Hall v The University of New South Wales

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST

30017/03 Bruce Hall v The University of New South Wales

JUDGMENT 1 HIS HONOUR: This is an application made pursuant to Part 15 Rule 26 of the Supreme Court Rules by the defendant to have certain paragraphs of the plaintiff's Amended Statement of Claim struck out. The underlying basis of the application is that the defendant contends that the paragraphs of the Statement of Claim which are the subject of challenge seek to raise issues which would require the Court to carry out a review of the merits of the matter rather than questions of procedural unfairness which would give rise to breaches of natural justice. 2 At the outset I should repeat an Order I made during the hearing of the application suppressing the publication of details of these proceedings. This Order I made pursuant to s.80 of the Supreme Court Act and in fact is a continuation of orders made in earlier interlocutory applications involving the parties. 3 The plaintiff is employed by the defendant as a professor of medicine at its South Western Clinical School. In this capacity the plaintiff carried out research into organ transplantation immunology, which involved experimentation involving the use of rats. Following complaints made by certain persons concerning the conduct by the plaintiff of that research, the defendant established an independent inquiry into some of the complaints. As the Statement of Claim sets out the purpose of the inquiry was to inquire into and advise the defendant whether the plaintiff had been guilty of scientific misconduct or scientific fraud as defined in the guidelines between the National Health and Medical Research Council and the Australian Vice Chancellors Committee. 4 The inquiry was held and a report produced. Tendered in evidence in these proceedings was Volume 1 of the report which was dated 31 January 2003. 5 The members of the Committee which carried out the inquiry who produced the report were Sir Gerard Brennan - former Chief Justice of Australian, Professor John Chalmers - of the Institute of International Health at the University of Sydney, Professor Judith Whitworth - Director of the John Curtin School of Medical Research at the Australian National University and Professor Sir David Weatherall - Regis Professor Emeritus of Medicine at Oxford University and of the Weatherall Institute of Molecular Medicine at the John Radcliffe Hospital in Oxford. Sir Gerard Brennan was elected by the members of the Committee to chair it. 6 In his Statement of Claim the plaintiff alleges that the inquiry failed to accord him procedural fairness which led to adverse findings against him which would otherwise have not been made. He seeks a number of orders which are:-

