Herron v HarperCollins Publishers Australia Pty Ltd

1. The interlocutory application filed 4 July 2018 be dismissed.
2. The respondents pay the applicant's costs of the interlocutory application as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 These reasons for judgment explain why I have concluded that the proceedings cannot be summarily dismissed as an abuse of process as sought by the respondents in interlocutory applications dated 4 July 2018. 2 The circumstances in which the proceedings are brought are unusual. 3 One applicant is Dr John Gill. The other is Mr (formerly Dr) John Herron. They were medical practitioners, psychiatrists, who administered deep sleep therapy and electroconvulsive therapy at the Chelmsford Private Hospital in the 1970s. 4 From as early as 1982 there had been coronial inquests into the deaths of patients as a result of the administration of deep sleep therapy and electroconvulsive therapy at the Chelmsford Private Hospital and adverse publicity about the treatment of patients. One patient, Barry Hart, commenced proceedings in 1980. Mr Hart succeeded and was awarded damages, the jury finding Dr Herron liable for negligence, false imprisonment and assault and battery, and Chelmsford Private Hospital liable for false imprisonment. Both Dr Herron and Dr Gill sued various media outlets and people for defamation between 1984 and 1986 but the defamation proceedings went nowhere as complaints, disciplinary proceedings, litigation and ultimately a Royal Commission into deep sleep therapy engulfed them. 5 Having finally roused itself to institute disciplinary proceedings against Dr Gill and Dr Herron in the mid-1980s relating to their conduct at Chelmsford Private Hospital the Department of Health was confronted with the consequences of its dilatoriness. Dr Gill and Dr Herron succeeded in having the disciplinary proceedings against them permanently stayed as an abuse of process: Herron v McGregor (1986) 6 NSWLR 246. The complaints had been made between 1982 and 1986 but related to events at the Chelmsford Private Hospital in 1973, 1976 and 1977. The Court of Appeal held that the disciplinary proceedings involved an abuse of process because the events the subject of the complaints, by 1986, were in the distant past. As a result, the proceedings could not be fair, which is a requirement of the administration of justice. 6 The public pressure mounted and in 1988 the NSW Government announced a Royal Commission into deep sleep therapy. Dr Gill and Dr Herron gave evidence before the Royal Commission over many days. The multi-volume report of the Royal Commission was published in 1990. The report condemned deep sleep therapy. The Royal Commission made many serious adverse findings against Dr Gill and Dr Herron in relation to their practices at Chelmsford Private Hospital and related conduct. The Royal Commission referred material to the Commonwealth Director of Public Prosecutions and the Medical Tribunal for "their consideration as to possible criminal proceedings against", amongst others, Dr Gill and Dr Herron. 7 As a result, further disciplinary proceedings were commenced against Dr Gill and Dr Herron, again relating to events at the Chelmsford Private Hospital between 1973 and 1977. Dr Gill was also the subject of two criminal charges for manslaughter in respect of the death of a patient in 1977. However, time, or its passing, remained on the side of Dr Gill and Dr Herron. They again succeeded in having the disciplinary proceedings against them stayed as an abuse of process because of the similarity with the earlier proceedings and the unreasonable delay between the events in question and the complaints: Gill v Walton (1991) 25 NSWLR 190. Dr Gill also succeeded in having the criminal proceedings against him stayed on the same basis: Gill v Director of Public Prosecutions (1992) 64 A Crim R 82. 8 Dr Herron was removed from the roll of medical practitioners in 1995 for professional misconduct unrelated to the Chelmsford Private Hospital: In the matter of Dr John Tennant Herron and the Medical Practice Act 1992 as amended (No 40025 of 1995, 14 March 1997). Dr Gill remains a medical practitioner. 9 All of these events were the subject of intense media interest at the time. The media scrutiny subsided over the years but articles, books, websites and more have continued to refer in the most serious adverse terms to the Chelmsford Private Hospital and the roles of the doctors and others working there including the applicants. Dr Gill and Mr Herron did not again sue for defamation. Until now. 10 In 2016 the first respondent published the second respondent's book, Fair Game: The Incredible Untold Story of Scientology in Australia (HarperCollins Publishers Australia Pty Limited, 2016). The book has sold over 8,500 copies. Chapter 14 is headed "Deep Sleep". The Church of Scientology had a major role in exposing what had occurred at the Chelmsford Private Hospital. The chapter refers to Dr Herron's treatment of Mr Hart and the role of Dr Herron and Dr Gill, amongst others, at the Chelmsford Private Hospital. Within the one year limitation period, the applicants commenced proceedings claiming damages and associated orders for alleged defamations. 