Hall v Swan & Anor

79 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

In addition, both Professor Hall and his wife Dr Suzanne Hodgkinson's curriculum vitae appear to be inaccurate. (lines 171-172)

The first author is supposed to be the person who's come up with most of the ideas and done most of the work and it's downhill from there until the prized last name, who's often the team leader.

It's scientific misconduct for a person to appear in an authorship line if they haven't significantly contributed to the work. That's called gift authorship and is a big no-no.

So let's start with Bruce Hall's CV. In two papers on the grant application he appears as last author - which, as I said, is one of the pole positions. But when you go to the original papers and look at the real authorship line, Professor Hall is actually second last, probably the least significant position. (lines 177-187)

What seemed to be fraudulent information supplied in a grant application to the National Health and Medical Research Council; (lines 435-436)

One example of problems with how the University of New South Wales has dealt with this matter is over the NH&MRC grant application with the flawed, probably fraudulent information in it. (lines 447-449)

It's stark in its comprehensiveness with misconduct so extreme it can only be called fraud.

The misuse of NH&MRC funds is particularly serious. Some of the allegations in isolation could be explained as sloppiness or an innocent error, but the total picture is astounding and fits almost exactly with the National Health and Medical Research Council's own definition of misconduct (lines 650-655).

Deliberate inclusion of inaccurate or misleading information relating to research activity and curriculum vitae, grant applications, job applications or public statements or the failure to provide relevant information is a form of research misconduct. Misconduct or scientific misconduct is taken here to mean fabrication, falsification, plagiarism or other practices that seriously deviate from those commonly accepted within the scientific community for proposing, conducting or reporting research. It includes the misleading ascription of authorship, including the listing of authors without their permission, attributing work to others who have not in fact contributed to the research and the lack of appropriate acknowledgment of work primarily produced by research assistant, trainee or associate. (lines 658-668) 80 As is the case with a number of the imputations, Dr Swan introduces the topic with rather temperate language, claiming that the CVs of the appellant and his wife "appear" to be inaccurate. In the logical and careful progression towards demonstrating to the listeners that it is more than mere appearance, Dr Swan informs the listeners that "gift authorship" is "scientific misconduct". He defines gift authorship as when a person appears in an authorship line when they have not significantly contributed to the work. Dr Swan then refers to the appellant's CV in particular and makes a comparison between the two papers on the grant application and the original papers. He informs the listeners that in the grant application the appellant appears as the last author in the "pole position" whereas in reality (the true position) - referring to the "real authorship line" - the appellant is second last and probably the least significant position. 81 In my view, the negative answer to the question whether imputation (g) was conveyed was unreasonable.

(h) The plaintiff dishonestly removed Hong Ha's name from two scientific papers when she was entitled to authorship of those papers 82 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

Going back to 1996 and 1997, there were other experiments that Professor Hall wanted done to support grant applications and in return for carrying them out, Hong was promised authorship on the subsequent papers. The research was on immune messengers, cytokines called Interleukin 4 (IL4) and Interleukin 5, (IL5).

Hong Ha: And my name were on both IL4 and IL5 papers up until the time of submission for publication. My name was removed without any explanation why.

Norman Swan: Who wrote the paper, you or Professor Hall?

Hong Ha: With the IL4 paper I'd never seen the final version of it.

Norman Swan: With the IL4 paper you discovered that when it was published?

Hong Ha: Yes. With the IL5 paper my name and two other people's names were removed (lines 255-267).

It's stark in its comprehensiveness with misconduct so extreme it can only be called fraud (lines 650-651).

It includes the misleading ascription of authorship, including the listing of authors without their permission, attributing work to others who have not in fact contributed to the research and the lack of appropriate acknowledgment of work primarily produced by research assistant, trainee or associate (lines 664-668) . 83 The passages relied upon by the appellant in respect of this imputation do not in my view establish that it would have been unreasonable for the jury to have given a negative answer to the question whether imputation (h) was conveyed by the broadcast. That is because the jury could reasonably have taken the view that although Hong Ha was promised authorship the fact was, as she admitted to Dr Swan in the broadcast, that the appellant "wrote the paper". In those circumstances a negative answer to this question was not unreasonable. 84 In my view, the negative answer to the question whether imputation (h) was conveyed was reasonably open to the jury.

(i) The plaintiff committed scientific fraud by including his wife's name as an author on scientific papers when his wife had no involvement in the preparation of the papers 85 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

Hong Ha: With my manuscript, the one that I did for my PhD, there's people who never contributed has been added.

Hong Ha: They were Dr Suzanne Hodgkinson, Dr Giang Tran, and Nicole Carter.

Norman Swan: They were both research assistants in Dr Hodgkinson's laboratory?

Norman Swan: And how do you know they had nothing to do with it?

Norman Swan: You were writing this paper presumably, not Dr Hall?

Norman Swan: So were you asked if it was all right if Suzanne Hodgkinson's name went on? You were the first author, I assume?

Norman Swan: And were you asked if it was okay if their names went on?

Hong Ha: No one asked me that, Professor Hall just put it on.

Norman Swan: How do you know it was Professor Hall who put it on?

Hong Ha: Well, with Suzanne Hodgkinson's name he's just handwritten on it.

Norman Swan: And you've got a copy of that paper with his handwriting on it?

Norman Swan: What did you say when you saw it there on the draft?

Hong Ha: I show to a few staff there and they all laugh at it, because it's something that has happened to our other papers.

Hong Ha: Because I don't want to upset my supervisor, because it's something that I know Professor Hall has deliberately done: same with other papers.

Norman Swan: Has it ever happened to you in other circumstances, having Dr Hodgkinson's name on one of your papers?

Hong Ha: Her name was on my other abstract, two other abstracts, as well.

Hong Ha: At the time that he was checking my abstract before I submit for conference attendance.

Norman Swan: Was that manuscript accepted for publication?

Hong Ha: That manuscript is still with Professor Hall. It has been submitted and there's some minor modification need to be fixed so they send it back. I did all the final modification so its ready for resubmission, but Professor Hall still holding onto it.

Norman Swan: Have you asked him what's happening with it?

Hong Ha: I didn't contact him since I raised my allegation to the University.

Norman Swan: Hong Ha. And there's no suggestion that Giang Tran or Nicole Carter were involved in changing these authorship lines (lines 269-315).

Remember, she works on a rat model of multiple sclerosis. She doesn't work on kidney disease or transplantation. Yet that's what these highly technical papers refer to.

We found records which track the provenance of one research project linked to one of these papers. These show that Suzanne Hodgkinson's name does not appear anywhere until the paper's submitted. Before the year 2000, her papers all related to neurology or autoimmunity (lines 322-328)

It's stark in its comprehensiveness with misconduct so extreme it can only be called fraud (lines 650-651).

It includes the misleading ascription of authorship, including the listing of authors without their permission, attributing work to others who have not in fact contributed to the research and the lack of appropriate acknowledgment of work primarily produced by research assistant, trainee or associate (lines 664-668) . 86 The exchange between Hong Ha and Dr Swan includes the explicit statement that the appellant's wife had nothing to do with the papers nor the research in respect of the papers. Dr Swan then discusses why Hong Ha did not complain to the appellant and is informed that she did not wish to upset her "supervisor". There is the added additional matter of other staff members laughing after Hong Ha told them about the inclusion of the appellant's wife's name on the papers and the categorical statement that it had happened on other papers. After the exchange Dr Swan advises the listeners to "remember", in other words, do not forget, that the appellant's wife had nothing to do with this research because her work is on something quite different, "multiple sclerosis" and not "kidney disease or transplantation". That categorical statement, heard with the definition of misconduct and the allegation that the misconduct could only be fraud would, in my view, make it unreasonable for a jury to conclude otherwise than that the answer to this question should be in the affirmative. 87 In my view, the negative answer to the question whether imputation (i) was conveyed was unreasonable.

