question remains whether s 79 was inapplicable because provision otherwise was made by another law of the Commonwealth, namely the Compensation Act. The criteria to be applied are indicated in Northern Territory v GPAO. The question is whether the operation of the Compensation Act would so reduce the ambit of the Contribution Act that the provisions of the Compensation Act are irreconcilable with the other law. If so, the Compensation Act ‘otherwise provides’ within the meaning of s 79 of the Judiciary Act. GPAO shows that the question is not answered by application of the doctrine identified, in the decisions construing s 109 of the Constitution, with the phrase ‘covering the field’.”

The same reasoning was applied by the joint judgment of six Justices of the High Court in Macleod v Australian Securities and Investments Commission [(2002) 211 CLR 287; [2002] HCA 37] at [22]. Thus three quite recent decisions of majorities of the High Court have distinguished the approach to identifying conflict in s 109 as opposed to s 79.

349    See also the remarks of Stewart J in Bradshaw v Emirates [2021] FCA 1407; (2021) 395 ALR 97 (at 121 [150]).

350    Two points should be noted about what was said in Doyle’s Farm. First, it is important to observe that Leeming JA’s comments in this respect were obiter. This is evident from the fact that his Honour ultimately concluded (at 145 [58]) that “it is unnecessary to consider whether the more recent passage in [Masson] bears the meaning attributed to it by the parties” (that is, that the two tests are to be equated). Secondly, it is not apparent that the Court of Appeal was assisted by detailed submissions on this point: see Doyle’s Farm (at 144 [55]–[56]).

351    We did have the benefit of detailed argument, including receiving the assistance of the Solicitor-General who had appeared in Masson before the High Court and was able to direct us to aspects of the argument he advanced to the High Court. In the light of that assistance, and notwithstanding the previously settled understanding that Leeming JA identified, it seems the High Court has now squarely embraced the proposition that the meaning of “otherwise provide[s]” in s 79(1) of the Judiciary Act is to be equated with the concept of inconsistency in109 of the Constitution.

352    Indeed, it is instructive that the transcript of the hearing before the High Court, which was made available to us, records the following submission made by the Solicitor-General on behalf of the Commonwealth:

… following Rizeq and Outback Ballooning in particular, the better view is that the language of “otherwise provides” in section 79 does within its sphere of operation exactly what the word “inconsistent” does, and section 109 do, in its separate sphere of operation. It would, we submit, be most odd to apply a stricter test of inconsistency under section 79 than applies under 109, where section 79 can only operate to pick up a State law that is invalid of its own force.

(Emphasis added).

353    When viewed in this context, their Honour’s reasoning (at 579–580 [43]) (extracted above at [347]) should be taken as an acceptance of the Commonwealth’s submission.

354    This conclusion is supported by the High Court’s comparative treatment of the reasoning in Northern Territory v GPAO [1999] HCA 8; (1999) 196 CLR 553 and Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136. For example, the plurality, in finding that even if ss 14(2) and (4) were properly to be conceived of as provisions which regulate the exercise of State jurisdiction in matters arising under the Status of Children Act, they could not be picked up by s 79 because the Family Law Act has otherwise provided, noted (at 579 [42]):

In coming to that conclusion, there is but little assistance to be derived from principles for resolving conflicts between statues having the same source [cf Northern Territory v GPAO (1999) 196 CLR 553 at 588 [80] per Gleeson CJ and Gummow J].

(Emphasis added).

355    Similarly, the plurality observed (at 579–580 [43]):

… there is no reason to construe “otherwise provided” in s 79(1) of the Judiciary Act as importing a more stringent test than the terms of s 109 of the Constitution, within their respective spheres of application [cf Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136 at 144 [17] per Gleeson CJ, Gummow and Hayne JJ].

(Emphasis added).

356    Hence, in Masson, the High Court did grapple with the test for “otherwise provide[s]” in s 79 of the Judiciary Act, and should be taken as now concluding that it is the same as identifying whether there is inconsistency for the purposes of s 109 of the Constitution.

357    With this position clarified, it is necessary to turn to the provisions in question.

358    Section 4(1) of the Evidence Act provides that the Evidence Act applies to all proceedings in a federal court. What constitutes a “federal court” is defined in the Dictionary of the Evidence Act and, obviously enough, includes the Federal Court of Australia as a “court created by the Parliament”.

359    Further, s 55(1) provides:

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

360    Then, importantly, s 56(1) provides:

Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(Emphasis added).

361    Unlike other laws of a State or Territory (for example, a law providing for the admissibility of a document to depend on whether stamp duty has been paid or evidentiary effect to be given to a certificate or other document issued under that or any other law of the State or Territory (see s 9 of the Evidence Act)), nothing in the Evidence Act provides for s 17(2) (were it to be picked up in this Court) to prevail over the default inclusionary rule in s 56(1).

362    This is of significance because the potential for the Evidence Act to operate to prevent the picking up of State laws covering the same field is expressly contemplated by s 8(1) of the Evidence Act. That section states that “[t]his Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903”. This reflects a recognition that the Evidence Act does (and was intended to) affect the operation of s 79 of the Judiciary Act by causing some laws which would otherwise have been picked up, not to be picked up.

363    Put simply, s 17(2) of the Royal Commissions Act is directly and logically inconsistent with s 56(1) of the Evidence Act: s 56(1) says evidence is admissible; s 17(2) says the same evidence is inadmissible. A law of the Commonwealth provides otherwise than s 17(2) and as a consequence it is not picked up. This is a conclusion as to the ambit of s 56(1) of the Evidence Act that I have expressed before: see Dixon v Citiline Developments Pty Ltd [2018] FCA 1446 and Fuge v Commonwealth Bank of Australia [2019] FCA 1621 (at [22]).

364    It must follow that subject to the constitutional arguments to which I will now turn, the submission reflected in the notice of contention that s 17(2) of the Royal Commissions Act did not apply, is correct.

B.5    A constitutional argument

365    As foreshadowed above, in support of his contention that the primary judge erred in not applying s 17(2), the following two additional (and in some respects complementary) arguments were advanced by Dr Gill:

(1)    A conclusion that s 17(2) did not apply cannot be correct as it would infringe the principle articulated in Melbourne Corporation v Commonwealth (1947) 74 CLR 31, given the suggested effect of the Evidence Act is contrary to the limitations of the power of the Commonwealth Parliament to affect, in a material way, the peculiarly governmental functions of a State, including the legislative choices of a State as to their manner of exercise. It is said that on what terms a State legislates to compel evidence and other material, including so as to abrogate the privilege against self-incrimination for the purposes of a Royal Commission, are not matters that can be nullified by a Commonwealth statute generally regulating the rules of evidence in federal jurisdiction (Melbourne Corporation Contention).

(2)    A conclusion that s 17(2) did not apply would produce an outcome inconsistent with s 118 of the Constitution, by reason of the fact that the Royal Commission Material was, at the time of its creation, dissemination and use in the Royal Commission, governed by New South Wales law, including s 17(2) of the Royal Commissions Act. It is said that the legal consequence of s 17(2) is “indelibly impressed” upon the Royal Commission Material and to permit this material to be tendered in proceedings would be to deny full faith and credit to that provision (s 118 Contention).

366    I will deal with each of these contentions in turn.

The Melbourne Corporation Contention

367    In Melbourne Corporation, Dixon J said (at 82):

The foundation of the Constitution is the conception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities.

368    As the plurality noted in Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355 (at 418 [100] per Kiefel CJ, Bell, Gageler and Keane JJ), referencing the remarks of Dixon J:

The doctrine of inter-governmental immunities expounded in the Melbourne Corporation Case is a structural implication built on that conception. The implication is captured in the proposition articulated by Starke J in that case that “neither federal nor State governments may destroy the other nor curtail in any substantial manner the exercise of its powers or ‘obviously interfere with one another’s operations’”. His Honour explained that “[i]t is a practical question, whether legislation or executive action thereunder on the part of a Commonwealth or of a State destroys, curtails or interferes with the operations of the other”.

(Citations omitted).

369    Their Honours went on to note the essentially practical nature of the enquiry involved in determining whether a law of one polity impermissibly interferes with the operations of the government of another is borne out by subsequent cases in which Commonwealth legislation has been held to contravene that structural implication: see Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185 (at 249 [124] per Gaudron, Gummow and Hayne); Clarke v Federal Commissioner of Taxation [2009] HCA 33; (2009) 240 CLR 272 (at 298–299 [32]–[34] per French CJ, 305–307 [61]–[66] per Gummow, Heydon, Kiefel and Bell JJ, and at 312–313 [93]–[95] per Hayne J).

370    In determining whether there is room for the Melbourne Corporation doctrine to operate, it is first necessary to locate the relevant Commonwealth law said impermissibly to curtail the peculiarly governmental functions of the State of New South Wales.

371    As explained above, it is not correct to say that the Evidence Act somehow infringes upon the Royal Commissions Act. At a foundational level, such a contention is at odds with the way in which Ch III of the Constitution operates. The Commonwealth’s express legislative powers, and in particular its express legislative power under s 51(xxxix), gives the Commonwealth power to enact laws regulating the exercise of federal jurisdiction. That includes legislative power to enact a provision which picks up and gives effect to State laws that would otherwise be invalid by reason of the exclusory implication in Ch III.

372    This means that the Commonwealth Parliament may, but need not, pick up State laws. Section 79(1) of the Judiciary Act is enacted pursuant to s 51(xxxix). By enacting s 79(1), the Commonwealth elected to pick up some, but not all, State laws capable of applying in federal jurisdiction. More specifically, the legislative choice of the Commonwealth was to elect not to pick up State laws where, for example, the Constitution or the laws of the Commonwealth “otherwise provide”. Of course, the extent to which the Commonwealth picks up State laws is a matter of legislative judgment for the Commonwealth Parliament: see Rizeq (at 26 [63] per Bell, Gageler, Keane, Nettle and Gordon JJ).

373    In the light of this, it can be seen that s 17(2) of the Royal Commissions Act was deprived of any direct operation in a federal court exercising the judicial power of the Commonwealth by reason of the general incapacity of a State law to affect the exercise of federal jurisdiction. It is only via s 79(1) of the Judiciary Act (and as federal law) that a provision such as s 17(2) can be given any operation in federal jurisdiction. If a Commonwealth law has otherwise provided, that is the end of the matter.

374    Dr Gill called in aid the analogies of parliamentary privilege and public interest immunity to demonstrate the inaptness of any blanket suggestion that the Melbourne Corporation principle can never operate in respect of laws governing the exercise of federal jurisdiction. The limitations of such a general proposition are revealed, it was submitted, by asking whether the Commonwealth Parliament could validly abrogate laws protecting State cabinet secrets, or evidence comprising the proceedings of State parliaments. Such a result would mean, for example, that evidence given before the Legislative Assembly of a State would be admissible in this Court, notwithstanding provisions akin to art 9 of the Bill of Rights 1688 (Eng) (prohibiting the impeachment of State Parliamentary debates in any court or place out of the relevant State Parliament), save only for the “indulgence” of the Commonwealth Parliament in enacting s 10(1) of the Evidence Act. It cannot be correct, it was said, that State parliamentary privilege, particularly in a context where State constitutions are preserved by s 106 of the Constitution, depends upon the “indulgence” of the Commonwealth Parliament. Instead, it is said that carve out provisions such as s 10(1) of the Evidence Act should be read as a “kind of expressed courtesy”.

375    But there is a danger of hypothesising in the abstract. This is not a case about public interest immunity long regarded as integral to the functioning of our system of government. It is also far removed from parliamentary privileges, which raise their own complex historical and bespoke issues (even pre-dating the so-called “Glorious” Revolution). It would be a very odd thing for the Commonwealth Parliament to seek to deprive a State of these privileges fundamental to the functioning of a polity. As the Solicitor-General for the Commonwealth engagingly accepted, if such a course was to commend itself to the Commonwealth, he would have a battle on his hands but no such battle is joined.

The s 118 Contention

376    The s 118 Contention was the subject of evolution throughout the course of written submissions and then orally at the hearing. Section 118 of the Constitution is in the following terms:

118.     Recognition of laws etc. of States

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

377    In the end, it appears Dr Gill contended that s 118 has the effect that a court exercising federal jurisdiction is required to give “full faith and credit” to s 17(2) of the Royal Commissions Act despite the operation of Ch III of the Constitution and s 79 of the Judiciary Act; that is, it is incorrect to conclude that s 17(2) can only be given operation in federal jurisdiction via s 79 of the Judiciary Act. It is said that s 118 will give way to an inconsistent Commonwealth law, subject to the validity of that law including under the Melbourne Corporation doctrine. In this sense, Dr Gill contends that his reliance on s 118 does not “cut across or provide what might be called a freestanding alternative to the argument … made about Melbourne Corporation … [i]t compliments it”. This argument was accurately characterised by the Solicitor-General and counsel for the respondent as “radical”.

378    Immediately, a question becomes apparent: if it is not the Evidence Act which impermissibly curtails the functions of the State, then what law is it? Dr Gill’s submissions skilfully skirted this issue, rather asserting that the failure to give full faith and credit to a State law would amount to a violation of the Melbourne Corporation principle. But such an approach is forced to distort the fundamental tenet of the Melbourne Corporation doctrine (that is, a Commonwealth law that curtails the functions of a State, and which, by reason of that curtailment, is invalid), into a far more general and novel assertion that the laws of a State should be given “full faith and credit” by virtue of s 118 of the Constitution.

379    Properly analysed, the submission is unconnected to the structural implication expounded in Melbourne Corporation; rather, it is based upon a novel interpretation of s 118 of the Constitution. But while the examination of this provision may be of academic interest, it is unnecessary and indeed inappropriate, to descend into an analysis of its interpretation in the present case: see Knight v State of Victoria [2017] HCA 29; (2017) 261 CLR 306 (at 324–325 [32]–[33] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). That is because the absence of State legislative power to govern federal jurisdiction provides a complete answer to any reliance on s 118 of the Constitution. Whatever the scope of s 118 may be, it cannot overcome the exclusive vesting, by Ch III of the Constitution, of the “entire subject matter of the conferral and exercise of federal jurisdiction” in the Parliament of the Commonwealth: see Rizeq (at 26 [61] per Gageler, Keane, Nettle and Gordon JJ). That is, underpinning any interpretation of s 118 is the starting premise that “full faith and credit” need only be given to operative laws. It is for this same reason that full faith and credit need not be given to a State law which is inconsistent with a Commonwealth law pursuant to s 109 of the Constitution. At bottom, the problem for Dr Gill is that s 17 of the Royal Commissions Act had no operation in proceedings in a federal court.

380    Both of the constitutional arguments must be rejected.

381    For completeness, one further point should be dealt with. Dr Gill contended in writing that the same issue as to the operation of s 17 would arise in a similar proceeding brought by a plaintiff in the Supreme Court of New South Wales. It was said that to accept the argument advanced by the notice of contention would mean that a plaintiff would lose the benefit of s 17(2) of the Royal Commissions Act including where that result was beyond his control, for example, if it was a defendant who raised a constitutional issue (thus meaning the Supreme Court was exercising federal jurisdiction).

382    Understandably this argument was not pressed orally. The Evidence Act has no application in a proceeding brought in the Supreme Court of New South Wales, even if federal jurisdiction is attracted. In such a proceeding, it is the Evidence Act 1995 (NSW) (NSW Evidence Act) that applies. Section 8 of the NSW Evidence Act provides that: “[t]his Act does not affect the operation of the provisions of any other Act”. This includes s 17(2) of the Royal Commissions Act. The combined effect of these provisions is that with regard to a matter in federal jurisdiction, if a civil or criminal proceeding is brought in a New South Wales court, an answer made, or document or other thing produced by a witness to or before a Royal Commission will not, except as otherwise provided for by s 17 of the Royal Commissions Act, be admissible in evidence against that person.

B.6    An exclusion or limitation pursuant to ss 135 and/or s 136 of the Evidence Act

383    In the alternative to the foregoing, Ground 1A of the notice of appeal is that the Royal Commission Material should have been excluded under s 135 of the Evidence Act, or its use limited under s 136 of the Evidence Act to preclude its deployment in the defence of justification under s 25 of the Defamation Act.

384    Both ss 135 and 136 fall under Pt 3.11 of the Evidence Act, entitled “Discretionary and mandatory exclusions”, and are in the following familiar terms:

135     General discretion to exclude evidence

(1)     The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)     be unfairly prejudicial to a party; or

(b)     be misleading or confusing; or

(c)     cause or result in undue waste of time.

136    General discretion to limit use of evidence

(1)    The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a)     be unfairly prejudicial to a party; or

(b)     be misleading or confusing.

385    Following the completion of the hearing, the parties provided an agreed note concerning the relevant s 135 objections (that is, objections taken to evidence also the subject of the s 17 objection). This note reveals that s 135 objections were maintained over a large amount of the Royal Commission Material, including evidence the subject of lay and expert hearsay notices.

386    The note also outlined the following objections and rulings made by her Honour during the cross-examination of Dr Gill and Mr Herron:

Objection

Ruling

On 1 June 2020, a s 91 objection was taken to cross-examination of Dr Gill on the Report.

The primary judge limited the use of the evidence to hurt to feelings and reputation.

On 3 June 2020, a s 135 objection was taken to cross-examination of Dr Gill about a historical expert opinion that he may have been aware about from the Royal Commission.

The primary judge allowed the question.

On 5 June 2020, immediately after the cross-examination of

Mr Herron commenced, a s 135 objection was taken to a question about an answer he gave to the Royal Commission.

The primary judge allowed the question.

On 5 June 2020, a limitation objection was taken to cross-examination of Mr Herron on the Report to damages only.

Senior counsel for the publishers acknowledged the limitation.

On 9 June 2020, a continued s 135 objection was taken to all of the cross-examination of Mr Herron about answers he gave to the Royal Commission and expert reports not in evidence.

The primary judge acknowledged the objection, but the questioning was allowed.

On 9 June 2020, a further s 135 objection was taken to continued cross-examination of Mr Herron about a report he was cross-examined on at the Royal Commission.

The primary judge allowed the question.

On 29 July 2020, the primary judge determined the application that Mr Herron be excused from giving evidence. During the course of those submissions, a s 135 objection was taken to Mr Herron’s evidence which had previously been given (on 9 June 2020, after Mr Herron’s medical emergency).

One reason that was put that Mr Herron should be excused and his previous answers excluded by reason of s 135 was the primary judge’s ruling about s 17.

The objection was overruled.

On 3 August 2020, an objection was taken to continued cross-examination of Mr Herron about a report he was cross-examined on at the Royal Commission. The objection included s 135.

The primary judge allowed the question.

387    Dr Gill submitted it is notorious that a person is required to give answers and produce documents to a Royal Commission without any of the rules of evidence or other strictures that protect persons in adversarial curial proceedings and that at the relevant time, Mr Herron and Dr Gill gave answers and produced documents within a legal environment that prevented that evidence from being admitted against them in future proceedings. Dr Gill points to the fact that the evidence was then maintained and stored under the Archives Act 1960 (NSW) and State Records Act 1998 (NSW) and existed to be adduced into evidence by the publishers only because it was compelled and stored in the outworking of a carefully calibrated legislative regime having as one of its central integers the protection in s 17(2) of the Royal Commissions Act. The nature of this procedural or systemic unfairness is said to be clearly demonstrated for three reasons: first, the protection applied in the Federal Court for many years after the evidence was generated and stored, until the enactment of the Evidence Act in 1995; secondly, the evidence was generated at a time when memories had already faded and other documents were not then available; and thirdly, the publishers obtained the evidence more than 30 years later when memories had faded further, and yet more documents had become unavailable.

388    Despite the agreed note stating that it relates to “the evidence at trial which was subject to an objection based on s 17(2) of the [Royal Commissions Act] and also subject to an objection based on s 135 or involved a limitation under s 136 of the [Evidence Act]”, it is not entirely clear the precise material in respect of which a limitation under s 136 was actually articulated (apart from those noted in the table at [386]). Instead, it appears that an omnibus s 136 limitation is now sought as a fall back submission to an unsuccessful s 135 objection, in that the Royal Commission Material should have been limited to exclude any use for the defence of justification under s 25 Defamation Act, credit and damages. This is an unsatisfactory state of affairs.

389    As should already be apparent, one cannot deal with arguments as to discretionary exclusion or a discretionary limitation in the abstract. Any discretion to exclude or limit evidence under ss 135 or 136 is a fact dependent exercise in respect of each aspect of the Royal Commission Material sought to be adduced and the questioning in respect of the Royal Commission Material (of which there are over 40 documents and countless pages of transcript). On appeal, error must be shown in how the primary judge approached the exercise of exclusion or limitation in relation to the specified Royal Commission Material. This task has not been attempted except in the most general way by asserting the primary judge did not take into account the legislative intention of the New South Wales Parliament for Royal Commission documents and testimony not to be able to be adduced in defamation proceedings.

390    Even if a specific error or errors were established, and although no doubt rulings on one representation contained in a document or a question would likely inform the approach to be taken to others, it is unrealistic for a Full Court to engage in an exercise of any discretion now in advance of any retrial. This is not only for the reason that it would be dangerous to make discretionary judgments on questions of exclusion or limitation without full argument, but also because any discretion would need to be exercised in accordance with s 192 of the Evidence Act. That section provides:

192    Leave, permission or direction may be given on terms

(1)    If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2)     Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a)     the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b)     the extent to which to do so would be unfair to a party or to a witness; and

(c)     the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d)     the nature of the proceeding; and

(e)     the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

(Emphasis added).

391    It is accepted that the terms “leave, permission or direction” in s 192 carry a broad meaning and encompass an order or direction to admit or exclude evidence: see Australian Securities and Investments Commission v Rich [2006] NSWSC 643; (2006) 201 FLR 207 (at 210 [9] per Austin J); Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 2) [2007] FCA 121; (2007) 157 FCR 310 (at 311–312 [7]–[8] per Jacobson J). Further, the use of the terms “is to take into account” dictate that these considerations in s 192(2) are mandatory. We have little to no idea as to, for example, the extent to which admitting certain representations would be likely to add unduly to, or to shorten, the length of the hearing or, without detailed submissions, the importance of aspects of the Royal Commission Material (at the extremes such judgments may be easy, but without understanding the mosaic of the evidence admitted, it might be very difficult to assess whether some representations contained in a document may be the only evidence of a significant fact, or corroborative of other evidence, or of little importance at all).

392    For example, the approach a trial judge may take to the exercise of a discretion in not excluding or limiting the use of a Royal Commission document, which confirms the attendance of a doctor at a particular time (which might be a conclusion that might otherwise be inferred from other less direct evidence), might be very different to the approach taken to other evidence, such as:

(1)    an answer from Mr Herron as to the probable cause of death of patients at Chelmsford given at the Royal Commission (see J [499]), which was adduced at the end of a 29 day examination, not subject to the rules of evidence, where there was no ability to object to a question, and where it was not possible for Mr Herron in 2020 to identify how the absence of the rules of evidence may have unfairly affected his answer; or

(2)    financial records produced by Mr Herron to the Royal Commission (see J [747]), being material available only because it was preserved through a compulsory process, in circumstances where memories have faded and other potentially exculpatory documents may no be longer available.

