Hall v The University of New South Wales

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.

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).

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.

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.

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.

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.

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.

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.

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

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.

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.

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

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.

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.

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.

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).

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 : A researcher or reviewer shall not intentionally or recklessly: § 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 : A researcher or reviewer shall not intentionally and without authorisation take or sequester or materially damage any research-related property of another, including without limitation the apparatus, reagents, biological materials, writings, data, hardware, software, or any other substance or device used or produced in the conduct of research. Misrepresentation : A researcher or reviewer shall not with intent to deceive, or in reckless disregard for the truth: § 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.

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.

The Inquiry was asked to report to the Vice-Chancellor and the University Council. Nature of the Inquiry and Terms of Reference

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.”

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.

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.

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”.

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.”

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.”

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

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.

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: (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…”

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: (a) That Professor Hall is responsible for the inappropriate naming of Dr S Hodgkinson as a co-inventor on a patent related to IL-5 and antibodies; (b) That Professor Hall has mismanaged grant funds; (c) That Professor Hall is guilty of scientific misconduct and scientific fraud; (d) That Professor Hall has wrongly included and/or omitted names of individuals as co-authors on published abstracts or manuscripts; and (e) That Professor Hall’s behaviour in the workplace is inappropriate and amounts to bullying.

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

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.

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.

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.

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.

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)”

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.

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.

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.

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.

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.

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.

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

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.

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.”

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.”

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.”

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: (i) whether there is sufficient evidence to support the allegation(s) of misconduct and/or serious misconduct; (ii) whether the procedures of subclause 14.3 have been followed; and (iii) whether there are any mitigating circumstances. (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

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.

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.

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.“

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.

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.”

I granted the Corporation leave to be heard.

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.”

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: (a) contract: that the University was bound not to publish the report by reason of the agreement between the University and its staff being the Enterprise Agreement 2000; (b) the court should restrain a threatened defamation; (c) that the University, having resolved not to publish the Report, later decided to do so, without notifying Hall or having proper regard to the requirements of fairness.

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.

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

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.

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.

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.

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.

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

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) v Quin (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.”

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”

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

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.

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.”

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 Smethwick Board 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; ex parte 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)

The obligation to afford procedural fairness is a common law duty: “The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.” (per Mason J in Kioa at 584).

In Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381, Spigelman CJ said: “The obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard: see Kioa v West (1985) 159 CLR 550 at 576, 581, 632; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574–575; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 57; Victoria v Master Builders Association (Vic) [1995] 2 VR 112 at 138–139, 148, 157–160; Bayne, “The Common Law Basis of Judicial Review” (1993) 87 ALJ 781. The view that the duty to accord procedural fairness is only an issue of statutory interpretation, consistently taken by Sir Gerard Brennan, has not prevailed: see Kioa v West (at 609–616); FAI Insurance Ltd v Winneke (1982) 151 CLR 342 at 407–413; Ainsworth (at 584–585)” (per Spigelman CJ , Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at 385).” Must procedural fairness be afforded throughout the entire decision-making process?

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 ).

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)

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: “In some cases an appeal will cure any defect; in others procedural fairness will be required at both levels. There is an intermediate class of cases where “a fair decision, notwithstanding some initial defect” will be upheld on the basis that “there has been a fair result, reached by fair methods” (at 387) .

In the same matter Mason P said: “If the [statutory body] owed and breached a duty of procedural fairness in relation to its function of examination and report and if such a challenge is launched and established, the common law principles relating to procedural fairness as regards administrative bodies (not necessarily courts) remove the statutory validity of the report (Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 at 605 [45]–[46], 608 [58], 616 [103]–[104], 624 [151]–[152]; 187 ALR 117 at 127 [45]–[46], 130 [58], 142 [103]–[104], 154 [151]–[152]). This does not depend upon finding a jurisdictional error.” (at p 415) . See also Minister for Urban Affairs and Planning v Rosemount Estates & Ors 86 LGERA 1 .

In Minister for Local Government Mason P also said (at 416): “it is fallacious to…hold that breach at an antecedent stage can never be a matter of complaint in its own right, or that such breach may not (when established) trigger a finding of breach of a statutory requirement at some later stage in the investigative process. It all depends on the statute in question…. I prefer the …submission that recognises that sometimes the Commission's report could in itself involve a breach of its own duty to accord procedural fairness, with the consequence that there would be a breach of its own statutory duty to examine and report.” Appropriate measures depend upon the circumstances of the case

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: “The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case.” (per Mason J in Kioa at 585) Whether universities are amenable to judicial review

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”.

The University of New South Wales was created by the University of New South 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.”

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.

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.

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.

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.

Donaldson MR considered the comments of Parker LCJ in Lain and said at 838: “In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. 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. (emphasis added)

Lloyd LJ in Datafin emphasised the importance of the source and the nature of the power (at 847): “The source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review: ... but in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power . ... The essential distinction , which runs through all the cases ... is between a domestic or private tribunal on the one hand and a body of persons who were under some public duty on the other.” (emphasis added)

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.

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.

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.

In his reasons for his decision Lord Woolf MR said (at [32]-[33]): “If it is not possible to resolve the dispute internally, and there is no visitor, then the courts may have no alternative but to become involved. If they do so, the preferable procedure would usually be by way of judicial review. If, on the other hand, the proceedings are based on the contract between the student and the university then they do not have to be brought by way of judicial review. The courts today will be flexible in their approach…”

A different view may be taken in Australia.

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.

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).”

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”

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.

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.

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

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.

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.”

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.”

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.”

Kirby J has also recently drawn attention to the important question of principle: “Whether, in the performance of a function provided to it by federal legislation, a private corporation is accountable according to the norms and values of public law or is cut adrift from such mechanisms of accountability and is answerable only to its shareholders and to the requirements of corporations law or like rules.” Kirby J in dissent. Neat v AWB 198 CLR 179 at 195.

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: “although not granted statutory powers, was in fact the body whose function was to control trotting in New South Wales, and trotting is a public activity in which quite large numbers of people take part, whether as spectators or otherwise. Members of the public have the legitimate expectation that they will be given permission to go onto courses when trotting meetings are being held provided that they pay the stipulated charge and provided of course that they are not drunk, disorderly or otherwise unfitted by their condition or behaviour to be admitted. The respondent had power to defeat this expectation by acting under r 28, and was accordingly required to observe the rules of natural justice: Heatley v Tasmanian Racing and Gaming Commission .”

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.”

His Honour continued (at 275): “When rights are so aggregated that their exercise affects members of the public to a significant degree, they may often be described as public rights and their exercise as that of public power. Such public power must be exercised bona fide, for the purposes for which it is conferred and with due regard to the persons affected by its exercise. This generally requires that where such power is exercised against an individual, due process or natural justice must be observed.” See also Datafin . Decisions affecting employment, livelihood; clubs and associations

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.

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

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)

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

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)

Brennan J (at 412) said: “Where the lawful carrying on of a business requires a current licence, it is unfair to refuse renewal of the licence without giving the licensee an opportunity to be heard unless the licence is of such an exceptional kind that non-renewal of it is unlikely to affect adversely the licensee's proprietary or financial interest or, I think, his reputation.”

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

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.

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).

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.”

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.

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.

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

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

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.”

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. “

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.”

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.”

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.

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.”

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

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.

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.

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.

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

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.

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 (e) In consequence the Report of the Inquiry is invalid.

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

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.

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

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).

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.

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

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…“

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. The Inquiry seeks your comments on the issues raised in this letter by 4.00PM on 28 August 2002. The Australian Inquiry members are not all resident in Sydney and Sir David Weatherall is resident in England. All have other professional commitments but they are anxious to conclude the Inquiry as soon as possible. The University seeks a final Report by the end of November 2002. Accordingly, it will be necessary for the timetable established by the Inquiry to be adhered to. When the formulation of terms of the allegations to be investigated has been finalised the Inquiry will seek an interview with you to address all relevant issues. The form of those interviews is yet to be determined but you may note that the Inquiry has set aside the dates 21 to 24 October inclusive for that purpose. “

Dr He replied to the Inquiry by letter dated 26 August 2002 (Report Volume 2 Part 1 Document 14). Over 15 pages, Dr He elaborated on the allegations she had made and pointed out those of her complaints which she felt were missing from the Inquiry’s list of allegations.

Ms Ha replied to the Inquiry by letter dated 27 August 2002 (Report Volume 2 Part 1 Document 15). She attached an eight-page statement to her letter and attached eleven folders of supporting documentation.

Dr Chen replied by letter dated 27 August 2002 (Report Volume 2 Part 1 Document 16). Attached to his letter was a 15-page document titled “Professor Bruce Hall’s Scientific Misconduct”. Dr Chen set out four groups of allegations. Dr Chen elaborated on his allegations and included scientific data in his statement to support his allegations.

On 12 September 2002 the Inquiry wrote to Dr Chen seeking clarification of one of the allegations made in his correspondence dated 27 August 2002. Dr Chen replied clarifying the allegation on 18 September 2002.

The correspondence is discussed by the Inquiry as follows (at pp8-9, Volume 1): “Each of the three complainants rejected the formulation of the allegations in the terms expressed by Professor Dowton. Each of the complainants set out, in narrative detail, the nature of the allegations each was making and provided the Inquiry with documentary evidence upon which reliance was placed to establish the allegations. Some of the allegations made by the complainants in their correspondence were clearly outside the Terms of Reference in that they raised matters which could not be characterised as scientific misconduct or scientific fraud, for example, conduct relating to workplace relations. The Inquiry has not considered these allegations. In addition, the complainants’ allegations included some matters relating to research which, even on the facts set out in the complainants’ allegations, would not enable the Inquiry to make a finding of scientific misconduct or scientific fraud on the part of Professor Hall. These matters were considered by the Inquiry to be matters of scientific opinion and judgment. These allegations were not included in the allegations to be investigated by the Inquiry” …(emphasis added)

The Inquiry later noted: “Although the Inquiry was to undertake an investigation into the allegations listed in the Schedule to the Terms of Reference, it was required to report on whatever facts it might find to have been established in the course of the investigation. The Inquiry was to conduct an investigation, not a prosecution. However, natural justice required that the Inquiry should not find scientific misconduct by Professor Hall on facts falling outside the scheduled allegations and Dr Penny’s allegations unless Professor Hall had had notice of the issue which did not fall strictly within those allegations and an opportunity to show why an adverse finding should not be made on that issue . By a process of seeking responses by Professor Hall on particular issues the Inquiry has sought to ensure that its conclusions cover all the material relevant to the allegations while not being confined to the allegations.”(emphasis added; footnotes removed)

The plaintiff was not given access to this correspondence between the Inquiry and the complainants. Plaintiff’s submissions

The plaintiff submitted that because he did not see the correspondence, between the Inquiry and the complainants, he lost the opportunity to gain insight into why the Inquiry reformulated the allegations as it did; and the opportunity to clarify the Inquiry’s understanding in his specific field of work. Further, Professor Hall submitted, that, as he did not see the correspondence, he could not know what effect the matters raised had on the Inquiry.

Professor Hall drew attention to two pieces of correspondence which post-dated the final formulation of the Allegations, being letters from Dr Chen relating to Allegations 5, 15, 21, 22, 23 and 24; and Ms Ha, relating to Allegations 17 and 18. Defendant’s submissions

The defendant submitted that nothing turned on the Inquiry’s declining to provide the documents to Professor Hall. It was submitted that: (a) all of the correspondence between the Inquiry and the complainants in relation to the formulation of the allegations pre-date the finalisation by the Inquiry of the allegations and they were not used by the Inquiry as evidence; (b) all but two of the pieces of correspondence between the Inquiry and the complainants during the investigation, in which further information was provided by the complainants to the Inquiry, relate exclusively to Allegations in respect of which no adverse finding against Professor Hall was made. These documents are: a letter and statement from Dr Chen relating to Allegations 5, 15, 21, 22, 23 and 24 and a letter from Ms Ha relating to Allegations 17 and 18; (c) of the other two documents, one (a statement of Dr Chen alleging that Professor Hall had committed scientific fraud and seriously erred from normal scientific practice in his attribution of authorship) was read onto the transcript and a copy of this transcript was provided to Professor Hall; (d) the other, to the extent it did not go to authorship issues (concerning which there was no adverse finding), was concerned only with matters of factual clarification not ultimately in dispute. Conclusions

In my opinion the correspondence which preceded the identification of the allegations did not have to be provided to Professor Hall to fulfil the requirements of procedural fairness. The Inquiry’s obligation was confined to providing him with an adequate opportunity to respond to the Allegations which the Inquiry intended to investigate. With respect to the two pieces of correspondence which post-date the formulation of the Allegations, the defendant is correct. The statement of Dr Chen was orally disclosed to Professor Hall during interviews. The letter concerning authorship issues raised no matter in respect of which an adverse finding was contemplated or made.

