Hall v University of New South Wales - [2003] NSWSC 669

No judgment structure available for this case.

CITATION: Hall v The University of New South Wales [2003] NSWSC 669

HEARING DATE(S): 10 - 12 June 2003; 30 July 2003

JUDGMENT DATE:
15 August 2003

JURISDICTION:
Common Law Divison
Administrative Law List

JUDGMENT OF: McClellan J

DECISION: Summons dismissed

CATCHWORDS: ADMINISTRATIVE LAW - procedural fairness - Inquiry established by University to investigate allegations of scientific misconduct and/or scientific fraud against professor - whether University amenable to judicial review - whether Inquiry bound to afford procedural fairness to professor - standards of procedural fairness - whether evidence informing an inquiry's conclusions must be provided to affected person - whether Inquiry discharged obligations of procedural fairness

LEGISLATION CITED: Supreme Court Act 1970 s 69
University of New South Wales Act 1989

CASES CITED: Ainsworth v Criminal Justice Commission (1991) 175 CLR 564
Andrews v Mitchell [1905] AC 78
Annetts v McCann (1990) 170 CLR 96),
Ansell v Wells (1982) 43 ALR 41
Ansett v Minister for Aviation (1987) 72 ALR 469
Attorney General (NSW) ex. rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd & Ors [1977] 2 NSWLR 955
Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1
Banks v Transport Regulations Board (Vic) (1968) 119 CLR 222
Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49
Blayney Abattoirs Pty Ltd v State of New South Wales (1996) 86 IR 358
Blizzard v O'Sullivan [1994] 1 Qd R 112
Chiropractors Association of Australia (SA) Ltd v Workcover Corporation of Australia [1999] SASC 120
Clark v The University of Lincolnshire and Humberside [2000] 1 WLR 1988
Claro v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342
Cole v Cunningham (1983) 49 ALR 423
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Dixon v Commonwealth (1981) 55 FLR 34 at 41
Edgar v Meade (1916) 23 CLR 29
FAI Insurance v Winneke
Forbes v NSW Trotting Club (1978) 143 CLR 242
Hall v University of New South Wales (unreported) 25 February 2003
Hopkins v Smethwick Board of Health (1890) 24 QBD 712
Kalil v Bray [1971] 1 NSWLR 256
Kanda v The Government of Malaya [1962] AC 322
Keller v Drainage Tribunal & Montague (1980) VR 449
Kelson v Forward (1995) 60 FLR 39
Kioa v West (1985) 159 CLR 550,
Lamshed v Lamshed (1963) 109 CLR 440
McLelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759
Minister for Health v Thomson (1985) 8 FCR 213
Minister for Local Environment v South Sydney City Council (2002) 55 NSWLR 381
Minister of State for Immigration & Ethnic affairs v Teoh (1995) 173 CLR
NCSC v News Corp Ltd (1984) 156 CLR 296
Neat v AWB 198 CLR 179 at 195
O'Rourke v Miller (1985) 156 CLR 342
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Powick v Commissioner of Corrective Services (1996) 87 A Crim R 565
R v Criminal Injuries Compensation Board; ex parte Lain [1967] 2 QB 864
R v Hull Prison Board of Visitors; ex parte St Germain (No. 2) [1979] 1 WLR 1401
R v Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators Association & Anor (1972) 2 QB 299
R v Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513
R v MacKellar (1977) 137 CLR 461
R v Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] 1 QB 815
R v Small Claims Tribunal; ex parte Cameron [1976] VR 427 at 432
R v Solicitors' Disciplinary Tribunal; ex parte L (a solicitor) [1988] VR 757
R v War Pensions Entitlement Appeal Tribunal ex parte Bott (1933) 50 CLR 228
Re Eaves [1939] 4 All ER 260
Re Hamilton [1981] AC 1038
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal and Another; ex parte Aala (2000) 204 CLR 82
Rigby v Connol (1880) 14 Ch D 482
Roads Corp v Dacakis [1995] VR 508
Roos v Director of Public Prosecutions (1994) 34 NSWLR 254
Rose v Bridges (1997) 79 FCR 378
Salemi v MacKellar [No. 2] (1977) 137 CLR 396
Sanders v Snell (1998) 196 CLR 329
Scurr v Brisbane City Council (1973) 133 CLR 242
Sinnathamby v Minister (1986) 66 ALR 502
Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1
Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147
Whitehead v Griffith University [2003] 1 Qd R 220

PARTIES :
Bruce Hall (Pltf)
The University of New South Wales (Def)

FILE NUMBER(S): SC 30017/03

COUNSEL: I Temby QC/G A Laughton (Pltf)
G O'L Reynolds SC/Dr A S Bell/D Meltz (Def)

SOLICITORS: David Brown (Pltf)
Sparke Helmore (Def)

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

McCLELLAN J

FRIDAY 15 AUGUST 2003

30017/03 HALL v UNIVERSITY OF NEW SOUTH WALES

JUDGMENT
HIS HONOUR:

Introduction

1 Professor Bruce Hall is a Professor of Medicine at the University of New South Wales, where he established and is the head of a research laboratory within the Faculty of Medicine. The research laboratory is attached to Liverpool Hospital. Professor Hall is employed pursuant to the University of New South Wales (Academic Staff) Enterprise Agreement 2000.

2 Professor Hall has some teaching and extensive clinical, examination and administrative duties associated with his office. He has held a series of other positions associated with medical research including the Presidency of the Australian Society of Medical Research and of the Transplant Society of Australia and New Zealand (TSANZ).

3 Professor Hall is a nephrologist (kidney specialist) and his research has focussed on tolerance in transplantation and autoimmune disease in the kidney. He is both highly qualified and recognised throughout the world for his work in his chosen speciality.

4 In mid 1991 the University of New South Wales attracted him to the Faculty of Medicine from Stanford University in California, where he had built a reputation in transplantation immunology. His research work has continued at the Liverpool laboratory. In particular the laboratory was concerned to discover the function of lymphocytes derived from the thymus (T Cells) both in mediating allograft rejection and in transferring tolerance to donor allografts in irradiated rats.

5 To pursue this research, it was necessary to study the effect of T Cells in vivo as well as in vitro. In September 1995, Dr Juchuan Chen, a scientist with a PhD from the Australian National University and an experienced microsurgeon, was engaged to perform heart transplants on rats in the laboratory’s animal house.

6 The experiments involved a variety of tools, including the irradiation of host rats, the harvesting and injection of T cells, the treatment of rats in vivo or T cells in vitro with monoclonal antibodies (“mAb”) and the use of immunological mediators (“cytokines”). Monoclonal antibodies affect molecules on the surface of a cell and may thereby alter the function of the cell. They are valuable tools for separating T cell populations possessing different characteristics. Cytokines may stimulate the production of some T cells and, when combined with certain T cells, may mediate a particular reaction.

7 In February 1996, Dr Clara He, a scientist with a PhD from the University of New South Wales with some expertise in cloning cytokines, was engaged as laboratory manager. Professor Hall also had a collaborative arrangement with Dr Suzanne Hodgkinson, his wife, whose laboratory adjoined his and whose field of research is autoimmunity, particularly in relation to neurological disease. She had cloned some cytokines and on occasions the cytokines produced in her laboratory were made available for experiments in Professor Hall’s laboratory.

8 Personal relationships within Professor Hall’s laboratory deteriorated to the point of open antipathy and recriminations after a laboratory meeting on 19 June 2001. Subsequently Dr He and Dr Chen made allegations against Professor Hall to the University. Ms Hong Ha, at first a laboratory assistant and later a PhD student, also made allegations relating to the failure of Professor Hall to include her as an author in papers to which, in her view, she had made a substantial contribution.

9 The University received these complaints between September 2001 and January 2002.

10 Dr Mark Penny, who had been a PhD student supervised by Professor Hall, was also known to be a complainant. He originally declined to make specific allegations to the University, as he was concerned that they may not be treated as a protected disclosure. In October 2002, after the Inquiry had commenced its work and while it was conducting interviews with the various witnesses, Dr Penny made specific allegations to the University, alleging misconduct in the attribution of the authorship of papers.

11 Professor Dowton, Dean of the Faculty of Medicine, conducted a lengthy inquiry into the complaints made by Dr He, Dr Chen and Ms Ha. He recorded those complaints and set out his findings in a report to Professor Niland, then Vice-Chancellor of the University.

12 Some of the allegations made by Dr He were also reported on by Professor Elspeth McLachlan, Pro Vice-Chancellor (Research) at the University.

13 Professors Dowton and McLachlan indicated that there were some issues on which they were unable to report as they lacked the expertise to deal with some of the matters of scientific fraud and/or scientific misconduct.