393    Given the need for a retrial, it is unnecessary and inappropriate to express a concluded view as to how one should approach the task of discretionary exclusion or limitation in respect of particular aspects of the Royal Commission Material.

394    For completeness, and for much the same reasons, it is also unnecessary to address the argument raised orally by senior counsel for Dr Gill that the Royal Commission Material ought to be excluded in accordance with s 130 of the Evidence Act.

C    GROUND 4: SUBSTANTIAL TRUTH

395    Ground 4 of the notice of appeal is an attack upon the primary judge’s conclusions in respect of the issue of substantial truth, relying essentially on the assertion that her Honour’s conclusions were infected by admitting and relying on evidence which ought to have been excluded or limited or, alternatively, giving significant weight to evidence that should have been accorded little or no weight.

396    While it will be necessary to descend into the detail below, as a general overview, and with some degree of oversimplification, it was said that her Honour erred in finding that each of the pleaded imputations was substantially true by reason of the following:

(1)    admitting, or alternatively, not excluding or limiting the Royal Commission Material, repeating the reasoning in Grounds 1 and 1A (Ground 4(a));

(2)    having regard to evidence admitted over objection regarding unparticularised patients that fell outside the particularised case (Ground 4(b)):

(3)    admitting the transcript from the Royal Commission of the evidence of unavailable witnesses pursuant to notices under s 67 of the Evidence Act, when the previous representations relied upon were only identified in the notice by annexing the entirety of the transcript (Ground 4(c));

(4)    admitting over objection and relying upon expert reports from unavailable witnesses that were prepared over 30 years before the proceeding, were not prepared in accordance with the Federal Court Rules 2011 (Cth) (FCR) or modern codes of conduct for expert witnesses and did not adhere to s 79 of the Evidence Act (Ground 4(d));

(5)    admitting over objection and relying upon the evidence of various experts in circumstances where their reports were not capable of permitting the Court to answer the question posited in s 79 of the Evidence Act for admissibility, did not meet the formal requirements of the FCR, and suffered other alleged deficiencies, along with making findings consequential upon the acceptance of this evidence (Grounds 4(e)–(m));

(6)    accepting as credible the evidence of past patients (or relatives of past patients) where their evidence was contradicted by the contemporaneous medical records (Ground 4(n)); and

(7)    making various findings on the admitted evidence that were not reasonably open even accepting the admitted evidence was reliable and probative (Ground 4(o)).

397    Some, but not all, of these grounds overlap, or at least are closely connected. As the argument was developed and refined in the course of oral submissions, the contention primarily emphasised became that the primary judge fell into error in giving significant weight to evidence of opinion that should have been rejected or excluded or, if accepted, was evidence so lacking in probative value that it should not have been used as it was by the primary judge in the resolution of the defence of substantial truth.

C.1    The relevant principles applicable to appellate review

398    As one embarks upon an examination of the material relating to this ground of appeal, two foundational principles applicable to appellate review ought to be borne in mind.

399    First, it is trite to observe that in relation to findings of fact, although appellate courts are “obliged to conduct a real review of the trial”, which requires that they engage in “weighing conflicting evidence and drawing [their] own inferences and conclusions”, they “should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 126–127 [25] per Gleeson CJ, Gummow and Kirby JJ).

400    Indeed, as explained in Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 (at 148–149 [55] per Bell, Gageler, Nettle and Edelman JJ):

Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.

(Citations omitted).

401    Secondly, in relation to discretionary decisions made by the primary judge, it is similarly trite to observe, as Dixon, Evatt and McTiernan JJ stated in House v King (1936) 55 CLR 499, that to succeed on appeal, it must appear that an error has been made in exercising the discretion, such as if the judge acts upon a wrong principle, if they allow extraneous or irrelevant matters to guide or affect them, if they mistake the facts, or if they omit to consider a material consideration.

C.2    The relevant chronology

402    In order to contextualise all of Ground 4, it is necessary to pay some attention to the steps that occurred in the lead up to the trial. What follows is a chronology, largely agreed, with respect to these events.

Date

Event

1 February 2019

The publishers file defences.

21 February 2019

The applicants request particulars.

11 March 2019

The publishers respond to request for particulars.

2 July 2019

A case management hearing is conducted before the primary judge and the following orders are made:

1.    On or before 24 September 2019, the Respondents serve:

a.    any affidavit evidence on which they rely;

b.    any expert evidence on which they rely;

c.    a bundle of pre-trial documents on which they intend to rely at hearing; and

d.    any notices pursuant to s 126K of the Evidence Act 1995 on which they seek to rely.

24 September 2019

The publishers serve: seven affidavits; four expert reports; 10 volumes of notices pursuant to s 67 of the Evidence Act; transcripts given by Ms Fawdry and Ms Smith; notice of a further expert report (Professor Hickie) and two further affidavits; and a bundle of documents.

A letter is also provided which states “our client reserves the right to rely on further documents at the hearing”.

4 October 2019

The publishers serve two further affidavits and withdraw five notices issued pursuant to s 67 of the Evidence Act.

11 October 2019

The publishers serve a further expert report of Professor Hickie.

15 October 2019

The primary judge makes the following orders:

1.    On or before 28 February 2020, the Applicant is to serve:

a.    any affidavit evidence in reply on which they rely;

b.    any expert evidence in reply on which they rely; and

c.    a bundle of pre-trial documents on which they intend to rely at hearing.

2.    The proceeding be listed for hearing for 6 weeks in 2020 in consultation with the parties.

3.    The proceeding be listed for a further case management hearing at 9:30am on 24 March 2020.

4.    All evidence which has been served is to be filed.

20 December 2019

The applicants request names of persons for whom pseudonyms are used in the defence.

The applicants write to the publishers noting the volume of the evidence served, that no steps have been taken to identify specific representations within the documentary evidence which are relevant to the issues in dispute, that the approach adopted by the publishers is productive of unfairness to the applicants and that the position is as follows:

Our position is that the issues in dispute are strictly limited by the pleadings. Our clients’ evidence will be responsive to the particulars in the Defence, not to some broader or different case which may be hidden within the voluminous material which has been served.

14 January 2020

The publishers identify all but ten of the persons referred to by a pseudonym in their defence.

31 January 2020

The applicants swear and serve affidavits.

12 February 2020

The publishers identify the remaining 10 persons referred to by a pseudonym in their defence.

14 February 2020

The applicants serve notices pursuant to s 67 of the Evidence Act and a list of documents advising:

The respondents’ “tender bundle” presently comprises every document obtained by the respondents under subpoena. This does not put our clients on notice of the documents that the respondents in fact seek to tender. We require you to urgently produce a list of the actual documents that will be sought to be put into evidence.

The respondents’ tender bundle includes many documents that appear to have no relation to the pleaded and particularised case. We have not sought to respond to any evidence that falls outside of the particulars. We will be objecting to all evidence in that category.

31 March 2020

A case management hearing is conducted before the primary judge where, relevantly, the following orders are made:

1.    On or before 24 April 2020 Respondents to serve an index proposed tender bundle together with an electronic copy;

2.    On or before 8 May 2020, the Applicants serve an index to their proposed tender bundle, together with an electronic copy of the documents therein.

7. On or before 22 May 2020 the parties are to exchange objections to evidence, including in respect of the documents within the proposed tender bundles and counsel confer with a view to narrowing or resolving those objections.

16 April 2020

The publishers serve an additional notice pursuant to s 67 of the Evidence Act and additional pages to two hearsay notices which had been inadvertently omitted previously.

24 April 2020

The publishers serve a tender bundle with documents not previously served and a table spanning over 90 pages linking documents and hearsay notices to particulars.

The applicants notify the publishers that most of the documents in the tender bundle fall outside their clients’ particulars.

27 April 2020

The publishers provide a letter which:

    states that the vast majority of the documents in the tender bundle have either been previously served or were produced pursuant to a subpoena in the proceedings;

    identifies four categories of documents in the tender bundle not previously served and not obtained under subpoena; and

    gives notice of the publishers’ intention to tender the entire Royal Commission transcript for fair report.

30 April 2020

The applicants notify the publishers that they will object to all evidence outside the particularised case regardless of the table served on 24 April 2020.

1 May 2020

The publishers note the applicants’ objection based on particulars and:

    identify the 92 documents in the tender bundle which were served after September 2019;

    state that the applicants’ impression that what was served in September 2019 was the tender bundle was not the publishers’ responsibility;

    note that the tender bundle contains significantly fewer documents than those served in September 2019; and

    state: “If you wish to approach the Court in respect of this matter, we would be grateful if you could liaise with us about the availability of respective counsel.”

6 May 2020

The applicants reconfirm their intention to hold the publishers to their particularised case.

11 May 2020

The publishers add documents to the tender bundle.

14 May 2020

The applicants serve an index to the applicants’ tender bundle.

18 May 2020

The publishers serve six additional notices pursuant to s 67 of the Evidence Act for unavailable expert witnesses, relating to material which had been served in September 2019.

The publishers serve a further two tables that were almost 300 pages in length, identifying representations and pages of hearsay notices and linking the representations to particulars.

The publishers inform the applicants that State Archives have located documents relating to John Adams, and will provide them as soon as they are received from State Archives. The publishers note that they expected to tender some or all of those documents.

19 May 2020

The publishers serve an updated version of one of the tables from the previous day correcting formatting/page numbers.

The applicants reconfirm their intention to hold the publishers to their particularised case.

21 May 2020

The publishers serve an additional notice pursuant to s 67 of the Evidence Act in relation to Dr Barclay.

22 May 2020

The applicants serve objections to the publishers’ affidavits and notices issued pursuant to s 67 of the Evidence Act, including on basis that they fall outside the particulars.

The publishers serve their objections to affidavits.

24 May 2020

The applicants serve objections to the publishers’ documents and expert evidence including on basis that they are outside the particulars.

1 June 2020

The trial commences, including the cross-examination of Dr Gill.

The publishers are provided with the documents relating to John Adams from the State Archives.

2 June 2020

The publishers notify the applicants of documents which they seek to tender relating to, among other persons, Mr John Adams and Mr Barry Green.

3 June 2020

The applicants request identification of issues to which medical records of Mr Green relate.

3 June 2020

The publishers identify paragraphs of truth particulars to which medical records of Mr Green relate.

4 June 2020

Counsel for the publishers cross-examines Dr Gill on Mr Green and an objection is taken, but the cross-examination is allowed with position reserved.

11 June 2020

The primary judge rules that patient records tendered to prove general allegations can be admitted, and the parties agree that this ruling applies to other unparticularised patients including Mr Green.

C.3    Ground 4(a): The Royal Commission Material

403    I have already dealt with Ground 4(a) above in the course of addressing Grounds 1 and 1A.

C.4    Ground 4(b): The unparticularised patients

404    Dr Gill submitted the primary judge erred in admitting and relying on evidence in respect of patients treated at Chelmsford who were not particularised in the publishers’ defence. It is said that the publishers relied upon evidence (both medical records and hearsay notices) that went well beyond the patients identified in their defence as “case studies” who suffered adverse outcomes during their treatment and other patients who are said to have not consented (or provided informed consent) to the treatment they received at Chelmsford.

405    It is well established that particulars supporting a defence of justification must satisfy two requirements: first, they must be responsive to the pleaded imputations, that is, capable of proving the substantial truth of the imputations; and secondly, they must be sufficiently specific and precise to give the applicant proper notice of the case which will be made against them: see Lord Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25 (at [49] per Pill LJ and Sharp J). Indeed, it is often repeated, almost mantra-like, by those acting for applicants, that a defence of justification (or contextual truth) must be particularised “with the same precision as in an indictment”: see Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473 (at 483 [52] per Wigney J). This requirement speaks to the specificity and precision of the particulars rather than the amount of detail which must be provided, just as a criminal indictment must identify with specificity each element of the offence with which the accused is charged: Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 (at [12] per McCallum J).

406    But the requirement to put the opposing side on notice of the case they are required to meet must be seen in the light of the context of the dispute between the parties – an allegation of a want of particularisation is, after all, a complaint about procedural fairness. In order to give context to this ground of appeal, it is necessary to hone in on a key aspect of the chronology.

407    On 21 February 2019, an email was sent from the solicitors for Mr Herron and Dr Gill to the solicitors for the publishers, which relevantly stated:

We refer to the Defence filed on 1 February 2019.

3    In relation to the particulars of Truth and Contextual truth - they, on the most part, are not proper particulars, lack specificity and are largely argumentative.

4     For example many particulars in Parts 1, 2, 3 and 4 of the particulars refer to unnamed patients. We request, in relation to each particular in which a “patient” or “patients” are referred that you provide the names of those patients. Without knowing these details our client cannot know the case that he has to meet.

(Emphasis added, italics in original).

408    The response received from the publishers’ solicitors on 11 March 2019 set out a range of particulars in respect of alleged deficiencies (spanning some nine pages) but, in respect of points three and four identified above, stated:

As to your paragraphs 3 and 4, we do not agree there is any deficiency in the particulars. The particulars at Sections l-4 make allegations about the general practice of the Applicants as doctors at Chelmsford Hospital. There will be evidence of that general practice, in particular from nurses and medical staff including doctors at the hospital, as well as documentary evidence. Sections 5 and 6 then deal with a number of specific patients as more detailed case studies. In a case involving the treatment of more than a thousand patients over many years this is an entirely orthodox way to proceed. You have not identified any non-compliance with the Rules nor have you identified any specific prejudice arising. The particulars clearly put your clients on notice of the case they have to meet.

(Emphasis added).

409    From this date onwards, there was a live dispute as to whether the particulars were sufficient.

410    As the chronology above reveals, the issue as to proper particularisation re-emerged on 20 December 2019, when Mr Herron and Dr Gill wrote to the publishers stating, relevantly:

2    The volume of evidence served by the respondents is very significant, and you have notified us that the respondents may tender any or all of the documents your clients have obtained under subpoena from the Royal Commission and other sources.

4    Given the nature of the imputations against our clients and the issues in dispute, the length of time which has passed since the events in question, and the volume of material which has been served, we consider that your clients’ approach to the service of their evidence is not consistent with their obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 and is productive of real unfairness to our clients.

5    Our position is that the issues in dispute are strictly limited by the pleadings. Our clients’ evidence will be responsive to the particulars in the Defence, not to some broader or different case which may be hidden within the voluminous material which has been served.

6     We put you on notice that we will object to the tender of any evidence which falls outside the scope of your clients’ particularised Defence. We will rely on this letter in any future dispute as to the admissibility of your clients’ evidence and the scope of their justification defence.

411    No response was received in reply to this letter from the publishers. Dr Gill submitted that this is of significance given Mr Herron and Dr Gill then went into evidence seeking to respond to the allegations (as they saw them) made in the defences (the affidavits containing the evidence-in-chief being served on 31 January 2020).

412    What then followed might be described as a number of “document dumps” by the publishers in the weeks leading up to the commencement of the trial (in saying this, the parties were placed in the unfortunate situation of having to trawl through the depths of a suburban basement to access archived documents). This is borne out by the chronology above, which reveals that between 24 April 2020 and 6 May 2020, material dribbled from the publishers to Mr Herron and Dr Gill and the issue about the insufficiency of particularisation was reaffirmed.

413    What is important to note, however, is that despite this state of affairs, Mr Herron and Dr Gill took no active steps prior to the trial to inform the primary judge of this disagreement as to the adequacy of particularisation or the disconformity between the case particularised and what was proposed to be tendered. Instead, comfort seems to have been taken in repeating the assertion that objection will be taken at the trial to documents if they fall outside the particulars.

414    It was only on the fourth day of the trial that the issue was brought into focus when senior counsel for Mr Herron and Dr Gill objected to the cross-examination of Dr Gill in respect of Mr Green, a patient who had not been particularised in the publishers’ defence. The objection was ultimately deferred.

415    On the eighth day of the trial, when the issue was again ventilated, submissions were made on the issue and her Honour made the following ruling (which, although directed to the issue of the fraud allegation, both parties accepted also relates more broadly to the allegation as to a lack of particularisation of patients):

HER HONOUR: … In my view, there is sufficient particularisation of the allegation of fraud in the sense that it is a straightforward allegation that between two periods of time, Dr Herron, as he was, was charging patients for an anaesthetic treatment accompanying ECT when no anaesthetic was administered. What’s missing from the particulars is identification of the patients who were charged, and while it can be said, with the benefit of hindsight, that the pleading is inadequate in this respect, it was always clear from the correspondence from the respondents that the respondents did not consider that they had to provide the names of patients in this regard, and no application was made by the applicant to strike out the pleading.

Rather, the applicants … have waited until the hearing … to allege that documentary evidence in support of the particular cannot be relied upon because of the inadequacy of the particular. It seems to me that it was incumbent upon the applicants to move to either obtain an order for further particularisation or to strike out the particular on the basis of the inadequacy at a much earlier time.

(Emphasis added).

416    It appears there was an agreement that this ruling had a cascading effect, with the issue as to whether evidence relating to unparticularised patients was admissible “agreed to stand or fall with this ruling”. That is, the evidence in respect of unparticularised patients was taken to be admissible.

417    Further, in addressing directly an objection as to the admissibility of the medical records of an “unparticularised patient” and an assertion by Mr Herron and Dr Gill that the effect of the letter of 11 March 2019 was to limit the “case studies” to those identified in sections 5 and 6 of the defence and “in those circumstances, no application [for further particularisation or to strike out the particulars] could be successful or forthcoming”, her Honour said:

I’m not sure I can read the letter in the same way as the applicants have read it, given the answer in relation to 3 and 4 and the fact that no further particulars were sought of paragraphs, such as 2.9, and in particular, it was not sought to identify the patients said to have experienced the distressing side effects or serious after effects. And I cannot see, given the nature of the documents in question which are the hospital records themselves, that there is any real prejudice to the applicants arising from the admission of these materials which are said by the respondents to support particularised allegations against the applicants. And accordingly, I will admit the document.

418    As the publishers correctly observe, any error of the primary judge cannot be identified by some failure to apply the strictures of the rules relating to pleadings and particulars. That is because her Honour’s ruling (extracted above at [415]) is caveated with the acceptance that “it can be said, with the benefit of hindsight, that the pleading is inadequate”. The ruling related to a matter of discretion and, unless there is an error of the kind identified in House v King, then any attack on the exercise of that discretion should fail.

419    In my view, no such error is established. There are three reasons for this conclusion. First, it was open to find that the publishers were not sitting on the evidence of Mr Green and purposefully did not inform Mr Herron and Dr Gill that he may be the subject of questioning: it appears from the chronology that the documents relating to Mr Green were only provided to the publishers by the State Archives shortly before Dr Gill’s cross-examination (and were promptly handed over to the solicitors for Mr Herron and Dr Gill). This is simply a reflection of the vicissitudes of this type of litigation involving events occurring long ago and where apparently relevant historical documentary material was stored in less than readily accessible archives. Secondly, there is no reason to doubt that it was open for her Honour to conclude that in the circumstances no “real prejudice to the applicants arising from the admission” of the materials was established by Mr Herron and Dr Gill. Thirdly, and more importantly, the primary judge was right to point out that, given the parties remained in contest as to the adequacy of the pleadings, more was needed than, in effect, relying on objections being taken at trial as to the scope of the case.

420    This Court runs a docket system. One advantage of such a system is that the judge case managing the case will usually be the trial judge, and there is every opportunity of raising matters relevant to the conduct of the trial with the presiding judge promptly, and in advance of the final hearing. If a dispute arises as to the ambit of the case and there is an apparent asymmetry of understanding between the parties, the days have long passed where it is appropriate (if it ever was) to simply put a stake in the ground and say objection will be taken at trial. An issue as to the ambit of the case requires resolution and for symmetry to be restored, perhaps by requiring the provision of further particulars or an amendment to pleadings, or for such a resolution to be refused and it being made plain, in advance of trial, that foreshadowed evidence will not be admissible as it falls outside the permissible ambit of the case. The present dispute was identified and joined in advance of trial and, consistently with the dictates of Pt VB of the Federal Court of Australia Act 1976 (Cth), Mr Herron and Dr Gill should have pressed to bring these matters to a head before the docket judge and have them resolved. Modern case management imperatives mean it was insufficient for Mr Herron and Dr Gill to sit tight and simply assume that their characterisation of the pleading and the scope of the case, which was being put in contest, would find favour at the hearing.

421    No error is established by Ground 4(b).

C.5    Ground 4(c): The Royal Commission transcripts

422    Dr Gill submitted the primary judge erred in admitting, over objection, the transcript from the Royal Commission of the evidence of unavailable witnesses pursuant to notices purportedly made in accordance with s 67 of the Evidence Act, whereby the previous representations relied upon where only identified by annexing the entirety of the transcript (s 67 Notices).

423    Once again, it is necessary to focus on some aspects of the chronology to give context to the way in which this ground of appeal is advanced.

424    On 24 September 2019, the publishers served a first tranche of over 150 s 67 Notices. On 4 October 2019, the publishers’ solicitors gave notice that a small number of the s 67 Notices were no longer relied upon. On 20 December 2019, the solicitors for Mr Herron and Dr Gill wrote to the publishers’ solicitors noting that the volume of evidence served was significant and that:

… in serving this evidence, your clients have taken no steps to identify specific representations within the documentary evidence which are relevant to the issues in dispute (as defined by the pleadings), and which are not otherwise objectionable as second or third-hand hearsay, opinion etc.

425    On 31 March 2020, the publishers were ordered to file and serve their pre-trial bundle by 24 April 2020. Over the course of April 2020, the publishers served further s 67 Notices.

426    On 24 April 2020, the publishers’ solicitors replied to the letter of 20 December 2019, attaching a table identifying specific particulars in the defence to which each of the s 67 Notices then served was said to be relevant (April 2020 Table). Importantly, however, the publishers’ letter stated the following in respect of the April 2020 Table:

To assist with considering the material, and without limiting our clients’ position in any way in respect of how the Documents and Notices may be used at hearing, attached are two tables setting out specific truth particulars in our clients’ defence to which each of the Documents and Notices are relevant.

427    On 30 April 2020, the solicitors for Mr Herron and Dr Gill wrote to the solicitors for the publishers noting the previous complaints and described the table provided as disingenuous.