(j) The plaintiff fraudulently claimed in a letter written in relation to a patent dispute that his wife deserved credit for transplantation immunology work that was actually done by Dr Clara He 88 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

Bruce Hall, in a letter written to support his wife over a patent dispute, claims that she deserves credit in transplantation immunology because of her work on some of these immune hormones - these so-called cytokines like Interleukin 4. We've checked these assertions and found that the publication history from the lab shows that the work referred to by Professor Hall was actually done by Dr He. Dr Hodgkinson's papers in her own CV indicate she only came to cytokine work lately (lines 334-340).

And there was a rather nasty dispute going on over a patent relating to Clara He's finding that Interleukin 5 might prevent organ rejection.

The argument was over whether Dr Hodgkinson's name should be on the patent, given she allegedly had not been involved in this research field. This clutch of papers last year with her name on them may have provided her with a history in transplantation immunology (lines 353-358). 89 Dr Swan does not identify the nature of the particular patent dispute. He identifies the appellant's claim that his wife deserved credit because of her work on some of the immune hormones. The reference to the appellant's wife's papers and CV indicating that she "only came to cytokine work lately" is a matter that the jury would have been entitled to take into account as a justification for the appellant writing a letter in support of his wife. If the jury took that view, it would not have been unreasonable for them to give a negative answer to the question whether imputation (j) was conveyed. 90 In my view, the negative answer to the question whether imputation (j) was conveyed was reasonably open to the jury.

(k) The plaintiff fraudulently subsidised his wife's lab out of his National Health and Medical Research Council grant 91 In addition to the overall effect of the broadcast , the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

One is that its been a long time since Dr Hodgkinson has won an NH&MRC grant in her own right and her laboratory seems to have been under-funded. Later we'll show you evidence that Bruce Hall was subsidising her lab out of his own NH&MRC grants. If Professor Hall were ever to be audited by the NH&MRC it would be easier to get through if he could show his wife had a track record in his field. (lines 347-352)

We have lab accounts which show that Bruce Hall paid the salary of one of his wife's research assistants out of his own NH&MRC grant. The assistant's name is not listed on the grant and she works in multiple sclerosis. In other words, taxpayer's funds which the NH&MRC had directed towards transplantation research were now being used for other work which hadn't gone through the same competitive hoops. It's possible that this person was doing some work for Bruce Hall's lab, but our understanding is that it was a tiny amount. (lines 375-382)

But this is substantially different from the usual gripes and interpersonal conflicts. It's stark in its comprehensiveness with misconduct so extreme it can only be called fraud. The misuse of NH&MRC funds is particularly serious (lines 649-652). 92 Consistently with the way in which Dr Swan approaches other topics in this broadcast, he refers to "evidence", (as opposed to mere suspicion), showing that the appellant was subsidising his wife's lab out of his own NH&MRC grant. Dr Swan goes so far as to put it in "other words" and informs the listeners that taxpayers' funds were directed towards other work which had not gone through the same competitive hoops. After referring to this "evidence", the lab accounts that demonstrated that the appellant was paying the salary of one of his wife's research assistants, Dr Swan introduces the possibility that the employee might have been doing some work for the appellant's lab but suggests it was a "tiny amount". The irresistible and only rational conclusion from that statement is that the payment of the salary was not justified. 93 Later in the broadcast Dr Swan moves inexorably towards the "recap" and the explicit statement of the "concern" of "misappropriation of NH&MRC funds" and the conclusion that the "misuse" of NH&MRC funds was "particularly serious". This is of course immediately after the label of the misconduct as so comprehensive and extreme it could only be called "fraud". In those circumstances the only rational answer to the question as to whether the broadcast conveyed imputation (k) would have been in the affirmative. 94 I am of the view that the negative answer to whether imputation (k) was conveyed was unreasonable.

(l) The plaintiff fraudulently transferred $46,000 from Dr Clara He's National Health and Medical Research Council 95 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

Now, as if all this wasn't enough, there were major issues with Professor Hall over money.

Clara He, who has her own NH&MRC grant, came in one day last year to find her grant account was thousands of dollars short.

Clara He: He transferred forty six thousands dollars from my research grant to cover his research assistant Catherine Robinson. In my grant application Catherine Robinson is not involved.

Norman Swan: How do you know it went to her and not somebody else?

Clara He: Oh, I have the full transaction printout with Professor Hall's signature on. On the printout at the top, specifically see from when to when Catherine's salary was deducted.

Norman Swan: Clara He's allegation is that because Suzanne Hodgkinson's lab wasn't winning large grants it left a shortfall in funding. (lines 359-371)

Misappropriation of NH&MRC funds; (line 437) But this is substantially different from the usual gripes and interpersonal conflicts. It's stark in its comprehensiveness with misconduct so extreme it can only be called fraud. The misuse of NH&MRC funds is particularly serious (lines 649-652). 96 The introduction to this topic is designed to capture the listeners' attention. Dr Swan catches the listeners' interest by the use of the expression "as if all this wasn't enough", suggesting that the appellant's conduct of which he is about to speak is even worse than that of which he has already spoken. The introduction to the exchange with Dr He paints the picture of Dr He making the shocking discovery of the fraud by coming in to find her account "thousands of dollars short". There is no doubt that Dr He's explicit statements convey the irresistible conclusion that the appellant had fraudulently transferred the money from her account to leave her "short" of the funds that Dr He had obtained for her own research. The reference to "misappropriation of NH&MRC funds" could only have been the reference back to the transfer of $46,000 out of Dr He's funds. 97 In my view, the negative answer to the question whether imputation (l) was conveyed was unreasonable. Were the conveyed imputations defamatory? 98 The jury did not give any consideration to the second question as to whether any imputations were defamatory of the plaintiff. I have concluded that the only rational answers to the questions were that all imputations, except imputations (h) and (j), were conveyed by the broadcast. At the trial, Mr Walker did not suggest to the jury that, if conveyed, the imputations would not be defamatory. However that was a matter left to the jury and the trial judge directed the jury that "defamatory" simply meant "disparaging or derogatory" and that the test was whether ordinary right-minded people in the community would think less of the appellant by reason of the imputations. The trial judge reminded the jury that the task had been made easy by Mr Walker's submission that "it would be surprising to find" that the imputations if conveyed, were not defamatory. 99 In the context of the broadcast and on the evidence, the appellant is said to have: (a) exploited Hong Ha for free labour; (b) fraudulently presented experiments to an important conference that were never done; (c) provided an opinion on the actual treatment of transplant patients which he knew was based on fraudulently misrepresented animal data; (d) and (e) committed scientific fraud by submitting a paper to a journal that contained fabricated experiments and by intentionally passing off old findings as new findings; (f) fraudulently misrepresented data in a grant application to the NH&MRC; (g) committed scientific misconduct by deliberate misrepresentation in an NH&MRC grant application; (i) committed scientific fraud by the inclusion of his wife's name on scientific papers; (k) fraudulently subsidised his wife's lab out of his NH&MRC grant; and (l) fraudulently transferred $46,000 from Dr He's NH&MRC research grant. 100 The appellant was working as a scientist and was a Professor of Medicine at the University of New South Wales and at the Liverpool Hospital. It is difficult to comprehend more serious claims against a scientist, in a professional sense, than the claims of scientific fraud, scientific misconduct and fraudulent use of scientific grants. The only rational answer to the questions as to whether these imputations are defamatory is "yes". No reasonable jury, properly directed, could answer these questions in the negative.

Ground 2 - public interest 101 The appellant submitted that the "public interest" aspect of the respondents' address to the jury could only have misled the jury into believing that, if the ABC was broadcasting material in the public interest, then the appellant's case should fail. 102 The trial judge referred to "public interest" as a "defence". That was a slip. What his Honour clearly intended to refer to was the defence available under s 15 of the Defamation Act that the imputation was substantially true and that it related to a matter of public interest. Neither party asked the trial judge to correct the statement. 103 It is clear that the trial judge was concerned about Mr Walker's reference to "public interest" evidenced by his invitation to Mr McClintock to address him on the topic. Mr Walker used the expression "public interest" in a number of contexts as follows: It is because we think there is a public interest in questions being brought to public attention that need to be answered in the public interest. … That serious questions are raised and allegations are made which are so serious that the public interest is engaged. … We say that it is the public interest point of a public broadcast running investigative journalism. … That is why it is urgent. That is why it was serious in the public interest for these things to be raised, said the ABC, in the program.