1. a declaration that the defendant had no power to establish the inquiry;
2. a declaration that the report of the inquiry bearing date 31 January 2003 is nul and void;
3. an order setting aside the report;
4. alternatively, an injunction restraining the defendant from: a. publishing the report or any findings in the report which relate to the plaintiff; b. using the report in any disciplinary proceedings pursuant to clause 14 of the University of New South Wales (Academic Staff Enterprise Agreement) 2000 which is known as EA2000. 7 The paragraphs which the defendants seek to have struck from the Statement of Claim are paragraphs 16 - 19 and paragraphs 53 - 55 both sets of being inclusive. 8 These paragraphs are as follows: "16. None of the members of the Inquiry had medical, scientific or research qualifications in the area of research which was being conducted by BH and investigated by the Inquiry. 17. In the premises: 17.1 The members of the Inquiry had no or insufficient qualifications to, using their medical, scientific or research knowledge, make findings against BH. 17.2 In relation to those allegations investigated by the Inquiry in respect of which the members of the Inquiry used their own medical, scientific or research knowledge, the Inquiry had obligations to: 17.2.1 Ensure that the members of the Inquiry applied to correct medical research or scientific principles, in coming to its conclusions; and/or 17.2.2 Inform BH that the members of the Inquiry intended to apply their own medical, scientific or research knowledge, and what the medical, scientific, or research principle to be applied was; and/or 17.2.3 Provide BH with an opportunity to be heard by the Inquiry, in relation to the medical, scientific or research principle to be applied by the Inquiry. 18. At no time during the Inquiry, did it inform BH that the members of the Inquiry, did it inform BH that the members of the Inquiry intended to apply their own medical, scientific or research knowledge. 19. BH was denied procedural fairness." and " The Inquiry applied its own scientific knowledge, and made the following medical, scientific and/or research errors 53. BH repeats the allegations contained in paragraphs 17.2 to 19 inclusive. 54. The Inquiry failed to inform BH of its intention to apply its own scientific knowledge and made errors in its findings in relation to the medical, scientific and/or research matters. Particulars Allegations 1 to 3 54.1 For G4.18 and MRC Ox 38 data (anti CD3/anti CD4 data), there may be a difference in results between experiments using F344 rats and Lewis rats. 54.2 Further, the Inquiry applied its own standard as to the method of referencing of previously published work. Allegation 4 54.3.1 The Inquiry did not accept that there could be correspondence in the data lines specified in the Allegation with differing strains of rats. 54.3.2 In Allegation 1, the Inquiry accepted that in respect of the F344/Lewis data, the results obtained were likely to be the same. 54.3.3 The inquiry arrived at the conclusion that for the rat strains F344 and Lewis the results were not more likely to be the same when they did not have the expertise to arrive at that conclusion. Allegation 7 54.4 The Inquiry applied its own medical, scientific or research knowledge by presupposing that CD25+ cells on their own could transfer specific tolerance and on their own, effect rejection. Allegation 9 54.5 The Inquiry used its own medical, scientific or research knowledge to conclude that the experiment the subject of the allegation was central to the paper. Allegation 10 54.6 The Inquiry concluded that the experiment the subject of the allegation was significant to the grant. Allegation 13 54.7 The Inquiry applied its own medical, scientific and/or research knowledge by finding that it was not valid to pool control data. 55. By reason of the Inquiry applying its own medical, scientific and/or research knowledge, without informing BH, the Inquiry made errors, in its findings. Particulars Allegations 1 to 3 55.1 There was no difference between experiments using F344 rats and Lewis rats for G418 and MRC Ox 38 data (anti CD3; anti CD4 data). 55.2 The standard of referencing applied by the Inquiry was not in accordance with the standard of referencing used in the Research Allegation 4 55.2.1 The results with Lewis and F344 were so concordant that they could not be distinguished. 55.2.2 The genetic differences between F344 and Lewis are irrelevant and trivial, and have no effect on the result. 55.2.3 For logistical reasons the experiment used the Lewis and F344 strains interchangeably. It was part of the experiment design as there was no difference. 55.2.4 Control data can be so similar there may be one or two points of difference in a data set even in experiments done seventeen years apart, and the difference is therefore irrelevant. Allegation 7 55.3 CD25+ cells on their own can neither transfer specific tolerance nor effect rejection. Allegation 9 55.4 The experiment, the subject of the allegation, was not central to the paper. Allegation 10 55.5.1 The experiment, the subject of the allegation, was not significant to the grant. 55.5.2 The experiment data contained in the application for the grant concerned rejection and was one aspect of the application for the grant which concerned tolerance. Allegation 13 55.6 The Inquiry used as control data obtained from an experiment in which no cytokine had been added, when the relevant controls were in experimental groups C to H, and were the responses to DA and Lewis rates where cytokine or sham cytokine was added. The experimental group demonstrates a response to PVG rats." 9 Part 15 Rule 26 takes the following form: "1. Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleadings; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings;

(c) is otherwise an abuse of process of the court, the court may at any stage of the proceedings, on terms, order the whole or any part of the pleading by struck out." 10 In his written submissions counsel for the plaintiff submitted as follows: "Principles 12. The power to strike out pleadings because they disclose no reasonable cause of action should be exercised only in plain and obvious cases. 13. A case is not 'plain and obvious' and the power to strike out should generally not be exercised where there is a real issue to be tried, whether it is one of fact or law. Factual Allegations 14. It is not sufficient to show that the allegations of fact in the impugned pleadings are improbable or false, because to entertain these questions of probability or falsity would involve trying the action prematurely. 15. A court should reject a strike out application which involves a preliminary and necessarily inclusive investigation of the facts on which the claim is based. Questions of law

16. In an appropriate case the court may determine a difficult question of law on an application to strike out even where it involves extensive argument.

17. The court needs to be satisfied that investigation will either: 17.1 avoid the need for; or 17.2 substantially reduce the cope of, a subsequent trial.

