Hall v The University of New South Wales - [2003] NSWSC 669 - NSWSC 2003 case summary — Zoe

NSWNSWSC

Hall v The University of New South Wales

[2003] NSWSC 669

Supreme Court of NSW|2003-06-12|Before: McClellan J, Commission J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2003-06-12

Before

McClellan J, Commission J

Catchwords

ex parte Lain [1967] 2 QB 864 R v Hull Prison Board of Visitors
ex parte St Germain (No. 2) [1979] 1 WLR 1401 R v Liverpool Corporation
ex parte Liverpool Taxi Fleet Operators Association & Anor (1972) 2 QB 299 R v Ludeke
ex parte Cameron [1976] VR 427 at 432 R v Solicitors' Disciplinary Tribunal

Source

Original judgment source is linked above.

Catchwords

ex parte Lain [1967] 2 QB 864 R v Hull Prison Board of Visitorsex parte St Germain (No. 2) [1979] 1 WLR 1401 R v Liverpool Corporationex parte Liverpool Taxi Fleet Operators Association & Anor (1972) 2 QB 299 R v Ludekeex parte Cameron [1976] VR 427 at 432 R v Solicitors' Disciplinary TribunalEx parte Miah (2001) 206 CLR 57 Re Refugee Review Tribunal and Another

Judgment (119 paragraphs)

[1]

Background 151 By letter to the Inquiry dated 27 September 2002, Professor Hall requested that he be allowed to cross-examine the complainants. The relevant part of the letter reads: "6.4 I seek to be legally represented to: 6.4.1 Question witnesses by examination-in-chief, cross-examination and re-examination" 152 The Inquiry replied on 4 October 2002. The letter indicated that should legal representation be allowed, it would not be for the purpose of cross-examination of the complainants. The letter read as follows: "The Inquiry notes your comments at paragraph 6. The Inquiry hopes to resolve these matters when it meets again on 14 October 2002. It may be that the Inquiry permits the presence of lawyers for particular purposes, for example, to assist in resolving conflicts of oral evidence." 153 In its Report, the Inquiry referred to its "inability to require witnesses to submit to cross examination to test their evidence." It noted that this had led to "considerable difficulty in evaluating the evidence of the complainants (including Dr Penny) on the one hand and Professor Hall or one of his supporting witnesses on the other" (Volume 1 p25).

[28]

Allegations 9 and 10 182 Allegations 9 and 10 are in similar terms: that Professor Hall submitted a paper or an application for a research grant containing results or experiments which were never carried out in Professor Hall's laboratory or any other laboratory of any other author of the paper; and thus that he stated or published a material or significant falsehood, and submitted the papers with intent to deceive or in reckless disregard for the truth. 183 Allegation 9 was discussed in interviews on 22 October 2002 and is recorded in the Report in Volume 4 Part 1 pp95-103. Professor Chalmers said to Professor Hall: "But the bottom line, then, is that this is actually data which, through a series of circumstances which you outline in your response, didn't exist and did end up in a paper submitted?" (Volume 4 Part 1 at p97 lines 4-8) 184 The substance of the Allegation was raised again on 24 October 2002, during interviews described by the Inquiry as "Professor Hall's Reply". The relevant parts of the interviews are at Vol 4, Part IV pp210-213. 185 Allegation 10 was discussed on 22 October 2002, as recorded in the Report in Volume 4 Part 1 pp104-109. Professor Chalmers (at p105 line 5) asked Professor Hall if he agreed that the issue raised in Allegation 10 was the same as that raised by Allegation 9; Professor Hall agreed that it was. Professor Whitworth asked Professor Hall: "If it has come to your attention that there were errors in the grant, you would have corrected these in that response to the interviewers?" (p106 line 26). 186 The Inquiry expressed joint Conclusions in respect of Allegations 9 and 10 but made separate findings in respect of each Allegation. 187 In relation to Allegation 9, the Inquiry found (at p141 of Volume 1 of the Report): "That … Professor Hall stated a material and significant falsehood, with reckless disregard for the truth." 188 In relation to Allegation 10, the Inquiry found (at p141 of Volume 1 of the Report): "1. That…Professor Hall stated a material and significant falsehood with reckless disregard for the truth. 2. That…Professor Hall stated a material or significant falsehood with deliberate intent to deceive.

[29]

Allegation 13 189 Allegation 13 relates to the preparation and submission of a research grant application to the National Health and Medical Research Council of Australia. It is alleged that Professor Hall presented a conclusion but omitted facts relevant to that conclusion, with the result that he stated or published a material or significant falsehood, and prepared and submitted the application with intent to deceive or in reckless disregard for the truth. 190 Allegation 13 was first raised with Professor Hall in interview on 22 October 2002 (recorded in Volume 4 Part I pp110-123). On 24 October 2002, during Professor Hall's "reply" interview, the matter was discussed and is recorded in Volume 4 Part IV pp110-123 and 215-218. 191 With respect to Allegation 13, the Inquiry found (at p69 of Volume 1 of the Report): "Professor Hall prepared or authorised the preparation of and submitted or authorised the submission of the grant application number 209656 to the NH&MRC, containing information at Figure 2 in the section entitled 'Detailed Background and Research Plan' containing a conclusion "all differences are significant p100days. … As I have not been informed of the totality of allegations, I cannot provide a conclusion, other than my opinion that the evidence provided does support the occurrence of certain repeated data values from prior publications and while possibly being less than perfect in the manner that a given publication indicates the presence of a repetition, I find no support for the allegations of deliberate intention to recklessly mislead or deceive." (emphasis added) 248 Professor Tilney, the second expert of Professor Hall's choosing to provide an opinion, referred to his comments on Allegation 2 and added that historical controls are: "Rolling controls with a few appropriate animals accrued each time - all getting the same answer. It seems quite reasonable that such "historical controls" are used in these particular experiments in ongoing experiments with a single experimental model." (emphasis added) 249 The Inquiry rejected one of Professor Tilney's findings: "He also said "As far as performing experiments in different countries is concerned, Professor Hall does state this clearly in the first paragraph of his Material and Method section in papers one and two". Professor Tilney is mistaken. There are no such indications." (emphasis added)

