Gary Black v The Commonwealth of Australia (Department of Defence)

[2011] FWA 293

Note: An appeal pursuant to s.604 (C2011/3219) was lodged against this decision and the order arising from this decision [PR505954] - refer to Full Bench decision dated 18 May 2011 [[2011] FWAFB 3038] for result of appeal.

[2011] FWA 293

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Black
v
The Commonwealth of Australia (Department of Defence)
(U2010/9711)

COMMISSIONER ROBERTS SYDNEY, 14 JANUARY 2011

Application for unfair dismissal remedy.

[1] This decision concerns an application lodged on 11 June 2010 by Mr Black pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by the Commonwealth of Australia (Department of Defence) (the Department or the Respondent).

[2] The application was dealt with by a Fair Work Australia Conciliator on 2 July 2010 but the conciliation was unsuccessful.

[3] The arbitration came before me for hearing in Sydney on 6, 7 and 17 September 2010. Mr Black was represented by Mr A Walkaden of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Department was represented by Mr A Searle of Counsel.

[4] Mr Black gave sworn evidence on his own behalf. The following witnesses gave sworn evidence for the Respondent:

• Mr S Burge, Assistant Director Investigations of the Office of the Inspector General within the Department.



• Ms C Mak, Counsel Assisting in the Defence Materiel Organisation Legal (DMO Legal)



• Ms M Vella, Director, Personnel Services of the DMO and a Delegate of the Chief Executive Officer.



• Ms K Shields, Manager - Estate & Facilities Service - Defence Support in Northern NSW.

Background

[5] Mr Black joined the Joint Fuels and Lubricants Agency (JFLA) on its inception in 1998 and was Deputy Director (Operations) since 2003. He also regularly acted in the Director position. In total, he was employed by the Department for approximately 24 years. His employment was terminated by the Respondent on 3 June 2010 following an investigation into his conduct by Ms Vella. In the words of the Respondent’s outline of submissions 1: “The Investigation arose from a prior investigation by the Mr Steven Burge …, into the probity of procurement and management practices within the [JFLA]; specifically the sale of a large amount of contaminated fuel by the JFLA to South Australian Farmers Fuels Pty Ltd (SAFF), the subsequent failure of SAFF to make payment, and the entry into voluntary administration of SAFF.”

[6] The JFLA is a subdivision of the DMO, coming under the Maritime Support Branch, which in turn comes under the Maritime System Division, an agency under the DMO. In turn, the DMO reports to the Secretary of the Department.

[7] The Department maintains that Mr Burge’s investigation established certain facts which supported a conclusion that Mr Black may have breached the Department’s Code of Conduct by failing “... to adequately protect the interests of the Commonwealth by causing or contributing to a Commonwealth loss by misconduct or by deliberate and serious disregard of a reasonable standard of care.” 2

[8] “The Investigation by Ms Vella found that the Applicant had breached the Code of Conduct by:

(a) failing to act ethically, with honesty and integrity or with due care and diligence; and

(b) failing to comply with lawful and reasonable directions.

As a consequence, Ms Vella determined that the appropriate course of action was to terminate the Applicant’s employment.” 3

[9] It is not contested that the consequence of the sale to SAFF was a loss to the Commonwealth of around $3.9 million. It is further not contested that the Delegate approved the sale to SAFF based on the recommendation of Mr Black, a recommendation that was deficient in the information that it conveyed.

[10] Mr Black does not dispute the factual matrix of events which led to his employment being terminated. He does dispute the level of his culpability and maintains that the penalty applied to him was harsh in all the relevant circumstances. Mr Black seeks reinstatement to his former position with continuity of service but makes no claim to compensation for lost salary.

Legislative Framework

[11] Section 385 of the Act relevantly provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; ...”

Evidence

Mr Black

[12] Mr Black gave sworn evidence and submitted a witness statement. 4 Mr Black’s witness statement was, in summary, that:

• He is 44 years old and joined the Australian Public Service (APS) in 1985, transferring to the Department in July 1986. In 1987 he began work in the Fuel Section “where my primary duties were inventory management and the procurement of fuels and lubricants.”