14 Professor John Ingleson, Deputy Vice-Chancellor, reviewed both these reports. Professor Ingleson’s “Report on Disclosures Involving Professor Bruce Hall” was issued to the Vice-Chancellor on 15 April 2002. The Vice-Chancellor issued a Response dated 17 April 2002.

15 Around this time, Dr Norman Swan, of the Australian Broadcasting Corporation, ventilated the complaints of Dr He, Dr Chen and Ms Ha on two editions of “The Science Show”. The complainants alleged that Professor Hall had misrepresented the results of experiments, presented experiments which had not been done, submitted papers which included unacknowledged data which had already been published elsewhere up to seventeen years previously and submitted a grant application containing fraudulent data and inaccurate curricula vitae. The first broadcast on Radio National was on 13 April 2002 and the second on 20 April 2002.

16 On 17 April 2002, in his Response to Professor Ingleson’s report, Professor Niland announced the decision to establish an External Independent Inquiry. The Council of the University supported this decision. On 11 June 2002, the Vice-Chancellor issued the Terms of Reference of the Inquiry. The Inquiry was, in essence, to advise whether Professor Hall had been guilty of scientific misconduct or scientific fraud as defined in guidelines agreed between the National Health and Medical Research Council and the Australian Vice-Chancellors’ Committee (the NHMRC/AVCC Guidelines).

17 The NH&MRC/AVCC Guidelines define “Research Misconduct” as follows:

“‘Misconduct’ or ‘Scientific Misconduct’ is taken here to mean fabrication, falsification, plagiarism, or other practices that seriously deviate from those that are 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 a research student/trainee or associate. It does not include honest errors or honest differences in interpretation or judgments of data.

Examples of research misconduct include but are not limited to the following:

Misappropriation

§ plagiarise, which shall be understood to mean the presentation of the documented words or ideas of another as his or her own, without attribution appropriate for the medium of presentation;

§ make use of any information in breach of any duty of confidentiality associated with the review of any manuscript or grant application; or

§ intentionally omit reference to the relevant published work of others for the purpose of inferring personal discovery of new information.

Interference

Misrepresentation

§ state or present a material or significant falsehood; or

§ omit a fact so that what is stated or presented as a whole states or presents a material or significant falsehood.

18 The members of the Inquiry comprised Sir Gerard Brennan AC, KBE, who was Chair, Professor John Chalmers AC of the University of Sydney, Professor Sir David Weatherall of Oxford University, and Professor Judith Whitworth AC of the Australian National University.

19 The Inquiry was asked to report to the Vice-Chancellor and the University Council.

Nature of the Inquiry and Terms of Reference

20 The Terms of Reference for the Inquiry are extensive. They are Annexure A to these reasons. The objective of the Inquiry was said, inter alia, to be:

“To determine whether the complaints against Professor Hall in relation to the conduct of his scientific research at Liverpool Hospital reveal scientific misconduct and/or scientific fraud on his part. In making this determination the Inquiry will apply the relevant standards for scientific research conduct which apply, these being the NH & MRC/AVCC Statement and Guidelines on Research Practice.”

21 The complaints made in relation to the conduct of Professor Hall extended beyond matters relevant to whether or not he had committed scientific misconduct or scientific fraud. However, the Inquiry was only asked to investigate matters relevant to Professor Hall’s conduct as a scientist. One of the first tasks it undertook was the refinement of the complaints so that investigations were confined to scientific conduct.

22 The Terms of Reference referred to the allegations made against Professor Hall. There were twenty-four allegations which were formally made the subject of the investigation. They are referred to as Allegations in the Report. They are detailed and are included as Annexure B to these reasons.

23 The procedures to be followed by the Inquiry in investigating the allegations were provided by section D of the Terms of Reference. The Inquiry was authorised:

“To 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 of the Terms of Reference and (b) the requirements of procedural fairness appropriate to the tasks of the Inquiry”.

24 The Terms of Reference went on to provide the University’s expectation in relation to the requirements of procedural fairness. They were as follows:

“(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 representative 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.”

25 The Terms of Reference contemplated the publication of the Inquiry Report. In section A it is stated:

“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 while respecting the interests of individuals concerned.”

26 It is plain that the allegations made against Professor Hall were serious and, if found to be justified, would damage his professional standing and personal reputation. Publication of adverse findings may also impact upon his future capacity for research and may, depending on any subsequent decision of the University Council, impact upon his future employment.

The Inquiry Process

27 Although the Inquiry had been provided with Terms of Reference, it was required to identify with precision the Allegations which it would investigate. This would not only provide a structure for the Inquiry’s task but also allow Professor Hall to understand the matters to which he should respond. Furthermore, the original complaints went beyond matters of scientific misconduct or scientific fraud and it was necessary to determine which complaints fell within the Terms of Reference.

28 The Report set out the process which was undertaken by the Inquiry to formulate the Allegations which it investigated. That process was described in the Report as follows:

“The Inquiry extracted from the Report made by Professor Dowton those allegations which appeared to raise questions of scientific misconduct or scientific fraud. The allegations which were attributed to each of the three complainants were sent to the relevant complainant. The Inquiry sent Professor Hall the list of all such allegations. The complainants and Professor Hall were asked for their comments on the following questions:

Professor Hall agreed that the list of allegations fell within the Terms of Reference…”

29 The original complaints (summarised in paragraph 2 of the original Terms of Reference) were those made to the University in late 2001. They were identified as falling into five categories:

30 Some of these complaints obviously fell outside the Terms of Reference.

31 On 18-20 September 2002, those Inquiry Members based in Australia met to review the documents provided by the University and the complainants in relation to each of the complaints. Professor Weatherall joined the meeting by telephone as he did at subsequent meetings of the Inquiry Members. The Inquiry prepared a list of relevant documents and a copy of the list was sent to Professor Hall on 25 September 2002.

32 The Inquiry wrote to Professor Hall on 27 September 2002 enclosing the proposed final list of Allegations (other than the allegations of Dr Penny, which had not yet been received by the Inquiry). The Inquiry asked Professor Hall for any comments he wished to make and any documents he wished to provide relevant to the Allegations. He was also asked for his response to specific questions formulated by the Inquiry, and to provide certain specified documents.

33 Professor Hall’s response, provided on 15 October 2002, consisted of a written explanation and appendices in relation to each Allegation contained in a set of 21 folders. The written responses to each Allegation, without appendices, are reproduced in Volume 2 of the Report and his responses are referred to in the body of the Report.

34 The Inquiry wrote to each of the complainants on 30 September 2002 enclosing the final list of Allegations (again, without the allegations of Dr Penny), and asked for any further comments they wished to make or any additional documents they wished to provide relevant to the allegations. Each complainant was also asked for a response to some specific questions formulated by the Inquiry. Each complainant responded to this request prior to interview.

35 The process of formulation of the Allegations following this correspondence was described by the Inquiry (Report Volume 1 p184):

“It was essential to complete the formulation of the allegations for investigation in time to allow Professor Hall an appropriate time to respond. The process involved preparation of allegations by the Inquiry, review by the complainants and subsequent recasting by the Inquiry so that they could be put to Professor Hall. The Inquiry was concerned to put to Professor Hall only matters which could lead to findings of scientific misconduct, and accordingly chose not to include some matters, which , in the view which it was able to form at that time, related more to questions of scientific judgment than to any likelihood of scientific misconduct.

The allegations considered in this Report are those which the Inquiry distilled from the allegations made by Dr He, Dr Chen and Ms Ha and those which were made to the University by Dr Mark Penny and referred by the University to the Inquiry for investigation. There were some further allegations made by the three first-named complainants which were not included by the Inquiry in the Schedule which it submitted to the University as the schedule of complaints for investigation.” (Report Volume 1 p184)”

36 Having formulated the final Allegations, the Inquiry commenced investigations. The Inquiry set out the process it followed in the investigation of each Allegation, in Chapters 2-8 of Volume 1 of the Report.

37 The Inquiry Members met on 14, 15 and 16 October 2002 for the purpose of reviewing the documentary material available to it prior to interviews. Professor Weatherall arrived in Sydney on 21 October and met with the other Members of the Inquiry and the Secretariat Co-ordinator that evening. Interviews commenced the next morning. Interviews were undertaken with the complainants, other witnesses including laboratory staff, and Professor Hall. Interviews took place on 22, 23 and 24 October. During and after the interviews, new questions relating to the Allegations emerged, some arising from Professor Hall’s responses. These new questions were then put to Professor Hall both at interview and in writing and he responded. Professor Hall was not allowed to cross-examine the complainants or other witnesses.

38 Subsequently, the Australian Inquiry Members met on 4, 14, 15, 20, 21, 26 and 27 November and 17 and 18 December 2002 and on 15, 16 and 23 January 2003 and from time to time by telephone. Sir Gerard Brennan and Professor Chalmers also met on 9 January 2003. Contact was maintained by email and telephone with Professor Weatherall.

