Hall v Swan - [2009] NSWCA 371

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Hall v Swan & Anor [2009] NSWCA 371

HEARING DATE(S): 8 October 2009

JUDGMENT DATE:
26 November 2009

JUDGMENT OF: Tobias JA at 1; Bergin CJ in Eq at 2; Sackville AJA at 125

DECISION: 1. Appeal allowed.
2. Set aside the orders of Rothman J made on 10 February 2009 and in their place order that verdicts be entered that the broadcasts conveyed each of imputations (a) to (g), (i), (k) and (l) and that each of those imputations is defamatory.
3. Appeal in relation to imputations (h) and (j) dismissed.
4. The respondents are to pay the appellant’s costs of the
s 7A trial and of the appeal.

CATCHWORDS: DEFAMATION - JURY VERDICTS - Whether verdicts in trial pursuant to s 7A of the Defamation Act 1974 (repealed) were unreasonable - Whether counsel's address misled the jury - Whether Court should grant relief entering verdicts in appellant's favour when jury has not considered the question of whether imputations are defamatory

LEGISLATION CITED: Defamation Act 1974 (NSW) (repealed)
Supreme Court Act 1970 (NSW)

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Beran v John Fairfax Publications Pty Limited [2004] NSWCA 107
Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346
Bromley v Tonkin (1987) 11 NSWLR 211
Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201
David Syme & Co v Canavan (1918) 25 CLR 234
General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
Gorman v Barber (2004) 61 NSWLR 543
Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291
Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213
Ward v James [1966] 1 QB 273

PARTIES: Bruce Hall (Appellant)
Norman Swan (First Respondent)
Australian Broadcasting Corporation (Second Respondent)

FILE NUMBER(S): CA 40060 of 2009

COUNSEL: R G McHugh SC/M Richardson (Appellant)
B W Walker SC/A T S Dawson (Respondents)

SOLICITORS: Banki Haddock Fiora (Appellant)
Australian Broadcasting Corporation Legal Services (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20074 of 2008

LOWER COURT JUDICIAL OFFICER: Rothman J

- 32 -

40060 of 2009

TOBIAS JA
BERGIN CJ in Eq
SACKVILLE AJA
26 November 2009

Bruce HALL v Norman SWAN & ANOR

Judgment

1 TOBIAS JA: I agree with Bergin CJ in Eq.

The appellant, Bruce Hall, appeals from a jury’s verdicts at trial pursuant to s 7A of the Defamation Act 1974 (NSW) (now repealed) presided over by Rothman J (the trial judge), that none of the twelve pleaded imputations was conveyed by broadcasts of the program, The Science Show, presented by the first respondent, Dr Norman Swan (Dr Swan), and broadcast on the network of the second respondent, Australian Broadcasting Corporation (the ABC), on 13 and 15 April 2002. The second broadcast was not materially different from the first broadcast so I will refer to them together as “the broadcast”. At the time of the broadcast, the appellant was an immunologist, scientist and Professor of Medicine of the University of New South Wales (the University) at the Liverpool Hospital in the south-western suburb of Sydney, New South Wales.

The Broadcast

3 A transcript of the broadcast is contained in the Schedule to this judgment.

4 The only difference in the second broadcast was the interposition of a statement before the sentence at line 650, “It’s stark in its comprehensiveness with misconduct so extreme it can only be called fraud”. The interposed statement advises the listener that soon after the first broadcast went to air, the Deputy Vice Chancellor of the University released a statement that there were serious inaccuracies in the first broadcast and that the University had received an initial report from the Dean’s investigation on 6 April [2002]. The listeners are also advised that the respondents had tried unsuccessfully to find out from the University what the alleged errors were in the first broadcast.

5 A number of techniques are used throughout the broadcast. Classical music is played (at lines 5, 9 and 22 respectively) before the introduction by Dr Swan, before the statement by Hong Ha and at the conclusion of the description of the story as being about “powerful scientists with international reputations” who have “committed scientific misconduct so severe, it could be considered fraud” (lines 14-16). There is also the use of unidentified female and male voices (the readers) to read letters and other extracts in various tones and to pose the question “why study at the University of New South Wales?” at various points throughout the broadcast (lines 24, 445, 524) with contextually sarcastic responses. The broadcast is approximately 48 minutes long and these techniques assist in keeping the listeners’ interest and attention. The concluding section of the program (lines 650-651) returns the listeners to the matter raised at the beginning of the program (lines 14-16), but on this occasion it is expressed in unqualified terms that the “misconduct” was “so extreme it can only be called fraud”.

The Imputations

6 The appellant claimed at trial that the broadcast conveyed the following defamatory imputations:

(a) The plaintiff exploited Ms Hong Ha, a PHD (sic) student, for free labour;

(c) The plaintiff gave an opinion on the actual treatment of transplant patients at the Transplantation Society of Australia and New Zealand’s Annual Conference which he knew was based on fraudulently misrepresented animal data;

(d) The plaintiff committed scientific fraud by intentionally submitting a paper containing fabricated experiments to the Journal of Experimental Medicine;

(e) The plaintiff committed scientific fraud by intentionally submitting papers to two journals, which passed off as new findings, findings that the plaintiff had already published;

(f) The plaintiff fraudulently misrepresented data from an experiment in a grant application to the National Health and Medical Research Council by not disclosing that two repeat experiments failed to replicate the original findings;

(g) The plaintiff committed scientific misconduct by deliberately misrepresenting in his CV annexed to a National Health and Medical Research Council grant application that he had a significant role in the authorship of two papers when he had the least significant role;

(h) The plaintiff dishonestly removed Hong Ha’s name from two scientific papers when she was entitled to authorship of those papers;

(i) The plaintiff committed scientific fraud by including his wife’s name as an author on scientific papers when his wife had no involvement in the preparation of the papers;

(j) The plaintiff fraudulently claimed in a letter written in relation to a patent dispute that his wife deserved credit for transplantation immunology work that was actually done by Dr Clara He;

(k) The plaintiff fraudulently subsidised his wife’s lab out of his National Health and Medical Research Council grant;

The Trial

7 The trial was conducted on 9 and 10 February 2009 when Mr B R McClintock SC, leading Mr M Richardson, of counsel, appeared for the appellant and Mr B W Walker SC, leading Mr A T S Dawson, of counsel, appeared for the respondents.

The Addresses

8 In his opening address Mr McClintock correctly referred to the jury’s task as having to work out whether the respondents made “a series of specified allegations” against the appellant, and if so, whether they were defamatory. Mr McClintock submitted that the respondents accused the appellant of falsifying the results of his experiments. He referred to the importance of the ABC presenting itself as serious and said, “it is a serious programme about scientific issues”. He submitted that the “opera music” at the beginning of the program rather than “some catchy pop jingle”, emphasised the seriousness of the program, giving “serious weight” or “added weight” to the allegations made against the appellant.

9 The CDs of the broadcasts became exhibits and the members of the jury were handed a list of the questions whilst Mr McClintock was addressing them. Those questions were whether the appellant had “established that “The Science Show” broadcast on 13 April 2002 conveyed to the ordinary reasonable listener any of the following imputations (or any imputation which does not differ in substance therefrom)”. The imputations were then listed with the choice “YES/NO”.

10 Mr McClintock drew the jury’s attention to the fact that there was no question asking whether the allegations were “true or false” and said:

The reason I cannot say anything to you about them now is because the law will not allow me to say anything to you about them now because it is irrelevant. Whether something is true and whether it means something, the two questions are separate, logically. If it means something then you have to move to: Is it true or is it not true. I want to remind you of something I said earlier and his Honour said to you. You must not take any account of what you think might be the case, whether this material is true or false. As his Honour said and I have said to you: You are judges but you only hear, in fact, one side of the particular story which is what the ABC said.

11 Mr McClintock informed the jury that they would not be criticised for not deciding whether what the ABC said was true or not true, and once again emphasised that they must put that aspect of the matter aside and simply focus on the two questions they were asked. The broadcast was then played to the jury.

12 After the broadcast was played to the jury Mr McClintock continued his address. He dealt with some general matters in relation to the jury’s deliberations including correctly identifying that it was a long program and that people would have listened to it with differing levels of attention. He acknowledged that during the program the listeners’ attention might wander, however, he emphasised that the test for the jury was whether the ABC made the allegations against the appellant. He then went through each imputation and played excerpts from the broadcast that he submitted clearly identified that the allegations or imputations were made in the broadcasts. The CD of the excerpts was also an exhibit at the trial.

13 Mr Walker addressed the jury on the second day of the trial. He suggested to the jury that the thing that divided the parties was “about the character of this broadcast”. He also suggested that “the key” to understanding what an ordinary reasonable listener “might believe” was “the nature of this broadcast”. He emphasised that the end of the broadcast is often the climax of what it leads up to after the threads have been drawn together and that the listeners are left with a “take-home message”. He suggested that the University’s processes that Dr Swan had suggested needed “a cold hard look”, were “about investigation” and said:

Why is investigative journalism a long established form of press in a country that prides itself on a free press? It is because we think there is a public interest in questions being brought to public attention that need to be answered in the public interest. There needs to be an investigation.

14 In dealing with the imputations Mr Walker made the following submissions to the jury (Black 30):

(sic)

15 Mr Walker returned to the topic of “public interest” later in his address, as follows (Black 32):

16 Mr Walker also said (Black 35):

17 Mr Walker drew a distinction between imputation (a) and the other imputations in the following passages of his address to the jury (Black 36-37):

But the first one is, one might like to think about it, it is the only one where the plaintiff’s lawyers, they get to choose these words and not us and not his Honour, where the plaintiff’s lawyers have left out those really hard words “fraudulently” or “dishonestly” or knowing it is not true, et cetera. So it might be that you see the first one (a) “exploited Ms Hong Ha a PhD student for free labour”, you might see that as one because she said it herself on the air, because she says it herself and she certainly says it, she says it as a conclusion, she says it as an assertion. She does not talk about further investigation. That is not what the ABC said and what Dr Swan said but Mr McClintock and his Honour will tell you we are liable for what other people say on the ABC, not just our employees. So you might think (a) is a bit different. You might think it makes sense when it is all listed out (a) to (l) that (a) is a bit different. It does not have the most sinister tone of fraudulent in it.

…

18 At the conclusion of the addresses the trial judge asked Mr McClintock whether he wished to say anything in relation to Mr Walker’s “reliance on a publication in the public interest” (Black 38). Mr McClintock submitted that it was an irrelevant matter and asked for a direction to the jury that if public interest were to become relevant it is ultimately a question for the judge. The following exchange then took place between the trial judge and Mr Walker (Black 39):

HIS HONOUR: Your distinction is whether the broadcast has been made in the public interest and not with a view to making allegations and because it is (sic) has conveyed the allegations as distinct from a public interest defence to what is otherwise defamatory.

19 After a further exchange between Mr Walker and the trial judge, Mr McClintock made the following submission (Black 40):

20 There is no issue that at the conclusion of the above submission, although unrecorded in the transcript, Mr McClintock mentioned a discharge of the jury. The trial judge is recorded as having said: “Even if you are seeking one at this stage I would not grant it but that is a preliminary view”. No formal application was made to discharge the jury.

Summing-Up

21 At the commencement of his Summing-Up, the trial judge defined the role of the jury and referred to the fact that there were a number of ways in which the respondents might seek to defend the proceedings “even though it is strictly not relevant to your function” (Red 78). His Honour warned the jury that truth of imputations was not something with which they had to deal and that any defences were not part of the proceedings before them. His Honour also said (Red 79):

22 The trial judge dealt with the formal matters for the jury’s consideration and said (Red 84):

23 His Honour reviewed some of the evidence in dealing with the questions posed for the jury, compared the respective approaches of the parties and said:

24 During the short adjournment Mr Walker submitted to the trial judge that rather than posing the question “Should there be an investigation”, the respondents had been “stronger than that: ‘There should be an investigation. It really is overdue” (Red 92). His Honour agreed that he would “correct that impression” and when the jury returned his Honour said (Red 92-93):

sic

25 At the conclusion of his Honour’s summing up Mr Walker made the following submission:

Your Honour, in the course of explaining the call for investigation matter, about which generally I have nothing further to say, your Honour described at one point a moment ago being there were no allegations made but a call for investigation. It is the absoluteness of “makes no allegations” that we would respectfully seek to have qualified by way of correction.

26 Mr McClintock indicated that he did not wish to be heard and when the jury returned his Honour said:

Verdicts and Judgment

27 After deliberating between 12.22pm and 3.46pm on 10 February 2009, the jury answered each of the questions “NO” and judgment was entered for the respondents.

The Appeal

28 The appeal was heard on 8 October 2009 when Mr R G McHugh SC, leading Mr M Richardson, of counsel, appeared for the appellant and Mr B W Walker SC, leading Mr A T S Dawson, of counsel, appeared for the respondents.

Grounds of Appeal

29 The Appellant relied on two grounds of appeal (abandoning the third ground at the hearing of the appeal): (1) that no reasonable jury, properly instructed, could have reached the verdicts that none of the imputations were conveyed by the broadcast; and (2) (a) that Mr Walker’s address in relation to “public interest” could only have misled the jury; and (b) the trial judge’s directions on “public interest” were erroneous and compounded the effect of Mr Walker’s address.

Ground 1 – no reasonable jury could have reached the verdicts

30 The jury’s findings that the imputations were not conveyed can only be successfully challenged on appeal if they were findings that no reasonable jury could reach: Beran v John Fairfax Publications Pty Limited [2004] NSWCA 107 at [60]; Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [17]. As McHugh J said in his dissenting judgment in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [17], the question for the appellate court is “whether in the light of the evidence the verdict shows that the jury failed to perform its duty. As long as the verdict cannot be described as irrational, it must stand”: see also David Syme & Co v Canavan (1918) 25 CLR 234 per Isaacs J at 239 and Beran v John Fairfax Publications Pty Limited per McColl JA at [110]. The expression “unreasonable” in respect of a jury’s verdict is to be understood as a verdict that no reasonable jury, properly instructed, could have reached: John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 per Gleeson CJ and Crennan J at [8]-[9] and per Gummow and Hayne JJ at [51]. I use the expression in this sense.