[30]

Findings and Conclusions of the Inquiry 250 The Inquiry expressed its Conclusions and Findings in relation to Allegation 3 as follows: "Conclusion 1. The Inquiry does not accept the proposition that the referencing used in Paper 1 conveyed to the reader the information that data in Table 2 of Paper 1 was previously published in Paper 2. Paper 3 (Reference 41 in Paper 1) was mentioned in the text of Paper 1 on page 13 after reference to Table 2. This is not inconsistent with the notion that the Table in Paper 1 contains material from Paper 3, although nowhere is this explicitly stated. Some reference to each of the previous publications was included in Paper 1 and establishes that Professor Hall was aware of the previous publication of the data. 2. Paper 1 asserts that animals were bred and maintained, as previously described, at Liverpool Hospital and all experiments were carried out as approved by the Animal Ethics Committee at UNSW. These assertions convey to the reader that all experiments were performed at Liverpool. Papers 2 and 3 are said to be from the University of Sydney, and Paper 4 from Liverpool. If Professor Hall wrote Paper 1 in reliance on data from Stanford in 1991 as he stated, he falsely represented the source of the data, which was said to be Liverpool and thereby seriously deviated from practices that are commonly accepted within the scientific community for reporting research. 3. As it does in relation to Allegation 8, the Inquiry recommends that it is desirable that control experiments should be built into the study design so as to be conducted contemporaneously wherever possible. It recommends that Professor Hall should review his policies in this regard, so as to minimise the use of historical controls, and avoid the admixture of data from old and new sources, in conformity with contemporary ethical standards. If this proves unavoidable in some situations, it must be transparently clear and explicitly recorded and referenced in any manuscript submitted for publication, and in any abstract submitted for presentation at scientific meetings." 251 The Finding of the Inquiry in relation to Allegation 3 was: "Professor Hall knowingly authorised for publication in Paper 1 data which had been previously published but without appropriate acknowledgment of or cross referencing of these data to the previous publications and thereby seriously deviated from practices commonly accepted within the scientific community for reporting research." 252 Clearly, the Finding and some of the Conclusions are adverse to Professor Hall.

[31]

Disclosure of the experts' opinions during interview 253 On 23 October 2002, the members of the Inquiry interviewed Professor Hall. At this stage, no written reports had been provided by the experts qualified by the Inquiry. However, there had been some oral communications. The following exchange took place between Professors Whitworth and Hall in relation to Allegations 1, 2 and 3 (Volume 4 Part 1 pp164-165): "Q: PROFESSOR WHITWORTH: We as a group have taken the opportunity to get opinions from three senior people in immunology around the country, in particular, transplant immunology. Those people are Professor Parish, who as you're aware we have already consulted, Professor D'Apice from Melbourne and Professor Ian McKenzie. There are two questions we asked, and these were general questions. They were not given any material, but they were asked two general questions. The first related to the use of historical controls in immunology and the second related to the description of studies in relation to rejection and tolerance. In relation to the first, the use of historical controls, it is fair to say there was an absolutely uniform view that it was essential that any historical controls be completely, fully and transparently referenced. That was completely common ground. I think all three had some reservations about the use of historical controls. Professor D'Apice felt that it would be an acceptable practice with large animals such as baboons, for reasons of ethics and costs, and so on, but it was his personal view that it was not a standard practice and generally not acceptable for rat work. Professor Parish felt that it was unusual and not generally done or desirable, but recognised that it may occur -and I'm paraphrasing here, because these are telephonic conversations but, where necessary, obviously we will be able to provide written opinions. We are attempting to bring it forward now to give you the sense of where we are at. Professor McKenzie felt that historical controls were acceptable but not ideal , but that he would want to see controls redone about once a year. However, he considered that it would be acceptable to use them from time to time, provided that there was complete, full and total referencing throughout the relevant sections of the paper so that it was very, very clear. That was the question of historical controls. Now, in relation to the description of matters relating to definitions of rejection and tolerance, the view was uniform that, however one defined it, it would be important to give the reader all the information - that is, that where a diagnosis of rejection had been made but the heart then was found to beat again and continued to beat, that that information should be put before the reader. We didn't get into the questions so much of is it, isn't it, but we did have uniformity of view that that would be important information for the reader, and they suggested that there were sometimes technical reasons why the heart was difficult to feel, and so on and so forth, but there was uniformity of the view that, irrespective of the rejection episode, if the heart was subsequently found to be beating and it was beating long term, then that was information that should be conveyed. So those are the opinions we have got, and I wondered if you wanted to comment on that?