39 The Inquiry included in its Report the following documents which chronicle the evidence considered and some of the processes followed by the Inquiry:

· copies of the correspondence which refers to issues relating to the Allegations and which passed between the Inquiry on the one hand and Professor Hall and the complainants on the other;

· reports of experts consulted by the Inquiry and the Dowton Report;

· salient parts of Professor Hall’s written responses to Professor Dowton; and

· the scientific papers and documents mentioned in the Allegations.

40 A commercial firm of reporters was engaged to record and transcribe the interviews. Copies of the transcripts of interviews with the complainants were provided to Professor Hall.

41 The structure of the Report is such that the terms of each Allegation are set out in the relevant chapter, followed by an identification of the core issues that were investigated, a discussion of the evidence, and a statement of the Inquiry’s Conclusions and formal Findings related to the elements of the Allegation.

42 The Findings are confined to the relevant elements of the formal Allegations. The Conclusions are in the nature of recommendations and comments on matters not strictly within the terms of the Allegations. Adverse findings which are not expressed in “Findings”, but only in ”Conclusions”, were put to Professor Hall, either at interview or in writing, for comment, before the Inquiry reached its final decision.

Use to be made of the Report

43 The Inquiry was directed to prepare a written report of the matters investigated and determined upon. Under the Terms of Reference, the Inquiry was expected to provide the University with a report on the progress of the Inquiry by the end of September 2002, and, if possible, a final Report by the end of November 2002. In the event, the final Report was handed to the Vice-Chancellor on 31 January 2003.

44 In section E.3 under the heading “Publication”, the Terms of Reference provide:

“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.”

45 There is no explicit statement in the Terms of Reference pertaining to any other use to which the Report would be put. The Inquiry emphasised that it made no suggestions on that issue:

“It has not been for the Inquiry to consider what response the University should make to the conclusions and findings expressed in this Report. Nothing in this Report should be taken to indicate any view on that subject, except to say that it is obvious that the adverse conclusions and findings are of varying significance.”

46 In the “Response by the Vice-Chancellor to the Report on Disclosures involving Professor Bruce Hall” dated 17 April 2002 (Exhibit E Volume 1 p280 at 286) the Vice-Chancellor said:

“Any report received by the Vice-Chancellor from the External Independent Inquiry and/or from the Deputy Vice-Chancellor (Education and Enterprise) will be dealt with in accordance with clause 14 of the UNSW (Academic Staff) Enterprise Agreement 2000.”

47 Clause 14 3.1 of the Agreement provides for the Vice-Chancellor to consider the report and to take disciplinary action. The clause in full states:

“14 3.1 Misconduct Investigation Committee

(a) The Committee shall report its findings to the Vice-Chancellor and the academic within 15 working days from the date on which the matter was referred to it by the Deputy Vice-Chancellor.

If the Committee does not complete its deliberations within the timeframe referred to above, it must make application to the Deputy Vice-Chancellor for an extension of time, putting forward the grounds for the extension, and outlining the timeframe in which it will reach a conclusion.

In the event that the Deputy Vice-Chancellor declines the request for an extension of time, the Committee will have 7 working days to conclude its deliberations and deliver to the Vice Chancellor a report based on its findings to that date.

(b) The terms of reference of the Committee shall be to report to the Vice-Chancellor on:

(c) If, having considered the Committee's report, the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct he/she shall immediately advise the academic in writing, and may, by agreement with the academic, publish the advice in an appropriate manner.

(d) The Vice-Chancellor, having taken due account of the Committee's report and its findings related to the alleged misconduct or serious misconduct, may take disciplinary action.

(e) This clause in no way constrains the University from carrying out other investigations relating to the consequences of conduct of an academic or former academic when required in the public interest, eg inquiring into the truth of research results.”

Interim restraint on publication of the Report

48 On 13 February 2003, in a Special Meeting of the University Council, it was resolved not to publish the Report. During that meeting, the Council considered a submission from Professor Hall on the reasons why the Report should not be published. On 24 February 2003, however, the University Council changed its position and resolved to publish the Report to a number of persons and organisations.

49 On 25 February 2003, following an ex parte application, Levine J restrained publication of the Report (Hall v University of New South Wales (unreported) 25 February 2003, Levine J). An order was also made prohibiting the publication of the proceedings or any evidence which had been received in the course of the proceedings.

50 Levine J noted in his reasons that the publication of the Report to the selected bodies would be of great significance. His Honour said:

“It would seem fairly self-evident to me that if, for example, the report in its present form was to be published to the National Health and Medical Research Council, two consequences would follow: that any grant for funding being used by the plaintiff for the present research purposes would be lost and would be terminated with consequential adverse effects on the employed people [in the laboratory] and, secondly, the course of medical research in the area will be adversely affected as well.“

51 His Honour went on to say that the adverse effects of publication of the Report to the nominated bodies would be likely to cause harm of a kind for which damages would not be an appropriate remedy.

52 When the matter came before me on 3 June 2003 the Australian Broadcasting Corporation sought leave to intervene and sought the following relief:

“1. The Australian Broadcasting Corporation be granted leave to appear in the proceedings for the purpose of seeking the orders in this motion.

2. The court orders made on or about 14 March 2003 be set aside or varied insofar as they prevent disclosure of the terms of any orders made in these proceedings and the relief sought and issues in these proceedings to the applicant’s counsel and solicitors.”

53 I granted the Corporation leave to be heard.

54 Following argument I determined that the order made restraining the publication of these proceedings should come to an end. However, I continued until further order the order which made the Report of the Inquiry a confidential exhibit in the proceedings. When the matter came on for trial the question of the publication of the Inquiry Report was again raised by the Australian Broadcasting Corporation. Although the Corporation did not consent to the order which I made it was accepted as appropriate by both the plaintiff and defendant. The terms of that order were as follows:

“1. Further or alternatively, that the applicant have leave pursuant to Part 65 Rule 7 of the Rules of the Supreme Court to inspect in the registry and copy any record of the terms of an order made in these proceedings, the originating process in these proceedings and such documents including pleadings as formally state or disclose the issues in these proceedings, on terms that until further order the applicant not disclose such documents or their contents save to its solicitors and counsel.

2. Such further order as the court deems fit.

3. Costs.”

55 When the matter came on for trial the Second Further Amended Statement of Claim provided no pleaded basis upon which the court could justify an order restraining the publication of the Report. The court raised this difficulty with junior counsel for Professor Hall and was informed that there were three bases upon which the continuing suppression of the Report was sought. Those bases were:

56 The plaintiff was invited to provide a further amended statement of claim pleading the matters which could support the injunction. This was done and the application to amend was argued. The decision is the subject of separate reasons.

57 Professor Hall has now accepted that the Report of the Inquiry should be published when this judgment is given and reasons delivered, irrespective of the outcome. Accordingly, when that occurs, the orders suppressing publication will be dissolved.

The challenge by Professor Hall

58 Professor Hall has challenged the validity of the Report. He submitted that the Inquiry has not been authorised by the Vice-Chancellor; has invalidly gone beyond the Terms of Reference; and, in relation to a number of matters, denied him procedural fairness.

59 In his original summons Professor Hall sought an order “quashing” the Report, together with various injunctions and declarations. However Professor Hall has now confined the relief he seeks to appropriate declarations.

60 Although other issues are raised, the fundamental claim by Professor Hall is that he was denied procedural fairness. That claim has a number of elements.

61 Senior counsel for Professor Hall submitted that the nature and potential repercussions of the Report meant that the highest standards of procedural fairness were owed to him. The University took issue with this submission and argued that the standards which would apply to, for example, a Royal Commission, could hardly be said to apply in the circumstances of this Inquiry which was preliminary to a decision, if any, which the University may make in relation to Professor Hall’s employment.

62 It is appropriate to determine the Inquiry’s obligation with respect to procedural fairness in relation to each specific complaint. Before turning to those matters some general matters should be considered.

Procedural fairness and the jurisdiction of the Court

63 A person who believes he or she has been denied procedural fairness by a person or a body exercising statutory power may apply to the Court for “judicial review”, described by Brennan J in Attorney-General (NSW) vQuin (1989-1990) 170 CLR 1 at 26 as:

“A term which conveniently describes the jurisdiction of the Supreme Court of New South Wales to make orders relating to the exercise of executive or administrative power conferred on or vested in the Executive Government or some other instrumentality of the State.”