31 It is necessary to be cognisant of the need for restraint in this appellate process. These constraints were identified by Callinan J (with whom Gleeson CJ and Heydon J agreed) in John Fairfax Publications Pty Ltd v Rivkin. His Honour pointed out (at [184]) that an appellate court cannot substitute the answer that it would give to a question for that of a jury:

“Nor does it mean that a finding of a jury should be invested with no more than the authority of a trial judge to whom all questions, including of fact, have been assigned for answer. The jury has an especially significant constitutional role to play in those cases in which it participates. Both as a practical and legal matter, a jury’s decision on a factual question, although by no means impregnable, does have an authority over and above that of a decision of a judge sitting alone to determine a factual question. The jury is representative of the community. Its members are better placed than judges to give meaning to, and evaluate, the spoken and written word and its impact upon the community. Nor should it be assumed that juries approach their task with heightened or lowered suspicion and prejudice. History shows that not all lawyers and judges are strangers to suspicion. It may accordingly be accepted that the occasions for judicial correction of jury verdicts will be extremely rare. But such occasions do arise.”

See also at [18], per McHugh J.

32 It is also important to remember that listening to a broadcast is different from reading a newspaper. In the former there is no opportunity, as is available in the latter, to go back and check what message was being conveyed: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-166. In Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410, Hunt J said at 413:

Morosi v Broadcasting Station 2GB Pty Ltd

(8) Each case will, no doubt, depend upon its own circumstances, but it is easy to imagine a viewer missing the significance of a qualification or contradiction at the beginning or (perhaps less likely) at the end of a segment such as that complained of here. On the other hand, it is difficult to accept the existence of the reasonable listener or viewer who failed to comprehend a refutation in the sentence following that in which the charge was made or whose concentration selectively increased in relation to random passages between those which materially qualified the effect of those he comprehended.

A call for investigation

33 The respondents accepted that they conducted the trial on an “all or nothing” basis, meaning that if the jury acceded to their submission that the overall message or impression from the broadcast was a call for an investigation and nothing more, there would be “nothing” conveyed. However it was not conceded that if the jury was not convinced of that overall impression, it followed that “all” the imputations would be conveyed.

34 The process of having juries provide answers to questions may, depending upon the particular case and the nature of the questions, remove, or at least adjust, the usual Sphinx-like inscrutability of the jury’s verdict: Ward v James [1966] 1 QB 273 per Lord Denning MR at 301; Bromley v Tonkin (1987) 11 NSWLR 211 per Kirby P at 214. An answer given to one question may throw doubt on an answer to another question: Gacic, per Gleeson CJ and Crennan J at 208 [12]. It is permissible in the appellate process to attempt to re-construct the jury’s reasoning and in doing so to draw proper inferences from the answers given to the questions in relation to that reasoning: Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024 per Lord Bingham of Cornhill at 3029-30 [7].

35 In the present case, imputation (a) was in a “different” category to the other imputations. Indeed Mr Walker made that distinction to the jury as outlined in his address extracted earlier at [17] above. The respondents’ submissions to the jury would have conveyed to a jury acting reasonably that if they were to accept the submission that the overall effect of the broadcast was a call for an investigation and nothing more, then it would follow that they would answer “no” in respect of the questions as to whether imputations (b) to (l) were conveyed. Mr Walker informed the jury that he was not going to try to persuade them to a conclusion other than that the words of imputation (a) were in Hong Ha’s own voice. However in dealing with this imputation separately from imputations (b) to (l), Mr Walker posed the question for the jury as to whether the respondents “as a whole” said in a broadcast “yes, we present that as the imputation to be conveyed, that is the allegation to be made against him”. Mr Walker then posed an alternative for the jury by saying:

... or rather, is it something which if true, it is most undesirable and it needs to be looked at and that is why what I talked to you about whistleblowers becomes important. Nonetheless, I would leave you with the thought that (a) is different from all the others without any additions. Without any additions it sets out words which are actually heard on broadcasts. All the others have very important words added or an impression given which is not found in the broadcast.

36 If the jury had answered “yes” to the question in relation to whether imputation (a) was conveyed and answered “no” to all the other questions, a reasonable inference from that outcome would be that they had agreed with the respondents’ submission that the overall effect of the broadcast was a call for investigation and nothing more, but that imputation (a) was different. The negative answer to all the questions tends to suggest that the jury did not give detailed consideration to individual imputations but rather took the “all or nothing approach”, that is, they accepted that this was only a call for an investigation and “all” the answers should be the same.

37 Mr Walker went so far as to “earnestly suggest” to the jury that in respect of imputations (b) to (l) the jury should answer the questions “No”. He did not make the same suggestion in respect of imputation (a). The negative answer in respect of imputation (a) is most surprising in the light of the way in which the respondents approached the matter. It tends to suggest that the jury did not attend to its task appropriately. However the jury might have dealt with imputation (a) separately and accepted the submission extracted above that, although it was different from the other imputations because it did not have the added impression or words such as “fraud” in it, the broadcast as a whole was only saying that “if true, it is most undesirable and it needs to be looked at”. I am of the view it is more likely that this surprising answer resulted from the confusion caused by the respondents’ submissions in relation to “public interest” (dealt with separately later in this judgment).

38 At this point it is appropriate to consider whether it was reasonably open to the jury to conclude that the effect of the broadcast was nothing more than a call for an investigation into the appellant’s and the University’s activities, without conveying any imputations.

39 The trial judge’s directions to the jury in relation to its tasks, except in relation to the topic of “public interest”, are not challenged. On a number of occasions his Honour stressed that the questions for the jury were whether the imputations were conveyed and, if so, whether they were defamatory. His Honour also directed the jury, correctly with respect, that even if they formed the view that the broadcast did call for an investigation, that did not necessarily mean that the imputations were not conveyed.

40 The appellant relied on the key introductory and concluding passages of the broadcast at lines 3–21 and lines 650-679 respectively, together with the “recap” in the middle of the broadcast at lines 433-437, to submit that the ordinary reasonable listeners (the listeners) could not draw any rational conclusion other than that the appellant was said to be guilty of the charges levelled against him in the broadcast. It was submitted that the whole character of the broadcast was an attack on the appellant for serial scientific misconduct and that it did not accommodate any reasonable doubt that the appellant had in fact committed the frauds, misappropriations and misconduct detailed in the broadcast. The appellant emphasised the use of the words “fraud” and “fraudulent” that were peppered throughout the broadcast.

41 This broadcast was introduced as a major investigation into scientific and financial misconduct at the University of New South Wales. There is no suggestion that this was merely a preliminary look at conduct that might be identified as scientific misconduct or financial misconduct. The only qualification in the introduction was whether this misconduct amounted to fraud – whether “it could be considered fraud” (lines 15-16). This dogmatic statement that it was scientific and financial misconduct was aimed at catching the listeners’ interest. In my view there is no doubt that having heard this sensational introduction, the listeners would have had firmly implanted in their minds that there was scientific misconduct and financial misconduct at the University and that they would have been keen to hear whether it could be considered “fraud”.

42 The respondents placed particular emphasis on the passage of the broadcast at lines 558-561 to submit that scope has to be given to the range of possibilities that were placed before the jury. That passage is as follows:

43 The respondents submitted that this passage conveys a summary of what Dr Swan had been saying was important over the previous forty-five minutes. It was also submitted that the jury was entitled to judge the broadcast in the summary form put by Dr Swan that the “allegations should be investigated by an independent party”. It was also submitted that the words in this passage provide a means, within the scope of the conduct of a reasonable jury complying with its duty, whereby it could have gleaned the overall impression of the broadcast and declined to have found that any of the imputations were conveyed. This passage, at lines 558-561, is towards the end of the broadcast after the identification of the five areas of concern (lines 431-443) in the “recap”, but importantly, before the very explicit and firmly stated conclusion (lines 650-651) that the misconduct was so extreme that “it can only be called fraud”. The five areas of concern identified in the “recap” included (lines 434-437):

Many examples of scientific misconduct, some of which looked like fraud;

What seemed to be fraudulent information supplied in a grant application to the National Health and Medical Research Council;

Misappropriation of NH&MRC funds;

44 The use of the expressions “which looked like fraud” and “what seemed to be fraudulent information” in the “recap” maintained the approach that was adopted at the commencement of the broadcast that the severe misconduct “could be considered fraud”. The broadcast was structured logically and carefully to tantalise the listeners’ interest with the initial suggestion that the conduct could be fraud, then moving to the suggestion that the conduct looked like or seemed like fraud to finally being labelled categorically as fraud.

45 The conclusion that “it can only be called fraud” was, in my view reinforced further by what occurred immediately thereafter. Having defined the extreme misconduct as “fraud”, Dr Swan then goes on to state that the misuse of NH&MRC funds was “particularly serious”. He debunks any possible suggestion that there may be an innocent explanation, such as sloppiness, by describing the “total picture” as “astounding” and advises the listeners that the conduct “fits almost exactly” within the NH&MRC’s own definition of “misconduct”. This is made all the more dramatic by a formal reading, in very serious tones by an unidentified male voice, of the NH&MRC definition including descriptions such as, “fabrication” and, “falsification” and “other practices that seriously deviate from those commonly accepted within the scientific community for proposing, conducting or reporting research”.

46 The concluding statements of the broadcast appear immediately after the formal reading of the definition as follows (lines 670-679):

Stories like this should not have to be broadcast on national radio; it’s sad and painful for everyone involved that it’s come to this. The University of New South Wales needs to take a cold hard look at itself and its processes. Whistleblowers are usually angry, disillusioned and somewhat paranoid by the time they’ve decided to take their complaints to people in power. The slowness of the response, the perception of conflict of interest and the confused handling of the NH&MRC complaints have added to the emotion and, frankly, turned it into a mess which could have been minimised. The aim of institutions should be to keep scientific fraud off the front page – but not by burying it.

47 This conclusion reiterated the unqualified statement that it was “fraud”. It is true that it was coupled with the claim that the University should not have buried it, however this second unqualified claim of “fraud” would have emphasised in the mind of the listeners that the appellant had committed the “fraud” and the University had assisted him by burying it.

48 I am not satisfied that the statement in the broadcast (at lines 558-560) that the listeners would have been “convinced” that “at the very minimum” an independent investigation should occur, could dilute the sensational claims that the appellant’s conduct, indeed misconduct, was so severe that it could only be called fraud. The respondents opened the broadcast with the advice that it was a presentation of “a major investigation into scientific and financial misconduct”. Their point was that they had themselves conducted their own investigation and that the broadcast was the result of that investigation. Even if the listeners’ attention wandered during the broadcast, the developing theme of possible fraud (could be), to probable fraud (looked like/seemed like), to categorical fraud (could only be), would have kept the listeners attention to hear the outcome of the so-called “major investigation” – the categorical finding of fraud and the burying of it by the University.

49 I am satisfied that it was not rational for the jury to conclude, if that is what it did, that the broadcast conveyed only a call for an investigation. It would have been rational to conclude that the broadcast included a call that “at the very minimum” there should be an independent inquiry, but not to the exclusion of conveying any of the imputations.

50 In those circumstances and on the premise that the jury may have considered each of the imputations separately, it is necessary to consider whether a negative answer to any of the questions was reasonably open to the jury.

(a) That the plaintiff exploited Ms Hong Ha, a PhD student, for free labour

51 The appellant submitted that at the trial Mr Walker all but conceded that the first imputation, “(a) that the plaintiff exploited Ms Hong Ha a PhD student, for free labour”, was conveyed. That concession is said to arise from the passages of Mr Walker’s address to the jury extracted earlier, but repeated here for convenience (tr 10-11; 10/02/09):

…

52 This was certainly a clear indication to the jury that the respondents accepted that imputation (a) was different and that they were the words in Hong Ha’s “own voice”. Mr Walker went so far as to say “I’m not going to try to persuade you”. Mr Walker accepted in his submissions during the appeal that the respondents had “offered” the jury a “distinction” between imputation (a) and the other imputations. However, he relied upon the trial judge’s correct direction that “allegations can be made in the course of a broadcast and the overall impression is still not that imputations are conveyed”, to submit that it was a matter for the jury to decide, notwithstanding the distinction drawn between imputation (a) and the other imputations, whether in fact that imputation had been conveyed.

53 At the beginning of the broadcast Hong Ha (at that stage unidentified) says that she wants her story heard by the public because she does not want her children or anyone else’s children to go through what she has been through. She says that she wants “them” to admit their faults and that “they exploited me for free labour” and that “this problem has been going for too long” (lines 10-13).

54 Shortly after these statements Dr Swan introduces Hong Ha to the listeners by name and gives her background as; having been born in Vietnam; coming to Australia as a child; growing up near Liverpool; doing honours science at university; and in 1996, after working as a research assistant in the appellant’s lab, enrolling as a PhD student (lines 205-209). Later in the broadcast Dr Swan says that Hong Ha was left without an income; was running out of time to complete her PhD; had a young child; and needed the money (lines 391-393). The following exchange then takes place (lines 394-430):

Hong Ha: After I raised my concern with Professor Hall, from that point it clearly shown to me that I have to start looking for job because my hope is not going to happen.

Norman Swan: What was your hope?

Hong Ha: To do as much as I could not to upset my supervisor and if I behaved the way that Professor Hall wanted then he might change his attitude and treat me better and he might consider give me a job.

Norman Swan: That wasn’t to happen and Hong found work at Westmead Hospital in Sydney’s outer western suburbs. But that didn’t end her connection with Liverpool Hospital and Professor Hall.