104 In my view, Mr Walker's submission to the trial judge that it was a "very serious error" to suggest that the "public interest nature of the broadcast" was irrelevant, was an erroneous submission. There would have been nothing wrong with suggesting to the jury (as Mr McClintock did) that the matters raised in the broadcast were very serious and that the listeners might listen with more care than if listening to a "flippant" broadcast. That would be describing the "nature" of the broadcast. Mr Walker's submissions about public interest were not about the "nature" of the broadcast: they did not simply seek to characterise the broadcast as an "important" and/or "serious" programme. The use of the expression "public interest", in each of these submissions is likely to have conveyed to the jury that they should take into account that the publication of the material in some way served the interests of the community and that the respondents were justified in publishing it. 105 The main plank to the respondents' submission was for the jury to understand the "nature of the broadcast" and the "take-home message". The respondents' aim was to convince the jury that the broadcast conveyed a call for an investigation without conveying any of the imputations as pleaded. The "public interest" in the sense conveyed by Mr Walker's submissions had nothing to do with the jury's task. Equally irrelevant would have been a suggestion that this broadcast was published in the respondents' "self interest", for instance, in the hope of increasing its ratings. Either claim would set the jury on a path of irrelevancy by considering whether, as was put, "public interest" was "engaged" or whether this was something other than "public interest", for instance "self-interest". 106 After the damage had been done the trial judge attempted to assist the jury in relation to the respondents' confusing approach by directing them as follows: There are also other defences that can be relied upon; for example, that the publication was made in the public interest. Please remember, when you consider the questions that you have before you, that issues of truth or falsity form no part of your determination, nor should the question whether an otherwise defamatory broadcast, if it be that, should be aired in the public interests. 107 Apart from the slip in relation to the description of the defence, the jury was correctly directed that the question of whether the broadcast was aired in the public interest formed no part of their deliberation. However at Mr Walker's request, a re-direction was given as follows: Just prior to the break, I was contrasting the two approaches of the plaintiff and the defendants in relation to the matter that is before you. In the course of it, Mr Walker referred to questions of public interest and broadcasts in the public interest. Public interest is itself a defence that comes later in time than the issues with which you must deal, but Mr Walker was there referring to the aspect about which I was addressing you just prior to the short break and that is this: if having listened to the broadcast, once or twice, or however time ( sic ) times you wish to do so, you come to the view that what Mr Walker has said, what this broadcast does, is confined to the proposition of calling for an investigation, i.e. there should be an investigation into the matters which we have raised, and the broadcaster does not make allegations or does not convey imputations, then that would be a matter that you would take into account in dealing with what is the overall effect of the broadcast. If on the other hand, even if it does call for an investigation, there are linked to that call for an investigation, imputations, which are conveyed, then the imputations are still conveyed, and whatever defence may arise at a later time is not a matter that you ought to take into account.

108 Although his Honour once again directed the jury that defences were not to form part of their deliberations, he conveyed by the words, "but Mr Walker was there referring to the aspect about which I was addressing you just prior to the short break", that Mr Walker's reference to "public interest and broadcasts in the public interest" was something different, thus not a defence, and able to be considered in their deliberations. This is likely to have compounded, rather than diluted, the confusion that the respondents' submissions would have caused. The combination of the respondents' submissions and the abovementioned direction is likely to have confused the jury and distracted them from the straightforward task of deciding whether the broadcast conveyed the imputations as pleaded, and whether any that were conveyed were defamatory. In saying that the task was "straightforward" I do not, of course, suggest that the task was an easy one. This was a lengthy broadcast with numerous imputations requiring some careful and logical reasoning. 109 I am satisfied that by reason of these matters the trial miscarried. 110 Although there was no application for a correction of the erroneous reference to the "defence" of public interest nor a removal of the re-introduction of the jury's ability to have regard to "public interest and broadcasts in the public interest" when considering whether the broadcast amounted only to a call for investigation, this was a material matter capable of affecting the result of the trial, and notwithstanding the absence of such application, the appellant should not be precluded from appropriate relief: General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234, per Windeyer J at 259; Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346, per Samuels JA at 360. Appropriate Relief 111 In reliance on Gacic, the appellant seeks a substituted verdict in place of the jury's verdicts, pursuant to s 108(3) of the Supreme Court Act 1970 (NSW). Alternatively the appellant seeks a retrial. The respondents submitted that while they obviously accept that in the light of the High Court's decision in Gacic, this Court has power to grant the appellant's preferred relief, the proper result in the circumstances is that there be a new trial.

112 The respondents submitted that the precise issue with which the High Court was dealing in Gacic was whether s 108(3) empowered this Court to substitute its own verdicts where the jury had found that the imputations were conveyed but were not defamatory. The respondents emphasised that in Gacic the jury had deliberated upon the question of whether the imputations were defamatory and decided they were not defamatory. Having held that the imputations were, as a matter of law, defamatory, the Court held that the appellants were entitled to, and s 108(3) permitted, the entry of verdicts in their favour. The respondents submitted that whilst there are examples of this Court exercising its power pursuant to s 108(3) where the issue has been the same as it was in Gacic: Gorman v Barber (2004) 61 NSWLR 543; Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201; there is no case involving the exercise of the power in circumstances where a jury has not deliberated upon the question whether imputations are defamatory. 113 Gacic was a case in which restaurateurs sued the publishers in relation to a newspaper article containing a critical review of their restaurant. The plaintiffs claimed that the article conveyed four defamatory imputations that: (a) that the plaintiffs sold unpalatable food at the restaurant; (b) the plaintiffs charged excessive prices at the restaurant; (c) the plaintiffs provided some bad service at the restaurant; and (d) the plaintiffs were incompetent restaurant owners because they employed a chef who made poor quality food. 114 At the trial, pursuant to s 7A of the Defamation Act, the jury found that: imputations (b) and (d) were not conveyed; imputations (a) and (c) were conveyed; and that the imputations conveyed were not defamatory. 115 The Court of Appeal allowed the appeal and entered verdicts for the plaintiffs in respect of imputations (a) and (c). It remitted the claim in relation to imputation (d) for determination by a jury in accordance with s 7A of the Defamation Act. There was no appeal in respect of the jury's verdict in respect of imputation (b). In dealing with the question in relation to imputation (d) Beazley JA, with whom Handley and Ipp JJA agreed, referred to the problems identified in the trial judge's direction to the jury in relation to imputation (d) and concluded at [104]:

For my part I am concerned the imputation is defamatory and that any other verdict would be unreasonable. Having said that, as this imputation has not been determined by a jury, that [remittal] is probably the result that ought to follow: see Harvey v John Fairfax . 116 The appellant in this case seeks orders setting aside the verdicts entered consequent upon the jury's answers to the questions and the setting aside of the answers to the questions pursuant to s 108(3) of the Supreme Court Act which provides:

(3) Where it appears to the Court of Appeal that upon the evidence the plaintiff or the defendant is, as a matter of law, entitled to a verdict in the proceedings or on any cause of action, issue or claim for relief in the proceedings, the Court of Appeal may direct a verdict and give judgment accordingly. 117 This is a discretionary matter, however in Gacic, Gummow and Hayne JJ said at 303 [30]:

If the respondents made out their entitlement, as a matter of law, to relief under s 108(3) with respect to imputations (a) and (c), then the Court of Appeal was obliged to provide the appropriate remedy. 118 The appellants have established that the jury's answers to the questions in relation to the imputations, excluding imputations (h) and (j), were unreasonable. They have established "as a matter of law" that no reasonable jury could have given a negative answer to the questions as to whether those imputations were conveyed. In the circumstances of the trial, the jury did not have to consider the second question as to whether the imputations were defamatory. 119 In Hocking v Bell (1945) 71 CLR 430 Latham CJ said at 441-442:

The principle upon which [the predecessor to s 108(3)] is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case. 120 This Court has cautioned against granting relief under s 108(3) of the Supreme Court Act when juries have not considered the question of whether imputations are defamatory. In Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hunt AJA said at paragraph [105]: …The jury has answered only the first of the two issues which arose in relation to imputation (a): was it conveyed, and (b) was it defamatory? Understandably in those circumstances, the jury was not required to say (and it did not say) whether, even if it had been conveyed, that imputation was or was not defamatory. Juries are usually directed not to proceed to the second issue if they have found for the defendant on the first. But the interdependence of the two issues remains. This Court should rarely, if ever, proceed to decide the issue of whether an imputation is defamatory of the plaintiff before a jury has first determined that issue. That is because the jury has an especially significant constitutional role (although by no means an impregnable one) in evaluating the impact of the matter complained of on the community: John Fairfax Publications Pty Ltd v Rivkin at [184] (see also at [92]). 121 The caution in Harvey needs to be considered in conjunction with the following passage in Callinan and Heydon JJ's judgment in Gacic [188]:

An important purpose of the Supreme Court Procedure Act , the predecessor of the Supreme Court Act , was to reduce costs and delays and, to that end to confer rights of appeal upon litigants and powers upon courts of appeal to give the judgments or decisions that the courts of first instance should have given, including verdicts and determinations by juries. The appellants' submission that a court of appeal could only do this after a second or third unreasonable or perverse determination must be rejected.