64 A person bringing an action must be able to show that the decision affected him or her individually or specifically, and directly. It is not the case “that everyone who may suffer some detriment as an indirect result of an order ... is entitled to be heard before the order is made” (R v Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513 at 520 per Gibbs CJ). Rather, as Gibbs CJ said in the same decision (at 520):

“Orders made by [the Commission] may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the [Commission] had a right to be heard in those proceedings”

65 If the court has jurisdiction to intervene and the claim of denial of procedural fairness is made out, the court has the power to declare the decision invalid. The court, at its discretion, may order relief in the nature of prohibition, certiorari or mandamus (s 69 Supreme Court Act 1970 (NSW)). Orders in the nature of certiorari will quash the legal effect or consequences of the decision; orders in the nature of prohibition are to prohibit the decision maker from proceeding towards, taking or implementing the unlawful decision; and orders in the nature of mandamus will have the effect of compelling the performance of a public duty.

Procedural fairness - general principles

66 A statutory body which makes a decision adversely, directly and personally affecting a person’s rights, interests or legitimate expectations must ensure that the procedures utilised in making the decision are fair.

67 In Kioa v West (1985) 159 CLR 550, Mason J (at 585) said:

“The expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.”

68 A fundamental element of procedural fairness is the hearing rule or the “right to be heard”. The elements of the right will vary in particular cases but will generally include some or all of the following:

· a reasonable opportunity to make submissions (Annetts v McCann (1990) 170 CLR 96), give evidence (Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49), and call witnesses in support (R v Hull Prison Board of Visitors; ex parte St Germain (No. 2) [1979] 1 WLR 1401 (DC);

· notice of various matters (Andrews v Mitchell [1905] AC 78 at 80 (Lord Halsbury: “impossible to disregard); R v Small Claims Tribunal; ex parte Cameron [1976] VR 427 at 432 (Anderson J: “a cardinal principle”); Re Hamilton [1981] AC 1038 at 1047 (Lord Fraser: of “constitutional importance”) including:

· the time, date and place of the hearing (Hopkins v SmethwickBoard of Health (1890) 24 QBD 712 at 715);

· the subject matter (Kanda v The Government of Malaya [1962] AC 322 at 377) and potential adverse consequences of the decision (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Powick v Commissioner of Corrective Services (1996) 87 A Crim R 565 (NSWCA Mahoney ACJ, Sheller and Powell JA); Dixon v Commonwealth (1981) 55 FLR 34 at 41);

· the case to be answered (Kanda v The Government of Malaya [1962] AC 322 at 377; R v Solicitors’ Disciplinary Tribunal; exparte L (a solicitor) [1988] VR 757); and

· adequate time to prepare submissions and gather evidence (Ansell v Wells (1982) 43 ALR 41; Claro v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342)

· disclosure of material to be relied upon by the decision-maker. The extent of this duty depends upon the type and nature of the decision-maker or investigating body. As a general rule, material which concerns matters personal to a person who is entitled to be heard, should be disclosed to that person (per Mason J in Kioa at 587)

· disclosure of any adverse conclusion not obviously open on the known material: see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591. In that case, Northrop, Miles and French JJ said: “if information on some factor personal to [a] person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it” (at 591). Their Honours also said: “The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.” (at 592)

69 The obligation to afford procedural fairness is a common law duty:

Kioa

70 In Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381, Spigelman CJ said:

Kioa v West

Annetts v McCann

Ainsworth v Criminal Justice Commission

Attorney-General (NSW) v Quin

Victoria v Master Builders Association (Vic)

Kioa v West

FAI Insurance Ltd v Winneke

Ainsworth

,

Minister for Local Government v South Sydney City Council

Must procedural fairness be afforded throughout the entire decision-making process?

71 Although a final decision affecting a person’s interests is likely to attract procedural fairness, preliminary or intermediate decisions may also be subject to the same obligations. Investigations, recommendations and preliminary or provisional decisions forming part of the decision-making process and made in exercise of statutory power have been found to attract procedural fairness (see Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 per Mason CJ, Dawson, Toohey and Gaudron JJ at 578).

72 The “test” by which the processes which are open to review may be determined is generally whether a step leading to the final decision has the power to adversely effect the person’s rights, interests or legitimate expectations (Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ; and R v Criminal Injuries Compensation Board; ex parte Lain [1967] 2 QB 864, per Parker LCJ at p 881)

73 In Minister for Local Government, Spigelman CJ noted the difficulties which arise “in the application of principles of procedural fairness in the context of a multi-staged decision-making process” (at 387). His Honour pointed out:

.

74 In the same matter Mason P said:

(Forbes v New South Wales Trotting Club Ltd

Minister for Immigration and Multicultural Affairs v Bhardwaj

.

Minister for Urban Affairs and Planning v Rosemount Estates & Ors

.

75 In Minister for Local Government Mason P also said (at 416):

sometimes

Appropriate measures depend upon the circumstances of the case

76 When considering whether the procedures put in place afforded the affected person procedural fairness, the court will look to the circumstances to determine whether they were appropriate:

Kioa

Whether universities are amenable to judicial review

77 A significant issue arises as to whether the decisions of a University, which may affect individuals, students and academic staff, are amenable to judicial review. Although the University of New South Wales was created by statute, the question is whether, in its supervision of its staff, the University is exercising a “public power”.

78 The University of New South Wales was created by the University of NewSouth Wales Act 1989 (NSW) (“the UNSW Act”). Section 6 of the UNSW Act provides for the functions of the University:

“(2) The University has the following principal functions for the promotion of its object:

(a) the provision of facilities for education and research of university standard,

(b) the encouragement of the dissemination, advancement, development and application of knowledge informed by free inquiry,

(c) the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community,

(d) the participation in public discourse,

(e) the conferring of degrees, including those of Bachelor, Master and Doctor, and the awarding of diplomas, certificates and other awards,

(f) the provision of teaching and learning that engage with advanced knowledge and inquiry,

(g) the development of governance, procedural rules, admission policies, financial arrangements and quality assurance processes that are underpinned by the values and goals referred to in the functions set out in this subsection, and that are sufficient to ensure the integrity of the University’s academic programs.

(3) The University has other functions as follows:

…

(c) the University has such general and ancillary functions as may be necessary or convenient for enabling or assisting the University to promote the object and interests of the University, or as may complement or be incidental to the promotion of the object and interests of the University.”

79 Section 6 of the UNSW Act gives the University power to establish an inquiry to investigate allegations of scientific misconduct and scientific fraud against one of its professors. The UNSW Act gives the Vice Chancellor (see Section 12) and the University Council (see Section 15) powers sufficient to institute and oversee the Inquiry.

80 In R v Criminal Injuries Compensation Board; ex parte Lain, Parker LCJ said at 882:

“Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned ... We have ... reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially.

81 In England, the courts have demonstrated a preparedness to intervene, in some circumstances, to review decisions made by bodies previously categorised as belonging to the “private” arena and accordingly not amenable to judicial review.

82 In R v Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] 1 QB 815 the applicant sought judicial review of a decision of the Panel, which was a self-regulatory body, created by statute and “supported and sustained by a periphery of statutory powers”. It was held that the Panel was amenable to judicial review.

83 Donaldson MR considered the comments of Parker LCJ in Lain and said at 838:

Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.

84 Lloyd LJ in Datafin emphasised the importance of the source and the nature of the power (at 847):

source

helpful to look not just at the source of the power but at the nature of the power

essential distinction

85 In Clark v The University of Lincolnshire and Humberside [2000] 1 WLR 1988, the court considered the circumstance of a student accused of plagiarism, which resulted in the University awarding her only a Third Class degree. For her final examination the student had to submit a paper, but on the last day before the deadline she lost all her work due to a computer failure. She submitted notes copied from a commentary and the University’s Board of Examiners failed her for plagiarism.

86 The Academic Appeals Board accepted that she had not set out to deceive and referred the paper back for remarking. The paper was marked 0. On appeal to the Governors Appeal Committee it was decided that the mark of 0 was not an appropriate academic response, and her assessment was referred back to the Academic Board. The board members advised the Vice-Chancellor that a mark of 0 was permissible so long as the examiners had treated the paper as a failure rather than as plagiarism, and that the chair of the Board of Examiners had confirmed that this was what they had done.

87 The claim was pleaded in contract. However, the court found this was not necessary. Sedley LJ held that the decision of University was amenable to judicial review.

88 In his reasons for his decision Lord Woolf MR said (at [32]-[33]):

89 A different view may be taken in Australia.

90 In Blizzard v O’Sullivan [1994] 1 Qd R 112, the relevant Act provided that the Governor-in-Council may appoint executive officers of the Queensland Police Service. The applicant was appointed and employed as deputy commissioner of police under a contract between himself and the Crown. The contract contained a term to the effect that his employment could be terminated with one month’s notice. His employment was subsequently terminated with notice. Thomas J refused the application for judicial review, made under Pt4 of the Judicial Review Act 1991, which applies to decisions made under an Act of Parliament or statutory instrument.

91 Thomas J looked at the effects of the creation of a document in the decision-making process to determine whether it was reviewable:

“The true distinction seems to be between the making of a document in the exercise of an administrative power that unilaterally affects the rights of another person (which is reviewable), and making a document in the exercise of a power to enter into a contract where the rights of the other party depend upon what he chooses to agree to (which is not reviewable).”

