The Plaintiff's Submissions
153 The Plaintiff submitted that a central aspect of the bias rule is the principle that a person who is in the position of accuser or prosecutor ought not to participate in the making of the decision which is reached in relation to the charge which has been made: Stollery; Rendell v Release On Licence Board (1987) 10 NSWLR 499 at 507; Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113 ("Ong"). It was submitted that this of itself gives an appearance of prejudgment, and hence an appearance of bias. It was submitted that a person is in the position of accuser when he or she is, in substance, a complainant regarding the conduct of the person subject to inquiry and charge.
154 The Plaintiff submitted that Professor Ward, Professor Campbell and Ms Malica were in the position of accusers, and also participated in making the findings and recommendations and in the drafting of the Review Committee report.
155 The Plaintiff submitted that Professor Ward made the original complaint against the Plaintiff which resulted in the establishment of the Review Committee. Amongst other things, it was submitted that Professor Ward suggested to Mr Bernard the form of words he should use in his letter to the Plaintiff advising him that the trial was suspended and that he had requested the HREC to review the protocol. Reliance was placed upon a number of comments made by Professor Ward in emails as indicating a degree of influence upon the process. By way of example, reference was made to the email dated 28 April 2008 from Professor Ward to Mr Bernard (at [37] above).
156 The Plaintiff submitted that Professor Ward had input into the selection of members of the Review Committee and supported the appointment of Professor Campbell and Ms Malica.
157 The Plaintiff emphasised that Professor Ward recognised the difficulty with respect to impartiality if she were a member of the Review Committee. Reference was made to Professor Ward's email of 2 June 2008 (see [43] above).
158 Despite Professor Ward's stated intention to "stay away from this ad hoc committee", the Plaintiff submitted that Professor Ward did not stay away from the Review Committee. Rather, the Plaintiff submitted that she monitored its decision making by being copied emails, by adding to the allegations, by reviewing and obtaining evidence and attending its meetings and advising its members on the issues before them.
159 The Plaintiff submitted that Professor Ward suggested to Mr Bernard that she should invite Professor Campbell to chair the Review Committee. Thereafter, Professor Ward met with Professor Campbell who agreed to chair the Review Committee. Reference was made to Professor Ward's email of 7 June 2008 (at [44] above) noting Professor Campbell's comment concerning the correctness of the decision to stop the trial - "You don't need a committee to tell you - you have no other choice".
160 The Plaintiff submitted that Professor Ward played a part in the selection of Professor Campbell knowing that he would support a suspension decision.
161 The Plaintiff submitted that Professor Ward, with the assistance of Ms Malica, drafted the terms of reference of the Review Committee, and deleted from Ms Malica's draft a term of reference seeking a recommendation as to whether the suspension of the trial should be lifted, and conditions on which it could continue.
162 The Plaintiff pointed to an email from Professor Ward dated 26 June 2008 suggesting to the Review Committee the names of people who could undertake external audits of the DTU, including Dr McLean (at [45] above). The Plaintiff submitted that an email from Professor Campbell dated 25 August 2008 reveals that it was Professor Ward who decided whether Dr Sarson was to be commissioned to carry out the GCP compliance audit (at [60] above).
163 The Plaintiff submitted that, soon after initiating the suspension of the trial and the referral to HREC, Professor Ward indicated in an email to Mr Bernard dated 12 April 2008, her desire that issues she had raised about the trial should impact on other studies of the Plaintiff (Exhibit A, page 73):
"Andrew - This is only the first of Bernie's studies and I think this issue may impact in a significant way on his other 'plans' with new grants etc."
164 The Plaintiff observed that, thereafter, Professor Ward forwarded to Mr Bernard an email on 27 April 2008 including a warning given by Professor Campbell to the Plaintiff that the University of New South Wales would not give institutional support to the Plaintiff's next project and that the Plaintiff would need to obtain this from the Defendant.