Hong Ha: When I start my fulltime employment which was in October 2001, I still have to do the work at Liverpool Hospital after hours with the help of my husband.

Norman Swan: What work?

Hong Ha: The IL5 work.

Norman Swan: So the experiments that he asked you to do, you came back after you’d left his employment, you came back to do it unpaid in your spare time?

Hong Ha: That was asked when I announced my leave and he said that I’m going to have a lot of problem in getting my thesis complete without his help, it’s going to be very hard, it’s near impossible, and he said but if, if I’m not going to do it, that means I’m not serious with my work, which mean he won’t be putting his effort to help me getting my thesis through.

Norman Swan: Were there any witnesses to that conversation?

Hong Ha: No.

Norman Swan: So he was saying that unless you came back to do these experiments which had nothing to do with your PhD, there would be problems with your PhD?

Hong Ha: I needed to show him that I’m serious with my work.

Norman Swan: Can you prove that you came back and did the work after hours?

Hong Ha: Yes, I have to sign the time book when I enter the animal facility.

Norman Swan: How come your husband was involved in this?

Hong Ha: I asked him to come and help me because after hours I often feel very tired, plus the work that I had to do at that time was I have to carry the cages from the shelves to the sink and wash it, so there’s a lot of things to do during the night.

Norman Swan: What did you do with your child while all this was happening?

55 In the “recap” in the middle section of the broadcast one of the “five areas of concern” identified was “serious questions around supervision of Hong Ha’s PhD” (line 438). At the conclusion of the broadcast Dr Swan says (lines 669-670), “With Hong Ha, despite all this fuss, the University has still not arranged a change of supervisor for her”.

56 This was undoubtedly a charge of exploitation for free labour. There was nothing within the broadcast to suggest that this exploitation did not occur or might not have occurred. Indeed the irresistible conclusion to be drawn from the suggestion at the end of the broadcast, that the appellant had still not been removed as Hong Ha’s supervisor, is that the exploitation had occurred and it was necessary to “change” the supervisor. At the beginning of the broadcast the unidentified voice of Hong Ha states that she has been exploited for free labour. The exchange, extracted above, adds force to the claim that Hong Ha had been exploited for free labour by the additional statements that not only was Hong Ha providing this labour for free, but her husband was also assisting her (obviously without remuneration), whilst her mother had to care for their child.

57 In my view, the negative answer to the question whether imputation (a) was conveyed was unreasonable.

(b) The plaintiff in April 2001 fraudulently presented two experiments which were never done, to the Transplantation Society of Australia and New Zealand’s Annual Conference

58 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

In April last year, Clara He was in the audience at the Transplantation Society of Australia and New Zealand’s Annual Conference. She heard Professor Hall present two experiments, which she and another lab worker Dr Chen claim were never done. Dr Chen is a scientist in Bruce Hall’s lab. He graduated in veterinary science in China and did a PhD in immunology at The Australian National University. Chen has good surgical skills and performs all the animal transplants in the lab.

Clara He, as lab manager and also trying to be peacemaker, had helped Dr Chen with his major experiments for Professor Hall, so she knew what was being carried out.

Anyway, going back to this conference presentation last year, the effect of these allegedly non-existent experiments was that they provided support for a theory which Professor Hall had been promoting for many years.

We have the abstracts of the meeting, we have the lab books in which the experiments would have been recorded had they been performed at Liverpool Hospital, and we have testimony from Chen, who would have carried out the experiments.

Now Professor Hall may claim that the experiments were done in the past or somewhere else, but he’s presented this work as though it was performed at Liverpool Hospital, and if it had been done elsewhere, the conditions might have been different and the findings not comparable. (lines 71-91)

…

Dr Chen: I was too embarrassed to attend that meeting because I was aware of that abstract. I could not stand in front of audience to say something I did not believe. (lines 108-110)

…

Clara He: We had a one-hour meeting, roughly. We went through everything. I told her what is fraudulent.

Norman Swan: And did you show her the evidence for that?

59 In the introduction to this segment of the broadcast Dr Swan sets the scene in the language of allegations. He says that Dr He and Dr Chen “claim” that two experiments were not done and uses the expression “these allegedly non-existent experiments”. However Dr Swan then elevates these claims above the status of allegations by demonstrating that the people who “knew” what experiments were done at Liverpool Hospital have produced evidence that they were not done, in the form of lab books and the “testimony” of Dr Chen. The statement that these experiments were used by the appellant as support for a theory that he had been promoting for many years, is a clear suggestion of a pretence to have his long promoted, unaccepted, theory accepted.

60 Dr Swan’s statement that the appellant “may claim that the experiments were done in the past or somewhere else” in the context in which it is made conveys the clear message that if the appellant did make such a claim it would be without foundation because: (a) he presented the experiments as though they were done at Liverpool Hospital; and (b) the conditions might have been different and the results not comparable.

61 There is then the subsequent categorical statement by Dr He towards the end of the broadcast that she showed the NH&MRC the “fraudulent data” and the abstract that was “misrepresented” at the Society’s meeting. This categorical statement combined with the broad and unlimited statement at the conclusion of the broadcast that the misconduct (undefined) was so comprehensive and extreme that it could only be called fraud, would lead the listeners to the irresistible and only conclusion that the broadcast conveyed the imputation that the appellant had fraudulently presented two experiments which were never done to the Transplantation Society of Australia and New Zealand’s Annual Conference.

62 In my view, the negative answer to the question whether imputation (b) was conveyed by the broadcast was unreasonable.

(c) The plaintiff gave an opinion on the actual treatment of transplant patients at the Transplantation Society of Australia and New Zealand’s Annual Conference which he knew was based on fraudulently misrepresented animal data

63 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

Now Professor Hall may claim that the experiments were done in the past or somewhere else, but he’s presented this work as though it was performed at Liverpool Hospital, and if it had been done elsewhere, the conditions might have been different and the findings not comparable (lines 88-91)

Clara He also says that in an experiment that was done, Professor Hall gave the opposite findings from those in the lab books (lines 92-93)

…

Most seriously of all though, using his misrepresented animal data, Professor Hall gave an opinion on the actual treatment of people who’ve had a transplant (lines 97-98)

…

The members of the Transplantation Society were impressed (line 99)

64 Dr Swan states quite categorically that the “most” serious of all of the appellant’s conduct in this regard was giving an opinion on the actual treatment of people who had a transplant, which was based on his misrepresented animal data. This claim elevates the misconduct by the appellant to a higher realm. There is no question about it. This is conduct that should be regarded “most seriously of all”.

65 The imputation is that the appellant “knew” his opinion was based on “fraudulently misrepresented animal data”. The analysis of the broadcast in respect of the question whether imputation (b) was conveyed applies equally to the question whether this imputation was conveyed, in particular, the categorical statement by Dr He that she showed the NH&MRC the “fraudulent data” coupled with the explicit statement at the conclusion of the broadcast that the appellant’s conduct could only be “fraud”.

66 The listeners would be left in no doubt that the appellant’s most serious misconduct, which could only be called fraud, was the giving of this opinion. The listeners would equally be left in no doubt that the appellant knew that the opinion that he gave was based on his fraudulently misrepresented animal data.

67 In my view, the negative answer to the question whether imputation (c) was conveyed was unreasonable.

(d) The plaintiff committed scientific fraud by intentionally submitting a paper containing fabricated experiments to the Journal of Experimental Medicine

68 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

One, is that a paper which had major problems was submitted to the Journal of Experimental Medicine – one of the world’s leading journals for basic bio medical research (lines 113-115)

Clara He again.

Clara He: He said now is the grant application time, we’ve got to have a paper published as well to impress people. He said that we got to quickly send the paper out and gave me the draft to read through and I find the result is not what I remembered.

In one experiment which was done, the paper says eight rats were tested when the lab records only state there were five. Where the three extra rats came from is a mystery. There’s a serial number for every rat and every page in the lab books and there are no gaps. One effect of the extra animals is to make the data look more significant. (lines 116-128)

69 Dr Swan then states categorically that there is a paper with “major problems” and that it was submitted to the Journal of Experimental Medicine. He refers to “one of” the allegedly non-existent experiments and then contrasts it with the one experiment that “was done”. The only rational conclusion from this statement is that the other experiments were not done. The rather sarcastic reference to the “fascinating” paper and the “mystery” of the “three extra rats” conveys the clear allegation that the results have been concocted to make them look “more significant”.

70 These statements clearly convey that the appellant fabricated experiments, either by presenting material that was never done (as opposed to the experiment that “was done”) or by concocting or fabricating material within the experiment that was done, by manufacturing/fabricating results by introducing the three “mystery” rats.

71 When this is combined with the statements made by Dr He and the very serious and broad allegation of “fraud” at the conclusion of the broadcast, the only rational answer to the question whether imputation (d) was conveyed is in the affirmative.

72 In my view, the negative answer to the question whether imputation (d) was conveyed was unreasonable.

(e) The plaintiff committed scientific fraud by intentionally submitting papers to two journals which passed off as new findings, findings that the plaintiff had already published

73 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

But that’s not all. Other findings in this paper have exactly the same numbers as results Professor Hall had already published in a paper all the way back in 1985.

The coincidence is extraordinary. There’s a table in last year’s submitted paper which you can line up against a similar table published in 1985.

[Alternating Female & Male Voice]

Bruce Hall and Others 1985:

Bruce Hall and Others 2001:

Survival of PVG grafts in irradiated DA rats…

Rejection of PVG grafts in irradiated DA recipients.

Number of cells: 7.5 times ten to the power of seven.

Rejection time: Ten days, twelve days, fourteen days two rats, twenty days, twenty-four days…

Number of cells, two times ten to the power of seven…

Rejection time, fourteen days, two rats…

Fifteen days two rats, eighteen days and twenty days…

Norman Swan: That paper was rejected by the Journal. There’s also a Journal of Immunology paper, which we understand has been accepted for publication, where two lines of data are again almost identical to those published this time in 1998 by Bruce Hall.

74 Dr Swan’s reference to the “extraordinary” coincidence combined with (1): the subsequent inclusion of the unidentified male and female voices reading from the two tables; and (2) the dramatic recitation of the NH&MRC definition of “misconduct” at the conclusion of the broadcast, would have left the listeners in no doubt that the appellant had presented old findings as new findings and had misconducted himself in presenting these results. When this is combined with the labelling of the appellant’s misconduct as so extreme it could only be considered “fraud”, I am of the view that no jury could have reasonably answered the question as to whether imputation (e) was conveyed by the broadcast, in the negative.

75 In my view, the negative answer to the question whether imputation (e) was conveyed was unreasonable.

(f) The plaintiff fraudulently misrepresented data from an experiment in a grant application to the National Health and Medical Research Council by not disclosing that two repeat experiments failed to replicate the original findings

76 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

Another serious thing last year involves a grant application to the National Health and Medical Research Council, the NH&MRC. That’s the taxpayer-funded body which pays for most medical research in Australia.

NH&MRC grants are difficult to get and the application is complex. You have to argue your case very well; quote data if appropriate and convince the assessors that the people who’ll carry out the work have a good track record. Professor Hall appears to have misrepresented data in the application. According to lab records in our possession, an experiment referred to in the application was performed three times. On a single occasion it gave results which were the ones presented to the NH&MRC. But two repeat experiments failed to replicate those findings.

Repeatability is what good scientists look for to ensure their results are real. In this experiment, replication failed but that was not stated in this application, which also included one of the allegedly non-existent experiments.

…

Clara He: I called NH&MRC to give me copy. Then I examined the item, which is the fraudulent scientific issues included in the grant application (lines 202-203).

…

There were five areas of concern: (line 433)

…

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

…

…

It’s stark in its comprehensiveness with misconduct so extreme it can only be called fraud.

The misuse of NH&MRC funds is particularly serious. Some of the allegations in isolation could be explained as sloppiness or an innocent error, but the total picture is astounding and fits almost exactly with the National Health and Medical Research Council’s own definition of misconduct.

Publication of multiple papers based on the same sets or subsets of data is not acceptable, except where there is full cross-referencing within the papers

77 In the early part of the broadcast, Dr Swan does not state this claim categorically, but rather uses the qualified expression that the data “appears to have [been] misrepresented” in the application. There is a similar but far more serious claim in the “recap” in which Dr Swan claims that the information in the grant application “seemed to be fraudulent”. The categorical claim is that the “two repeat experiments failed to replicate” the findings in the first experiment. The possibility that this may have been an innocent oversight is jettisoned when this categorical claim is combined with the dramatic recitation of the NH&MRC definition of “misconduct” and the conclusion that the comprehensiveness of the misconduct was so extreme it could only be called “fraud”. The listeners would have been left in no doubt that the respondents were stating that the appellant had fraudulently misrepresented data in the grant application by not disclosing that two repeat experiments failed to replicate the original findings.

78 In my view, the negative answer to the question whether imputation (f) was conveyed was unreasonable.

(g) The plaintiff committed scientific misconduct by deliberately misrepresenting in his CV annexed to the National Health and Medical Research Council grant application that he had a significant role in the authorship of two papers when he had the least significant role

79 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

In addition, both Professor Hall and his wife Dr Suzanne Hodgkinson’s curriculum vitae appear to be inaccurate. (lines 171-172)

…

The first author is supposed to be the person who’s come up with most of the ideas and done most of the work and it’s downhill from there until the prized last name, who’s often the team leader.

It’s scientific misconduct for a person to appear in an authorship line if they haven’t significantly contributed to the work. That’s called gift authorship and is a big no-no.

