Hart v Herron
A brutal human rights violation was the subject of this Australian civil case. However
due to lies under oath by the defendant and admissibility judgments of the trial judge
the jury were stopped from knowing the most important facts:
- To shut him up when he complained about botched surgery Barry Hart was
drugged against his will, tortured for two weeks by doctors and left
permanently brain damaged and unemployable.
- When he was able to Hart started an action in medical negligence.
- During this 1980 trial the jury was prevented by the judge from considering
much of the evidence going to the damage done to Hart. The judge viewed Hart
as having only suffered a couple of weeks inconvenience due to complications
of a medical treatment.
- Hart did win a verdict from the jury on false imprisonment and assault and
battery by the hospital and doctors and was awarded $60,000 in damages.
- But the judge upset at this outcome said Hart should feel the sting for wasting
the court's time with a case of "little importance", and made an adverse cost
order that had the effect of fining Hart personally $171,205.74c for this waste of
the court's time by his barrister.
- Hart's case had a side effect of raising interest in the media of other actions by
the doctors and started to expose many deaths. But Government did not want
to know (they were culpable as they were the failed regulators) and their
judges, on spurious grounds, stopped all complaints made by the public to the
NSW Medical Board, so the doctors were never disciplined. However over 6
years of media reporting and mounting public pressure finally forced
government to set up a royal commission. This had somewhat limited terms of
reference, and left a lot of serious matters unexplored (such as the deaths of
children from psycho-surgery , but even so cost the taxpayer $15 Million and
found that Hart had been the victim of a conspiracy. That the doctor had told
deliberate lies under oath in the 1980 trial. That so called 'medical evidence'
the doctor had claimed in court showed Hart to have pre-existing mental illness
was fraudulent rubbish. That the doctor had threatened witnesses and been
involved in falsifying death certificates of other patients who had died as a
result of similar 'treatment'. Twenty Four people died in Chelmsford Private
Hospital as a direct result of undergoing the narcosis treatment that
permanently injured Hart. Coroner's courts had been misled over causes of
- The NSW Government ignored the recommendations of this royal commission,
and the NSW Director of Public Prosecutions (an independent office that
cannot be questioned about decisions it makes) chose not to start any
criminal prosecution in Hart's case or over the many other related cases and
deaths and the misleading of several coroner's courts over cause of death.
Typical of such official response was that a later Chelmsford case found by a
coroners court to be prima facie manslaughter did not cause any prosecution
because the independent (and hence quite unaccountable) Director of Public
Prosecutions simply would not start any criminal proceedings.
- The NSW Appeal Court having years before stopped all complaints by Hart and
other Chelmsford victims against the doctors involved, the only path left open
was civil claim by victims.
- Hart pressed his civil appeal in the NSW Appeal Court as best he could as a
disabled pensioner who had lost his legal aid. (The NSW Legal Aid
Commission being yet another 'independent' and hence unaccountable
government body that in law does not have to explain its actions to its victims
like Mr Hart or to the general public.
- The doctors' defense to Mr Hart's cross appeal was one of double jeopardy, i.e.
that Hart's barrister should have uncovered the criminality in the 1980 trial but
failed to because he did not exercise due diligence. The three appeal judges
found for the doctors, and in their judgment failed to mention that the doctor
and hospital had been involved in fraudulent alteration of documents,
conspiracy, threatening a witness and deliberate lies under oath, only saying
that a doctor had 'acted badly in concert with others'.
- Mr Hart found a QC who would work on a contingent fee basis (i.e. no win no
fee) so he could make an application to The High Court of Australia for Special
Leave to Appeal. The High Court rejected Hart's application, out of hand and
the QC did not appear to raise the issues Mr Hart had asked to be raised, and
appeared just plain scared of the judges. Hart's MP questioned the manner the
court had operated in. This led to the High Court of Australia falsely claiming
by letter to Hart's MP it had not altered the transcript it sent to Hart's MP. In
reality it cut out a section so covering up the fact that a judge had intimidated
Hart's barrister into silence. Under the law then applicable to Special Leave
hearings to the High Court Hart was not allowed to personally address the
court, and so had to sit in silence while his case was not in any true sense
presented to a court that clearly did not wish to hear it anyway. Mr Hart's MP
denounced the judge's actions in Hansard to no effect at all.
