Hall v Swan & Anor

[2009] NSWCA 371

Court of Appeal (NSW)|2009-10-08|Before: Tobias JA, Bergin CJ, Rothman J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2009-10-08

Before

Tobias JA, Bergin CJ, Rothman J

Source

Original judgment source is linked above.

Judgment (283 paragraphs)

[1]

The application goes on to say - and I quote: "This work forms the basis of our ongoing proposal". (lines 156-170) … Clara He: I called NH&MRC to give me copy. Then I examined the item, which is the fraudulent scientific issues included in the grant application (lines 202-203).

[2]

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

[3]

Norman Swan: 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. Publication of multiple papers based on the same sets or subsets of data is not acceptable, except where there is full cross-referencing within the papers (lines 650-657). 77 In the early part of the broadcast, Dr Swan does not state this claim categorically, but rather uses the qualified expression that the data "appears to have [been] misrepresented" in the application. There is a similar but far more serious claim in the "recap" in which Dr Swan claims that the information in the grant application "seemed to be fraudulent". The categorical claim is that the "two repeat experiments failed to replicate" the findings in the first experiment. The possibility that this may have been an innocent oversight is jettisoned when this categorical claim is combined with the dramatic recitation of the NH&MRC definition of "misconduct" and the conclusion that the comprehensiveness of the misconduct was so extreme it could only be called "fraud". The listeners would have been left in no doubt that the respondents were stating that the appellant had fraudulently misrepresented data in the grant application by not disclosing that two repeat experiments failed to replicate the original findings. 78 In my view, the negative answer to the question whether imputation (f) was conveyed was unreasonable. (g) The plaintiff committed scientific misconduct by deliberately misrepresenting in his CV annexed to the National Health and Medical Research Council grant application that he had a significant role in the authorship of two papers when he had the least significant role

[65]

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.

[67]

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.

[68]

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.

[69]

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]:

Hall v Swan & Anor

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Judgment (283 paragraphs)

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Cases Cited (14)

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