So let’s start with Bruce Hall’s CV. In two papers on the grant application he appears as last author – which, as I said, is one of the pole positions. But when you go to the original papers and look at the real authorship line, Professor Hall is actually second last, probably the least significant position. (lines 177-187)

…

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

…

One example of problems with how the University of New South Wales has dealt with this matter is over the NH&MRC grant application with the flawed, probably fraudulent information in it. (lines 447-449)

…

It’s stark in its comprehensiveness with misconduct so extreme it can only be called fraud.

The misuse of NH&MRC funds is particularly serious. Some of the allegations in isolation could be explained as sloppiness or an innocent error, but the total picture is astounding and fits almost exactly with the National Health and Medical Research Council’s own definition of misconduct (lines 650-655).

…

Deliberate inclusion of inaccurate or misleading information relating to research activity and curriculum vitae, grant applications, job applications or public statements or the failure to provide relevant information is a form of research misconduct. Misconduct or scientific misconduct is taken here to mean fabrication, falsification, plagiarism or other practices that seriously deviate from those commonly accepted within the scientific community for proposing, conducting or reporting research. It includes the misleading ascription of authorship, including the listing of authors without their permission, attributing work to others who have not in fact contributed to the research and the lack of appropriate acknowledgment of work primarily produced by research assistant, trainee or associate.

80 As is the case with a number of the imputations, Dr Swan introduces the topic with rather temperate language, claiming that the CVs of the appellant and his wife “appear” to be inaccurate. In the logical and careful progression towards demonstrating to the listeners that it is more than mere appearance, Dr Swan informs the listeners that “gift authorship” is “scientific misconduct”. He defines gift authorship as when a person appears in an authorship line when they have not significantly contributed to the work. Dr Swan then refers to the appellant’s CV in particular and makes a comparison between the two papers on the grant application and the original papers. He informs the listeners that in the grant application the appellant appears as the last author in the “pole position” whereas in reality (the true position) – referring to the “real authorship line” – the appellant is second last and probably the least significant position.

81 In my view, the negative answer to the question whether imputation (g) was conveyed was unreasonable.

(h) The plaintiff dishonestly removed Hong Ha’s name from two scientific papers when she was entitled to authorship of those papers

82 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

Going back to 1996 and 1997, there were other experiments that Professor Hall wanted done to support grant applications and in return for carrying them out, Hong was promised authorship on the subsequent papers. The research was on immune messengers, cytokines called Interleukin 4 (IL4) and Interleukin 5, (IL5).

Hong Ha: And my name were on both IL4 and IL5 papers up until the time of submission for publication. My name was removed without any explanation why.

Norman Swan: Who wrote the paper, you or Professor Hall?

Hong Ha: Professor Hall.

Norman Swan: And at what point did it change?

Hong Ha: With the IL4 paper I’d never seen the final version of it.

Norman Swan: With the IL4 paper you discovered that when it was published?

Hong Ha: Yes. With the IL5 paper my name and two other people’s names were removed (lines 255-267).

…

It’s stark in its comprehensiveness with misconduct so extreme it can only be called fraud (lines 650-651).

…

It includes the misleading ascription of authorship, including the listing of authors without their permission, attributing work to others who have not in fact contributed to the research and the lack of appropriate acknowledgment of work primarily produced by research assistant, trainee or associate

.

83 The passages relied upon by the appellant in respect of this imputation do not in my view establish that it would have been unreasonable for the jury to have given a negative answer to the question whether imputation (h) was conveyed by the broadcast. That is because the jury could reasonably have taken the view that although Hong Ha was promised authorship the fact was, as she admitted to Dr Swan in the broadcast, that the appellant “wrote the paper”. In those circumstances a negative answer to this question was not unreasonable.

84 In my view, the negative answer to the question whether imputation (h) was conveyed was reasonably open to the jury.

(i) The plaintiff committed scientific fraud by including his wife’s name as an author on scientific papers when his wife had no involvement in the preparation of the papers

85 In addition to the overall effect of the broadcast, the appellant relied upon the following passages from the broadcast in support of his submissions in relation to this imputation:

Hong Ha: With my manuscript, the one that I did for my PhD, there’s people who never contributed has been added.

Norman Swan: Who were they?

Hong Ha: They were Dr Suzanne Hodgkinson, Dr Giang Tran, and Nicole Carter.

Norman Swan: They were both research assistants in Dr Hodgkinson’s laboratory?

Hong Ha: That’s right.

Norman Swan: And how do you know they had nothing to do with it?

Hong Ha: Because the work was carried out by me.

Norman Swan: You were writing this paper presumably, not Dr Hall?

Hong Ha: Well, he’s helping me writing the paper.

Norman Swan: So were you asked if it was all right if Suzanne Hodgkinson’s name went on? You were the first author, I assume?

Hong Ha: Yes, I was the first author.

Norman Swan: And were you asked if it was okay if their names went on?

Hong Ha: No one asked me that, Professor Hall just put it on.

Norman Swan: How do you know it was Professor Hall who put it on?

Hong Ha: Well, with Suzanne Hodgkinson’s name he’s just handwritten on it.

Norman Swan: And you’ve got a copy of that paper with his handwriting on it?

Hong Ha: I have saw -

Norman Swan: What did you say when you saw it there on the draft?

Hong Ha: I show to a few staff there and they all laugh at it, because it’s something that has happened to our other papers.

Norman Swan: And did you complain about it?

Hong Ha: No, I didn’t.

Norman Swan: Why not?

Hong Ha: Because I don’t want to upset my supervisor, because it’s something that I know Professor Hall has deliberately done: same with other papers.

Norman Swan: Has it ever happened to you in other circumstances, having Dr Hodgkinson’s name on one of your papers?

Hong Ha: Her name was on my other abstract, two other abstracts, as well.

Norman Swan: And how did that happen?

Hong Ha: Professor Hall just put it on.

Norman Swan: At what point?

Hong Ha: At the time that he was checking my abstract before I submit for conference attendance.

Norman Swan: And again you didn’t say anything?

Hong Ha: No, I didn’t say anything.

Norman Swan: Was that manuscript accepted for publication?

Hong Ha: That manuscript is still with Professor Hall. It has been submitted and there’s some minor modification need to be fixed so they send it back. I did all the final modification so its ready for resubmission, but Professor Hall still holding onto it.

Norman Swan: Have you asked him what’s happening with it?

Hong Ha: I didn’t contact him since I raised my allegation to the University.

Norman Swan: Hong Ha. And there’s no suggestion that Giang Tran or Nicole Carter were involved in changing these authorship lines (lines 269-315).

…

Remember, she works on a rat model of multiple sclerosis. She doesn’t work on kidney disease or transplantation. Yet that’s what these highly technical papers refer to.

We found records which track the provenance of one research project linked to one of these papers. These show that Suzanne Hodgkinson’s name does not appear anywhere until the paper’s submitted. Before the year 2000, her papers all related to neurology or autoimmunity (lines 322-328)

It’s stark in its comprehensiveness with misconduct so extreme it can only be called fraud (lines 650-651).

…

It includes the misleading ascription of authorship, including the listing of authors without their permission, attributing work to others who have not in fact contributed to the research and the lack of appropriate acknowledgment of work primarily produced by research assistant, trainee or associate

.

86 The exchange between Hong Ha and Dr Swan includes the explicit statement that the appellant’s wife had nothing to do with the papers nor the research in respect of the papers. Dr Swan then discusses why Hong Ha did not complain to the appellant and is informed that she did not wish to upset her “supervisor”. There is the added additional matter of other staff members laughing after Hong Ha told them about the inclusion of the appellant’s wife’s name on the papers and the categorical statement that it had happened on other papers. After the exchange Dr Swan advises the listeners to “remember”, in other words, do not forget, that the appellant’s wife had nothing to do with this research because her work is on something quite different, “multiple sclerosis” and not “kidney disease or transplantation”. That categorical statement, heard with the definition of misconduct and the allegation that the misconduct could only be fraud would, in my view, make it unreasonable for a jury to conclude otherwise than that the answer to this question should be in the affirmative.

Harvey v John Fairfax

116 The appellant in this case seeks orders setting aside the verdicts entered consequent upon the jury’s answers to the questions and the setting aside of the answers to the questions pursuant to s 108(3) of the Supreme Court Act which provides:

117 This is a discretionary matter, however in Gacic, Gummow and Hayne JJ said at 303 [30]:

118 The appellants have established that the jury’s answers to the questions in relation to the imputations, excluding imputations (h) and (j), were unreasonable. They have established “as a matter of law” that no reasonable jury could have given a negative answer to the questions as to whether those imputations were conveyed. In the circumstances of the trial, the jury did not have to consider the second question as to whether the imputations were defamatory.

119 In Hocking v Bell (1945) 71 CLR 430 Latham CJ said at 441-442:

120 This Court has cautioned against granting relief under s 108(3) of the Supreme Court Act when juries have not considered the question of whether imputations are defamatory. In Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hunt AJA said at paragraph [105]:

John Fairfax Publications Pty Ltd v Rivkin

121 The caution in Harvey needs to be considered in conjunction with the following passage in Callinan and Heydon JJ’s judgment in Gacic [188]:

Supreme Court Procedure Act

Supreme Court Act

122 I am of the view that “as a matter of law” a negative answer to the questions as to whether the imputations that were conveyed were defamatory, would be unreasonable. In my view, it is “unimaginable”, a term used by Callinan and Heydon JJ in Gacic at [190], that any reasonable jury properly instructed could find that these imputations were not defamatory. In those circumstances I am of the view that this is a case in which it is appropriate to exercise the power to enter verdicts, notwithstanding that the jury has not deliberated upon whether the imputations were defamatory. Accordingly it appears to me that on the evidence the appellant, as a matter of law, is entitled to the entry of verdicts in respect of each of the imputations, excluding imputations (h) and (j).

123 As there was a miscarriage of the trial by reason of the jury having been misled and confused by the submissions and directions in relation to “public interest”, the appellant would be entitled to a new trial in respect of imputations (h) and (j). However in oral submissions on the appeal the appellant indicated that if this Court were to enter verdicts in respect of some of the imputations then he would not seek any relief in respect of the other imputations.

124 The orders I propose are:

: I agree with Bergin CJ in Eq.

**********

1
First broadcast – 13 April 2002

2

3 This week on The Science Show, Norman Swan presents a major investigation

4 into scientific and financial misconduct at the University of New South Wales.

5 [Music]

6 Norman Swan: Hello, Norman Swan here sitting in the chair on The

7 Science Show this week instead of Robyn Williams, because today I have a

8 special and disturbing feature for you.

9 [Music]

10 Hong Ha: I want my story to be heard by the public because what I have been

11 through I don’t want my children or anyone else’s children to go through. I want

12 them to admit the faults that they have done: they exploited me for free labour.

13 This problem has been going for too long. I want it to be stopped.

14 Norman Swan: This is a story about powerful scientists with international

15 reputations who’ve committed scientific misconduct so severe, it could be

16 considered fraud; as well as mismanaging public funds where the institution, the

17 university in which they work, has been slow to protect staff who’ve raised their

18 concerns. In fact, at times the university seems to have actively favoured the

19 strong over the weak. It’s fifteen years since the exposure of Dr. William

20 McBride’s scientific fraud, what you’re about to hear suggests that safeguards

21 against scientific misconduct are still inadequate.

22 [Music].

23

24 Why study at the University of New South Wales? The University of New South

25 Wales is one of Australia’s major research institutions, attracting top national

26 competitive research grants and has extensive international research links.

27 Norman Swan: The University of New South Wales is one of the largest

28 universities in the country with a highly respected medical faculty. A few years

29 ago, following Sydney’s sprawl to the south west, the university set up a clinical

30 school in that area centred on Liverpool Hospital. They even attracted Bruce Hall,

31 a well-known Australian immunologist, back from Stanford University in

32 California. Bruce Hall is a kidney specialist who researches how the immune

33 system deals with transplanted organs. The university made him Foundation

34 Professor of Medicine at Liverpool where he set up his own lab. With him came

35 his wife, Dr Suzanne Hodgkinson, a neurologist who studies rats with brain

36 inflammation similar to Multiple Sclerosis. Bruce Hall hired Dr Clara He, a

37 medical graduate from Shanghai with an Australian PhD and post-doctoral

38 experience in immunology.

39 Clara He: Professor Hall was asking me if I was interested in his new senior

40 position in Liverpool Hospital. I feel that could be new opportunity for me, so I

41 can design my program. I respect him; I believe we can collaborate and make

42 good program.

43 Norman Swan: Dr He has her own research group at Liverpool and is also the

44 laboratory manager. She’s introduced molecular biology into the lab and her small

45 team has cloned and produced an impressive number of immune molecules, which

46 has allowed her to make an important discovery – namely, that an immune

47 messenger called Interleukin 5, (IL5) works in the opposite way to that believed

48 by most international experts and that has enormous implications for people

49 receiving transplants.

50 Clara He: Normally the graft will reject within seven to ten days; with

51 Interleukin 5 treatment the graft can be significantly prolonged and when I

52 presented this work in the International Transplantation Society I was awarded

53 Outstanding Young Scientist.

54 Norman Swan: And this has been patented, an issue to which we’ll return. Clara

55 He says her first three years at Liverpool were happy, but then things began to

56 change. She claims that Professor Hall started to become abusive to staff in

57 weekly laboratory meetings.

58 Clara He: Professor Hall saying, you are responsible to deliver the result. If the

59 outcome not match his design or he expected result, then there will be trouble.

60 Norman Swan: And did anybody say anything?

61 Clara He: Oh, Professor Hall have such absolute authority no one say anything.

62 Norman Swan: Now it’s not a surprise to hear of a lab chief with a bad temper, it

63 almost comes with the territory. But Bruce Hall’s behaviour appears to have

64 exceeded what might be considered reasonable.

65 And it wasn’t just in the lab. We have a statutory declaration from a very senior

66 person in the university and Liverpool Hospital, who corroborates the tenor of

67 these allegations.