165 The Plaintiff submits that Professor Ward was present at the first meeting of the Review Committee on 22 August 2008 and at the subsequent meeting on 29 August 2008. In an email dated 26 August 2008, she reported to Mr Bernard, sending him "notes from our first meeting" in order to give him "the feel of what is going on" (Exhibit A, page 359).
166 The Plaintiff submits that Professor Ward determined the detail as to implementation of the draft report as early as 2 September 2008, seeking a discussion on implementation between herself, Mr Bernard and Ms Malica (see [90] above).
167 The Plaintiff noted that when Professor Campbell circulated the draft report to Ms Malica and Ms Edwards, it was also forwarded to Professor Ward. She responded to Professor Campbell's questions as to inclusion in the report of material relating to tissue donors and financial aspects by instructing Professor Campbell in an email dated 14 September 2008 that Mr Bernard would deal with the financial aspects after the review was complete (see [99] above).
168 The Plaintiff relied upon the email from Professor Ward to Mr Bernard dated 10 April 2008 concerning a planned visit by a Member of Parliament to the DTU and the PoW Hospital, referred to at [35] above, as providing additional insight into Professor Ward's view of the Plaintiff.
169 The Plaintiff pointed to an email dated 3 May 2008 from Professor Ward to Mr Bernard and Mr Clout concerning an intellectual property dispute between the DTU and the University of New South Wales, which included the following comment (Exhibit A, page 100):
"… As you can no doubt imagine the normal strategies have been pursued - endless emails, meetings, mediation etc but this is coming to naught with Bernie in loop. Being reasonable or realistic is not really part of his make up."
170 The Plaintiff relied upon the fact that the Review Committee meetings on 22 and 29 August 2008 and 10 October 2008 were held in Professor Ward's office, with the meeting of 22 August 2008 being moved to an earlier time in order to enable her to be present (Exhibit A, page 358a). On 26 August 2008, Professor Campbell sought Professor Ward's "input" on the draft minutes of the Review Committee's meeting, along with other members of the Review Committee and she responded that she was happy to leave the document as it was, for the discussion the next Friday (Exhibit A, page 358a).
171 The Plaintiff submitted that Professor Ward's participation in the decision making of the Review Committee was so consistent, constant and maintained at the smallest level of detail that she was effectively a member of the Review Committee. The Plaintiff submitted that Professor Ward controlled the deliberations of the Review Committee and its outcomes.
172 The decision to notify to the TGA of the suspension of the Clinical Trial, without the knowledge of the Plaintiff was conveyed to Professor Ward, who responded to members of the Review Committee with the information that Mr Bernard knew that "we" (the Review Committee) would notify the TGA (Exhibit A, page 332b). Professor Ward requested Ms Malica to copy Mr Bernard in when she sent the notification to the TGA and Ms Malica assured Professor Ward that she would run the correspondence by her before sending it to the TGA (Exhibit A, page 358b).
173 The Plaintiff relied upon the fact that Professor Campbell sought Professor Ward's comments on Mr Bernard's action plan. Professor Ward corrected Professor Campbell's assumption, and opposed a course of action whereby the Plaintiff would be given the preliminary report, referring to their concern that "any errors/omissions etc could be used by Bernie" and "it seemed cleaner" to only give him the draft of the final Review Committee report (see [93] above).
174 After exchanging emails with Serva, Professor Ward advocated proceeding with the Review Committee report, without attempting to obtain further information about the risk of TSE, asserting that the DTU should have used "human grade" (Exhibit A, page 673a). Further, it was Professor Ward who finalised the paragraph dealing with this matter in the Review Committee report (Exhibit A, page 679ak).
175 On 14 and 17 October 2008, Professor Ward made amendments to the response letter to accompany the final Review Committee report and warned that the tracking in the document she had sent should be removed (see [115], [119] above).
176 The Plaintiff submitted that the evidence demonstrated clearly that Professor Ward had been the original complainant against the Plaintiff in a process that saw the establishment of the Review Committee, that she recognised that it was inappropriate that she be a member of the Review Committee, but that thereafter she played an active part in the selection of the Review Committee, its processes and deliberations in such a way as to demonstrate that she was an accuser, but nevertheless participated in the decision-making process so as to constitute a breach of the bias rule.
