Hall v The University of New South Wales

Plaintiff's submissions 154 The plaintiff submitted that the failure to allow cross-examination was a "particularly serious defect in the fact finding process of the Inquiry". The plaintiff submitted that several matters may have been established in his favour had cross-examination been allowed. In his submission, the Inquiry should have:

(a) either compelled cross-examination or alternatively,

(b) identified the Allegations which should have been submitted to cross-examination and either not investigated those Allegations, or

(c) not made findings adverse to Professor Hall on those Allegations unless and until cross-examination had been undertaken, or if it could not be undertaken, not taken any further action. 155 The plaintiff further submits that the Inquiry must have been aware, via correspondence with the complainants, of the antipathy on the part of the complainants towards Professor Hall which would have affected the reliability of the evidence. Professor Hall submits that the Inquiry did not challenge the credibility of the complainants or their probity as scientists. 156 The plaintiff's submission emphasised that the Dowton Inquiry found: · it was at times unclear whether the complainants had understood the hypotheses underscoring Professor Hall's work; · it was possible that Dr Chen failed to understand or accept the difference between fabrication of results and use of previous data in experiments as controls; and · it was possible that some of the complaints stemmed from the poor working relationships between Professor Hall and the complainants, especially Drs He and Chen.

Defendant's submission 157 The defendant submitted that the Inquiry was justified in its decision and did not deny the plaintiff procedural fairness by its refusal to allow cross-examination. Counsel for the defendant propounded fourteen propositions in support of this submission. 158 It was emphasised that the Inquiry had no power to compel any person to attend to give evidence and to submit to cross-examination. Accordingly there was no question of a wrongful exercise of a discretion to permit cross-examination. As Finn J said in Rose v Bridges (1997) 79 FCR 378, at p. 387: "A right to cross-examine witnesses cannot be asserted to be a possible requirement of procedural fairness where the inquiry … does not possess the power to require the giving of oral evidence and the submission of witnesses to cross-examination". 159 The Inquiry wrote to the complainants asking them whether they were willing to be interviewed in the presence of Professor Hall and, if so, whether they were willing to be cross-examined by him. The complainants indicated that they were not prepared to be interviewed in his presence. Similarly the defendant emphasised that Professor Hall himself was unwilling to be cross-examined. 160 The defendant submitted that notwithstanding the refusal of his request to be allowed to cross-examine the complainants, Professor Hall was a willing participant in the Inquiry. 161 Further, the defendant submitted that Professor Hall was given transcripts of the interviews which the Inquiry had with the complainants together with a detailed outline of the Allegations against him. Professor Hall did not complain that the particulars of these Allegations were inadequate or that he was unable to respond to the matters raised in these interviews. 162 The defendant submitted that Professor Hall had an opportunity:

(a) in his interviews with the Inquiry (and otherwise) to make suggestions to the members of the inquiry as to questions which could be put to the complainants;

(b) to provide material which contradicted any assertions made by the complainants;

(c) to adduce evidence in rebuttal of any matters raised by the complainants; and

(d) to make submissions to the Inquiry both as to findings of fact and also as to the credibility of the complainants. 163 The defendant submitted that at no stage did Professor Hall indicate to the Inquiry in correspondence (or otherwise) that there was any specific prejudice which would flow to him from his inability to cross-examine the complainants on any particular issue. Even if the Inquiry had power to permit cross-examination (which it did not), the decision of the Inquiry to "disallow" cross-examination must be viewed in the light of the fact that it was not told of any specific prejudice which Professor Hall would suffer by reason of his inability to cross-examine the complainants.

Conclusions 164 Conscious of the fact that it was not able to require cross-examination, the Inquiry approached issues of credibility with considerable caution. The Inquiry said: "Because of the gravity of the allegations made against Professor Hall, the seriousness of the charges made by Professor Hall against Dr He and Dr Chen, and the Inquiry's inability to require witnesses to submit to cross examination to test their evidence and credibility, the Inquiry has been cautious in acting upon oral evidence that is not supported by other evidence. (at p 24-25 of Volume 1; emphasis added) 165 The Inquiry also said: "The Inquiry was faced with a 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. Professor Hall's mistrust of Dr He and Dr Chen is so profound that, in his submission to the Inquiry in December 2002, he asserted his belief that Dr He "had set out to create a series of events that could be considered misconduct" and that Dr Chen's "misreporting [had been] so selective it could only represent a deliberate action to nullify experimental findings by falsifying the results of controls" and that laboratory fraud "nearly always comprises fudging data to make a story, not contaminating controls to void experiments" so that he did not suspect such actions." (p24 Volume 1) 166 Before reaching any conclusions the Inquiry undertook detailed investigations. Some of the steps it took were directed to matters of credit. Those steps included:

(a) comparison of the evidence of Professor Hall with the documents forming the basis of Allegations or related to the Allegations (see, for example, pp38, 73, 152 Volume 1);

(b) consultation with various experts on the veracity of Professor Hall's statements concerning, for example, whether the location of work being done is relevant in immunology (at pp37, 45, 55, 111 Volume 1);

(c) consultation with experts of Professor Hall's choosing, who were asked the same questions as the experts appointed by the Inquiry (p49 Volume 1, regarding use of historical data);

(d) identification of perceived errors or mistakes in the expert opinions proffered (p58 Volume 1);

(e) consideration of certain documents provided by Professor Hall in support of statements he made regarding, for example, data of experiments (p42 Volume 1);

(f) comparison of the oral evidence of complainants, other witnesses and Professor Hall on specific Allegations (for example, preparation of statistical data, p67 Volume 1);

(g) acknowledgement of particular incidents around which there was "conflicting and contradictory evidence" (pp70, 155 Volume 1) or inconsistencies in evidence from witnesses (p136-137 Volume 1);

(h) identification of areas in which interpretation of the meaning of certain terms was crucial, such as Allegation 5, where the Inquiry said (at p72 Volume 1): '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'

(i) recognition of personal and professional differences and antipathy between certain witnesses (pp76-77, 91, 176 Volume 1) and of instances raised by Professor Hall of alleged misconduct by one or more of the complainants (for example, Dr Chen, pp83, 85-86, 127 Volume 1);

(j) recognition of instances in which it was too difficult to make a definitive finding on the evidence given, for example: 'It is almost impossible to reconstruct the events which lead up to this allegation. Either Ms Robinson or Dr He are not telling the truth here, and in these circumstances, the Inquiry is unable to determine the facts with any confidence." (at 107 Volume 1; other instances are at pp154, 166); 167 It is apparent that the Inquiry could not require cross-examination. Accordingly, for there to be a fair hearing it was necessary for the Inquiry to recognise the problems of making findings in relation to credibility and other matters where the evidence had not been tested by cross-examination. I am satisfied that it discharged this obligation. 168 Although a court hearing will usually provide an opportunity for cross-examination, it is not an essential requirement for a fair hearing (see R v War Pensions Entitlement Appeal Tribunal ex parte Bott (1933) 50 CLR 228; O'Rourke v Miller (1985) 156 CLR 342, at pp 353-354). Where it is not provided, the findings made by the tribunal must be made with appropriate caution. This occurred in the present case. 169 This ground of challenge fails.

(4) FAILURE OF THE INQUIRY TO GIVE NOTICE OF ITS INTENTION TO MAKE ADVERSE FINDINGS IN RESPECT OF ALLEGATIONS 3, 4, 9, 10 AND 13

The fundamental submission 170 Professor Hall submitted that he was not given adequate notice of the findings in respect of various Allegations and has accordingly been denied a fair hearing. 171 The Inquiry Report provided formal Findings with respect to each Allegation. The Inquiry made separate Conclusions, which may include adverse findings other than formal Findings. The Inquiry stated how it ensured procedural fairness in relation to these findings. It said: "As stated in Chapter 1, the "Findings" are limited to the elements of the formal allegations. Adverse findings which are not expressed in "Findings" but only in "Conclusions" were put to Professor Hall, either at interview or in writing, for comment before the Inquiry reached its final opinion." (Volume 1 p188)

Findings of the Inquiry 172 Professor Hall challenged the Findings made in relation to five Allegations.

Allegation 3 173 The substance of Allegation 3 is that Professor Hall published or authorised for publication or submitted for publication two papers containing identical information; that he published data in the later paper which purported to be new data but which was in fact data from old experiments; and that there was no acknowledgement or identification of the publication of the earlier data. It was alleged that Professor Hall had deviated from commonly accepted scientific practices; presented a material or significant falsehood, and published the paper with intention to deceive or in reckless disregard of the truth. 174 The matter was raised in interviews with Professor Hall on 22 October 2002. During the Inquiry's interview of Professor Hall in relation to Allegation 3 (see Volume 4 Part I pp 33-42) Professor Whitworth asked Professor Hall: "I guess my question is, that in today, in 2002, do you think it would be acceptable to have data published without a clear reference to the initial source of data as it apparently was in the 70s?" (Volume 4 Part I p38 lines 46-51). 175 The Finding 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." (Report Volume 1 p59).