68 According to Clara and others, the going’s been really rough in the last year or so,

69 as serious questions about data, misappropriation of finances and research paper

70 authorship have arisen.

71 In April last year, Clara He was in the audience at the Transplantation Society of

72 Australia and New Zealand’s Annual Conference. She heard Professor Hall

73 present two experiments, which she and another lab worker Dr Chen claim were

74 never done. Dr Chen is a scientist in Bruce Hall’s lab. He graduated in veterinary

75 science in China and did a PhD in immunology at The Australian National

76 University. Chen has good surgical skills and performs all the animal transplants

77 in the lab.

78 Clara He, as lab manager and also trying to be peacemaker, had helped Dr Chen

79 with his major experiments for Professor Hall, so she knew what was being

80 carried out.

81 Anyway, going back to this conference presentation last year, the effect of these

82 allegedly non-existent experiments was that they provided support for a theory

83 which Professor Hall has been promoting for many years.

84 We have the abstracts of the meeting, we have the lab books in which the

85 experiments would have been recorded had they been performed at Liverpool

86 Hospital, and we have testimony from Chen, who would have carried out the

87 experiments.

88 Now Professor Hall may claim that the experiments were done in the past or

89 somewhere else, but he’s presented this work as though it was performed at

90 Liverpool Hospital, and if it had been done elsewhere, the conditions might have

91 been different and the findings not comparable.

92 Clara He also says that in an experiment that was done, Professor Hall gave the

93 opposite findings from those in the lab books.

94 We’ve had an independent immunologist look at the discrepancies and the best

95 that can be said about this experiment is that it shouldn’t have been quoted from at

96 all, since there were problems with the controls.

97 Most seriously of all though, using his misrepresented animal data, Professor Hall

98 gave an opinion on the actual treatment of people who’ve had a transplant.

99 The members of the Transplantation Society were impressed.

100 [Reading: “TSANZ, July 2001 Newsletter”]

101 In April, the society had yet another successful annual scientific meeting. There

102 was the usual high standard of presentation and the AKF Science Award went to

103 Bruce Hall for his excellent work on CD4 regulatory T-cell tolerance.

104 Norman Swan: Now Dr Chen’s name appears against some of these problematic

105 experiments of the conference. He argues though, that he was not consulted in the

106 presentations preparation and the first thing he knew about it was when he got

107 notified of its acceptance for the TSANZ meeting.

108 Dr Chen: I was too embarrassed to attend that meeting because I was aware of

109 that abstract. I could not stand in front of audience to say something I did not

110 believe.

111 Norman Swan: The situation became even more serious because two things

112 occurred.

113 One, is that a paper which had major problems was submitted to the Journal of

114 Experimental Medicine – one of the world’s leading journals for basic bio medical

115 research.

116 Clara He again.

117 Clara He: He said now is the grant application time, we’ve got to have a paper

118 published as well to impress people. He said that we got to quickly send the paper

119 out and he gave me the draft to read through and I find the result is not what I

120 remembered.

121 Norman Swan: This submitted paper is fascinating. It contains experiments for

122 which there are no records in the Liverpool labs and includes one of the allegedly

123 non-existent experiments Bruce Hall presented at the conference.

124 In one experiment which was done, the paper says eight rats were tested when the

125 lab records only state there were five. Where the three extra rats came from is a

126 mystery. There’s a serial number for every rat and every page in the lab books and

127 there are no gaps. One effect of the extra animals is to make the data look more

128 significant.

129 But that’s not all. Other findings in this paper have exactly the same numbers as

130 results Professor Hall had already published in a paper all the way back in 1985.

131 The coincidence is extraordinary. There’s a table in last year’s submitted paper

132 which you can line up against a similar table published in 1985.

133 [Alternating Female & Male Voice]

134 Bruce Hall and Others 1985:

135 Bruce Hall and Others 2001:

136 Survival of PVG grafts in irradiated DA rats…

137 Rejection of PVG grafts in irradiated DA recipients…

138 Number of cells: 7.5 times ten to the power of seven…

139 Number of cells: 7.5 times ten to the power of seven…

140 Rejection time: Ten days, twelve days, fourteen days two rats, twenty days, twenty

141 four days…

142 Rejection time: Ten days, twelve days, fourteen days two rats, twenty days, twenty

143 four days…

144 Number of cells, two times ten to the power of seven…

145 Number of cells, two times ten to the power of seven…

146 Rejection time, fourteen days, two rats…

147 Rejection time, fourteen days, two rats…

148 Fifteen days two rats, eighteen days and twenty days…

149 Fifteen days two rats, eighteen days and twenty days…

150 Norman Swan: That paper was rejected by the Journal. There’s also a Journal of

151 Immunology paper, which we understand has been accepted for publication,

152 where two lines of data are again almost identical to those published this time in

153 1998 by Bruce Hall.

154 There are no explanatory notes, no references, nothing which qualifies these data

155 in any way.

156 Another serious thing last year involves a grant application to the National Health

157 and Medical Research Council, the NH&MRC. That’s the taxpayer-funded body

158 which pays for most medical research in Australia.

159 NH&MRC grants are difficult to get and the application is complex. You have to

160 argue your case very well; quote data if appropriate and convince the assessors

161 that the people who’ll carry out the work have a good track record. Professor Hall

162 appears to have misrepresented data in the application. According to lab records

163 in our possession, an experiment referred to in the application was performed

164 three times. On a single occasion it gave results which were the ones presented to

165 the NH&MRC. But two repeat experiments failed to replicate those findings.

166 Repeatability is what good scientists look for to ensure their results are real. In

167 this experiment, replication failed but that was not stated in this application, which

168 also included one of the allegedly non-existent experiments.

169 The application goes on to say – and I quote: “This work forms the basis of our

170 ongoing proposal”.

171 In addition, both Professor Hall and his wife Dr Suzanne Hodgkinson’s

172 curriculum vitae appear to be inaccurate.

173 Now, I need to explain some important conventions and rules in scientific

174 publishing. The order in which people’s names appear on a scientific paper is hard

175 won by dint of personal contribution. No name must appear of anyone who has

176 not been significantly involved.

177 The first author is supposed to be the person who’s come up with most of the

178 ideas and done most of the work and it’s downhill from there until the prized last

179 name, who’s often the team leader.

180 It’s scientific misconduct for a person to appear in an authorship line if they

181 haven’t significantly contributed to the work. That’s called gift authorship and is a

182 big no-no.

183 So let’s start with Bruce Hall’s CV.

184 In two papers on the grant application he appears as last author – which, as I said,

185 is one of the pole positions. But when you go to the original papers and look at

186 the real authorship line, Professor Hall is actually second last, probably the least

187 significant position.

188 In his wife’s, Sue Hodgkinson’s CV in the NH&MRC grant application, she said

189 she was supervising two PhD students in her laboratory, when one of them hasn’t

190 and isn’t doing a PhD. She’s a research assistant.

191 And there are also changes in her authorship lines, including one citation on the

192 grant application where six authors on a paper have disappeared leaving only Dr

193 Hodgkinson and one other.

194 These all may well be innocent mistakes, although as you’ll hear soon, authorship

195 problems are a significant issue out at Liverpool.

196 The application clearly convinced the committee, because they awarded Professor

197 Hall around a hundred and thirty thousand dollars a year for three years.

198 Dr He claims that when the grant was being prepared, she only ever saw the

199 section of it to do with her work and didn’t read the whole document until after it

200 had been awarded and she was asked to sign the acceptance form as one of the

201 chief investigators.

202 Clara He: I called NH&MRC to give me copy. Then I examined the item, which

203 is the fraudulent scientific issues included in the grant application. Therefore I

204 wrote a letter to university -

205 Norman Swan: It’s time for you now to meet someone else from Professor Hall’s

206 laboratory. Her name is Hong Ha. She was born in Vietnam, came to Australia as

207 a child and grew up near Liverpool in the suburb of Fairfield.

208 Hong did honours science at university and in 1996, after working as a research

209 assistant in Professor Hall’s lab, enrolled as a PhD student researching nephritis -

210 that’s inflammation of the kidney. Professor Hall was her supervisor. Six years on

211 though, Hong has still not submitted her thesis. Now anyone who’s done a

212 doctorate will be smiling quietly to themselves, because it’s common for people to

213 overrun on their PhD. Universities are littered with unfinished projects, so much

214 so that the government has financial incentives for universities based on

215 completed PhD’s. And there’s probably never been a PhD candidate in history

216 who hasn’t bitched about his or her supervisor – usually for not getting enough

217 attention.

218 But Hong Ha’s reasons go beyond the run of the mill complaints.

219 Hong Ha: It has been very difficult to try and get the work completed. I’ve been

220 asked to do a lot of non-essential work not relevant for my PhD study.

221 Norman Swan: Let’s get specific.

222 Hong Ha: Specifically, there were three experiments that I have done that were

223 not essential for my thesis.

224 Norman Swan: And was Clara involved in asking you to do the work or was it

225 just Bruce Hall?

226 Hong Ha: It was Professor Hall. He’s my supervisor and he’s the person who has

227 asked me to do the work.

228 Norman Swan: How much time did those three experiments take you?

229 Hong Ha: It took me over a year to do that.

230 Norman Swan: People usually do PhD’s on time-limited scholarships. Hong’s

231 came from the Australian Kidney Foundation.

232 The story of Hong’s PhD is one where a reasonable person would come to the

233 conclusion that there’ve been major problems with her supervision.

234 For example, in the Year 2000, Hong’s thesis was supposedly on track. Professor

235 Hall wrote in her Progress Report that Hong’s experimental work was complete

236 and she’d commenced writing up her thesis. But twelve months later he wrote that

237 she’d only finished ninety percent of her experimental work and still had two

238 experiments to go. Hong says those were two of the three extra experiments which

239 were not essential to her thesis.

240 Hong Ha: Ten months before my scholarship ran out, in a lab meeting in front of

241 many other staff, students, Professor Hall asked me to do more IL5 cytokine work

242 and I start to feel very concerned. I asked him whether he’s going to provide me

243 any support once my scholarship is going to finish.

244 Norman Swan: Because this is obviously a critical issue for you: is your PHD

245 income going to run out because you’re doing non-essential experiments. What

246 did he tell you?

247 Hong Ha: All he said was that I was improper in raising the issue in the meeting.

248 Norman Swan: Another important part of a PhD is the number of good papers

249 you get published. This is essential for your future career and is one reason why

250 the list of authors on papers and their order is critical. It’s how people establish

251 themselves and good lab chiefs are generous in this respect. Nobel Laureate Sir

252 Macfarlane Burnet for example, would often leave his name off all together so

253 juniors like Gus Nossal got the credit. This doesn’t seem to have happened with

254 Hong.

255 Going back to 1996 and 1997, there were other experiments that Professor Hall

256 wanted done to support grant applications and in return for carrying them out,

257 Hong was promised authorship on the subsequent papers. The research was on

258 immune messengers, cytokines called Interleukin 4 (IL4) and Interleukin 5, (IL5).

259 Hong Ha: And my name were on both IL4 and IL5 papers up until the time of

260 submission for publication. My name was removed without any explanation why.

261 Norman Swan: Who wrote the paper, you or Professor Hall?

262 Hong Ha: Professor Hall.

263 Norman Swan: And at what point did it change?

264 Hong Ha: With the IL4 paper I’d never seen the final version of it.

265 Norman Swan: With the IL4 paper you discovered that when it was published?

266 Hong Ha: Yes. With the IL5 paper my name and two other people’s were

267 removed.

268 Norman Swan: And was the authorship line otherwise okay on those two papers?

269 Hong Ha: With my manuscript, the one that I did for my PhD, there’s people who

270 never contributed has been added.

271 Norman Swan: Who were they?

272 Hong Ha: They were Dr Suzanne Hodgkinson, Dr Giang Tran, and Nicole Carter.

273 Norman Swan: They were both research assistants in Dr Hodgkinson’s

274 laboratory?

275 Hong Ha: That’s right.

276 Norman Swan: And how do you know they had nothing to do with it?

277 Hong Ha: Because the work was carried out by me.

278 Norman Swan: You were writing this paper presumably, not Dr Hall?

279 Hong Ha: Well, he’s helping me writing the paper.

280 Norman Swan: So were you asked if it was all right if Suzanne Hodgkinson’s

281 name went on? You were the first author, I assume?

282 Hong Ha: Yes, I was the first author.

283 Norman Swan: And were you asked if it was okay if their names went on?

284 Hong Ha: No one asked me that, Professor Hall just put it on.

285 Norman Swan: How do you know it was Professor Hall who put it on?

286 Hong Ha: Well, with Suzanne Hodgkinson’s name he’s just handwritten on it.

287 Norman Swan: And you’ve got a copy of that paper with his handwriting on it?

288 Hong Ha: I have saw -

289 Norman Swan: What did you say when you saw it there on the draft?

290 Hong Ha: I show to a few staff there and they all laugh at it, because it’s

291 something that has happened to our other papers.

292 Norman Swan: And did you complain about it?

293 Hong Ha: No, I didn’t.

294 Norman Swan: Why not?

295 Hong Ha: Because I don’t want to upset my supervisor, because it’s something

296 that I know Professor Hall has deliberately done: same with other papers.

297 Norman Swan: Has it ever happened to you in other circumstances, having Dr

298 Hodgkinson’s name on one of your papers?

299 Hong Ha: Her name was on my other abstract, two other abstracts, as well.

300 Norman Swan: And how did that happen?

301 Hong Ha: Professor Hall just put it on.

302 Norman Swan: At what point?

303 Hong Ha: At the time that he was checking my abstract before I submit for

304 conference attendance.