[46]

The Inquiry's contact with the experts 255 During the interview on 24 October 2002, Professor Weatherall indicated to Professor Hall that he would also like to contact Sir Peter Morris (Volume 4 Part IV p184 line 37). Professor Hall then confirmed that he had not contacted Sir Peter Morris for the purpose of providing an opinion in support of his own case. Professor Weatherall said: "we will send [Sir Peter] the same set of questions as the other three". Professor Weatherall contacted Sir Peter Morris by telephone on 23 October 2002 and by fax on 24 October 2002. 256 Although, as I have indicated, Professor Hall was made aware of some aspects of the views of the Inquiry's experts in the interviews, the views of Sir Peter Morris do not appear to have been mentioned. 257 On 25 October 2002, the Secretariat Co-ordinator to the Inquiry emailed Professor Hall with a request to provide any draft questions he wished to be put to the Inquiry's experts. Attached to that email was a copy of the draft questions which the Inquiry itself intended to put. Professor Hall's solicitor replied to this request by email on 31 October 2002. That email set out the names and addresses of the five experts Professor Hall wished the Inquiry to consult, together with draft questions. 258 On 1 November 2002, the Inquiry wrote to Professor Hall to the effect that it would not include all his proposed questions in the letters to the experts. The Inquiry attached to this letter a draft of the letter which it proposed to send to the experts. The relevant parts of that letter are as follows: "Dear Professor [name] External Independent Inquiry into Allegations of Scientific Misconduct This Inquiry is investigating allegations made against Professor Bruce Hall who has invited the Inquiry to submit to you the questions following. The allegations relate to Professor Hall's work studying allograft rejection and tolerance in a rat adoptive transfer model using directly vascularized heart allografts. If you would review the enclosed material and provide the Inquiry with answers to questions listed, the Inquiry would consider your response in making their determination. The relevant allegations and the papers referred to therein are attached. [Attach Allegation 2 - plus Papers 1 and 2 plus Professor Hall's Response Allegation 3 - plus Papers - 3 plus Professor Hall's Response Allegations 5 and 8 - Abstract (allegation 5) and Paper submitted to J Exp Med (allegation 8), Professor Hall's response plus photocopies of primary and secondary data sheets] The questions on which we would value your assistance are as follows: Re: Allegation 2 What comment do you have on the presentation of historical controls and on the adequacy of the referencing to those controls? Is it relevant to mention that some of these data were for experiments performed in a different country, and institution under different ethical approvals from those mentioned and that they were not contemporaneous? Re: Allegation 3 What comment do you have on the presentation of historical controls and on the adequacy of the referencing to those controls? Is it relevant to mention that some of these data were for experiments performed in a different country, and institution under different ethical approvals from those mentioned and that they were not contemporaneous?" 259 On that same date (1 November 2002) the Inquiry sent similar letters to Professors Parish, McKenzie and d'Apice and to Sir Peter Morris; and to the experts nominated by Professor Hall, being Professors Tilney, Kupiec-Weglinski, Strom, Lechler and Carpenter. 260 The Inquiry received responses from its experts as follows: from Professor McKenzie dated 12 November 2002; from Professor Parish dated 14 November 2002; from Professor d'Apice dated 15 November 2002; and from Sir Peter Morris dated 26 November 2002. 261 Only two of the five experts nominated by Professor Hall responded, Professor Carpenter on 6 December 2002 and Professor Tilney on 9 December 2002. 262 On 10 January 2003, the Inquiry sent the reports of Professors Tilney and Carpenter to Professor Hall's solicitor. No doubt this prompted counsel for Professor Hall to write to the Inquiry on 17 January 2003 requesting copies of the reports of Professors d'Apice, McKenzie and Parish and Sir Peter Morris. It was in response to this request that the Inquiry wrote to Professor Hall on 21 January 2003 to the effect that none of the expert reports had led it to "a tentative view adverse to Professor Hall." 263 Professor Hall was not provided with the written reports of any of the experts qualified by the Inquiry.

[78]