• He was presented with a Commendation for the performance of his duties and in 2003 was awarded an Australia Day Medallion and certificate for his “exceptional support to the ADF in the provision of Aviation, Maritime and Ground Fuels as Manager (Procurement and Logistics) in the Joint Fuels and Lubricants Agency”.



• He was promoted to be an Executive Level 1 Officer in 2003 and had also acted at the level of the Executive Level 2 Officer for significant periods.



• “During my service with Defence, I received no counselling for poor performance and no adverse comments on my work place agreements.”



• “In my role as Deputy Director of Joint Fuels and Lubricants Agency (“JFLA”), one of my responsibilities is for the removal and disposal of the contaminated fuel. Routines have been previously established over a nine year period and used in JFLA, for the disposal of this type of product.”



• His previous activities in the disposal of contaminated fuel had “never been the subject of negative scrutiny and were the processes I understood to be correct when disposal of fuel was necessary”.



• “On 10 January 2008 a discharge of 8.7 kilolitres of fire suppressant foam occurred in the main marine diesel storage tank at the Garden Island Naval Base. As a result of this discharge the fire suppressant foam mixed with approximately 3.6 million litres of marine diesel fuel stored within the tank, eventually resulting in the product being deemed no longer fit for use.”



• He came under significant pressure from senior naval personnel to finalise the removal of the contaminated fuel.



• He made enquiries through the then JFLA Business Manager, Mr Driscoll, seeking advice as to whether the agency was permitted to do business with SAFF as he intended to include SAFF on a list of potential tenderers for the purchase of the contaminated fuel.



• Advice from Ms Mak was received through the Business Manager that there was no legal impediment to dealing with SAFF, which had previously been a slow payer in past similar circumstances. However, Ms Mak expressed reservations as to whether the Commonwealth would want to deal with SAFF again and she strongly recommended that JFLA “request performance security from SAFF in any future dealings to protect the Cth’s interests”.



• On 17 April 2008 he sent an Expression of Interest to approximately ten companies concerning the removal of the contaminated fuel and three companies expressed such an interest. He copied the Expression of Interest email to the then JFLA Director and to the Maritime Support Branch Finance Manager. “At no time was I directed by any of these people to request a performance security, nor did I know what one was at that time. I acknowledge and regret that the extreme pressure surrounding this transaction, on top of my already significant workload, resulted in me not seeking more appropriate advice about obtaining a performance security.”



• The three interested companies were then asked to provide their best offer for the fuel. One of those companies was SAFF. He subsequently recommended the SAFF bid through his Director and the sale was approved.



• The fuel was removed by SAFF in June 2008 and an invoice sent to SAFF in the amount of $3,916,215.38 with a payment date of 18 July 2008. SAFF subsequently defaulted on payment.



• He was aware that SAFF had failed to make on time payments on earlier occasions but was not aware that SAFF was in current financial difficulties. He relied on his understanding of Ms Mak’s advice “that the way was now clear for the Commonwealth to do business with SAFF. This was supported by my knowledge that SAFF had repaid Defence in full plus interest, for all previously outstanding debts.”



• When he undertook the sale process to SAFF “I was not aware that the Defence Procurement Policy Manual (DPPM) contained a section on how to correctly dispose of Defence assets. My only consultation of the DPPM was in relation to procurement related matters as at the time, I believed that the DPPM was solely a procurement related manual, as the title would suggest.”



• “During the first half of 2009, representatives from the Australian Defence Force Inspector General’s Division (“IGD”) attended JFLA and removed a significant amount of paperwork. Included in this paperwork was staff leave records, financial records, files relating to the sale of contaminated fuel, staff job descriptions and more. It was my understanding that there were a number of issues in JFLA which were being investigated, not just matters pertaining to me or to the sale of contaminated fuel.”



• On 6 May and 24 July 2009 he was extensively questioned by the IGD, led by Mr Burge. “At no time was I cautioned that I was being investigated to see whether I had breached the APS Code of Conduct, nor do I recall being offered an opportunity to have representation (either legal or union) at either of these interviews. As all correspondence relating to this matter had been seized by IGD, I was not able to prepare for either interview by reviewing files and related documents.”