428    On 18 May 2020 and 21 May 2020, the publishers served two further tranches of s 67 Notices.

429    Also on 18 May 2020, the publishers’ solicitors sent a letter to the solicitors for Mr Herron and Dr Gill with a table, spanning over 300 pages, identifying specific particulars in the defence to which each of the s 67 Notices was said to be relevant and highlighted representations in the documents the subject of the s 67 Notices (May 2020 Table):

We refer to our letter dated 24 April 2020 by which we provided you with two tables which identified particulars in our clients’ defences to which particular documents and hearsay notices would be relevant. In order to provide you with further assistance to identify the relevant parts of both types of document, we enclose tables in a similar form, but with the following changes:

1)    An additional column is included, which identifies the parts of the document upon which the Respondents rely, by reference to the page number of the document.

2)    Some minor typographical errors are addressed – those are included in markup.

3)    Some additional particulars are identified for some documents. Those rows are highlighted.

4)    The addition of those further documents included in the amended tender bundle index served on 11 May 2020. Those rows are also highlighted.

As you know, we are not obliged, by court order or otherwise, to provide you with this information. However, we have done this so as to assist you. For that reason, the tables are not intended to provide some form of limitation of the uses to which the documents can be put. Rather, they are provided to assist in identifying the parts of the documents which are relevant.

(Emphasis added).

430    Using Mr Barry Hart as an example, the table set out over three pages of representations. Some of those representations had a degree of specificity, such as:

Individual

Particular

Details

Barry Francis Hart

See Chelmsford notes for Barry Hart at MED00094 and MED00095 and his Hornsby Hospital notes at MED00096

1.1.24B

The following representation on pg. 21:

“Dr Frank Smith, when I rang him in Wollongong, suggested I contact Dr Herron at the North Ryde Psychiatric Centre”

“I cannot remember if Dr Smith gave me Dr Herron’s telephone number or told me to ring the North Ryde Psychiatric Centre, but I rang Dr Herron at that centre”

The following representation on pg. 629:

“I rang up Dr. Frank Smith and he suggested that I ring I ring Dr. Herron He said “you can contact Dr. Herron at the Ryde Psychiatric Hospital””

The following representations on pg. 630:

“... I rang up Dr. Herron ... At Ryde Psychiatric Hospital.”

“So I rang him at the Ryde Psychiatric Hospital and I spoke to him briefly on the telephone for about one minute, I said “Dr Herron””

431    Others were far more opaque and nebulous, such as:

Individual

Particular

Details

[Barry Hart continued]

5.8.10

The representations made on pg. 31, 651–652

5.8.11

The representations made on pg. 31–32, 651–653

5.8.12

The representations made on pg. 33–37, 654–657, 720–752

5.8.13

The representations made on pg. 37–38, 256, 723–728

432    On 1 June 2020, Mr Herron and Dr Gill opened their case and foreshadowed objections to the 67 Notices. On 10 June 2020, the publishers’ solicitors indicated that a number of those s 67 Notices were no longer relied upon (indeed, a little under half of the notices were ultimately relied upon).

The terms of the statute

433    In seeking to have the representations contained in their s 67 Notices admitted, the publishers relied on s 63(2) of the Evidence Act. That section, and s 63(1) provides:

63    Exception: civil proceedings if maker not available

(1)    This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)    The hearsay rule does not apply to:

(a)    evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b)    a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

434    The exception in s 63(2) only applies to “first-hand hearsay”; that is, evidence of previous representations made by persons who had personal knowledge of an asserted fact: see s 62(1). When a party seeks to adduce evidence of a previous representation pursuant to63(2), notice must be given in accordance with s 67. Pursuant to s 67(2), a notice must comply with requirements specified in any regulations or rules of a court made for the purposes of the section.

435    Relevantly, cl 6 of the Evidence Regulations 2018 (Cth) was made for the purposes of s 67, and provides:

6    Exceptions to hearsay rulenotices of previous representations

(1)    This section is made for the purposes of section 67 of the Act.

(2)    A notice of previous representation must state:

(a)    subject to subsection (6), the substance of evidence of a previous representation that the notifying party intends to adduce; and

(b)    the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party; and

(c)    particulars of:

(i)    the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made; and

(ii)    the names of the persons by whom, and the persons to whom, each of those representations was made; and

(iii)    in a civil proceedingthe address of each person so named; so far as they are known to the notifying party.

(3)    If a notifying party intends to rely on any of paragraphs 63(2)(a) or (b) … of the Act, the party’s notice of a previous representation must state particulars of the facts on the basis of which it is alleged that the person who made the representation referred to in the notice is not available to testify concerning the fact to be proved by adducing evidence of that representation.

    

(5)     If a notice of previous representation refers to a previous representation that is in writing:

(a)     a copy of the document, or of the relevant portion of the document, containing the representation must be attached to the notice; and

(b)     the notice must identify the document unless:

(i)     a copy of the document is attached to the notice; and

(ii)     the identity of the document is apparent on the face of the copy.

(6)    Where a copy of a document, or of a portion of a document, is attached to a notice it is sufficient compliance for the purposes of paragraph (2)(a) to specify in the notice, or in the copy of a document or portion of a document attached to the notice, the representation evidence of which the notifying party intends to adduce.

436    Further, the Evidence Act, Pt 2, cl 6 of the Dictionary provides that a representation contained in a document is taken to have been made by a person if: (a) the document was written, made or otherwise produced by the person; or (b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

437    The formal requirements for notices issued pursuant to s 67 of the Evidence Act, as specified by the Regulations, are mandatory rules, non-compliance with which renders the notice invalid and the evidence of previous representations sought to be admitted under s 63(2) inadmissible: see, similarly, Nichia Corporation v Arrow Electronics Australia Pty Ltd (No 3) [2016] FCA 466; (2016) 240 FCR 13 (at 17–18 [18]–[19] per Yates J), citing Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903; (2000) 181 ALR 108 (at 113 [22] per Heerey J).

The primary judge’s reasoning

438    Pragmatically, as occurred in respect of a number of evidentiary rulings made by the primary judge, so-called “representative rulings” were made with respect to admissibility of the evidence the subject of the s 67 Notices, which the parties then sensibly agreed would be determinative of a range of objections that fell within the same or a similar class.

439    The first representative ruling was made with respect to the hearsay notice concerning Mr Hart. While lengthy, it is convenient to set out the relevant section of the transcript below dealing with this objection:

MR D’ARVILLE: So, in my submission, your Honour, if your Honour was not satisfied that the regulation had initially been complied with, just as his Honour Lindgren J entertained the prospect of a way of addressing the formality with the formal difficulty, in my submission, that was done prior to the trial and the … applicants were given sufficient notice of those matters. It may be that during the course of a hearing, like in any hearing, matters arise which would require reference to other parts of the evidence. But that can only be evaluated as the trial goes on, just like with a lengthy affidavit. For all those reasons, your Honour, I would submit that the representations were properly identified.

And just dealing with the matter that my friend mentioned, along the lines that if the representations had been identified, then perhaps further evidence would have been served. The centrality of Mr Hart in these proceedings means that, in my submission, whatever the case, the applicants were going to be reading all of the document for the purpose of cross-examination, for the purposes of understanding Mr Hart’s evidence as a whole. And so there can be no real prejudice in circumstances where the allegations are contained in the statement of claim. And, to the extent that Mr Hart’s evidence went to them and there was evidence that the applicants could serve, they would have done so. So, in my submission, that prejudice point falls away. So, for those reasons, your Honour, in my submission, the notice should be admitted and not rejected on the basis that the representations were not identified.

MR DEAN: Your Honour … what has been described as notice before the hearing was expressly made in terms of, “We don’t limit ourselves.” So there was no suggestion that, “This is what we’re going to rely upon, but we reserve our right to give you further notice of additional representations that might arise, because of the evidence in the proceeding.” It was done on a, “We reserve regardless to rely on anything.” So there’s no real notice of particular representations have been given.

The suggestion that any of the 900 pages could rationally be relevant to an issue in the proceeding, if your Honour even skim reads part of the 900 pages, would be aware that is just not the case. Mr Hart had a multitude of complaints against a multitude of bodies over numerous years completely unrelated to his treatment and experiences at Chelmsford. … [T]he suggestion that there would ever be an affidavit that is almost 1000 pages adduced in any proceeding, I cannot imagine that. This is an extraordinary notice and extraordinary volume where while he is central to this proceedings, the admissible evidence that Mr Hart could give if he was to be called to give a witness would be of a very, very narrow scope. …

HER HONOUR: All right. I accept Mr D’Arville’s submissions that given the centrality of this witness combined with the notice that was given on [18 May 2020], even though it was not said to be confined, seems to me to be sufficient to have put the applicants on notice of the focus the evidence of Mr Hart, which is said to be relied upon. And in circumstances where he is clearly unavailable and notice has been given, I’m minded to admit the evidence.

(Ruling emphasised).

440    The second representative ruling was made in respect of the evidence of Ms Ray, the owner and Matron of St Anne’s Hospital, which was a private hospital at which Mr Herron performed a form of sedation treatment prior to Chelmsford:

MR DEAN: … [The transcript concerning Ms Ray is] 116 pages of mostly irrelevant material replete with second-hand hearsay and opinions. Our submission is that also in relation to this document, the formal requirements have not been identified. 116 pages of a peripherally relevant if not irrelevant witness is just – it’s not reasonable notice and addition, given the peripheral irrelevance of this witness there’s an undue waste of time in relation to both the court and the applicants having to deal with the hearsay notice of this length.

MR D’ARVILLE: Your Honour, I repeat what I said about Mr Hart in respect of the identification, i.e. they’re the same letter and table provided in identification of the matters upon which the respondents relied. That’s at correspondence 1, page 300. I accept that this witness is less central to the proceedings than Mr Hart, but her evidence is that she was previously an owner of a private hospital at Woollahra where Dr Bailey used to practice prior to Chelmsford. The transcript of her evidence at the Royal Commission provided some description of the treatment that was carried out there and evidence of why she no longer allowed Dr Bailey to continue practicing there including because she thought it was too dangerous.

That’s relevant not only to understanding the practices that Dr Bailey and also Dr Herron took over to Chelmsford, but the question of whether the owner of a hospital, who herself was a nurse in that case, whether the owner of a hospital has the ability to stop a medical practitioner from carrying out a particular procedure at a hospital. That’s a matter which I understand to be in dispute as far as the applicants are concerned. Again, I accept that there’s much in the transcript which is not relevant. Again, I say that’s not unusual and just to pick up the fact that you don’t see affidavits this long. That’s not a consequence of someone drafting an affidavit, this time around. This is the form in which the evidence comes and in my submission it is far more helpful to your Honour, and for the applicants, to have it there, to make what submissions are needed about it and for the issues to be crystali[s]ed in the usual way.

HER HONOUR: Anything else, Mr Dean?

MR DEAN: Your Honour, if the representations were properly identified then – because there’s a real issue in relation to this witness’ credit and what this witness has to say about those matters that your Honour has – that Mr D’Arville has identified. Where this evidence was given, for the first time, 26 years after the event and there was a reference … [to] an interview with some police officers in October of last year.

HER HONOUR: Yes.

MR DEAN: Now, that’s a previous representation of which the respondents were of notice of that is not either identified in the notice or, except by this reference in the transcript itself, and it does not form part of the hearsay notice. There would be a real question in terms of and the cross-examination that occurs as to this particular witness’ credit as to the reliability of any representation that this particular witness made, but, it’s a real issue where what, in fact, this witness is being relied upon for has never been identified in a way that the respondents are limited to that. They want to put in 116 pages and then deploy it as they want to at a later stage.

Now, there may very well have been certain representations from Ms Ray and there might be an argument in relation to Mr Hart, that what Mr Hart has being saying has been known, at least to Dr Herron for a lengthy period of time. But in relation to Ms Ray, these allegations from Ms Ray are not pleaded. Allegations of Ms Ray are not specifically identified in this notice. It may very well have been, before he was indisposed, that Dr Herron wanted to specifically reply to some of these very serious allegations that are made, particularly in relation to Dr Bailey, but inferentially to Dr Herron and, in my submission, given this is one of 160 notices of a very peripheral player there’s just not reasonable notice to the applicants.

HER HONOUR: No. Given the document that was served in [May 2020] I consider that the evidence should be admitted.

(Ruling emphasised).

441    While there was some dispute as to whether her Honour was accepting that notice was properly given in accordance with s 67 or was exercising a discretion waiving the requirements for notice, when the whole of the exchange is appreciated, it is unrealistic to conclude that her Honour was of the view that proper notice had been given. So much is clear from the fact that her Honour was accepting the submission of junior counsel for the publishers that if her Honour “was not satisfied that the regulation had initially been complied with … the applicants were given sufficient notice of those matters”: see above at [439]. Indeed, while her Honour may not have explicitly stated she was applying the discretion in s 67(4) of the Evidence Act (or considered the matters in s 192 of the Evidence Act, which follow as a necessary consequence), the fact that her Honour took into account the combined effect of the centrality of the witnesses and the notice given in the May 2020 Table, as sufficient to put Mr Herron and Dr Gill on notice, must be taken to be an exercise of discretion. Indeed, in the end, both parties appeared to accept this was the case.

442    I am fortified in this conclusion by reason of the fact that the s 67 Notices were so clearly deficient as to render hopeless any argument that sufficient notice was given.

443    While the application of s 67 has received little judicial commentary, the authorities indicate that specificity is critical. In Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (1998) ATPR ¶41-650, the ACCC sought to adduce evidence of previous representations by three witnesses pursuant to s 64(2) of the Evidence Act. The notices given for this purpose annexed many pages of transcript and other evidence, but did not identify the particular representations within those documents upon which the ACCC relied. Along with the fact that it was reasonably practicable to call all three witnesses, Lindgren J rejected each of the s 67 notices because the notices did not identify the substance of the evidence of the previous representations upon which the ACCC intended to rely or which it intended to adduce. His Honour held that it was insufficient for s 67 notices merely to annex a lengthy document, without identifying the specific representations and relevant parts of that document to be relied upon.

444    This reasoning was followed by Foster J in Hejiz v Hejiz [2018] FamCA 301 (at [45]), where the notices in question annexed lengthy documents without identifying the specific representations relied upon and were found to be ineffective “by reason of that defect”.

445    The publishers (at least initially) contended that the current case is distinguishable from ACCC v CC for two reasons: first, there the proceedings were focussed on one factual issue, but the transcripts covered various different topics (unlike here, where it is said the proceedings are not focussed on one event, but on the operations at Chelmsford generally and most of the documents were transcripts from the Royal Commission which were directed to the events and treatment at Chelmsford generally); and secondly, the May 2020 Table was sufficient notice and cured any prejudice which might otherwise be said to have arisen.

446    I disagree. First, the reasoning of Lindgren J in ACCC v CC was not focussed on a single factual issue but an allegation of collusive tendering involving the representatives of four different construction companies. The ACCC relied on the lengthy records of what those persons had previously said in ACCC compulsory examinations and to a Royal Commission. Similarly, Mr Hart, for example, gave lengthy evidence to the Health Commission and the Royal Commission not just about his experiences at Chelmsford, but how his complaints were dealt with in the forgoing years. In any event, this proceeding was not a generalised inquiry into the operations of Chelmsford. Secondly, while the May 2020 Table would have given some specificity to the representations sought to be adduced, some of the representations were simply a reference to over 30 pages of the Royal Commission transcript, caveated in terms that purported not to bind the publishers in any way. The specificity required by the Evidence Act and Evidence Regulations cannot be said to have been met.

447    But this is not a sufficient basis to interfere with her Honour’s discretion. The primary judge had the benefit of looking at the evidence the subject of the s 67 Notices in the context of the whole corpus of material and the exigencies of the hearing. Her Honour also had a far greater appreciation of the procedural steps that had occurred leading up to the hearing, and the position in which each party would be placed in admitting the evidence the subject of the s 67 Notices. Ultimately, while these are matters upon which minds may legitimately differ, in balancing whether to admit the evidence the subject of the s 67 Notices, it has not been demonstrated her Honour acted upon an error of law, failed to take into account any material consideration, allowed extraneous or irrelevant matters to guide her Honour’s reasoning, or gave undue weight to a particular matter.

448    No discernible error has been established and Ground 4(c) is not made out.

C.6    Ground 4(d): The “dead experts issue

449    I now come to the most significant aspect of Ground 4, which received focus during the course of oral address. As noted above, this involves a contention that error is demonstrated by the primary judge admitting and relying upon expert reports from unavailable witnesses prepared over 30 years before the hearing and otherwise than in accordance with the formal requirements of the FCR.

450    Giving particularity to this contention, it was said her Honour erred in ruling admissible (and not excluding) and then relying upon, the evidence of:

(1)    Dr Bryan Gandevia in relation to deaths at Chelmsford generally (see J [491]–[498]);

(2)    Dr John Greenaway in relation to the death of Mrs Janice Nam (see J [546]);

(3)    Dr John Hassall in relation to the death of Mr Peter Clarke (see J [525]); and

(4)    Dr Maurice Joseph in relation to the deaths of Mr George Neave (see J [547(3)]), Ms Ann Bennett (see J [547(7)], [705]) and Mrs Stavroula Leousis (see J [547(8)]).

(collectively, and with no intended disrespect, the Dead Experts).

451    Again it is necessary to descend into the detail and it is convenient first to set out the evidence of the Dead Experts, and relevant findings made by her Honour.

The Dead Experts and the primary judge’s reasoning

452    At Part 7 of the primary judgment, her Honour turned to the evidence concerning sleep therapy and DST at Chelmsford. After detailing the practices at Chelmsford and where they fit within the timeline of psychiatric treatments, her Honour considered the evidence concerning deaths at Chelmsford and, in doing so, relied on the evidence of the Dead Experts: see Pt 7.5 headed “Deaths at Chelmsford”. The evidence was of central importance as her Honour ultimately concluded, at least substantially based on the evidence of the Dead Experts, that at least 23 people died in circumstances where there was a direct relationship between the death and the administration of DST at Chelmsford: see J [502].

Dr Gandevia

453    The primary judge dealt with the expert reports of Dr Gandevia at J [491]–[498]. Importantly, these reports were not tendered under a s 67 Notice, but rather, were admitted pursuant to the exception in s 67(4) of the Evidence Act. The reports prepared by Dr Gandevia appear to be a summary of statistical analysis of deaths at Chelmsford. The introduction to the first report dated 25 October 1989 (First Gandevia Report) is as follows:

I respond to your request to examine the death certifications and immediate circumstances of death relating to 26 cases admitted to Chelmsford Hospital for deep sleep therapy. The material supplied to me has essentially been the death certificates with summaries prepared by the Commission; I have not seen comprehensive documentation in regard to individual cases. I began simply by reviewing the death certificates without regard to the summaries. I then proceeded to list the deaths, their age, sex, date of death and the death certificate findings, and I made additional notes.

454    The First Gandevia Report refers to 26 deaths at Chelmsford in patients undergoing DST based on the evidence of death certificates, three of which Dr Gandevia excluded as not having a sufficiently close relationship to DST at Chelmsford. As the primary judge records (at J [494]), Dr Gandevia found that:

Based almost entirely on an analysis of the death certificates or supposed causes of death, there is clear evidence of an abnormal mortality amongst Chelmsford Hospital patients. Cardinal factors in reaching this conclusion are the relative youth of the patients, the overall mortality and the mortality from certain specified causes of death.

455    Relevantly, Dr Gandevia also concluded:

It may be argued with reason that this conclusion does not necessarily implicate treatment at Chelmsford. It might, for example, indicate an enhanced liability to death amongst the patients selected for admission. As one might expect, a common factor is a psychiatric disorder. In general terms, psychiatric disorders do not carry an enhanced mortality, excluding suicide, which is not relevant to the present problem, and any exceptions could not possibly influence the overall mortality. [C]hronic alcoholism, with its complications, cannot explain all the anomalies and in particular the female mortality. The alleged associated or contributory causes of death, although not discussed above, are also inadequate to explain the mortality patter[n] … The common pattern of death, where it is apparent to me from the data supplied, is of cardiac and/or respiratory arrest, the nursing notes suggesting strongly a dominant respiratory component. This respiratory component is what might be anticipated in patients who are heavily sedated. The causes of death given in the death certificates are those which are commonly employed in a relatively sudden and relatively unexpected death when no specific evidence as to the cause of death is available. Whether or not such specific evidence was obtainable is of course another matter.

    

Beyond the generalisation that the summaries provided to me suggest in many cases the kind of respiratory problems that one would anticipate in heavily sedated patients, I am reluctant to comment further on the basis simply of the death certificates and the summaries.

The death certificates alone provide a prima facie case for further investigation of the problems, especially as the mode of death, when it is available, is consistent with a respiratory/cardiac arrest situation such as might be encountered in the course of management of deeply sedated patients.

456    The First Gandevia Report also included the following, one might think somewhat unusual, notation following Dr Gandevia’s signature:

P.S. I should also wish it to be noted that I regret the lack of time to prepare this report, partly due to my commitments and my imminent departure overseas.

457    Dr Gandevia also provided a second report to the Royal Commission on 20 October 1989 (Second Gandevia Report), which addressed “additional mortality data for New South Wales” that had been supplied to him. Dr Gandevia noted that while “extremely detailed”, the “use to be made of [the data] is limited by the fact that I do not have the New South Wales population by age groups” and that this “imposes certain limitations on comparability but these limitations are mostly small compared to the differences.” He then set out “crude death rates by age and sex for the Chelmsford admissions.” Dr Gandevia noted that the “additional calculations offered in this supplementary report require no modification to observations made in the [First Gandevia Report].”

458    In dealing with the objection of Mr Herron and Dr Gill to Dr Gandevia’s reports, the primary judge stated (at J [498]):

I do not accept the applicants’ submissions that Dr Gandevia’s report should be approached with great caution. It may be accepted that his report was prepared for the Royal Commission and that the underlying material with which he was briefed (apart from the death certificates and at least some of the nursing notes) is unclear. His expertise as a respiratory physician, however, is not in question. There is no valid reason to discount his opinions merely because he was not available for cross-examination. The fact that Dr Gandevia excluded three of the 26 deaths as unrelated to DST at Chelmsford tends to support rather than undermine the credibility of his evidence. It also lends weight to his opinion that 23 of the deaths were directly related to DST at Chelmsford. The idea that Dr Gandevia, having excluded three patients, would not have satisfied himself that the other 23 deaths which he identified as immediately related to DST at Chelmsford were in fact so related is far-fetched. It may be accepted that the medical records of a number of those patients are not in evidence, but the applicants’ submission that there is no proof that they received DST at all overlooks the probative value of Dr Gandevia’s report – a report prepared for a serious purpose where it could be expected that Dr Gandevia would exercise significant care and scrutiny. Further, the limitation on his own work which he expressed also tend to support the high level of care with which Dr Gandevia prepared his report, leading to the view that his overall conclusions about the rate of deaths immediately relatable to DST at Chelmsford are reliable. Dr Gandevia’s report is probative evidence of its contents, including a death rate from DST at Chelmsford of in the order of 2.3%.