(f) was made aware on 23 October 2002 of the views of the experts consulted by the Inquiry and he indicated that he did not have any problem with the comments which had been made. 271 The University submitted that in any case, the Inquiry was a mere preliminary inquiry which had no power to visit any formal adverse consequences upon Professor Hall. 272 Senior counsel drew attention to the fact that it was only at a very late stage - more than a month after the University had hoped to receive the final Report - that any request was made on behalf of Professor Hall for access to the experts' reports. In its letter of 18 December 2002, the Inquiry had communicated the view that "the Inquiry, no less than Professor Hall, the complainants and the University is anxious to complete the Report as soon as possible… it would appreciate Professor Hall's earliest response and no later than Wednesday 8 January 2003." 273 The University submitted that the reports could not be released in any case. At the stage the request was made the reports had to be kept confidential and could not be disclosed. This was thus not "the ordinary case where no question of confidentiality arises": Kioa at 629. The relevant experts had not authorised disclosure because they had not been granted an indemnity. On 3 January 2003, Professor d'Apice had threatened to withdraw his report unless an indemnity was provided. 274 The University submitted that there was no requirement that the Inquiry provide the experts' reports to Professor Hall because the matters the subject of the experts' reports were not of significance in the scheme of the reasoning of the members of the inquiry in relation to Allegations 1 and 3: Kioa at 629. 275 Senior counsel submitted that the scientific members of the Inquiry were themselves experts in the area of medical and scientific research and the issues which were the subject of comment by the experts were within the province of the Members of the Inquiry. The University emphasised that the Members of the Inquiry were equipped to draw their own conclusions in relation to authorisation of publication of previously published data without appropriate acknowledgement or cross-referencing. This constituted the independent and considered opinion and assessment of each of the Members of the Inquiry. 276 The University submitted that Professor Hall has not suffered any specific prejudice as a result of not being provided access to the Inquiry's experts' reports, emphasising that the same questions to which the Inquiry's experts responded were also addressed by Professor Hall's nominated experts. 277 In the defendant's submissions, the matters identified in the plaintiff's submissions as constituting opportunities lost by Professor Hall as a result of not being provided with copies of the reports of Professors Morris and d'Apice are either illusory (e.g. the loss of opportunity "to take the Inquiry to the views of his own experts") or pitched at such a level of generality as to lack any persuasive force especially in light of the extensive submission that Professor Hall had already made on this issue (in his submissions dated 9 January 2003 providing a response to a letter dated 18 December 2002 from the Inquiry about specific matters raised in interviews). 278 The University submitted that the practical requirements of natural justice depend upon all the circumstances of the case. Considerations of urgency, efficiency and speed are important, as is the availability of a further avenue for the making of submissions: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 70 [par 35] and 98-102 [par 146]. 279 Senior counsel submitted on behalf of the University that the two Findings in relation to Allegation 1 were not drawn from the experts' opinions and that accordingly Professor Hall had no grounds to complain that he should have been given the reports. The University submitted that the first Finding was essentially that Professor Hall had misrepresented where the data used in the paper was derived from, but that the reasoning of the Inquiry did not concern that question, ie derivation, but was concerned instead with the location of work: "Professor Hall defended this (Appendix 1 to question 3 of his response of 9 January 2003 - under (c) "Reference to the site research is carried out when there are authors from multiple institutions"). Professor Hall concluded "The location of work being done is irrelevant in immunology". This was not the view of independent experts consulted by the Inquiry, in particular Professor d'Apice and Professor Morris as extracted in allegation 2. Professor Hall provided opinions from senior colleagues at the Journal of Immunology. Dr Alan Krensky stated "Since the data was eight years old he had not acknowledged Stanford in the manuscript. I find no harm in this oversight". Dr Fitch, Editor in Chief stated "I find no problem with this". Notwithstanding these comments from editors of a journal (who may be concerned more with questions of copyright than with the source of data) the Inquiry adopted the views of the experts consulted by it." 280 The University submitted that the second Finding in respect of Allegation 1 (presentation of a falsehood) was a finding of fact, not based in any respect on the scientific opinions of the experts qualified by it: the nature of the finding was one that a court may make, rather than a scientific finding. 281 Similarly, the University submitted that the third Conclusion drawn in respect of Allegation 3 was in relation to a question of construction, not of science. Senior counsel submitted that the Inquiry was able to, and in fact did, draw this Conclusion without reference to any expert opinion. 282 The University also submitted that the Inquiry had discussed the experts' opinions on the use of historical controls in respect of Allegation 3, but had not made a Finding adverse to Professor Hall on that issue.

[79]