This challenge fails. (3) FAILURE TO ALLOW PROFESSOR HALL TO CROSS-EXAMINE THE COMPLAINANTS Background

By letter to the Inquiry dated 27 September 2002, Professor Hall requested that he be allowed to cross-examine the complainants. The relevant part of the letter reads: “6.4 I seek to be legally represented to: 6.4.1 Question witnesses by examination-in-chief, cross-examination and re-examination”

The Inquiry replied on 4 October 2002. The letter indicated that should legal representation be allowed, it would not be for the purpose of cross-examination of the complainants. The letter read as follows: “The Inquiry notes your comments at paragraph 6. The Inquiry hopes to resolve these matters when it meets again on 14 October 2002. It may be that the Inquiry permits the presence of lawyers for particular purposes, for example, to assist in resolving conflicts of oral evidence.”

In its Report, the Inquiry referred to its “inability to require witnesses to submit to cross examination to test their evidence.” It noted that this had led to “considerable difficulty in evaluating the evidence of the complainants (including Dr Penny) on the one hand and Professor Hall or one of his supporting witnesses on the other” (Volume 1 p25). Plaintiff’s submissions

The plaintiff submitted that the failure to allow cross-examination was a “particularly serious defect in the fact finding process of the Inquiry”. The plaintiff submitted that several matters may have been established in his favour had cross-examination been allowed. In his submission, the Inquiry should have: (a) either compelled cross-examination or alternatively, (b) identified the Allegations which should have been submitted to cross-examination and either not investigated those Allegations, or (c) not made findings adverse to Professor Hall on those Allegations unless and until cross-examination had been undertaken, or if it could not be undertaken, not taken any further action.

The plaintiff further submits that the Inquiry must have been aware, via correspondence with the complainants, of the antipathy on the part of the complainants towards Professor Hall which would have affected the reliability of the evidence. Professor Hall submits that the Inquiry did not challenge the credibility of the complainants or their probity as scientists.

The plaintiff’s submission emphasised that the Dowton Inquiry found: · it was at times unclear whether the complainants had understood the hypotheses underscoring Professor Hall’s work; · it was possible that Dr Chen failed to understand or accept the difference between fabrication of results and use of previous data in experiments as controls; and · it was possible that some of the complaints stemmed from the poor working relationships between Professor Hall and the complainants, especially Drs He and Chen. Defendant’s submission

The defendant submitted that the Inquiry was justified in its decision and did not deny the plaintiff procedural fairness by its refusal to allow cross-examination. Counsel for the defendant propounded fourteen propositions in support of this submission.

It was emphasised that the Inquiry had no power to compel any person to attend to give evidence and to submit to cross-examination. Accordingly there was no question of a wrongful exercise of a discretion to permit cross-examination. As Finn J said in Rose v Bridges (1997) 79 FCR 378, at p. 387: “A right to cross-examine witnesses cannot be asserted to be a possible requirement of procedural fairness where the inquiry … does not possess the power to require the giving of oral evidence and the submission of witnesses to cross-examination”.

The Inquiry wrote to the complainants asking them whether they were willing to be interviewed in the presence of Professor Hall and, if so, whether they were willing to be cross-examined by him. The complainants indicated that they were not prepared to be interviewed in his presence. Similarly the defendant emphasised that Professor Hall himself was unwilling to be cross-examined.

The defendant submitted that notwithstanding the refusal of his request to be allowed to cross-examine the complainants, Professor Hall was a willing participant in the Inquiry.

Further, the defendant submitted that Professor Hall was given transcripts of the interviews which the Inquiry had with the complainants together with a detailed outline of the Allegations against him. Professor Hall did not complain that the particulars of these Allegations were inadequate or that he was unable to respond to the matters raised in these interviews.

The defendant submitted that Professor Hall had an opportunity: (a) in his interviews with the Inquiry (and otherwise) to make suggestions to the members of the inquiry as to questions which could be put to the complainants; (b) to provide material which contradicted any assertions made by the complainants; (c) to adduce evidence in rebuttal of any matters raised by the complainants; and (d) to make submissions to the Inquiry both as to findings of fact and also as to the credibility of the complainants.

The defendant submitted that at no stage did Professor Hall indicate to the Inquiry in correspondence (or otherwise) that there was any specific prejudice which would flow to him from his inability to cross-examine the complainants on any particular issue. Even if the Inquiry had power to permit cross-examination (which it did not), the decision of the Inquiry to “disallow” cross-examination must be viewed in the light of the fact that it was not told of any specific prejudice which Professor Hall would suffer by reason of his inability to cross-examine the complainants. Conclusions

Conscious of the fact that it was not able to require cross-examination, the Inquiry approached issues of credibility with considerable caution. The Inquiry said: “Because of the gravity of the allegations made against Professor Hall, the seriousness of the charges made by Professor Hall against Dr He and Dr Chen, and the Inquiry’s inability to require witnesses to submit to cross examination to test their evidence and credibility, the Inquiry has been cautious in acting upon oral evidence that is not supported by other evidence. (at p 24-25 of Volume 1; emphasis added)

The Inquiry also said: “The Inquiry was faced with a considerable difficulty in evaluating the evidence of the complainants (including Dr Penny) on the one hand and Professor Hall or one of his supporting witnesses on the other. Professor Hall’s mistrust of Dr He and Dr Chen is so profound that, in his submission to the Inquiry in December 2002, he asserted his belief that Dr He “had set out to create a series of events that could be considered misconduct” and that Dr Chen’s “misreporting [had been] so selective it could only represent a deliberate action to nullify experimental findings by falsifying the results of controls” and that laboratory fraud “nearly always comprises fudging data to make a story, not contaminating controls to void experiments” so that he did not suspect such actions.” (p24 Volume 1)

Before reaching any conclusions the Inquiry undertook detailed investigations. Some of the steps it took were directed to matters of credit. Those steps included: (a) comparison of the evidence of Professor Hall with the documents forming the basis of Allegations or related to the Allegations (see, for example, pp38, 73, 152 Volume 1); (b) consultation with various experts on the veracity of Professor Hall’s statements concerning, for example, whether the location of work being done is relevant in immunology (at pp37, 45, 55, 111 Volume 1); (c) consultation with experts of Professor Hall’s choosing, who were asked the same questions as the experts appointed by the Inquiry (p49 Volume 1, regarding use of historical data); (d) identification of perceived errors or mistakes in the expert opinions proffered (p58 Volume 1); (e) consideration of certain documents provided by Professor Hall in support of statements he made regarding, for example, data of experiments (p42 Volume 1); (f) comparison of the oral evidence of complainants, other witnesses and Professor Hall on specific Allegations (for example, preparation of statistical data, p67 Volume 1); (g) acknowledgement of particular incidents around which there was “conflicting and contradictory evidence” (pp70, 155 Volume 1) or inconsistencies in evidence from witnesses (p136-137 Volume 1); (h) identification of areas in which interpretation of the meaning of certain terms was crucial, such as Allegation 5, where the Inquiry said (at p72 Volume 1): ‘This allegation is critically dependent upon an understanding of what is meant by “rejection” and by transplantation “tolerance” and the consistency with which these terms are used in reporting and describing the primary animal data’ (i) recognition of personal and professional differences and antipathy between certain witnesses (pp76-77, 91, 176 Volume 1) and of instances raised by Professor Hall of alleged misconduct by one or more of the complainants (for example, Dr Chen, pp83, 85-86, 127 Volume 1); (j) recognition of instances in which it was too difficult to make a definitive finding on the evidence given, for example: ‘It is almost impossible to reconstruct the events which lead up to this allegation. Either Ms Robinson or Dr He are not telling the truth here, and in these circumstances, the Inquiry is unable to determine the facts with any confidence.” (at 107 Volume 1; other instances are at pp154, 166);

It is apparent that the Inquiry could not require cross-examination. Accordingly, for there to be a fair hearing it was necessary for the Inquiry to recognise the problems of making findings in relation to credibility and other matters where the evidence had not been tested by cross-examination. I am satisfied that it discharged this obligation.

Although a court hearing will usually provide an opportunity for cross-examination, it is not an essential requirement for a fair hearing (see R v War Pensions Entitlement Appeal Tribunal ex parte Bott (1933) 50 CLR 228; O’Rourke v Miller (1985) 156 CLR 342, at pp 353-354). Where it is not provided, the findings made by the tribunal must be made with appropriate caution. This occurred in the present case.

This ground of challenge fails. (4) FAILURE OF THE INQUIRY TO GIVE NOTICE OF ITS INTENTION TO MAKE ADVERSE FINDINGS IN RESPECT OF ALLEGATIONS 3, 4, 9, 10 AND 13 The fundamental submission

Professor Hall submitted that he was not given adequate notice of the findings in respect of various Allegations and has accordingly been denied a fair hearing.

The Inquiry Report provided formal Findings with respect to each Allegation. The Inquiry made separate Conclusions, which may include adverse findings other than formal Findings. The Inquiry stated how it ensured procedural fairness in relation to these findings. It said: “As stated in Chapter 1, the “Findings” are limited to the elements of the formal 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 opinion.” (Volume 1 p188) Findings of the Inquiry

Professor Hall challenged the Findings made in relation to five Allegations. Allegation 3

The substance of Allegation 3 is that Professor Hall published or authorised for publication or submitted for publication two papers containing identical information; that he published data in the later paper which purported to be new data but which was in fact data from old experiments; and that there was no acknowledgement or identification of the publication of the earlier data. It was alleged that Professor Hall had deviated from commonly accepted scientific practices; presented a material or significant falsehood, and published the paper with intention to deceive or in reckless disregard of the truth.

The matter was raised in interviews with Professor Hall on 22 October 2002. During the Inquiry’s interview of Professor Hall in relation to Allegation 3 (see Volume 4 Part I pp 33-42) Professor Whitworth asked Professor Hall: “I guess my question is, that in today, in 2002, do you think it would be acceptable to have data published without a clear reference to the initial source of data as it apparently was in the 70s?” (Volume 4 Part I p38 lines 46-51).

The Finding in relation to Allegation 3 was: “Professor Hall knowingly authorised for publication in Paper 1 data which had been previously published but without appropriate acknowledgment of or cross referencing of these data to the previous publications and thereby seriously deviated from practices commonly accepted within the scientific community for reporting research.” (Report Volume 1 p59). Allegation 4

Allegation 4 is framed in similar terms to Allegation 3. The substance of the Allegation is that the plaintiff submitted or authorised for submission for publication, a paper relating to experiments on rats, in which Tables II and III related to different experiments on different strains of rats. The data in both tables was in some places identical despite the distinct experiments purportedly conducted. The terms of the Allegation are that Professor Hall stated or presented a material or significant falsehood, and that he submitted the paper with intent to deceive or in reckless disregard for the truth.

The Members of the Inquiry raised Allegation 4 with Professor Hall during interviews on 22 October 2002. The relevant parts of the interviews are recorded in the Report at Volume 4 Part I pp42-53. During the interview, the Chair, Sir Gerard Brennan, said to Professor Hall: “Appreciating that you are concerned to publish the data so that your peer group can understand the actual figures on which your work proceeds, it seems extraordinary that these figures could be the same without your identifying those small differences – or not “small differences” but differences of two figures in the same data line. Do you follow what I am saying?” (Report at Volume 4 Part I p47 lines 5-12).

The Inquiry found in relation to Allegation 4 (Volume 1 at 191): “Professor Hall authorised for publication the Paper containing duplicated and misleading data and thereby seriously deviated from practices that are commonly accepted within the scientific community for reporting research, and published a material and significant falsehood, namely that the data in the lines specified in this allegation, being identical, applied to rats grafted with third party hearts from both Lewis and F344 rats, and did so in reckless disregard of the truth.” Allegation 7

The terms of Allegation 7 are that Professor Hall published or authorised the publication of an abstract for presentation at a conference which contained a statement related to third party grafts, but that no third party graft experiments relevant to the statement had been carried out by Professor Hall, any member of his laboratory, or any other author or author’s laboratory. It was alleged that Professor Hall stated or published a material or significant falsehood, and published the abstract with intent to deceive or in reckless disregard for the truth.

The Inquiry raised Allegation 7 with Professor Hall in interviews on 22 October 2002. The interview relating to this Allegation is recorded in Volume 4 Part I pp81-87. Professors Whitworth and Chalmers both asked Professor Hall questions going to the construction of the relevant statements in the abstract, and to whether the correct construction of the impugned statements was that they were misleading or merely ambiguous.

In relation to Allegation 7, the Inquiry found (Volume1, p 199): “That Professor Hall published or authorised the publication of the abstract with intent to deceive or in reckless disregard of the truth.” Allegations 9 and 10

Allegations 9 and 10 are in similar terms: that Professor Hall submitted a paper or an application for a research grant containing results or experiments which were never carried out in Professor Hall’s laboratory or any other laboratory of any other author of the paper; and thus that he stated or published a material or significant falsehood, and submitted the papers with intent to deceive or in reckless disregard for the truth.