305 Norman Swan: And again you didn’t say anything?

306 Hong Ha: No, I didn’t say anything.

307 Norman Swan: Was that manuscript accepted for publication?

308 Hong Ha: That manuscript is still with Professor Hall. It has been submitted and

309 there’s some minor modification need to be fixed so they send it back. I did all the

310 final modification so it’s ready for resubmission, but Professor Hall still holding

311 onto it.

312 Norman Swan: Have you asked him what’s happening to it?

313 Hong Ha: I didn’t contact him since I raised my allegation to the university.

314 Norman Swan: Hong Ha. And there’s no suggestion that Giang Tran or Nicole

315 Carter were involved in changing these authorship lines.

316 You’re listening to The Science Show here on ABC Radio National, I’m Norman

317 Swan.

318 Let’s leave Hong’s story for a moment and focus on Dr Suzanne Hodgkinson,

319 Professor Hall’s wife, because it’s interesting to look at a recent pattern in

320 authorship in the lab.

321 There’s been a clutch of papers published in the last year or so, which contain her

322 name in the authorship line. Remember, she works on a rat model of multiple

323 sclerosis. She doesn’t work on kidney disease or transplantation. Yet that’s what

324 these highly technical papers refer to.

325 We found records which track the provenance of one research project linked to

326 one of these papers. These show that Suzanne Hodgkinson’s name does not

327 appear anywhere until the paper’s submitted. Before the year 2000, her papers all

328 related to neurology or autoimmunity.

329 Now it’s fair to say that, since both she and her husband play in the same pond,

330 namely the immune system, there could be cross fertilisation. There could also be

331 sharing of materials. But supply of materials doesn’t get you authorship. It gets

332 you a thank you in the acknowledgements.

333 As I said before, scientific authorship is a hard won honour.

334 Bruce Hall, in a letter written to support his wife over a patent dispute, claims that

335 she deserves credit in transplantation immunology because of her work on some

336 of these immune hormones – these so-called cytokines like Interleukin 4.

337 We’ve checked these assertions and found that the publication history from the

338 lab shows that the work referred to by Professor Hall was actually done by Dr He.

339 Dr Hodgkinson’s papers in her own CV indicate she only came to cytokine work

340 lately.

341 So what’s to be gained by all this?

342 We haven’t been able to interview either Professor Hall or Dr Hodgkinson

343 because they say the University of New South Wales and their lawyers have told

344 them not to speak.

345 All I can tell you is of two issues that were running in the laboratory during this

346 period.

347 One is that it’s been a long time since Dr Hodgkinson has won an NH&MRC

348 grant in her own right and her laboratory seems to have been under-funded. Later

349 we’ll show you evidence that Bruce Hall was subsidising her lab out of his own

350 NH&MRC grants. If Professor Hall were ever to be audited by the NH&MRC it

351 would be easier to get through if he could show his wife had a track record in his

352 field.

353 And there was a rather nasty dispute going on over a patent relating to Clara He’s

354 finding that Interleukin 5 might prevent organ rejection.

355 The argument was over whether Dr Hodgkinson’s name should be on the patent,

356 given she allegedly had not been involved in this research field. This clutch of

357 papers last year with her name on them may have provided her with a history in

358 transplantation immunology.

359 Now, as if all this wasn’t enough, there were major issues with Professor Hall

360 over money.

361 Clara He, who has her own NH&MRC grant, came in one day last year to find her

362 grant account was thousands of dollars short.

363 Clara He: He transferred forty six thousand dollars from my research grant to

364 cover his research assistant Catherine Robinson. In my grant application

365 Catherine Robinson is not involved.

366 Norman Swan: How do you know it went to her and not somebody else?

367 Clara He: Oh, I have the full transaction printout with Professor Hall’s signature

368 on. On the printout at the top, specifically see from when to when Catherine’s

369 salary was deducted.

370 Norman Swan: Clara He’s allegation is that because Suzanne Hodgkinson’s lab

371 wasn’t winning large grants it left a shortfall in funding.

372 Most labs have trouble living within their means because grant money is never

373 enough, even for the work they’ve been funded for. The NH&MRC is notorious

374 for chopping back on budgets that people request, and in Liverpool, there’d be the

375 added difficulty of carrying a good part of another laboratory. We have lab

376 accounts which show that Bruce Hall paid the salary of one of his wife’s research

377 assistants out of his own NH&MRC grant. The assistant’s name is not listed on

378 the grant and she works in multiple sclerosis. In other words, taxpayer’s funds

379 which the NH&MRC had directed towards transplantation research were now

380 being used for other work which hadn’t gone through the same competitive hoops.

381 It’s possible that this person was doing some work for Bruce Hall’s lab, but our

382 understanding is that it was a tiny amount.

383 It perhaps highlights the difficulties faced when husbands and wives work

384 together in what would normally be a fairly ruthless environment where only the

385 best ideas and work survive.

386 It’s common practice in research institutes only to support under-performing labs

387 for a while, but not from unrelated NH&MRC grants. And the tough reality in

388 institutions which want to be world class is that if researchers don’t come good in

389 winning funding, they’re cut free of support within two or three years. That’s a

390 hard thing to do when that person’s your wife.

391 Which brings us back to Hong Ha, who last year was left without an income,

392 running out of time to complete her PhD. She has a young child and needed the

393 money.

394 Hong Ha: After I raised my concern with Professor Hall, from that point it clearly

395 shown to me that I have to start looking for job because my hope is not going to

396 happen.

397 Norman Swan: What was your hope?

398 Hong Ha: To do as much as I could not to upset my supervisor and if I behaved

399 the way that Professor Hall wanted then he might change his attitude and treat me

400 better and he might consider give me a job.

401 Norman Swan: That wasn’t to happen and Hong found work at Westmead

402 Hospital in Sydney’s outer western suburbs. But that didn’t end her connection

403 with Liverpool Hospital and Professor Hall.

404 Hong Ha: When I start my fulltime employment which was in October 2001, I

405 still have to do the work at Liverpool Hospital after hours with the help of my

406 husband.

407 Norman Swan: What work?

408 Hong Ha: The IL5 work.

409 Norman Swan: So the experiments that he asked you to do, you came back after

410 you’d left his employment, you came back to do it unpaid in your spare time?

411 Hong Ha: That was asked when I announced my leave and he said that I’m going

412 to have a lot of problem in getting my thesis complete without his help, it’s going

413 to be very hard, it’s near impossible, and he said but if, if I’m not going to do it,

414 that means I’m not serious with my work, which mean he won’t be putting his

415 effort to help me getting my thesis through.

416 Norman Swan: Were there any witnesses to that conversation?

417 Hong Ha: No.

418 Norman Swan: So he was saying that unless you came back to do these

419 experiments which had nothing to do with your PhD, there would be problems

420 with your PhD?

421 Hong Ha: I needed to show him that I’m serious with my work.

422 Norman Swan: Can you prove that you came back and did the work after hours?

423 Hong Ha: Yes, I have to sign the time book when I enter the animal facility.

424 Norman Swan: How come your husband was involved in this?

425 Hong Ha: I asked him to come and help me because after hours I often feel very

426 tired, plus the work that I have to do at that time was I have to carry the cages

427 from the shelves to the sink and wash it, so there’s a lot of things to do during the

428 night.

429 Norman Swan: What did you do with your child while all this was happening?

430 Hong Ha: I have to leave her with my mother.

431 Norman Swan: Since the middle of last year Bruce Hall’s labs have been in

432 turmoil.

433 There were five areas of concern:

434 Many examples of scientific misconduct, some of which looked like fraud;

435 What seemed to be fraudulent information supplied in a grant application to the

436 National Health and Medical Research Council;

437 Misappropriation of NH&MRC funds;

438 Serious questions around supervision of Hong Ha’s PhD; and,

439 Allegations of bullying and abusive behaviour.

440 It doesn’t come much more major than that and you’d perhaps imagine that once

441 the University of New South Wales was apprised of all this, they’d have gotten on

442 their bikes and sorted it out quick smart.

443 Wrong.

444

445 Why study at the University of New South Wales? At the University of New South

446 Wales a unique relationship between teaching and research is promoted -

447 Norman Swan: One example of problems with how the University of New South

448 Wales has dealt with this matter is over the NH&MRC grant application with the

449 flawed, probably fraudulent information in it.

450 On the 23^rd of November last year, Clara He went to seek the advice of the Pro

451 Vice Chancellor Research, Professor Elspeth McLachlan about her dilemma over

452 being asked to sign the grant acceptance form.

453 Elspeth Mclachlan is a respected researcher in her own right and knows the

454 workings of the NH&MRC backwards. She’s been the chief bureaucrat in charge

455 of research there and was even the NH&MRC’s acting CEO for a while.

456 Clara He: We had a one-hour meeting, roughly. We went through everything. I

457 told her what is fraudulent.

458 Norman Swan: And did you show her the evidence for that?

459 Clara He: I showed her the evidence with copy of the original laboratory notes

460 and with the paper which contains the fraudulent data, with the abstract which is

461 mispresented in the TSANZ meeting and Professor McLachlan’s response, first,

462 oh maybe you can sign yourself out, just say you’re not interested the grant

463 therefore what happening is no longer relevant to you. I said, I feel that’s a

464 principle, I have a responsibility to let the grant body to know, I would like to

465 notify them. And she said, oh, maybe he did this experiment in his wife’s

466 laboratory or maybe he did it some other place overseas. I said, not possible, this

467 is microsurgery work in Liverpool, there’s only one doctor perform this task, no

468 one else who can do it.

469 Norman Swan: Dr Chen?

470 Clara He: Yeah, actually she said something else as well. She said if this data is

471 not relevant to his major theory, maybe it’s not a major problem and we can

472 correct it easily. If you no longer like this project you just tell NH&MRC you

473 withdraw.

474 Norman Swan: You’ve probably got the measure of Clara He by now. She’s not

475 someone to withdraw when set on a course.

476 Elspeth McLachlan has subsequently written to Clara saying that she disagrees

477 with her interpretation of that meeting, but a fair bit of what happens next is

478 supported by letters.

479 Professor McLachlan told Clara that it was a matter for the NH&MRC to

480 investigate, when she should have known that it has no jurisdiction over a

481

482 Clara says she was advised to send her material to the University’s Research

483 Office for them to pass on to the NH&MRC. After a period, Clara discovered the

484 material had actually been sent back to Professor McLachlan, not the NH&MRC.

485 So Clara sent it off to Canberra herself.

486 In January, the National Health & Medical Research Council informed both Clara

487 He and the University of New South Wales that they were freezing the grant funds

488 to Bruce Hall until the allegations had been sorted out by the university.

489 It’s not clear from the NH&MRC letter to the university whether Professor

490 McLachlan had passed on any significant material from Clara, but she had told

491 them that Clara wanted off as Chief Investigator on this study…which was not

492 something Clara had said. Her problem was signing an acceptance form for a

493 grant which was based on questionable information.

494 It is clear though, that the funds were frozen because of Clara’s approach, not the

495 University of New South Wales, which had been in possession of exactly the

496 same information but seems not to have acted with much commitment.

497 The University of New South Wales has refused to be interviewed on these or any

498 matters in relation to The Science Show, so we don’t know what their explanation

499 is.

500 Then in February there are two extraordinary letters from Professor McLachlan to

501 Clara He. One on the 20^th of February this year indicated Professor McLachlan

502 wanted the work to go ahead. She said:

503 “As you have not indicated that you wish to accept your role as Chief

504 Investigator B on NH&MRC Grant 209656, I intend to consult with

505 Professor Hall and advise the NH&MRC of what other arrangements are

506 proposed to permit the work to proceed”.

507 Norman Swan: And then went on to say she was beginning a preliminary

508 investigation into the matters raised in Clara’s letter to the NH&MRC. By this

509 time it’s three months since Clara’s first approach on this issue.

510 Now you should know that while all this is happening, another investigation into

511 Bruce Hall is going on, of which Professor McLachlan would have been aware. It

512 was being conducted by the Dean of Medicine Professor Bruce Dowton, which

513 makes another letter from Professor McLachlan to Clara the very next day,

514 breathtaking.

515 21^st of February 2002. “Dear Dr He, In order to clarify the administration

516 of NH&MRC grant 209656, I require that within seven days you either

517 sign the clearance form for this grant that is held in the research office or

518 confirm with me in writing that, due to the problems that you have with

519 the application and your allegations about Professor Hall’s scientific

520 integrity, you do not wish to be involved with the project. If you have not

521 signed the form by then I will assume that you do not wish to be involved

522 with the project and will have to advise the NH&MRC that you have

523 withdrawn.”

524 Female Voice: Why study at the University of New South Wales?

525 Norman Swan: Well, you might be forgiven for thinking: so much for her

526 preliminary investigation. In mid June after some stormy lab meetings, laboratory

527 staff wrote Professor Hall a letter, which was basically an attempt to sort out

528 dispute resolution, clarify roles and make meetings start on time and run more

529 smoothly. According to Clara He it wasn’t well received by Professor Hall.

530 In September, two months before she found out about the NH&MRC problem,

531 Clara complained to the Dean of the Faculty of Medicine, Professor Dowton.

532 Clara He: The trigger point is Professor Hall have a screaming yell at me in the

533 open public and I wrote to him requesting a consultation with him and he refused.

534 Instead he sent the disciplinary letter to me: oh you didn’t do this and you didn’t

535 do that and then you don’t listen to me and then you go through what is outside

536 institution doing work without telling me – which has never happened. So he had

537 an open fight with me. He told me it is time for you to think, do you want to work

538 here or not. I said, alright I don’t think we go anywhere, I request external help.

539 So I lodged my formal complaint to university, Dean of the Faculty Professor

540 Dowton and General Manager Liverpool Hospital, Raad Richard.

541 Norman Swan: It’s interesting how the two complaints have evolved. Liverpool

542 Hospital, through the South West Sydney Area Health Service wanted to

543 investigate all the issues relating to Professor Hall, but was advised that the

544 university had jurisdiction over allegations of scientific misconduct.