Allegation 4 176 Allegation 4 is framed in similar terms to Allegation 3. The substance of the Allegation is that the plaintiff submitted or authorised for submission for publication, a paper relating to experiments on rats, in which Tables II and III related to different experiments on different strains of rats. The data in both tables was in some places identical despite the distinct experiments purportedly conducted. The terms of the Allegation are that Professor Hall stated or presented a material or significant falsehood, and that he submitted the paper with intent to deceive or in reckless disregard for the truth. 177 The Members of the Inquiry raised Allegation 4 with Professor Hall during interviews on 22 October 2002. The relevant parts of the interviews are recorded in the Report at Volume 4 Part I pp42-53. During the interview, the Chair, Sir Gerard Brennan, said to Professor Hall: "Appreciating that you are concerned to publish the data so that your peer group can understand the actual figures on which your work proceeds, it seems extraordinary that these figures could be the same without your identifying those small differences - or not "small differences" but differences of two figures in the same data line. Do you follow what I am saying?" (Report at Volume 4 Part I p47 lines 5-12). 178 The Inquiry found in relation to Allegation 4 (Volume 1 at 191): "Professor Hall authorised for publication the Paper containing duplicated and misleading data and thereby seriously deviated from practices that are commonly accepted within the scientific community for reporting research, and published a material and significant falsehood, namely that the data in the lines specified in this allegation, being identical, applied to rats grafted with third party hearts from both Lewis and F344 rats, and did so in reckless disregard of the truth."

Allegation 7 179 The terms of Allegation 7 are that Professor Hall published or authorised the publication of an abstract for presentation at a conference which contained a statement related to third party grafts, but that no third party graft experiments relevant to the statement had been carried out by Professor Hall, any member of his laboratory, or any other author or author's laboratory. It was alleged that Professor Hall stated or published a material or significant falsehood, and published the abstract with intent to deceive or in reckless disregard for the truth. 180 The Inquiry raised Allegation 7 with Professor Hall in interviews on 22 October 2002. The interview relating to this Allegation is recorded in Volume 4 Part I pp81-87. Professors Whitworth and Chalmers both asked Professor Hall questions going to the construction of the relevant statements in the abstract, and to whether the correct construction of the impugned statements was that they were misleading or merely ambiguous. 181 In relation to Allegation 7, the Inquiry found (Volume1, p 199): "That Professor Hall published or authorised the publication of the abstract with intent to deceive or in reckless disregard of the truth."

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.

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)

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.

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?

A: PROFESSOR HALL: I do want to comment at some point about my reuse of data and these point, and I have made some notes of what you said. So I can give you a coherent response, could I have a bit of time to reflect upon it, please? Q: Yes.

A: I don't have a problem with any of the comments my colleagues made. I think they are, in general, consistent with what I have attempted to do, but I will respond to you in detail. I would like to go through some of my papers to highlight where I believe I have met their criteria, and I think that will help you." [emphasis added] 254 Professor Hall was given a further opportunity to respond in interviews held on 24 October 2002 (Report Vol 4 Pt IV p 182-183):

"Q: PROFESSOR WHITWORTH: … I wanted to return to this question that we raised yesterday after my discussions with Professors Parish, McKenzie and D'Apice, and Professor Weatherall also had a pertinent conversation.

Q: PROF WEATHERALL: This is, I guess, regarding the concept of using control data retrospectively and for how long and the critical importance of clarity in how that data is presented. Your view, I think, was that one of the reasons that you would use this for such a long period was the problem of animal experiments and ethics Committees, animal ethics committees and so on.

I think the feeling among a number of experts in the field is probably that one should really be doing at least current updating that control data the whole time, perhaps annually, because of all sorts of changing conditions and so on.

Obviously it is critical to the way that control data is presented in that it is absolutely clear in a paper whether one is dealing with current data or previous controls. I just wondered if you had time to reflect on that issue at all? Let me be more specific: are you really happy about that, but in particular -

A: PROFESSOR HALL: I have thought about it in some detail and I thought in this area there are three broad issues. I wasn't sure whether there was an understanding of my definitions of rejection and tolerance, which partly relates to this issue; and I promised Sir Gerard that I would provide some material demonstrating that other people in this area do this; and I wanted to go through what I actually did because Professor Whitworth provided some criteria by three Australian colleagues. My precis of what I thought -I have some notes here, I hope you don't mind if I use them -the three people you interviewed, Professor Whitworth, thought in immunology it was unusual, and I accept that.

PROF WHITWORTH: To be precise, one is an immunologist, but the two others are transplant immunologists.

A. I understand that, but under some circumstances may be reasonable, that is my precis of when I looked at your transcripts I thought you said. …. A. My three points were: It is not usual but there may be reasons you could do it. I am trying to get a consensus out what the three people said. It should be clearly cited, which you thought was an absolute, or your three colleagues thought was an absolute. And that there should be some of these controls repeated regularly.