11 Mr Herron alleges that the book conveys the following defamatory imputations: (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. (e) The Applicant, a psychiatrist, used deep sleep treatment on his patients, despite trials by other doctors deeming the practice too dangerous. (f) The Applicant, a psychiatrist, continued to use deep sleep treatment on his patients despite the number of deaths it caused. (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. (i) The Applicant's gross negligence as a psychiatrist caused his patient Barry Hart to suffer brain damage and post traumatic stress. (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. (n) The Applicant, a psychiatrist, assaulted and battered his patient, Barry Hart. 12 Dr Gill alleges that the book conveys the same defamatory imputations against him, excluding those relating specifically to Mr Hart (paragraphs (a) to (d), (i) and (n) above). 13 It will be apparent that these alleged defamatory imputations arise from the same facts as those investigated in detail by the Royal Commission and which were the subject of intense media interest at the time, and continuing interest thereafter. 14 Given that the relevant events occurred in the 1970s, most potential witnesses have disappeared from public view (professionals such as nurses, for example, are no longer registered), have died, or are otherwise aged and infirm. Mr Hart, in particular, is in very poor health and it is doubtful he would be capable of giving evidence. 15 The respondents contend that in all of the circumstances the applicants' commencement and maintenance of the proceedings involves an abuse of process. The respondents put the argument in two ways. 16 The first way in which the argument is put involves multiple elements which, together, are said to make the proceedings an exercise in unfairness to and oppression of the respondents. The respondents say that despite multiple opportunities over many decades since the early 1980s to sue for defamation in respect of publications about the applicants' involvement in the Chelmsford Private Hospital, the applicants did not do so or to the extent that they did so the applicants did not prosecute their cases. As a result of the repeated inaction of the applicants in respect of a vast array of publications to substantially the same effect as the alleged defamatory imputations in the book, the applicants' involvement in the public scandal involving the Chelmsford Private Hospital has entered into the annals of the history of New South Wales. For the applicants now to sue for defamation, when the relevant witnesses as to the truth of the imputations are missing, dead or too aged and infirm to give evidence, involves unfair oppression of the respondents. The fact that the applicants themselves succeeded in having disciplinary proceedings and in the case of Dr Gill, criminal proceedings, against them stayed in the 1980s and early 1990s because too much time had passed to enable a fair hearing to be conducted, the respondents said, demonstrates the unfair oppression which the proceedings would now impose on the respondents, nearly three decades later. 17 One sub-strand of this first argument involved the respondents in posing the question, why do the applicants sue now? The book is a specialised history of Scientology in Australia, with the Chelmsford Private Hospital dealt with in a single chapter. Compared to the adverse publicity involving the applicants in the past, the book's circulation has been relatively small. The respondents said it is hard not to infer that the applicants were intent on trying to overturn the findings of the Royal Commission, 30 years after the publication of its report. This, they said, is not a proper purpose for the commencement of these proceedings. Another sub-strand depended on that fact that Mr Herron is impecunious and Dr Gill is funding both sets of proceedings. The primary thrust of the first argument remained, however, that in 2018 there is no realistic possibility of a fair trial given the time that has passed since the events in question, which occurred in the 1970s. If they wished to attempt to vindicate their reputations the applicants had their opportunity to do so in response to the mass of scathingly adverse publicity about them which started in the 1980s and has continued thereafter but it is too late to do so in response to one publication in 2016. 