Conclusions 283 The essence of Professor Hall's submission is that, either by the Terms of Reference themselves, or the letter of 21 January 2003, he was given the expectation that he would be given access to all material received by the Inquiry, and, an opportunity to respond to it, before the Inquiry drew any adverse conclusions in its Report. It is submitted that he has not received a fair hearing because that alleged expectation was not fulfilled. 284 I acknowledge that Professor Hall may feel that the Inquiry should have taken a different course and that having regard to its reasoning in relation to Allegation 1 he may believe that it has acted contrary to the "tentative" view expressed in the letter. However, the issue before me is not whether Professor Hall believes he has been treated unfairly but whether the court is satisfied that he has not received a fair hearing. 285 In relation to Allegations 1, 2 and 3 the Inquiry had to determine a number of matters. It was first necessary for the Inquiry to obtain an understanding of each of the scientific papers and identify the data reported upon and the references included. The Inquiry could do this for itself by reading the papers, asking questions of Professor Hall and drawing upon the experience of the scientific Members. By this means the Inquiry could conclude that the source of some of Professor Hall's data had not been referenced, particularly that which was generated from his time at Stanford. 286 The Inquiry was then required to determine whether the fact that some data was not referenced was of any significance to the quality of the reported research. The Inquiry was undoubtedly equipped to form an opinion about that matter from its own resources, but decided, because of Professor Hall's assertion that immunology required special consideration, to approach highly qualified scientists in that field and seek their opinions. 287 The opinion of three of them, Professors Parish, McKenzie and d'Apice, were first obtained by telephone and were put to Professor Hall in interview on 23 October 2002. He was thereby given an opportunity to respond to them in the interview and make further submissions after mature consideration of the issues. 288 Some days later the Inquiry took the step of formalising the discussion of these matters by framing precise questions which it put to four experts of its choosing and to five chosen by Professor Hall. Written responses were received to those questions. It was never suggested that Professor Hall would be given access to the responses of the Inquiry's experts and he did not ask for it until 17 January 2003. 289 In forming the views which the Inquiry expresses in its discussion in relation to Allegation 1, to the effect that location is important, the Inquiry has accepted the view of the experts it retained. It said as much. It rejected Professor Hall's views and the views of the two experts he suggested who responded to the Inquiry's letter. 290 Beyond any views which the Inquiry expressed in its discussion, the Inquiry was also required to express its Conclusions and Findings. It is not entirely clear whether the adverse Conclusions and Findings expressed in relation to Allegations 1 and 3 were informed by the views of the external experts or reflect only the views of the Inquiry Members. The finding that Professor Hall "seriously deviated from practices commonly accepted within the scientific community for reporting research" would appear to be a finding which the Inquiry Members were themselves qualified to make. However, as the Inquiry felt it necessary to consult with expert immunologists in relation to the significance of location, the consequences for the scientific quality of the published paper of the failure to identify location may, also, have been informed by the views of the experts. In any event, without a finding that location is significant the adverse Conclusions and Findings could not have been made. Accordingly, those Conclusions and Findings were at least, to that extent, informed by the opinion of the external experts. 291 The Inquiry was not constituted as an adversarial tribunal where access to all the material to be considered in the making of the decision will normally be required. The Inquiry, being an investigation, was undoubtedly required to bring to Professor Hall's attention the critical issues (Kioa at 581). It was also required to give Professor Hall, subject to matters of confidentiality, a chance to deal with adverse material (Kioa at 629). Given the character of the possible findings it was necessary for the Inquiry to ensure that those obligations were carefully discharged. 292 The confidentiality of material received presents particular problems. In some cases there may be questions of privilege which require that the information not be disclosed to the affected party or it may be, as here, that the information was required by the informant to remain confidential. 293 Although the Terms of Reference were of fundamental significance to the Inquiry it was nevertheless required to proceed within its practical limits. If, as happened, it was unable to provide some of the material which it received to Professor Hall, it was obliged to ensure that in other ways he was given an adequate opportunity to deal with the matters raised by it. 294 When the process of engaging the experts and seeking their opinions was initiated it was not suggested that Professor Hall would be given the reports of the external experts or invited to make submissions in relation to them. Rather, he was invited to make submissions on the issues. 295 Professor Hall was told the names of the experts the Inquiry referred to, was informed of their views as to the significance of the location of the research and the imperative of adequate referencing to the scientific integrity of the research papers. He was given the opportunity of responding, including the opportunity to provide the views of experts of his choosing on these matters. 296 It was submitted that the Inquiry should have delayed the final Report until the obligation of confidentiality was removed and it was able to provide all of the material to Professor Hall. In my opinion the Inquiry was not obliged to do this, provided other measures sufficient to discharge the obligation of procedural fairness were undertaken. 297 In my opinion, by the steps it took, the Inquiry provided Professor Hall with a fair hearing. 298 There will be occasions when a representation by an administrative decision maker is breached, in circumstances which render the process unfair and the intervention of the court is justified. See R v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators Association & Anor (1972) 2 QB 299; Cole v Cunningham (1983) 49 ALR 423. However, it could not be the case that a representation that a hearing will be conducted in a particular manner cannot thereafter be departed from. Provided the hearing process ultimately adopted is fair there is no occasion for the court to intervene. There is no occasion for defining a "legitimate expectation" that the Inquiry will only proceed in the manner originally indicated. see Attorney General for New South Wales v Quin; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 173 CLR 273. 299 Whether any or all material gathered by an Inquiry must be disclosed to fulfil the requirements of procedural fairness will depend upon the circumstances of each case. (see Ansell v Wells (1982) 43 ALR 41 and the cases referred thereto). In Kelson v Forward (1995) 60 FCR 39. Finn J considered the circumstance where the applicants were not given an understanding of the allegations made against them sufficient to enable an effective response. That case is quite different to the present circumstances where Professor Hall was aware of the precise Allegations, knew the identify of the experts who had proffered the opinion which informed an assessment of the significance of those Allegations and knew the questions which they would be asked to respond to in writing, and had the opportunity himself and through experts of his choosing to respond to the same questions. 300 In my opinion the letter of 21 January 2003 could not found any challenge to the Inquiry. At its highest the letter expresses a tentative view which, if it be the case, the Inquiry was entitled to change. Furthermore, the Inquiry did not say that if its views changed the material would be made available or that Professor Hall would be able to comment upon it. The letter could not found any expectation enforceable by the court. 301 This challenge fails.

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Plaintiff's submissions 302 Professor Hall submitted that the Inquiry allowed itself to stray outside the scope of the investigations authorised by the University, and that accordingly the Report is flawed. 303 The plaintiff draws attention to the Inquiry's Report at Volume 1pp12-13, under the heading "Scope of the Inquiry": "Professor Hall's explanations of the facts established under the several allegations required an understanding of the scientific purpose, technique and significance of the work done in the Liverpool Laboratory. The Inquiry was assisted by Professor Hall in acquiring that understanding and thereby appreciating his responses. These responses showed, as the discussion in later chapters of this report will show, that some of the allegations made by the complainants failed to appreciate the significance of the work on which Professor Hall was engaged. But some of Professor Hall's responses, on analysis, have raised issues of scientific misconduct which do not fall precisely or entirely within the terms of the allegation to which the response relates. That posed a problem for the Inquiry as the allegations were formulated largely on the basis of complaints made by the complainants while the further issues were perceived by the Inquiry itself in considering Professor Hall's responses. But Section C of the Terms of Reference, directed the Inquiry 'to investigate the allegations against Professor Hall and advise whether, in the opinion of the Inquiry on the facts which the Inquiry finds to be established, Professor Hall has been guilty of scientific misconduct or scientific fraud as those terms were defined by the NHMRC/AVCC Guidelines.' Thus, although the Inquiry was to undertake an investigation into the allegations listed in the Schedule to the Terms of Reference, it was required to report on whatever facts it might find to have been established in the course of the investigation. The Inquiry was to conduct an investigation, not a prosecution. However, natural justice required that the Inquiry should not find scientific misconduct by Professor Hall on facts falling outside the scheduled allegations and Dr Penny's allegations unless Professor Hall had had notice of the issue which did not fall strictly within those allegations and an opportunity to show why an adverse finding should not be made on that issue. By a process of seeking responses by Professor Hall on particular issues the Inquiry has sought to ensure that its conclusions cover all the material relevant to the allegations while not being confined to the allegations. The process has been slow and, as the following chapters will show, somewhat complex." 304 The plaintiff submitted from these remarks it should be understood that:

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Allegation 5 308 This allegation was that Professor Hall published or authorised the publication of an abstract for presentation at the TSANZ meeting on 4-6 April 2001, which contained statements about transplant rejection and tolerance. The allegation was that Professor Hall stated or presented a material or significant falsehood and published or authorised the publication of the abstract with intent to deceive or in reckless disregard of the truth. 309 The Inquiry noted: "This allegation is critically dependent upon an understanding of what is meant by "rejection" and by transplantation "tolerance" and the consistency with which these terms are used in reporting and describing the primary animal data." 310 The Inquiry set out in its Conclusions the evidence which had come to light in the course of the investigation of the Allegation. Much of this evidence was derived from the interview with Dr Chen conducted on 23 October 2002, the transcript of which was provided to Professor Hall. 311 The Inquiry was mindful that this material was outside the formal Allegation. It said (at Volume 1 p93): "This evidence introduced material that had not previously been drawn to Professor Hall's attention and did not coincide with the original allegations made in Allegation 5, though it was directly relevant to the validity of his defence of the conclusions made in the abstract. Accordingly, it was discussed with him at interview on 24 October 2002, and a series of letters was written to him and his solicitors on the 6, 14 and 20 November 2002, drawing his attention to these issues and seeking the primary data relevant to the experiments in this data line, and seeking explanations for the inconsistency (letter of 20 November 2002)." 312 The Inquiry drew lengthy and detailed Conclusions. Its ultimate Finding was: "That within the precise meaning of allegation 5, which relates to the conclusion that MRC Ox39 blocked tolerance transfer, drawn from the experiments specifically described in the abstract, Professor Hall did not knowingly state a material falsehood at the time he wrote the abstract in December 2000."

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Allegations 17, 18, 22 and 23 317 Allegations 17-23 were, as the Inquiry noted, all related to authorship issues. 318 Allegation 17 related solely to authorship issues raised by or relating to Ms Hong Ha. In respect of Allegation 17, the Inquiry found that the evidence before it was inconclusive and conflicting, with the result that it was unable to resolve some issues, and overall could not find any evidence which made out the Allegation (Volume 1 p155). 319 The interview with Professor Hall on 22 October 2002 in relation to Allegation 17 dealt with the terms of the Allegation as well as matters not strictly within those terms, such as relations between laboratory staff (see, for example, Volume 4 Part 1 pp132-133), which were the subject of Conclusions in respect of this Allegation. 320 It is apparent from the Report that Professor Hall provided either written or oral submissions on each of the points raised by Ms Ha. The Inquiry refers to Professor Hall's initial written response to Allegation 17 (Volume 1 pp151-154), and to his comments in interview (Volume 1 p152). 321 The Inquiry also made comments relating to the adherence by Professor Hall and his laboratory staff to the NHMRC/AVCC Guidelines (Report Volume 1 p148-150). These Guidelines are cited in the Terms of Reference as providing a scientific standard to which the Inquiry must refer when investigating the Allegations. 322 Professor Hall would have been aware from the Terms of Reference that the Inquiry would have reference to these Guidelines when considering authorship issues. Beyond that, the Guidelines were discussed in interview with Professor Hall in relation to Allegation 17 on 22 October 2002 (Volume 4 Part I pp134, 137). 323 In relation to Allegation 18, the Inquiry did not make any adverse finding beyond the findings in Allegation 17. The evidence on which it relied included interviews of Nicole Carter and Giang Tran, who were cited as authors on the paper which was the subject of the Allegation. The matters raised were discussed with Professor Hall in interviews on 22 October 2002. Apart from the specific facts of the Allegation, the Inquiry discussed with Professor Hall questions related to his supervision of staff and protocol for attribution of authorship (Volume 4 Part I pp143-144). 324 Allegations 22 and 23 alleged that Professor Hall had failed to show papers to Dr Chen which Professor Hall had submitted for publication and which bore Dr Chen's name as an author. 325 The Inquiry raised the substance of these Allegations with Dr Chen in its interview with him on 23 October 2002. 326 It is apparent from the transcript of that interview that the Inquiry and Dr Chen discussed matters relevant to the Allegations but not strictly within the terms of the Allegations, including the usual process followed in Professor Hall's laboratory for preparation of papers for publication. 327 These matters, which formed the basis of the Conclusions which Professor Hall challenges, are apparent on the transcript, which was provided to Professor Hall by the Inquiry. Those sections of the transcript are in Volume 4 Part II pp1-51 and specifically at pp16, 19, 26, 27 (relations between Professor Hall and Dr Chen and other laboratory employees), and at pp 29, 31-32 (differences in opinion between Dr Chen and Professor Hall about tolerance and rejection in experiments).