Allegation 9 was discussed in interviews on 22 October 2002 and is recorded in the Report in Volume 4 Part 1 pp95-103. Professor Chalmers said to Professor Hall: “But the bottom line, then, is that this is actually data which, through a series of circumstances which you outline in your response, didn’t exist and did end up in a paper submitted?” (Volume 4 Part 1 at p97 lines 4-8)

The substance of the Allegation was raised again on 24 October 2002, during interviews described by the Inquiry as “Professor Hall’s Reply”. The relevant parts of the interviews are at Vol 4, Part IV pp210-213.

Allegation 10 was discussed on 22 October 2002, as recorded in the Report in Volume 4 Part 1 pp104-109. Professor Chalmers (at p105 line 5) asked Professor Hall if he agreed that the issue raised in Allegation 10 was the same as that raised by Allegation 9; Professor Hall agreed that it was. Professor Whitworth asked Professor Hall: “If it has come to your attention that there were errors in the grant, you would have corrected these in that response to the interviewers? ” (p106 line 26).

The Inquiry expressed joint Conclusions in respect of Allegations 9 and 10 but made separate findings in respect of each Allegation.

In relation to Allegation 9, the Inquiry found (at p141 of Volume 1 of the Report): “That … Professor Hall stated a material and significant falsehood, with reckless disregard for the truth.”

In relation to Allegation 10, the Inquiry found (at p141 of Volume 1 of the Report): “1. That…Professor Hall stated a material and significant falsehood with reckless disregard for the truth. 2. That…Professor Hall stated a material or significant falsehood with deliberate intent to deceive. Allegation 13

Allegation 13 relates to the preparation and submission of a research grant application to the National Health and Medical Research Council of Australia. It is alleged that Professor Hall presented a conclusion but omitted facts relevant to that conclusion, with the result that he stated or published a material or significant falsehood, and prepared and submitted the application with intent to deceive or in reckless disregard for the truth.

Allegation 13 was first raised with Professor Hall in interview on 22 October 2002 (recorded in Volume 4 Part I pp110-123). On 24 October 2002, during Professor Hall’s “reply” interview, the matter was discussed and is recorded in Volume 4 Part IV pp110-123 and 215-218.

With respect to Allegation 13, the Inquiry found (at p69 of Volume 1 of the Report): “Professor Hall prepared or authorised the preparation of and submitted or authorised the submission of the grant application number 209656 to the NH&MRC, containing information at Figure 2 in the section entitled ‘Detailed Background and Research Plan’ containing a conclusion “all differences are significant p<0.05’ and omitting relevant facts, so that in Figure 2 of the application Professor Hall stated and presented a material or significant falsehood in reckless disregard of the truth.” Plaintiff’s submissions

The plaintiff submits that the Inquiry was required to give him adequate notice of and an opportunity to respond to evidence which the Inquiry collected and which was or may be adverse to his interests, before issuing a final Report. The plaintiff submits that the Inquiry failed to comply with these requirements.

Professor Hall accepts that the Inquiry gave notice, via correspondence, of its intention to make adverse findings in relation to Allegations 1, 3, 5, 7, 8, 10, and 12. No adverse Findings were made in respect of Allegations 2, 11, and 14-24. Allegation 6 was withdrawn and accordingly not investigated by the Inquiry. However Professor Hall submits that the Inquiry failed to give notice of possible adverse findings in respect of Allegations 4, 9 and 13 and some aspects of the findings in respect of Allegations 3 and 10.

The plaintiff submitted that the Inquiry, in accordance with common practice, should have provided Hall with a draft report and invited his responses to it before making the final Report containing adverse findings. Defendant’s submissions

The University denied that it was common practice, or necessary, to provide a draft report to a person who may be adversely affected by it (See Sinnathamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Ansett v Minister for Aviation (1987) 72 ALR 469; Chiropractors Association of Australia (SA) Ltd v Workcover Corporation of Australia [1999] SASC 120).

The University submitted that in relation to each finding raised by Professor Hall a proper understanding of the facts demonstrated that appropriate notice had been given. With respect to Allegation 3, the “specific issue” appeared to be the “finding about a failure to acknowledge or cross-reference”.

The University pointed out that the Secretariat Co-ordinator wrote to Professor Hall by letter dated 18 December 2002 (Document 76 in Vol.2, Part III) and said: “The material relevant to allegations 1 and 3 shows there is no reference to the Stanford source of data appearing in the Papers in which Professor Hall’s laboratory is shown as being at Liverpool Hospital. Is there any reason why the Inquiry should not make a finding that those omissions were serious deviations from commonly accepted scientific practice?”

Beyond this letter, the University emphasised the fact that the topic of the attribution of the Stanford work was the subject of extensive discussions in Professor Hall’s interview with the Inquiry, and referred to Volume 4, Part 1, pp 5-11, 15-19, 24-27, and Part IV, p 223.

The University submitted that in relation to Allegation 10, Professor Hall was specifically asked in a letter from the Secretariat Co-ordinator dated 18 December 2002 for: “an explanation of the description of a paper as submitted in the NH and MRC grant application 209656 when the paper was not submitted until 26 June 2001” (being a date later than the application).

The University submitted that this letter, by seeking an explanation, gave Professor Hall adequate notice that an adverse finding may be made in relation to Allegation 10. Furthermore, Professor Hall made lengthy submissions to the Inquiry in respect of Allegation 10, and the problems the Inquiry raised with him, and the Allegation was canvassed with him in the course of his interviews.

In relation to Allegations 4, 9 and 13, the University emphasised that Professor Hall was told what the terms of the Allegations were (Professor Hall makes no complaint about particulars) and he had access to transcripts of interviews with the complainants and laboratory staff together with other material (Allegation 4: interview with Dr Chen: Volume 4 Part II, Tab 3 pp14-15. Allegation 9: interview with Ms Saverimuttu: Volume 4 Part III Tab 8 pp6-11; interview with Dr Chen Volume 4 Part II Tab 3 pp47-49. Allegation 13: interview with Ms Saverimuttu Volume 4 part III Tab 8 pp12-13; interview with Ms Robinson at Volume 4 Part III tab 9 pp2-9, 11-12; interview with Ms Plain at Volume 4 Part III pp6-7; interview with Dr He at Volume 4 Part II Tab 6 at pp16-21).

The defendant submitted that in the light of these discussions and access to the interview transcripts, it was unnecessary for any further notice of adverse findings to be given to Professor Hall. Conclusions

I accept the University’s submission. I am satisfied that in the circumstances of this case the relevant issues and potential for adverse findings were adequately raised with Professor Hall. Although the possible findings with respect to Allegations 1, 5, 7, 8 and 12 were expressly raised with Professor Hall in correspondence, all of the Allegations were raised with him in correspondence or interview in a manner which provided Professor Hall with an adequate opportunity to respond.

Although in some cases a convenient means of raising the issue with a potentially affected person is to provide a copy of a draft report for comment, it is by no means essential. The right to be heard provides that a person must know of the allegation and the material relevant to that allegation which could lead to an adverse finding, and have the opportunity to respond to that allegation and material (see Kioa at 628). I am satisfied that this was done in relation to the Allegations investigated by the Inquiry which could lead to adverse findings in respect of Professor Hall. (5) FAILURE TO PROVIDE PROFESSOR HALL WITH THE OPPORTUNITY TO RESPOND TO ADVERSE COMMENTS MADE BY EXPERTS QUALIFIED BY THE INQUIRY Background

The Inquiry qualified its own experts, and received written reports from them. The experts were Professor d’Apice, Sir Peter Morris, Professor McKenzie and Professor Parish. On 17 January 2003, counsel for Professor Hall wrote to the Inquiry seeking copies of the reports of those experts. The Inquiry replied on 21 January 2003. It indicated that it declined to release the reports as it did not have the authority of the authors to do so. The letter read: “I refer to your letter of 17 January 2003. The Inquiry has considered all the points made in your letter arising from the reports made to the Inquiry by Professors Carpenter and Tilney. The Inquiry has also considered the reports from the Inquiry’s experts but as it has no authority from the experts to provide copies to Professor Hall we cannot presently do so. However, nothing in those reports has led the Inquiry to a tentative view adverse to Professor Hall.” [emphasis added]

The letter was dated 21 January 2003, just ten days before the final Report was handed to the Vice-Chancellor. It is reasonable to assume that the final Report was in draft form by this stage.

This aspect of the plaintiff’s challenge arises from the Inquiry’s discussion of Allegations 1, 2 and 3. Professor Hall submits that contrary to the assertion in the letter of 21 January 2003, the Inquiry’s Report makes plain that it did rely on the expert reports when forming Conclusions and making Findings adverse to him. He also complains that by denying him the reports the Inquiry breached one of the requirements for procedural fairness included in the Terms of Reference. Allegation 1

The terms of Allegation 1 are that Professor Hall published or authorised the publication of the following two papers: Paper 1 “B M Hall, J Chen, K M Plain, L Fava, C Robinson, M R Nicolls, N D Verma, X Y He, M F Berger and S J Hodgkinson ‘Specific unresponsiveness in rats with problonged cardiac allograft survival after treatment with anti-CD3 monoclonal antibodies. III. Long term specific tolerance dependent upon CD4+, CD25+ T Cells that do not inhibit Th1 responses and act independent of II-4, II -5 and TGF-â’ J. Immunology (accepted). Paper 2 B M Hall, L Fava, J Chen, K Plain, R Boyd and S T Spicer and M F Berger ‘Anti-CD4 monoclonal antibody-induced tolerance to MHC-incompatible cardiac allografts maintained by CD4+ suppressor T cells that are not dependent upon IL-4’ Journal of Immunology , 1998, 161:5147-5156.

It is alleged that Professor Hall: (a) published or authorised publication of data which purported to be new data (Paper 1) which were in fact data, or subsets of data, from old and different experiments previously published (Paper 2) without acknowledging or identifying the previous publication; (b) seriously deviated from practices that are commonly accepted within the scientific community for reporting research; (c) presented a material or significant falsehood; and (d) published or authorised the publication of Paper 1 with intention to deceive or in reckless disregard of the truth.

The Inquiry took evidence from a number of witnesses, including Professor Hall, in relation to this Allegation and retained experts to give opinions on some of the matters raised. Opinions were also sought from experts chosen by Professor Hall. In particular he provided the opinion of colleagues at the Journal of Immunology , the scientific journal to which the papers had been submitted for publication.

The Inquiry was concerned that “perusal of the Papers would lead the reader to conclude that all the work was performed at Liverpool Hospital, when this was not the case, in that some of the experiments were done at Stanford” (an American University). To form a view about that aspect of the matter the Inquiry did not require scientific knowledge but was merely required to reach an understanding of the relevant Papers.

The Inquiry said: “Professor Hall stated in his initial written response to allegation 1 that the majority of the work on neonatal heart grafts in irradiated hosts restored with cells from animals with long surviving tolerant heart grafts was done while he was at Stanford University and that some experiments were repeated in Liverpool Hospital.” (Report Volume 1 p 30)

The Inquiry continued: “Allegation 1 also raises the publication of data purporting to be derived from experiments using certain methodologies which in fact were derived from experiments using different methodologies. Professor Hall’s explanation of the identity or substantial identity of the data lines was that they were derived from the same set of experiments which, in the case of Allegations 1, 2 and 3, were historical controls that had established clearly reproducible outcomes. He said that experts in transplantation immunology would understand that the data lines in later published papers were historical controls inserted to show the significance of the new experimental data reported.” (Report Volume 1 p 186)

The Inquiry had to determine whether the location of the experiments was important and whether proper scientific practice required the location to be acknowledged in the Paper. The Inquiry’s discussion of the issues raised in Allegation 1