(Emphasis added).

459    The primary judge relied on the evidence of Dr Gandevia, combined with other evidence, to conclude (at J [502]) that:

The evidence I accept suggests a death rate between 1.7% and 2.3%; that is, on any view, DST involved a real risk of killing the patient. The applicants’ approach to the issues of proof is unrealistic. The weight of the evidence overall is compelling. It is not difficult to conclude that DST caused 23 deaths in circumstances where there is evidence that 23 deaths were immediately related to the administration of DST and DST involved such a significant risk of death.

460    The other evidence relied upon to reach this conclusion included Mr Herron’s “admissions” to the Royal Commission, the “evidence of the serious risks presented by DST [and] the kinds of complications to which DST is expected to give rise”, and the evidence of a Professor Whyte concerning “dosage regimes and the death rate he calculated from DST”: see J [499]–[502].

Dr Greenaway

461    Dr Greenaway provided a report to the Royal Commission about the death of Mrs Nam, 35 years old, who the primary judge found died while DST was being administered at Chelmsford: see J [545]–[546]. Unlike those patients in respect of whom Dr Gandevia opined, the underlying material provided to Dr Greenaway was largely in evidence.

462    Mrs Nam’s death certificate recorded that she had died of cerebral haemorrhage, caused by cerebral angioma. The causes of death appeared as follows:

463    Relevantly, the letter of instruction to Dr Greenaway was in evidence, and asked for Dr Greenaway’s opinion on the following seven questions:

The questions on which your assistance is sought are as follows-

1.    Whether the cause or causes of death as disclosed in the medical certificate and ultimately in the death certificate is certainly correct and/or probably correct.

2.    If you are of the opinion the cause or causes of death as disclosed in the medical certificate is not certainly correct, what in your opinion is the certain cause or causes of death.

3.    If you are unable to identify the certain cause or causes of death, what is (having consideration to all the material available to you), the probable cause of death.

4.    Are you of the opinion that the person who signed the medical certificate, was in a position to know the cause of death? If not, why not?

5.    If your opinion is different to the cause of death as disclosed in the medical certificate, is the cause on the medical certificate apparently bona fide - was it reasonable for a practitioner to find that as a cause of death?

6.    Is there any other part of the medical certificate which may be incorrect or false, and how do you arrive at that conclusion?

7.    Whether and how, if at all, did the treatment at Chelmsford Private Hospital contribute to the illness which lead to the death of the deceased?

464    The evidence also reveals Dr Greenaway was provided with a set list of items as follows:

465    Dr Greenaway commenced his report by noting that “I must say at the outset that I find the evidence confusing, and at times quite contradictory”. He went on to note that:

The critical question that initially demands an answer, in my view, is whether there was ever indeed a psychosis present that could possibly have called for the therapy administered. Briefly that therapy consisted of very heavy sedation, the so-called deep sleep approach that was in use at the time by Dr Bailey and his associates, coupled with electroconvulsive therapy. If I have interpreted the notes correctly, there were references on two occasions to ECT being administered. Dr Bailey, in his letter to the medical referee, states unequivocally that she had rapidly increasing psychotic problems, and further stated that her local medical practitioner was called in, and made the statement that she was suffering from schizophrenia, suggesting that she should be scheduled. He goes on later in his report to describe some hypertension, and also some neurological signs that presumably served as part of his view of the situation that led to her death, as a result of which he provided the Death Certificate describing the cause as a cerebral haemorrhage resulting from a cerebral angioma.

This evidence in itself to my mind is contradictory. There is no record of Dr Bailey having examined Mrs Nam physically in any detail. Furthermore, if he did record the neurological signs of which he makes note in the letter to the medical referee, one would have expected the signs to raise very serious doubts in his mind as to the possibility of underlying organic disease, rather than a psychosis. And in such circumstances the administration of electroconvulsive therapy would be most definitely contraindicated.

466    Dr Greenaway then turned to consider the evidence that had been given by Mr Nam (Mrs Nam’s husband), that the illness started suddenly the night before her admission to Chelmsford and there was no prior evidence of illnesses apart from some issues with pregnancy. Dr Greenaway also referred to the evidence of Val Townsend, a Nurses’ Assistant at Chelmsford, that Mrs Nam “went into a deep coma with fits, constricted pupils, and stertorous breathing”, which he accepted was consistent with cerebral haemorrhage, but noted the comments about her physical appearance “could simply represent a terminal phase of asphyxia and brain death”. This led Dr Greenaway to opine that “the Death Certificate diagnosis of cerebral haemorrhage could in fact be correct. But the question of an underlying cerebral angioma, as far as I can see, with no corroborative evidence pre- or post-mortem, is no more than a guess.” Finally, Dr Greenaway noted that as to question seven:

… one would have to state that if the diagnosis of cerebral haemorrhage is correct, as I think it could well be, the treatment given at Chelmsford Private Hospital would most certainly have been inappropriate. One would have to presume that, assuming that Mr Nam’s account of the situation prior to admission to hospital is correct, there were premonitory symptoms and signs of the illness which subsequently became much more dramatic and led to death. In such circumstances electroconvulsive therapy would in my view have been running a grave risk of being positively harmful.

467    In respect of the evidence of Dr Greenaway, the primary judge found (at J [546]):

Dr Greenaway provided a report to the Royal Commission about [Ms Nam’s] death. She was a patient of Dr Bailey. He considered her treatment at Chelmsford including ECT as “most certainly … inappropriate”. He said that assuming Mr Nam’s account of his wife’s condition was correct then ECT “would have been running a grave risk of being positively harmful”. There is no reason to accept the applicants’ criticisms of Dr Greenaway’s report. His report is evidence that Ms Nam was treated with DST. It is evidence that she was experiencing symptoms which contraindicated DST and ECT. Mr Herron administered ECT to Ms Nam on 17 and 18 April 1972. Mr Herron was under a duty to ensure that any patient to whom he administered ECT was sufficiently well to be given ECT. Dr Greenaway had the benefit of information not in evidence in this proceeding. There is no reason, however, to infer that Dr Greenaway was doing other than giving his objective opinion based on the material with which he had been provided. The fact that Dr Greenaway is not available for cross-examination may be accepted, but this is an insufficient reason to discount the effect of his evidence.

(Emphasis added).

468    Indeed, what the primary judge’s reasoning reveals is that her Honour relied upon Dr Greenaway’s report as evidence that Mrs Nam was treated with DST and was experiencing symptoms which contraindicated DST and ECT at the time of her death.

Dr Hassall

469    The primary judge also admitted and relied on the reports of Dr Hassall (see J [525]) over objection by Mr Herron and Dr Gill. Dr Hassall’s evidence related to the death of Mr Clarke, aged 31, who the primary judge found died while being administered DST at Chelmsford under the supervision of Dr Bailey. Dr Hassall was provided the same overview statement as Dr Greenaway, and a similar bundle of relevant documents. The death certificate noted that Mr Clarke had died of (a) acute coronary occlusion, (b) hypertensive vascular disease, and (c) hypertensive renal disease, and that his “extreme agitated depressive illness” was another significant condition.

470    In his first report dated 25 October 1989 (First Hassall Report), Dr Hassall notes that he is “unable to state with certainty the cause of this patient’s death”, accepting there are “several possible causes of death, of which coronary occlusion is one”, and assessing the exercise of evaluation as “speculation” (albeit noting he was obliged to engage in such a process). He opined that such speculation, however, is overshadowed by the curiosity as to why a death certificate was even issued, given the unique circumstances of the death. After canvassing the possible causes of death, he noted:

I do not believe that Dr Bailey was in a position to know the cause of death - even though he may have been correct in his assumption that the patient died of a coronary occlusion. Given the evidence contained in the documents which are provided, he was certainly incorrect in stating that the duration of the coronary occlusion had been “hours”, as death occurred within 20 minutes of E.C.T.

471    Further, as the primary judge recorded (at J [525]), Dr Hassall expressed the opinion to the Royal Commission that:

It is difficult to avoid the conclusion that treatment at Chelmsford Private Hospital did indeed contribute to this patient’s illness and death. Even if the cause of death was correctly stated, and if Mr Clarke did indeed die … of a coronary occlusion, it would be difficult to dissociate that event from the effects of sedation and E.C.T., and their possible contribution to hypoxia and its effect on the myocardium (heart muscle) of the deceased.

472    What followed was that on 29 November 1989, the Royal Commission wrote to Dr Hassall seeking for him to review the transcript of the evidence of Mr Clarke’s widow to the Royal Commission and provide a supplementary report qualifying, modifying or confirming his opinion expressed in the First Hassall Report. Relevantly, by way of a supplementary report (Second Hassall Report), Dr Hassall opined that:

Mrs. Clarke’s evidence underlines the possible relevance of her late husband’s hypertension to his death, and it confirms the existence of other risk factors – including obesity and cigarette smoking. Taken at face value, her recollection of an incident in which her husband had complained of severe headache and of “paralysis down the left side” indicates that Mr. Clarke had suffered some form of intracranial vascular episode. The term transient ischaemic attack (TIA) is applied to transient episodes of this type, which are thought usually to be caused by small emboli thrown off from a focus of atherosclerosis in one of the carotid arteries. It is possible, however, that such a transient episode may be caused by a small intracerebral haemorrhage, a diagnosis which can be made in those circumstances only by a CT scan of the brain. In favour of this diagnosis in this patient is the statement that the patient had suffered severe headaches in association with the episode of “paralysis”. The point should be made that intracerebral haemorrhage is usually the cause of a major and catastrophic cerebral event, and it is quite possible that such an event was the cause of Mr. Clarke’s death after ECT. I have already discussed this among the possible causes of his death; in the light of his widow’s evidence, it would seem reasonable to place this higher in the list of possible causes.

473    Dr Hassall confirmed, however, that the evidence he had received from Mr Clarke’s widow did “not alter the views expressed” in the First Hassall Report.

474    In respect of the evidence of Dr Hassall, her Honour found (at J [527]–[530]):

The applicants’ criticisms of Dr Hassall’s opinions because he was unavailable for cross examination are without merit. There is no evidence that Dr Hassall was doing other than giving his impartial opinion to the Royal Commission as to DST being a material contributor to Mr Clarke’s death. The fact Mr Clarke died under DST of precisely the kind of complications that can be expected with DST supports Dr Hassall’s opinion. It is mere speculation by the applicants to posit that Dr Hassall was fallaciously equating a correlation with causation. Nor is [there] evidence that he was affected by confirmation bias.

The applicants contended that:

Mr Clarke’s significant acute psychiatric condition, his size, history of untreated high blood pressure, and fluctuating weight put him in a significantly greater than usual danger of dying with or without treatment.

However, the fact is he died under DST. There is a world of difference between dying from some natural cause and dying while being subjected to a dangerous purported treatment for which there was no medical justification. Based on the evidence I do not accept the applicants’ submission that:

The evidence available to this Court is insufficient to establish that treatment or care administered at CPH caused Mr Clarke’s death. There is no evidence that either applicant caused or could have prevented Mr Clarke’s death.

Dr Gill could and should have ensured that DST was not administered at Chelmsford. Mr Herron could and should have refused to perform DST on patients and could and should have refused to perform ECT on patients who were under DST as this was itself an experimental treatment.

(Internal citation omitted).

Dr Joseph

475    The primary judge also admitted and relied on the reports of Dr Joseph in relation to the deaths of Mr Neave (see J [547(3)]), Ms Bennett (see J [547(7)], [705]) and Mrs Leousis (see J [547(8)]). It is unnecessary to detail comprehensively the background to each of the expert reports in respect of these deceased individuals. It suffices to note that Dr Joseph was provided with similar instructions and materials as Dr Greenaway and Dr Hassall and concluded that:

(1)    In respect of Mr Neave, he accepted Dr Bailey was in a position to know the cause of death, but did not think it was reasonable for a practitioner to find, as Dr Bailey did, that the cause of death was a cerebral haemorrhage. Dr Joseph ultimately opined that he considered “the sedative treatment (sleep therapy) contributed materially to the pneumonia which led to the death of the deceased”.

(2)    In respect of Ms Bennett, her death was “probably due to her drowning in her own respiratory secretions”, he did not think Dr Bailey “was in a position to know the true cause of death” and ultimately he was of the opinion “that the treatment at [Chelmsford] in the form of deep sleep therapy sedation was the primary cause of death”.

(3)    In respect of Mrs Leousis, it was “most likely that she died of a respiratory infection and retention of respiratory tract secretions”, rather than “coronary occlusion” which was noted on her death certificate. Dr Joseph opined that while it was Dr Bailey who signed the death certificate and had observed Mrs Leousis an hour after her death, “he should have suspected that the patient died a respiratory and not cardiac death”. Dr Joseph concluded:

Apart from her mental state and gross obesity the patient entered Chelmsford Hospital six days before her death apparently in a satisfactory state of health as asserted by an examining consultant physician. She died six days after admission while undergoing deep sleep therapy and having had one E.C.T. I am of the opinion that deep sleep therapy particularly in such a grossly obese patient was inherently dangerous and that it led to a pneumonic condition which caused her death.

476    The evidence of Dr Joseph was relied upon by the primary judge to support the conclusion that Mr Neave, Ms Bennett and Mrs Leousis died in circumstances where there was a direct relationship between their death and the administration of DST at Chelmsford.

The evidentiary objections taken below and agitated on appeal

477    A number of objections were taken below as to the admissibility of the reports of the Dead Experts, including that the reports should have been: (a) not admitted because they do not fall within a hearsay exception; (b) not admitted because they do not satisfy the statutory precondition to admissibility as an expert opinion, namely, that the opinion is based wholly or substantially on specialised knowledge; (c) excluded pursuant to s 135 of the Evidence Act; and (d) given less weight due to the fact that the Dead Experts were unavailable, the reports do not comply with the modern requirements for expert evidence and they are in excess of 30 years old. As is evident from the above, her Honour rejected these contentions, admitted the reports of the Dead Experts and did not discount the weight to be attributed to the opinions expressed.

478    Before coming to these objections, two points should be stressed. First, as will become evident, both below and before us, the argument of the publishers proceeded on the basis that the reports of the Dead Experts were admissible because the reports contained representations of expert opinion and were admissible because the s 79 exception (to the s 76 exclusionary rule) was engaged, and that the evidence should not be the subject of discretionary exclusion under s 135. The primary judge accepted this argument. Further, her Honour accepted the evidence should be admitted notwithstanding the failure to comply with the requirements of the FCR, and in doing so, noted that the objections of Mr Herron and Dr Gill went to weight rather than admissibility. The appeal must be determined on this basis and not on any other basis of alleged admissibility.

479    Secondly, and related to the first point, no issue was addressed below or by the parties to the appeal as to whether the reports of the Dead Experts could have been admissible on a basis otherwise than as to the truth of the representations of opinion contained in them (for example, admissible as evidence of the basis of the findings of the report for the purposes of the qualified privilege defence, but subject to a s 136 limitation reflecting the fact that the evidence was only in on a limited basis). Given the way the case was conducted below, the focus of Ground 4 is upon whether the reports should have been received as opinion evidence and given the weight they were given by the primary judge as to the truth of the expressions of opinion contained in the reports.

The absence of an exception to the hearsay rule?

480    Before coming to the real substance of the argument as to opinion evidence, it is first necessary to deal with the submission of Dr Gill that the reports of the Dead Experts do not fall within a first-hand hearsay exception and should have been rejected by the primary judge on this basis.

481    Sections 62 and 63 of the Evidence Act relevantly provide:

62    Restriction to “first-hand” hearsay

(1)     A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2)     A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

63     Exception: civil proceedings if maker not available

(1)     This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)     The hearsay rule does not apply to:

(a)     evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b)     a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

482    Dr Gill’s argument centred on the proposition that the relevant historical opinions are almost entirely based on previous representations whether in medical records or otherwise made by other persons and this is a complete answer to the tender of the reports under s 63. That is, the expert opinions are not first-hand hearsay, but rather in the realm of third-hand or fourth-hand hearsay, and therefore do not find a gateway for admission under the Evidence Act.

483    In dealing with this point of contention, her Honour ruled that “the asserted fact [in the case of an expert report] … is the actual expert opinion being expressed” (emphasis added). In explaining why this is the case, her Honour noted that:

[T]he expert in question would have personal knowledge of that asserted fact and his … knowledge of that fact will be based on something the person has seen, heard or otherwise perceived. It can’t be based on a previous representation made by another person about the fact because the relevant fact is the opinion of the expert.

484    This led her Honour to conclude that “the broad legal submission that … [ss] 62 and 63 cannot, as a matter of law, be engaged by the giving of notices in relation to these expert reports”, should be rejected.

485    In adopting this line of reasoning, her Honour was following, by parity of reasoning, what has been said in respect of the business records exception to the hearsay rule in s 69 of the Evidence Act. Relevantly, in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355; (2012) 207 FCR 448, Perram J referred (at 463 [63]) to a large number of authorities to the effect that: “an opinion as to the existence of a fact falls within the scope of the term ‘asserted fact’ in s 69”. After considering certain obiter comments of the High Court in Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 (at 362 [17]) to the effect that such an interpretation was a “little strained”, Perram J said (at 463 [65]):

I would not, in any event, accept that the mere fact that an interpretation is “strained” means inevitably it is wrong. Here the legislation was always intended as a beneficial reform. If “asserted fact” does not extend at least to lay opinion as defined in s 78 then an important, reliable and common form of business record will be inadmissible. For example, a building site log recording that the site is ‘slippery due to rain’; a hotel incident report that a patron was ‘drunk’; a police pocket note that a person was ‘angry’ and so on.

486    It may be accepted that Perram J was addressing the business records exception (s 69) to the hearsay rule, rather than one of the first-hand hearsay exceptions (such as s 63), and that his Honour referred specifically to the exception to the opinion rule for lay opinion (s 78), but there is no difference in analysis. Both ss 63 and 69 rely on the question of whether the person involved had personal knowledge of the “asserted fact”, and there is no reason why the same analysis applicable to lay opinion under s 78 should not be applicable to expert opinion under s 79. Consistently with what Perram J said in Air New Zealand Ltd (No 1) and the reasoning of the primary judge, it is the opinion which is the asserted fact. No error has been demonstrated in her Honour reaching this conclusion at a level of principle.

487    In saying this, it should be noted that an opinion is only probative to the extent that the facts upon which the opinion is based are otherwise proved in evidence. If the facts upon which the opinion is based are not the subject of evidence admitted (or reasonably thought likely to be adduced), this may ground an argument supporting the rejection of the opinion on the ground of relevance or its discretionary exclusion, but these are matters which are addressed below.

The contentions as to admissibility as opinion evidence

488    Dr Gill submitted that the reports of the Dead Experts failed to satisfy the statutory precondition to admissibility of expert opinion in s 79 of the Evidence Act, and should therefore have been excluded pursuant to s 76 of the Evidence Act. Sections 76 and 79 of the Evidence Act are in the following terms:

76    The opinion rule

(1)     Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

79    Exception: opinions based on specialised knowledge

(1)     If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

489    Dr Gill submitted that for expert opinions to be admissible in this Court, they must be expressed in such a way so as to permit the Court to answer the question posed by s 79. It was said that the absence of compliance with formal strictures of modern expert evidence and in circumstances where the Dead Experts were not expressing diagnostic opinions based on patient assessments or complete and accurate medical records, the criterion in s 79 has not been met. Indeed, it was said by senior counsel for Dr Gill orally that the Dead Experts “cannot, just by looking at a death certificate, form a view as to whether the cause of death stated is correct or not correct, and whether that cause of death was caused by DST”.

490    The reports of the Dead Experts provided to the Royal Commission are fundamentally different from those that would be expected to be produced by an expert in a proceeding in this Court. Subject to an order to the contrary, an expert report would need to comply with the formal requirements of FCR 23.13 and the Harmonised Expert Witness Code of Conduct (Code): see Expert Evidence Practice Note (GPN-EXPT), Annexure A. Those requirements include, inter alia, that the report must: (a) contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; (b) identify the questions the expert was asked to address; (c) set out separately each of the factual findings or assumptions upon which the expert’s opinion is based and the reasons for each of the expert’s opinions; and (d) identify any literature or other materials utilised in support of the opinion. The matters set out in FCR 23.13 and the Code are similar to the matters set out in the familiar passage of Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA; (2001) 52 NSWLR 705 (at 743–744 [85]). See also Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 (at 604 [37] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

491    The publishers submitted that the principles expounded in Makita and reflected in FCR 23.13 and the Code do not apply to the reports of the Dead Experts with their full force. In support of this proposition, reliance was placed on the following passage of Handley JA in Rich v Australia Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365 (at 367 [13], with whom Giles and Basten JJA agreed):

One of the potentially important questions of principle raised … concerns the relationship of s 69, the business records section, to Pt 3.3 of the [Evidence Act] dealing with the opinion rule, particularly s 79 dealing with opinions based on specialised knowledge. The primary judge may have thought that the principles stated by Heydon JA in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ; [2001] NSWCA 305 apply with full force to statements by experts in business records made when litigation was not in contemplation. It is far from clear that these principles apply with their full force, or at all, to out of court statements by experts in business records even if such statements do have to meet the standard in s 79.

492    The comments of Handley JA were also referenced by Beazley JA in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; (2011) 80 NSWLR 43 (at 59 [93]), with whom Giles and Tobias JJA agreed):

There is also a question as to whether the principles governing the admissibility of expert evidence, and, in the case of jurisdictions where the rules of evidence do not apply, the weight to be given to expert evidence, had any role to play in the case of reports of an expert, such as a medical practitioner, which come into existence as business records. In Rich v ASIC [2005] NSWCA 233; (2005) 54 ACSR 365, Handley JA (Giles JA and Basten JA agreeing) stated (at [13]) that it was “far from clear” that the principles in Makita applied “with their full force, or at all, to out of court statements by experts in business records”. Although his Honour’s observation was made in the context of an evidence-based jurisdiction, there is nonetheless force in his observation. However, I do not find it necessary to resolve that question in these reasons and I defer any further consideration of it to an occasion where the point is raised and directly in issue.

493    The publishers submitted that while the obiter remarks in Rich and Hancock relate to business records, they apply equally to documents the subject of a first-hand hearsay exception, meaning the reports of the Dead Experts are not required to have the same level of detail as they would if they were prepared today, for court proceedings. It was not suggested that the reports complied strictly with the requirements of opinion evidence in the conventional form, but rather it was said that whatever their deficiencies, in considering whether the reports of the Dead Experts were sufficient for the purposes of s 79, the only issue for the primary judge was whether the opinions set out in the reports were wholly or substantially based on specialised knowledge – a proposition the publishers contend is made out.

