Heterodoxy, iconoclasm and spuriousness: the limits of novel expert evidence

A difficult issue arises for courts' decision-making at common law and under statutory evidentiary regimes when expert opinions are significantly unorthodox, iconoclastic or methodologically flawed. This editorial analyses the relevant evidentiary principles and the Australian jurisprudence on the subject, giving particular attention to the decisions of the South Australian Supreme Court in R v Parenzee [2007] SASC 143 and R v Parenzee [2007] SASC 316 in which expert opinions about the existence, identifiability and transmissibility of HIV and its relationship to AIDS adduced on behalf of the defence in a criminal trial were found to be seriously wanting. A variety of factors indicative of low probative value in expert opinions are distilled.     

Medical professionals convicted of accessing child pornography--presumptive lifetime prohibition on paediatric practice? Health Care Complaints Commission v Wingate

Health Care Complaints Commission v Wingate [2007] NSWCA 326 concerns an appeal from the New South Wales Medical Tribunal regarding its findings on professional misconduct outside the practice of medicine in relation to a doctor convicted of possessing child pornography. The latest in a number of cases on this issue in Australia, it highlights the complexity of such decisions before medical tribunals and boards, as well as the diversity of approaches taken. Considering both this case and the recent Medical Practitioners Board of Victoria case of Re Stephanopoulos [2006] MPBV 12, this column argues that Australian tribunals and medical boards may not yet have achieved the right balance here in terms of protecting public safety and the reputation of the profession as a whole. It makes the case for a position statement from Australian professional bodies to create a presumption of a lifetime prohibition on paediatric practice after a medical professional has been convicted of accessing child pornography.     

Re Herrington: aboriginality and the quality of human rights jurisprudence in end-of-life decisions by the Australian judiciary

In Re Herrington [2007] VSC 151 (King's Case) the partner and family of an Aboriginal woman (diagnosed as being in a persistent vegetative state after an accident) sought an order from the Victorian Supreme Court that the decision of her treating doctors to withhold further medical treatment be opposed. The resultant judicial decision contains a very brief review of the now considerable case law in this area, does not mention the increasingly important role of clinical ethics committees in this context, or discuss the relevance of recently passed human rights legislation in Victoria. Given the statutory requirement for judicial reference to international human rights norms in jurisdictions such as Victoria and the Australian Capital Territory, and their increasing importance in other developed nations, the authors highlight the need for the Australian judiciary to lift the quality of their jurisprudence in relation to end-of-life cases.     

DNA evidence in jury trials: the "CSI effect"

In Murdoch v The Queen (2007) 167 A Crim R 329, Hillier v The Queen (2007) 228 CLR 618 and Forbes v The Queen (2009) 167ACTR 1, Australian appellate courts considered the interpretation of DNA evidence and the possibility of secondary transfer of DNA samples and questions about the statistical calculations used to produce probabilities of DNA matches. Following the 2010 Victorian case of Farrah Jama, whose conviction for rape was quashed 16 months into his prison sentence after it was discovered that the incriminating DNA sample was contaminated, Mr FRH Vincent QC, in his report to the Victorian Attorney-General, was scathing of the conduct of the case and made a number of recommendations, all of which were immediately adopted by the Victorian Government. Following the release of the Vincent Report, Australia's Attorneys-General have established a working party to examine national standards for the use and collection of DNA evidence. The use and interpretation of DNA evidence in jury trials is considered and factors that improve jury understanding of DNA evidence are discussed.     

Employers' liabilities for bullying-induced psychiatric injuries

Important opportunities exist for employees who are bullied in the work place to take civil action against employers for failing to provide them with a safe work environment. However, many logistical impediments lie in the way of successful actions for harm caused by bullying. This editorial scrutinises two important cases, Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618; Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377 and Green v DB Group Services (UK) Ltd [2006] EWHC 1898 where workers were successful in such actions and explores the repercussions of their success.     

Sexual Orientation Discrimination after Grant v South-West Trains

In Grant v South-West Trains [1998] ECR I-621, the European Court of Justice implied that, as a general matter, discrimination against an employee on the ground of sexual orientation did not violate Article 141 EC. This article argues that Grant rests on shaky foundations, in that it is conceptually inconsistent with the Court's earlier decision in P v S and Cornwall County Council [1996] ECR I-2143. Furthermore, the scope of Grant has since been qualified by decisions of the European Court of Human Rights – decisions which may well have undermined the status of the case more broadly. However these difficulties are ultimately resolved, the Court of Justice's treatment of sexual orientation discrimination exposes flaws in its approach as a self-proclaimed constitutional court.     