In its discussion of the matters raised by Allegation 1, the Inquiry said (at Volume 1 pp36-37): “Ethical approval The methods section of Paper 1 asserts that animals ‘were bred and maintained at the animal house, Liverpool Hospital’ and that ‘all experiments were approved by the Animal Ethics Committee, UNSW’ although the earlier experiments, from which the data referred to in this Allegation were derived wholly or in part, were undertaken at Stanford in the USA. These assertions convey to the reader that all experiments were performed at Liverpool. In the context of Paper 1, the omission of the origin of the corresponding data misrepresented its source. Professor Hall’s explanation of the omission was that he had left Stanford seven years earlier and did not feel it appropriate to put on the Paper that he had worked at Stanford any more, or was associated with it. He said that, as the majority of the work had been done at Liverpool Hospital, and as he had not worked at Stanford since 1991, he thought it would not be appropriate to add Stanford University as one of the institutions at which the work had been done (Hall, 18/37). In the Inquiry’s letter of 18 December 2002 to Professor Hall it asked: “The material relevant to allegations 1 and 3 shows that there is no reference to the Stanford source of data appearing in Papers in which Professor Hall’s laboratory is shown as being at Liverpool Hospital. Is there any reason why the Inquiry should not make a finding that those omissions were serious deviations from commonly accepted scientific practice? In seeking to justify his omission of reference to Stanford University in the papers, Professor Hall, in his letter of 9 January 2003 focussed on the issue of not naming Stanford in the list of institution addresses. He contended that after this period of time “a Stanford address was not necessary.” The Inquiry accepts this. After this time there was no reason for Professor Hall to use a Stanford address. Rather, the concern of the Inquiry was that perusal of the papers would lead the reader to conclude that all the work was performed at Liverpool Hospital, when this was not the case in that some of the experiments were done at Stanford. Professor Hall defended this (Appendix 1 to question 3 of his response of 9 January 2003 – under (c) “Reference to the site research is carried out when there are authors from multiple institutions”). Professor Hall concluded “The location of work being done is irrelevant in immunology”. This was not the view of independent experts consulted by the Inquiry, in particular Professor d’Apice and Professor Morris as extracted in allegation 2. Professor Hall provided opinions from senior colleagues at the Journal of Immunology. Dr Alan Krensky stated “Since the data was eight years old he had not acknowledged Stanford in the manuscript. I find no harm in this oversight”. Dr Fitch, Editor in Chief stated, “I find no problem with this”. Notwithstanding these comments from editors of a journal (who may be concerned more with questions of copyright than with the source of data) the Inquiry adopted the views of the experts consulted by it.” [emphasis added]

The Inquiry continued: “Reference to Paper 2 Paper 2 is reference 12 in Paper 1 and is referred to in Paper 1 in the Introduction, in the Methods (‘this dose has been shown to block the relevant cytokine for up to 10 days …’, (page 8) and in the Discussion but not in the Results. There is no indication to the reader that the data lines in Paper 1 corresponding to data lines in Paper 2 have been previously published. This general issue of failure to refer clearly to previously published data is discussed more fully under allegations 2 and 3. The duplicate Stanford books might explain the use of the data in Paper 1 without reference to Paper 2, only if Professor Hall did not recollect when writing Paper 1 that the book to which he was then referring contained data corresponding to data contained in Paper 2. Yet Professor Hall must have been aware that he was inserting into the tables in Paper 1 control data derived in part from experiments carried out at Stanford. It is possible, albeit unlikely, that Professor Hall was not conscious of the possibilities of having used corresponding data derived from the same source in the earlier publication. In any event, his reference to the data in Paper 1 failed to identify the time and place of the experiments from which these data were derived.” [emphasis added] Findings and Conclusions of the Inquiry in respect of Allegation 1

The Inquiry made adverse Findings in respect of Allegation 1 (Volume 1 p59): “Professor Hall knowingly authorised for publication in Paper 1 data which had been previously published but without appropriate acknowledgment of or cross referencing of these data to the previous publications and thereby seriously deviated from practices commonly accepted within the scientific community for reporting research.” [emphasis added]

In addition to the formal Finding, the Inquiry drew the following Conclusions (at pp58-59, Volume 1): “Conclusion 1. The Inquiry does not accept the proposition that the referencing used in Paper 1 conveyed to the reader the information that data in Table 2 of Paper 1 was previously published in Paper 2. Paper 3 (Reference 41 in Paper 1) was mentioned in the text of Paper 1 on page 13 after reference to Table 2. This is not inconsistent with the notion that the Table in Paper 1 contains material from Paper 3, although nowhere is this explicitly stated. Some reference to each of the previous publications was included in Paper 1 and establishes that Professor Hall was aware of the previous publication of the data. 2. Paper 1 asserts that animals were bred and maintained, as previously described, at Liverpool Hospital and all experiments were carried out as approved by the Animal Ethics Committee at UNSW. These assertions convey to the reader that all experiments were performed at Liverpool. Papers 2 and 3 are said to be from the University of Sydney, and Paper 4 from Liverpool. If Professor Hall wrote Paper 1 in reliance on data from Stanford in 1991 as he stated, he falsely represented the source of the data, which was said to be Liverpool and thereby seriously deviated from practices that are commonly accepted within the scientific community for reporting research. 3. As it does in relation to Allegation 8, the Inquiry recommends that it is desirable that control experiments should be built into the study design so as to be conducted contemporaneously wherever possible. It recommends that Professor Hall should review his policies in this regard, so as to minimise the use of historical controls, and avoid the admixture of data from old and new sources, in conformity with contemporary ethical standards. If this proves unavoidable in some situations, it must be transparently clear and explicitly recorded and referenced in any manuscript submitted for publication, and in any abstract submitted for presentation at scientific meetings.” [emphasis added] Allegation 2

Allegation 2 was similar to Allegation 1 in so far as it alleged that Professor Hall had engaged in replication of data without proper referencing. The terms of the Allegation were: “That Professor Hall, in two papers dated 1990 and 1993, published or authorised the publication of data which purported to be new data which were in fact data, or subsets of data, from old experiments previously published without acknowledging or identifying the previous publication, and in so doing, Professor Hall thereby seriously deviated from practices that are commonly accepted within the scientific community for reporting research and presented a material or significant falsehood, and Professor Hall published or authorised for publication the 1993 paper with intention to deceive or in reckless disregard of the truth.”

The Inquiry received explanations of the referencing method from Professor Hall in interview and in written submissions. The Inquiry said: “Professor Hall stated to the Inquiry that the republication of historical controls was common in his field … In his first interview, Professor Hall offered to produce examples of this in papers from other research groups. The Inquiry subsequently sought this material from Professor Hall. Professor Hall gave a number of examples said to be of republication of control data (Professor Hall’s response of 11 November 2002 and additional examples provided on 19 November 2002)” (Volume 1 p 42)

The Inquiry considered Professor Hall’s explanations and said: “In summary, no examples were provided by Professor Hall of use of historical controls with duplicate data lines published many years previously from different laboratories in different countries without reference . There were at least 2 examples of one or two control data lines in separate publications from the same laboratory up to two years apart. Thus Professor Hall has demonstrated that a reputable section of the transplant research community has used one or two control data lines when the data was derived from experiments recently conducted in the same laboratory without explicit referencing. Scientific members of the Inquiry were of the view that the use of historical data without clear and transparent referencing (so that the reader was aware that these experiments were separated in time and place) was not accepted scientific practice.” [emphasis added] Expert opinion obtained in respect of Allegation 2

Feeling itself unqualified to draw conclusions on the specific question of referencing historical data in transplantation immunology papers, the Inquiry decided to engage experts to give opinions on the issue. It said: “As none of the scientific members of the Inquiry was expert in transplantation immunology and Professor Hall contended…that this was normal practice in that field, the Inquiry consulted with four independent experts: Professor Sir Peter Morris (President of the Royal College of Surgeons) from Oxford University, Professor Tony d'Apice from St Vincent’s Hospital Melbourne, Professor Ian Mackenzie from the Austin Medical Research Institute, Melbourne and Professor Chris Parish from the John Curtin School of Medical Research at the Australian National University in Canberra.”

The “normal practice” to which the Inquiry refers was the practice of using, without reference, historical controls with duplicate data lines published some years previously, from different laboratories in different countries.

The Inquiry indicated that it asked the experts the following questions (Report at p46 Volume 1): “What comment do you have on the presentation of historical controls and on the adequacy of the referencing to those controls? Is it relevant to mention that some of these data were for experiments performed in a different country, and institution under different ethical approvals from those mentioned and that they were not contemporaneous?”

The opinions provided, and included in the Report, make specific comments about the papers which formed the basis of the Allegation. The Inquiry extracted the material findings of the experts in the Report (Volume 1 pp46-49).

The extract from Professor Parish was to the effect that Professor Hall had met the important requirement of clearly acknowledging that historical data are being presented (Volume 1 p46). It read: “It is legitimate to publish historical controls when reporting research results, particularly when dealing with rejection of allografts, where the responses are very reproducible from laboratory to laboratory for the same strain combinations. What is important, however, is that it is clearly acknowledged that historical control data are being presented. In the case in point, the first two sentences of the Results section of paper 2 (p 375) are crucial, and do acknowledge that historical data is being used.”

Professor McKenzie was of the opinion that what Professor Hall had done was accepted practice; but did find that Professor Hall had made a “minor omission” in one instance (Volume 1 pp46-47).

In his comments in relation to the issues raised in Allegation 2, Sir Peter Morris said: “Paper 1 implies that the irradiated animals were both used in Sydney and Stanford as mentioned in Methods and Materials where two similar, but not identical protocols of irradiation were used in each institution. Professor Hall feels that as there are rolling controls being performed over many years that this is acceptable. However, there is no question that the behaviour of animals of the same strain from different animal houses and different breeders may differ in their biological behaviour and indeed may behave differently over several years when the source is the same animal house. It is perhaps unlikely that the behaviour of animals receiving sublethal whole body irradiation would change, but I would doubt it. Nevertheless I would have expected that it should have been mentioned that contemporaneous control would not be used and which experiments were carried out in the USA and which in Sydney. Paper 2 does appear to be citing the same controls (Table 1 line 3) as in Paper 1 (Table 1 line 1, Table 2 line 1, Table 4 line 4) but there is no mention in the Methods and Materials other than that irradiation was carried out as previously reported. This is not good practice but I will regard it as an ‘economy with the truth’ rather than fraudulent practice. Again I would feel strongly that controls should always be contemporaneous with the relevant experiments for the reasons given above, and that would have been considered appropriate practice in the 1980’s.” [emphasis added]

In his opinion provided in relation to Allegation 2, Professor d’Apice was emphatic that controls are integral to experiments and as such, “if historical controls are used, that fact should be explicitly stated and justified” (cited in Report p47 Volume 1). He said that he found it difficult to ascertain from the paper itself where some of the experiments had been conducted and when (cited in Report p47 Volume 1).

In the opinion cited in the Report, Professor d’Apice made comment on the use of controls: “Controls are integral components of an experiment. They control for a host of variables which may influence experimental results but which may not be readily apparent. In general controls should be contemporaneous and use identical material, reagents, animal colonies, conditions and operators etc to the experimental groups. In some studies it is wise to scatter the performance of controls throughout the performance of the experimental groups to allow for “drift” or subtle changes in technique or even the development of expertise (learning curve). In my opinion there are few exceptions to this general rule. This may be the case when repetition of controls is very expensive or for ethical reasons. For example, when higher primates are being used, the above regimen can be arduous, expensive and ethically unwarranted. If historical controls are used, that fact should be explicitly stated and justified. The actual data that is historical should be clearly identified and the reference to the previous publication should be given. The appropriateness or otherwise of use of the historical data is then able to be subject to peer review.’ [emphasis added]

Professor d’Apice went on to say: “The question here is whether the first sentences in the Results section represent sufficient identification of historical data. I would doubt that the paper would have been accepted without argument about this issue if it had impinged on the mind of the reviewer that the sentence indicated that historical data was being relied on for the controls. I do not agree with Professor Hall’s statement “The data reported is a control and not reported as a new finding. This meets standard practices.” Controls are integral parts of the experiment and the data derived from it, the experimental results can only be understood in the context of the controls.”

On 24 October 2002, the Inquiry undertook interviews to which it referred as “Professor Hall’s Reply”. During discussion of the issues related to Allegation 2, the following exchange took place (Report at Volume 4 Part IV p182 lines 8-43): “Q: PROFESSOR WEATHERALL: This is, I guess, regarding the concept of using control data retrospectively and for how long and the critical importance of clarity in how that data is presented. Your view, I think, was that one of the reasons that you would use this for such a long period was the problem of animal experiments and ethics committees, animal ethics committees and so on. I think the feeling among a number of experts in the field is probably that one should really be doing at least current updating that control data the whole time, perhaps annually, because of all sorts of changing conditions and so on. Obviously it is critical to the way that control data is presented in that it is absolutely clear in a paper whether one is dealing with current data or previous controls. I just wondered if you had time to reflect on that issue at all? Let me be more specific: are you really happy about that, but in particular – A: PROFESSOR HALL: I have thought about it in some detail and I thought in this area there are three broad issues. I wasn't sure whether there was an understanding of my definitions of rejection and tolerance, which partly relates to this issue; and I promised Sir Gerard that I would provide some material demonstrating that other people in this area do this; and I wanted to go through what I actually did because Professor Whitworth provided some criteria by three Australian colleagues. My precis of what I thought -I have some notes here, I hope you don't mind if I use them -the three people you interviewed, Professor Whitworth, thought in immunology it was unusual, and I accept that. [emphasis added]” Professor Hall’s experts’ opinions in respect of Allegation 2

Professor Hall was able to put before the Inquiry opinions of experts of his own choosing. They supported Professor Hall’s position.

Professor Charles Carpenter of the Harvard Medical School stated that the way in which Professor Hall had referenced his historical data as “rolling controls” made “perfect sense” (cited in Report p49 Volume 1).