92 Giving his reasons for refusal of the application, Thomas J said (at 118-119):

“By contrast, in cases where the authority has a general power to make a contract which becomes the charter of the rights of the parties concerned, and where no particular administrative power (as distinct from the contract itself) is the basis of the challenged decision, the decision is normally regarded as being made under the contract and in turn not being made under an Act”

93 In Whitehead v Griffith University [2003] 1 Qd R 220 the applicant was an employee of the respondent under the Griffith University – Academic Staff - Certified Agreement 2000-2003. The University received a complaint about him related to the alteration of a student’s mark from a credit to a distinction, allegedly because the student had asked for the higher mark so that he could retain his scholarship to study at the University. Under the employment Agreement, the University was bound to inform the applicant of the complaint and to give him an opportunity to respond. It was further entitled to refer the matter to a Misconduct Panel in the event that the allegation was denied.

94 The University informed the applicant of the complaint and received a response from him. The University deemed the response to be inadequate and unco-operative and censured the applicant on that ground. It declined to form a Misconduct Panel.

95 The applicant sought judicial review of the decision not to form a Panel, and of the decision to censure him.

96 The applicant submitted that the court had jurisdiction to review the decisions because (among other reasons) the respondent was a public institution and the decisions were public in character.

97 Having reviewed the English authorities Chesterman J said:

“I cannot see that the respondent was in any way exercising any of the powers or functions of government in acting to censure the applicant and to revoke an earlier decision to constitute a Misconduct Panel. It was exercising powers conferred by the contract of employment between the parties. It appears to be entirely in the “domestic or private” realm rather than the public, in the sense of governmental.”

98 Chesterman J found the decision of Thomas J in Blizzard to be “directly apposite” to the issues in Whitehead. His Honour found that the respondent did not exercise statutory powers when it made its decisions to censure the applicant and to decline to appoint a Misconduct Panel. His Honour distinguished clearly between statutory powers and contract (at [17]):

“It misstates the position to say that the respondent “operates under statute”. It is created by statute which gives it functions to perform and a very general conferral of power to discharge those functions. The particular power to discipline staff members for misconduct is not statutory but contractual.”

99 The distinction between public and private power is central to liberal political thought but its application to contemporary government is not always self-evident. As Murphy J put it in Forbes v NSW Trotting Club, (1978) 143 CLR 242 at 275:

“There is a difference between public and private power but, of course, one may shade into the other. When rights are exercised directly by the government or by some agency or body vested with statutory authority, public power is obviously being exercised, but it may be exercised in ways which are not so obvious.”

100 Kirby J has also recently drawn attention to the important question of principle:

Neat v AWB

101 There are a number of cases in which a formally “private” or non-governmental body has been held to the requirements of natural justice. In Forbes the NSW Trotting Club was a private body which by consent of the government and all other trotting clubs in NSW was the “controlling body” of trotting in that state. It had no statutory basis or authority. Forbes was a professional punter “warned off” NSW paceways by the trotting club. He sought a declaration that the warning off was void by reason of the failure of the trotting club to afford him natural justice. A majority found that Forbes was entitled to relief. Gibbs J, at 264, found that the trotting club:

Heatley v Tasmanian Racing and Gaming Commission

102 Murphy J said (at 274) that the trotting club:

“exercises power which significantly affects members of the public, tens of thousands of whom go to watch the spectacles, many to bet as a hobby, and some, like the appellant, to try to make a living by betting. Many hundreds depend on it for their livelihood in occupations such as bookmaking, training and driving.”

103 His Honour continued (at 275):

Datafin

Decisions affecting employment, livelihood; clubs and associations

104 There are Australian decisions which indicate that a person whose employment or livelihood is affected by a decision made in exercise of a statutory power is owed procedural fairness.

105 However, the jurisdictional basis for the Court’s intervention requires careful consideration.

106 In Banks v Transport Regulations Board (Vic) (1968) 119 CLR 222, the High Court considered whether the decision of the respondent to revoke the appellant’s cab driver licence was amenable to judicial review. Barwick CJ noted (at 232) that the licence was essentially property and pointed out the powers of the Board to make decisions affecting the livelihood of the appellant:

“The Board was thus empowered to decide questions affecting the appellant's property: and it might be added, property which provided a means and perhaps the sole means of the livelihood of the holder of the licence.” (at 233)

107 The Court granted a writ of certiorari quashing the decision of the Board and the revocation of the appellant’s licence.

108 In FAI Insurance v Winneke (1982) 151 CLR 342, Mason J (with whom Stephen J agreed) said:

“It is now authoritatively established that the exercise of a power revoking a licence will attract the rules of natural justice, certainly when the revocation results in the loss of a right to earn a livelihood or to carry on a financially rewarding activity.” (at 360)

109 Brennan J (at 412) said:

110 The Court made a declaration of invalidity in respect of the decisions made.

111 In Sanders v Snell (1998) 196 CLR 329 the respondent had been appointed to the position of Officer of the Norfolk Island Government Tourist Bureau, a statutory corporation. That employment was terminated pursuant to a direction from the appellant, the Minister for Tourism. Gleeson CJ, Gaudron, Kirby and Hayne JJ found that where the Minister's direction under a statutory power would deprive an officer of his livelihood, that officer must be afforded procedural fairness.

112 Although judicial review is not available as against a private body or association exercising private powers such as those derived from contract, courts have intervened to provide declaratory and injunctive relief in some circumstances where decision makers have not adhered to the rules of natural justice. The juristic basis of such intervention may be located in property, contract or other matters; as to the latter see Edgar v Meade (1916) 23 CLR 29. Private clubs are bound by the rules of natural justice when they attempt to expel a member when, for example, that member would be deprived of some property as result of his or her expulsion (Rigby v Connol (1880) 14 Ch D 482).

113 It has been accepted that the court may intervene in the affairs of a voluntary private association where there is a deemed contract between members of the association. As Campbell J put it in McLelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 at 785:

“In Australia, the preferable view is that natural justice comes to operate in private clubs by the rules of the those private organisations being construed on the basis that fair proceedings are intended, but recognising the possibility that express words or necessary implication in the rules could exclude natural justice in whole or part.”

114 Judicial review is not available in respect of a public body exercising a private power, such as that derived from property or contract, even where the consequences of such a decision may be thought of as “public.” However, public bodies exercising private powers are amenable to declaratory and injunctive relief for a breach of procedural fairness in the same way that private organisations and associations are amenable to such relief.

115 Although when investigating the allegations against Professor Hall the University may not be carrying out public functions, it is nevertheless engaged in a process which could have very severe consequences for him. The formality of the Inquiry, the nature of the persons who conducted it and the allegations being investigated make it plain, in my opinion, that the Inquiry was required to afford Professor Hall procedural fairness. This was acknowledged in the Terms of Reference. Whether the Inquiry process is amenable to judicial review need not be determined.

116 It is also not necessary to resolve whether enforceable obligations were created because the relationship of the University and Professor Hall is based in contract (which it clearly is) or because Professor Hall consented to the Inquiry process. I am satisfied that in the circumstances of the present case the court may intervene and may make appropriate declarations if it concludes that procedural fairness has not been afforded to Professor Hall. As it happens Professor Hall no longer seeks an order in the nature of certiorari and confines his application to appropriate declarations.

THE INDIVIDUAL CLAIMS MADE BY PROFESSOR HALL

117 The plaintiff originally raised thirteen matters of complaint in respect of the Report. However, only nine are now pressed. I shall deal with each matter in turn.

(1) AMENDMENT OF THE TERMS OF REFERENCE

118 The procedure for amendment of the Terms of Reference is found in the Terms at D.2:

“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.”

119 The Inquiry did amend the Terms of Reference. It set out in the Report (at p9 Volume 1) the reasons for and process of amending the Terms:

“In addition to matters of which the complainants had complained to the University either in writing or in interview with Professor Dowton, other allegations were made to the Inquiry which may not have been made clear to, or considered by, Professor Dowton but which emerged from the Inquiry’s consideration of the comments made to it by the complainants. A schedule of all complaints which could amount to scientific misconduct or scientific fraud was prepared. The Inquiry formed the view that it would be desirable for the University to amend and, if need be, to extend the Terms of Reference to allow for the investigation of all such allegations, whether previously made or not. The Inquiry took the view that the omission of any of these allegations would be unfair to Professor Hall, leaving the omitted allegation hanging over him and unresolved; equally, it would be unsatisfactory to the complainants. Nor would omission of an allegation give the University a clear conclusion about the scientific integrity of Professor Hall’s Liverpool Laboratory. The Inquiry sought an amendment of the Terms of Reference by inserting the schedule of allegations as the allegations to be investigated. The University acceded to the Inquiry’s suggestion and the Terms of Reference were amended. “

120 On 18 September 2002 Professor Hume wrote to Professor Hall regarding proposed changes to the Terms of Reference. The letter read:

“The Inquiry has now compiled a Schedule of the reformulated Dowton allegations and the allegations which arise from the material submitted to the Inquiry by the complainants which may not have been considered by Professor Dowton. A copy of the Schedule is attached.

