Hall v The University of New South Wales

[2003] NSWSC 539

CITATION:	Hall v The University of New South Wales & Anor [2003] NSWSC 539
HEARING DATE(S):	11 June 2003
JUDGMENT DATE:	11 June 2003
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	McClellan J
DECISION:	Interim order continued
CATCHWORDS:	EQUITY - remedies - interlocutory injunctions - application to continue interim injunction prohibiting publication of report of investigative committee set up by university - validity of report challenged in proceedings - test to be applied in determining applications for interlocutory relief - jurisdiction of court to intervene in affairs of private bodies - whether plaintiff has arguable case - HELD: interim order continued
CASES CITED:	Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 Bateman's Bay Local Aboriginal Land Council & Anor v The Aboriginal Community Benefit Fund Pty Limited & Anor [1998] 194 CLR 247
PARTIES :	Bruce Hall (Pltf) The University of New South Wales (Def) Australian Broadcasting Authority (Appl)
FILE NUMBER(S):	SC 30017/03
COUNSEL:	I D Temby QC/G A Laughton (Pltf) G O'L Reynolds SC/Dr A S Bell/D Meltz (Def) J C Sheahan SC/R Francois (Appl on notice of motion)
SOLICITORS:	David Brown (Pltf) Sparke Helmore (Def) Stephen Collins (Appl)

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

McCLELLAN J

WEDNESDAY 11 JUNE 2003

30017/03 HALL v UNIVERSITY OF NEW SOUTH WALES

JUDGMENT – On application to continue interim injunction see p 94

1 HIS HONOUR: The trial in this matter commenced yesterday. Pursuant to an indication which I gave to the parties last week, the first matter raised in the trial was whether an interim order initially made by Justice Levine prohibiting the publication of the Brennan Report should be dissolved.

2 That Report resulted from an Inquiry established by the University of New South Wales to investigate allegations against the plaintiff and to advise whether he has been guilty of scientific misconduct or scientific fraud.

3 When the matter commenced yesterday morning consideration was given to the state of the pleadings and, in particular, the Second Further Amended Statement of Claim, from which the plaintiff sought to found his action. Junior counsel for the plaintiff addressed the issue of whether or not the injunction should continue and set forward three bases which it was submitted would found jurisdiction in the court to continue Justice Levine's interim order. The first matter advanced was a claim in contract, the second a claim that the publication would amount to a threat to defame the plaintiff. The third basis is founded upon the legal consequence which is said to follow from the plaintiff's claim that the Brennan Report fails as a matter of law and should be declared by the court to be a nullity.

4 As these matters had not been pleaded I granted the plaintiff leave to bring forward a Further Amended Statement of Claim overnight. That was done and consideration was given this morning to whether the plaintiff should be granted leave to file the further amended statement of claim. That leave was granted with the consequence that paragraphs 14 to 18 inclusive and paragraphs 67 to 77 inclusive are now pleaded. The plaintiff has not sought to advance a claim in contract, nor a claim based upon a threatened defamation, and has confined his pleading to the third basis advanced in the submissions yesterday.

5 The Brennan Report was prepared at the request of the Vice-Chancellor of the university and after extensive investigation of various allegations, interviews conducted with relevant persons, including the plaintiff, and consultation with various eminent persons. The inquiry proceeded pursuant to terms of reference which were provided to it. The terms of reference are comprehensive and detailed and deal with the objective of the inquiry, the allegations made against the plaintiff and the standards to be applied by the inquiry. Express consideration is also given to the task of the inquiry, its procedures, adherence to its terms of reference and, in particular, express consideration is given to the amendment of the terms of reference. The matter of publication of the report of the inquiry is also addressed.

6 In section A of the terms of reference the following is indicated:

"Against this background the University recognises the desirability of sharing with the community generally the results of and insights from the Inquiry, including issues of appropriate process, and will do so to the extent it can by respecting the interests of individuals concerned."

7 In section E3 further reference is made to publication where the following is indicated:

"In view of the objectives which the University has for the Inquiry, the Report of the Inquiry will be considered by the University Council and, in its absolute discretion, it may place the findings of the Inquiry into the public domain. In exercising that discretion, the Council will have regard to the requirements of fairness and the desirability of protecting the privacy, reputation, or confidentiality of any individual."

8 With respect to the Terms of Reference section D2 under the umbrella of the “Procedures of the Inquiry” provides the following:

"The Inquiry may at any time recommend amendment to any part of section C, D or E of the terms of reference for the purpose of furthering or enhancing the achievement of the objectives of the Inquiry. Amendments must be approved in writing by the Selection Panel established by the Vice-Chancellor to facilitate the Inquiry, comprising Sir Gustav Nossal, the Chancellor and the Vice-Chancellor."

9 Section D of the Terms of Reference provides expressly for the Inquiry to observe the obligations of procedural fairness. Section D1 provides as follows:

“The Inquiry may, in performing its tasks, inform itself in any manner and adopt processes it thinks appropriate, having regard to: (a) the objectives of the Inquiry set out under section A, above, and (b) the requirements of procedural fairness appropriate to the tasks of the Inquiry.
The University expects that the requirements of procedural fairness applying to the Inquiry mean that it will:
(a) inform Professor Hall of these terms of reference including a statement of allegations against him which it is investigating or proposes to investigate;
(b) give Professor Hall adequate notice of, and opportunity to respond to, evidence which the Inquiry has collected and which is or which may be adverse to his interests, before the issuing of the final Report of the Inquiry;
(c) conduct its proceedings in private in order to protect the privacy, reputation or confidential information of any person. Proceedings where such matters are not likely to be put at risk may be conducted publicly if to do so would assist the Inquiry.
(d) not be bound by the rules of evidence;
(e) hear such oral submissions or receive such written submissions from the legal representatives of any person as the Inquiry considers to be likely to assist it in the discharge of its functions; and
(f) provide to any person who has made a relevant assertion to the Inquiry an opportunity to respond to any material denying or qualifying that assertion.”