122 I am of the view that "as a matter of law" a negative answer to the questions as to whether the imputations that were conveyed were defamatory, would be unreasonable. In my view, it is "unimaginable", a term used by Callinan and Heydon JJ in Gacic at [190], that any reasonable jury properly instructed could find that these imputations were not defamatory. In those circumstances I am of the view that this is a case in which it is appropriate to exercise the power to enter verdicts, notwithstanding that the jury has not deliberated upon whether the imputations were defamatory. Accordingly it appears to me that on the evidence the appellant, as a matter of law, is entitled to the entry of verdicts in respect of each of the imputations, excluding imputations (h) and (j). 123 As there was a miscarriage of the trial by reason of the jury having been misled and confused by the submissions and directions in relation to "public interest", the appellant would be entitled to a new trial in respect of imputations (h) and (j). However in oral submissions on the appeal the appellant indicated that if this Court were to enter verdicts in respect of some of the imputations then he would not seek any relief in respect of the other imputations. 124 The orders I propose are:

1. Appeal allowed. 2. Set aside the orders of Rothman J made on 10 February 2009 and in their place order that verdicts be entered that the broadcasts conveyed each of imputations (a) to (g), (i), (k) and (l) and that each of those imputations is defamatory. 3. Appeal in relation to imputations (h) and (j) dismissed. 4. The respondents are to pay the appellant's costs of the s 7A trial and of the appeal. 125 SACKVILLE AJA: I agree with Bergin CJ in Eq. ********** 1 First broadcast - 13 April 2002 2 3 This week on The Science Show, Norman Swan presents a major investigation 4 into scientific and financial misconduct at the University of New South Wales.

6 Norman Swan: Hello, Norman Swan here sitting in the chair on The 7 Science Show this week instead of Robyn Williams, because today I have a 8 special and disturbing feature for you.

10 Hong Ha: I want my story to be heard by the public because what I have been 11 through I don't want my children or anyone else's children to go through. I want 12 them to admit the faults that they have done: they exploited me for free labour. 13 This problem has been going for too long. I want it to be stopped.

14 Norman Swan: This is a story about powerful scientists with international 15 reputations who've committed scientific misconduct so severe, it could be 16 considered fraud; as well as mismanaging public funds where the institution, the 17 university in which they work, has been slow to protect staff who've raised their 18 concerns. In fact, at times the university seems to have actively favoured the 19 strong over the weak. It's fifteen years since the exposure of Dr. William 20 McBride's scientific fraud, what you're about to hear suggests that safeguards 21 against scientific misconduct are still inadequate.

23 24 Why study at the University of New South Wales? The University of New South 25 Wales is one of Australia's major research institutions, attracting top national 26 competitive research grants and has extensive international research links.

27 Norman Swan: The University of New South Wales is one of the largest 28 universities in the country with a highly respected medical faculty. A few years 29 ago, following Sydney's sprawl to the south west, the university set up a clinical 30 school in that area centred on Liverpool Hospital. They even attracted Bruce Hall, 31 a well-known Australian immunologist, back from Stanford University in 32 California. Bruce Hall is a kidney specialist who researches how the immune 33 system deals with transplanted organs. The university made him Foundation 34 Professor of Medicine at Liverpool where he set up his own lab. With him came 35 his wife, Dr Suzanne Hodgkinson, a neurologist who studies rats with brain 36 inflammation similar to Multiple Sclerosis. Bruce Hall hired Dr Clara He, a 37 medical graduate from Shanghai with an Australian PhD and post-doctoral 38 experience in immunology.

39 Clara He: Professor Hall was asking me if I was interested in his new senior 40 position in Liverpool Hospital. I feel that could be new opportunity for me, so I 41 can design my program. I respect him; I believe we can collaborate and make 42 good program.

43 Norman Swan: Dr He has her own research group at Liverpool and is also the 44 laboratory manager. She's introduced molecular biology into the lab and her small 45 team has cloned and produced an impressive number of immune molecules, which 46 has allowed her to make an important discovery - namely, that an immune 47 messenger called Interleukin 5, (IL5) works in the opposite way to that believed 48 by most international experts and that has enormous implications for people 49 receiving transplants.

50 Clara He: Normally the graft will reject within seven to ten days; with 51 Interleukin 5 treatment the graft can be significantly prolonged and when I 52 presented this work in the International Transplantation Society I was awarded 53 Outstanding Young Scientist.

54 Norman Swan: And this has been patented, an issue to which we'll return. Clara 55 He says her first three years at Liverpool were happy, but then things began to 56 change. She claims that Professor Hall started to become abusive to staff in 57 weekly laboratory meetings.

58 Clara He: Professor Hall saying, you are responsible to deliver the result. If the 59 outcome not match his design or he expected result, then there will be trouble.

61 Clara He: Oh, Professor Hall have such absolute authority no one say anything.

62 Norman Swan: Now it's not a surprise to hear of a lab chief with a bad temper, it 63 almost comes with the territory. But Bruce Hall's behaviour appears to have 64 exceeded what might be considered reasonable.

65 And it wasn't just in the lab. We have a statutory declaration from a very senior 66 person in the university and Liverpool Hospital, who corroborates the tenor of 67 these allegations.

68 According to Clara and others, the going's been really rough in the last year or so, 69 as serious questions about data, misappropriation of finances and research paper 70 authorship have arisen.

71 In April last year, Clara He was in the audience at the Transplantation Society of 72 Australia and New Zealand's Annual Conference. She heard Professor Hall 73 present two experiments, which she and another lab worker Dr Chen claim were 74 never done. Dr Chen is a scientist in Bruce Hall's lab. He graduated in veterinary 75 science in China and did a PhD in immunology at The Australian National 76 University. Chen has good surgical skills and performs all the animal transplants 77 in the lab.

78 Clara He, as lab manager and also trying to be peacemaker, had helped Dr Chen 79 with his major experiments for Professor Hall, so she knew what was being 80 carried out.

81 Anyway, going back to this conference presentation last year, the effect of these 82 allegedly non-existent experiments was that they provided support for a theory 83 which Professor Hall has been promoting for many years.

84 We have the abstracts of the meeting, we have the lab books in which the 85 experiments would have been recorded had they been performed at Liverpool 86 Hospital, and we have testimony from Chen, who would have carried out the 87 experiments.

88 Now Professor Hall may claim that the experiments were done in the past or 89 somewhere else, but he's presented this work as though it was performed at

90 Liverpool Hospital, and if it had been done elsewhere, the conditions might have 91 been different and the findings not comparable.

92 Clara He also says that in an experiment that was done, Professor Hall gave the 93 opposite findings from those in the lab books.

94 We've had an independent immunologist look at the discrepancies and the best 95 that can be said about this experiment is that it shouldn't have been quoted from at 96 all, since there were problems with the controls.

97 Most seriously of all though, using his misrepresented animal data, Professor Hall 98 gave an opinion on the actual treatment of people who've had a transplant.

99 The members of the Transplantation Society were impressed.

101 In April, the society had yet another successful annual scientific meeting. There 102 was the usual high standard of presentation and the AKF Science Award went to 103 Bruce Hall for his excellent work on CD4 regulatory T-cell tolerance.