A: In response to Sir Gerard's request, there are two issues. Can I show the data has been repeated? And there is another issue, which comes up in some of the allegations relating to me, is what is the way to cite them and are they always absolutely cited and how do people cite them? If people are not citing data, I cannot go to the literature and demonstrate that often.

So I contacted five of my senior colleagues internationally overnight, all of whom are prepared to either -all of whom are prepared to provide a written submission relating to this matter for the inquiry if you wish, and some of whom would also be happy to be interviewed by telephone. Not all of them feel they perform well on their feet but would rather write something. Three of them are extraordinarily senior people at Harvard who don't work together. One of them is at UCLA and one at Imperial College.

I didn't, for reasons that are probably obvious, ask any of my colleagues at Stanford to comment. I have several other suggestions of people who work in this field who, if you wanted somebody who I haven't talked to, I would be very happy for you to approach totally independent of me.

Q: THE CHAIR: Dealing with those, first of all, if they are prepared to provide us with a written statement that would be most acceptably. We would like to have it, of course, as soon as possible. If any of them would be agreeable to being interviewed by phone in addition to providing a statement, that could be indicated in the statement itself.

And then could you also, if you wished, provide a list of other possible contacts to whom you think it appropriate that the inquiry might refer if we wished to do so. "

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.

The plaintiff's submissions 264 In the plaintiff's submission, the reports of the experts qualified by the Inquiry were relied upon by the Inquiry in making adverse findings in respect of Allegations 1 and 3. 265 Despite its indications to Professor Hall that it was not led (even tentatively) to adverse findings by the opinions of the experts qualified by it, it is submitted that the Inquiry:

(a) drew adverse findings based at least in part on the opinions of the experts qualified by it; (b) used the opinions of the experts qualified by it to reject some of Professor Hall's explanations for the referencing which was the subject of the allegation; and (c) gave greater weight to the opinions of its own experts than those of Professor Hall. 266 Professor Hall submitted that the failure of the Inquiry to allow him access to the reports of the experts meant that he lost the opportunity to:

(a) take the Inquiry to the views of his own experts; and (b) explain why two of the experts lacked qualifications or were otherwise wrong in their views. 267 The plaintiff made a discrete submission in relation to Allegation 3. He submitted that:

(a) he was not given the opportunity to point out inconsistencies in the views of the experts in relation to Allegation 3; and, following from this, (b) he was not given the opportunity to submit to the Inquiry that, in the light of the inconsistencies on the question of acknowledgement of cross-referencing, and the views of the experts on the seriousness of the alleged failure to properly make that acknowledgement, there was no single answer to the question, and/or that the Inquiry should be dissuaded from the view that any deviation was serious. 268 Professor Hall submitted that there were inconsistencies between the opinions of the experts qualified by the Inquiry. In particular, the plaintiff submitted that although the Inquiry found that Professor Hall "seriously deviated from practices commonly accepted within the scientific community for reporting research", there were inconsistencies in the experts' views on the seriousness of the alleged failure to reference. Thus, in his submission, the plaintiff also lost the opportunity to address the Inquiry on:

(a) the nature and substance of the inconsistencies; and (b) whether the deviation from accepted practice was serious.

Defendant's submissions 269 The defendant referred to the statement of Dianne Hamilton, Secretariat Co-ordinator, dated 14 May 2003 which was tendered in evidence. The defendant submitted that a number of general factual matters proved in the statement are relevant, namely:

(a) on 23 October 2002 (in the course of an interview) the Inquiry disclosed to Professor Hall that it had spoken by telephone to Professors d'Apice, McKenzie and Parish and subsequently to Sir Peter Morris, all of whom are leaders in transplant immunology, in relation to two general questions;

(b) the two general questions were: (i) the use of historical controls in immunology; (ii) the description of studies relating to rejection and tolerance;

(c) the united view of Professors d'Apice, McKenzie and Parish (namely, that "there was an absolutely uniform view that it was essential that any historical controls be completely, fully and transparently referenced") was disclosed to Professor Hall in the interview;

(d) Professor Hall responded in the interview that he had no problem with any of the comments made by his colleagues and that he thought that in general they were consistent with what he had attempted to do;

(e) Professor Hall indicated that he would respond in detail;

(f) a decision was made by the Inquiry to seek written reports from Professors d'Apice, Parish and McKenzie and Sir Peter Morris;

(g) Professor Hall's views were sought in writing as to the appropriate questions for the experts to be asked:

(h) Professor Hall nominated five experts to give opinions on these issues;

(i) letters were written to each of the five experts nominated by Professor Hall seeking their opinions;

(j) the Inquiry received written responses from the Inquiry's four experts in mid to late November 2002;

(k) reports from two of the five experts nominated by Professor Hall were received by the Inquiry;

