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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 death.
  • 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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