104 Norman Swan: Now Dr Chen's name appears against some of these problematic 105 experiments of the conference. He argues though, that he was not consulted in the 106 presentations preparation and the first thing he knew about it was when he got 107 notified of its acceptance for the TSANZ meeting.

108 Dr Chen: I was too embarrassed to attend that meeting because I was aware of 109 that abstract. I could not stand in front of audience to say something I did not 110 believe.

111 Norman Swan: The situation became even more serious because two things 112 occurred.

113 One, is that a paper which had major problems was submitted to the Journal of 114 Experimental Medicine - one of the world's leading journals for basic bio medical 115 research.

117 Clara He: He said now is the grant application time, we've got to have a paper 118 published as well to impress people. He said that we got to quickly send the paper 119 out and he gave me the draft to read through and I find the result is not what I 120 remembered.

121 Norman Swan: This submitted paper is fascinating. It contains experiments for 122 which there are no records in the Liverpool labs and includes one of the allegedly 123 non-existent experiments Bruce Hall presented at the conference.

124 In one experiment which was done, the paper says eight rats were tested when the 125 lab records only state there were five. Where the three extra rats came from is a 126 mystery. There's a serial number for every rat and every page in the lab books and 127 there are no gaps. One effect of the extra animals is to make the data look more 128 significant.

129 But that's not all. Other findings in this paper have exactly the same numbers as 130 results Professor Hall had already published in a paper all the way back in 1985.

131 The coincidence is extraordinary. There's a table in last year's submitted paper 132 which you can line up against a similar table published in 1985. 133 [Alternating Female & Male Voice]

137 Rejection of PVG grafts in irradiated DA recipients…

138 Number of cells: 7.5 times ten to the power of seven…

139 Number of cells: 7.5 times ten to the power of seven…

140 Rejection time: Ten days, twelve days, fourteen days two rats, twenty days, twenty 141 four days…

142 Rejection time: Ten days, twelve days, fourteen days two rats, twenty days, twenty 143 four days…

144 Number of cells, two times ten to the power of seven…

145 Number of cells, two times ten to the power of seven…

148 Fifteen days two rats, eighteen days and twenty days…

149 Fifteen days two rats, eighteen days and twenty days…

150 Norman Swan: That paper was rejected by the Journal. There's also a Journal of 151 Immunology paper, which we understand has been accepted for publication,

152 where two lines of data are again almost identical to those published this time in 153 1998 by Bruce Hall.

154 There are no explanatory notes, no references, nothing which qualifies these data 155 in any way.

156 Another serious thing last year involves a grant application to the National Health 157 and Medical Research Council, the NH&MRC. That's the taxpayer-funded body 158 which pays for most medical research in Australia.

159 NH&MRC grants are difficult to get and the application is complex. You have to 160 argue your case very well; quote data if appropriate and convince the assessors 161 that the people who'll carry out the work have a good track record. Professor Hall 162 appears to have misrepresented data in the application. According to lab records 163 in our possession, an experiment referred to in the application was performed 164 three times. On a single occasion it gave results which were the ones presented to 165 the NH&MRC. But two repeat experiments failed to replicate those findings.

166 Repeatability is what good scientists look for to ensure their results are real. In 167 this experiment, replication failed but that was not stated in this application, which 168 also included one of the allegedly non-existent experiments.

169 The application goes on to say - and I quote: "This work forms the basis of our 170 ongoing proposal".

171 In addition, both Professor Hall and his wife Dr Suzanne Hodgkinson's 172 curriculum vitae appear to be inaccurate.

173 Now, I need to explain some important conventions and rules in scientific 174 publishing. The order in which people's names appear on a scientific paper is hard 175 won by dint of personal contribution. No name must appear of anyone who has 176 not been significantly involved.

177 The first author is supposed to be the person who's come up with most of the 178 ideas and done most of the work and it's downhill from there until the prized last 179 name, who's often the team leader.

180 It's scientific misconduct for a person to appear in an authorship line if they 181 haven't significantly contributed to the work. That's called gift authorship and is a 182 big no-no.

184 In two papers on the grant application he appears as last author - which, as I said, 185 is one of the pole positions. But when you go to the original papers and look at 186 the real authorship line, Professor Hall is actually second last, probably the least 187 significant position.

188 In his wife's, Sue Hodgkinson's CV in the NH&MRC grant application, she said 189 she was supervising two PhD students in her laboratory, when one of them hasn't 190 and isn't doing a PhD. She's a research assistant.

191 And there are also changes in her authorship lines, including one citation on the 192 grant application where six authors on a paper have disappeared leaving only Dr 193 Hodgkinson and one other.

194 These all may well be innocent mistakes, although as you'll hear soon, authorship 195 problems are a significant issue out at Liverpool.

196 The application clearly convinced the committee, because they awarded Professor 197 Hall around a hundred and thirty thousand dollars a year for three years.

198 Dr He claims that when the grant was being prepared, she only ever saw the 199 section of it to do with her work and didn't read the whole document until after it 200 had been awarded and she was asked to sign the acceptance form as one of the 201 chief investigators.

202 Clara He: I called NH&MRC to give me copy. Then I examined the item, which 203 is the fraudulent scientific issues included in the grant application. Therefore I 204 wrote a letter to university -

205 Norman Swan: It's time for you now to meet someone else from Professor Hall's 206 laboratory. Her name is Hong Ha. She was born in Vietnam, came to Australia as 207 a child and grew up near Liverpool in the suburb of Fairfield.

208 Hong did honours science at university and in 1996, after working as a research 209 assistant in Professor Hall's lab, enrolled as a PhD student researching nephritis - 210 that's inflammation of the kidney. Professor Hall was her supervisor. Six years on 211 though, Hong has still not submitted her thesis. Now anyone who's done a 212 doctorate will be smiling quietly to themselves, because it's common for people to 213 overrun on their PhD. Universities are littered with unfinished projects, so much 214 so that the government has financial incentives for universities based on 215 completed PhD's. And there's probably never been a PhD candidate in history

216 who hasn't bitched about his or her supervisor - usually for not getting enough 217 attention.

218 But Hong Ha's reasons go beyond the run of the mill complaints.

219 Hong Ha: It has been very difficult to try and get the work completed. I've been 220 asked to do a lot of non-essential work not relevant for my PhD study.

222 Hong Ha: Specifically, there were three experiments that I have done that were 223 not essential for my thesis.

224 Norman Swan: And was Clara involved in asking you to do the work or was it 225 just Bruce Hall?

226 Hong Ha: It was Professor Hall. He's my supervisor and he's the person who has 227 asked me to do the work.

228 Norman Swan: How much time did those three experiments take you?

230 Norman Swan: People usually do PhD's on time-limited scholarships. Hong's 231 came from the Australian Kidney Foundation.

232 The story of Hong's PhD is one where a reasonable person would come to the 233 conclusion that there've been major problems with her supervision.

234 For example, in the Year 2000, Hong's thesis was supposedly on track. Professor 235 Hall wrote in her Progress Report that Hong's experimental work was complete 236 and she'd commenced writing up her thesis. But twelve months later he wrote that 237 she'd only finished ninety percent of her experimental work and still had two 238 experiments to go. Hong says those were two of the three extra experiments which 239 were not essential to her thesis.

240 Hong Ha: Ten months before my scholarship ran out, in a lab meeting in front of 241 many other staff, students, Professor Hall asked me to do more IL5 cytokine work 242 and I start to feel very concerned. I asked him whether he's going to provide me 243 any support once my scholarship is going to finish.

244 Norman Swan: Because this is obviously a critical issue for you: is your PHD 245 income going to run out because you're doing non-essential experiments. What 246 did he tell you?

247 Hong Ha: All he said was that I was improper in raising the issue in the meeting.

248 Norman Swan: Another important part of a PhD is the number of good papers 249 you get published. This is essential for your future career and is one reason why 250 the list of authors on papers and their order is critical. It's how people establish 251 themselves and good lab chiefs are generous in this respect. Nobel Laureate Sir 252 Macfarlane Burnet for example, would often leave his name off all together so 253 juniors like Gus Nossal got the credit. This doesn't seem to have happened with 254 Hong.

