Hall v the University of New South Wales - [2003] NSWSC 542

NEW SOUTH WALES SUPREME COURT

CITATION: Hall v The University of New South Wales & Anor [2003] NSWSC 542

CURRENT JURISDICTION: Common Law Division
Administrative Law List

FILE NUMBER(S): 30017/03

HEARING DATE{S): 3 June 2003

JUDGMENT DATE: 03/06/2003

PARTIES:
Bruce Hall (Pltf)
The University of New South Wales (Def)
Australian Broadcasting Corporation (Appl)

JUDGMENT OF: McClellan J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
G A Laughton (Pltf)
G O'L Reynolds SC/Dr A S Bell (Def)
J C Sheahan SC/R Francois (Appl on notice of motion)

SOLICITORS:
David Brown (Pltf)
Sparke Helmore (Def)
Stephen Collins (Appl)

CATCHWORDS:
EQUITY
remedies
interlocutory injunctions
application to vary existing order suppressing publication of proceedings and report of investigative committee
validity of report challenged in proceedings
application by non-party media corporation
whether publication of report would cause irremediable damage to plaintiff and defeat his claim for relief
no submission that publication would prejudice proceedings
previous publicity given to report
fundamental principle that proceedings in court should be open
HELD: order suppressing proceedings lifted
injunction restraining publication of report continued

ACTS CITED:

DECISION:
1. Order suppressing proceedings lifted
2. Injunction restraining publication of report continued

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
McCLELLAN J
TUESDAY 3 JUNE 2003
30017/03HALL v UNIVERSITY OF NEW SOUTH WALES