Allegations numbered 1-4, 9-10, 12, 15, 20 and 22 in the schedule of allegations are the allegations which may not have been considered by Professor Dowton and which may not presently fall within the Inquiry's Terms of Reference. A copy of the Terms of Reference is attached. To permit the investigation of all allegations in the schedule, the Inquiry has proposed to the University that Sec!ion B paragraph 2 of the Terms of Reference be amended to read:

The allegations are set out in the schedule to these Terms of Reference

And that the schedule be annexed to the Terms of Reference.”

121 On 25 September 2002 the Vice Chancellor wrote to Sir Gustav Nossal, stating that he and Chancellor Yu had decided to broaden the Terms of Reference as requested by Sir Gerard Brennan. The body of the letter read:

“I know that you are away until the end of the month and write as a courtesy to inform you of a decision that John Yu and I have taken concerning the Terms of Reference of the External Independent Inquiry into the Hall matter.

As you may recall, the matter of the Terms of Reference was delegated by Council to the selection committee for the External Independent Inquiry, namely you, John Yu and me (as UNSW's Vice-Chancellor).

The UNSW Council has made it clear that, should the External Independent Inquiry request a broadening of the Terms of Reference to include all information that might be pertinent to the question of whether or not scientific misconduct did occur as alleged, that the Terms of Reference should be broadened.

Such a request has been received.

In accordance with principles of natural justice, Professor Hall has had the opportunity to comment to me about this request.

Since I am confident that you would support this move, which as I noted above is consistent with the wishes of UNSW's Council, I have informed the Inquiry of UNSW's decision in the matter, namely to broaden the Terms of Reference as requested.”

122 On 25 September 2002, a list of twenty-four Allegations was sent to the plaintiff. These were the Allegations the Inquiry proposed to investigate under the revised Terms of Reference.

123 Professor Hall’s reply to the Inquiry’s letter of 25 September 2002 was dated 27 September 2002 and said:

“I am prepared to respond to the charges to be investigated.

I do not accept that any of the charges have a factual basis and I will put before the Inquiry those further matters, including documents which I seek to have the Inquiry examine.”

124 On 1 October 2002, Sir Gustav Nossal replied to the Vice Chancellor’s letter as follows:

“Thank you for yours of the 25th September and your courtesy in letting me know that the Terms of Reference for the External Independent Inquiry into the Hall matter are to be broadened. I certainly support this move and thank you for keeping me in touch. “

The Penny allegations

125 On 21 August 2002 Dr Mark Penny contacted the Inquiry’s Secretariat and asked that his complaints against Professor Hall be investigated by the Inquiry. The Secretariat Co-ordinator informed Dr Penny that in order for the Inquiry to investigate his complaints he would have to ask the University to amend its Terms of Reference so as to include those complaints in the matters for investigation.

126 On 22 October 2002 the University wrote to the Inquiry requesting that it include in its investigation the allegations of Dr Penny. At that time the Inquiry was engaged in interviewing Professor Hall in relation to the allegations contained in the Schedule.

127 On 23 October 2002 Professor Hall was furnished with a copy of Dr Penny’s allegations and requested to respond. Dr Penny was interviewed on the evening of 23 October 2002, and Professor Hall responded to Dr Penny’s allegations on the following day.

128 The Terms of Reference were not amended in writing to include Dr Penny’s allegations.

Submissions of the plaintiff

129 The plaintiff submitted that although the Inquiry purported to amend the Terms of Reference on the two occasions referred to above, on neither occasion was written approval to the proposed amendments given by either Sir Gustav Nossal or the Chancellor. Senior counsel for the defendant conceded that the Inquiry did not strictly comply with the requirements for amendment of the Terms of Reference.

130 The plaintiff submitted that the issue went to the power of the Inquiry. It was submitted that, having failed to follow the procedure for amendment, the Inquiry had no power to investigate the further Allegations, and the investigation of the further Allegations rendered the whole of the Report invalid. The plaintiff pleaded the matter as follows:

(a) The Terms of Reference provided that the Selection Panel (which comprised the Vice-Chancellor, the Chancellor and Sir Gustav Nossal) must approve any amendments to the Terms;

(b) The Inquiry published the Terms of Reference to Professor Hall and it and UNSW represented to him that the Terms of Reference would only be amended subject to such approval;

(c) UNSW purported to amend the Terms of Reference twice, but did not do so in a valid and an effective manner;

(d) In the result the Inquiry went beyond the powers conferred upon it in investigating, or purporting to investigate a list of 24 allegations which was sent to Professor Hall and not the allegations drawn by the Inquiry on the basis of the original and valid Terms of Reference as sent to Professor Hall; and

131 There is no question that Professor Hall was given notice of the amended Terms and provided with an opportunity to answer the allegations which motivated the amendments. However, it was submitted that he gave no consent to their amendment because he was never made aware of the defects in the Inquiry’s amendment process.

Defendant’s submissions

132 The defendant submitted that although the strict procedure was not followed, the amendments were ratified by the Council and the Vice-Chancellor (Blayney Abattoirs Pty Ltd v State of New South Wales (1996) 86 IR 358, upheld, NSWCA, unreported, 18/07/1996). The defendant submitted that such ratification can be inferred from the conduct of the panel, the Council and the Vice-Chancellor which, on an objective basis, signifies consent to the amendment: Re Eaves [1939] 4 All ER 260, at p 264; Lamshed v Lamshed (1963) 109 CLR 440, at p 448. Accordingly, the defendant submitted, the Inquiry had authority to proceed on the amended Terms of Reference.

133 It was submitted that Professor Hall was estopped from adopting a position that the Terms of Reference were invalid. On 27 September 2002 Professor Hall agreed to the amendments to the Terms of Reference (see letter dated 27 September 2002 in which Professor Hall said, “I am prepared to respond to the charges to be investigated”). Moreover, Professor Hall subsequently participated fully and freely in the investigations into all of the Allegations which were the subject of the amended Terms of Reference.

Decision

134 The position is analogous to that which operates when there has been a failure by an administrative body to abide by the decision-making procedure provided for it. Statutory requirements may be mandatory or directory. If the latter, strict compliance will not be required (see Attorney General (NSW) ex. rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd & Ors [1977] 2 NSWLR 955 and Scurr v Brisbane City Council (1973) 133 CLR 242).

135 This challenge to the Report fails. The Inquiry was constituted to assist the University in its administrative functions. Provided procedural fairness was afforded to Professor Hall, the fact that the formal process for amendment was not followed has no consequence which would justify the court’s intervention. There can be no doubt that the Chancellor, Vice-Chancellor and Sir Gustav Nossal accepted the amended Terms of Reference to be appropriate.

136 In any event, in the circumstances of this case, the intervention of the court could not be justified as a matter of discretion. The procedural deficiency identified has not worked any prejudice to Professor Hall.

(2) FAILURE TO PROVIDE PROFESSOR HALL WITH CORRESPONDENCE RELATING TO FORMULATION OF THE ALLEGATIONS

137 I have already mentioned the fact that the Inquiry engaged in a complex process of refining the complaints which had been made and have referred to its discussion of the process which was undertaken. I repeat that section of the Report:

“The Inquiry extracted from the Report made by Professor Dowton those allegations which appeared to raise questions of scientific misconduct or scientific fraud. The allegations which were attributed to each of the three complainants were sent to the relevant complainant. The Inquiry sent Professor Hall the list of all such allegations. The complainants and Professor Hall were asked for their comments on the following questions:

(a) whether any of the allegations fell outside the Inquiry’s Terms of Reference, and, if, so, the nature of the disconformity; and

(b) whether there were any allegations other than those in the list which fell within the Terms of Reference and which the person would wish the Inquiry to investigate and report on.

Professor Hall agreed that the list of allegations fell within the Terms of Reference…“

138 On 14 August 2002, the Inquiry wrote to Dr He, Dr Chen and Ms Hong Ha. The letters were essentially the same. Relevantly, the letters read:

“The University of New South Wales has established an external independent inquiry to investigate allegations of scientific misconduct and scientific fraud against Professor Bruce Hall (the "Inquiry"). The members of the Inquiry are Sir Gerard Brennan AC, KBE, Professor Judith Whitworth A. C. of the John Curtin School of Medical Research, Professor John Chalmers A.C. of the University of Sydney and Professor Sir David Weatherall of the Weatherall Institute of Molecular Medicine, Oxford.