18. If the pleading defect can be cured by amendment, the court ought to grant leave to amend rather than exercise power to strike out. Abuse of process 19. Where the pleadings have been put on solely for the purpose of delay or in bad faith: 19.1 where the claim or an issue has been determined in previous litigation; 19.2 where the pleading is ambiguous or does not disclose a cause of action;

19.4 where a substantive and effective limitation defence has been pleaded. 20. Examples of abuse of process generally are: 20.1 Proceedings are doomed to fail because: 20.1.1 they disclose no cause of action; 20.1.2 events have occurred since their commencement. 20.2 Proceedings cannot be fairly and properly determined, eg. because of delay.

20.3 Proceedings involving claims that have already been determined and are res judicata.

20.4 Proceedings involving substantially the same point as a matter decided in formal proceedings where it would be unfair to permit issues to be raised again.

20.5 Claims that could have been brought in earlier proceedings." 11 In my view these submissions correctly state the law to be applied to applications such as the present. In determining this matter I have applied those principles. 12 I turn then to the argument advanced on behalf of the defendant that the challenge to paragraphs seek to raise a merits review rather than questions of procedural error leading to a denial of nature justice. 13 The leading authority in Australia relating to judicial review of administrative decisions is Attorney General (NSW) V Quin [989/90] 170 CLR 1. At 35 Brennan J stated:- "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case." 14 Later he said:- "Some advocates of judicial intervention would encourage the courts to expand the scope and purpose of judicial review, especially to provide some check on the Executive Government which nowadays exercises enormous powers beyond the capacity of the Parliament to supervise effectively. Such advocacy is misplaced. If the courts were to assume a jurisdiction to review administrative acts or decisions which are 'unfair' in the opinion of the court - not the product of procedural unfairness, but unfair on the merits - the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ: see Secretary of State for Education and Science v Tameside Metropolitan B.C. (3), and Council of Civil Service Unions v Minister for the Civil Service (4). The absence of adequate machinery, such as an Administrative Appeals Tribunal, to review the merits of administrative acts and decisions may be lamented in the jurisdictions where the legislature has failed to provide it, but the default cannot be made good by expanding the function of the courts. The courts - above all other institutions of government - have a duty to uphold and apply the law which recognises the autonomy of the three branches of government within their respective spheres of competence and which recognises the legal effectiveness of the due exercise of power by the Executive Government and other repositories of administrative power. The law of judicial review cannot conflict with recognition of the legal effectiveness of the due exercise of power by the other branches of government. If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk. The risk must be acknowledged for a reason which Frankfurter J stated in Trop v Dulles (5): 'All power is, in Madison's phrase, "of an encroaching nature." … Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.' If the courts were to postulate rules ostensibly related to limitations on administrative power but in reality calculated to open the gate into the forbidden field of the merit of its exercise, the function of the courts would be exceeded …" 15 I turn then to the first set of paragraphs which are the subject of challenge, namely, paragraphs 16 - 19 inclusive. Paragraph 16, in my view, does not raise any question of denial of natural justice. Accordingly, I direct that that paragraph be struck out. Paragraph 17 sets out a number of obligations which the plaintiff alleges the inquiry had to satisfy. Paragraph 18 then alleges a failure on behalf of the inquiry to inform the plaintiff that members of the inquiry intended to apply their own scientific knowledge in coming to a determination. Accordingly, it is alleged that the plaintiff was denied procedural fairness. 