[99]

Discussion 349 Many inquiries are constituted with experts with special knowledge in relation to the matters the subject of the inquiry. Inquiries are constituted in this way with the intention that the Members will, in an appropriate manner, draw on their own specialist knowledge. 350 In Kalil v Bray [1971] 1 NSWLR 256, Street CJ said (261-262): "It would be unreal to expect the members of the tribunal, being professionally qualified veterinary surgeons and occupying seats on the tribunal by virtue of that very qualification, to fail to use their expert knowledge in resolving any matter of veterinary science arising in proceedings before the tribunal. … The purpose of setting up the tribunal, with its membership drawn from the ranks of veterinary surgeons, is to enable it to do the very thing that either a Bench of justices or a jury may not do, that is to say, to draw upon its own expert resources to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it. In doing so it will, no doubt, give due weight to such expert evidence, if any, as may be placed before it. But the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is with the tribunal itself. This is a responsibility to be discharged by drawing upon its own internal resources of knowledge of veterinary science." 351 Similarly, in Keller v Drainage Tribunal & Montague (1980) VR 449, Murray J said: "It is well established that a tribunal, of which some or all of the members are experts in a particular field, may use its expertise in interpreting and weighing evidence and reaching conclusions on technical matters." (at 453) 352 Doyle CJ in Chiropractors Association of Australia (SA) Ltd v Workcover Corporation of Australia [1999] SASC 120 (at para [87]) said: "It is clear from the many authorities in this area that an administrative decision-maker may make use of knowledge and experience and expertise that the decision-maker possesses, without having to disclose that material to the [affected person], and without having to disclose how the material might be used." 353 However a tribunal may only use its expert knowledge to evaluate evidence and not to gather evidence which has not been disclosed to the parties. The point is made by Murray J in Keeler: "There is, however, a clear distinction between cases in which a tribunal obtains evidence without the knowledge of a party and cases in which a tribunal or a member of a tribunal has knowledge of facts relevant to the matter in dispute and acts upon such knowledge on the one hand and cases in which a tribunal simply brings expert knowledge to bear upon the evidence presented by the parties on the other hand." (at 453) 354 In Minister for Health v Thomson (1985) 8 FCR 213, the Full Court dealt with a decision by the Medical Services Review Tribunal which had set aside the decision of an investigative Committee. The Committee comprised five medical practitioners. Dr Thomson complained that the Committee had not made known to him in the course of the inquiry the views it held tentatively or otherwise about the number of medical services appropriate in particular situations. Fox J said: "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 own 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." (at 217) 355 Fox J suggested that where the Committee sought to measure the doctor's conduct against a standard, then it would be "fairer and more sensible" to put that standard to the doctor and seek his or her views on it. However, his Honour concluded that it was not a denial of natural justice not to put the standard to the doctor: "This does not seem to add up to a denial of natural justice, for several reasons…the Committee was one of experts, which would be expected to form its own conclusions and establish its own views as to what [standard was appropriate]" (at 218) 356 Beaumont J was of a similar view: "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 use of their own expertise and experience in such matters [his Honour cited authorities for this statement]. 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." (at 224) 357 Both Beaumont and Fox JJ pointed out the Committee was deliberately and compulsorily composed of experts, who would be expected to apply their own knowledge and experience to the matters before them. According to their Honours, not only would there not be a denial of natural justice if the draft report was not provided to the appellant, it would be simply unnecessary and unworkable for such a practice to be imposed. 358 In Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1, Stephen J said (at 10): "Where only general expert knowledge of an expert tribunal is in question there need not be disclosure of that expert knowledge to parties in order for the hearing to be fair in the sense of complying with…the requirements of natural justice." 359 His Honour's comments related to the general knowledge of Tribunal Members about the effect of shopping centres on surrounding businesses, which was applied when the Members considered a specific proposal for a shopping centre. His Honour also noted that general knowledge which is used to evaluate or weigh the evidence will not have to be disclosed. 360 Professor Hall submitted that although in some cases it will not be appropriate to alert the subject of the inquiry to the knowledge of the investigator (see NCSC v News Corp Ltd (1984) 156 CLR 296 at 323-324), and it may be best to inform him or her at the end of investigations (Keller at 457), there was no need for 'secrecy' in this case. Professor Hall submitted that the maintenance of secrecy in fact denied him the "possibility of a successful outcome" (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Tribunal ex parte Aala (2000) 204 CLR 82; Kioa per Deane J at 633).