• He cooperated in the interviews and did not try to be evasive, but “at times I was unable to remember some of the activities about which I was questioned.”

[13] Mr Black’s witness statement went on in some detail concerning the process which the Department followed subsequent to the interviews discussed above. The end result was the termination of Mr Black’s employment on 3 June 2010, on which date he was escorted from his office. On 18 June 2010 he was advised by an Officer of the Merit Protection Commissioner “that as I was no longer an APS employee and that I was no longer able to access the review provisions under section 33 of the Public Service Act. Accordingly, no further action in relation to my review application was to be taken.”

[14] Mr Black’s witness statement went on to detail his efforts to gain other employment, his financial and family circumstances, his health situation and the health situation of his immediate family members. I have paid regard to the information provided but do not intend to set it out in detail in recognition that Mr Black and his family are entitled to privacy.

[15] In cross-examination, Mr Black:

• Agreed that he acted as the Director of the JFLA for a number of periods, totalling about two years. 5



• Agreed that: “There wasn't much about what [the JFLA] had to do, if anything, that you didn't know about?” 6



• Agreed that he knew of the previous history of the JFLA’s dealings with SAFF. 7



• Agreed that he was concerned about using SAFF again, given that Company’s history with JFLA. 8



• Was asked: “I just want to be very clear here as to what was in your mind at the time: was your concern whether or not you could deal with them or was your concern whether or not you should deal with them?” and answered: “My concern was that because they had defaulted on paying in the past whether or not the department would legally allow me to include them in any offers that I made.” 9



• Said that he did not seek any advice directly from Ms Mak 10 and did not contact Ms Mak to follow up the advice she provided to Mr Driscoll.11



• Agreed that he “… took absolutely no action with regard to [Ms Mak]’s advice.” 12



• Agreed that Ms Mak was never informed of what the proposed trade with SAFF consisted of. 13



• Agreed that there was no basis for him to be critical of the advice provided by Ms Mak. 14



• Agreed that it would not be fair for Ms Mak to bear any of the blame for the outcome of dealings with SAFF. 15



• Agreed that Ms Mak didn’t say that there was ‘no problem’ in dealing with SAFF. 16



• Agreed that he misrepresented Ms Mak’s advice to the Director of the JFLA. 17



• Said that he didn’t think that he had spoken to representatives of the three tendering companies “just to make sure that you were clear in your mind that you had properly understood what they were putting”. 18



• Said that he took no other steps or undertook any research concerning dealing with SAFF except for seeking the advice of Ms Mak through Mr Driscoll. 19



• Said: “One of the biggest regrets that I have is that I didn't do anything and I cannot explain why I didn't do anything.” 20



• Said that he could offer no explanation as to why he didn’t act on Ms Mak’s advice. 21



• Agreed that price is not the only factor to be considered in choosing a preferred bidder and that reliability of the purchaser would be a relevant factor. 22



• Agreed that he did not provide information to persons involved in the approval of the sale to SAFF about any past issues with that company. 23



• Agreed that he did not provide material information to the decision maker. 24



• Said that he did not deliberately withhold such information. 25



• Said: “I can't explain it. Again, if I had my time over, it would have been done that way, but why I did it - why I didn't provide that information additional, I - I still lie awake at night thinking about it. So I do not know.” 26



• Agreed that the provision of full information about the Department’s previous dealings with SAFF could have led to the making of a different decision about the 2008 sale. 27



• Agreed that the Delegate only had available to her the information provided by him and was therefore not in a position to query the recommendation. 28



• Agreed that he communicated “a level of urgency around the approval” to the Delegate. 29



• Considered that there was no ‘reckless negligence’ on the part of those who accepted his recommendation on the proposed sale. 30



• Maintained his evidence that he was not aware that the DPPM contained a section on disposal of Departmental assets. 31



• Was asked: “Therefore, just as a matter of logic, a procurement manual would probably deal with disposal?” and answered: “I'm sorry I didn't make that connection at the time. I was unaware that the disposal chapter was in that manual.” 32



• Agreed that he had experience in disposing of Commonwealth assets. 33



• Agreed that if the DPPM had been followed by him, SAFF would have been unable to remove the fuel until it had been paid for. 34