16 In the Minister for Health v Thomson 60 ALR 701 the Full Federal Court dealt with such questions. The matter being considered in that case involved an allegation that a medical practitioner had been guilty of what is known as "over servicing". At 705 Fox J said:- "The next matter raised was whether there had been a denial of natural justice. The particular aspect relied upon is that the committee had not made known to Dr Thomson in the course of the inquiry the views it held tentatively or otherwise about the number of services appropriate in particular situations. It is not disputed that the committee is one of experts. The Act requires that it comprise five medical practitioners. It seems reasonably clear that the intention of the Act is that the committee sit as a committee of the peers of the medical practitioner whose conduct is in question and exercise its judgment in relation to the evidence before it, using its own collective knowledge in its evaluation. There are many authorities which hold that such a committee can act on its own views, and can do so without disclosing those views to a person appearing before it, in the role of a defendant or otherwise (see R v City of Westminster Assessment Committee; Ex parte Grosvenor House (Park Lane Ltd [1941] 1 KB 53; Crofton Investment Trust Ltd v Greater London Rent Assessment Committee [1967] 2 QB 955; Kalil v Bray [1977] 1 NSWLR 256; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161)." 17 Similarly Beaumont J observed at p.713:- "The respondent further argues that the committee denied him natural justice by using its own experience and expertise to determine an appropriate frequency of visitation. Although the committee acknowledged that it did use its own experience and expertise in coming to its conclusions, it does not follow that any breach of the rules of natural justice thereby occurred. By virtue of the provisions of s.80(2), only medical practitioners may be appointed to the committee and it is only reasonable to assume that the respondent was at all material times on notice that the members of the committee would be likely to make us of their own expertise and experience in such matters (see R v City of Westminster Assessment Committee; Ex parte Grosvenor House (Park Lane) Ltd [1941] 1 KB 53 at 69; cf Keller v Drainage Tribunal and Montague [1980] VR 449 at 453). The submission of the respondent is tantamount to saying that the rules of natural justice insist that the committee should not proceed to a conclusion until it had first shown a draft of its report to the respondent and invited his comments thereon. In my opinion, the application of notions of fairness in the present circumstances does not require such an extreme step (see National Companies and Securities Commission v News Corporation Ltd (1984) 52 ALR 417; 58 ALJR 308)." 18 It was submitted on behalf of the plaintiff that Beaumont J's observation in the last sentence of the quotation that "the application of notions of fairness in the present circumstances does not require such an extreme step", "the present circumstances" there pertaining were in a situation so different from that existing here that his observation is not applicable in this case. In my view the consequences of an adverse finding against Dr Thomson in his case were as is the case for the plaintiff here, disastrous. I see no reason why the law as stated by Beaumont J in Thomson's case should be distinguished in this case. For that reason. I am of the view that paragraphs 17 and 18 cannot lead to a finding that the inquiry breached the rules of natural justice should the allegations contained in those paragraphs be established. Accordingly, I strike them out. I now turn to paragraphs 53 - 55 inclusive. 19 It is in relation to the allegations contained in these paragraphs that the defendant contends that they seek to have the court carry out a merits review which on the principles adumbrated in Quin's case is not justiciable. 20 The defendant not only relies upon the wording of the subject paragraphs but also upon parts of an affidavit of sworn by the plaintiff in the proceedings. That affidavit which was sworn on 10 March 2003 by the plaintiff contains a number of paragraphs, namely, paragraphs 77 - 82 under a heading of Scientific Errors. There the plaintiff makes a number of claims relating to the inquiry's findings which are essentially allegations of fact. The wording contained in paragraphs 53 - 55 particularly the language used in the paragraphs 54 and 55 of the Statement of Claim, uses phraseology which is similar and in some cases identical to the language used by the plaintiff in his affidavit of 10 March 2003. Ex facie paragraphs 53 - 55 would seem to seek a merits review of the inquiry's findings. 21 However the plaintiff argues that in order to advance an argument that a denial of natural justice has occurred in that the plaintiff had been denied the possibility of a successful outcome then the matters raised in paragraphs 53 - 55 should be ventilated at the trial. It was put on the plaintiff's behalf that the nature of the review necessarily requires the judicial reviewer to consider the merits of the decision to determine if it was so unreasonable as to establish this allegation. It was put that this process necessarily requires an analysis of the evidence. Reliance was placed upon what had fallen from the Full Federal Court in Pfizer v Birkett [2001] 112 FCR 305. The plaintiff also relied upon what had fallen from Kirby J in the High Court in Minister for Immigration v Multicultural and Indigenous Affairs; Ex parte applicant s190 of 2002 [2002] HCA 39: "19. In repeated decisions of this Court it has been made clear that the constitutional writs, and associated relief, are not available to allow a merits review of