255 Going back to 1996 and 1997, there were other experiments that Professor Hall 256 wanted done to support grant applications and in return for carrying them out, 257 Hong was promised authorship on the subsequent papers. The research was on 258 immune messengers, cytokines called Interleukin 4 (IL4) and Interleukin 5, (IL5).

259 Hong Ha: And my name were on both IL4 and IL5 papers up until the time of 260 submission for publication. My name was removed without any explanation why.

261 Norman Swan: Who wrote the paper, you or Professor Hall?

264 Hong Ha: With the IL4 paper I'd never seen the final version of it.

265 Norman Swan: With the IL4 paper you discovered that when it was published?

266 Hong Ha: Yes. With the IL5 paper my name and two other people's were 267 removed.

268 Norman Swan: And was the authorship line otherwise okay on those two papers?

269 Hong Ha: With my manuscript, the one that I did for my PhD, there's people who 270 never contributed has been added.

272 Hong Ha: They were Dr Suzanne Hodgkinson, Dr Giang Tran, and Nicole Carter.

273 Norman Swan: They were both research assistants in Dr Hodgkinson's 274 laboratory?

276 Norman Swan: And how do you know they had nothing to do with it?

277 Hong Ha: Because the work was carried out by me. 278 Norman Swan: You were writing this paper presumably, not Dr Hall?

279 Hong Ha: Well, he's helping me writing the paper.

280 Norman Swan: So were you asked if it was all right if Suzanne Hodgkinson's 281 name went on? You were the first author, I assume?

283 Norman Swan: And were you asked if it was okay if their names went on?

284 Hong Ha: No one asked me that, Professor Hall just put it on.

285 Norman Swan: How do you know it was Professor Hall who put it on?

286 Hong Ha: Well, with Suzanne Hodgkinson's name he's just handwritten on it.

287 Norman Swan: And you've got a copy of that paper with his handwriting on it?

289 Norman Swan: What did you say when you saw it there on the draft?

290 Hong Ha: I show to a few staff there and they all laugh at it, because it's 291 something that has happened to our other papers.

295 Hong Ha: Because I don't want to upset my supervisor, because it's something 296 that I know Professor Hall has deliberately done: same with other papers. 297 Norman Swan: Has it ever happened to you in other circumstances, having Dr 298 Hodgkinson's name on one of your papers?

299 Hong Ha: Her name was on my other abstract, two other abstracts, as well.

303 Hong Ha: At the time that he was checking my abstract before I submit for 304 conference attendance.

305 Norman Swan: And again you didn't say anything?

307 Norman Swan: Was that manuscript accepted for publication?

308 Hong Ha: That manuscript is still with Professor Hall. It has been submitted and 309 there's some minor modification need to be fixed so they send it back. I did all the 310 final modification so it's ready for resubmission, but Professor Hall still holding 311 onto it.

312 Norman Swan: Have you asked him what's happening to it?

313 Hong Ha: I didn't contact him since I raised my allegation to the university.

314 Norman Swan: Hong Ha. And there's no suggestion that Giang Tran or Nicole 315 Carter were involved in changing these authorship lines.

316 You're listening to The Science Show here on ABC Radio National, I'm Norman 317 Swan.

318 Let's leave Hong's story for a moment and focus on Dr Suzanne Hodgkinson, 319 Professor Hall's wife, because it's interesting to look at a recent pattern in 320 authorship in the lab.

321 There's been a clutch of papers published in the last year or so, which contain her 322 name in the authorship line. Remember, she works on a rat model of multiple 323 sclerosis. She doesn't work on kidney disease or transplantation. Yet that's what 324 these highly technical papers refer to.

325 We found records which track the provenance of one research project linked to 326 one of these papers. These show that Suzanne Hodgkinson's name does not 327 appear anywhere until the paper's submitted. Before the year 2000, her papers all 328 related to neurology or autoimmunity.

329 Now it's fair to say that, since both she and her husband play in the same pond, 330 namely the immune system, there could be cross fertilisation. There could also be 331 sharing of materials. But supply of materials doesn't get you authorship. It gets 332 you a thank you in the acknowledgements.

333 As I said before, scientific authorship is a hard won honour.

334 Bruce Hall, in a letter written to support his wife over a patent dispute, claims that 335 she deserves credit in transplantation immunology because of her work on some 336 of these immune hormones - these so-called cytokines like Interleukin 4.

337 We've checked these assertions and found that the publication history from the 338 lab shows that the work referred to by Professor Hall was actually done by Dr He. 339 Dr Hodgkinson's papers in her own CV indicate she only came to cytokine work 340 lately.

342 We haven't been able to interview either Professor Hall or Dr Hodgkinson 343 because they say the University of New South Wales and their lawyers have told 344 them not to speak.

345 All I can tell you is of two issues that were running in the laboratory during this 346 period.

347 One is that it's been a long time since Dr Hodgkinson has won an NH&MRC 348 grant in her own right and her laboratory seems to have been under-funded. Later 349 we'll show you evidence that Bruce Hall was subsidising her lab out of his own 350 NH&MRC grants. If Professor Hall were ever to be audited by the NH&MRC it 351 would be easier to get through if he could show his wife had a track record in his 352 field.

353 And there was a rather nasty dispute going on over a patent relating to Clara He's 354 finding that Interleukin 5 might prevent organ rejection.

355 The argument was over whether Dr Hodgkinson's name should be on the patent, 356 given she allegedly had not been involved in this research field. This clutch of 357 papers last year with her name on them may have provided her with a history in 358 transplantation immunology.

359 Now, as if all this wasn't enough, there were major issues with Professor Hall 360 over money.

361 Clara He, who has her own NH&MRC grant, came in one day last year to find her 362 grant account was thousands of dollars short.

363 Clara He: He transferred forty six thousand dollars from my research grant to 364 cover his research assistant Catherine Robinson. In my grant application 365 Catherine Robinson is not involved.

366 Norman Swan: How do you know it went to her and not somebody else?

367 Clara He: Oh, I have the full transaction printout with Professor Hall's signature 368 on. On the printout at the top, specifically see from when to when Catherine's 369 salary was deducted.

370 Norman Swan: Clara He's allegation is that because Suzanne Hodgkinson's lab 371 wasn't winning large grants it left a shortfall in funding.

372 Most labs have trouble living within their means because grant money is never 373 enough, even for the work they've been funded for. The NH&MRC is notorious 374 for chopping back on budgets that people request, and in Liverpool, there'd be the 375 added difficulty of carrying a good part of another laboratory. We have lab 376 accounts which show that Bruce Hall paid the salary of one of his wife's research 377 assistants out of his own NH&MRC grant. The assistant's name is not listed on 378 the grant and she works in multiple sclerosis. In other words, taxpayer's funds 379 which the NH&MRC had directed towards transplantation research were now 380 being used for other work which hadn't gone through the same competitive hoops.

381 It's possible that this person was doing some work for Bruce Hall's lab, but our 382 understanding is that it was a tiny amount.

383 It perhaps highlights the difficulties faced when husbands and wives work 384 together in what would normally be a fairly ruthless environment where only the 385 best ideas and work survive.

386 It's common practice in research institutes only to support under-performing labs 387 for a while, but not from unrelated NH&MRC grants. And the tough reality in 388 institutions which want to be world class is that if researchers don't come good in 389 winning funding, they're cut free of support within two or three years. That's a 390 hard thing to do when that person's your wife.

391 Which brings us back to Hong Ha, who last year was left without an income, 392 running out of time to complete her PhD. She has a young child and needed the 393 money.

394 Hong Ha: After I raised my concern with Professor Hall, from that point it clearly 395 shown to me that I have to start looking for job because my hope is not going to 396 happen.

398 Hong Ha: To do as much as I could not to upset my supervisor and if I behaved 399 the way that Professor Hall wanted then he might change his attitude and treat me 400 better and he might consider give me a job.

401 Norman Swan: That wasn't to happen and Hong found work at Westmead 402 Hospital in Sydney's outer western suburbs. But that didn't end her connection 403 with Liverpool Hospital and Professor Hall.