545 So the Area Health Service confined itself to the allegations of bullying and

546 abusive behaviour. The Science Show understands that Professor Hall and Dr

547 Hodgkinson have refused to co-operate because they claim they are university

548 employees.

549 Anyway, the Area Health Service eventually commissioned an independent

550 inquiry and we understand that it’s due any time now.

551 But the University of New South Wales is a different matter.

552 Their story’s unclear. It seems as though it took the university another two months

553 to start an investigation. We’re not sure if it’s a definitive inquiry or a preliminary

554 one. That’s important, because in a preliminary inquiry really all you have to do is

555 decide whether there’s a prima facie case of misconduct to be answered and then

556 do what the hospital did and bring in a respected independent party to conduct an

557 inquiry which everyone’s going to trust.

558 It’s taken me about forty five minutes so far and I’ve probably convinced you that

559 at the very minimum these allegations should be investigated by an independent

560 party, but an independent inquiry is yet to occur and it’s now more than six

561 months since the first formal approach.

562 The situation’s been made even more murky by the New South Wales whistle

563 blower protection legislation, called Protected Disclosure. That’s what Clara

564 relied upon in her initial complaint. It deals with accusations around

565 maladministration, waste of public funds and corruption.

566 Senior Counsel Phil Greenwood has worked with the Independent Commission

567 against Corruption in New South Wales, which is the body which oversees the

568 Act.

569 Phil Greenwood: The idea is to try and provide protection for people who want

570 to make disclosures about misconduct that’s occurred within the public service.

571 The Act provides certain protections for those people and also provides certain

572 offences if they make false disclosures.

573 Norman Swan: And what sort of protection does it confer?

574 Phil Greenwood: Well, protection in relation to confidentiality and also

575 protection in relation to reprisals that might be made against those people.

576 Norman Swan: And that reprisal would take what sort of form: is it defined in

577 the Act?

578 Phil Greenwood: Reprisals include being sacked, being demoted, being treated in

579 a poor way; any reprisal where it’s clear that that came about as a result of the

580 complaint being made.

581 Norman Swan: The reason we can talk about this affair on The Science Show, is

582 that if there’s been no determination within six months of the complaint, then the

583 complainant is free to go to the media. That six months was up in mid March.

584 The Deputy Vice Chancellor of the University of New South Wales, John

585 Ingleson, is the person at the university designated to deal with Protected

586 Disclosure and for practical purposes he’s delegated that authority to others. In the

587 case of the Bruce Hall allegations it went to the Medical Dean Professor Dowton.

588 The complainant’s concern is that Professor Dowtown is Bruce Hall’s boss and any

589 financial repercussions, say with the grant, could adversely affect the Medical

590 School’s budget. So although no one is questioning Bruce Dowton’s integrity

591 there could be a perceived conflict of interest. The university has even

592 acknowledged this but they proceeded anyway.

593 Hong Ha wanted to be covered by Protected Disclosure. Professor Dowton was

594 happy to give it to her, but he was overridden by Deputy Vice Chancellor

595 Ingleson, who said it was his to give and he’d wait to hear what Hong said before

596 deciding. A catch twenty-two which had the effect of intimidating Hong, but both

597 Hong and the university are almost certainly wrong in their interpretation of the

598 Act.

599 Phil Greenwood again:

600 Phil Greenwood: No, it’s not a matter for them. The Act prescribes what is a

601 protected disclosure and what is not. If the disclosure satisfies the requirements of

602 the Act then it is protected and should be treated that by way the university.

603 Norman Swan: So it’s not within any one person’s gift?

604 Phil Greenwood: No. Ultimately it’s a matter for the court to determine if there’s

605 a dispute about it. But clearly an organisation receiving a complaint which

606 appears to fulfil the requirements of the Act, ought to be treated as a protected

607 disclosure.

608 Norman Swan: There may at first sight have been two breaches of protected

609 disclosure while the investigation has been going on. Both relate to Professor Hall

610 trying to obtain the original lab books around the allegations.

611 Dr Chen claims that at one point Professor Hall accused him of stealing the lab

612 books and insisted that Chen stay in his office while he called the police and the

613 hospital security people. The Dean, Professor Dowton, who was at Liverpool

614 Hospital that day intervened. In fact, the lab books were in safe keeping in the

615 hospital.

616 And the reason Hong says she stopped going to the lab to do the experiments was

617 that she received the following fax from Professor Hall on the 31^st of January,

618 two days after she had made a confidential complaint to Professor Dowton’s

619 inquiry.

620 “Dear Hong, It has come to my attention that your laboratory books are

621 missing from the fourth floor of the Health Services Building. This is in

622 direct contravention to my written instructions that you are welcome to

623 have copies but that the originals must not be removed from the

624 laboratory. They are the property of the laboratory, they are to be returned

625 immediately or they will be reported as stolen. A copy of this letter has

626 gone to the Dean. Yours Sincerely, Professor B. Hall.”

627 Norman Swan: Hong Ha’s lab books were actually with the Dean, Professor

628 Dowton, to assist him in his investigation. In an ironical footnote to this story, in

629 February, the following e-mail was sent out to personnel at the University of New

630 South Wales.

631 “Dear colleague, the university is initiating an important new project to

632 assess the effectiveness of our fraud awareness and code of conduct

633 compliance. We have engaged Andersen to assist in this project. The

634 Andersen team will be facilitating a university wide survey to obtain

635 information about our culture as well as the effectiveness of our fraud

636 awareness and code of conduct compliance program. Yours sincerely John

637 Niland, Vice Chancellor.”

638 Norman Swan: It’s not clear who their alternative to Andersen Consulting is

639 going to be. All this is happening at the same time as the University of New

640 South Wales is being accused of mishandling serious allegations in relation to

641 their Education Testing Centre. The New South Wales Ombudsman has

642 reportedly criticised the University for not protecting a whistleblower over

643 concerns about nepotism. Professor Ingleson, who is Acting Vice-Chancellor at

644 the moment, faxed me a letter yesterday reiterating that the University and staff

645 involved are prevented legitimately from responding to my questions. To be fair,

646 in a University of 34,000 students there are going to be some unhappy people. If

647 you run a faculty there are probably lots of people complaining and you’ve got to

648 sort out the nutters from the genuine ones.

649 But this is substantially different from the usual gripes and interpersonal conflicts.

650 It’s stark in its comprehensiveness with misconduct so extreme it can only be

651 called fraud.

652 The misuse of NH&MRC funds is particularly serious. Some of the allegations in

653 isolation could be explained as sloppiness or an innocent error, but the total

654 picture is astounding and fits almost exactly with the National Health and Medical

655 research Council’s own definition of misconduct.

656 Publication of multiple papers based on the same sets or subsets of data is not

657 acceptable, except where there is full cross-referencing within the papers.

658 Deliberate inclusion of inaccurate or misleading information relating to research

659 activity and curriculum vitae, grant applications, job applications or public

660 statements or the failure to provide relevant information is a form of research

661 misconduct. Misconduct or scientific misconduct is taken here to mean

662 fabrication, falsification, plagiarism or other practices that seriously deviate from

663 those commonly accepted within the scientific community for proposing,

664 conducting or reporting research. It includes the misleading ascription of

665 authorship, including the listing of authors without their permission, attributing

666 work to others who have not in fact contributed to the research and the lack of

667 appropriate acknowledgment of work primarily produced by research assistant,

668 trainee or associate.

669 Norman Swan: With Hong Ha, despite all this fuss, the university has still not

670 arranged a change of supervisor for her. Stories like this should not have to be

671 broadcast on national radio; it’s sad and painful for everyone involved that it’s

672 come to this. The University of New South Wales needs to take a cold hard look

673 at itself and its processes. Whistleblowers are usually angry, disillusioned and

674 somewhat paranoid by the time they’ve decided to take their complaints to people

675 in power. The slowness of the response, the perception of conflict of interest and

676 the confused handling of the NH&MRC complaint have added to the emotion

677 and, frankly, turned it into a mess which could have been minimised. The aim of

678 institutions should be to keep scientific fraud off the front page – but not by

679 burying it.

680 This has been The Science Show. It was researched by Katrina Bolton and

681 produced by Katrina Bolton and Brigitte Seega with technical production by

682 Janita Palmer. I’m Norman Swan and young Williams, he’ll be back next week.

683
******************

Citations

Hall v Swan [2009] NSWCA 371

Most Recent Citation

Cases Citing This Decision

1

Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288

Cases Cited

15

Statutory Material Cited

2

Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107

Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213

Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107

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CITATION:	Hall v Swan & Anor [2009] NSWCA 371
HEARING DATE(S):	8 October 2009
JUDGMENT DATE:	26 November 2009
JUDGMENT OF:	Tobias JA at 1; Bergin CJ in Eq at 2; Sackville AJA at 125
DECISION:	1. Appeal allowed. 2. Set aside the orders of Rothman J made on 10 February 2009 and in their place order that verdicts be entered that the broadcasts conveyed each of imputations (a) to (g), (i), (k) and (l) and that each of those imputations is defamatory. 3. Appeal in relation to imputations (h) and (j) dismissed. 4. The respondents are to pay the appellant’s costs of the s 7A trial and of the appeal.
CATCHWORDS:	DEFAMATION - JURY VERDICTS - Whether verdicts in trial pursuant to s 7A of the Defamation Act 1974 (repealed) were unreasonable - Whether counsel's address misled the jury - Whether Court should grant relief entering verdicts in appellant's favour when jury has not considered the question of whether imputations are defamatory
LEGISLATION CITED:	Defamation Act 1974 (NSW) (repealed) Supreme Court Act 1970 (NSW)
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Beran v John Fairfax Publications Pty Limited [2004] NSWCA 107 Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 Bromley v Tonkin (1987) 11 NSWLR 211 Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 David Syme & Co v Canavan (1918) 25 CLR 234 General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 Gorman v Barber (2004) 61 NSWLR 543 Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Ward v James [1966] 1 QB 273
PARTIES:	Bruce Hall (Appellant) Norman Swan (First Respondent) Australian Broadcasting Corporation (Second Respondent)
FILE NUMBER(S):	CA 40060 of 2009
COUNSEL:	R G McHugh SC/M Richardson (Appellant) B W Walker SC/A T S Dawson (Respondents)
SOLICITORS:	Banki Haddock Fiora (Appellant) Australian Broadcasting Corporation Legal Services (Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	20074 of 2008
LOWER COURT JUDICIAL OFFICER:	Rothman J

1	First broadcast – 13 April 2002
2
3	This week on The Science Show, Norman Swan presents a major investigation
4	into scientific and financial misconduct at the University of New South Wales.
5	[Music]
6	Norman Swan: Hello, Norman Swan here sitting in the chair on The
7	Science Show this week instead of Robyn Williams, because today I have a
8	special and disturbing feature for you.
9	[Music]
10	Hong Ha: I want my story to be heard by the public because what I have been
11	through I don’t want my children or anyone else’s children to go through. I want
12	them to admit the faults that they have done: they exploited me for free labour.
13	This problem has been going for too long. I want it to be stopped.
14	Norman Swan: This is a story about powerful scientists with international
15	reputations who’ve committed scientific misconduct so severe, it could be
16	considered fraud; as well as mismanaging public funds where the institution, the
17	university in which they work, has been slow to protect staff who’ve raised their
18	concerns. In fact, at times the university seems to have actively favoured the
19	strong over the weak. It’s fifteen years since the exposure of Dr. William
20	McBride’s scientific fraud, what you’re about to hear suggests that safeguards
21	against scientific misconduct are still inadequate.
22	[Music].
23
24	Why study at the University of New South Wales? The University of New South
25	Wales is one of Australia’s major research institutions, attracting top national
26	competitive research grants and has extensive international research links.
27	Norman Swan: The University of New South Wales is one of the largest
28	universities in the country with a highly respected medical faculty. A few years
29	ago, following Sydney’s sprawl to the south west, the university set up a clinical
30	school in that area centred on Liverpool Hospital. They even attracted Bruce Hall,
31	a well-known Australian immunologist, back from Stanford University in
32	California. Bruce Hall is a kidney specialist who researches how the immune
33	system deals with transplanted organs. The university made him Foundation
34	Professor of Medicine at Liverpool where he set up his own lab. With him came
35	his wife, Dr Suzanne Hodgkinson, a neurologist who studies rats with brain
36	inflammation similar to Multiple Sclerosis. Bruce Hall hired Dr Clara He, a
37	medical graduate from Shanghai with an Australian PhD and post-doctoral
38	experience in immunology.
39	Clara He: Professor Hall was asking me if I was interested in his new senior
40	position in Liverpool Hospital. I feel that could be new opportunity for me, so I
41	can design my program. I respect him; I believe we can collaborate and make
42	good program.
43	Norman Swan: Dr He has her own research group at Liverpool and is also the
44	laboratory manager. She’s introduced molecular biology into the lab and her small
45	team has cloned and produced an impressive number of immune molecules, which
46	has allowed her to make an important discovery – namely, that an immune
47	messenger called Interleukin 5, (IL5) works in the opposite way to that believed
48	by most international experts and that has enormous implications for people
49	receiving transplants.
50	Clara He: Normally the graft will reject within seven to ten days; with
51	Interleukin 5 treatment the graft can be significantly prolonged and when I
52	presented this work in the International Transplantation Society I was awarded
53	Outstanding Young Scientist.
54	Norman Swan: And this has been patented, an issue to which we’ll return. Clara
55	He says her first three years at Liverpool were happy, but then things began to
56	change. She claims that Professor Hall started to become abusive to staff in
57	weekly laboratory meetings.
58	Clara He: Professor Hall saying, you are responsible to deliver the result. If the
59	outcome not match his design or he expected result, then there will be trouble.
60	Norman Swan: And did anybody say anything?
61	Clara He: Oh, Professor Hall have such absolute authority no one say anything.
62	Norman Swan: Now it’s not a surprise to hear of a lab chief with a bad temper, it
63	almost comes with the territory. But Bruce Hall’s behaviour appears to have
64	exceeded what might be considered reasonable.
65	And it wasn’t just in the lab. We have a statutory declaration from a very senior
66	person in the university and Liverpool Hospital, who corroborates the tenor of
67	these allegations.