ministerial or administrative decisions or decisions of federal courts. Relevantly to this case, this includes the decisions of the delegate of the Minister, of the Tribunal, of the primary judge in the Federal Court and of the Full Court of that Court. Nor are such writs available to allow a merits review of a decision of an officer of the Ministerial Interventions Unit of the Department, such as Mr Lemaniak. A constitutional writ under s.75(v) of the Constitution is only available for what are described as jurisdictional errors - errors going to the authority and power of the decisionmaker to do what was done." and:- "22. Upon this footing I find it impossible to say that, on its face, the document (exhibit A1) sufficiently establishes such an unreasonable decision by Mr Lemaniak that it can be said that no reasonable decisionmaker in his position could have made such a decision. The document indicates that the decisionmaker had the Minister's guidelines in mind. Indeed, I would infer that he had the guidelines before him. These refer expressly to claims by refugee applicants sur place . They also refer to risks that may have arisen since an earlier decision that applicants within Australia have been the subject of publicity that might have come to the attention of authorities in their country of origin so as to jeopardise their safety if they were returned there. 23. There is therefore nothing on the face of the documents to lift this case into the class of Wednesbury or 'manifest' unreasonableness. Nor can it be said that the documents disclose a reasonably arguable case of a failure on the part of the official to consider relevant matters in reaching the decision or of taking into consideration irrelevant matters going to jurisdiction or power. I would infer that Mr Lemaniak had before him the applicant's letter to the Minister making his assertions and his request that initiated the involvement of the Ministerial Interventions Unit. This squarely referred to the concern about publicity through the Internet. It is for the applicant to provide an evidentiary foundation for the relief he seeks. In another case, with different facts, the inferences about manifest administrative unreasonableness might be different. But on the basis of the evidence and materials propounded in this matter, I am not convinced that the applicant has established a reasonably arguable case." 22 I should add that the plaintiff's counsel did not suggest that this was a case involving Wednesbury of manifest unreasonableness. The phrase "Wednesbury unreasonableness" comes from a line of authority which commenced with the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Essentially Wednesbury unreasonableness leaves the merit of a decision unaffected unless the decision is such as to amount to an abuse of power. As I have said the plaintiff does not rely upon that concept in this case. 23 It was then submitted on behalf of the plaintiff that at the trial if the evidence led in support of the allegations contained in paragraphs 53 - 55 were to deeply involve questions going to merit, the trial judge could intervene and limit the evidence being called. This, it was argued, would overcome the problem confronting the plaintiff raised by decisions such as Quin and enable the plaintiff to advance his case that he had been denied natural justice because he had lost the opportunity of obtaining a better result. 24 I agree with the submission in reply made by counsel for the defendant that this latter decision made on behalf of the plaintiff is indicative that in fact what paragraphs 53 - 55 attempt to do is to raise issues which go solely to a merits review of the inquiry's findings. Because I am of the view that paragraphs 53 - 55 do in fact raise matters solely related to the merits of the findings of the inquiry, I am of the view they should be struck out. I should add that paragraph 54 is in a slightly different position to paragraphs 53 and 55. The preliminary verbiage in paragraph 54 is "the inquiry failed to inform BH (the plaintiff) of its intention to apply its own scientific knowledge". That matter I have already deal with in considering paragraphs 16 - 19. Accordingly, while that verbiage does not suffer from the same problem as the verbiage contained in the balance of paragraphs 53 - 55 it does not, for the reasons I have advanced in dealing with paragraphs 16 - 19, save the paragraph. 25 The order that I make are that paragraphs 16 - 19 inclusive and paragraphs 53 - 55 inclusive of the plaintiff's Amended Statement of Claim be struck out. I give the plaintiff leave to replead so as to raise the allegation that he was denied natural justice by virtue of being denied an opportunity of obtaining a better result. However, that leave is restricted to matters properly falling within the ambit of judicial review of an administrative decision and not involve questions going to the merits of the inquiry's findings. 26 I order the plaintiff to pay the costs of this application.

Last Modified: 06/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.