404 Hong Ha: When I start my fulltime employment which was in October 2001, I 405 still have to do the work at Liverpool Hospital after hours with the help of my 406 husband.

409 Norman Swan: So the experiments that he asked you to do, you came back after 410 you'd left his employment, you came back to do it unpaid in your spare time?

411 Hong Ha: That was asked when I announced my leave and he said that I'm going 412 to have a lot of problem in getting my thesis complete without his help, it's going 413 to be very hard, it's near impossible, and he said but if, if I'm not going to do it, 414 that means I'm not serious with my work, which mean he won't be putting his 415 effort to help me getting my thesis through.

416 Norman Swan: Were there any witnesses to that conversation?

418 Norman Swan: So he was saying that unless you came back to do these 419 experiments which had nothing to do with your PhD, there would be problems 420 with your PhD?

421 Hong Ha: I needed to show him that I'm serious with my work.

422 Norman Swan: Can you prove that you came back and did the work after hours?

423 Hong Ha: Yes, I have to sign the time book when I enter the animal facility.

424 Norman Swan: How come your husband was involved in this?

425 Hong Ha: I asked him to come and help me because after hours I often feel very 426 tired, plus the work that I have to do at that time was I have to carry the cages 427 from the shelves to the sink and wash it, so there's a lot of things to do during the 428 night.

429 Norman Swan: What did you do with your child while all this was happening?

431 Norman Swan: Since the middle of last year Bruce Hall's labs have been in 432 turmoil.

433 There were five areas of concern: 434 Many examples of scientific misconduct, some of which looked like fraud; 435 What seemed to be fraudulent information supplied in a grant application to the 436 National Health and Medical Research Council; 437 Misappropriation of NH&MRC funds; 438 Serious questions around supervision of Hong Ha's PhD; and, 439 Allegations of bullying and abusive behaviour.

440 It doesn't come much more major than that and you'd perhaps imagine that once 441 the University of New South Wales was apprised of all this, they'd have gotten on 442 their bikes and sorted it out quick smart.

445 Why study at the University of New South Wales? At the University of New South 446 Wales a unique relationship between teaching and research is promoted -

447 Norman Swan: One example of problems with how the University of New South 448 Wales has dealt with this matter is over the NH&MRC grant application with the 449 flawed, probably fraudulent information in it.

450 On the 23rd of November last year, Clara He went to seek the advice of the Pro 451 Vice Chancellor Research, Professor Elspeth McLachlan about her dilemma over 452 being asked to sign the grant acceptance form.

453 Elspeth Mclachlan is a respected researcher in her own right and knows the 454 workings of the NH&MRC backwards. She's been the chief bureaucrat in charge 455 of research there and was even the NH&MRC's acting CEO for a while.

456 Clara He: We had a one-hour meeting, roughly. We went through everything. I 457 told her what is fraudulent.

458 Norman Swan: And did you show her the evidence for that?

459 Clara He: I showed her the evidence with copy of the original laboratory notes 460 and with the paper which contains the fraudulent data, with the abstract which is

461 mispresented in the TSANZ meeting and Professor McLachlan's response, first, 462 oh maybe you can sign yourself out, just say you're not interested the grant 463 therefore what happening is no longer relevant to you. I said, I feel that's a 464 principle, I have a responsibility to let the grant body to know, I would like to 465 notify them. And she said, oh, maybe he did this experiment in his wife's 466 laboratory or maybe he did it some other place overseas. I said, not possible, this 467 is microsurgery work in Liverpool, there's only one doctor perform this task, no 468 one else who can do it.

470 Clara He: Yeah, actually she said something else as well. She said if this data is 471 not relevant to his major theory, maybe it's not a major problem and we can 472 correct it easily. If you no longer like this project you just tell NH&MRC you 473 withdraw.

474 Norman Swan: You've probably got the measure of Clara He by now. She's not 475 someone to withdraw when set on a course.

476 Elspeth McLachlan has subsequently written to Clara saying that she disagrees 477 with her interpretation of that meeting, but a fair bit of what happens next is 478 supported by letters.

479 Professor McLachlan told Clara that it was a matter for the NH&MRC to 480 investigate, when she should have known that it has no jurisdiction over a 481 university. The deal is that the university has to do the inquiry.

482 Clara says she was advised to send her material to the University's Research 483 Office for them to pass on to the NH&MRC. After a period, Clara discovered the 484 material had actually been sent back to Professor McLachlan, not the NH&MRC. 485 So Clara sent it off to Canberra herself.

486 In January, the National Health & Medical Research Council informed both Clara 487 He and the University of New South Wales that they were freezing the grant funds 488 to Bruce Hall until the allegations had been sorted out by the university.

489 It's not clear from the NH&MRC letter to the university whether Professor 490 McLachlan had passed on any significant material from Clara, but she had told 491 them that Clara wanted off as Chief Investigator on this study…which was not 492 something Clara had said. Her problem was signing an acceptance form for a 493 grant which was based on questionable information.

494 It is clear though, that the funds were frozen because of Clara's approach, not the 495 University of New South Wales, which had been in possession of exactly the 496 same information but seems not to have acted with much commitment.

497 The University of New South Wales has refused to be interviewed on these or any 498 matters in relation to The Science Show, so we don't know what their explanation 499 is.

500 Then in February there are two extraordinary letters from Professor McLachlan to 501 Clara He. One on the 20th of February this year indicated Professor McLachlan 502 wanted the work to go ahead. She said:

503 "As you have not indicated that you wish to accept your role as Chief 504 Investigator B on NH&MRC Grant 209656, I intend to consult with 505 Professor Hall and advise the NH&MRC of what other arrangements are 506 proposed to permit the work to proceed". 507 Norman Swan: And then went on to say she was beginning a preliminary 508 investigation into the matters raised in Clara's letter to the NH&MRC. By this 509 time it's three months since Clara's first approach on this issue.

510 Now you should know that while all this is happening, another investigation into 511 Bruce Hall is going on, of which Professor McLachlan would have been aware. It 512 was being conducted by the Dean of Medicine Professor Bruce Dowton, which 513 makes another letter from Professor McLachlan to Clara the very next day, 514 breathtaking.

515 21st of February 2002. "Dear Dr He, In order to clarify the administration 516 of NH&MRC grant 209656, I require that within seven days you either 517 sign the clearance form for this grant that is held in the research office or 518 confirm with me in writing that, due to the problems that you have with 519 the application and your allegations about Professor Hall's scientific 520 integrity, you do not wish to be involved with the project. If you have not 521 signed the form by then I will assume that you do not wish to be involved 522 with the project and will have to advise the NH&MRC that you have 523 withdrawn."

524 Female Voice: Why study at the University of New South Wales?

525 Norman Swan: Well, you might be forgiven for thinking: so much for her 526 preliminary investigation. In mid June after some stormy lab meetings, laboratory 527 staff wrote Professor Hall a letter, which was basically an attempt to sort out 528 dispute resolution, clarify roles and make meetings start on time and run more 529 smoothly. According to Clara He it wasn't well received by Professor Hall.

530 In September, two months before she found out about the NH&MRC problem, 531 Clara complained to the Dean of the Faculty of Medicine, Professor Dowton.

532 Clara He: The trigger point is Professor Hall have a screaming yell at me in the 533 open public and I wrote to him requesting a consultation with him and he refused. 534 Instead he sent the disciplinary letter to me: oh you didn't do this and you didn't 535 do that and then you don't listen to me and then you go through what is outside 536 institution doing work without telling me - which has never happened. So he had 537 an open fight with me. He told me it is time for you to think, do you want to work 538 here or not. I said, alright I don't think we go anywhere, I request external help. 539 So I lodged my formal complaint to university, Dean of the Faculty Professor 540 Dowton and General Manager Liverpool Hospital, Raad Richard.

541 Norman Swan: It's interesting how the two complaints have evolved. Liverpool 542 Hospital, through the South West Sydney Area Health Service wanted to 543 investigate all the issues relating to Professor Hall, but was advised that the 544 university had jurisdiction over allegations of scientific misconduct.