Parties

Applicant/Plaintiff:

Hall

Respondent/Defendant:

The University of New South Wales

Legislation Cited (2)

Supreme Court Act 1970(NSW)

University of New South Wales Act 1989(NSW)

Cases Cited (45)

CITATION : Hall v The University of New South Wales [2003] NSWSC 669 HEARING DATE(S) : 10 - 12 June 2003; 30 July 2003 JUDGMENT DATE : 15 August 2003

CATCHWORDS : ADMINISTRATIVE LAW - procedural fairness - Inquiry established by University to investigate allegations of scientific misconduct and/or scientific fraud against professor - whether University amenable to judicial review - whether Inquiry bound to afford procedural fairness to professor - standards of procedural fairness - whether evidence informing an inquiry's conclusions must be provided to affected person - whether Inquiry discharged obligations of procedural fairness LEGISLATION CITED : Supreme Court Act 1970 s 69 University of New South Wales Act 1989 Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 Andrews v Mitchell [1905] AC 78 Annetts v McCann (1990) 170 CLR 96), Ansell v Wells (1982) 43 ALR 41 Ansett v Minister for Aviation (1987) 72 ALR 469 Attorney General (NSW) ex. rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd & Ors [1977] 2 NSWLR 955 Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 Banks v Transport Regulations Board (Vic) (1968) 119 CLR 222 Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 Blayney Abattoirs Pty Ltd v State of New South Wales (1996) 86 IR 358 Blizzard v O'Sullivan [1994] 1 Qd R 112 Chiropractors Association of Australia (SA) Ltd v Workcover Corporation of Australia [1999] SASC 120 Clark v The University of Lincolnshire and Humberside [2000] 1 WLR 1988 Claro v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 Cole v Cunningham (1983) 49 ALR 423 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dixon v Commonwealth (1981) 55 FLR 34 at 41 Edgar v Meade (1916) 23 CLR 29 FAI Insurance v Winneke Forbes v NSW Trotting Club (1978) 143 CLR 242 Hall v University of New South Wales (unreported) 25 February 2003 Hopkins v Smethwick Board of Health (1890) 24 QBD 712 Kalil v Bray [1971] 1 NSWLR 256 Kanda v The Government of Malaya [1962] AC 322 Keller v Drainage Tribunal & Montague (1980) VR 449 Kelson v Forward (1995) 60 FLR 39 Kioa v West (1985) 159 CLR 550, Lamshed v Lamshed (1963) 109 CLR 440 McLelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 Minister for Health v Thomson (1985) 8 FCR 213 CASES CITED : Minister for Local Environment v South Sydney City Council (2002) 55 NSWLR 381 Minister of State for Immigration & Ethnic affairs v Teoh (1995) 173 CLR NCSC v News Corp Ltd (1984) 156 CLR 296 Neat v AWB 198 CLR 179 at 195 O'Rourke v Miller (1985) 156 CLR 342 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Powick v Commissioner of Corrective Services (1996) 87 A Crim R 565 R v Criminal Injuries Compensation Board; ex parte Lain [1967] 2 QB 864 R v Hull Prison Board of Visitors; ex parte St Germain (No. 2) [1979] 1 WLR 1401 R v Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators Association & Anor (1972) 2 QB 299 R v Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513 R v MacKellar (1977) 137 CLR 461 R v Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] 1 QB 815 R v Small Claims Tribunal; ex parte Cameron [1976] VR 427 at 432 R v Solicitors' Disciplinary Tribunal; ex parte L (a solicitor) [1988] VR 757 R v War Pensions Entitlement Appeal Tribunal ex parte Bott (1933) 50 CLR 228 Re Eaves [1939] 4 All ER 260 Re Hamilton [1981] AC 1038 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Refugee Review Tribunal and Another; ex parte Aala (2000) 204 CLR 82 Rigby v Connol (1880) 14 Ch D 482 Roads Corp v Dacakis [1995] VR 508 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Rose v Bridges (1997) 79 FCR 378 Salemi v MacKellar [No. 2] (1977) 137 CLR 396 Sanders v Snell (1998) 196 CLR 329 Scurr v Brisbane City Council (1973) 133 CLR 242 Sinnathamby v Minister (1986) 66 ALR 502 Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 Whitehead v Griffith University [2003] 1 Qd R 220 PARTIES : Bruce Hall (Pltf) The University of New South Wales (Def) FILE NUMBER(S) : SC 30017/03 COUNSEL : I Temby QC/G A Laughton (Pltf) G O'L Reynolds SC/Dr A S Bell/D Meltz (Def) SOLICITORS : David Brown (Pltf) Sparke Helmore (Def)

[1999] SASC 120

(1991) 175 CLR 564

(1990) 170 CLR 96

(1982) 43 ALR 41

(1987) 72 ALR 469

(1968) 119 CLR 222

(1991) 30 FCR 49

(1996) 86 IR 358

(1993) 119 ALR 342

(1983) 49 ALR 423

(1994) 49 FCR 576

(1981) 55 FLR 34

(1916) 23 CLR 29

(1978) 143 CLR 242

(1995) 60 FLR 39

(1985) 159 CLR 550

(1963) 109 CLR 440

(2002) 191 ALR 759

(1985) 8 FCR 213

(2002) 55 NSWLR 381

(1984) 156 CLR 296

(1985) 156 CLR 342

(1992) 28 NSWLR 282

(1985) 155 CLR 513

(1977) 137 CLR 461

(1933) 50 CLR 228

(2001) 206 CLR 57

(2000) 204 CLR 82

(1994) 34 NSWLR 254

(1997) 79 FCR 378

(1977) 137 CLR 396

(1998) 196 CLR 329

(1973) 133 CLR 242

(1986) 66 ALR 502

(1986) 161 CLR 141

(1990) 170 CLR 596

(1992) 175 CLR 564

(1990) 170 CLR 1

(1982) 151 CLR 342

(1979) 143 CLR 242

(2002) 76 ALJR 598

(1995) 173 CLR 273

(1995) 60 FCR 39

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Purnell Motors Pty Limited v Commissioner for Fair Trading and Anor

Stokes v President of the Anti-Discrimination Board of New South Wales