• Agreed that it would have been prudent to have sought a bank guarantee for payment in full. 35



• Said that SAFF was not on any list of companies banned from doing business with the Department. 36



• Agreed that a bank guarantee is one form of a performance guarantee. 37



• Agreed that he was directed to seek legal advice in 2006 from DMO Legal about the desirability of a bank guarantee facility. He went on to agree that he did not do so at that time or subsequently. 38



• Repeated that he did not intentionally mislead anybody. 39



• Said that in choosing SAFF as the recommended buyer of the contaminated fuel, he did so only on the basis that SAFF was the highest bidder. 40



• Said: “In hindsight that decision was a poor decision, but if I had have thought at the time I was making a bad decision, I wouldn't have made it.” 41



• Said: “I'm glad that I've only made that one mistake in 25 years. I think that's a very good record, albeit that it was a shocking mistake and it's something I deeply regret. But, again, I can sit and look at this thing from any angle and I'm at a loss to explain why I didn't take Ms Mak's advice. It's there for all to see and I didn't do it. Again, even once this matter is resolved one way or the other I will not know why I didn't take the action that I should have obviously taken.” 42

Mr Burge

[16] Mr Burge gave sworn evidence and submitted a witness statement. 43 In summary, his witness statement was that:

• He undertakes investigations under the authority of the Inspector General within the Department.



• “The Inspector-General has the authority to investigate allegations of fraud, misconduct, or unethical behaviour committed against Defence. IG investigations include, for example, investigations into allegations of; fraud involving Defence and programs/appropriations administered by Defence, breaches of administrative law, impropriety or unethical practices, conflicts of interest, matters with politically sensitive implications and mismanagement and maladministration including waste or abuse of resources.”



• The investigation into Mr Black’s conduct was not a criminal one.



• Investigation involved the interview of 15 persons, including Mr Black.



• “Mr Black was one of a number of Defence personnel identified as being potentially able to provide information with respect to the sale. When he was invited to attend the interviews, and during the investigative process, he was not being investigated in relation to a potential breach of the APS Code of Conduct.”



• “The ultimate findings of the Investigation were that, on the balance of probabilities, both Mr Black and Mr Driscoll failed to adequately protect the interests of the Commonwealth by causing or contributing to a Commonwealth loss through misconduct or by deliberate and serious disregard of a reasonable standard of care. The Investigation also found that on the balance of probabilities, it would be reasonable to conclude that Mr Driscoll failed to act on the recommendation of Ms Carmen Mak, Legal Officer, DMO, to seek a bank guarantee from SAFF. In addition, Mr Driscoll was found to have failed to adequately supervise staff in relation to the sale and in the recovery of the Commonwealth debt.”



• “the Investigation indentified that generally Mr Black was involved actually and directly in the disposal process, and the issues identified with Mr Black’s actions arose from this direct involvement, whilst Mr Driscoll was not actually and directly involved in the disposal process, but was aware of the proposed sale and did not communicate concerns to Mr Black or others regarding SAFF’s history of defaulting.”



• The investigation confirmed that Mr Black did not inform Ms Shields or Ms Reddy “of either SAFF’s history of defaulting on payments, or of the legal advice received from Ms Mak. The Investigation also found that it was reasonable to conclude that Mr Black had a duty of care to provide the DSG delegates with ‘a comprehensive and accurate record of the issues surrounding the sale’, and that ‘his failure to provide this information exposed the Commonwealth to an extremely high probability of a fourth default on payment by SAFF’.”



• “Mr Black admitted during his interviews as part of the Investigation that he did not make any attempt to clarify the legal advice of Ms Mak with either Mr Driscoll or Ms Mak. He also agreed that the advice suggested any future sale to SAFF may not be an appropriate course of action, and that he did not consider acting on Ms Mak’s recommendation to seek performance security from SAFF, nor did he discuss the issue with Mr Driscoll or SAFF. The Investigation did not identify any evidence of criminal negligence or criminal dishonesty. ... The Investigation also found that there were some systemic weakness in relation to the disposal policy in that it was not as comprehensive as the corresponding procurement policy. However, the disposal policy contained sufficient guidance to avoid the situation that occurred in this matter.”