545 So the Area Health Service confined itself to the allegations of bullying and 546 abusive behaviour. The Science Show understands that Professor Hall and Dr 547 Hodgkinson have refused to co-operate because they claim they are university 548 employees.

549 Anyway, the Area Health Service eventually commissioned an independent 550 inquiry and we understand that it's due any time now.

551 But the University of New South Wales is a different matter.

552 Their story's unclear. It seems as though it took the university another two months 553 to start an investigation. We're not sure if it's a definitive inquiry or a preliminary 554 one. That's important, because in a preliminary inquiry really all you have to do is 555 decide whether there's a prima facie case of misconduct to be answered and then 556 do what the hospital did and bring in a respected independent party to conduct an 557 inquiry which everyone's going to trust.

558 It's taken me about forty five minutes so far and I've probably convinced you that 559 at the very minimum these allegations should be investigated by an independent 560 party, but an independent inquiry is yet to occur and it's now more than six 561 months since the first formal approach.

562 The situation's been made even more murky by the New South Wales whistle 563 blower protection legislation, called Protected Disclosure. That's what Clara 564 relied upon in her initial complaint. It deals with accusations around 565 maladministration, waste of public funds and corruption.

566 Senior Counsel Phil Greenwood has worked with the Independent Commission 567 against Corruption in New South Wales, which is the body which oversees the 568 Act.

569 Phil Greenwood: The idea is to try and provide protection for people who want 570 to make disclosures about misconduct that's occurred within the public service. 571 The Act provides certain protections for those people and also provides certain 572 offences if they make false disclosures.

573 Norman Swan: And what sort of protection does it confer?

574 Phil Greenwood: Well, protection in relation to confidentiality and also 575 protection in relation to reprisals that might be made against those people.

576 Norman Swan: And that reprisal would take what sort of form: is it defined in 577 the Act?

578 Phil Greenwood: Reprisals include being sacked, being demoted, being treated in 579 a poor way; any reprisal where it's clear that that came about as a result of the 580 complaint being made.

581 Norman Swan: The reason we can talk about this affair on The Science Show, is 582 that if there's been no determination within six months of the complaint, then the 583 complainant is free to go to the media. That six months was up in mid March.

584 The Deputy Vice Chancellor of the University of New South Wales, John 585 Ingleson, is the person at the university designated to deal with Protected 586 Disclosure and for practical purposes he's delegated that authority to others. In the 587 case of the Bruce Hall allegations it went to the Medical Dean Professor Dowton. 588 The complainant's concern is that Professor Dowtown is Bruce Hall's boss and any 589 financial repercussions, say with the grant, could adversely affect the Medical 590 School's budget. So although no one is questioning Bruce Dowton's integrity 591 there could be a perceived conflict of interest. The university has even 592 acknowledged this but they proceeded anyway.

593 Hong Ha wanted to be covered by Protected Disclosure. Professor Dowton was 594 happy to give it to her, but he was overridden by Deputy Vice Chancellor 595 Ingleson, who said it was his to give and he'd wait to hear what Hong said before 596 deciding. A catch twenty-two which had the effect of intimidating Hong, but both 597 Hong and the university are almost certainly wrong in their interpretation of the 598 Act.

600 Phil Greenwood: No, it's not a matter for them. The Act prescribes what is a 601 protected disclosure and what is not. If the disclosure satisfies the requirements of 602 the Act then it is protected and should be treated that by way the university.

603 Norman Swan: So it's not within any one person's gift?

604 Phil Greenwood: No. Ultimately it's a matter for the court to determine if there's 605 a dispute about it. But clearly an organisation receiving a complaint which 606 appears to fulfil the requirements of the Act, ought to be treated as a protected 607 disclosure.

608 Norman Swan: There may at first sight have been two breaches of protected 609 disclosure while the investigation has been going on. Both relate to Professor Hall 610 trying to obtain the original lab books around the allegations.

611 Dr Chen claims that at one point Professor Hall accused him of stealing the lab 612 books and insisted that Chen stay in his office while he called the police and the 613 hospital security people. The Dean, Professor Dowton, who was at Liverpool 614 Hospital that day intervened. In fact, the lab books were in safe keeping in the 615 hospital.

616 And the reason Hong says she stopped going to the lab to do the experiments was 617 that she received the following fax from Professor Hall on the 31st of January,

618 two days after she had made a confidential complaint to Professor Dowton's 619 inquiry.

620 "Dear Hong, It has come to my attention that your laboratory books are 621 missing from the fourth floor of the Health Services Building. This is in 622 direct contravention to my written instructions that you are welcome to 623 have copies but that the originals must not be removed from the 624 laboratory. They are the property of the laboratory, they are to be returned 625 immediately or they will be reported as stolen. A copy of this letter has 626 gone to the Dean. Yours Sincerely, Professor B. Hall."

627 Norman Swan: Hong Ha's lab books were actually with the Dean, Professor 628 Dowton, to assist him in his investigation. In an ironical footnote to this story, in 629 February, the following e-mail was sent out to personnel at the University of New 630 South Wales.

631 "Dear colleague, the university is initiating an important new project to 632 assess the effectiveness of our fraud awareness and code of conduct 633 compliance. We have engaged Andersen to assist in this project. The 634 Andersen team will be facilitating a university wide survey to obtain 635 information about our culture as well as the effectiveness of our fraud 636 awareness and code of conduct compliance program. Yours sincerely John 637 Niland, Vice Chancellor."

638 Norman Swan: It's not clear who their alternative to Andersen Consulting is 639 going to be. All this is happening at the same time as the University of New 640 South Wales is being accused of mishandling serious allegations in relation to 641 their Education Testing Centre. The New South Wales Ombudsman has 642 reportedly criticised the University for not protecting a whistleblower over 643 concerns about nepotism. Professor Ingleson, who is Acting Vice-Chancellor at 644 the moment, faxed me a letter yesterday reiterating that the University and staff 645 involved are prevented legitimately from responding to my questions. To be fair, 646 in a University of 34,000 students there are going to be some unhappy people. If 647 you run a faculty there are probably lots of people complaining and you've got to 648 sort out the nutters from the genuine ones.

649 But this is substantially different from the usual gripes and interpersonal conflicts. 650 It's stark in its comprehensiveness with misconduct so extreme it can only be 651 called fraud.

652 The misuse of NH&MRC funds is particularly serious. Some of the allegations in 653 isolation could be explained as sloppiness or an innocent error, but the total 654 picture is astounding and fits almost exactly with the National Health and Medical 655 research Council's own definition of misconduct.

656 Publication of multiple papers based on the same sets or subsets of data is not 657 acceptable, except where there is full cross-referencing within the papers. 658 Deliberate inclusion of inaccurate or misleading information relating to research 659 activity and curriculum vitae, grant applications, job applications or public 660 statements or the failure to provide relevant information is a form of research 661 misconduct. Misconduct or scientific misconduct is taken here to mean 662 fabrication, falsification, plagiarism or other practices that seriously deviate from 663 those commonly accepted within the scientific community for proposing, 664 conducting or reporting research. It includes the misleading ascription of 665 authorship, including the listing of authors without their permission, attributing

666 work to others who have not in fact contributed to the research and the lack of 667 appropriate acknowledgment of work primarily produced by research assistant, 668 trainee or associate.

669 Norman Swan: With Hong Ha, despite all this fuss, the university has still not 670 arranged a change of supervisor for her. Stories like this should not have to be 671 broadcast on national radio; it's sad and painful for everyone involved that it's 672 come to this. The University of New South Wales needs to take a cold hard look 673 at itself and its processes. Whistleblowers are usually angry, disillusioned and 674 somewhat paranoid by the time they've decided to take their complaints to people 675 in power. The slowness of the response, the perception of conflict of interest and 676 the confused handling of the NH&MRC complaint have added to the emotion 677 and, frankly, turned it into a mess which could have been minimised. The aim of 678 institutions should be to keep scientific fraud off the front page - but not by 679 burying it.

680 This has been The Science Show. It was researched by Katrina Bolton and 681 produced by Katrina Bolton and Brigitte Seega with technical production by 682 Janita Palmer. I'm Norman Swan and young Williams, he'll be back next week.

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