18 The second way in which the argument is put is that the report of the Royal Commission, whilst not admissible as to the truth of its contents, is and will be admissible as evidence of the applicants' reputations. The Royal Commission, said the respondents, "made findings so astonishingly scathing" about the applicants that it will always stand as the definitive record of this period of history, with the consequence that the applicants have no or extraordinarily fragile relevant reputations capable of vindication. The resources of the Court and the respondents which will be consumed by the proceedings will be so disproportionate to the interests at stake, being the reputations of the applicants in connection with their conduct as psychiatrists at the Chelmsford Private Hospital and ensuing investigations, inquiries and hearings, that the proceedings involve an abuse of process. 19 It is unnecessary to state the principles concerning abuse of process. They are not in dispute. The categories are not closed. The touchstones are the need for judicial processes to be fair and the administration of justice not to be brought into disrepute. Because the consequence of a finding of abuse of process is that a party which has invoked the jurisdiction of a court will be prevented from having their claim decided on its merits, the doctrine is confined in its application to cases of serious unfairness amounting to unjustifiable oppression of the other party. 20 As persuasively as they were put in the written and oral submissions for the respondents, I am unable to accept their arguments. 21 When analysed, the first argument involves accepting the proposition that it will be an abuse of process for a person to sue for defamation if circumstances mean that the defendant is unable to prove the truth of the defamatory imputations. This cannot be right. The respondents chose to publish in 2016. They had not previously published about the applicants. There were no previous dealings between the respondents and the applicants. As a result, nothing the applicants did or failed to do had anything to do with the respondents. Contrary to the submissions for the respondents, there was no relevant conduct of the applicants in relation to the respondents which meant that taking proceedings in response to a publication in 2016 is unfair or unjustifiably oppressive. 22 It may be accepted that the applicants had not previously sought to vindicate their reputations in respect of numerous other defamatory imputations against them arising from the same facts, other than in the proceedings in the 1980s which were not prosecuted by them. The relevant point, however, is that nothing the applicants said or did in connection with the respondents suggested that the respondents could publish with impunity in 2016. The applicants did not, as the respondents would have it, "elect to conduct themselves" in any manner in connection with the respondents. 23 If, as may be the fact, the respondents are now unable to prove that the defamatory imputations are true then that would have been the position also in 2016 when the respondents chose to publish. Having chosen to publish in 2016 it is not now for the respondents to say that they cannot obtain a fair hearing in 2018 because they cannot prove to be true what may well have been able to be proved to be true by others who published in or around 1990. 24 It is not to the point that the applicants had disciplinary (and in the case of Dr Gill, criminal) proceedings against them permanently stayed as an abuse of process in the 1980s and early 1990s. The inescapable fact is that the respondents chose to publish in 2016. The applicants did not relevantly choose to do anything in the mid-1980s or early 1990s. They were confronted with proceedings taken against them having serious potential consequences, the loss of their professions and in Dr Gill's criminal case the loss of his freedom, in circumstances where the subject-matter of the proceedings was events in the 1970s. These circumstances were found to involve abuses of process because the applicants could not then obtain fair hearings. 25 These are proceedings of a different kind. They were commenced in 2017 relating to a publication in 2016. The applicant claim damages and associated relief for alleged defamations. The incapacity for a fair hearing, in substance, is based on the respondents' inability to prove that the imputations are true. For the purpose of resolving the interlocutory applications I will assume this is the case but, as I have said, the position must have been the same in 2016 when the respondents decided to publish. 26 It also cannot be inferred that the applicants commenced the proceedings for a purpose ulterior to the attempted vindication of their reputations. The respondents did not seek the summary dismissal of the proceedings because the applicants had no reasonable prospect of success. While a ground to that effect appeared in the respondents' interlocutory applications it was not pressed at the hearing. 