177 The Plaintiff submitted that Professor Campbell had an appearance of bias by reason of his existing relationship with the Plaintiff, which included Professor Campbell being in the position of accuser against the Plaintiff in a dispute concerning authorship, institutional attribution of publications and access to embryonic stem cells. This dispute is said to have arisen when Associate Professor Sidhu resigned in order to take an appointment as director of a newly established stem cell laboratory within the Neuropsychiatric Institute at the University of New South Wales. The Plaintiff submitted that when Associate Professor Sidhu claimed rights to work undertaken within the DTU, Professor Campbell represented him in negotiations with the Plaintiff as director of the DTU.
178 The Plaintiff also contended that, during the period whilst the Review Committee was on foot, Professor Campbell had made unrelated complaints about the Plaintiff concerning research projects other than the Clinical Trial. Reliance was placed upon email communications between Professor Campbell and Professor Ward in September 2008 in which Professor Campbell complained about the Plaintiff's applications for research grants. Professor Campbell suggested that the review offered an opportunity to prevent the Plaintiff from obtaining any further research grants (Exhibit A, page 492a):
"On reflection, this would also be an opportunity to tell him not [to] apy [sic] for any more funding from India or anywhere else!"
179 The Plaintiff submitted that this placed Professor Campbell in the position of accuser, alleging that the Plaintiff was a person who ought not hold any research grants. In her next email to Professor Campbell, Professor Ward confirmed that Mr Bernard had decided that PoW Hospital would not give institutional support to the Plaintiff in an application for that grant (Exhibit A, page 496b).
180 The Plaintiff submits that, following Professor Ward's meeting with Mr Bernard on 2 September 2008 to discuss the action plan, Professor Campbell took instructions from Professor Ward concerning the drafting of the report (Exhibit A, page 496a).
181 The Plaintiff submitted that Ms Malica took on the mantle of accuser of the Plaintiff as well. Reliance was placed upon an exchange of emails between Professor Ward, Ms Malica and Professor Campbell on 22 August 2008 following receipt of documents produced to the Review Committee by the Plaintiff. Professor Ward immediately asked for a report. Ms Malica responded (Exhibit A, page 332c):
"He hasn't got anything of note. I think we uncovered evidence of at least one forged consent form."
182 Professor Ward immediately relayed this message to Professor Campbell. It is said that Ms Malica and Professor Ward were in the position of accusers, raising new allegations against the Plaintiff, in this instance, the alleged commission of a criminal offence. The Plaintiff submitted that Ms Malica gave no explanation for her opinion that the signature was forged. In a separate email sent later the same day to members of the Review Committee, Ms Malica stated that one consent form was mainly written in blue and the date was printed in black. She also stated that there were inconsistencies between the copies provided to the Review Committee and the original copied consent forms in the file at the DTU. Ms Malica expressed her view that the Plaintiff had dishonestly created documents or forged signatures and, at that time, was continuing to do so (Exhibit A, page 332c):
"… notably the copy on one patient file has a different 'witness' signature to the one provided to us & held in Bernie's Site Regulatory File (which he is obviously busily compiling now).
Consent for patients enrolled but not transplanted - these do not exist. I decided not to press Bernie for more info about what CRFs should be included for screening & enrolment because I didn't want to give him any hints for documents he could manufacture now."
183 The Plaintiff submitted that Ms Malica did not indicate on what basis she formed the view, impliedly conveyed, that the consent forms were not authentic. It was submitted that, as in the case of her email to Professor Ward, Ms Malica alleged to other members of the Review Committee that the Plaintiff was dishonest with regard to documentation. However, she did not pursue the allegation further by seeking to test the authenticity of the document, nor did she withdraw the allegation. It was submitted that Ms Malica later appeared to retreat from her original allegation (Exhibit A, page 670a). The Review Committee contented itself with the comment that there must be written delegation of authority to co-investigators to obtain consent and such delegations were not found in the audit (Exhibit A, page 670a).