Professor Tilney, Professor of Surgery, Harvard Medical School and Director, Centre for Transplant Research, Brigham and Women’s Hospital, was of the opinion that the rolling controls were used by scientists in Professor Hall’s specific field and were common practice: “I think all of us who work in these stringent animal models over a long period use the same kind of ongoing controls.” (cited in Report p49 Volume 1) Conclusions and Findings of the Inquiry

Having considered the expert opinions provided, the Inquiry said in relation to Allegation 2 (at p50 Volume 1): “The experts differed in their views as to what was acceptable in the use of historical controls and referencing to those controls. Accordingly, as some acknowledged reputable experts said that the method used was reasonable and others said that the method used was adequate albeit not ideal, no adverse finding is made against Professor Hall in relation to this allegation .” [emphasis added]

The Inquiry’s Conclusions in relation to Allegation 2 were: “1. As Professor Hall did reference the historical control data previously published in Paper 1 as reference 16 in the results section of Paper 2 , he did not seriously deviate from the practices that are commonly accepted within the scientific community. As it does in relation to Allegation 8, the Inquiry recommends that it is desirable that control experiments should be built into the study design so as to be conducted contemporaneously wherever possible. It recommends that Professor Hall should review his policies in this regard, so as to minimise the use of historical controls, and avoid the admixture of data from old and new sources, in conformity with contemporary ethical standards. If this proves unavoidable in some situations, it must be transparently clear and explicitly recorded and referenced in any manuscript submitted for publication, and in any abstract submitted for presentation at scientific meetings.” [emphasis added]

The Inquiry did not make an adverse Finding in relation to Allegation 2. Allegation 3

Allegation 3 was similar in nature to Allegations 1 and 2. The experts qualified by the Inquiry were the same as those consulted for Allegations 1 and 2, and they were asked the same questions as they were asked in relation to Allegation 2. The Inquiry also considered the opinions of Professors Carpenter and Tilney, the experts nominated by Professor Hall. Expert opinion in relation to Allegation 3

In response to the Inquiry’s request, Professor Parish made comments on Professor Hall’s method of referencing. Professor Parish stated: “In Table 1 of Paper 1 it is alleged that Professor Hall has used data from two earlier publications without acknowledgement. Under items (1) and (2) (lines 3 and 4 of Table II, Paper 1) it does appear that historical controls are being used but the text of the paper does not state clearly that this is the case. In the case of items (3) and (4) it is alleged that “substantially similar” or “almost identical” data to previously published material is being presented in lines 5 and 6 of Table 1, Paper 1. It is hard to say with certainty that these data represent historical controls as in (3) there is a small number of replicates whereas in (4) the rejection times of the 14 replicates are over a narrow time range (11-14 days).” (emphasis added)

Professor McKenzie also made comments on referencing: “My conclusion is the same as for Allegation 2. The same control data was published in several papers. In this particular case the work is not referenced (Professor Hall indicated that the Journal Editor removed this reference as it was “in press”). While not ideal, this is accepted practice for such biological studies as described in my comments on Allegation 2.” (emphasis added)

The Inquiry cited Professor d’Apice at some length: “The age at repetition of the data in Paper 1, which had previously been used in Paper 2 (Particulars 1, 2 & part of 3 of Allegation 3) and in Paper 3 (part of Particular 3), was approximately 16 years. In … relation to the replication of data in Paper 1 … no reference to Paper 3 (i.e. reference 41) is made in the Material & Methods section wherein Table 2 (which contains the replica data). However, while Paper 3 (ref 41) is referenced in the Results section (line 5 of the paragraph “Ability of CD4+ CD25+ cells and … …”), the use of the reference does not indicate or suggest that Table 2 contained data previously presented in reference 41 (i.e. Paper 3).”

In relation to the use and referencing of historical controls, it was Professor d’Apice’s view that: “If historical controls are used, that fact should be explicitly stated and justified. The actual data that is historical should be clearly identified and the reference to the previous publication should be given. The appropriateness or otherwise of use of the historical data is then able to be subject to peer review. Paper 1 does not reference Paper 2 (called reference 7) in a manner that would alert a reviewer or reader to the fact that data had been replicated between the papers or that historical controls were employed . There is a reference to Paper 3 (reference 41) in the Results section of Paper 1 but it does not alert one to the replication of data or use of historical controls.”(emphasis added)

Professor d’Apice further stated that he: “… did not believe that the reviewers of the papers containing either replicated data or historical controls would have accepted those papers without criticism on this issue had they been aware of the facts.”

Professor d’Apice made comments on the question of location: “When one presents an individual experiment (such as comprises Table 2 of Paper 1 or Table II of Paper 2) it is taken as a whole i.e. as a single piece, constructed and performed exactly as indicated in the Methods section. It is not a composite of work performed in different places, possibly by different operators, using different animal colonies, and at different times etc. Even in a paper that is the product of collaboration between two laboratories (or by the same investigators working at different sites), one expects that each individual experiment is the product of a single laboratory and that the controls are not from a different time and place to the experimental groups. In the case of Particulars 1, 2 & 3 (concerning the use of historical controls from Papers 2 & 3 in Paper 1 ), the experiments were performed by two totally different groups of investigators with the exception of Professor Hall, in two different laboratories, used animals from different sources and the studies were not contemporaneous by a span of 15 or more years. I do not think that the experiments can be regarded as validly controlled.” (emphasis added)

Sir Peter Morris responded to the Inquiry as follows: “With respect to particulars 1 and 2, the statement that data line 3 of Table 2 on page 24 of Paper 1 is identical to data line 1 of Table II of Paper 2 is true and also that data line 4 of Table 2 of Paper 1 is identical to data line 2 of Table II of Paper 2. With respect to particular 3 data line 6 of Table 2 of Paper 1 is certainly similar to data line 4 of Table II of Paper 2 as is data line 4 of Table II of Paper 3. This degree of similarity in data for animal survival in this method could occur by chance. Paper 1 in the description of animals refers to a description in reference 31 which is a 1997 Transplant paper, and also refers to a description in a 1983 Transplant paper for irradiation protocols. It would appear that the same controls have been used and in the results this is referenced but nowhere is it stated that the controls in Paper 1, which was submitted in 2001, are the same as in Paper 2 published in 1985. This should have been stated in the experimental design and cannot be considered acceptable practice.” (emphasis added)

The Inquiry cited the opinions of the experts chosen by Professor Hall. Professor Carpenter said (at p58 Volume 1): “Professor Hall states that he did duplicate the control data as noted, and attempted to make that clear in the text, but in referencing the source in Paper 3 as being in press in Paper 2, he found that editorial policy of the journal would not allow such a reference to appear. He did include the manuscript for paper 3 at time of submission, thereby showing the reviewers the data that were also in Paper 2. … In addressing the question of the need to repeat all controls each time a new experiment is performed, one has to agree that this would be the ideal, but there are very practical matters of costs and ethics that are prohibitive when working with live animals. … The use of inbred Murine species, such as rats and mice, are expected within a relatively small variance to behave in the same way when projects are supervised by the same protocol in different labs and countries. The major confounding factors have been infectious diseases that can greatly inhibit the immune responses of animals. These are less of a problem as improved animal care has been instituted. For all of the experiments in question the differences of importance do not depend upon the difference between 8 days and 12 days, but upon the end points of >100days. … As I have not been informed of the totality of allegations, I cannot provide a conclusion, other than my opinion that the evidence provided does support the occurrence of certain repeated data values from prior publications and while possibly being less than perfect in the manner that a given publication indicates the presence of a repetition, I find no support for the allegations of deliberate intention to recklessly mislead or deceive.” (emphasis added)

Professor Tilney, the second expert of Professor Hall’s choosing to provide an opinion, referred to his comments on Allegation 2 and added that historical controls are: “Rolling controls with a few appropriate animals accrued each time – all getting the same answer. It seems quite reasonable that such “historical controls” are used in these particular experiments in ongoing experiments with a single experimental model.” (emphasis added)

The Inquiry rejected one of Professor Tilney’s findings: “He also said “As far as performing experiments in different countries is concerned, Professor Hall does state this clearly in the first paragraph of his Material and Method section in papers one and two”. Professor Tilney is mistaken. There are no such indications.” (emphasis added) Findings and Conclusions of the Inquiry

The Inquiry expressed its Conclusions and Findings in relation to Allegation 3 as follows: “Conclusion 1. The Inquiry does not accept the proposition that the referencing used in Paper 1 conveyed to the reader the information that data in Table 2 of Paper 1 was previously published in Paper 2. Paper 3 (Reference 41 in Paper 1) was mentioned in the text of Paper 1 on page 13 after reference to Table 2. This is not inconsistent with the notion that the Table in Paper 1 contains material from Paper 3, although nowhere is this explicitly stated. Some reference to each of the previous publications was included in Paper 1 and establishes that Professor Hall was aware of the previous publication of the data. 2. Paper 1 asserts that animals were bred and maintained, as previously described, at Liverpool Hospital and all experiments were carried out as approved by the Animal Ethics Committee at UNSW. These assertions convey to the reader that all experiments were performed at Liverpool. Papers 2 and 3 are said to be from the University of Sydney, and Paper 4 from Liverpool. If Professor Hall wrote Paper 1 in reliance on data from Stanford in 1991 as he stated, he falsely represented the source of the data, which was said to be Liverpool and thereby seriously deviated from practices that are commonly accepted within the scientific community for reporting research. 3. As it does in relation to Allegation 8, the Inquiry recommends that it is desirable that control experiments should be built into the study design so as to be conducted contemporaneously wherever possible. It recommends that Professor Hall should review his policies in this regard, so as to minimise the use of historical controls, and avoid the admixture of data from old and new sources, in conformity with contemporary ethical standards. If this proves unavoidable in some situations, it must be transparently clear and explicitly recorded and referenced in any manuscript submitted for publication, and in any abstract submitted for presentation at scientific meetings.”

The Finding of the Inquiry in relation to Allegation 3 was: “Professor Hall knowingly authorised for publication in Paper 1 data which had been previously published but without appropriate acknowledgment of or cross referencing of these data to the previous publications and thereby seriously deviated from practices commonly accepted within the scientific community for reporting research.”

Clearly, the Finding and some of the Conclusions are adverse to Professor Hall. Disclosure of the experts’ opinions during interview

On 23 October 2002, the members of the Inquiry interviewed Professor Hall. At this stage, no written reports had been provided by the experts qualified by the Inquiry. However, there had been some oral communications. The following exchange took place between Professors Whitworth and Hall in relation to Allegations 1, 2 and 3 (Volume 4 Part 1 pp164-165): “Q: PROFESSOR WHITWORTH: We as a group have taken the opportunity to get opinions from three senior people in immunology around the country, in particular, transplant immunology. Those people are Professor Parish, who as you're aware we have already consulted, Professor D'Apice from Melbourne and Professor Ian McKenzie. There are two questions we asked, and these were general questions. They were not given any material, but they were asked two general questions. The first related to the use of historical controls in immunology and the second related to the description of studies in relation to rejection and tolerance. In relation to the first, the use of historical controls, it is fair to say there was an absolutely uniform view that it was essential that any historical controls be completely, fully and transparently referenced. That was completely common ground. I think all three had some reservations about the use of historical controls. Professor D'Apice felt that it would be an acceptable practice with large animals such as baboons, for reasons of ethics and costs, and so on, but it was his personal view that it was not a standard practice and generally not acceptable for rat work. Professor Parish felt that it was unusual and not generally done or desirable, but recognised that it may occur -and I'm paraphrasing here, because these are telephonic conversations but, where necessary, obviously we will be able to provide written opinions. We are attempting to bring it forward now to give you the sense of where we are at. Professor McKenzie felt that historical controls were acceptable but not ideal , but that he would want to see controls redone about once a year. However, he considered that it would be acceptable to use them from time to time, provided that there was complete, full and total referencing throughout the relevant sections of the paper so that it was very, very clear. That was the question of historical controls. Now, in relation to the description of matters relating to definitions of rejection and tolerance, the view was uniform that, however one defined it, it would be important to give the reader all the information – that is, that where a diagnosis of rejection had been made but the heart then was found to beat again and continued to beat, that that information should be put before the reader. We didn't get into the questions so much of is it, isn't it, but we did have uniformity of view that that would be important information for the reader, and they suggested that there were sometimes technical reasons why the heart was difficult to feel, and so on and so forth, but there was uniformity of the view that, irrespective of the rejection episode, if the heart was subsequently found to be beating and it was beating long term, then that was information that should be conveyed. So those are the opinions we have got, and I wondered if you wanted to comment on that? A: PROFESSOR HALL: I do want to comment at some point about my reuse of data and these point, and I have made some notes of what you said. So I can give you a coherent response, could I have a bit of time to reflect upon it, please? Q: Yes. A: I don't have a problem with any of the comments my colleagues made. I think they are, in general, consistent with what I have attempted to do, but I will respond to you in detail. I would like to go through some of my papers to highlight where I believe I have met their criteria, and I think that will help you.” [emphasis added]