JUDGMENT on application to vary suppression orders

HIS HONOUR: The Court has before it proceedings brought by Professor Hall in which he seeks to challenge the validity of a report commissioned by the University of New South Wales in relation to his research activities.
My present understanding, sufficient for the purposes of this application, is that a controversy arose in relation to the Professor's research work in 2001 and 2002 which inter alia was the subject of discussion in a radio broadcast by the Australian Broadcasting Corporation in a program entitled "The Science Show".
As a result of that controversy the University implemented certain internal investigative procedures. In furtherance of that investigation Sir Gerard Brennan, Professor Chalmers, Professor Weatherall and Professor Whitworth were commissioned to investigate and prepare a report. The report was required to be furnished to the Vice-Chancellor.
As a result of the allegations, Professor Hall was also the subject of action taken by the University in relation to his employment. He commenced proceedings in the Industrial Relations Commission which, as I understand the position, have resulted in a stay of any action by the University. Those proceedings are presently adjourned pending the consideration of the report which I shall refer to as the Brennan report.
The Brennan Report was provided to the Vice-Chancellor on 31 January 2003. Professor Hall maintained various concerns in relation to it and commenced proceedings in this Court on 25 February 2003. The relief sought is now incorporated into a Further Amended Statement of Claim. Professor Hall seeks declarations and injunctions. In particular he seeks a declaration that by reason of the failure of the University to provide him with procedural fairness and, in the alternative, there being a lack of power to establish the inquiry, the report is null and void. He seeks an order setting aside the report and restraining its publication.
As I understand the position, the Brennan report was commissioned to assist the University administration in dealing with the controversy. Further processes will be necessary, and depending upon the approach taken by the Vice Chancellor, a further inquiry may take place.
The matter first came before Levine J on an interlocutory application in which Professor Hall sought to restrain the publication of the report. His Honour considered the matter on 25 February 2003 when the plaintiff came before him ex parte. His Honour decided to grant the interlocutory relief for:
"a very short period on the basis, in addition to the matters of concern that I have mentioned, that it seems to interfere with no-one's convenience for there to be a temporary restraint."
His Honour proceeded to make an order:
"restraining the defendant by itself, its servants and agents from releasing or publishing the report dated 31 January 2003 of its findings in relation to allegations against the plaintiff Professor Bruce Hall, until further order."
His Honour further said:
"I further direct until further order that my reasons for judgment and the statements made by counsel in its application for orders, not be published otherwise than to the defendant and its legal advisers."
The matter next came before Newman AJ. His Honour considered whether or not the proceedings before the Court on that occasion should be suppressed. His Honour said:
"At the outset I should repeat an order I made during the hearing of the application suppressing the publication of the details of these proceedings. This order I made pursuant to section 80 of the Supreme Court Act and in fact is a continuation of orders made in earlier interlocutory applications involving the parties."
I assume that in referring to earlier interlocutory applications and orders made in them, his Honour was referring to the orders made by Levine J on 25 February 2003. As I have indicated those orders were confined to an order restraining the University from releasing or publishing the report, and prohibiting the publication of his Honour's reasons for judgment and the statements made by counsel in the application.
As will be apparent, because of the manner in which the original application came before the Court, and the approach taken by Newman AJ to the matter, the issue of whether the proceedings should be suppressed does not appear to have been examined in any detail. Rather, the assumption has apparently been made that because a short period of prohibition would cause no difficulty, suppression orders should remain in place.
Between the original application and the further consideration of the matter by Newman AJ, the matter came before Whealy J. His Honour, as I understand it, without any argument, said:
"I make an order suppressing the proceedings and all details of the proceedings before me this morning save and except for the orders I have made which may be published."
The Australian Broadcasting Commission has sought leave to appear in these proceedings for the purpose of seeking orders provided in its Notice of Motion. I am satisfied that it is appropriate for the Corporation to be granted that leave, and accordingly I have granted leave for the motion to be filed and the matter has been argued.
The form of the orders sought by the Corporation in its motion seek to vary the existing suppression orders so that counsel for the Corporation and the Corporation's solicitors may be made aware of the relief sought and issues in the proceedings before the Court. The relief which the Corporation seeks is accordingly confined. However, senior counsel for the Corporation has stated that, once it has been apprised of the information which it has sought, a further substantive application may be made.
In the course of argument it has become plain that the orders presently in place are not clear, and accordingly consideration has been given to the fundamental question of whether the orders made by Levine J on 25 February 2003 should be continued. It will be remembered that that order prohibited the releasing or publishing of the report.
Counsel for the plaintiff submits that the Court should not in any way diminish the impact of the orders presently in place. However, he submits that those orders should be varied to prohibit the publication of the report, to suppress all material relating to the proceedings, including the course of argument in this Court. He submits, in relation to the trial of the matter which is fixed to commence next Tuesday, 10 June, that the court should make orders which preclude any member of the public from being present during the hearing.
The submission is founded upon the proposition that to allow the report to be published at this time, and to allow members of the public to be informed as to the nature of the proceedings, may have the consequence that irremediable damage will be suffered by the plaintiff. For this purpose I assume that the Brennan report contains findings which are damaging to the plaintiff's professional and possibly his personal reputation.
It is accepted by the plaintiff that at some stage, irrespective of the outcome of these proceedings, the report and the Court processes will have to be made public. If the plaintiff succeeds, it is submitted that the damage which might flow from the publication of the report will be diminished by the contemporaneous publication of the findings of the Court which may disclose that the report was prepared in denial of procedural fairness.
The plaintiff also accepts that if he is unsuccessful in the proceedings the report would then be published and the court's findings would also have the effect of confirming that the report was prepared without any breach of a relevant obligation to the plaintiff.
It is important that no submission is made that the publication of the report at this stage of the proceedings could prejudice the trial in this Court. Plainly, that is so. There is no suggestion that any witness might be diverted from providing truthful evidence, nor that any other person material to the proceedings would be diverted from a proper course by its immediate publication.
It is submitted that if there is a further inquiry ordered by the Vice-Chancellor, the publication of the report may divert that inquiry from making proper findings. However, it seems to me that submission can have no substance in circumstances where it is accepted that by the end of these proceedings the report must be published in any event.
The principles upon which the Court should approach the suppression of its proceedings are well understood. The fundamental principle is that courts must provide for a public hearing of matters before it. This principle will only be varied in exceptional circumstances, confined primarily to occasions when to allow publication of the Court's processes may have the consequence that the trial itself may be impaired.
These principles are provided, inter alia, in Dickason v Dickason (1913) 17 CLR 50 and more recently restated in John Fairfax and Son Limited v The Police Tribunal of New South Wales (1986) 5 NSWLR 465. (See also Raybos v Jones (1986) 2 NSWLR 47).
There can be no question that there is a significant public interest in the present proceedings. Professor Hall is employed by the University of New South Wales, and also holds a position with the South West Sydney Area Health Service. His research is supported by public funds and involves areas of medicine in which he has established a reputation as a researcher. Undoubtedly a report which contains findings adverse to his reputation as a researcher and a person may diminish the view which his peers have of him and which other members of the general public might entertain.
However, it must be borne in mind that the controversy has already been the subject of a radio broadcast. That broadcast has led to the plaintiff's wife, Dr Suzanne Hodgkinson, bringing proceedings in the District Court for defamation. As I understand it she is expressly referred to in the broadcast, and is a researcher, like her husband. The consequence is that although the findings in the Brennan Report have not been published, the nature of the controversy is now public knowledge.
The plaintiff has read an affidavit in this motion to which he has attached correspondence between the University and Professor Hall. That correspondence also provides detailed information as to the nature of the allegations which have been made against Professor Hall. As a consequence, the nature of the factual controversy in relation to his research activities is revealed. Whether further matters would be revealed upon a detailed reading of the Brennan report I am presently unable to say.
In my opinion, having regard to both the fundamental principle that proceedings in this Court should be open, and also to the fact that the nature of the present controversy is already public knowledge, the order made by Levine J insofar as it prohibits the publication of the proceedings in this Court should be brought to an end.
It will be necessary for the order to be carefully drafted having regard to my present view in relation to the immediate publication of the report itself.
Volume 1 of the report has been tendered in these proceedings. Accordingly the publication of the proceedings and the proceedings which have gone before today's motion would have the consequence that the report itself would become public knowledge.
The plaintiff in its Further Amended Statement of Claim seeks an order that the University be restrained from publishing the report. Accordingly, if as a result of any order I make today, the report becomes public, the inevitable consequence would be to defeat the plaintiff's claim in relation to that aspect of the matter.
Because this matter was brought on in relation to the confined application by the Australian Broadcasting Corporation, I am of the opinion that I should not make orders today which have the effect of finally defeating that aspect of the plaintiff's claim for relief.
There may be nothing further which can be said in relation to that aspect of the matter but in my opinion the plaintiff should be given the opportunity to place any further submissions before me in the early part of the trial rather than have that matter determined on this interlocutory application.
Accordingly, I am of the opinion that it is appropriate for me to make orders which vary the orders of Levine J, or the order of the other judges who have previously addressed interlocutory matters in the proceedings, so that apart from the publication of volume 1 of the Brennan report which is also Exhibit A in this motion, all other aspects of the proceedings should be capable of publication in the ordinary way.
As far as the report itself is concerned, the injunction which restrains the University from publishing it and the suppression of its publication as a result of these proceedings should continue until further order. However I will review that matter as the first substantive issue in these proceedings when they commence on Tuesday.
I am satisfied that I should not make any special order in relation to the affidavit of the plaintiff sworn 3 June 2003. In my opinion the present justice of the situation is adequately provided for by the order which I contemplate in relation to the Brennan report. To go further and confine public knowledge of the evidence which was considered in the course of today's motion would, in my opinion, be inappropriate having regard to the principles to which I have referred.

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LAST UPDATED: 24/07/2003