[17] In response to Mr Black’s witness statement, Mr Burge said that Mr Black was treated fairly during the interview process. “I advised Mr Black at the commencement of both of his interviews that if issues arose relating to the conduct of any APS employee that were considered to be potential breaches of the APS Code of Conduct, those issues may be reported to a civilian personnel delegate for independent consideration of disciplinary action under the Public Service Act. Mr Black acknowledged his understanding of this caution during both interviews.”

[18] Mr Burge went on to say that Mr Black had access to relevant JFLA files in preparing for his second interview. He further said that there was evidence of “a conflict between the answers given by Mr Black during his interviews, and the available documentary evidence as to the extent of his knowledge regarding SAFF’s history of defaulting on payments.”

[19] In cross-examination, Mr Burge:

• Said that prior to being employed by the Department he was an Officer in the Queensland Police Service for approximately 21 years, becoming a Detective in 1997. 44



• Agreed that he was an experienced investigator. 45



• Agreed that one of the allegations he was asked to investigate was whether Mr Black and a number of other persons involved in the SAFF sale had acted fraudulently. 46



• Agreed that his investigation did not find any evidence of a relationship between Mr Black and current or former employees of SAFF not related to Departmental business. 47



• Was asked: “In the course of your investigations of Mr Black did you find that Mr Black had received any gift, money or other benefit from any person associated with SAFF?” and answered: “No, I didn't.” 48



• Agreed that Mr Black offered to provide IGD with access to his bank account details without being obliged to do so. 49



• Agreed that Mr Black subsequently provided such access. 50



• Agreed that the investigation did not show any elements of criminal fraud or negligence. 51



• Agreed that Mr Black was cooperative during the two interviews. 52



• Agreed that Mr Black made admissions during the interviews that he should have provided more information to the Delegate. 53



• Agreed that Mr Black had admitted not keeping abreast of Departmental policy. 54



• Said: “I believed Mr Black was being honest in what he was telling me, yes.” 55



• Was asked: “Does your evidence go so far as to say that you believe, throughout the course of the two separate interviews, that Mr Black was honest with you?:” and answered: “If he answers the questions I gave him, yes, I believe he was.” 56



• Said that he had no knowledge about the JFLA processes followed when selling fuel to a company other than SAFF. 57



• Agreed that an interview can be stressful and could impact on the interviewee’s ability to recall certain details. 58



• Was asked: “But you don't say that in being inconsistent that Mr Black was necessarily sinister in his inconsistency, do you, sir?” and answered: “No, I certainly wasn't saying that.” 59

Ms Mak

[20] Ms Mak gave sworn evidence and submitted a witness statement. 60 It was Ms Mak’s witness statement that her role in DMO is to provide commercial legal and policy advice. In that role, she was involved in earlier dealings in relation to the recovery of a debt from SAFF during 2007. On 4 April 2008, Mr Driscoll sent her the following email:

“Can you advise if there is any legal requirement for JFLA to withhold trading with SAFF as a result of recent activities? We have had recent dialogue with the entity regarding other matters and are unsure of our status in terms of engaging them again in future.”

[21] “Mr Driscoll’s request for advice was a general request regarding whether there was any legal impediment to trade with SAFF in the future, noting their previous defaults on payment. Advice was not sought in relation to the approach nor appropriate terms and conditions on which JFLA should trade with SAFF.”

[22] She replied to Mr Driscoll in the following terms:

“There are no legal requirements preventing JFLA to trade with SAFF as the debt has been settled. Having regard to the previous dealings and history with SAFF, I am not sure whether the Cth would want to deal with SAFF again but that is a business decision for JFLA and the delegate to decide. However, I would strongly recommend JFLA to request performance security from SAFF in any future dealings to protect the Cth’s interests.”

[23] “JFLA did not contact me after my email of 4 April 2008 until July 2008 when Mr Driscoll requested legal advice on a further default by SAFF. It was at this point that I became aware that JFLA had entered into another contract with SAFF in June 2008 for the sale of fuel.”