27 Nor is Mr Herron's impecuniosity material to the alleged abuse of process. The respondents also sought security for costs in the interlocutory applications. That part of the applications was resolved by Dr Gill proffering an undertaking in both proceedings, which I accepted, to the effect that he will satisfy any future liability of Mr Herron in Mr Herron's proceeding and will not dispose of or encumber a property he owns before the payment by him of any costs orders made against him and/or Mr Herron in the proceedings. Insofar as the abuse of process issue is concerned, however, given that it is not suggested that there are no reasonable prospects of success, it must be the case that Mr Herron has a legitimate interest at stake in his proceeding. 28 The second argument depends on the proposition that, at the least, the report of the Royal Commission will be relevant and admissible to the applicants' reputations at the time of publication. It is not necessary to decide this issue. What I will say is that the objections taken on behalf of the applicants to the admission of the report and other material to the hearing of the interlocutory applications were misconceived. The material was relevant for the non-hearsay purposes of both the respondent's arguments said to support the existence of the abuse of process. Accordingly, it was necessarily admissible in the hearing of the interlocutory applications. 29 The respondents' submitted that in circumstances where the reputations sought to be vindicated are the applicants' reputations as psychiatrists it is plain even on an interlocutory basis that their reputations are so fragile that they could not possibly justify the resources which will be consumed by these proceedings, particularly having regard to the evidentiary difficulties resulting from the passing of so much time since the events in question. As the respondents put it "History cannot be undone". 30 When these facts are considered with the relatively small number of copies of the book sold compared to the history of publications, the primary subject-matter of which is the history of Scientology in Australia, not Chelmsford Private Hospital, the respondents said this is a case in which the principle identified in Bleyer v Google Inc [2014] NSWSC 897; (2014) 88 NSWLR 670 should be applied. McCallum J said this in Bleyer: 62. I am satisfied that the court has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process. 63. It should go without saying that the cases in which a stay would be granted on the basis of disproportionality will be rare. The primary function of the court is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved. That is an important consideration in the context of defamation, where vindication of reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation. Undoubtedly, like considerations will arise in other kinds of cases. 31 As McCallum J also said at [97]: The complexity of the issues raised by the action will be apparent from this judgment. There will at least be issues to be determined as to whether Google Inc has a defence of innocent dissemination under s 32 of the Defamation Act and the availability of a defence under clause 91 of schedule 5 to the Broadcasting Services Act 1992. It is acknowledged that, if the plaintiff is successful, he will be unable to enforce any award of damages. The interest at stake is his entitlement to vindicate his reputation in the eyes of one person. In all the circumstances, I am persuaded that the resources of the court and the parties that will be expended to determine the claim are out of all proportion to that interest. 32 I accept that the present case will be complex. I accept also that if the respondents are intent on defending the proceedings on the basis of truth, they may be beset by the difficulty, if not the impossibility of the task, given that so much time has passed. I accept also that the basis upon which it was apparently asserted for the applicants that the report of the Royal Commission would not be admissible in a final hearing as evidence relevant to the applicants' reputations was unclear. Evidence relevant to the applicants' reputations will be admissible on damages. It may be that the argument will be that the report was published in 1990 and the book was published in 2016 so that the applicants' reputations have been rehabilitated by the passing of time. If so, the argument will have to confront the fact that the imputations concern each applicant "as a psychiatrist". Nor is it presently apparent how the existence of people who might be too young to recall the Royal Commission and related coverage could be relevant to the reputations of the applicants' reputations as psychiatrists. However, the problem for the interlocutory applications is that, on their face, these are triable issues. Against this, it cannot be said that the sales of the book have been so small as to render the proceedings so disproportionate to the potential interests at stake that their maintenance constitutes an abuse of process. 33 For these reasons the interlocutory applications must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.