Professor Hall was given a further opportunity to respond in interviews held on 24 October 2002 (Report Vol 4 Pt IV p 182-183): “Q: PROFESSOR WHITWORTH: … I wanted to return to this question that we raised yesterday after my discussions with Professors Parish, McKenzie and D'Apice, and Professor Weatherall also had a pertinent conversation. Q: PROF WEATHERALL: This is, I guess, regarding the concept of using control data retrospectively and for how long and the critical importance of clarity in how that data is presented. Your view, I think, was that one of the reasons that you would use this for such a long period was the problem of animal experiments and ethics Committees, animal ethics committees and so on. I think the feeling among a number of experts in the field is probably that one should really be doing at least current updating that control data the whole time, perhaps annually, because of all sorts of changing conditions and so on. Obviously it is critical to the way that control data is presented in that it is absolutely clear in a paper whether one is dealing with current data or previous controls. I just wondered if you had time to reflect on that issue at all? Let me be more specific: are you really happy about that, but in particular – A: PROFESSOR HALL: I have thought about it in some detail and I thought in this area there are three broad issues. I wasn't sure whether there was an understanding of my definitions of rejection and tolerance, which partly relates to this issue; and I promised Sir Gerard that I would provide some material demonstrating that other people in this area do this; and I wanted to go through what I actually did because Professor Whitworth provided some criteria by three Australian colleagues. My precis of what I thought -I have some notes here, I hope you don't mind if I use them -the three people you interviewed, Professor Whitworth, thought in immunology it was unusual, and I accept that. PROF WHITWORTH: To be precise, one is an immunologist, but the two others are transplant immunologists. A. I understand that, but under some circumstances may be reasonable, that is my precis of when I looked at your transcripts I thought you said. …. A. My three points were: It is not usual but there may be reasons you could do it. I am trying to get a consensus out what the three people said. It should be clearly cited, which you thought was an absolute, or your three colleagues thought was an absolute. And that there should be some of these controls repeated regularly. Q: That is a pretty good assessment, yes. A: In response to Sir Gerard's request, there are two issues. Can I show the data has been repeated? And there is another issue, which comes up in some of the allegations relating to me, is what is the way to cite them and are they always absolutely cited and how do people cite them? If people are not citing data, I cannot go to the literature and demonstrate that often. So I contacted five of my senior colleagues internationally overnight, all of whom are prepared to either -all of whom are prepared to provide a written submission relating to this matter for the inquiry if you wish, and some of whom would also be happy to be interviewed by telephone. Not all of them feel they perform well on their feet but would rather write something. Three of them are extraordinarily senior people at Harvard who don't work together. One of them is at UCLA and one at Imperial College. I didn't, for reasons that are probably obvious, ask any of my colleagues at Stanford to comment. I have several other suggestions of people who work in this field who, if you wanted somebody who I haven't talked to, I would be very happy for you to approach totally independent of me. Q: THE CHAIR: Dealing with those, first of all, if they are prepared to provide us with a written statement that would be most acceptably. We would like to have it, of course, as soon as possible. If any of them would be agreeable to being interviewed by phone in addition to providing a statement, that could be indicated in the statement itself. And then could you also, if you wished, provide a list of other possible contacts to whom you think it appropriate that the inquiry might refer if we wished to do so. “ The Inquiry’s contact with the experts

During the interview on 24 October 2002, Professor Weatherall indicated to Professor Hall that he would also like to contact Sir Peter Morris (Volume 4 Part IV p184 line 37). Professor Hall then confirmed that he had not contacted Sir Peter Morris for the purpose of providing an opinion in support of his own case. Professor Weatherall said: “we will send [Sir Peter] the same set of questions as the other three”. Professor Weatherall contacted Sir Peter Morris by telephone on 23 October 2002 and by fax on 24 October 2002.

Although, as I have indicated, Professor Hall was made aware of some aspects of the views of the Inquiry’s experts in the interviews, the views of Sir Peter Morris do not appear to have been mentioned.

On 25 October 2002, the Secretariat Co-ordinator to the Inquiry emailed Professor Hall with a request to provide any draft questions he wished to be put to the Inquiry’s experts. Attached to that email was a copy of the draft questions which the Inquiry itself intended to put. Professor Hall’s solicitor replied to this request by email on 31 October 2002. That email set out the names and addresses of the five experts Professor Hall wished the Inquiry to consult, together with draft questions.

On 1 November 2002, the Inquiry wrote to Professor Hall to the effect that it would not include all his proposed questions in the letters to the experts. The Inquiry attached to this letter a draft of the letter which it proposed to send to the experts. The relevant parts of that letter are as follows: “Dear Professor [name] External Independent Inquiry into Allegations of Scientific Misconduct This Inquiry is investigating allegations made against Professor Bruce Hall who has invited the Inquiry to submit to you the questions following. The allegations relate to Professor Hall's work studying allograft rejection and tolerance in a rat adoptive transfer model using directly vascularized heart allografts. If you would review the enclosed material and provide the Inquiry with answers to questions listed, the Inquiry would consider your response in making their determination. The relevant allegations and the papers referred to therein are attached. [Attach Allegation 2 - plus Papers 1 and 2 plus Professor Hall's Response Allegation 3 - plus Papers – 3 plus Professor Hall's Response Allegations 5 and 8 - Abstract (allegation 5) and Paper submitted to J Exp Med (allegation 8), Professor Hall's response plus photocopies of primary and secondary data sheets] The questions on which we would value your assistance are as follows: Re: Allegation 2 What comment do you have on the presentation of historical controls and on the adequacy of the referencing to those controls? Is it relevant to mention that some of these data were for experiments performed in a different country, and institution under different ethical approvals from those mentioned and that they were not contemporaneous? Re: Allegation 3 What comment do you have on the presentation of historical controls and on the adequacy of the referencing to those controls? Is it relevant to mention that some of these data were for experiments performed in a different country, and institution under different ethical approvals from those mentioned and that they were not contemporaneous?”

On that same date (1 November 2002) the Inquiry sent similar letters to Professors Parish, McKenzie and d’Apice and to Sir Peter Morris; and to the experts nominated by Professor Hall, being Professors Tilney, Kupiec-Weglinski, Strom, Lechler and Carpenter.

The Inquiry received responses from its experts as follows: from Professor McKenzie dated 12 November 2002; from Professor Parish dated 14 November 2002; from Professor d’Apice dated 15 November 2002; and from Sir Peter Morris dated 26 November 2002.

Only two of the five experts nominated by Professor Hall responded, Professor Carpenter on 6 December 2002 and Professor Tilney on 9 December 2002.

On 10 January 2003, the Inquiry sent the reports of Professors Tilney and Carpenter to Professor Hall’s solicitor. No doubt this prompted counsel for Professor Hall to write to the Inquiry on 17 January 2003 requesting copies of the reports of Professors d’Apice, McKenzie and Parish and Sir Peter Morris. It was in response to this request that the Inquiry wrote to Professor Hall on 21 January 2003 to the effect that none of the expert reports had led it to “a tentative view adverse to Professor Hall.”

Professor Hall was not provided with the written reports of any of the experts qualified by the Inquiry. The plaintiff’s submissions

In the plaintiff’s submission, the reports of the experts qualified by the Inquiry were relied upon by the Inquiry in making adverse findings in respect of Allegations 1 and 3.

Despite its indications to Professor Hall that it was not led (even tentatively) to adverse findings by the opinions of the experts qualified by it, it is submitted that the Inquiry: (a) drew adverse findings based at least in part on the opinions of the experts qualified by it; (b) used the opinions of the experts qualified by it to reject some of Professor Hall’s explanations for the referencing which was the subject of the allegation; and (c) gave greater weight to the opinions of its own experts than those of Professor Hall.

Professor Hall submitted that the failure of the Inquiry to allow him access to the reports of the experts meant that he lost the opportunity to: (a) take the Inquiry to the views of his own experts; and (b) explain why two of the experts lacked qualifications or were otherwise wrong in their views.

The plaintiff made a discrete submission in relation to Allegation 3. He submitted that: (a) he was not given the opportunity to point out inconsistencies in the views of the experts in relation to Allegation 3; and, following from this, (b) he was not given the opportunity to submit to the Inquiry that, in the light of the inconsistencies on the question of acknowledgement of cross-referencing, and the views of the experts on the seriousness of the alleged failure to properly make that acknowledgement, there was no single answer to the question, and/or that the Inquiry should be dissuaded from the view that any deviation was serious.

Professor Hall submitted that there were inconsistencies between the opinions of the experts qualified by the Inquiry. In particular, the plaintiff submitted that although the Inquiry found that Professor Hall “seriously deviated from practices commonly accepted within the scientific community for reporting research”, there were inconsistencies in the experts’ views on the seriousness of the alleged failure to reference. Thus, in his submission, the plaintiff also lost the opportunity to address the Inquiry on: (a) the nature and substance of the inconsistencies; and (b) whether the deviation from accepted practice was serious. Defendant’s submissions

The defendant referred to the statement of Dianne Hamilton, Secretariat Co-ordinator, dated 14 May 2003 which was tendered in evidence. The defendant submitted that a number of general factual matters proved in the statement are relevant, namely: (a) on 23 October 2002 (in the course of an interview) the Inquiry disclosed to Professor Hall that it had spoken by telephone to Professors d’Apice, McKenzie and Parish and subsequently to Sir Peter Morris, all of whom are leaders in transplant immunology, in relation to two general questions; (b) the two general questions were: (i) the use of historical controls in immunology; (ii) the description of studies relating to rejection and tolerance; (c) the united view of Professors d’Apice, McKenzie and Parish (namely, that “there was an absolutely uniform view that it was essential that any historical controls be completely, fully and transparently referenced”) was disclosed to Professor Hall in the interview; (d) Professor Hall responded in the interview that he had no problem with any of the comments made by his colleagues and that he thought that in general they were consistent with what he had attempted to do; (e) Professor Hall indicated that he would respond in detail; (f) a decision was made by the Inquiry to seek written reports from Professors d’Apice, Parish and McKenzie and Sir Peter Morris; (g) Professor Hall’s views were sought in writing as to the appropriate questions for the experts to be asked: (h) Professor Hall nominated five experts to give opinions on these issues; (i) letters were written to each of the five experts nominated by Professor Hall seeking their opinions; (j) the Inquiry received written responses from the Inquiry’s four experts in mid to late November 2002; (k) reports from two of the five experts nominated by Professor Hall were received by the Inquiry; (l) by this stage no request had been made by Professor Hall for access to the written reports provided by the experts to the Inquiry; (m) on 27 November 2002 the Inquiry sought the permission of the Inquiry’s experts to quote their reports in the Inquiry’s report; (n) all of the Inquiry’s experts wanted an indemnity from the University to protect them against any action by Professor Hall before they would consent to being named and quoted in the Inquiry’s report; (o) requests were made on behalf of Professor Hall for access to the reports by the Inquiry’s experts on 31 December 2002 and 17 January 2003; (p) on 21 January 2003 the Inquiry (in a letter drafted by Sir Gerard Brennan) informed counsel for Professor Hall that the Inquiry had considered the reports from the Inquiry’s experts, that it had no authority from them to provide copies of their reports, that the Inquiry could not presently forward their reports and that their reports had not led the Inquiry to any tentative view adverse to Professor Hall; (q) at this stage indemnities had not been signed to protect the Inquiry’s experts; (r) the report of the Inquiry was handed down on 31 January 2003; (s) the original time frame sought by the University for a final report was by the end of November 2002; and (t) the Deeds of Indemnity were finally executed on 12 February 2003.

In response to the particular submission of Professor Hall the University emphasised that Professor Hall: (a) was given notice of the experts’ opinions and an opportunity to reply; (b) was given an adequate statement of the allegations and particulars of those allegations; (c) was provided with an opportunity to provide input into the questions asked of the Inquiry’s experts and his own experts; (d) was aware of the precise questions which were to be asked of both the Inquiry’s experts and his own experts; (e) was given an opportunity to provide expert opinion via his own experts on all the relevant questions and issues. He availed himself of this opportunity and two reports were received from experts nominated by him; and (f) was made aware on 23 October 2002 of the views of the experts consulted by the Inquiry and he indicated that he did not have any problem with the comments which had been made.

The University submitted that in any case, the Inquiry was a mere preliminary inquiry which had no power to visit any formal adverse consequences upon Professor Hall.

Senior counsel drew attention to the fact that it was only at a very late stage – more than a month after the University had hoped to receive the final Report - that any request was made on behalf of Professor Hall for access to the experts’ reports. In its letter of 18 December 2002, the Inquiry had communicated the view that “the Inquiry, no less than Professor Hall, the complainants and the University is anxious to complete the Report as soon as possible… it would appreciate Professor Hall’s earliest response and no later than Wednesday 8 January 2003.”