10 In the Third Further Amended Statement of Claim the plaintiff alleges that, although consideration was given to the amendment of the terms of reference of the inquiry, those terms of reference were not validly amended as required by clause B2 of the terms of reference. Evidence has been tendered in relation to that matter from which it is submitted that the relevant approval was not provided. As I understand the submission, it is to the effect that although Sir Gustav Nossal was consulted in relation to matters concerning the terms of reference, the necessary approval of the amendments proposed was not forthcoming. It is pleaded that as a result of the failure to effectively amend the terms of reference the inquiry has proceeded beyond the authority vested in it by the university, and accordingly the Report is invalid. It is submitted that if that submission is correct the consequence will be a declaration and orders which provide that the Report has no legal effect.

11 The Third Further Amended Statement of Claim under the heading "The Injunction Should Continue" pleads with particularity the proposal of the university through its council to publish the Report to limited persons. It is pleaded that the decision of the council was made without observing the requirements of procedural fairness which applied to that decision, with the consequence that the decision should be set aside and appropriate declaratory relief made. Accordingly, as I understand the pleading, there are two matters which it is submitted would entitle the court to intervene to restrain the publication of the Report. The first matter is the failure of the inquiry to report within the terms of reference validly provided to it. The second, a separate and distinct matter, is the alleged failure of the council to lawfully exercise its power to determine to publish the Report. It is submitted that if the Report is invalid equity would intervene to restrain its publication having regard to the damage to the plaintiff which may be occasioned by its publication.

12 The matter falls to be determined as an application for interim relief. The test which the court is to apply has been the subject of repeated consideration by courts over many years. Recently the matter has been again considered by the High Court in the Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] 208 CLR 199 where Justice Callinan said at para 246:

"Because the proceedings are interlocutory the ‘court does not undertake a preliminary trial and give or withhold interlocutory relief upon a foreshadowing as to the ultimate result of the case.’ Just what measure of success an applicant for an interlocutory injunction must establish is not completely settled. In my opinion the correct test is whether the applicant can demonstrate either a reasonably arguable case on both the facts and the law or that there is a serious question to be tried. These tests, it seems to me, are to the same effect."

13 His Honour went on to indicate that in that case there was no issue as to the balance of convenience. I observe that the same must be correct of the present case. His Honour referenced the discussion in the 3rd edition of Meagher, Gummow and Lehane’s Equity Documents and Remedies for his observation that the approach to the granting or withholding of interlocutory relief was not completely settled. In the 4th edition of that text the learned authors say:

"What the plaintiff must prove is that he has a serious, not a speculative, case which has a real possibility of ultimate success and that he has property or other interests which might be jeopardised if no interlocutory relief were granted. Then it becomes a matter of seeing if in all the circumstances of the case the court should nonetheless exercise its discretion by declining to issue an interlocutory injunction." (paragraph 21-350).

14 Counsel have researched the question which is raised in this matter. Those researches have revealed little of significant assistance, however, discussion of the principles which might apply when an injunction is sought in relation to a matter which plainly involves the application of public law was adverted to in the joint judgment in Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 at 257. In The Australian Broadcasting Corporation v Lenah Game Meats the question which arises in this case did not fall for consideration, although the court drew attention again to the principles which need to be borne in mind when an application for an interlocutory injunction is made.

15 In the present case, as I have indicated, the plaintiff does not advance his claim either in contract or in relation to a threatened defamation. The pleading and submissions are confined to an attack upon the report and the decision of the council in the way I have indicated. It must be accepted that the court has jurisdiction to entertain an application in relation to the legal characteristics of some decisions made by the university in the course of its administration. For many years the courts have intervened on some occasions in relation to the affairs of private bodies. Of course the courts have also for many years entertained applications in relation to the activities of public authorities and bodies which operate pursuant to statute.

16 In my opinion the case which the plaintiff seeks to make in relation to the validity of the Report is one which for the purposes of this application should be considered arguable. I am also of the opinion that, that case being arguable, there is an arguable case that the court's equitable jurisdiction can be invoked to protect the interests of the plaintiff so that the court may grant an injunction to restrain the publication, which has been prepared without authority, as the case of the plaintiff seeks to argue. I am also satisfied that the decision of the council to publish may be attacked in these proceedings, and for relevant purposes it is arguable that the plaintiff's interests in confining the publication so that it is only made after a valid decision of the council is sufficient to found an order for interim relief.

17 It is plain that the publication of the report has the capacity to cause serious injury to the plaintiff, notwithstanding the public interest in a knowledge of the contents of the report and the processes which the university has undertaken since the issues were ventilated in the media. I do not overlook those matters in my decision. However, I am satisfied that the balance of convenience falls in favour of the plaintiff so that the interim order should be continued for a further, but confined period, of time.

18 Accordingly, subject to any further application which may be made, the appropriate order in my opinion is that the interim injunction continue until the judgment in this matter is delivered.

19 I will continue the interim order of Justice Levine insofar as it restrains publication of the Report, but not otherwise, until further order of the court.

20 As a consequence of my decision in relation to the interim application it follows that the orders which I made yesterday in relation to the publication of the report during the course of the trial should continue for the duration of the trial and until judgment.

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Last Modified: 07/28/2003