(l) by this stage no request had been made by Professor Hall for access to the written reports provided by the experts to the Inquiry;

(m) on 27 November 2002 the Inquiry sought the permission of the Inquiry's experts to quote their reports in the Inquiry's report;

(n) all of the Inquiry's experts wanted an indemnity from the University to protect them against any action by Professor Hall before they would consent to being named and quoted in the Inquiry's report;

(o) requests were made on behalf of Professor Hall for access to the reports by the Inquiry's experts on 31 December 2002 and 17 January 2003;

(p) on 21 January 2003 the Inquiry (in a letter drafted by Sir Gerard Brennan) informed counsel for Professor Hall that the Inquiry had considered the reports from the Inquiry's experts, that it had no authority from them to provide copies of their reports, that the Inquiry could not presently forward their reports and that their reports had not led the Inquiry to any tentative view adverse to Professor Hall;

(q) at this stage indemnities had not been signed to protect the Inquiry's experts;

(r) the report of the Inquiry was handed down on 31 January 2003;

(s) the original time frame sought by the University for a final report was by the end of November 2002; and

(t) the Deeds of Indemnity were finally executed on 12 February 2003. 270 In response to the particular submission of Professor Hall the University emphasised that Professor Hall:

(a) was given notice of the experts' opinions and an opportunity to reply;

(b) was given an adequate statement of the allegations and particulars of those allegations;

(c) was provided with an opportunity to provide input into the questions asked of the Inquiry's experts and his own experts;

(d) was aware of the precise questions which were to be asked of both the Inquiry's experts and his own experts;

(e) was given an opportunity to provide expert opinion via his own experts on all the relevant questions and issues. He availed himself of this opportunity and two reports were received from experts nominated by him; and

(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.

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.

(6) FAILURE TO INFORM PROFESSOR HALL OF THE INTENTION TO INVESTIGATE AND MAKE ADVERSE FINDINGS OUTSIDE THE FORMAL ALLEGATIONS OF WHICH HE WAS GIVEN NOTICE

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:

1. Although it "was to undertake an investigation into the allegations listed in the schedule" to the Terms of Reference, the Inquiry determined that "it was required to report on whatever fact it might find to have been established during the course of the investigation";

2. Natural justice required that the Inquiry not find scientific misconduct or presumably scientific fraud by Professor Hall on facts falling outside the schedule of Allegations unless Professor Hall "had had notice of the issue which did not fall strictly within these Allegations and an opportunity to show why an adverse finding should not be made on that issue";

3. The Inquiry had sought to cover all relevant material in its conclusions and thus failed to confine itself to the Allegations. 305 Professor Hall submitted that the Terms of Reference would raise an expectation in the mind of a reasonable person that the Inquiry would confine itself to investigating those Allegations of which notice had been given, and, if further investigation was to be undertaken, notice would be given of any additional matters that it intended to investigate. In the plaintiff's submission, the Inquiry should have:

(a) informed him that it intended to make adverse findings; and what those findings were; and (b) given him an opportunity to respond to those findings before the final Report was handed down; and/or (c) provided Hall with a draft copy of the Report and invited his response. 306 Professor Hall submitted that the Inquiry acted contrary to these expectations. Professor Hall submitted that, in the course of investigating Allegations 5, 8, 17, 18, 21, 22, and 23, the Inquiry received information as a result of which it made a series of adverse findings, which were not strictly within the terms of the Allegations. 307 Professor Hall complained that he had no advance notice in relation to the findings made in relation to Allegation 17 that:

(a) there was no evidence of an agreed process for determination of authorship issues; (b) this reflected a break down of proper laboratory practice in the designation of authorship and rather chaotic relationships within the laboratory; and (c) Professor Hall was guilty of a lack of sensitivity in defining authorship in his research group.

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."

Allegation 8 313 Allegation 8 was that Professor Hall submitted a paper for publication which contained data from certain experiments; and that no experiments to support this data were done in the laboratory of Professor Hall or the laboratory of any other author of the Paper, at Liverpool Hospital; and that the experiments of that type which had been carried out by any of the authors did not in fact support the data presented. The substance of the Allegation was that Professor Hall thereby stated or presented a material or significant falsehood; and Professor Hall submitted, or authorised the submission of, the Paper for publication with intent to deceive or in reckless disregard of the truth. 314 Particular matters which informed the Conclusions, such as relations between Professor Hall and certain complainants, and different methods of recording experiment results, were raised with Professor Hall at interview on 22 October 2002 (see Report Volume 4 Part 1 pp88, 89, 91, 92-94; and Volume 4 Part IV pp 218, 219-220; see also Volume 1 pp123 (reference to interviews recorded in Volume 4 Part 1 p88)). 315 Professor Hall provided the Inquiry with initial written responses to the Allegations and an eight-page final submission dated 10 December 2002, made in relation to the matters raised in the Inquiry's investigation of Allegation 8. Sections of the response to Allegations and the submission are cited by the Inquiry in its discussion in respect of Allegation 8 (see Volume 1 pp125-127). 316 The Inquiry drew a series of Conclusions adverse to Professor Hall, but made no adverse Finding.