494    Dr Gill, on the other hand, submitted that there is a fundamental difference between business records and expert reports. Business records record information supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, where there is a presumption of reliability of information recorded in such a way. By contrast, Dr Gill asserted that the expert reports in this proceeding were prepared in a pre-expert code era, not based on the rules of evidence, and reliant on incomplete historical records and assumptions. It was said that in circumstances where the Court does not know the facts and assumptions upon which the opinions were based, a determination cannot be made about whether those facts or assumptions have been proved. Further, Dr Gill asserted that the lack of records and any direct observation over how the reports were drafted meant there was a real danger that speculation as to the facts would be intermingled with opinion.

495    Part of the submissions of Dr Gill should be accepted.

496    In explaining why this is so, it is worth commencing with an aspect of her Honour’s approach that cannot be successfully challenged, being the ruling the reports should not be rejected because of a failure to comply with the Code and the requirements of the FCR. In a “representative” ruling (in relation to Professor Hickie whose evidence I will return to below), which was thereafter taken by the parties to reflect the position as to non-compliance of the reports of the Dead Experts with the strictures of the FCR, her Honour noted:

This is a dispute about the admissibility of part of the report of Professor Ian Hickie MD FRANZCP, Professor of Psychiatry and co-director, health and policy, at the Brain and Mind Centre, the University of Sydney. The part of the report which is objected to is on two essential bases. First, that the expert report does not comply with rule 23.11 and rule 23.13(1) of the [FCR]. Insofar as rule 23.13 is concerned, it is said that the expert report, at least as I understand it, does not satisfy rule 23.13(1)(e) in that it does not set out separately each of the factual findings or assumptions on which the expert opinion is based and does not satisfy rule 23.13(1)(ga) in that it does not contain an acknowledgement that the expert’s opinions are based wholly or substantially on the specialised knowledge of the expert.

More to the point, it is said that as a matter of substance, the report does not disclose the basis of Professor Hickie’s specialised knowledge to provide expert opinions about events in the field of psychiatry in the 1960s and 1970s in circumstances where Professor Hickie was first admitted to practice as a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 1989. In this regard, I note that Professor Hickie obtained his Bachelor of Medicine and Bachelor of Surgery in 1982 and was, as I have said, admitted to the relevant college of psychiatrists in 1989 from which I infer that he must have been in training within the college of psychiatrists for some years, possibly three to five years prior to 1989.

In this regard, I accept the submissions of the respondent that compliance with rule 23.11 and 23.13(1) of the [FCR] is not mandatory in the sense that an expert report which fails to comply with those requirements is not necessarily inadmissible as a result. The court retains a discretion to admit the evidence notwithstanding the failure to comply with the requirements of the rule. In terms of the substantive requirement that Professor Hickie’s opinions be based upon his specialised knowledge, there can be no doubt that he holds a specialised knowledge in the field of psychiatry and I am prepared to infer that he must hold knowledge relating to practice in the decades immediately before his admission as a fellow of the relevant college.

On its face, his report seems to expose as much given that he has referred to conventional psychiatric practice and the change in it from the late 1960s onwards as well as the position from the mid-1960s onwards. In these circumstances, I do not see that the objections of the applicants should lead to inadmissibility of the relevant part of the expert report of Professor Hickie and I would be minded to dispense with the requirements of rule 23.13(1) insofar as it is necessary to do so and otherwise accept the respondent’s submissions that the objections go more to the weight that should be given to the evidence rather than its admissibility.

(Emphasis added).

497    There is a danger in eliding the requirements of admissibility under the Evidence Act with the separate dictates of FCR 23.13 and the Code (although those dictates, in part, reflect the requirements of the Evidence Act). It goes without saying that the reports of the Dead Experts did not comply with a number of the requirements of the FCR and the Code (it was not suggested otherwise). This is unsurprising, as they were not prepared for the purpose of this, or any other, curial proceeding. But as Brereton J explained in Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2011] NSWSC 395 (at [7]), although the expert witness:

has not, and could not, comply with the expert witness code of conduct – being associated as he is with the defendants – but that does not impact on the admissibility of an out-of-court opinion expressed by the witness before litigation was contemplated. The expert witness code of conduct could never be complied with by an expert in that situation. I do not consider that the provisions relating to the code of conduct were ever intended to prevent opinion evidence, otherwise admissible in exception to the hearsay rule, being admitted because of non-compliance with the code of conduct.

498    As Edelman J noted in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 5) [2015] FCA 571 (at [11]), any failure to comply with FCR 23.13 does not automatically make any expert evidence inadmissible (although, as the primary judge recognised, non-compliance with aspects of the requirements of the FCR can go to weight). For present purposes, it is sufficient to record that if otherwise admissible (and not subject to discretionary exclusion), there was no error by the primary judge in the exercise of her Honour’s discretion in waiving the requirements of the FCR and the Code, and this part of Dr Gill’s complaint goes nowhere.

499    It is then necessary to consider the question of admissibility under s 79 and commence by revisiting some principles, which although well-established, merit restating.

500    The High Court warned in Dasreef (at 604 [37]) that the admissibility of opinion evidence is not to be determined by focussing on statements made in decided cases divorced from the context in which those statements were made, but rather upon the requirements of the Evidence Act. Hence the proper focus is on whether it can be said that the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and in relation to which the opinion is “wholly or substantially based”, applies to the facts assumed or observed in the particular case so as to produce the relevant opinion. By reference to the judgment of Heydon J in Dasreef, John Dixon J iDura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99 (at [98]) identified three “factual basis rules” which apply under s 79, being: (1) are the facts and assumptions on which the expert’s opinion is founded disclosed (assumption identification rule)? (2) is there evidence admitted, or to be admitted before the end of the tendering party’s case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value (proof of assumptions rule)? and (3) is there a statement of reasoning showing how the facts and assumptions relate to the opinion stated to reveal that that opinion is based on the expert’s specialised knowledge (statement of reasoning rule)?

501    These factual basis rules” are fundamental and reflect the essential basis upon which an expert opinion is of any utility. There is little to be gained by rehearsing the cases as to admissibility, but it is worth having regard to the reasons of Spigelman CJ (with whom Giles and Ipp JJA agreed) in Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764, which contains a detailed analysis of the underlying basis as to why such rules exist. As part of that analysis, Spigelman CJ made reference to the reasoning in HG v R [1999] HCA 2; (1999) 197 CLR 414, including the statement by Gleeson CJ (at 428 [41]), that expert evidence:

required identification of the facts [the expert] was assuming to be true, so that they could be measured against the evidence; and … demonstration or examination of the scientific basis of the conclusion.

(Spigelman CJ’s emphasis).

502    This requirement is not some new notion. It reflects the accumulated experience of the common law in relation to a ubiquitous form of expert evidence, being the opinions of medical experts which, to be of any value, require that the facts upon which the opinion is based not only be identified, but be proved by admissible evidence: see Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 (at 87 per Mason ACJ, Wilson, Brennan, Deane and Dawson JJ). As Beazley JA explained in Hancock (at 56 [76][77]):

Notwithstanding that an expert may give an opinion on assumed facts, the High Court in Ramsay v Watson [(1961) 108 CLR 642] observed (at 649) that if the history obtained by the doctor and upon which the doctor based her or his expert opinion is not supported by admissible evidence, the opinion “may have little or no value, for part of the basis of it is gone”.

Spigelman CJ’s analysis in ASIC v Rich of Heydon JA’s reasoning in Makita concluded that it conforms with the statement of Gleeson CJ in HG (at [39]) … As Spigelman CJ stated (at [105]):

Although expressed in terms of ‘usefulness’, the starting point for Heydon JA’s detailed analysis of the case law on admissibility does not suggest any focus on the true historical process by which the expert first formed the relevant opinion. The focus of attention the ‘prime duty’ is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.

(Emphasis in original).

503    The problem in the present case is that, in large part, this prime duty was not the subject of compliance. As can be seen from the description of the evidence above, the Dead Experts did not sufficiently identify all the facts upon which the opinion was based (being facts which were then able to be adduced in evidence) and, just as importantly, did not expose, in the conventional manner, the reasoning process by which they asserted justified the opinions expressed. It followed this flaw in the evidence compromised the ability to evaluate the opinions expressed.

504    In respect of Dr Gandevia, it is important to recall that unlike the reports of the other Dead Experts, not only is there is no indication as to the instructions on which Dr Gandevia was acting, it is simply unknown what materials he took into account in order to reach his conclusions. Nor, for some patients, is there any evidence of the death certificates upon which the analysis is based, or the medical records of the patients alleged to have died from DST. Further, in respect of other patients, there is no underlying evidence to demonstrate they even received DST.

505    As explained above, the primary judge also relied on the evidence of Dr Greenaway to conclude Mrs Nam was treated with DST and was experiencing symptoms which contraindicated DST and ECT at the time of her death. As is evident from the extract above (at [467]), the primary judge accepted (at J [546]) that Dr Greenaway had the benefit of information not in evidence. Hence, notwithstanding it was not possible to evaluate the reliability or soundness of the opinions Dr Greenaway expressed on the basis of the evidence adduced and admitted, his evidence was admitted. This was of some importance as other evidence before the Court contradicted some of the assumptions which informed Dr Greenaway’s opinion, including Dr Bailey’s clinical notes and the evidence of Mr Nam.

506    Further, as to contribution to death, Dr Greenaway did not explain how DST or ECT could have harmed Mrs Nam or contributed to her death other than the assertion that ECT ran “a grave risk of being positively harmful”. Dr Gill highlights that the evidence before the Court reveals the only neurological contraindication for ECT is a brain tumour, and even a cerebral haemorrhage or angioma is not a contraindication. In the absence of any reasoning as to how ECT or DST could be harmful to Mrs Nam with an impending cerebral haemorrhage, and in circumstances where these assumptions simply could not be tested, this report was highly problematical. This is particularly the case where other evidence indicates that ECT was not performed on Mrs Nam for almost 48 hours before her death and it is unclear whether and to what extent DST (as opposed to moderate sedation) was actually administered.

507    As to Dr Hassall, whose report the primary judge relied upon to conclude that Mr Clarke’s death was causally related to the administration of DST at Chelmsford, he opined that he was unable to state with certainty the cause of Mr Clarke’s death, but expressed the view “that it is difficult to avoid the conclusion that treatment at [Chelmsford] did contribute to [Mr Clarke’s] illness and death”. The difficulty is that limited or no reasoning is provided for this conclusion, nor are the specific facts relied upon clearly identified.

508    Finally, the evidence of Dr Joseph was that there was a direct relationship between the death of Ms Bennett, Mr Neave and Mrs Leousis and the administration of DST at Chelmsford. However, in respect of Ms Bennett, although it appears Dr Joseph was provided with, and relied upon, the general ward “Day and Evening Report” notes and extracts from the “Bailey Book” (the book where Dr Bailey (and Mr Herron) wrote directions (including prescriptions) for patients and where a record was kept of patient ECTs), those underlying documents were never in evidence. As to Mr Neave, as well as some underlying documents being unavailable, there was no evidence adduced to suggest that Mr Neave actually received DST. This is no mere quibble, as while he did receive moderate sedation, the record of drugs administered tends to indicate that Mr Neave was not given DST. This conclusion finds support from the evidence of Mr Ronald Neave, Mr Neave’s son, who, consistently with the nurses notes, stated that in respect of the relevant period when Mr Neave was said to be receiving DST, “[o]n each occasion that I visited [Mr Neave] I certainly spoke with him. I think on one occasion he was not very well and there was very little communication”.

509    In relation to Mrs Leousis, while Dr Joseph concluded that the diagnosis of coronary occlusion in the death certificate by Dr Bailey was “pure conjecture possibly suggested by her gross obesity” and he did not believe “it was a reasonable bona fide diagnosis to be made by a competent medial practitioner”, he does not take into account the fact that the contemporaneous records reveal Dr Bailey spoke to specialist physician Dr Lind, who, after examining Mrs Leousis, agreed that the cause of death was cardiac.

510    No doubt because the reports were not prepared for a legal proceeding governed by the law of evidence, no real attempt was made by the publishers to demonstrate compliance with the assumption identification rule, the proof of assumptions rule and the statement of reasoning rule. Nor, even at a more general level, was there any real attempt to justify how it was the relevant Dead Expert identified all the facts (proved or capable of proof) relied upon, and his reasoning process. As noted above, the argument for admissibility of the publishers proceeded on the bases that: (a) these principles or requirements of admissibility do not apply because the reports of the Dead Experts were prepared for a different purpose; (b) the only issue was whether the opinions set out in the reports were wholly or substantially based on specialised knowledge; and (c) there was no reason to assume that a Dead Expert was doing other than giving his objective opinion based on the material with which he had been provided.

511    As to (a), the requirements did apply given the basis upon which the opinions were sought to be tendered. As to (b), whether the opinions were based on specialised knowledge is only able to be assessed if the opinion is expressed in such a way as to comply, at least, with what Heydon JA identified as the expert’s prime duty to identify the facts and reasoning process upon which the opinion was justified. As to (c), this is a self-evidently insecure basis for the Court being satisfied the opinion meets the requirements of s 79.

512    In my respectful view, the reports of Dead Experts did not meet the requirements for admissibility for opinion evidence and should have been rejected.

513    But even if one was to assume that the reports of the Dead Experts were admissible, this is not the end of the matter.

Discretionary exclusion and the question of weight

514    Even if admissible, I consider the evidence of the Dead Experts should have been subject to discretionary exclusion under s 135 of the Evidence Act.

515    As is well known, in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549 (at 552 [7]), Branson J described the approach of requiring compliance with, in effect, the assumption identification rule, the proof of assumptions rule and the statement of reasoning rule as a “counsel of perfection”. Weinberg and Dowsett JJ observed in the same case (at 576 [87]) that such compliance issues can involve questions of degree, and it “would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of [Heydon JA’s requirements as set out in Makita] before receiving it as evidence in the proceedings”. In short, consistently with these observations, it is sometimes suggested that the requirements reflected in the “factual basis rules” go much more to weight than to admissibility. There is no need to enter upon this well-trod territory. But if what can be described as the Red Bull or less “strict” view prevails as to admissibility, the probative value of the evidence cannot simply be put to one side when it comes to the question of discretionary exclusion under s 135 of the Evidence Act.

516    The general discretion under s 135 to exclude evidence, including opinion evidence, which may otherwise be admissible, provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might, among other things, be unfairly prejudicial to a party. As was explained by Giles, McColl and Macfarlan JJA in James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 (at [29]), this means “it is necessary first to assess the probative value of the evidence” (meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue”: see the Dictionary to the Evidence Act). It is only then, that one can turn to the two logically subsequent steps required by s 135 being: (1) the question as to whether that probative value is substantially outweighed by an identified danger, such as whether, if admitted, the evidence might be unfairly prejudicial to a party; and (2) the exercise of a discretion as to whether the evidence should be the subject of exclusion (being a balancing exercise).

517    There were a number of aspects of the opinion evidence that affected the extent to which the opinions of the Dead Experts could rationally affect the assessment of the probability of the existence of the relevant fact in issue as to the direct relationship between the death of patients and the administration of DST at Chelmsford. Three aspects deserve particular emphasis.

518    First, as recognised by the primary judge (see [496] above) the failure of the opinions to comply with the requirements of the Code and the FCR was specifically accepted by her Honour as a matter going “more to the weight that should be given to the evidence rather than its admissibility.”

519    Secondly, the factors identified above as to why the reports were inadmissible, are all equally relevant to the assessment of probative value, in the event the reports were (contrary to my view) admissible. Further, for example, as to:

(1)    Dr Gandevia, sections of his reports were expressed in highly equivocal terms. For example, he noted that “[i]t may be argued with reason that the conclusion [there is an abnormal mortality rate among Chelmsford patients] does not necessarily implicate treatment at Chelmsford”. In respect of individual deaths, Dr Gandevia’s conclusions were caveated with the note that they “will be strictly limited as I am fully aware that I do not have comprehensive data”, stating that “[i]n some respect they are therefore better regarded as generalisations than detailed specific comments”. Dr Gandevia also accepted he used “crude” general population death rates – not death rates for psychiatric patients – to make high level comparisons with alleged deaths at Chelmsford, and acknowledged that there is a limitation on his comparability because he did not have those crude death rates by age group. Further, while a peripheral point, the notation at the end of the First Gandevia Report that it was rushed does not instil confidence in the rigour with which Dr Gandevia had approached the task: see [456].

(2)    Dr Hassall, in writing the Second Hassall Report, accepted that “Mrs. Clarke’s evidence underlines the possible relevance of her late husband’s hypertension to his death, and it confirms the existence of other risk factors – including obesity and cigarette smoking” and opined this evidence indicates that Mr Clarke “suffered some form of intracranial vascular episode”. This ultimately lead Dr Hassall to conclude “it would seem reasonable to place [intracerebral haemorrhage] higher in the list of possible causes” of death. The uncertainty underlying these opinions, and how they shifted as new material came to light, is clearly relevant to probative value.

520    Thirdly, also highly relevant to the assessment of probative value was the approach that should have been taken to the weight of opinion evidence unable to be challenged by cross-examination. In this regard it should be noted that while a number of witnesses who were required to give evidence to the Royal Commission were subject to cross-examination, generally the expert witnesses were not. This meant that in addition to the opinions not being able to be tested now, they were never tested. The inability to test the opinions of the Dead Experts is of importance and requires some elaboration.

521    It has long been the law that the written evidence of a person who cannot be cross-examined can be admitted. But its weight is another matter entirely. In Turner v Windever [2005] NSWCA 73; [2005] Q ConvR ¶54-625, the Court of Appeal of New South Wales dealt with a challenge to the approach of a trial judge in an Equity suit (involving alleged unconscionable dealings) not to accept the affidavit evidence of a deceased deponent who was said to have suffered a special disadvantage, where that aspect of the evidence was challenged by the evidence adduced by the opposing party, “unless there [was] some external corroboration”. Giles JA (with whom Bryson JA agreed) explained (at [58]–[59]):

The judge’s approach is in accordance with authority. In Clyne v Law Society of New South Wales (CA, 4 September 1987, unreported) Mahoney JA observed that “experience has shown that it is proper to treat with considerable reserve evidence, or the inference from evidence, which has not been subjected to cross-examination”, and in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, where a witness had been discharged prior to cross-examination, the Court said at [188] – [191] -

“188     There appears to be no direct authority as to how a court should deal with the evidence of a witness discharged in such circumstances. There is, however, some authority as to how to deal with evidence upon which there has been no opportunity to cross-examine, because, for example, a witness had died. It has been held that such evidence is admissible but that the “‘court [would] not attach so much weight to it as it would have been done if there had been an opportunity of cross-examination’, Daniell’s Chancery Practice, 6th Ed, p 786”Estex Clothing Manufacturers Pty Ltd v Ellis & Goldstein Ltd (1967) 116 CLR 254 at 263. In that case, a witness who had died by the time the trial came on for hearing swore two contradictory affidavits. Windeyer J said at 263:

‘The latter I think makes the former of no weight; and it can itself be of little or no weight in the circumstances, except to the extent that it is supported by documents which accord with other evidence to which I shall come later.’

189     Abadom v Abadom (1857) 24 Beav 243 is to the same effect. There it was held that whilst an affidavit of a witness who had died could be read, the court would ‘pay much less attention to it than the other evidence’.

190     The case of R v Stretton (1988) 86 Cr App Rep 7, is perhaps closer to this. The complainant in a sexual assault trial took a series of epileptic fits during the course of her cross-examination. She was discharged from giving further evidence. The trial judge allowed the trial to proceed but gave the jury a warning in terms that if they were of the view that the defendant was deprived of the opportunity of properly testing and probing the complainant’s evidence, he ‘advised’ they should acquit the defendant. If, however, as a matter of ‘commonsense and fairness’ they considered they had had ‘a fair and complete opportunity of judging her credibility’ they should assess the case accordingly. The English Court of Appeal held that it was a matter for the trial judge’s discretion as to whether to permit the trial to continue and no error had been shown in the manner in which he had exercised that discretion.

191     Likewise, in Meyer v Hall (1972) 26 DLR (3d) 309, it was held that it was a matter for the discretion of the trial judge as to the weight to be given to the evidence of a witness who could not be cross-examined, including if the trial judge thought appropriate, ignoring the evidence.”

In my opinion, in the circumstances his Honour was correct in treating [the deceased deponent’s] evidence with great care, and did not err in the approach he announced.

522    In accordance with these well-established principles, in my view, the evidence of the Dead Experts should have been approached with considerable caution. The weight that should have been given to this untested material necessarily affected its probative value. As Mahoney JA explained in Clyne v Law Society of New South Wales (Court of Appeal of New South Wales, 4 September 1987, unreported) “experience has shown that it is proper to treat with considerable reserve evidence, or the inference from evidence, which has not been subjected to cross-examination”. These general observations affecting probative value (and ultimate weight) are fortified when one considers the specifics of the opinion evidence detailed above.

523    As is customary in a judge alone trial, the primary judge did not provide detailed reasons, which separately assessed the probative value of the evidence, and then addressed whether that probative value was substantially outweighed and which then traced the balancing exercise. No criticism should be made as to this approach. Indeed, as might be expected, her Honour made all evidentiary rulings with her customary dispatch and consistent with the need to ensure the trial was conducted efficiently. What happened was as follows.

524    In respect of the report of Dr Gandevia, the prejudice was articulated in a number of ways, but the crux of the argument of Mr Herron and Dr Gill centred on the absence of some of the underlying death certificates and the inability to cross-examine Dr Gandevia about the statistical conclusions he reached in his report. In rejecting this argument, her Honour ruled:

I think the evidence is of substantial probative value. In those circumstances Im not able to say that the risk of unfair prejudice to the applicant … substantially outweighs the probative value of this evidence, which appears to be largely statistical. And based on an analysis of the death statistics at [Chelmsford] compared to New South Wales average death rates … I don’t think that I can exclude this evidence under section 135 of the Evidence Act

525    Further, her Honour noted, in response to a query from counsel as to whether her Honour was minded to make a limitation in relation to Dr Gandevia’s assumptions:

No. I’m not minded to make a limitation order in relation to the assumption, given that it has clearly been based on primary material and where it’s admitted the underlying facts are also allowed in. So I’m not minded to specifically limit the use of the material in the report, so it’s in for all purposes. It essentially comprises a summary of death certificates and I think that it’s perfectly appropriate to have that in a summary form.

526    And, after further submissions which might not unfairly be described as cavilling with this ruling, reference was made on behalf of Mr Herron and Dr Gill to the fact the underlying material that Dr Gandevia purports to summarise was not in evidence. But notwithstanding this fact, the nature of the evidence generally, and the inability to cross-examine Dr Gandevia, the report was accepted into evidence (including as proof of the content of the death certificates not in evidence).