- So after 17 years in the courts and 24 years after the torture of Hart the end of
legal process in Australia was reached. Hart still lives in poverty on a disability
pension. Without understanding it back in 1980 Hart had taken on 'the full
NSW establishment'. If Hart had succeeded prison terms for doctors and
health officials plus massive payouts to hundreds of patients were all possible.
Way back in the 1970s a Minister of Health had said publicly that it was not in
the public interest that Chelmsford victims be compensated. It seems "NSW
Inc." must have decided that Hart had to be stopped. Hart never got proper
advocacy in court in 1980, at his appeal, or in the High Court application. He
was by then just to 'hot' a person to represent in the normal way - by any
barrister who wished to continue to earn a living practicing law in Sydney. The
only professional brought before a professional disciplinary board in the whole
of this long saga was a barrister who represented Hart and other victims of the
doctors at the royal commission, and who thus cross examined the doctors
and health officials involved. The issue he was brought before the board for was
the number of questions put and his manner of questioning. He was not found
guilty of professional misconduct, but the message seems to have been sent
to other legal professionals about the risks of advocating for victims when the
State is seeking very hard to ignore them.
The NSW legal system thus comprehensively ensured, via the available judicial
discretion, that "the guiding principle in the assessment of damages", as defined in
Johnson v Perez (1988) 82 ALR 587, should not apply to Hart.
Just to make quite sure, at Hart's appeal the leading judge turned out to be one of the
three NSW Appeal Court judges who had sat on Hart's complaints to the Medical
Board of NSW and who had then not only stopped Hart's complaints to the Board but
also found Hart to have abused due process in making his complaint to the Board.
The appeal result was thus no surprise to all those who knew the history of the case.
But as NSW judges have no formal code of conduct to worry about, when complaints
were made by a community organisation the leading judge in the appeal was found by
the NSW Judicial Commission (which naturally is yet another independent body
which under its Act does not have to explain its decisions to anyone) to have done
nothing wrong at all. All the lose ends were thus neatly tied up.
This neat packaging was supported by both NSW and Australian governments who
could refuse to comply with obligations under international covenants to provide "an
effective remedy" for the violations committed by virtue of the doctrine of the
separation of powers which they claim make it impossible for them (so they say by
letter and on TV ) to interfere with the operation of the courts, the DPP and Legal Aid
Commission etc.The doctrine of the separation of powers is widely used by
government in Australia as a means of avoiding passing any official comment on
cases which the victims feel are serious abuses of human rights.
The outcome for Barry Hart is that his mental and physical health has been
destroyed, his professional career ruined, his wealth, and the limited compensation
via the jury trial, distributed between various legal professionals in legal fees, and he
has been left with quite unpayable debts (probably over well $200,000) to the
government (i.e. to the courts and legal aid). Government has chosen to hang this
debt over his head for many years, like a sword of Damocles so putting much
pressure on Mr Hart. Logically this may be because if they wait for his remaining
parent (who owns a house) to die they can then start bankruptcy action against him
with a hope of getting at least some of the money, whereas since legal fees had
stripped Hart of substance years ago they would have got very little, if anything at all,
if they had already taken such action.
Because Australian governments do not comply with international treaties they have
signed and ratified Hart has no recourse.
Hart's case is just one of many where victims of medical abuse have been demolished
by 'the system' when they dared to complain. Hart's case is unusual in that he did not
just give up much sooner, as is normally the case.
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(C) One Voice One People. Last updated: March 2000