[24] Ms Mak’s witness statement goes on to respond to that of Mr Black and I have paid regard to that material in the light of Mr Black’s concessions under cross-examination.

[25] In cross-examination, Ms Mak said that she did not consider Mr Driscoll’s email of 4 April 2008 to be ambiguous. 61 She did not seek any clarification from Mr Driscoll as to the type of dealing envisaged between the JFLA and SAFF.62 In answer to a question from me, Ms Mak said that her role was not to be proactive in giving advice without advice being first sought from her.63

Ms Vella

[26] Ms Vella gave sworn evidence and submitted a witness statement. 64 In summary, it was Ms Vella’s witness statement that:

• She is the Director, Personnel Services of the DMO and has held that position since October 2005.



• As Director of Personnel Services she holds the delegation of the Chief Executive Officer of the DMO with respect to determining breaches of the APS Code of Conduct and the appropriate sanction to be applied if such a breach has occurred.



• In May 2009 a request was sent from the CEO of the DMO to the IGD to undertake an investigation into the SAFF sale.



• Around August 2009 she was advised that inquiries by the IGD had established, on the balance of probabilities, that both Mr Black and Mr Driscoll may have breached the Code of Conduct.



• Investigation showed that Mr Black held a Certificate in Defence Procurement (Complex) which included a module on disposal of assets.



• On 22 September 2009 she notified Mr Black of the suspected breached of the Code of Conduct and invited him to respond in writing within seven days and that he could submit a request for an oral hearing in addition to a written response.



• Mr Black chose not to request an oral hearing and supplied a written response. After considering Mr Black’s response and an Investigation Report prepared by Mr Burge, she formed the view that Mr Black’s action may have constituted a breach of the Code of Conduct.



• On 1 February 2010, she “notified Mr Black that I had determined that he had breached the Code of Conduct”.



• On 10 March 2010 Mr Black made further submissions concerning the alleged breach.



• By letter dated 13 April 2010 “I offered Mr Black a further seven days to provide character references and any further relevant information in relation to sanction.”



• On 21 April 2010 Mr Black provided 16 character references.



• She then requested further information in relation to the nature of Mr Black’s relationship with some of the referees and Mr Black provided that information on 14 May 2010.



• After considering the matters raised by Mr Black, she terminated his employment on the ground of breaching the Code of Conduct.

[27] Ms Vella’s statement went on to say:

“I did not take the decision to terminate Mr Black's employment lightly. In reaching my determination, I considered issues including:

(a) the nature and seriousness of the misconduct;

(b) the need to maintain appropriate standards of conduct in the Australian Public Service;

(c) the need for Defence to have trust in Mr Black;

(d) Mr Black's responses;

(e) community standards and expectations;

(f) precedents established for similar behaviour;

(g) the need to deter similar behaviour;

(h) the mitigating circumstances raised by Mr Black;

(i) Mr Black's length of service and work performance;

(j) the referee statements;

(k) Mr Black's training in relation to disposals;

(1) Mr Black's classification and age;

(m) Mr Black's lack of remorse and accountability; and

(n) the effect of the proposed termination on Mr Black.

In reaching my decision, I noted that Mr Black had at all times been afforded procedural fairness. In particular, Mr Black had been given an opportunity to respond to the allegations against him and my preliminary view that termination of his employment may be warranted subject to any further comments he may wish to make. Mr Black had also been offered the opportunity to attend an oral hearing.

In making the decision to terminate Mr Black's employment, I considered the other available sanctions; a reprimand, reduction in salary, imposition of a fine, reduction in classification or re-assignment of duties. I considered, however, that these sanctions were inappropriate as a result of:

(a) the seriousness of Mr Black's conduct;

(b) the need to deter similar behaviour; and

(c) the loss of trust in Mr Black.

Ultimately, Mr Black's conduct was so serious that I considered the only appropriate sanction to be termination of employment.

The public places a great deal of faith in the integrity and diligence of public servants in the handling of public money. Mr Black's actions have the potential to bring the Australian Public Service, the Department of Defence and the DMO into disrepute and diminish public confidence in the manner in which the affairs of government are administered.