527    In respect of Dr Hassall, counsel for Mr Herron and Dr Gill accepted, given the rulings that had already been made (and the fact that all the underlying documents referred to in the report had been provided), that the only remaining objection was based upon “the inability to cross-examine Dr Hassall [which] creates … unfair prejudice”. Counsel for the publishers submitted that this was a matter directed to weight. Her Honour ruled that:

In all of the circumstances of this matter Im not persuaded that the probative value of this report would be substantially outweighed by the danger of unfair prejudice to the respondents given the time at which the hearsay notice was served, the ability they had to get expert evidence in relation to it if they wished, and the fact that all of the underlying material seems to be available.

528    With regard to the report of Dr Greenaway, counsel for Mr Herron and Dr Gill relied on the fact that some of the documents referred to in the report were not in evidence, and again that Dr Greenaway was unavailable for cross-examination. Her Honour concluded that, “[c]onsistent with the previous ruling, I am going to admit the evidence in [the] hearsay notice. The reports of Dr Joseph, relating to the deaths of Ms Bennett, Mr Neave and Mrs Leousis, were dealt with in a similar fashion, and were admitted by her Honour notwithstanding the objection taken due to the lack of underlying material and an inability to cross-examine Dr Joseph.

529    To the extent consideration was given as to the probative value of each of the Dead Expert reports, it is evident that her Honour approached the issue on the basis that the probative value of the evidence should not have been discounted in any way notwithstanding the deficiencies in the expert material identified above, and the inability to test the opinions in any way by cross-examination. It is evident (as reflected, for example, in the reasons given in the judgment referred to above at [458] and [467]) that her Honour considered there was no reason to “discount” the probative value of the opinion evidence of the Dead Experts or otherwise approach it with caution because there was no basis to conclude that the experts were doing anything other than giving their objective opinion based on the material they held when preparing the reports.

530    Although no doubt considerable deference should be given to a trial judge as to the assessment of the probative value of evidence (like any question of weight), I do not, with respect, consider it was open to reach the conclusion, apparently reached by the primary judge, as to the probative value of the evidence for the purpose of considering the discretionary exclusion of the evidence. Authority establishes that a witness being unavailable for cross-examination ordinarily, at least to some extent, diminishes the weight to be afforded to their evidence. This is particularly the case where the other manifest deficiencies in the opinion evidence exist (explained above in the context of discussing admissibility). The opinion evidence, if admissible, was required to be treated with considerable caution and this, in my view, ought to have been the starting point for consideration as to whether: (1) that limited probative value was substantially outweighed by the danger the evidence might be unfairly prejudicial to Mr Herron and Dr Gill; and (2) the balancing exercise in the discretionary consideration as to whether the evidence should be the subject of exclusion.

531    As explained above, the opinions (including representations or assertions as to facts made in the reports which were not otherwise in evidence) were regarded as having substantial probative value (and indeed were ultimately afforded considerable weight in her Honour concluding that the defence of substantial truth had been made out). This is a case where Mr Herron and Dr Gill were unfairly prejudiced by the evidence, given they were prevented from properly challenging the reliability of the reports, particularly when it could have been assessed, at the time of tender, that the reports could be important to the outcome of the defence of substantial truth.

532    Although in this context it is relevant to take into account the steps that might have been taken by the opposing party to address the risk of unfair prejudice without the need to exclude the evidence, including calling other evidence to qualify or explain it, this is not a powerful factor in the present circumstances. The difficulty was in identifying what actually had been relied upon by the Dead Experts and understanding the process of reasoning. Moreover, it was the publishers that bore the onus of proving their truth defence and they made the deliberate forensic choice not to adopt what might be regarded as the conventional approach of briefing experts during the currency of the proceeding with such materials as remain available and asking them for their opinion. Counsel for the publishers did not provide any reason why opinion evidence on the topics addressed by the Dead Experts could not have been attempted to be replicated by an expert who would have been bound to approach the task of providing those opinions by reference to modern standards and be available for cross-examination. It is no answer to assert that different opinion evidence could have been adduced by Mr Herron and Dr Gill – they did not bear the relevant onus and did not have access to the same materials as the Dead Experts.

533    For the reasons outlined above, and with respect, error has been demonstrated in the primary judge admitting over objection and relying upon the opinion evidence of the Dead Experts. I will return to the implications of this conclusion and how it affects the primary judge’s findings in respect of the truth defence below.

C.7    Grounds 4(e)–(m): The Publishers’ Other Experts

534    Grounds 4(e)–(m) relate to the expert evidence adduced by the publishers and relied upon by the primary judge, namely the evidence of Professor Ian Whyte, Dr John Sydney Smith, Professor Ian Hickie, Professor Gordon Parker, and Dr Jonathan Phillips (Publishers’ Other Experts). Notably, unlike the Dead Experts, the Publishers’ Other Experts were cross-examined.

535    At Part 6 of the primary judgment, her Honour turned to consider the evidence of the Publishers’ Other Experts. At the commencement of this section, her Honour rejected the evidence of Dr Clark, an epidemiologist, who had considered the allegations in the defence that the overall mortality rates for DST patients was 17.1 deaths per 1000 admissions compared to an overall mortality rate for the general population of New South Wales at the time of 10.56 deaths per 1000 population. Dr Clark’s evidence compared the mortality rate of patients at Chelmsford undergoing DST with the mortality rates reported for psychiatric inpatients. In so doing, Dr Clark assumed the occurrence of 24 deaths at Chelmsford in respect of patients undergoing DST from a total of 1115 patients who were treated with DST for the period 1965 to 1979. Relevantly, he had used these calculations to support the conclusion that the mortality rates at Chelmsford were commensurate with those found in comparable jurisdictions for people diagnosed with serious mental illness and psychiatric patients. Her Honour rejected this evidence in part because of the difficulties with the underlying data relied upon by Dr Clark, and in part because the nature of the comparison which Dr Clark undertook was “misconceived”, given all the deaths at Chelmsford were a result of related treatment, not simply people who may have once been a psychiatric inpatient and died (for a multitude of different reasons): see J [222]–[226].

536    Her Honour then went on to make findings in respect of the Publishers’ Other Experts. To understand how these grounds of appeal fit within the broader mosaic of the evidence, it is convenient to canvass briefly the evidence of the Publishers’ Other Experts, the objections taken to their evidence below, and relevant findings made by her Honour. As will become apparent, in the case of all the Publishers’ Other Experts, objections were taken on the basis that, among other things, the experts expressed opinions outside their area of specialised knowledge, and therefore did not satisfy the s 79 exception to the opinion rule in s 76, and their reports should otherwise have been excluded in accordance with s 135 of the Evidence Act.

Publishers’ Other Experts

Professor Hickie

537    Professor Hickie started medical practice in 1982 and became a registrar in psychiatry in 1984. He provided an expert report based on instructions he received and a summary of the history of DST in a textbook. Professor Hickie gave evidence concerning coma based therapies and ethical practice, which is summarised in depth by the primary judge at J [340]–[389]. He identified coma based therapies as having entered psychiatry in the 1930s and continued until the early 1960s, but that the toxicity and potential fatal outcomes involved were recognised and widely reported from the time of their initial use. He gave evidence that from the late 1950s onwards, various medications became available that provided specific and much safer alternatives, and that by the mid to late 1960s a professional and ethically-based approach would require the cessation of all coma based treatments. Indeed, he opined that from the mid-1960s onwards any further development of coma based therapies could only be considered as experimental and well beyond the scope of normal practice.

538    In summary, Professor Hickie gave evidence that normal professional behaviour during the period of administration of DST at Chelmsford would have required a number of stringent measures to have been put in place, and there were expected ethical and professional standards in operation, particularly with respect to “experimental” therapies such as DST: J [341]–[342]. Professor Hickie confirmed that the standards are continuously improving in relation to the regulation of experimental practice in psychiatry, as with the entire field of experimental medicine, but considered that “the ethical frameworks have not altered greatly in relation to the obligation of practitioners to observe, particularly in areas of experimental medicine, the accurate recording of the benefits, the risks, the harms that may occur. Indeed, he rejected the proposition that the ethical standards in the 1960s differed from those today: J [348].

539    Professor Hickie did not see the existence of other publications after the 1960s as altering the fact that there had been a “fundamental change in the direction of practice away from this style of treatments, due to its morbidity and its problems”: J [360]. He also rejected the notion that there may have simply haven been different schools of thought, in circumstances where a treatment “runs the risk of exposing the person to significant harm, including death”: J [363]. Indeed, Professor Hickie explained that with the availability of alternative treatments in the 1960s and 1970s he did not think “any conditions would be appropriate for deep sleep therapy”: J [367].

540    He concluded that a clinician who was providing the “treatment” described at Chelmsford was acting negligently, unethically and was engaged in medical malpractice. The basis for this opinion was that the “treatment” was conducted without proper attention to: informed consent; the provision of appropriate alternative and safer treatment options; management of predictable risks; and systematic recording, and then immediate reporting of serious adverse events, including fatalities, to appropriate professional and independent bodies. He designated the treatment at Chelmsford as experimental, lacking the required safeguards, and opined that the manager of a hospital that was administering the treatment (if such a person had medical expertise), would also have acted negligently and unethically. He stated that once the rate of adverse events was evident, including any specific fatality, the manager should have terminated the provision of treatment immediately.

541    A common objection taken to the reports of Publishers’ Other Experts, and which I have already explained above was determined on a representative basis, was that the reports should have been rejected because of a failure to comply with the Code and the requirements of the FCR: see [496]. As her Honour found, and as the parties accepted, non-compliance with the FCR goes to the weight to be given to the evidence, not admissibility. For reasons also explained above, there was no error in this approach, and I will not detail it again in respect of each of the Publishers’ Other Experts.

542    Similarly, I have also already canvassed above her Honour’s ruling in respect of an objection that the opinions expressed by Professor Hickie as to whether a clinician who was providing the “treatment” described at Chelmsford was acting negligently, unethically and was engaged in medical malpractice, was not within his specialised knowledge. Her Honour found it was: see [496]. In respect of whether Professor Hickie had the relevant specialised knowledge to opine in respect of the position of a manager of a hospital, her Honour found:

Professor Hickie obtained his basic medical qualifications in 1982. I don’t think there is any reason to infer that Professor Hickie is incapable of giving expert opinion, based upon his specialised knowledge as a medical practitioner about [the position of a manager of the hospital].

543    It is then necessary to turn to how the evidence of Professor Hickie was dealt with by her Honour in the primary judgment. While Professor Hickie gave evidence that he worked in large public hospitals and did not work in any private hospital, and he had assumed he could base his opinions about DST at Chelmsford on the allegations in the pleadings, he emphasised his training in this area was extensive. By this, the primary judge considered “Professor Hickie had extensive expertise in respect of the history of psychiatry in Australia”: J [345].

544    Further, while her Honour found that the summary of “treatment” at Chelmsford in the letter of instruction provided to Professor Hickie was inaccurate in some respects, the inaccuracies were immaterial and the essential aspects of the description accorded with the weight of the evidence: see J [365]–[366]. This led her Honour to conclude (at J [366]) that:

Accordingly, Professor Hickie’s evidence cannot be discounted due to any unreliability in his assumptions. It is also evident that his assumptions were confined to DST as practised at Chelmsford – the balance of his evidence about narcosis therapy and it being outmoded by the 1960s was based on his medical expertise.

545    After addressing in depth the evidence of Professor Hickie and the attacks of Mr Herron and Dr Gill on such evidence, her Honour concluded that none of the criticisms of the evidence of Professor Hickie have merit. Her Honour stated (at J [384]) that:

It is immaterial that Professor Hickie was not admitted as a psychiatrist until 1984. He had knowledge of the history of psychiatry and in particular of the history of narcosis therapy. It is immaterial that Professor Hickie had not practised in a private hospital. He had knowledge of the Australian hospital system as a whole and did not accept the distinction in standards the applicants sought to draw between public and private hospitals. Nor did he accept that the legislative regime for managing private hospitals in the 1970s determined acceptable practices at the time. Professor Hickie’s expertise and particular interest in sleep/wake cycles and the history of psychiatry in dealing with the issue meant that he was well qualified to give the opinions he did. I do not accept that Professor Hickie’s opinions were not based on his specialised knowledge. They manifestly were based on his highly specialised knowledge about the history of psychiatry in respect of sleep/wake cycles.

546    Her Honour similarly agreed with Professor Hickie that it was unnecessary to conduct a literature review given his practice in the area: see J [382], [384].

547    Ultimately, the primary judge concluded that “Professor Hickie’s evidence [was] cogent and persuasive”: see J [389]. As with the evidence of the Dead Experts, while her Honour foreshadowed that non-compliance with the FCR and the strictures of the Evidence Act was more directed to weight rather than admissibility, her Honour accepted the evidence of Professor Hickie without discounting the weight to be afforded to his evidence.

Professor Whyte

548    Professor Whyte is a clinical pharmacologist and clinical toxicologist and had previously prepared a report for the Royal Commission. His report in this proceeding was informed in part by the initial report he had provided to the Royal Commission.

549    The evidence of Professor Whyte is detailed by the primary judge at J [227] – [245]. Relevantly, Professor Whyte examined the dosage regimes used in DST at Chelmsford and provided a number of damaging conclusions, including that there were no uniformly accepted indications for the drug regime used in DST at Chelmsford, a simple risk-benefit assessment would indicate a very high risk of serious, potentially life-threatening adverse effects with minimal or no benefits, and there is no reasonable level of patient care and safety that could be achieved while administering the drug regime involved in DST at Chelmsford: J [229]–[231].

550    Professor Whyte said he had completed a literature review at the time he prepared his original report for the Royal Commission and could find nothing supporting the use of DST (albeit, this was not mentioned in his report in this proceeding). He explained that as a pharmacologist he was qualified to “talk about the drugs, their effects on people, the way the drugs are affected by the person and the conditions they have”: J [232].

551    A key objection of Mr Herron and Dr Gill below in respect of Professor Whyte’s evidence was that the opinions he expressed were outside his area of specialised knowledge. Her Honour rejected this submission, concluding:

Professor Whyte was admitted to his basic MBBS qualification in 1976, became a Fellow of the Royal Australian College of Physicians in 1984 before obviously taking a course of conduct which led to his specialisation in toxicology. I do not see that specialised knowledge as a psychiatrist is necessary to answer question 1, which operates by reference to acceptable practice having regard to the drug regimen, and in circumstances where Professor Whyte is both a physician and a toxicological expert, I see that it is squarely within his field of specialised knowledge to provide an answer to question 1. It then also follows that he is squarely within his field of expertise to provide expert evidence on the reasonableness or otherwise of the risk of adverse reaction and/or toxicity, and, being a physician, I am unable to see why he would not be also within his field of specialised knowledge to deal with the reasonableness or otherwise of levels of patient care and safety, and accordingly, I would reject the submissions for the applicants in respect of the inadmissibility of the report of Professor Whyte.

552    A further objection was taken below as to the manner in which Professor Whyte was briefed; namely, that he was not briefed with any underlying material, but simply his original report from the Royal Commission. Counsel for Mr Herron and Dr Gill submitted below that this was “problematic”, given that for some of the patients in respect of whom Professor Whyte opined, his opinions could not be tested alongside the underlying material which he took into account in writing his initial report to the Royal Commission. In this respect, the primary judge exercised a discretion to admit the report, given her Honour could not identify any prejudice flowing from the lack of underlying material.

553    The primary judge ultimately concluded that Professor Whyte’s evidence was “rational and persuasive”, noting that the “fact that Professor Whyte is not a psychiatrist is immaterial’: J [239]. Indeed, her Honour stated that (at J [239]):

The point of his evidence is that there was no reported clinical indication for the drug regime involved in DST at Chelmsford other than in severe head injury. As he said, he did not need to be a psychiatrist to know that the risk profile associated with the drug regime in DST at Chelmsford was so high that there would need to be a scientific study proving its capacity to save lives before that regime could reasonably be implemented. He found no evidence of any such study or any documented benefit as a result of his literature search. He did not concede that he had merely assumed no benefit. His assessment of the lack of any benefit that could possibly be worth the very high risk was based on his expertise in drug uses and his literature search.

554    Her Honour also found that it did not matter that Professor Whyte “undertook [a] literature search when preparing his report for the Royal Commission and could not now reconstruct its details”: J [239]. Further, her Honour found the fact that Professor Whyte relied on information from his report to the Royal Commission was “immaterial”, stating that the “report was admitted into evidence and its contents are admissible for all purposes”: J [240].

555    Ultimately, her Honour found that with the level of barbiturates being routinely administered as part of DST at Chelmsford the position was akin to an ongoing gamble with the lives of patients: J [244]. This lead her Honour to conclude that “[b]ased on Professor Whyte’s evidence I am satisfied that the drug regime involved in the practice of DST at Chelmsford had a very high risk of serious, potentially life-threatening adverse effects, without any proven benefit”, and there was “no reasonable level of patient care and safety that could be achieved while administering the drug regime involved in DST at Chelmsford: J [245].

Dr Phillips

556    Dr Phillips has practised as a psychiatrist since 1973. He provided an expert report in the proceeding on the basis of the pleadings and certain medical records. In parts of his report, he referred to an earlier report he had provided to the Royal Commission. His evidence is detailed by the primary judge at J [300]–[339].

557    Dr Phillips became aware of DST in the mid-1970s and has been concerned about it since then. He was unaware of any scientific data to support the premise that “turning off” brain activity would allow the brain to regain equilibrium. He described DST as an experimental procedure, which required fully informed consent. Dr Phillips examined certain patient files and concluded that the treatment of the patients at Chelmsford was not acceptable according to the standards of the times and was so far removed from the actions of reasonable peers as to constitute negligence and medical malpractice. As recorded by the primary judge, he opined on a number of other matters, including the risks of DST, the lack of any standards in respect of obtaining consent and deficiencies in record keeping: see J [300]. He gave evidence that each patient who was treated with DST at Chelmsford was managed in a reckless manner, with treatment placing each patient at risk of immediate complications and adverse long-term consequences: see J [300].

558    Dr Phillips stated that nothing that had been put to him in cross-examination altered his opinions that the treatment of each patient at Chelmsford with DST was not acceptable medical practice at the time, that Mr Herron and his colleagues acted negligently and that the manager of Chelmsford, being a general practitioner, should have appreciated the potential danger associated with DST: see J [322]. Further, Dr Phillips confirmed the passage of time had not caused him to change his opinions about DST, nor had his review of additional patient records for the purposes of this proceeding. He assumed the records and the pleadings were true and correct. He also accepted that given his long involvement with matters involving Chelmsford he had material in his mind from which he could not resile: J [301].

559    Below, a 135 objection was taken to Dr Phillips’ report on the basis that there was a failure to disclose relevant materials underlying his expert opinions. In response to a long exchange on this topic, counsel for the publishers submitted:

Dr Phillips is going to be here in any event, and he can be cross-examined on these matters. It is true that there is some material which we don’t have available that has been relied upon in the formulation of these later reports, but what we do have is the medical records for those patients. And again, your Honour, our submission is … it’s a question of weight. Dr Phillips can be cross-examined on these matters, and if it appears that he’s taken into account a large number of matters which have caused prejudice, then your Honour can give the reports what weight they deserve.

(Emphasis added).

560    Her Honour accepted this submission and ruled as follows:

In circumstances where the Chelmsford medical records for each of these patients is available and Dr Phillips, himself, is available for cross-examination, I’m minded to admit the historical reports and the summary of the historical reports which is contained in Dr Phillips’ primary report to the court. While I accept that we do not have available to us every document with which Dr Phillips was briefed back in the mid-1980s and early 1990s and mid-1990s, I do not see that the prejudice that that may cause to the applicants is sufficient to outweigh the potential probative value of his evidence, and, accordingly, it will be admitted.

561    Further, in respect of a complaint that Dr Phillips’ evidence in respect of the management of hospitals was not wholly or substantially based on his specialised knowledge, her Honour found:

Consistent with my earlier ruling on that matter, I think the key to the question is the status of the person as a general practitioner in the position of being a manager of the hospital, and, accordingly, I will allow the answer to [the relevant question].

562    In respect of various other parts of Dr Phillips’ report that it was said were not wholly or substantially based on his specialised knowledge, her Honour either overruled the objection, or confirmed the publisher’s would need to clarify certain matters in oral evidence in chief.

563    Notwithstanding some inconsistencies in his oral evidence, her Honour ultimately found that “[n]one of the oral evidence [Dr Phillips] gave undermined his opinion that, at the time, DST was an experimental and unproven therapy involving significant risks which should not have been administered to any patient: J [332]. Her Honour also observed that [t]he fact that Dr Phillips had not conducted a full literature review is immaterial”, given the “applicants have not proved that any of the literature which they tendered involved DST as administered at Chelmsford and, where there is comparative evidence, it is firmly to the effect that much of the literature concerns narcosis therapy which was materially different from DST”: J [332].

564    As to the criticisms advanced that Dr Phillips had a well engrained view of DST at Chelmsford, her Honour stated (at J [334]–[335]):

The fact that Dr Phillips had a long involvement with the review of DST at Chelmsford and accepted that he could not remove that knowledge from his mind does not undermine the validity of the opinions he presented. The fact is he had a strongly adverse view of DST in the mid-1970s given his knowledge of what it involved and remains of that view. This does not mean it was impossible for the applicants to test his opinions. The applicants refrained from directly challenging Dr Phillips about the fundamental opinions he held that DST was a highly risky unproven and experimental procedure which should not have been administered to anyone either alone or in combination with ECT.

I do not agree that Dr Phillips’ report should have been excluded under s 135 of the Evidence Act 1995 (Cth) because its prejudicial effect outweighs its probative value. Dr Phillips is a highly qualified and experienced psychiatrist who was practising in the early 1970s. His evidence is of substantial probative value and is entitled to significant weight. The applicants were free to test all of the opinions which Dr Phillips expressed. They chose their forensic course by focusing on day-to-day treatment issues and hypotheticals rather than directly confronting the real thrust of Dr Phillips’ evidence.

(Emphasis added).

565    Her Honour similarly rejected there being any irregularity in Dr Phillips being given overnight to prepare for his re-examination, instead finding that his evidence in re-examination was “entitled to significant weight given that it explained the relationship between Dr Phillips’ fundamental opinions about DST and the very lengthy evidence he gave in cross-examination about the day-to-day management of patients: J [338].

Dr Smith

566    Dr Smith is a psychiatrist who graduated in medicine in 1964 and qualified as a psychiatrist in 1969. He practised as a psychiatrist until about 1990, after which he ceased to be registered as a medical practitioner and undertook medico-legal consultancy work. Dr Smith provided a number of reports to the Royal Commission in relation to the practices at Chelmsford and in respect of a number of specific patients, including Ms Miriam Podio, Ms Coralie Walker and Mr Hart. His evidence is detailed at length by the primary judge at J [246]–[276].

567    The report that he provided in this proceeding relied heavily on the opinions expressed in his previous reports to the Royal Commission, and annexed parts of those reports.