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).

Defendant's submissions 328 The ultimate purpose of the Inquiry was to determine whether, on the facts, Professor Hall had committed scientific fraud or scientific misconduct. 329 The defendant submitted that in addition to or as a component of this task, the Inquiry would consider other facts outside the specific Allegations. The defendant submitted that it was inevitable that the Inquiry would need to make findings of fact en route to expressing a final opinion in relation to the Allegations before it. The adverse findings do not constitute or amount to fresh allegations but rather represent conclusions by the Inquiry in the course of discharging its function. 330 The defendant submitted that Professor Hall had notice of the findings which might be made in relation to Allegation 5. 331 Professor Hall submitted that the Inquiry made findings in relation to Allegation 8 outside the terms of the Allegation, namely conclusions on "procedural laxity". In reply, the defendant submitted that the question of procedural laxity was implicit in the terms of Allegation 8; was contained in transcripts of interviews with complainants which were then provided to Professor Hall; and was raised with Professor Hall in interviews with the Inquiry. 332 The defendant made a general submission that the findings made in relation to Allegation 17 were available "fall-back findings" given that Allegation 17 related to lack of proper attribution of authorship in respect of five papers. The specific allegations in relation to these five papers were investigated in conjunction with the more general question of how authorship issues were determined within the laboratory. The defendant further submitted that Professor Hall had notice of these matters in any case: they were in transcripts of interviews with complainants provided to him and were addressed by the Inquiry in interviews with Professor Hall.

Conclusions 333 The Inquiry was required to undertake two tasks. Its first task was to investigate the Allegations, as formally defined in the Terms of Reference, made against Professor Hall. It was likely, if not inevitable, that facts would come to light which were not within contemplation when the Allegations were formally settled. This is inherent in any investigation. 334 The second task of the Inquiry was to find whether in its opinion Professor Hall was guilty of scientific misconduct or scientific fraud. This opinion was to be informed by the facts and which the Inquiry found to be established. In order to provide Professor Hall with a fair hearing, the Inquiry was required to give him an adequate opportunity to respond to any matters which could, alone or taken with other matters, lead to adverse Findings or Conclusions. 335 The issue is whether Professor Hall was given sufficient notice of the matters in respect of which factual findings might be made. With respect to the findings of the Inquiry of which Professor Hall now complains, I am satisfied that Professor Hall was given a fair hearing. It is apparent from the processes of the Inquiry to which I have referred that Professor Hall was given notice of the relevant matters, the nature of the material relevant to them and an opportunity to respond. 336 This ground is not made out.

(7) APPLICATION OF THE INQUIRY'S OWN SCIENTIFIC AND MEDICAL KNOWLEDGE

The findings and conclusions subject to challenge 337 Professor Hall submitted that the Members of the Inquiry applied their own scientific and/or medical knowledge to the issues before it, when considering Allegations 3 and 7. In Professor Hall's submission, this application of specific knowledge was not permissible without notice to him and accordingly in relation to Allegations 3 and 7, the Inquiry denied him procedural fairness. 338 The plaintiff challenges the following conclusion drawn by the Inquiry in respect of Allegation 3: "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." 339 The final finding in respect of that Allegation is also challenged. It reads: "Finding

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." 340 The finding in relation to Allegation 7 is challenged. It is at p119 Volume 1 of the Report: "Finding

That Professor Hall published a material falsehood and authorised the publication of the abstract with intent to deceive or in reckless disregard of the truth."

Plaintiff's submissions 341 The plaintiff submitted that in its deliberations relating to Allegations 3 and 7, the Inquiry adopted its own opinions rather than the opinions of the experts whose opinions were favourable to Professor Hall. 342 Professor Hall submitted that no notice was given of the intention of the Inquiry to use its own expertise to override the views of experts who expressed views which were favourable to his case. 343 In his submissions, the plaintiff relied on some of the evidence tendered by the defendant. In her statement dated 14 May 2003, Dianne Hamilton, Secretariat Co-ordinator, said that she heard Professors Whitworth and Chalmers make comments about referencing during their discussions with respect to Allegation 3. 344 Ms Hamilton also said that she heard comments to the effect that those Professors viewed the method used by Professor Hall as misleading and unacceptable. It was submitted that this evidence demonstrated that the Inquiry had used its own expert knowledge. 345 Professor Hall submitted that the failure by the Inquiry to give notice to him of its intention to apply its own knowledge in reaching its conclusion was significant, and that the result of this course of action taken by the Inquiry was to deprive him of the opportunity to address the matter, and to achieve a different outcome.