The University submitted that the reports could not be released in any case. At the stage the request was made the reports had to be kept confidential and could not be disclosed. This was thus not “the ordinary case where no question of confidentiality arises”: Kioa at 629. The relevant experts had not authorised disclosure because they had not been granted an indemnity. On 3 January 2003, Professor d’Apice had threatened to withdraw his report unless an indemnity was provided .

The University submitted that there was no requirement that the Inquiry provide the experts’ reports to Professor Hall because the matters the subject of the experts’ reports were not of significance in the scheme of the reasoning of the members of the inquiry in relation to Allegations 1 and 3: Kioa at 629.

Senior counsel submitted that the scientific members of the Inquiry were themselves experts in the area of medical and scientific research and the issues which were the subject of comment by the experts were within the province of the Members of the Inquiry. The University emphasised that the Members of the Inquiry were equipped to draw their own conclusions in relation to authorisation of publication of previously published data without appropriate acknowledgement or cross-referencing. This constituted the independent and considered opinion and assessment of each of the Members of the Inquiry.

The University submitted that Professor Hall has not suffered any specific prejudice as a result of not being provided access to the Inquiry’s experts’ reports, emphasising that the same questions to which the Inquiry’s experts responded were also addressed by Professor Hall’s nominated experts.

In the defendant’s submissions, the matters identified in the plaintiff’s submissions as constituting opportunities lost by Professor Hall as a result of not being provided with copies of the reports of Professors Morris and d’Apice are either illusory (e.g. the loss of opportunity “to take the Inquiry to the views of his own experts”) or pitched at such a level of generality as to lack any persuasive force especially in light of the extensive submission that Professor Hall had already made on this issue (in his submissions dated 9 January 2003 providing a response to a letter dated 18 December 2002 from the Inquiry about specific matters raised in interviews).

The University submitted that the practical requirements of natural justice depend upon all the circumstances of the case. Considerations of urgency, efficiency and speed are important, as is the availability of a further avenue for the making of submissions: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 70 [par 35] and 98-102 [par 146].

Senior counsel submitted on behalf of the University that the two Findings in relation to Allegation 1 were not drawn from the experts’ opinions and that accordingly Professor Hall had no grounds to complain that he should have been given the reports. The University submitted that the first Finding was essentially that Professor Hall had misrepresented where the data used in the paper was derived from, but that the reasoning of the Inquiry did not concern that question, ie derivation, but was concerned instead with the location of work: “Professor Hall defended this (Appendix 1 to question 3 of his response of 9 January 2003 – under (c) “Reference to the site research is carried out when there are authors from multiple institutions”). Professor Hall concluded “The location of work being done is irrelevant in immunology”. This was not the view of independent experts consulted by the Inquiry, in particular Professor d’Apice and Professor Morris as extracted in allegation 2. Professor Hall provided opinions from senior colleagues at the Journal of Immunology. Dr Alan Krensky stated “Since the data was eight years old he had not acknowledged Stanford in the manuscript. I find no harm in this oversight”. Dr Fitch, Editor in Chief stated “I find no problem with this”. Notwithstanding these comments from editors of a journal (who may be concerned more with questions of copyright than with the source of data) the Inquiry adopted the views of the experts consulted by it.”

The University submitted that the second Finding in respect of Allegation 1 (presentation of a falsehood) was a finding of fact, not based in any respect on the scientific opinions of the experts qualified by it: the nature of the finding was one that a court may make, rather than a scientific finding.

Similarly, the University submitted that the third Conclusion drawn in respect of Allegation 3 was in relation to a question of construction, not of science. Senior counsel submitted that the Inquiry was able to, and in fact did, draw this Conclusion without reference to any expert opinion.

The University also submitted that the Inquiry had discussed the experts’ opinions on the use of historical controls in respect of Allegation 3, but had not made a Finding adverse to Professor Hall on that issue. Conclusions

The essence of Professor Hall’s submission is that, either by the Terms of Reference themselves, or the letter of 21 January 2003, he was given the expectation that he would be given access to all material received by the Inquiry, and, an opportunity to respond to it, before the Inquiry drew any adverse conclusions in its Report. It is submitted that he has not received a fair hearing because that alleged expectation was not fulfilled.

I acknowledge that Professor Hall may feel that the Inquiry should have taken a different course and that having regard to its reasoning in relation to Allegation 1 he may believe that it has acted contrary to the “tentative” view expressed in the letter. However, the issue before me is not whether Professor Hall believes he has been treated unfairly but whether the court is satisfied that he has not received a fair hearing.

In relation to Allegations 1, 2 and 3 the Inquiry had to determine a number of matters. It was first necessary for the Inquiry to obtain an understanding of each of the scientific papers and identify the data reported upon and the references included. The Inquiry could do this for itself by reading the papers, asking questions of Professor Hall and drawing upon the experience of the scientific Members. By this means the Inquiry could conclude that the source of some of Professor Hall’s data had not been referenced, particularly that which was generated from his time at Stanford.

The Inquiry was then required to determine whether the fact that some data was not referenced was of any significance to the quality of the reported research. The Inquiry was undoubtedly equipped to form an opinion about that matter from its own resources, but decided, because of Professor Hall’s assertion that immunology required special consideration, to approach highly qualified scientists in that field and seek their opinions.

The opinion of three of them, Professors Parish, McKenzie and d’Apice, were first obtained by telephone and were put to Professor Hall in interview on 23 October 2002. He was thereby given an opportunity to respond to them in the interview and make further submissions after mature consideration of the issues.

Some days later the Inquiry took the step of formalising the discussion of these matters by framing precise questions which it put to four experts of its choosing and to five chosen by Professor Hall. Written responses were received to those questions. It was never suggested that Professor Hall would be given access to the responses of the Inquiry’s experts and he did not ask for it until 17 January 2003.

In forming the views which the Inquiry expresses in its discussion in relation to Allegation 1, to the effect that location is important, the Inquiry has accepted the view of the experts it retained. It said as much. It rejected Professor Hall’s views and the views of the two experts he suggested who responded to the Inquiry’s letter.

Beyond any views which the Inquiry expressed in its discussion, the Inquiry was also required to express its Conclusions and Findings. It is not entirely clear whether the adverse Conclusions and Findings expressed in relation to Allegations 1 and 3 were informed by the views of the external experts or reflect only the views of the Inquiry Members. The finding that Professor Hall “seriously deviated from practices commonly accepted within the scientific community for reporting research” would appear to be a finding which the Inquiry Members were themselves qualified to make. However, as the Inquiry felt it necessary to consult with expert immunologists in relation to the significance of location, the consequences for the scientific quality of the published paper of the failure to identify location may, also, have been informed by the views of the experts. In any event, without a finding that location is significant the adverse Conclusions and Findings could not have been made. Accordingly, those Conclusions and Findings were at least, to that extent, informed by the opinion of the external experts.

The Inquiry was not constituted as an adversarial tribunal where access to all the material to be considered in the making of the decision will normally be required. The Inquiry, being an investigation, was undoubtedly required to bring to Professor Hall’s attention the critical issues ( Kioa at 581). It was also required to give Professor Hall, subject to matters of confidentiality, a chance to deal with adverse material ( Kioa at 629). Given the character of the possible findings it was necessary for the Inquiry to ensure that those obligations were carefully discharged.

The confidentiality of material received presents particular problems. In some cases there may be questions of privilege which require that the information not be disclosed to the affected party or it may be, as here, that the information was required by the informant to remain confidential.

Although the Terms of Reference were of fundamental significance to the Inquiry it was nevertheless required to proceed within its practical limits. If, as happened, it was unable to provide some of the material which it received to Professor Hall, it was obliged to ensure that in other ways he was given an adequate opportunity to deal with the matters raised by it.

When the process of engaging the experts and seeking their opinions was initiated it was not suggested that Professor Hall would be given the reports of the external experts or invited to make submissions in relation to them. Rather, he was invited to make submissions on the issues.

Professor Hall was told the names of the experts the Inquiry referred to, was informed of their views as to the significance of the location of the research and the imperative of adequate referencing to the scientific integrity of the research papers. He was given the opportunity of responding, including the opportunity to provide the views of experts of his choosing on these matters.

It was submitted that the Inquiry should have delayed the final Report until the obligation of confidentiality was removed and it was able to provide all of the material to Professor Hall. In my opinion the Inquiry was not obliged to do this, provided other measures sufficient to discharge the obligation of procedural fairness were undertaken.

In my opinion, by the steps it took, the Inquiry provided Professor Hall with a fair hearing.

There will be occasions when a representation by an administrative decision maker is breached, in circumstances which render the process unfair and the intervention of the court is justified. See R v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators Association & Anor (1972) 2 QB 299; Cole v Cunningham (1983) 49 ALR 423. However, it could not be the case that a representation that a hearing will be conducted in a particular manner cannot thereafter be departed from. Provided the hearing process ultimately adopted is fair there is no occasion for the court to intervene. There is no occasion for defining a “legitimate expectation” that the Inquiry will only proceed in the manner originally indicated. see Attorney General for New South Wales v Quin; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 173 CLR 273.

Whether any or all material gathered by an Inquiry must be disclosed to fulfil the requirements of procedural fairness will depend upon the circumstances of each case. (see Ansell v Wells (1982) 43 ALR 41 and the cases referred thereto). In Kelson v Forward (1995) 60 FCR 39. Finn J considered the circumstance where the applicants were not given an understanding of the allegations made against them sufficient to enable an effective response. That case is quite different to the present circumstances where Professor Hall was aware of the precise Allegations, knew the identify of the experts who had proffered the opinion which informed an assessment of the significance of those Allegations and knew the questions which they would be asked to respond to in writing, and had the opportunity himself and through experts of his choosing to respond to the same questions.

In my opinion the letter of 21 January 2003 could not found any challenge to the Inquiry. At its highest the letter expresses a tentative view which, if it be the case, the Inquiry was entitled to change. Furthermore, the Inquiry did not say that if its views changed the material would be made available or that Professor Hall would be able to comment upon it. The letter could not found any expectation enforceable by the court.

This challenge fails. (6) FAILURE TO INFORM PROFESSOR HALL OF THE INTENTION TO INVESTIGATE AND MAKE ADVERSE FINDINGS OUTSIDE THE FORMAL ALLEGATIONS OF WHICH HE WAS GIVEN NOTICE Plaintiff’s submissions

Professor Hall submitted that the Inquiry allowed itself to stray outside the scope of the investigations authorised by the University, and that accordingly the Report is flawed.

The plaintiff draws attention to the Inquiry’s Report at Volume 1pp12-13, under the heading “Scope of the Inquiry”: “Professor Hall’s explanations of the facts established under the several allegations required an understanding of the scientific purpose, technique and significance of the work done in the Liverpool Laboratory. The Inquiry was assisted by Professor Hall in acquiring that understanding and thereby appreciating his responses. These responses showed, as the discussion in later chapters of this report will show, that some of the allegations made by the complainants failed to appreciate the significance of the work on which Professor Hall was engaged. But some of Professor Hall’s responses, on analysis, have raised issues of scientific misconduct which do not fall precisely or entirely within the terms of the allegation to which the response relates. That posed a problem for the Inquiry as the allegations were formulated largely on the basis of complaints made by the complainants while the further issues were perceived by the Inquiry itself in considering Professor Hall’s responses. But Section C of the Terms of Reference, directed the Inquiry ‘to investigate the allegations against Professor Hall and advise whether, in the opinion of the Inquiry on the facts which the Inquiry finds to be established, Professor Hall has been guilty of scientific misconduct or scientific fraud as those terms were defined by the NHMRC/AVCC Guidelines.’ Thus, although the Inquiry was to undertake an investigation into the allegations listed in the Schedule to the Terms of Reference, it was required to report on whatever facts it might find to have been established in the course of the investigation. The Inquiry was to conduct an investigation, not a prosecution. However, natural justice required that the Inquiry should not find scientific misconduct by Professor Hall on facts falling outside the scheduled allegations and Dr Penny’s allegations unless Professor Hall had had notice of the issue which did not fall strictly within those allegations and an opportunity to show why an adverse finding should not be made on that issue. By a process of seeking responses by Professor Hall on particular issues the Inquiry has sought to ensure that its conclusions cover all the material relevant to the allegations while not being confined to the allegations. The process has been slow and, as the following chapters will show, somewhat complex.”

The plaintiff submitted from these remarks it should be understood that: 1. Although it “was to undertake an investigation into the allegations listed in the schedule” to the Terms of Reference, the Inquiry determined that “it was required to report on whatever fact it might find to have been established during the course of the investigation”; 2. Natural justice required that the Inquiry not find scientific misconduct or presumably scientific fraud by Professor Hall on facts falling outside the schedule of Allegations unless Professor Hall “had had notice of the issue which did not fall strictly within these Allegations and an opportunity to show why an adverse finding should not be made on that issue”; 3. The Inquiry had sought to cover all relevant material in its conclusions and thus failed to confine itself to the Allegations.