68	According to Clara and others, the going’s been really rough in the last year or so,
69	as serious questions about data, misappropriation of finances and research paper
70	authorship have arisen.
71	In April last year, Clara He was in the audience at the Transplantation Society of
72	Australia and New Zealand’s Annual Conference. She heard Professor Hall
73	present two experiments, which she and another lab worker Dr Chen claim were
74	never done. Dr Chen is a scientist in Bruce Hall’s lab. He graduated in veterinary
75	science in China and did a PhD in immunology at The Australian National
76	University. Chen has good surgical skills and performs all the animal transplants
77	in the lab.
78	Clara He, as lab manager and also trying to be peacemaker, had helped Dr Chen
79	with his major experiments for Professor Hall, so she knew what was being
80	carried out.
81	Anyway, going back to this conference presentation last year, the effect of these
82	allegedly non-existent experiments was that they provided support for a theory
83	which Professor Hall has been promoting for many years.
84	We have the abstracts of the meeting, we have the lab books in which the
85	experiments would have been recorded had they been performed at Liverpool
86	Hospital, and we have testimony from Chen, who would have carried out the
87	experiments.
88	Now Professor Hall may claim that the experiments were done in the past or
89	somewhere else, but he’s presented this work as though it was performed at

482	Clara says she was advised to send her material to the University’s Research
483	Office for them to pass on to the NH&MRC. After a period, Clara discovered the
484	material had actually been sent back to Professor McLachlan, not the NH&MRC.
485	So Clara sent it off to Canberra herself.
486	In January, the National Health & Medical Research Council informed both Clara
487	He and the University of New South Wales that they were freezing the grant funds
488	to Bruce Hall until the allegations had been sorted out by the university.
489	It’s not clear from the NH&MRC letter to the university whether Professor
490	McLachlan had passed on any significant material from Clara, but she had told
491	them that Clara wanted off as Chief Investigator on this study…which was not
492	something Clara had said. Her problem was signing an acceptance form for a
493	grant which was based on questionable information.
494	It is clear though, that the funds were frozen because of Clara’s approach, not the
495	University of New South Wales, which had been in possession of exactly the
496	same information but seems not to have acted with much commitment.
497	The University of New South Wales has refused to be interviewed on these or any
498	matters in relation to The Science Show, so we don’t know what their explanation
499	is.
500	Then in February there are two extraordinary letters from Professor McLachlan to
501	Clara He. One on the 20^th of February this year indicated Professor McLachlan
502	wanted the work to go ahead. She said:
503	“As you have not indicated that you wish to accept your role as Chief
504	Investigator B on NH&MRC Grant 209656, I intend to consult with
505	Professor Hall and advise the NH&MRC of what other arrangements are
506	proposed to permit the work to proceed”.
507	Norman Swan: And then went on to say she was beginning a preliminary
508	investigation into the matters raised in Clara’s letter to the NH&MRC. By this
509	time it’s three months since Clara’s first approach on this issue.
510	Now you should know that while all this is happening, another investigation into
511	Bruce Hall is going on, of which Professor McLachlan would have been aware. It
512	was being conducted by the Dean of Medicine Professor Bruce Dowton, which
513	makes another letter from Professor McLachlan to Clara the very next day,
514	breathtaking.
515	21^st of February 2002. “Dear Dr He, In order to clarify the administration
516	of NH&MRC grant 209656, I require that within seven days you either
517	sign the clearance form for this grant that is held in the research office or
518	confirm with me in writing that, due to the problems that you have with
519	the application and your allegations about Professor Hall’s scientific
520	integrity, you do not wish to be involved with the project. If you have not
521	signed the form by then I will assume that you do not wish to be involved
522	with the project and will have to advise the NH&MRC that you have
523	withdrawn.”
524	Female Voice: Why study at the University of New South Wales?
525	Norman Swan: Well, you might be forgiven for thinking: so much for her
526	preliminary investigation. In mid June after some stormy lab meetings, laboratory
527	staff wrote Professor Hall a letter, which was basically an attempt to sort out
528	dispute resolution, clarify roles and make meetings start on time and run more
529	smoothly. According to Clara He it wasn’t well received by Professor Hall.
530	In September, two months before she found out about the NH&MRC problem,
531	Clara complained to the Dean of the Faculty of Medicine, Professor Dowton.
532	Clara He: The trigger point is Professor Hall have a screaming yell at me in the
533	open public and I wrote to him requesting a consultation with him and he refused.
534	Instead he sent the disciplinary letter to me: oh you didn’t do this and you didn’t
535	do that and then you don’t listen to me and then you go through what is outside
536	institution doing work without telling me – which has never happened. So he had
537	an open fight with me. He told me it is time for you to think, do you want to work
538	here or not. I said, alright I don’t think we go anywhere, I request external help.
539	So I lodged my formal complaint to university, Dean of the Faculty Professor
540	Dowton and General Manager Liverpool Hospital, Raad Richard.
541	Norman Swan: It’s interesting how the two complaints have evolved. Liverpool
542	Hospital, through the South West Sydney Area Health Service wanted to
543	investigate all the issues relating to Professor Hall, but was advised that the
544	university had jurisdiction over allegations of scientific misconduct.
545	So the Area Health Service confined itself to the allegations of bullying and
546	abusive behaviour. The Science Show understands that Professor Hall and Dr
547	Hodgkinson have refused to co-operate because they claim they are university
548	employees.
549	Anyway, the Area Health Service eventually commissioned an independent
550	inquiry and we understand that it’s due any time now.
551	But the University of New South Wales is a different matter.
552	Their story’s unclear. It seems as though it took the university another two months
553	to start an investigation. We’re not sure if it’s a definitive inquiry or a preliminary
554	one. That’s important, because in a preliminary inquiry really all you have to do is
555	decide whether there’s a prima facie case of misconduct to be answered and then
556	do what the hospital did and bring in a respected independent party to conduct an
557	inquiry which everyone’s going to trust.
558	It’s taken me about forty five minutes so far and I’ve probably convinced you that
559	at the very minimum these allegations should be investigated by an independent
560	party, but an independent inquiry is yet to occur and it’s now more than six
561	months since the first formal approach.
562	The situation’s been made even more murky by the New South Wales whistle
563	blower protection legislation, called Protected Disclosure. That’s what Clara
564	relied upon in her initial complaint. It deals with accusations around
565	maladministration, waste of public funds and corruption.
566	Senior Counsel Phil Greenwood has worked with the Independent Commission
567	against Corruption in New South Wales, which is the body which oversees the
568	Act.
569	Phil Greenwood: The idea is to try and provide protection for people who want
570	to make disclosures about misconduct that’s occurred within the public service.
571	The Act provides certain protections for those people and also provides certain
572	offences if they make false disclosures.
573	Norman Swan: And what sort of protection does it confer?
574	Phil Greenwood: Well, protection in relation to confidentiality and also
575	protection in relation to reprisals that might be made against those people.
576	Norman Swan: And that reprisal would take what sort of form: is it defined in
577	the Act?
578	Phil Greenwood: Reprisals include being sacked, being demoted, being treated in
579	a poor way; any reprisal where it’s clear that that came about as a result of the
580	complaint being made.
581	Norman Swan: The reason we can talk about this affair on The Science Show, is
582	that if there’s been no determination within six months of the complaint, then the
583	complainant is free to go to the media. That six months was up in mid March.
584	The Deputy Vice Chancellor of the University of New South Wales, John
585	Ingleson, is the person at the university designated to deal with Protected
586	Disclosure and for practical purposes he’s delegated that authority to others. In the
587	case of the Bruce Hall allegations it went to the Medical Dean Professor Dowton.
588	The complainant’s concern is that Professor Dowtown is Bruce Hall’s boss and any
589	financial repercussions, say with the grant, could adversely affect the Medical
590	School’s budget. So although no one is questioning Bruce Dowton’s integrity
591	there could be a perceived conflict of interest. The university has even
592	acknowledged this but they proceeded anyway.
593	Hong Ha wanted to be covered by Protected Disclosure. Professor Dowton was
594	happy to give it to her, but he was overridden by Deputy Vice Chancellor
595	Ingleson, who said it was his to give and he’d wait to hear what Hong said before
596	deciding. A catch twenty-two which had the effect of intimidating Hong, but both
597	Hong and the university are almost certainly wrong in their interpretation of the
598	Act.
599	Phil Greenwood again:
600	Phil Greenwood: No, it’s not a matter for them. The Act prescribes what is a
601	protected disclosure and what is not. If the disclosure satisfies the requirements of
602	the Act then it is protected and should be treated that by way the university.
603	Norman Swan: So it’s not within any one person’s gift?
604	Phil Greenwood: No. Ultimately it’s a matter for the court to determine if there’s
605	a dispute about it. But clearly an organisation receiving a complaint which
606	appears to fulfil the requirements of the Act, ought to be treated as a protected
607	disclosure.
608	Norman Swan: There may at first sight have been two breaches of protected
609	disclosure while the investigation has been going on. Both relate to Professor Hall
610	trying to obtain the original lab books around the allegations.
611	Dr Chen claims that at one point Professor Hall accused him of stealing the lab
612	books and insisted that Chen stay in his office while he called the police and the
613	hospital security people. The Dean, Professor Dowton, who was at Liverpool
614	Hospital that day intervened. In fact, the lab books were in safe keeping in the
615	hospital.
616	And the reason Hong says she stopped going to the lab to do the experiments was
617	that she received the following fax from Professor Hall on the 31^st of January,
618	two days after she had made a confidential complaint to Professor Dowton’s
619	inquiry.
620	“Dear Hong, It has come to my attention that your laboratory books are
621	missing from the fourth floor of the Health Services Building. This is in
622	direct contravention to my written instructions that you are welcome to
623	have copies but that the originals must not be removed from the
624	laboratory. They are the property of the laboratory, they are to be returned
625	immediately or they will be reported as stolen. A copy of this letter has
626	gone to the Dean. Yours Sincerely, Professor B. Hall.”
627	Norman Swan: Hong Ha’s lab books were actually with the Dean, Professor
628	Dowton, to assist him in his investigation. In an ironical footnote to this story, in
629	February, the following e-mail was sent out to personnel at the University of New
630	South Wales.
631	“Dear colleague, the university is initiating an important new project to
632	assess the effectiveness of our fraud awareness and code of conduct
633	compliance. We have engaged Andersen to assist in this project. The
634	Andersen team will be facilitating a university wide survey to obtain
635	information about our culture as well as the effectiveness of our fraud
636	awareness and code of conduct compliance program. Yours sincerely John
637	Niland, Vice Chancellor.”
638	Norman Swan: It’s not clear who their alternative to Andersen Consulting is
639	going to be. All this is happening at the same time as the University of New
640	South Wales is being accused of mishandling serious allegations in relation to
641	their Education Testing Centre. The New South Wales Ombudsman has
642	reportedly criticised the University for not protecting a whistleblower over
643	concerns about nepotism. Professor Ingleson, who is Acting Vice-Chancellor at
644	the moment, faxed me a letter yesterday reiterating that the University and staff
645	involved are prevented legitimately from responding to my questions. To be fair,
646	in a University of 34,000 students there are going to be some unhappy people. If
647	you run a faculty there are probably lots of people complaining and you’ve got to
648	sort out the nutters from the genuine ones.
649	But this is substantially different from the usual gripes and interpersonal conflicts.
650	It’s stark in its comprehensiveness with misconduct so extreme it can only be
651	called fraud.
652	The misuse of NH&MRC funds is particularly serious. Some of the allegations in
653	isolation could be explained as sloppiness or an innocent error, but the total
654	picture is astounding and fits almost exactly with the National Health and Medical
655	research Council’s own definition of misconduct.
656	Publication of multiple papers based on the same sets or subsets of data is not
657	acceptable, except where there is full cross-referencing within the papers.
658	Deliberate inclusion of inaccurate or misleading information relating to research
659	activity and curriculum vitae, grant applications, job applications or public
660	statements or the failure to provide relevant information is a form of research
661	misconduct. Misconduct or scientific misconduct is taken here to mean
662	fabrication, falsification, plagiarism or other practices that seriously deviate from
663	those commonly accepted within the scientific community for proposing,
664	conducting or reporting research. It includes the misleading ascription of
665	authorship, including the listing of authors without their permission, attributing
666	work to others who have not in fact contributed to the research and the lack of
667	appropriate acknowledgment of work primarily produced by research assistant,
668	trainee or associate.
669	Norman Swan: With Hong Ha, despite all this fuss, the university has still not
670	arranged a change of supervisor for her. Stories like this should not have to be
671	broadcast on national radio; it’s sad and painful for everyone involved that it’s
672	come to this. The University of New South Wales needs to take a cold hard look
673	at itself and its processes. Whistleblowers are usually angry, disillusioned and
674	somewhat paranoid by the time they’ve decided to take their complaints to people
675	in power. The slowness of the response, the perception of conflict of interest and
676	the confused handling of the NH&MRC complaint have added to the emotion
677	and, frankly, turned it into a mess which could have been minimised. The aim of
678	institutions should be to keep scientific fraud off the front page – but not by
679	burying it.
680	This has been The Science Show. It was researched by Katrina Bolton and
681	produced by Katrina Bolton and Brigitte Seega with technical production by
682	Janita Palmer. I’m Norman Swan and young Williams, he’ll be back next week.
683	******************