Defendant's submissions 346 Counsel for the defendant submitted that when one looks at the terms of reference it is clear that the University envisaged that the Members of the Inquiry would use their expertise in making findings in the Report. In the defendant's submission, the Terms of Reference provide:

(a) the purpose of the Inquiry was for the University "to seek further expert advice"; (b) the objective of the Inquiry was to determine whether complaints of scientific misconduct and/or scientific fraud were made out; (c) the reason for the Inquiry was that the inquiries made by Professors Dowton and McLachlan could not deal with certain matters of scientific fraud and misconduct "because they lack specific expertise on the matters in question"; and (d) the task of the Inquiry was to investigate the allegations against Professor Hall and advise whether in the opinion of the Inquiry Professor Hall had been guilty of scientific misconduct or scientific fraud. 347 The defendant submitted that the Inquiry was merely drawing factual conclusions; that the knowledge used to reach the conclusions could have been applied by any person; and that in any case Professor Hall had notice of these matters and an opportunity to respond in interviews. 348 The University emphasised that the finding in relation to Allegation 7 was a finding in relation to fraud. In reply to Professor Hall's claim to the Inquiry that a particular statement in the paper was ambiguous, the defendant submitted that the Inquiry had merely to address the question as one of construction, which it did. Once it was established that there was in fact no ambiguity and the statement was misleading, the Inquiry did not need to explore any scientific issues raised by Professor Hall. The plaintiff's submission that the Inquiry misapprehended the scientific details would thus be irrelevant.

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).

Conclusions 361 The authorities are clear that tribunal members may, and in fact will be expected to, use their own expert knowledge when weighing up evidence, whether expert or lay, and when reaching a decision on the matters before them. The Inquiry was comprised of members of such professional standing that any argument that the University did not intend that they utilise their expert knowledge and experience would be artificial. 362 The parties are at issue as to whether the knowledge the Inquiry Members applied was their expert knowledge; and, if so, whether they used it to evaluate the evidence; or whether they went further and used it in substitution for, or in the absence of, evidence. The plaintiff submitted that the latter occurred. However, my understanding of the Findings and Conclusions in relation to Allegation 3 is that the Inquiry applied its considerable expertise to the evaluation of the material before it. That material included the opinions of other experts. The course the Inquiry took was appropriate. 363 With respect to Allegation 7 the Findings did not depend on scientific knowledge but merely on the construction of the relevant document. 364 This challenge fails.

(8) REVERSAL OF DECISION ON PUBLICATION OF THE REPORT

Background 365 The Terms of Reference set out the procedure related to publication: "In view of the objectives which the University has for the Inquiry, the Report of the Inquiry will be considered by the University Council and, in its absolute discretion , it may place the findings of the Inquiry into the public domain. In exercising that discretion, the Council will have regard to the requirements of fairness and the desirability of protecting the privacy, reputation or confidentiality of any individual ." (emphasis added) 366 On 13 February 2003, Professor Hall, through his solicitor Ms Kearney, forwarded a lengthy written submission to the Chancellor and Council members, which read: "I enclose a submission on behalf of my client Professor Bruce Hall addressed to the Chancellor and Council members. I respectfully request that you provide the submission to the Chancellor and Council members for consideration at the meeting of the University Council to be held at 4.00pm today 13 February 2003." 367 Professor Hall submitted to the Council that it would be unfair to publish the Report. Professor Hall (referred to in his submission as BH) expanded on this in his reasons why the Report should not be published. He said:

It has been brought into existence as a consequence of a number of breaches of the obligation of the Inquiry to afford BH natural justice.

BH has not at the time of preparation of this letter, had an adequate opportunity to respond in detail to the scientific and factual errors in it.

The Report is defamatory of BH. If it is published by the University, it will be liable in damages.

A determination has not been made by BH's academic supervisor. Unless and until the academic supervisor makes a determination in accordance with clause 14 of EA2000, and/or the Deputy Vice-Chancellor then decides what action, if any, is to be taken against BH, publication of the contents of the Report is premature.