Professor Hall submitted that the Terms of Reference would raise an expectation in the mind of a reasonable person that the Inquiry would confine itself to investigating those Allegations of which notice had been given, and, if further investigation was to be undertaken, notice would be given of any additional matters that it intended to investigate. In the plaintiff’s submission, the Inquiry should have: (a) informed him that it intended to make adverse findings; and what those findings were; and (b) given him an opportunity to respond to those findings before the final Report was handed down; and/or (c) provided Hall with a draft copy of the Report and invited his response.

Professor Hall submitted that the Inquiry acted contrary to these expectations. Professor Hall submitted that, in the course of investigating Allegations 5, 8, 17, 18, 21, 22, and 23, the Inquiry received information as a result of which it made a series of adverse findings, which were not strictly within the terms of the Allegations.

Professor Hall complained that he had no advance notice in relation to the findings made in relation to Allegation 17 that: (a) there was no evidence of an agreed process for determination of authorship issues; (b) this reflected a break down of proper laboratory practice in the designation of authorship and rather chaotic relationships within the laboratory; and (c) Professor Hall was guilty of a lack of sensitivity in defining authorship in his research group. Allegation 5

This allegation was that Professor Hall published or authorised the publication of an abstract for presentation at the TSANZ meeting on 4-6 April 2001, which contained statements about transplant rejection and tolerance. The allegation was that Professor Hall stated or presented a material or significant falsehood and published or authorised the publication of the abstract with intent to deceive or in reckless disregard of the truth.

The Inquiry noted: “This allegation is critically dependent upon an understanding of what is meant by “rejection” and by transplantation “tolerance” and the consistency with which these terms are used in reporting and describing the primary animal data.”

The Inquiry set out in its Conclusions the evidence which had come to light in the course of the investigation of the Allegation. Much of this evidence was derived from the interview with Dr Chen conducted on 23 October 2002, the transcript of which was provided to Professor Hall.

The Inquiry was mindful that this material was outside the formal Allegation. It said (at Volume 1 p93): “This evidence introduced material that had not previously been drawn to Professor Hall’s attention and did not coincide with the original allegations made in Allegation 5, though it was directly relevant to the validity of his defence of the conclusions made in the abstract. Accordingly, it was discussed with him at interview on 24 October 2002, and a series of letters was written to him and his solicitors on the 6, 14 and 20 November 2002, drawing his attention to these issues and seeking the primary data relevant to the experiments in this data line, and seeking explanations for the inconsistency (letter of 20 November 2002).”

The Inquiry drew lengthy and detailed Conclusions. Its ultimate Finding was: “That within the precise meaning of allegation 5, which relates to the conclusion that MRC Ox39 blocked tolerance transfer, drawn from the experiments specifically described in the abstract, Professor Hall did not knowingly state a material falsehood at the time he wrote the abstract in December 2000.” Allegation 8

Allegation 8 was that Professor Hall submitted a paper for publication which contained data from certain experiments; and that no experiments to support this data were done in the laboratory of Professor Hall or the laboratory of any other author of the Paper, at Liverpool Hospital; and that the experiments of that type which had been carried out by any of the authors did not in fact support the data presented. The substance of the Allegation was that Professor Hall thereby stated or presented a material or significant falsehood; and Professor Hall submitted, or authorised the submission of, the Paper for publication with intent to deceive or in reckless disregard of the truth.

Particular matters which informed the Conclusions, such as relations between Professor Hall and certain complainants, and different methods of recording experiment results, were raised with Professor Hall at interview on 22 October 2002 (see Report Volume 4 Part 1 pp88, 89, 91, 92-94; and Volume 4 Part IV pp 218, 219-220; see also Volume 1 pp123 (reference to interviews recorded in Volume 4 Part 1 p88)).

Professor Hall provided the Inquiry with initial written responses to the Allegations and an eight-page final submission dated 10 December 2002, made in relation to the matters raised in the Inquiry’s investigation of Allegation 8. Sections of the response to Allegations and the submission are cited by the Inquiry in its discussion in respect of Allegation 8 (see Volume 1 pp125-127).

The Inquiry drew a series of Conclusions adverse to Professor Hall, but made no adverse Finding. Allegations 17, 18, 22 and 23

Allegations 17-23 were, as the Inquiry noted, all related to authorship issues.

Allegation 17 related solely to authorship issues raised by or relating to Ms Hong Ha. In respect of Allegation 17, the Inquiry found that the evidence before it was inconclusive and conflicting, with the result that it was unable to resolve some issues, and overall could not find any evidence which made out the Allegation (Volume 1 p155).

The interview with Professor Hall on 22 October 2002 in relation to Allegation 17 dealt with the terms of the Allegation as well as matters not strictly within those terms, such as relations between laboratory staff (see, for example, Volume 4 Part 1 pp132-133), which were the subject of Conclusions in respect of this Allegation.

It is apparent from the Report that Professor Hall provided either written or oral submissions on each of the points raised by Ms Ha. The Inquiry refers to Professor Hall’s initial written response to Allegation 17 (Volume 1 pp151-154), and to his comments in interview (Volume 1 p152).

The Inquiry also made comments relating to the adherence by Professor Hall and his laboratory staff to the NHMRC/AVCC Guidelines (Report Volume 1 p148-150). These Guidelines are cited in the Terms of Reference as providing a scientific standard to which the Inquiry must refer when investigating the Allegations.

Professor Hall would have been aware from the Terms of Reference that the Inquiry would have reference to these Guidelines when considering authorship issues. Beyond that, the Guidelines were discussed in interview with Professor Hall in relation to Allegation 17 on 22 October 2002 (Volume 4 Part I pp134, 137).

In relation to Allegation 18, the Inquiry did not make any adverse finding beyond the findings in Allegation 17. The evidence on which it relied included interviews of Nicole Carter and Giang Tran, who were cited as authors on the paper which was the subject of the Allegation. The matters raised were discussed with Professor Hall in interviews on 22 October 2002. Apart from the specific facts of the Allegation, the Inquiry discussed with Professor Hall questions related to his supervision of staff and protocol for attribution of authorship (Volume 4 Part I pp143-144).

Allegations 22 and 23 alleged that Professor Hall had failed to show papers to Dr Chen which Professor Hall had submitted for publication and which bore Dr Chen’s name as an author.

The Inquiry raised the substance of these Allegations with Dr Chen in its interview with him on 23 October 2002.

It is apparent from the transcript of that interview that the Inquiry and Dr Chen discussed matters relevant to the Allegations but not strictly within the terms of the Allegations, including the usual process followed in Professor Hall’s laboratory for preparation of papers for publication.

These matters, which formed the basis of the Conclusions which Professor Hall challenges, are apparent on the transcript, which was provided to Professor Hall by the Inquiry. Those sections of the transcript are in Volume 4 Part II pp1-51 and specifically at pp16, 19, 26, 27 (relations between Professor Hall and Dr Chen and other laboratory employees), and at pp 29, 31-32 (differences in opinion between Dr Chen and Professor Hall about tolerance and rejection in experiments). Defendant’s submissions

The ultimate purpose of the Inquiry was to determine whether, on the facts, Professor Hall had committed scientific fraud or scientific misconduct.

The defendant submitted that in addition to or as a component of this task, the Inquiry would consider other facts outside the specific Allegations. The defendant submitted that it was inevitable that the Inquiry would need to make findings of fact en route to expressing a final opinion in relation to the Allegations before it. The adverse findings do not constitute or amount to fresh allegations but rather represent conclusions by the Inquiry in the course of discharging its function.

The defendant submitted that Professor Hall had notice of the findings which might be made in relation to Allegation 5.

Professor Hall submitted that the Inquiry made findings in relation to Allegation 8 outside the terms of the Allegation, namely conclusions on “procedural laxity”. In reply, the defendant submitted that the question of procedural laxity was implicit in the terms of Allegation 8; was contained in transcripts of interviews with complainants which were then provided to Professor Hall; and was raised with Professor Hall in interviews with the Inquiry.

The defendant made a general submission that the findings made in relation to Allegation 17 were available “fall-back findings” given that Allegation 17 related to lack of proper attribution of authorship in respect of five papers. The specific allegations in relation to these five papers were investigated in conjunction with the more general question of how authorship issues were determined within the laboratory. The defendant further submitted that Professor Hall had notice of these matters in any case: they were in transcripts of interviews with complainants provided to him and were addressed by the Inquiry in interviews with Professor Hall. Conclusions

The Inquiry was required to undertake two tasks. Its first task was to investigate the Allegations, as formally defined in the Terms of Reference, made against Professor Hall. It was likely, if not inevitable, that facts would come to light which were not within contemplation when the Allegations were formally settled. This is inherent in any investigation.

The second task of the Inquiry was to find whether in its opinion Professor Hall was guilty of scientific misconduct or scientific fraud. This opinion was to be informed by the facts and which the Inquiry found to be established. In order to provide Professor Hall with a fair hearing, the Inquiry was required to give him an adequate opportunity to respond to any matters which could, alone or taken with other matters, lead to adverse Findings or Conclusions.

The issue is whether Professor Hall was given sufficient notice of the matters in respect of which factual findings might be made. With respect to the findings of the Inquiry of which Professor Hall now complains, I am satisfied that Professor Hall was given a fair hearing. It is apparent from the processes of the Inquiry to which I have referred that Professor Hall was given notice of the relevant matters, the nature of the material relevant to them and an opportunity to respond.

This ground is not made out. (7) APPLICATION OF THE INQUIRY’S OWN SCIENTIFIC AND MEDICAL KNOWLEDGE The findings and conclusions subject to challenge

Professor Hall submitted that the Members of the Inquiry applied their own scientific and/or medical knowledge to the issues before it, when considering Allegations 3 and 7. In Professor Hall’s submission, this application of specific knowledge was not permissible without notice to him and accordingly in relation to Allegations 3 and 7, the Inquiry denied him procedural fairness.

The plaintiff challenges the following conclusion drawn by the Inquiry in respect of Allegation 3: “2. Paper 1 asserts that animals were bred and maintained, as previously described, at Liverpool Hospital and all experiments were carried out as approved by the Animal Ethics Committee at UNSW. These assertions convey to the reader that all experiments were performed at Liverpool. Papers 2 and 3 are said to be from the University of Sydney, and Paper 4 from Liverpool. If Professor Hall wrote Paper 1 in reliance on data from Stanford in 1991 as he stated, he falsely represented the source of the data, which was said to be Liverpool and thereby seriously deviated from practices that are commonly accepted within the scientific community for reporting research.”

The final finding in respect of that Allegation is also challenged. It reads: “Finding Professor Hall knowingly authorised for publication in Paper 1 data which had been previously published but without appropriate acknowledgment of or cross referencing of these data to the previous publications and thereby seriously deviated from practices commonly accepted within the scientific community for reporting research.”

The finding in relation to Allegation 7 is challenged. It is at p119 Volume 1 of the Report: “Finding That Professor Hall published a material falsehood and authorised the publication of the abstract with intent to deceive or in reckless disregard of the truth.” Plaintiff’s submissions

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.

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.

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.

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.

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

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: (a) the purpose of the Inquiry was for the University “to seek further expert advice”; (b) the objective of the Inquiry was to determine whether complaints of scientific misconduct and/or scientific fraud were made out; (c) the reason for the Inquiry was that the inquiries made by Professors Dowton and McLachlan could not deal with certain matters of scientific fraud and misconduct “because they lack specific expertise on the matters in question”; and (d) the task of the Inquiry was to investigate the allegations against Professor Hall and advise whether in the opinion of the Inquiry Professor Hall had been guilty of scientific misconduct or scientific fraud.

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.

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

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.

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.”

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)

Doyle CJ in Chiropractors Association of Australia (SA) Ltd v Workcover Corporation 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.”

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)

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)

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)

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)

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.

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.”

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.

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 Government Insurance Commission (1986) 161 CLR 141 at 147 ; Re Refugee Tribunal ex parte Aala (2000) 204 CLR 82; Kioa per Deane J at 633). Conclusions

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.

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.

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

This challenge fails. (8) REVERSAL OF DECISION ON PUBLICATION OF THE REPORT Background

The Terms of Reference set out the procedure related to publication: “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 .” (emphasis added)

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.”

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. 5. Further, the guidelines set out in the Terms of Reference require the council to have regard to the principles of fairness and the desirability of protecting the privacy, reputation or confidentiality of any individual.

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.

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: a) South-West Sydney Area Health Service b) NHMRC c) Regulatory agencies, specifically, ICAC, State Audit Office and Commonwealth Auditor General e) Complainants f) State and Federal Ministers of Education g) NSW Medical Board on receipt of appropriate legal advice as to the conditions of release to each party.”

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

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

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

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.

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

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.

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

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

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.

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.

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.

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.

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

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

I make the following orders: 1. Summons dismissed. 2. The plaintiff is to pay the defendant’s costs. 3. The orders made on 3 June 2003 are dissolved.