568    Indeed, at the commencement of his report, he stated:

I no longer hold personal copies of my reports, or relevant documents that were supplied to me at the time I wrote the reports, concerning Barry Hart, Miriam Podio, Coralie Walker or Elsie Dennis.

You have provided copies of the reports and clinical notes of Miriam Podio and Coralie Walker obtained from the archives of the Royal Commission into Deep Sleep Therapy.

I have re-examined these documents to confirm the statements made in my respective reports. My report concerning Barry Hart was not found in the archives but you have supplied the relevant Chelmsford Hospital and Hornsby Hospital notes that allows me now to provide an analysis of those notes which is attached as Appendix 1.

569    Dr Smith accepted his report in this proceeding was based wholly on his previous reports to the Royal Commission and patient notes: J [253]. He also accepted that he was not an expert who could express opinions about the cause of death or about pharmacology, and that he had not conducted a literature review for his report: see J [253]. As somewhat of a curious side note, Dr Smith agreed that during the Royal Commission he had alleged that the Cerebral Surgery and Research Unit established by Dr Bailey had been funded by the CIA, that he had made at least six complaints about Dr Bailey to various bodies, was publicly critical of practices at Chelmsford, and had given evidence against the doctors involved in DST a number of times: J [254].

570    Dr Smith gave evidence that the mortality rate for prolonged narcosis therapies of between 1% and 5% made it far more dangerous than other therapies at the time. He outlined a number of stringent requirements that should have been applied when administering DST and ECT to patients at Chelmsford, such as Ms Podio, Mr Hart and Ms Walker, and noted that in none of the cases were these requirements met: J [248]. In particular he noted that the “level of sedation was at times so deep that [these patients] were incontinent of urine and required feeding through a [tube]” and respiratory depression was evident in all three cases: J [248].

571    Dr Smith considered that Ms Podio was an apparently healthy 26 year old woman who was admitted to Chelmsford and commenced DST on 28 July 1977, her clinical notes indicate she was severely ill from the first day of treatment, she died on 12 August 1977, and that her death was likely caused by the DST administered: J [249]. Dr Smith accepted he could not express a concluded view as to the cause of death but noted Ms Podio had been vomiting up a dark substance which would have been either faeces or blood, indicating abdominal obstruction was the most likely cause of death: J [249], [267]. In respect of Ms Walker, Dr Smith considered she had suffered a cardiorespiratory arrest with resultant brain damage as a direct result of the DST: J [250].

572    Further, Dr Smith gave evidence that he had interviewed Mr Hart for four and a half hours in relation to Mr Hart’s case against Mr Herron. Dr Smith accepted that a CAT scan he arranged for Mr Hart to take showed no brain abnormality but said anoxic brain damage does not show up on a CAT scan. He agreed that a lack of information meant that he could not form a view as to whether Mr Hart was an appropriate candidate for DST: J [253]. Nevertheless, he gave evidence that the most common complication of sleep therapy was bronchopneumonia so any temperature rise in a patient to the requisite degree would indicate pneumonia. Based on Mr Hart’s symptoms as disclosed in the nursing notes, Dr Smith said that with a “combination of high temperature like that and cyanosis and difficulty breathing – I don’t know that you could come to any diagnosis other than pneumonia”: J [261]. He opined that Mr Hart suffered anoxic brain damage with cognitive changes and a personality change which were a direct result of the DST administered to him at Chelmsford: see J [251], [261], [268]. This conclusion was based on Dr Smith observing Mr Hart in the four and a half hour interview he had with him, over 40 years ago.

573    The core objection taken below in respect of Dr Smith’s report, which was not the subject of cascading rulings I have already canvassed, was that the primary judge erred in relying on the evidence from Dr Smith about the physical effects of DST on Ms Podio and Mr Hart, as this evidence was outside his area of specialised knowledge.

574    In respect of this objection, her Honour ruled that “[a]s a physician and a psychiatrist, I consider that this witness does have the specialised knowledge to give an expert opinion of the cause of death of Miriam Podio.” Similarly in respect of an objection that it was outside Dr Smith’s expertise to opine that Mr Hart had “suffered anoxic brain damage with cognitive changes and personality changes” as a direct result of DST treatment, and that this was “a question for a neurologist … not for a psychiatrist”, her Honour found:

No. Look, I’m going to now allow the opinion to be expressed. He’s a physician and a psychiatrist he can speak particularly to cognitive changes as a result of brain damage.

575    In respect of how the primary judge dealt with the evidence of Dr Smith, her Honour rejected the attacks on his impartiality, stating (at J [252]):

The fact that Dr Smith gave evidence at the Royal Commission and continued to adhere to the conclusions he expressed at that time does not suggest any lack of impartiality. Nor does his expressed hope that others involved in the Royal Commission might also give evidence. Nor, for that matter, does the fact that he was an expert witness called by Mr Hart in his case against (then) Dr Herron. As he said, he attended court to give evidence about the treatment of Mr Hart. That fact did not (and does not) make him an advocate for Mr Hart. Dr Smith explained that from the time of the Mr Hart case against Dr Herron he believed Dr Herron and Dr Bailey were putting lives at risk with DST and wanted the matter investigated before other people got hurt. The fact that Dr Smith held (and holds) these opinions does not make him an advocate against the applicants. He was a psychiatrist at the time DST was being administered and was entitled to hold strong opinions, based on his expertise, about the risks of DST. Dr Smith agreed that he had assisted with two 60 Minutes television shows about Chelmsford but, again, I do not consider that the fact that Dr Smith was a strong and public critic of DST means that he is incapable of or did other than giving impartial expert evidence in the present case.

576    Her Honour also rejected Dr Smith’s opinions were affectedby the fact that he was relying upon the nursing notes only rather than information in other records”, and in any event, found nothing “undermined his fundamental opinion that DST was an outdated treatment at the time it was used at Chelmsford which placed patients at an unacceptable risk of death and serious complications”: J [271]. In respect of Ms Podio’s death, her Honour stated (at J [273]) that:

While Dr Smith accepted that he could not opine about the immediate cause of Ms Podio’s death he remained of the view that her death had been caused by DST. I consider Dr Smith’s opinions persuasive. As he said, all of Ms Podio’s symptoms emerged while she was undergoing DST. It is rational to infer that DST caused her symptoms (in the sense that it was a material contributor … to her symptoms) and thus her death irrespective that the immediate cause of death might bear a more precise and different label.

577    Ultimately, her Honour accepted as persuasive Dr Smith’s evidence that DST was an outdated treatment at the time it was used at Chelmsford which placed patients at an unacceptable risk of death and serious complications”: J [276].

Professor Parker

578    Professor Parker qualified as a psychiatrist in 1973. He provided a report to the Royal Commission which considered numerous patient files. His report in this proceeding was less than two pages in length, commented upon what he considered to be acceptable standards or practice during the years of treatment at Chelmsford, and relied heavily on the report he had provided to the Royal Commission. His evidence is dealt with by the primary judge at J [277]–[299]. Professor Parker’s essential conclusion was that DST as practised at Chelmsford was not acceptable at the time and has never been established empirically as a valid treatment: J [277].

579    He confirmed his opinion about unacceptable practices at Chelmsford in these words (at J [280]):

So it seemed to me that the multiple deaths created something that we’ve never had previously in Australia. Calamitous and catastrophic. And I think on – even on international standards, I cannot imagine in any western country where if patient deaths kept on occurring there would not be an immediate cessation of procedures and investigations to work out what was going on and why people were dying.

(Emphasis added).

580    He continued: “I mean, even if it was three patients, it seems to me my comment [above] applies. If it was 24, thats extraordinary”: J [281].

581    Further, in cross-examination, after being questioned at length about the appropriateness of responses by Chelmsford doctors, Professor Parker repeated (at J [293]):

I think we have to look at what is the basic issue of concern. The basic [issue] of concern is at least 24 people died. And that is an extraordinary event. And that deaths occurred for an extended period of time without those deaths being seemingly notified.

(Emphasis added).

582    He accepted that he was assuming that DST had caused the deaths: see J [282]. Professor Parker also accepted that he had read parts of the Royal Commission Report and assumed that its findings were correct: J [294]. Ultimately, the summary of his evidence by the primary judge reveals that he deplored the practices at Chelmsford as “unacceptable”: see J [283]–[284].

583    Once again, it is convenient to hone in on the objections taken to Professor Parker’s report not the subject of the representative rulings already canvassed above. The key objection levelled at Professor Parker’s evidence was that the only materials with which he was provided was his initial report and instructions from the Royal Commission, which comprised notes he had made on a series of medical records. Counsel for Mr Herron and Dr Gill below submitted that in respect of his report in this proceeding:

There is a summarisation of just claims, which presumably have been derived from those notes, bearing in mind that Professor Parker didn’t attempt to go back and re-look at the notes on this particular occasion, and just a list of examples of what he says are unacceptable practice.

In our submission, the probative value of this is lower than the other reports, and given that this is the fourth expert and there would be significant time to unwind what is a relatively short report would require a disproportionate cross-examination for what is a report that doesn’t really add anything to the other reports, and consistent with the principles of section 37N [of the Act], as recognised under the [Code], in our submission, given the deficiencies in the report and the prejudice in cross-examining on this particular report, that it should be excluded.

584    Her Honour rejected these arguments and admitted the report, ruling:

In circumstances where Professor Parker was a Registrar of the Neuropsychiatric Institute, as early as 1970, and provided expert opinion in relation to this matter far closer to the dates of the events in question … the probative value of the report is not outweighed at all by the potential prejudice which is caused by having more than one expert dealing with overlapping issues.

585    The primary judge ultimately found it irrelevant that Professor Parker did not become familiar with private hospitals until later in his career, noting that “poor practice was poor practice, irrespective of the nature of the hospital” and “[t]he fact that he did not have access to other sources of information about the patients he considered does not undermine the weight of his opinions: J [296]. Her Honour found that nothing in the cross-examination of Professor Parker came close to challenging his fundamental propositions (at J [299]) that:

(1)     DST has never been established empirically as a valid treatment for specific psychiatric conditions or as a non-specific modality having benefit across a range of psychiatric conditions; and

(2)     the death of one patient alone at Chelmsford while under DST should have led to an immediate investigation. If a second gravid incident occurred the procedure should have been suspended or ceased until the causes had been identified and corrective strategies introduced if the procedure were to be continued. However, DST continued at Chelmsford after several patients had died which was unacceptable clinical practice.

(Emphasis added).

586    The evidence of Professor Parker was therefore admitted, and not discounted by her Honour.

Consideration

587    It is unnecessary to set out the precise terms of Grounds 4(e)–(m). It suffices to say that Dr Gill contends the primary judge made a number of errors in the way in which her Honour admitted and relied upon the evidence of the Other Publisher’s Experts.

588    Flowing on from this, it is said her Honour erred in finding that deep sleep therapy was experimental by the 1960s and 1970s in circumstances where: (a) a large body of literature was available supporting the therapy at the relevant time (despite the decrease in its use); (b) Dr Bailey was an eminent and experienced psychiatrist who used the therapy on at least 3000 patients over two decades; (c) there was no evidence as to the clinical outcome for the majority of those patients, or the evidence otherwise demonstrated that the majority of patients had successful outcomes; and (d) the death rate at Chelmsford was consistent with or lower than rates of death reported in the large body of literature.

589    The central response to these criticisms is that they were matters for cross-examination, were put to the various experts in cross-examination, and after considering that cross-examination and the experts’ evidence as a whole, the primary judge accepted the experts’ evidence and rejected the criticisms of Mr Herron and Dr Gill. Relying essentially on the principles which I have summarised above (at [398]–[401]), it is said that the testing and weighing of expert evidence by reference to cross-examination is a matter in respect of which the primary judge has a particular advantage, and none of these criticisms would cause the Full Court to second-guess her Honour’s assessment and acceptance of the evidence of the Publishers’ Other Experts in this case.

590    Although the cumulative effect of letting in all this evidence notwithstanding its deficiencies and not discounting its weight might be thought to be problematical, for reasons I will explain when it comes to examining the imputations, given the findings that have been made in relation to the Dead Experts, it is unnecessary to express a concluded view as to whether Grounds 4(e)–(m) are made out.

C.8    Ground 4(n): Patient evidence

591    It is said her Honour erred in accepting as credible the evidence of past patients (or relatives of past patients) (Past Patients) where their evidence was contradicted, in material and significant ways, by the contemporaneous medical records. This ground of appeal can be dealt with briefly.

592    Unlike the other grounds of appeal, it is unnecessary to traverse the evidence of the Past Patients and their relatives in any depth. The relevant evidence, which was directed to the negative experiences of those who were admitted to Chelmsford and received DST and/or ECT, was generally accepted by her Honour. Specifically, her Honour found (at J [144]) that:

The applicants made wide ranging attacks on the credibility of these witnesses, blaming their unreliability on their pre-existing psychiatric conditions, sedatives they were given as part of DST, and their subsequent involvement with the Chelmsford Victims Action Group, as well as noting the lack of contemporaneous complaint and the effect of adverse publicity about Chelmsford on their thinking. These allegations do not confront the reality of DST and the harm that it was capable of causing and did in fact cause. None of the applicants’ criticisms undermine the essential thrust of the evidence – that for no sound medical reason and without their informed consent patients were subjected to a dangerous ordeal that many found terrifying and traumatising.

593    Moreover, her Honour accepted the submissions of the publishers that “[i]nsofar as there is any discrepancy between the evidence given and matters recorded in documents, those discrepancies are minor chronological matters of little significance”: J [145]. Indeed, it was said that nothing affects the substance of the evidence given of a callous, ineffective and terrifying treatment”: J [145].

594    On appeal, many of the same arguments are deployed – most centrally, that aspects of the contemporaneous medical records conflict with the witnesses accounts. For example, Dr Gill contends that every nurse who the publishers called contradicted the evidence of CW (one the Past Patients) that the doors at Chelmsford were locked, but notwithstanding this, the primary judge found that “it cannot be doubted that she felt like a prisoner: see J [138].

595    These contentions should be rejected. Not only do Dr Gill’s submissions misconstrue the findings of primary judge, they misapprehend the way in which her Honour ultimately dealt with the evidence of the Past Patients; that is to conclude that the attacks mounted by Mr Herron and Dr Gill did not undermine the essential thrust of the evidence – that for no sound medical reason and without their informed consent patients were subjected to a dangerous ordeal that many found terrifying and traumatising”: J [144] (emphasis added). Ground 4(n) is not made out, although, as will be seen below, this does not necessarily have a direct impact on the issue of the truth of the imputations.

C.9    Ground 4(o): Other findings

596    Finally, Dr Gill submitted that her Honour erred in making the following findings on the evidence admitted that were not reasonably open to find even accepting the admitted evidence was reliable and probative:

(1)    that a meeting occurred between Mr Herron, Dr Gill, Ms Fawdry and Ms Sansom as alleged by Fawdry (and denied by each of Mr Herron and Dr Gill and Ms Sansom) in circumstances where her Honour did not have regard to the evidence of Ms Sansom (adduced by the publishers) and the circumstances of the alleged meeting were inherently improbable;

(2)    Dr Gill falsified Ms Bennett’s death certificate; and

(3)    Mr Herron falsified Ms Audrey Francis’ death certificate and knowingly charged for services that he did not provide.

597    I will consider each of these findings in turn.

The Fawdry meeting

598    In canvassing the evidence of Ms Fawdry (at J [103]–[105]), her Honour noted that “Ms Fawdry recalled an occasion where she, Dr Gill, Mr Herron and Mollie Sansom (the receptionist) were in the Matron’s office discussing Mr Hart. To the best of her recollection the conversation in the Matron’s office was as follows:

In that conversation [it] was being discussed about how they could disguise the fact that Barry’s ECT wasn’t signed. The ECT authority was on the bottom of the identification sheet - the front page of the notes, and so it was sort of, like, I guess, a half an A4 size, and that wasn’t signed. So I can recall someone suggesting that perhaps we could - they could put a pathology report over the top of it to disguise the fact that that particular form wasn’t signed for.

599    In explaining why she had earlier denied the existence of this conversation to police, Ms Fawdry said:

I was very reticent to be part of anything that was going to threaten my registration. I was working as a registered nurse, I was a sole parent with three children, and I didn’t actually lie, but I just didn’t expand on the truth and I dodged around the issue so that I didn’t have to talk about it at all.

600    Ms Fawdry said the first time she ever told the truth about the conversation was at the Royal Commission because she did not have much to lose by then.

601    In respect of this evidence, her Honour ultimately concluded (at J [560]):

Contrary to the applicants’ submissions about the form for Mr Hart which had the bottom cut off (where the consent to ECT with a place for a signature appeared cut off and replaced by a copy of another form), I find Ms Fawdry’s evidence to this Court wholly believable. She said that in about 1978 she was involved in a meeting with Dr Gill, Mr Herron and Ms Sansom where it was discussed how the fact that Mr Hart’s ECT form was not signed could be disguised. Someone suggested that they could put a pathology paper over the top of it to disguise the fact that the form was not signed. Ms Fawdry’s evidence that she had not previously been frank in her dealings with police and others about her knowledge of this meeting due to fear for her nursing registration made sense. The applicants’ convoluted attempts to dismiss or explain away Ms Fawdry’s evidence are unconvincing. Having seen and heard Ms Fawdry’s evidence I have no doubt she was telling the truth about the meeting in the Royal Commission and in this proceeding.

602    Dr Gill submitted that this finding is “glaringly improbable” in circumstances where Ms Sansom denied being present at any such meeting, as did he and Mr Herron. It is said that notwithstanding Ms Sansom was called by the publishers, the primary judge failed to have regard to her evidence. It is said that this evidence should have been preferred in circumstances where Ms Fawdry denied being present at or aware of any such meeting to police in 1981 and made subsequent denials to police and to Mr Herron to the same effect over a number of years. Further, it is said that the content of the meeting as it is alleged by Ms Fawdry makes no sense given that the document in question had already been discovered by Mr Hart’s lawyers to not include his signature when they had custody of the medical records before this meeting is said to have occurred.

603    Dr Gill submitted this finding affected her Honour’s conclusion as to the truth of Imputation D. Although it might be thought this submission has some substance, for reasons I will explain, it is again unnecessary to express a concluded view on this issue.

Falsification of death certificates by Dr Gill

604    While the primary judge found that the imputation that relates to this finding (Imputation G) was not conveyed, her Honour went on to conclude that it was nevertheless true with respect to Dr Gill, based on the findings her Honour made in respect of Ms Bennett. The details of Ms Bennett’s death, as recorded by Dr Joseph, are detailed above (J [475(2)]). Relevantly, Ms Bennett’s death certificate, signed by Dr Bailey, records the cause of death and other information as follows:

(1)    the direct cause of death was a coronary occlusion;

(2)    the antecedent cause of death was excess obesity;

(3)    chronic lumbar spine disease and excess obesity contributed to the death; and

(4)    Dr Bailey had last seen Ms Bennett on 30 October 1975.

605    As will be recalled, Dr Joseph examined the relevant documents and concluded that the stated cause of death was probably incorrect and the most probable cause of death was that she had drowned in her own secretions, and that DST was the primary cause of death: see J [475(2)].

606    In the light of this evidence, her Honour found (at J [705]–[706]):

There is no reason not to accept Dr Joseph’s opinions in preference to those of Dr Bailey who had a strong motive not to wish to see another inquest into a DST caused death. It must be inferred that Dr Bailey falsified the death certificate to avoid identifying DST as the cause of death. There is also no evidence that Dr Bailey saw Ms Bennett on 30 October 1975 and I conclude that [this] part of the certificate is also false.

Dr Bailey was with Dr Gill at the time he signed the death certificate. The nurses notes for Ms Bennett record that both Dr Bailey and Dr Gill attended Ms Bennett shortly after her death. The cause of death from the death certificate is recorded next to their names in the notes.

(Internal citation omitted).

607    Her Honour went on to accept the submissions of the publishers that “despite stating that he had no recollection of Ms Bennetts death, Dr Gill refused to accept that as an attending doctor he would have discussed with Dr Bailey, or even considered, her possible cause of death”, and that Dr Gill must have known the cause of death listed by Dr Bailey and that it was false: J [706]. Her Honour concluded (at J [707]):

It is inconceivable that Dr Bailey and Dr Gill did not discuss and agree upon the stated cause of death of Ms Bennett. They both had good reason to wish to avoid implicating DST in her death. The objective evidence combined with their strong motive establishes the inference that they agreed to identify her cause of death as coronary occlusion despite there being no evidence to support that conclusion. In other words, Dr Bailey and Dr Gill were involved in the falsification of Ms Bennett’s death certificate.

608    The difficulty on appeal with this reasoning is that I have reached the conclusion that the evidence of Dr Joseph, as one of the Dead Experts, should not have been before her Honour. In circumstances where Dr Joseph’s opinion that I do not think that Dr Bailey who signed the death certificate was in a position to know the true cause of death” was a critical – if not the critical – integer in her Honour reaching the conclusion that Dr Gill falsified the death certificate of Ms Bennett, this finding cannot be sustained. This part of Ground 4(o) should succeed.

Falsification of death certificates and fraud committed by Mr Herron

609    As was the case with Dr Gill, while the primary judge found that the imputations that related to these findings (Imputations G and L) were not conveyed, her Honour went on to conclude that they were nevertheless true with respect to Mr Herron.

610    In respect of the first matter, that Mr Herron falsified death certificates, her Honour relied on the evidence concerning Ms Francis. Her Honour found that the evidence establishes on 14 March 1976 Mr Herron completed the death certificate for Ms Francis, stating she had died of myocardial infarct and did not mention that she had been receiving DST when she died: J [696]. Her Honour noted that Mr Herron completed the death certificate despite the fact that Ms Francis had died within 24 hours of being administered anaesthetic, which was an offence according to s 57(4) of the Registration of Births, Deaths and Marriages Act 1973 (NSW): J [697].

611    Based on what the primary judge found to be a number of inconsistencies in the evidence given by Mr Herron in earlier proceedings and to the Royal Commission, her Honour rejected any contention that he did not falsify the death certificate, and instead accepted the submissions of the publishers that he “signed the death certificate for Ms Francis, despite knowing that this was unlawful: see J [698]–[703]. As to the motive for this act, her Honour accepted the publishers’ submissions that “he did so to avoid a coronial inquiry into Ms Francis’ death so as to avoid scrutiny of the experimental drug regime which caused Ms Francis’ death”: see J [702]. The primary judge concluded (at J [703]):

Mr Herron’s self-serving and inconsistent evidence over the years leads to the conclusion that he signed the death certificate to avoid a coronial inquiry into Ms Francis’ death when, on the evidence, the actual cause of death was DST. In any event, the evidence of Dr Kariks, a pathologist, is clear – there was no evidence of a myocardial infarction in Ms Francis’ death. Mr Herron’s stated cause of death was false. In all of the circumstances it must be inferred that Mr Herron identified myocardial infarction as the cause of Ms Francis’s death rather than DST deliberately because he wished to avoid any scrutiny of DST as the cause of her death. As such, the evidence establishes that Mr Herron falsified the death certificate of Ms Francis.