Further, the guidelines set out in the Terms of Reference require the council to have regard to the principles of fairness and the desirability of protecting the privacy, reputation or confidentiality of any individual. 368 The University Council met in a Special Meeting on 13 February 2003. The Council noted that the Report was being considered by the relevant University officers under the University Academic Staff Enterprise Agreement and resolved to defer a decision on publication until the completion of the process set out in the Agreement. The submission made by Professor Hall was considered at the meeting. 369 The University Council met again on 24 February 2003. Mr Richard Potter presented oral legal advice to the Council in relation to the question of publication of the Report. The Council resolved: "That Council authorises a sub-committee comprising the Chancellor, the Vice-Chancellor and Mr John Pascoe to release the Final Report of the External Independent Inquiry to: a) South-West Sydney Area Health Service b) NHMRC c) Regulatory agencies, specifically, ICAC, State Audit Office and Commonwealth Auditor General e) Complainants f) State and Federal Ministers of Education g) NSW Medical Board on receipt of appropriate legal advice as to the conditions of release to each party." 370 This was, of course, a change from the decision which the Council had made at its meeting of 13 February 2003. 371 Obviously each of the bodies to whom the Report was to be released has a legitimate interest in the outcome of the Inquiry.

Plaintiff's submissions 372 The plaintiff contends that he was denied natural justice by reason of:

(a) the failure of the Inquiry to give him any notice of the Council's resolution of 24 February 2003;

(b) the denial of any opportunity for him to put additional submissions as to why the Report should not be published;

(c) the Council's provision of the report to the National Health and Medical Research Council, which funds the plaintiff's laboratory at Liverpool Hospital, as this would be likely to have a potential impact on the continuation of funding for his research; and

(d) the apparent provision to the Council of the University, but not to Professor Hall, of a report by the Vice-Chancellor which related to events arising between 13 February and 24 February 2003.

Defendant's submissions 373 The defendant submitted that the Council's absolute discretion to publish the Report is a circumstance pointing strongly to the fact that with respect to publication there was no duty to afford procedural fairness: Salemi v MacKellar [No. 2] (1977) 137 CLR 396, at 420; R v MacKellar (1977) 137 CLR 461, at 479. Although the regime established by the Terms of Reference contemplates various procedures in respect of the Inquiry's determinations, it contains no regime in relation to the Council's "absolute discretion" to publish. The defendant submitted that as Professor Hall has agreed to this regime and has acquiesced in the processes laid down by it, he has no grounds to challenge the decision. 374 The defendant emphasised that Professor Hall was given an opportunity to place submissions before the Council as to the publication of the Report.

Conclusions 375 Although I can understand that Professor Hall is disappointed that he did not have an opportunity to deter the Council from changing its mind, I do not believe that the court could intervene. The matter was one for the Council. In exercising a discretion as to whether to publish the Report, the Council was required to have regard to the requirements of fairness and there is nothing to suggest it failed in this respect. It cannot be suggested that once a decision had been made the Council could not change its mind. The Council made the original decision after Professor Hall had availed himself of the opportunity to make submissions and put his view of the matter. All that later occurred was that the Council came to a different view. It was entitled to do so and in my opinion there was no breach of procedural fairness. 376 I am satisfied that the complaint is not made out and there is no occasion for the court to intervene. If there was, significant discretionary issues would need to be considered.

(9) SCIENTIFIC ERRORS 377 The plaintiff submitted that the Inquiry made a number of scientific errors. In his submission, those errors form a basis for the Court to restrain publication of the Report.

Plaintiff's submissions 378 The Inquiry made adverse conclusions with respect to Allegations 1 and 3 which related to the method of referencing. The plaintiff submits that at least half of the expert witnesses who provided opinions in relation to the allegations found that the method of referencing was acceptable; but the Inquiry inexplicably took the minority view of Professor d'Apice, who is not an expert in the field concerned. 379 The plaintiff also submitted that the findings in Allegation 4 were inconsistent with those in Allegation 1; and that the Inquiry failed to understand the import of the logistics of the experiment. 380 In relation to Allegation 7, the plaintiff submitted that the Inquiry made a factual mistake in failing to appreciate the circumstances in which cells can transfer tolerance. 381 The plaintiff submits that the experiments referred to in Allegations 9 and 10 were not central to the relevant reports and thus too much emphasis has been placed on a trivial matter. 382 The plaintiff claimed that the Inquiry incorrectly applied statistics to reach its conclusions in relation to Allegation 13; and failed to recognise the nature of the document concerned. Professor Hall contended that the document, an application for a grant, was a presentation of ideas in progress and hypotheses, not a finished work, and thus could and should not have presented proven facts.

Conclusions 383 It is plain that the alleged errors all relate to matters falling within the responsibilities of the Inquiry and in relation to which it was charged with reporting. In a different context, they are "errors within jurisdiction" (see Re Refugee Review Tribunal and Another; ex parte Aala (2000) 204 CLR 82). Even if these factual errors have occurred they could not provide any basis for the court to intervene.

Orders 384 I make the following orders: 1. Summons dismissed. 2. The plaintiff is to pay the defendant's costs. 3. The orders made on 3 June 2003 are dissolved. **********

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