The University has provided that Inquiry with Terms of Reference which prescribe the ambit of the Inquiry's investigations and methods.

The Terms of Reference provide that the objective of the Inquiry is to determine whether the complaints against Professor Hall in relation to the conduct of his scientific research at Liverpool Hospital reveal scientific misconduct and/or scientific fraud on his part. The Inquiry is to apply the relevant standards for scientific research conduct as provided for in the NH&MRC/AVCC Statement and Guidelines on Research Practice. These are set out in Attachment "B" to this letter.

The University has prescribed the allegations which the Inquiry is to investigate as "those which were received by the University from the complainants" during the latter part of 2001 "and which appear to allege scientific misconduct or scientific fraud on the part of Professor Hall." The University has provided the Inquiry with a list of allegations which were evidently compiled after interviews with three complainants. You are identified as one of the complainants and the allegations which are attributed to you and which appear to allege scientific misconduct or scientific fraud on the part of Professor Hall are set out in attachment " A " to this letter.

The Inquiry seeks your comments on the following questions:

1. Do the allegations set out in attachment " A " state accurately the allegations which you made? If not, please set out the allegations in the form in which you believe you made them to the University.

2. Did you make any other allegations to the University in the latter half of 2001which allege scientific misconduct or scientific fraud on the part of Professor Hall? If you made any other allegations of that kind, please set out the allegations in the form in which you believe you made them to the University.

Please note that the Inquiry is aware that there were several other allegations attributed to you which do not appear to allege either scientific misconduct or scientific fraud. It is also aware that [the other complainants] also made allegations which appear to allege scientific misconduct or scientific fraud. I am writing to [the other complainants] to invite their comments on the allegations attributed to each of them.

339 The final finding in respect of that Allegation is also challenged. It reads:

“Finding

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

“Finding

Plaintiff’s submissions

341 The plaintiff submitted that in its deliberations relating to Allegations 3 and 7, the Inquiry adopted its own opinions rather than the opinions of the experts whose opinions were favourable to Professor Hall.

342 Professor Hall submitted that no notice was given of the intention of the Inquiry to use its own expertise to override the views of experts who expressed views which were favourable to his case.

343 In his submissions, the plaintiff relied on some of the evidence tendered by the defendant. In her statement dated 14 May 2003, Dianne Hamilton, Secretariat Co-ordinator, said that she heard Professors Whitworth and Chalmers make comments about referencing during their discussions with respect to Allegation 3.

344 Ms Hamilton also said that she heard comments to the effect that those Professors viewed the method used by Professor Hall as misleading and unacceptable. It was submitted that this evidence demonstrated that the Inquiry had used its own expert knowledge.

345 Professor Hall submitted that the failure by the Inquiry to give notice to him of its intention to apply its own knowledge in reaching its conclusion was significant, and that the result of this course of action taken by the Inquiry was to deprive him of the opportunity to address the matter, and to achieve a different outcome.

Defendant’s submissions

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

347 The defendant submitted that the Inquiry was merely drawing factual conclusions; that the knowledge used to reach the conclusions could have been applied by any person; and that in any case Professor Hall had notice of these matters and an opportunity to respond in interviews.

348 The University emphasised that the finding in relation to Allegation 7 was a finding in relation to fraud. In reply to Professor Hall’s claim to the Inquiry that a particular statement in the paper was ambiguous, the defendant submitted that the Inquiry had merely to address the question as one of construction, which it did. Once it was established that there was in fact no ambiguity and the statement was misleading, the Inquiry did not need to explore any scientific issues raised by Professor Hall. The plaintiff’s submission that the Inquiry misapprehended the scientific details would thus be irrelevant.

Discussion

349 Many inquiries are constituted with experts with special knowledge in relation to the matters the subject of the inquiry. Inquiries are constituted in this way with the intention that the Members will, in an appropriate manner, draw on their own specialist knowledge.

350 In Kalil v Bray [1971] 1 NSWLR 256, Street CJ said (261-262):

“It would be unreal to expect the members of the tribunal, being professionally qualified veterinary surgeons and occupying seats on the tribunal by virtue of that very qualification, to fail to use their expert knowledge in resolving any matter of veterinary science arising in proceedings before the tribunal.

The purpose of setting up the tribunal, with its membership drawn from the ranks of veterinary surgeons, is to enable it to do the very thing that either a Bench of justices or a jury may not do, that is to say, to draw upon its own expert resources to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it. In doing so it will, no doubt, give due weight to such expert evidence, if any, as may be placed before it. But the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is with the tribunal itself. This is a responsibility to be discharged by drawing upon its own internal resources of knowledge of veterinary science.”

351 Similarly, in Keller v Drainage Tribunal & Montague (1980) VR 449, Murray J said:

“It is well established that a tribunal, of which some or all of the members are experts in a particular field, may use its expertise in interpreting and weighing evidence and reaching conclusions on technical matters.” (at 453)

352 Doyle CJ in Chiropractors Association of Australia (SA) Ltd v WorkcoverCorporation of Australia [1999] SASC 120 (at para [87]) said:

“It is clear from the many authorities in this area that an administrative decision-maker may make use of knowledge and experience and expertise that the decision-maker possesses, without having to disclose that material to the [affected person], and without having to disclose how the material might be used.”

353 However a tribunal may only use its expert knowledge to evaluate evidence and not to gather evidence which has not been disclosed to the parties. The point is made by Murray J in Keeler:

“There is, however, a clear distinction between cases in which a tribunal obtains evidence without the knowledge of a party and cases in which a tribunal or a member of a tribunal has knowledge of facts relevant to the matter in dispute and acts upon such knowledge on the one hand and cases in which a tribunal simply brings expert knowledge to bear upon the evidence presented by the parties on the other hand.” (at 453)

354 In Minister for Health v Thomson (1985) 8 FCR 213, the Full Court dealt with a decision by the Medical Services Review Tribunal which had set aside the decision of an investigative Committee. The Committee comprised five medical practitioners. Dr Thomson complained that the Committee had not made known to him in the course of the inquiry the views it held tentatively or otherwise about the number of medical services appropriate in particular situations. Fox J said:

“It seems reasonably clear that the intention of the Act is that the Committee sit as a Committee of the peers of the medical practitioner whose conduct is in question and exercise its own judgment in relation to the evidence before it, using its own collective knowledge in its evaluation.

There are many authorities which hold that such a Committee can act on its own views, and can do so without disclosing those views to a person appearing before it, in the role of a defendant or otherwise.” (at 217)

355 Fox J suggested that where the Committee sought to measure the doctor’s conduct against a standard, then it would be “fairer and more sensible” to put that standard to the doctor and seek his or her views on it. However, his Honour concluded that it was not a denial of natural justice not to put the standard to the doctor:

“This does not seem to add up to a denial of natural justice, for several reasons…the Committee was one of experts, which would be expected to form its own conclusions and establish its own views as to what [standard was appropriate]” (at 218)

356 Beaumont J was of a similar view:

“Only medical practitioners may be appointed to the Committee and it is only reasonable to assume that the respondent was at all material times on notice that the members of the Committee would be likely to make use of their own expertise and experience in such matters [his Honour cited authorities for this statement]. The submission of the respondent is tantamount to saying that the rules of natural justice insist that the Committee should not proceed to a conclusion until it had first shown a draft of its report to the respondent and invited his comments thereon. In my opinion, the application of notions of fairness in the present circumstances does not require such an extreme step.” (at 224)

357 Both Beaumont and Fox JJ pointed out the Committee was deliberately and compulsorily composed of experts, who would be expected to apply their own knowledge and experience to the matters before them. According to their Honours, not only would there not be a denial of natural justice if the draft report was not provided to the appellant, it would be simply unnecessary and unworkable for such a practice to be imposed.

358 In Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1, Stephen J said (at 10):

“Where only general expert knowledge of an expert tribunal is in question there need not be disclosure of that expert knowledge to parties in order for the hearing to be fair in the sense of complying with…the requirements of natural justice.”

359 His Honour’s comments related to the general knowledge of Tribunal Members about the effect of shopping centres on surrounding businesses, which was applied when the Members considered a specific proposal for a shopping centre. His Honour also noted that general knowledge which is used to evaluate or weigh the evidence will not have to be disclosed.

360 Professor Hall submitted that although in some cases it will not be appropriate to alert the subject of the inquiry to the knowledge of the investigator (see NCSC v News Corp Ltd (1984) 156 CLR 296 at 323-324), and it may be best to inform him or her at the end of investigations (Keller at 457), there was no need for ‘secrecy’ in this case. Professor Hall submitted that the maintenance of secrecy in fact denied him the “possibility of a successful outcome” (Stead v State GovernmentInsurance Commission (1986) 161 CLR 141 at 147; Re Refugee Tribunal ex parte Aala (2000) 204 CLR 82; Kioa per Deane J at 633).