612    As to the second matter, that Mr Herron and Dr Gill defrauded their patients’ health funds, while the primary judge found that the imputation was not conveyed, her Honour nevertheless concluded it was true with respect to Mr Herron (but not Dr Gill). In reaching this conclusion, her Honour noted that it is not in dispute that Mr Herron overcharged his patients and the Commonwealth for anaesthetic that he did not provide in the period 1973 to 1978: J [745]. Her Honour then summarised the publishers’ contentions as to the arrangements in place for the billing at Chelmsford, namely that Mr Herron would instruct his wife, Mrs Herron, what to charge each patient, and that he had an arrangement with Dr Gardiner whereby, when Dr Gardiner saw one of Mr Herron’s patients, Mr Herron kept a small amount of the fee and he paid the rest to Dr Gardiner: see J [747]–[748]. In respect of these matters, her Honour concluded (at J [479]) that:

Given the confusion in the evidence I am not persuaded that I can infer the existence of a fraudulent arrangement between Mr Herron and Dr Gardiner. However, the evidence about Mr Herron’s routine charging for anaesthetic in relation to ECT in circumstances where he mostly did not administer anaesthetic to DST patients is in a different category. Mr Herron must have instructed his wife to submit charges for anaesthetic. He knew he administered many ECTs without anaesthetic. It is impossible to believe that Mr Herron did not know that he was charging over many years for anaesthetics which had not been administered. The inference of dishonest intent must be drawn.

(Emphasis added).

613    On appeal, in respect of both matters, the core submission advanced by Dr Gill is that the evidence is simply insufficient to ground such serious findings.

614    As to the falsification of death certificates, it was said that the primary judge erred in concluding that it must be inferred that Mr Herron identified myocardial infarction as the cause of death to avoid scrutiny, as there is no evidence of knowledge on the part of Mr Herron that the stated cause of death was wrong.

615    As to the finding of fraudulent overcharging, it was said that the evidence reveals a number of patients received anaesthetic administered by Mr Herron, and he relied on handwritten documents that the Chelmsford staff prepared, which did not obviously identify which patients received an injection, nor is it known what records the Chelmsford staff relied on to create these handwritten documents. It was submitted that the accuracy of records is critical in assessing whether or not the publishers have proven the billings were not simply a result of oversight or shambolic practices. Indeed, it was said that in circumstances where Mr Herron has continued to deny this allegation, and the evidence reveals that alongside instances of overcharging, there are also instances of undercharging, the primary judge could not have reached the level of satisfaction necessary to conclude that Mr Herron engaged in fraud.

616    With respect to her Honour, I am inclined to agree, particularly when one appreciates the findings which I have made in respect of the evidence of the Dead Experts.

617    The allegations are very serious. As Sir Owen Dixon emphasised in a number of cases: when the law requires proof of any fact, the tribunal of fact “must feel an actual persuasion of its occurrence or existence before it can be found” (Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361)); a party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon (1937) 59 CLR 395 (at 403)); and the “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied” (Jones v Dunkel 101 CLR 298 (at 305)). These statements now find statutory force by way of s 140 of the Evidence Act, which not only requires (by way of subs (1)) that the decision maker must be satisfied on the balance of probabilities, but also (by way of subs (2)) requires the decision maker to consider each of the following matters when determining whether a case is proved on the balance of probabilities: (a) the nature of the cause of action or defence; (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged.

618    It is of note that the primary judge’s findings in this respect were necessarily based on the rejection of the evidence of Mr Herron. That underlying credibility finding itself was informed by Mr Herron’s denial that DST caused deaths at Chelmsford, which her Honour found was inconsistent with the weight of the evidence, including, notably, the reports of Dr Gandevia and the other Dead Experts. In circumstances where the evidence of the Dead Experts should not have been before the primary judge, for reasons I elaborate upon below, it is unknown the extent to which this assessment of credibility would have been the same, and whether the level of satisfaction required to sustain such serious findings of fraudulent activity should have been reached on the evidence properly admitted. In my view, this aspect of Ground 4(o) is made out.

D    IMPLICATIONS OF THE FINDINGS AS TO Ground 4

619    Having dealt with the substance of Ground 4, it is necessary to turn to consider how these findings affect the primary judge’s conclusions as to truth.

620    At this point, it is important to note that for reasons explained by Rares J, all imputations were conveyed. The consequence of this is that the primary judge’s findings as to substantial truth are brought into sharp focus. This is because, notwithstanding the primary judge’s findings as to meaning, her Honour found that for all but one of the imputations in respect of Dr Gill, the imputations were substantially true.

621    It should also be emphasised that the reason why it is necessary to consider the imputations relevant to Mr Herron in this section is for the reasons outlined by Rares J above – that is, notwithstanding the operation of s 10 of the Defamation Act, Dr Gill is entitled to contest the findings underpinning Mr Herron’s claim for defamation.

D.1    The imputations and the primary judge’s reasoning

622    Before turning to consider the impact of my findings on the primary judge’s conclusions as to truth, it is necessary to canvass, on an imputation by imputation basis, the reasoning that led her Honour to conclude the vast bulk of the imputations (whether found to be conveyed or not), were substantially true (noting that imputations A, B, C, D, I and N, are relevant to Mr Herron only).

623    In respect of Imputation A, that Mr Herron’s gross negligence as a psychiatrist nearly killed his patient Mr Hart, the primary judge rejected that the publishers were unable to demonstrate Mr Herron was negligent as a psychiatrist, and that the truth of this imputation turns on the evidence of Mr Hart who was not subjected to cross-examination but who was seriously discredited at the Royal Commission: J [645]–[646]. Importantly, her Honour found that[b]y administering DST to Mr Hart in 1973 Mr Herron’s conduct fell so far below the standard of care of a reasonable psychiatrist that the infliction of the treatment on Mr Hart must be found to constitute gross negligence”, and “[t]he evidence is also clear that the treatment nearly killed” him: J [646]. The evidence of Dr Smith and Dr Phillips was said to support this finding, and the grossly negligent treatment Mr Hart was subjected to at Chelmsford more generally.

624    In addressing Imputation B, that Mr Herron falsely imprisoned his patient Mr Hart, her Honour rejected the submissions of Mr Herron and Dr Gill that Mr Hart was an “opportunistic liar”, that “[h]e knew about the treatment he was prescribed and consented to it”, and any assertion that he was given a “magic white pill” was a complete fabrication: J [649]–[650]. Her Honour found Mr Hart’s consistent evidence that he did not consent to DST and ECT should be accepted”, noting that “[e]ven if Mr Hart’s reference to having been given a pill which made him unconscious is incorrect, that does not undermine the credibility of the essence of his complaint, that he was subjected to DST and ECT without his consent: J [650]. Her Honour observed that, in any event, it is clear Mr Hart was rendered unconscious and maintained in a drugged and stuporous state without his consent which made him effectively a prisoner at Chelmsford: J [650].

625    As to Imputation C, that Mr Herron caused his patient Mr Hart to deteriorate, in ten days, from a fit 37 year old man in peak physical condition to a person in agony and distress, vomiting blood and unable to move his limbs, her Honour observed that “Mr Hart’s evidence about his peak physical condition was persuasive” and when he came around from DST he was in agony, felt paralysed, suffered severe chest pain and vomited blood: J [654]. Her Honour stated that “[i]t is obvious that Mr Herron’s subjecting of Mr Hart to DST and ECT had caused him to deteriorate from a fit 37 year old man in peak physical condition to a person in agony and distress, vomiting blood and unable to move his limbs: J [654].

626    In respect of Imputation D, that Mr Herron caused his patient Mr Hart to be sedated and given electric shock treatment on six occasions, without Mr Hart’s consent, her Honour found thatthe inferences that must be drawn from the evidence are clear”; namely that Mr Hart was never told what DST involved and did not consent to DST and refused to consent to ECT, but Mr Herron nevertheless caused Mr Hart to be sedated and given ECT on six occasions: J [660]. This finding was based on, among other things, Mr Hart’s evidence, the lack of a consent form from Mr Hart for ECT, and the “cavalier attitude taken by all the doctors involved in DST at Chelmsford to the fundamental issue of consent: J [660].

627    Imputation E is that Mr Herron and Dr Gill used deep sleep treatment on their patients, despite trials by other doctors deeming the practice too dangerous. In finding this imputation was substantially true, her Honour relied on a statement given by Dr Barclay to the Royal Commission that there was a small trial involving patients at Parramatta Psychiatric Centre in 1957, in relation to which Dr Barclay said:We decided that we didn’t think it was terribly effective and it scared the living daylights out of us. We thought it was too dangerous to go on with at least so far as we were concerned in that setting. I mean, we just didn’t like it”: J [679]. In doing do, her Honour rejected the submission of Mr Herron and Dr Gill that this three line statement to the Royal Commission, in respect of which they had no opportunity to cross-examine, was insufficient to prove this imputation: J [679]–[681].

628    Imputation F relates to deaths at Chelmsford, namely that Mr Herron and Dr Gill continued to use deep sleep treatment on their patients despite the number of deaths it caused. This imputation was found to be conveyed: J [601]. In concluding that the imputation was true, her Honour stated that “[t]here is ample evidence that DST caused a significant number of deaths” and that “[t]he evidence is also clear that Mr Herron and Dr Gill knew that patients had died while undergoing DST at Chelmsford”: J [687]. Her Honour observed that “[t]he reliable evidence is that of the respondents’ experts and the patients”: see J [688]. This included the evidence of the Dead Experts.

629    The reasoning of the primary judge in respect of Imputation G, relating to whether Mr Herron and Dr Gill falsified death certificates, has been detailed extensively above: see [604]–[608], [609]–[618]. There is no need to repeat it here.

630    Although the primary judge found Imputation H was not conveyed, her Honour found that if it were, it was substantially true. Imputation H is that Mr Herron and Dr Gill lied to their patients’ families about how ill the patients were and denied those families visitation. In reaching this conclusion, her Honour made reference to various aspects of the evidence, including: Ms Bothman’s evidence that she was “given strict orders that patients were not allowed to have visitors while they were in the Sedation Wards; Ms CO’s evidence that she was told, in respect of her husband, “[y]ou’re not allowed to see him while he’s in sedation, it’s out of bounds”; Mr Nam’s evidence that he was told not to come in and see his wife while she was in sedation; Mrs Clarke’s evidence that she was not allowed to see her husband and told he was “doing well”, when this was not the case; and the fact that Mr Hart’s mother and sister were apparently told he was sleeping and not to be disturbed when in fact he was severely ill during DST: see J [719]–[725]. Her Honour concluded that it must be inferred that there was a general policy which was adopted by all of the doctors involved in DST that patients were not to have visitors while under DST and that their families were not to be informed about complications arising during DST including, if necessary, lying to the family by telling them the patient was asleep or doing well when in fact they were suffering from one of the many known complications of DST: see J [727]. Her Honour noted that in a small hospital such as Chelmsford Mr Herron and Dr Gill must have been actively complicit in the existence and enforcement of such a policy: J [727].

631    As to Imputation I, that Mr Herron’s gross negligence as a psychiatrist caused Mr Hart to suffer brain damage and post-traumatic stress, her Honour found that “there is good reason to accept Dr Smith’s evidence that Mr Hart suffered anoxic brain damage”, given “Dr Smith interviewed Mr Hart in 1979 for four and a half hours and reached this conclusion” and “was qualified to do so”: J [664]–[665]. Her Honour stated that “Dr Smith is the only expert who has assessed Mr Hart in person post-Chelmsford, and therefore his evidence should be accepted”: J [665]. The primary judge found that this was corroborated by Mr Hart’s evidence “that he suffered post-traumatic stress as a result of his experiences at Chelmsford”, which her Honour found to be consistent with the potentially traumatising nature of DST and the evidence of other patients about the impact their treatment at Chelmsford has had on their lives: J [666].

632    Imputation J again relates to the purported gross negligence of Mr Herron and Dr Gill causing the death of patients. While the primary judge found that this imputation was not conveyed, her Honour concluded that if it was conveyed, it was true: J [732]–[732]. The primary judge relied on the evidence of the Dead Experts and the Publishers’ Other Experts to support this finding, stating that, “[o]n the evidence, 23 deaths were caused by DST: J [732]. Her Honour noted that “[a]ll of this involved continuing gross negligence by Mr Herron and Dr Gill … [t]hey must have been wilfully blind to the harm which they were involved in perpetrating”, and “by their conduct, Mr Herron and Dr Gill materially contributed to (that is, caused) the death of many patients at Chelmsford from DST: J [732].

633    Imputation K was similarly found not to be conveyed, but substantially true in any event; that is Mr Herron and Dr Gill engaged in sustained medical malpractice and abuse of their patients. In rejecting the submissions of Mr Herron and Dr Gill that the use of DST on patients could not be considered malpractice given the literature, its long term use by Dr Bailey, and that no abuse of patients was ever put to Mr Herron or Dr Gill, her Honour stated that “the administration of DST by Mr Herron and Dr Gill to their patients constituted sustained medical malpractice and abuse of patients”: J [736]–[737].

634    I have already dealt above with the primary judge’s reasoning in respect of Imputation L, which relates to whether Mr Herron and Dr Gill defrauded patients’ health funds: see [609]–[618].

635    While the primary judge found Imputation M was not conveyed, her Honour noted that even if it was, it was substantially true: J [753]–[754]. That is, Mr Herron and Dr Gill traumatised many of their patients by giving them DST without their consent. Her Honour was “satisfied that DST patients did not give informed consent to the procedure”, because to do so they would have to have been informed of the risk of death and serious complications associated with DST; disclosures her Honour found it was highly implausible Mr Herron and Dr Gill were willing to make: J [753]. The process of informed consent, her Honour said, would have ensured that no patient was willing to undergo the procedure: J [753]. Her Honour concluded that “[f]rom the evidence, it must be inferred that there was a deliberate policy of describing DST to patients, if at all, in misleadingly euphemistic terms (such as a nice sleep or rest) without any reference to the risks or side effects involved”, which ensured “no patient could give meaningful consent: J [753].

636    In respect of Imputation N, that Mr Herron assaulted and battered his patient, Mr Hart, her Honour accepted that “the ordinary reasonable reader would understand the term assault and battery as being harmful or offensive contact with another persons body without that persons consent and without lawful excuse: J [673]. Her Honour found that Mr Herron caused Mr Hart “to be administered sedating drugs which kept Mr Hart effectively unconscious for 10 days … [and] he administered ECT to Mr Hart on six occasions”, in both cases the contact with Mr Hart being harmful and offensive and done without his consent: see J [674].

D.2    Examining the implications

637    As I have canvassed above, the grounds of appeal which succeed are Grounds 4(d) and 4(o) (except in respect of the Fawdry meeting). The effect of these findings is that the evidence of the Dead Experts should never have been before the primary judge, and the conclusion of the primary judge that Mr Herron and Dr Gill falsified death certificates, and Mr Herron defrauded patients cannot be sustained. While the direct consequences of these findings may be relatively simple to ascertain, it is necessary to consider their broader impact carefully.

The direct consequences

638    In the light of the above findings, attention is immediately drawn to Imputations F, G, J and L, where the direct consequences of these findings can be easily seen.

639    Imputations G and L are simple. The conclusion of the primary judge that Mr Herron and Dr Gill falsified death certificates, and Mr Herron defrauded patients, was erroneous, and the findings of truth in this respect should be overturned.

640    Imputations F and J add a layer of complexity. As is evident from the above, a critical integer in the reasoning of the primary judge in respect of these imputations was the premise that DST at Chelmsford caused multiple deaths.

641    The publishers contend that the primary judge’s use of the evidence of the Dead Experts was limited in the ultimate finding that DST caused deaths, noting that Dr Gandevia’s report was one of a number of items of evidence upon which the primary judge relied, and the reports of the other three Dead Experts were used by the primary judge to “confirm” that a particular death was caused by DST: see J [502]. It is submitted that her Honour’s ultimate conclusion as to the causal connexion between DST and deaths at Chelmsford would not have altered in the absence of the reports of the Dead Experts.

642    For reasons that follow, this submission ought not to be accepted.

643    I have detailed above the principles applicable to appellate restraint: see [398]–[401]. I am conscious that appellate restraint is not confined to credibility findings per se, but also all the advantages enjoyed by the trial judge, which may vary on a case by case basis, but generally includes facts in relation to which a judge made findings based on the evidence of a witness seen and heard by the judge.

644    Part of the evidence relied upon by her Honour in resolving the question of substantial truth in respect of Imputations F and J falls into this category. At J [502], when considering whether DST caused deaths at Chelmsford, her Honour referred to the evidence of the serious risks presented by DST, the kinds of complications to which DST is expected to give rise, the evidence of Professor Whyte about dosage regimes and the death rate he calculated from DST, the report of Dr Gandevia, and the admissions of Mr Herron. The primary judge found that the weight of the evidence overall was compelling and that even without Mr Herron’s admissions, the evidence was sufficient to be satisfied that DST caused the death of 23 patients (including the evidence referred to in the numbered subparagraphs of J [502]).

645    In forming the view that Mr Herron’s admissions were significant, the primary judge explained (at J [33]) that Mr Herron accepted during the Royal Commission that 26 people had died during or immediately after DST and that DST was a significant contributing factor to their deaths. This was in contrast to his evidence below that he did not accept that DST was a cause of these patients’ deaths. After having had the benefit of seeing Mr Herron, the primary judge concluded that it was difficult to imagine him having made any concession at any time unless it was unavoidable and that no cogent reason for the change in position was advanced.

646    But while her Honour’s conclusion was based on this evidence of Mr Herron, and the evidence as a whole, it is evident that the reports of the Dead Experts were clearly of importance. Indeed, the report of Dr Gandevia was a basis upon which her Honour considered it could be “safely inferred that DST caused (in the sense that it was a material contributor to) no less than 23 deaths at Chelmsford”: J [502].

647    As I have explained, the problem is that this report, together with the opinions of the other Dead Experts, ought not to have been before her Honour. This means we are dealing with more than a question of excessive weight to be given to part of the evidentiary mosaic, when a conclusion is based on the whole of the mosaic including evidence, in respect of which, the trial judge enjoys an advantage in assessing. The opinions of the Dead Experts were of importance and the Full Court cannot, as it were, unscramble the egg. The consequence is that it is unrealistic for a Full Court to unpack all the evidence on the topic of deaths at Chelmsford and conclude that the same finding should have been reached as to the truth of imputations F and J with elements of the evidentiary material absent.

The indirect consequences

648    Demarcating clear lines within the broader penumbra is less certain.

649    In respect of all of the other imputations, it is not immediately apparent that her Honour placed reliance on the evidence of the Dead Experts in finding that the relevant imputation was substantially true. But it would be superficial to conclude, if the evidence directly referenced in support of a finding of truth is not impugned, that the finding of substantial truth should stand.

650    The difficulty of attempting to reassess the whole of evidence that is left is compounded where, as here, the findings below build upon and complement each other. For example, it is no stretch to say that the conclusion a medical practitioner was negligent or engaged in malpractice is far easier to draw where there is evidence that that practitioner’s treatment caused the death of patients.

651    Any attempt to ascertain defined boundaries in the decision making process is also complicated where the decision-maker has accepted, and relied upon other evidence, which takes as a central premise the factual finding which is infected by the inadmissible evidence. This issue is particularly acute when one considers the evidence of the Publishers’ Other Experts. For example, as outlined above (at [581]), Professor Parker gave the following evidence:

I think we have to look at what is the basic issue of concern. The basic [issue] of concern is at least 24 people died. And that is an extraordinary event. And that deaths occurred for an extended period of time without those deaths being seemingly notified.

(Emphasis added).

652    As the primary judge recorded, Professor Parker had assumed that DST had caused deaths: see J [282]. At the time of hearing this evidence, the primary judge would have identified no difficulty with the expert proceeding upon this assumption – it largely accorded with the evidence of Dr Gandevia that her Honour had accepted. Indeed, her Honour ultimately concluded that nothing “came close to challenging [Professor Parkers] fundamental proposition” that “DST continued at Chelmsford after several patients had died which was unacceptable clinical practice”: see J [299(2)]. But when the evidence of the Dead Experts is put to one side, the problem is brought into focus. Should the opinions of Professor Parker be accepted if the evidence of the Dead Experts is not admissible? Should greater scrutiny be applied to the assumptions upon which Professor Parker proceeded in giving his evidence? What effect does the answer to these questions have on the weighing of other evidence? All of these complexities arise in one simple example, the cascading ramifications of which (as to the gross negligence or malpractice Imputations A, B, C, D, E, H, I, K, M and N) are far too intricate to unpack and put back together.

653    I accept that the finding of truth in respect of a number of these imputations relied heavily on other evidence, such as the hearsay notice of Mr Hart and the evidence of past patients and their relatives. But in circumstances where the evidence of the Dead Experts formed an integral part of what might be described as the consequences of the practices at Chelmsford (that is, death), and this evidence influenced that of the Publishers’ Other Experts, it is speculation for a Full Court to determine on appeal that substantial truth had been proved on only the material that ought to have been in evidence (and assessing this evidence in the absence of the excluded material).

654    To the extent it is necessary, I am fortified in this view by reason of:

(1)    the fact that there are, with respect, difficulties with ascribing weight to some of the evidence relied upon to sustain a finding of truth in respect of those imputations which might be said to lay on the outer limits of the penumbra. For example, the primary judge’s finding of truth in respect of Imputation E was based on a three line statement made by Dr Barclay to the Royal Commission. The difficulty is that this evidence is in much the same boat as that of the Dead Experts, and critically, Dr Barclay’s evidence could not be tested in cross-examination.

(2)    the impracticality of the Full Court, for reasons explained above, considering the discretionary exclusion of the Royal Commission Material in some sort of omnibus fashion. Given the reasons of Rares and Wigney JJ, it is at least possible that if the alternative s 17 argument advanced by Dr Gill is successful (that is, parts of the Royal Commission Materials should be the subject of discretionary exclusion), the extent of the properly admitted Royal Commission Materials on the question of substantial truth may be different than those Royal Commission Materials before the primary judge in reaching her conclusions.

E    CONCLUSION AND ORDERS

655    In the light of the above, Dr Gill is entitled to a retrial on the defence of substantial truth in respect of Imputations E, F, G, H, J, K, L and M. I agree with what Rares J has said about the position of Mr Herron and with the form of orders proposed by Rares J.

I certify that the preceding three-hundred-and-fifty-two (352) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

Associate:

Dated:    29 April 2022