Bouvia v. Glenchur

Bouvia, a quadriplegic with cerebral palsy, earlier had failed to win Superior Court injunctions to restrain personnel at Riverside General Hospital from force feeding her if she attempted to starve herself to death while in their care [Bouvia v. County of Riverside, Trial court decision (in Bouvia I), No. 159780, 8 Feb 1984]. In this case, she sought a preliminary injunction restraining the staff of High Desert Hospital from continuing to feed her through a nasogastric tube, and from placing her on a special bed to control bed sores. In denying her request, the Superior Court ruled that, despite her claims to the contrary, Bouvia's refusal of nutrition and medical treatment was motivated by an intention to kill herself using public facilities, and not by a desire to exercise her right of privacy.     

Abandoning the common law: medical negligence, genetic tests and wrongful life in the Australian High Court

The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

Freedom of information applications as an "evergreening" tactic: Secretary, Department of Health and Ageing v iNOVA Pharmaceuticals (Australia) Pty Ltd (2010) 191 FCR 573; [2010] FCA 1442

A recent decision of the Federal Court of Australia illustrates how patent-holding pharmaceutical companies are attempting to use Australia's Freedom of Information Act 1982 (Cth) to force Australian safety, quality and efficacy regulators to disclose whether generic competitors are attempting to enter the market. In Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd (2010) 191 FCR 573; [2010] FCA 1442 a single judge of the Federal Court overturned a decision of the Administrative Appeals Tribunal (AAT) that would have compelled the Australian Therapeutic Goods Administration (TGA) to reveal whether they were in possession of an application to register generic versions of two iNova products: imiquimod and phentermine. In its justification to the AAT for refusing to confirm or deny the existence of any application, the TGA argued that to reveal the existence of such a document would prejudice the proper administration of the National Health Act 1953 (Cth) as it could compromise the listing of a generic on the Pharmaceutical Benefits Scheme. The AAT failed to appreciate the extent to which this revelation to a competitor would have undercut 2004 amendments to the Therapeutic Goods Act 1989 (Cth) that provided penalties for evergreening tactics involving TGA notifications to drug patent-holders and 2006 amendments to the Patents Act 1990 (Cth) which protected the right of generic manufacturers to "springboard". The decision of the Federal Court is one of the first to explore the use of freedom of information legislation by patent-holders as a potential "evergreening" technique to prolong royalties by marginalising generic competition. Because of the significant amounts of money involved in ensuring rapid market entry of low-cost generic products, the issue has considerable public health significance.     

The Carhart case and late-term abortions -- what's next in Australia?

A recent case in the United States Supreme Court has indicated a change in course on the issue of abortion rights. In Gonzales v Carhart 127 S Ct 1610 (2007), the Supreme Court, in April 2007, upheld federal legislation banning a particular late-term abortion procedure with no exceptions (even to preserve the mother's life). This column examines the case in the context of recent Australian cases involving abortion issues. It extrapolates from Carhart to consider the potential for the Australian High Court to disrupt access to safe, medically supervised and performed abortion.     

Access to confidential medical records by courts and tribunals: the inapplicability of the doctrine of public interest immunity

A number of Australian courts' decisions have afforded protection to public records. Statutory protection has also been given to counselling records in some jurisdictions in the context of the provision of services to victims of sexual assault. In the aftermath of the extension of public interest immunity in the particular circumstances of Clifford v Victorian Institute of Forensic Mental Health [1999] VSC 359, the argument was raised that a further extension should be made to protect personal health records against attempts at regulatory investigation of allegations of unprofessional conduct. In Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 the Victorian Court of Appeal unanimously declined to make such an extension. This appears to be indicative of a shift by Australian courts toward compelling disclosure of medical records in the interests of fairness save in very exceptional circumstances.     

Queensland general practitioners' applications of the "mature minor" principle: the role of patient age and gender

Most Australian jurisdictions do not have legislation that stipulates an age by which a minor can make their own medical treatment decisions. Instead, they rely on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, an English common law decision that recommends individual assessments of "maturity". This study explores how medical practitioners in the State of Queensland understand and apply this legal authority when faced with a young person wishing to make a contentious medical treatment decision. Almost 200 doctors made decisions about a hypothetical patient's competence and confidentiality, and detailed their reasoning in an open-ended format. The data indicate that the vagaries of existing legal criteria allow for a range of philosophical perspectives and idiosyncratic heuristics to play a role in assessment practices, and that particular combinations of patient age and gender made these cognitive shortcuts more likely to occur. A notable proportion of such processes are not consistent with legal guidelines, and this has implications for general practitioners' vulnerability to litigation as well as young patients' treatment trajectories.     