Conclusions

361 The authorities are clear that tribunal members may, and in fact will be expected to, use their own expert knowledge when weighing up evidence, whether expert or lay, and when reaching a decision on the matters before them. The Inquiry was comprised of members of such professional standing that any argument that the University did not intend that they utilise their expert knowledge and experience would be artificial.

362 The parties are at issue as to whether the knowledge the Inquiry Members applied was their expert knowledge; and, if so, whether they used it to evaluate the evidence; or whether they went further and used it in substitution for, or in the absence of, evidence. The plaintiff submitted that the latter occurred. However, my understanding of the Findings and Conclusions in relation to Allegation 3 is that the Inquiry applied its considerable expertise to the evaluation of the material before it. That material included the opinions of other experts. The course the Inquiry took was appropriate.

363 With respect to Allegation 7 the Findings did not depend on scientific knowledge but merely on the construction of the relevant document.

364 This challenge fails.

(8) REVERSAL OF DECISION ON PUBLICATION OF THE REPORT

Background

365 The Terms of Reference set out the procedure related to publication:

absolute discretion

requirements of fairness and the desirability of protecting the privacy, reputation or confidentiality of any individual

366 On 13 February 2003, Professor Hall, through his solicitor Ms Kearney, forwarded a lengthy written submission to the Chancellor and Council members, which read:

“I enclose a submission on behalf of my client Professor Bruce Hall addressed to the Chancellor and Council members.

I respectfully request that you provide the submission to the Chancellor and Council members for consideration at the meeting of the University Council to be held at 4.00pm today 13 February 2003.”

367 Professor Hall submitted to the Council that it would be unfair to publish the Report. Professor Hall (referred to in his submission as BH) expanded on this in his reasons why the Report should not be published. He said:

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

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

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

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

368 The University Council met in a Special Meeting on 13 February 2003. The Council noted that the Report was being considered by the relevant University officers under the University Academic Staff Enterprise Agreement and resolved to defer a decision on publication until the completion of the process set out in the Agreement. The submission made by Professor Hall was considered at the meeting.

369 The University Council met again on 24 February 2003. Mr Richard Potter presented oral legal advice to the Council in relation to the question of publication of the Report. The Council resolved:

“That Council authorises a sub-committee comprising the Chancellor, the Vice-Chancellor and Mr John Pascoe to release the Final Report of the External Independent Inquiry to:

370 This was, of course, a change from the decision which the Council had made at its meeting of 13 February 2003.

371 Obviously each of the bodies to whom the Report was to be released has a legitimate interest in the outcome of the Inquiry.

Plaintiff’s submissions

372 The plaintiff contends that he was denied natural justice by reason of:

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

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

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

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

Defendant’s submissions

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

374 The defendant emphasised that Professor Hall was given an opportunity to place submissions before the Council as to the publication of the Report.

Conclusions

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

376 I am satisfied that the complaint is not made out and there is no occasion for the court to intervene. If there was, significant discretionary issues would need to be considered.

(9) SCIENTIFIC ERRORS

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

Plaintiff’s submissions

378 The Inquiry made adverse conclusions with respect to Allegations 1 and 3 which related to the method of referencing. The plaintiff submits that at least half of the expert witnesses who provided opinions in relation to the allegations found that the method of referencing was acceptable; but the Inquiry inexplicably took the minority view of Professor d’Apice, who is not an expert in the field concerned.

379 The plaintiff also submitted that the findings in Allegation 4 were inconsistent with those in Allegation 1; and that the Inquiry failed to understand the import of the logistics of the experiment.

380 In relation to Allegation 7, the plaintiff submitted that the Inquiry made a factual mistake in failing to appreciate the circumstances in which cells can transfer tolerance.

381 The plaintiff submits that the experiments referred to in Allegations 9 and 10 were not central to the relevant reports and thus too much emphasis has been placed on a trivial matter.

382 The plaintiff claimed that the Inquiry incorrectly applied statistics to reach its conclusions in relation to Allegation 13; and failed to recognise the nature of the document concerned. Professor Hall contended that the document, an application for a grant, was a presentation of ideas in progress and hypotheses, not a finished work, and thus could and should not have presented proven facts.

Conclusions

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

Orders

384 I make the following orders:

**********

Last Modified: 08/27/2003

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Citations

Hall v University of New South Wales [2003] NSWSC 669

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CITATION:	Hall v The University of New South Wales [2003] NSWSC 669
HEARING DATE(S):	10 - 12 June 2003; 30 July 2003
JUDGMENT DATE:	15 August 2003
JURISDICTION:	Common Law Divison Administrative Law List
JUDGMENT OF:	McClellan J
DECISION:	Summons dismissed
CATCHWORDS:	ADMINISTRATIVE LAW - procedural fairness - Inquiry established by University to investigate allegations of scientific misconduct and/or scientific fraud against professor - whether University amenable to judicial review - whether Inquiry bound to afford procedural fairness to professor - standards of procedural fairness - whether evidence informing an inquiry's conclusions must be provided to affected person - whether Inquiry discharged obligations of procedural fairness
LEGISLATION CITED:	Supreme Court Act 1970 s 69 University of New South Wales Act 1989
CASES CITED:	Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 Andrews v Mitchell [1905] AC 78 Annetts v McCann (1990) 170 CLR 96), Ansell v Wells (1982) 43 ALR 41 Ansett v Minister for Aviation (1987) 72 ALR 469 Attorney General (NSW) ex. rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd & Ors [1977] 2 NSWLR 955 Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 Banks v Transport Regulations Board (Vic) (1968) 119 CLR 222 Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 Blayney Abattoirs Pty Ltd v State of New South Wales (1996) 86 IR 358 Blizzard v O'Sullivan [1994] 1 Qd R 112 Chiropractors Association of Australia (SA) Ltd v Workcover Corporation of Australia [1999] SASC 120 Clark v The University of Lincolnshire and Humberside [2000] 1 WLR 1988 Claro v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 Cole v Cunningham (1983) 49 ALR 423 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dixon v Commonwealth (1981) 55 FLR 34 at 41 Edgar v Meade (1916) 23 CLR 29 FAI Insurance v Winneke Forbes v NSW Trotting Club (1978) 143 CLR 242 Hall v University of New South Wales (unreported) 25 February 2003 Hopkins v Smethwick Board of Health (1890) 24 QBD 712 Kalil v Bray [1971] 1 NSWLR 256 Kanda v The Government of Malaya [1962] AC 322 Keller v Drainage Tribunal & Montague (1980) VR 449 Kelson v Forward (1995) 60 FLR 39 Kioa v West (1985) 159 CLR 550, Lamshed v Lamshed (1963) 109 CLR 440 McLelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 Minister for Health v Thomson (1985) 8 FCR 213 Minister for Local Environment v South Sydney City Council (2002) 55 NSWLR 381 Minister of State for Immigration & Ethnic affairs v Teoh (1995) 173 CLR NCSC v News Corp Ltd (1984) 156 CLR 296 Neat v AWB 198 CLR 179 at 195 O'Rourke v Miller (1985) 156 CLR 342 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Powick v Commissioner of Corrective Services (1996) 87 A Crim R 565 R v Criminal Injuries Compensation Board; ex parte Lain [1967] 2 QB 864 R v Hull Prison Board of Visitors; ex parte St Germain (No. 2) [1979] 1 WLR 1401 R v Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators Association & Anor (1972) 2 QB 299 R v Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513 R v MacKellar (1977) 137 CLR 461 R v Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] 1 QB 815 R v Small Claims Tribunal; ex parte Cameron [1976] VR 427 at 432 R v Solicitors' Disciplinary Tribunal; ex parte L (a solicitor) [1988] VR 757 R v War Pensions Entitlement Appeal Tribunal ex parte Bott (1933) 50 CLR 228 Re Eaves [1939] 4 All ER 260 Re Hamilton [1981] AC 1038 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Refugee Review Tribunal and Another; ex parte Aala (2000) 204 CLR 82 Rigby v Connol (1880) 14 Ch D 482 Roads Corp v Dacakis [1995] VR 508 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Rose v Bridges (1997) 79 FCR 378 Salemi v MacKellar [No. 2] (1977) 137 CLR 396 Sanders v Snell (1998) 196 CLR 329 Scurr v Brisbane City Council (1973) 133 CLR 242 Sinnathamby v Minister (1986) 66 ALR 502 Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 Whitehead v Griffith University [2003] 1 Qd R 220
PARTIES :	Bruce Hall (Pltf) The University of New South Wales (Def)
FILE NUMBER(S):	SC 30017/03
COUNSEL:	I Temby QC/G A Laughton (Pltf) G O'L Reynolds SC/Dr A S Bell/D Meltz (Def)
SOLICITORS:	David Brown (Pltf) Sparke Helmore (Def)