A doctor who worked at Sydney's notorious Chelmsford hospital has won a court appeal against HarperCollins and a high profile journalist over allegedly defamatory claims made in a book about Scientology in Australia.
John Gill and John Herron, who died in February, launched the Federal Court appeal after last year losing a defamation action over claims made in Steve Cannane's 2016 book Fair Game: The Incredible Untold Story of Scientology in Australia.
Mr Herron was a psychiatrist at Chelmsford, while Dr Gill was a GP who became its de facto medical superintendent and had a one third ownership stake.
The lawsuit centred on claims made in the book's Chapter 14 "Deep Sleep", which focused on the use in the 1960s and 1970s of deep sleep therapy, and electro-convulsive therapy at the hospital, and the role of scientologists in exposing it.
Among the claims made in the chapter were that "Chelmsford Hospital operated like a secret cult", and that neither warnings about the use of DST, nor "the death toll mounting before their eyes" deterred doctors at the hospital.
The chapter also asserted a royal commission "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".
In a judgment handed down on Friday, three Federal Court appeal judges concluded that the appeal should be allowed and that Dr Gill was entitled to a new trial, pointing to errors made at the trial in allowing the admission of evidence from "dead experts".
"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," Justice Steven Rares said.
Justice Rares also noted problems with the use at trial of evidence given to the royal commission under compulsion, with the trial judge failing to correctly address "the admissibility or any need to exclude or make any limitation on" its use.
"It is impossible on the appeal to re-evaluate those issues, not least because they permeated the whole conduct of the trial," the appeal judge said.
"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."