从"马萨诸塞州诉环境保护总署"案谈美国公民公益诉讼制度及对我国的启示

2007年4月美国联邦最高法院对"马萨诸塞州诉环境保护总署"案的终审判决,体现了公民诉讼制度的立法本意。该案进一步明确了公民诉讼的性质,肯定了地方政府和非政府组织或公民为适格的原告,降低了原告关于损害事实的证明负担,淡化了因果关系要求。借鉴美国制度,建立公益诉讼制度,赋予相关机关、社会团体和公民提起环保公益诉讼的权利,是我国有效治理污染的唯一途径。     

An analysis of traditional rules applied by Australian courts to establish personal jurisdiction and their application in e-commerce

This article analyses the jurisdictional principles employed by Australian courts in establishing personal jurisdiction in traditional settings and its extension to e-commerce cases. The Australian courts apply the court rules to exercise personal jurisdiction over defendants. The article discusses these rules relating to serving process within and outside Australia and jurisdiction based on the submission of the parties. The adequacies of principles like forum-non-conveniens, forum selection clauses which are vital in the personal jurisdiction inquiry are analysed. The unique High Court decision in Dow Jones v. Gutnick is discussed and the approach followed by the court critically analysed to highlight the excessive exercise of personal jurisdiction. Other cases concerning the internet are also discussed to highlight the approaches followed to establish personal jurisdiction in internet and e-commerce cases. It is argued that the drawbacks highlight the need for legislation to regulate personal jurisdiction in e-commerce cases.     

Buckland v Bournemouth University Higher Education Corp: Statutory Constructive Dismissal and the Implied Term of Mutual Trust and Confidence

The decision of the Court of Appeal in Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121; [2010] ICR 908; [2010] IRLR 445 is one which has ramifications for the common law and statutory regulation of the contract of employment. However, its significance does not end there, since it offers wider insights into the relationship between common law and statute law, as well as the English and Scots law of contract generally.     

Carney v Newton: expert evidence about the standard of clinical notes

In Carney v Newton [2006] TASSC 4 the Tasmanian Supreme Court heard a claim that the defendant breached his duty of care by failing to properly diagnose and treat a node positive carcinoma in the plaintiff's breast tissue. At trial, argument turned on the actual dialogue that took place during the initial consultation, with significant reliance on the clinical notes of the defendant. The court gave considerable weight to "expert" witnesses in ascertaining the acceptability of the defendant's conduct concerning the maintenance and interpretation of his clinical notes. This raises important questions in relation to proof of quality of medical records as part of the current professional standard of care, as modified by recent legislation in most jurisdictions.     

Iraq and the case for Australian war crimes trials

This article presents the case for Australian war crimes trials, following Australian participation in the invasion of Iraq and the subsequent deaths of as many as a million Iraqi civilians. It focuses on jus in bello (war crimes) rather than jus ad bellum (just war). The article sets out the argument and rationale that Australian war crimes trials are needed. Having established the necessity, the article identifies two of the principal alleged atrocities for which Australian officials should be held criminally accountable. It details Australian military support for the use of cluster bombs against civilians during the 2003 invasion, and senior Australian military commanders’ responsibility for planning and carrying out multiple purported war crimes during the attack on Fallujah in late 2004. The article recognises that, in order for Australian officials to be prosecuted under the International Criminal Court (ICC), all domestic remedies must be first exhausted. It therefore specifically addresses which Australian laws can be used, with particular emphasis on anti-terrorist legislation passed in 2002 under the Howard Government and the introduction into Australia’s domestic federal criminal legislation offences equivalent to the ICC Statute offences of genocide, crimes against humanity and war crimes. These provide the most applicable legal tools for prosecuting senior Australian officials for war crimes in Iraq.     

Natural justice and the coroner

In R v Doogan (2005) 158 ACTR 1; 193 FLR 239; [2005] ACTSC 74 the Full Court of the Australian Capital Territory Supreme Court made what is arguably thus far the most extensive Australian appellate decision on coronial law and procedure. The court made findings on the nature of coroners' inquests into fires and deaths, the ways in which the parameters of inquests should be determined and the circumstances in which the conduct of coroners and the counsel assisting them could amount to conduct which would lead the hypothetical disinterested bystander to conclude that the coroner was biased. The decision is a contextually sophisticated analysis. One of its consequences is that it will be difficult for parties to have coroners disqualified for apprehended bias. More generally, though, the decision will lend significant assistance for the recurrent difficulty of evaluating when matters sought to be traversed are outside the proper parameters of a coroner's inquest.