Garland v State Transit Authority

[1998] FCA 238

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG603 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER GARLAND Appellant
AND:	STATE TRANSIT AUTHORITY Respondent

JUDGES:	WILCOX, BRANSON AND MARSHALL JJ
DATE:	3 MARCH 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   The question the Court has to determine is entirely one of fact.  It is whether the appellant, Robert Peter Garland, resigned his employment with the respondent, the State Transit Authority, on 10 March 1994, as the Authority asserts, or whether he was dismissed from his employment at a later date, he contending this was 30 March 1994. The issue has been considered on two occasions within the court system; firstly by Judicial Registrar Linkenbagh and, secondly on review of her decision by Madgwick J.

Madgwick J had the benefit of hearing oral evidence given by Mr Garland and his former wife, Ms Fisher, and also one officer of the Authority, Mr Peter Rowley.  There was tendered to him by consent, evidence given before the Judicial Registrar by another officer of the Authority, Garry Fahey.  The evidence of Mr Rowley and Mr Fahey was that the appellant signed a resignation form on 10 March 1994.  This evidence was confirmed by evidence given by Ms Fisher.  She identified as her own, certain handwriting on the resignation form relied upon by the Authority.  The writing said:

“Subject:Resignation. 

To:Business Unit Manager

I Robert Peter Garland wish to resign immediately from Randwick buses and State Transit as of 10.3.94.”

Underneath those words is a signature that purports to be that of the appellant.  Ms Fisher said it was his signature.  Throughout the litigation Mr Garland's case has been this is not his signature.  However, he said towards the end of his argument today this might be his signature, but he did not recall the circumstances in which he signed the form.  The evidence of each of the two State Transit Authority officers is that it is indeed Mr Garland's signature and, at the time, he said he wished to resign.

The main point made by Mr Garland in his submission to us, as indeed in his submission to Madgwick J, is that it would have been against his best interests for him to have resigned on 10 March.  He says, and there does not seem to be any dispute about it, that at that time he had substantial accumulated sick leave available to him; and there is evidence to suggest his condition at that time was such that he would have been entitled to go on sick leave.  He says it would have been foolish for him to resign and forfeit that leave.  Apparently, resignation would have also involved loss of some other rights.  This is a powerful argument and under some circumstances would create in my mind a real question in my mind as to whether Mr Garland could have resigned.  However, the argument must be considered against the factual background. 

It is apparent from the evidence, and indeed common ground, that there had been a number of incidents between Mr Garland and superior officers before 10 March.  It is not for us to determine the rights and wrongs of those incidents.  One of them involved a complaint that Mr Garland had not properly accounted for certain money collected from passengers.  It seems to be common ground that, on 10 March, Mr Garland went to the depot for the purpose of filling in a workers compensation form and to discuss having time off work because of his medical condition.  It seems also to be common ground that, during that visit, he was told there would be a disciplinary inquiry regarding the money.  It seems further to be common ground that, at some stage, reference was made to the police.  It is not clear whether the first reference came from one of the officers of the State Transit Authority who was dealing with the case or from one of the two union representatives who were there to advise and assist Mr Garland; but it is clear the police were mentioned. It seems also to be clear that an inquiry was made, either by Mr Garland or Ms Fisher, as to whether it was possible to rule out police action.  The union representatives said they did not feel it was.

Mr Garland and Ms Fisher have two young children and it is clear from the evidence, on everybody's story, that Ms Fisher was extremely disturbed about the prospect of police action.  It is also clear, on everybody's story, that she begged Mr Garland to resign, she believing this would preclude police action.  The question is whether or not Mr Garland yielded to her entreaties.  Ms Fisher says, in effect, that he did, because he signed the resignation form; it being the second one that had been written out.  As I say, this is confirmed by the two State Transit Authority officers.

It is not for us to determine the likelihood of police action being taken or whether any resignation decision that was made by Mr Garland was under all the circumstances a wise one.  However, it is clear the situation at the time was such as to provide a motive for him to resign, even if that was against his financial interests.  The pressure exerted on him by Ms Fisher was apparently considerable and it is extremely likely he was influenced by it.  It seems to me the possibility of police action provides the answer to the question that underlies Mr Garland's submissions to us, namely, the rhetorical question of what possible reason would he have had to resign, given the loss of his accrued rights. 

The second point Mr Garland makes is that the resignation form, which was tendered in evidence as exhibit A, does not contain all the usual information.  I accept this is so, but the form is clearly a document produced by the State Transit Authority.  It is entitled  “General Report Form” and seems to be a form of a type that would be held in the Authority's depots.  I think the reason why it was not completed in the usual way may be the unusual circumstances under which the document was written out and signed.  Quite plainly there was a good deal of emotion at that time.  Earlier, another form had been written out and destroyed; then this form was completed.  It would not be surprising if some of the usual bureaucratic snippets of information were omitted.

Mr Garland’s problem, in my view, is that there is unanimous evidence against his denial from the three witnesses who were called.  I am particularly influenced by the evidence given by Ms Fisher.  It seems to me she has had no interest in saying that Mr Garland resigned if he did not do so in fact.  Madgwick J saw her and had the opportunity of considering her reliability as a witness.  We have not had that advantage.  Consistently with authorities laid down more than once in the High Court of Australia, we should not go behind his Honour's assessment of credibility, particularly when that assessment is supported by evidence from two other witnesses.

Madgwick J expressed the view that Mr Garland genuinely believes he did not resign.  I agree.  I am sure he is sincere in the case he put to us today.  It might be thought, particularly with the benefit of hindsight, that a decision to resign was not a wise decision.  I do not have a view about that matter.  It does not matter whether or not the decision was wise, the balance of the evidence clearly indicates there was a resignation on 10 March.  If that is so, it follows that Mr Garland’s employment ceased before the date upon which he contends he was terminated.

In my opinion, the appeal must be dismissed.

BRANSON J:   I agree.  There is, in my view, no reason shown to interfere with Madgwick J's finding that Mr Garland knowingly signed a resignation form at a time when his mental state was such that he knew what he was doing.  I agree that the appeal must be dismissed.

MARSHALL J:   His Honour, Madgwick J heard and saw the witnesses give evidence in the proceeding.  The Full Court has not had that advantage:   see Abalos v Australian Postal Commission (1990) 171 CLR 167, 179; Devries v Australian National Railways Commission (1993) 177 CLR 472, 478‑479, 482-483.

In the circumstances I have no basis for forming different views about the relevant facts to those expressed by Madgwick J and summarised in his reasons for judgment.   I am fortified in this conclusion having regard to the concession made by Mr Garland in his submission today that he signed so many documents on 10 March 1994 that he might have signed the resignation letter.  I have had regard to the submissions of Mr Garland and especially to his honest belief that he did not resign on that day and to the transcript of the proceedings before the trial Judge but I see no reason to interfere with the findings of the trial Judge.

I agree with Wilcox and Branson JJ that the appeal must be dismissed.

WILCOX J:   The order of the Court will be that the appeal is dismissed.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated:             3 March 1998

Appellant in person
Counsel for the Respondent:	S Wilson
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	3 March 1998