Mr Black has also demonstrated disregard for policies, gross negligence and recklessness in performing his duties as Deputy Director (Operations) of JFLA, with serious consequences. Following the default of SAFF, and the subsequent investigation by IGD, he attempted to deflect blame onto others, and was not honest and forthright in answering questions in relation to the matter,

He has demonstrated a lack of candour during the misconduct investigative process, and has refused to take accountability for his actions leading up to the loss of a significant amount of public money.”

[28] In response to Mr Black’s witness statement, Ms Vella said that Mr Black had an obligation to familiarise himself with the relevant review provisions concerning the investigations into his conduct and the decision making process leading up to the termination of his employment. She went on to say that an investigation into Mr Driscoll’s suspected breach of the Code of Conduct was ongoing when Mr Driscoll resigned from the Department shortly before the FWA hearing.

[29] In cross-examination, Ms Vella was questioned at length concerning the character references provided by Mr Black. 65

[30] Ms Vella went on to say that:

• She accepted that one consideration in her decision to terminate Mr Black’s employment was the size of the loss to the Department from the SAFF transaction. 66



• She was unsure if the decision would have been the same if the loss had been a small amount of money. 67



• She replied: “He may, he may not have.” when asked: “Do you accept that Mr Black might not have been sacked under that scenario [a small loss] I put to you?” 68



• The decision to terminate Mr Black’s employment resulted from a judgement call from her. 69



• She agreed that the Commonwealth took some nine months to instigate procedures to recover money from SAFF 70 and that SAFF went into administration in March 2009.71



• Her position does not involve any procurement role. 72



• The action of any other JFLA officer acting in a similar manner to Mr Black would be examined in the light of a range of matters such as “the level of the other person, their length of experience in doing this sort of work, how long they had been in the JFLA, maturity, a whole range of other matters ...” 73

[31] Ms Vella went on to say that she considered ‘community standards’ when reaching her decision to terminate Mr Black’s employment 74 and the reputation of the APS and the community expectation that the APS behave appropriately.75 She went on to say that another factor in her decision was that she considered Mr Black to have provided false and misleading information during the investigation.76 She went on to say that it was not a primary consideration for her.77 In forming that view she relied upon Mr Burge’s report.78

[32] In further cross-examination, Ms Vella:

• Agreed that over his 24 years employment with the Department Mr Black had developed a specialty in fuels and lubrications. 79



• Was asked: “Would you accept that he has a particular speciality and work experience built up over the years in fuels and lubrication logistics?” and answered: “He understands that product line, yes.” 80



• Was asked: “Do you accept that having a breach of the code of conduct on your employment record makes it more difficult to gain employment with the APS?” and answered: “It can.” 81



• Did not agree that Mr Black would have difficulty being employed by a contractor to the Department after the circumstances in which his employment was terminated. 82

[33] Ms Vella was further questioned at some length in relation to the family circumstances of Mr Black. I have paid regard to that further evidence but will not set it out in detail for the same reason provided earlier in this decision.

[34] Ms Vella was asked at the end of cross-examination: “Based upon the material I have put to you, has any of the material I've put to you caused you to change your mind as to whether it was correct to terminate Mr Black's employment?” and answered: “No.” 83 She went on to say that she had never met or spoken to Mr Black and formed her view as to his dishonesty based upon transcripts of the investigation and emails sent by him.84

[35] In re-examination, Ms Vella was asked how she would deal with a situation where two people have engaged in similar misconduct and what factors she would look at in determining what actions to be taken. She replied: “Well, there's all those considerations that I listed, remorse, accountability, whether they accepted accountability. The matter between Mr Black and the other matter were fairly similar in that there was no accountability, blaming others. Yes, a range of things including those ones that I mentioned.” 85 She went on to say that she would consider factors individual to each particular case.86

[36] Ms Vella went on to say that Mr Black had extensive experience in fuels and lubricants and the ability to seek assistance from many persons within the Procurement and Contracting Branch and DMO Legal. 87

[37] Ms Vella said that Mr Black had not provided any explanations for his behaviour prior to her forming the decision to terminate his employment. She was then asked: “In any of the information provided to you by Mr Black prior to you forming the view that his employment should be terminated, did he provide to you any information or material that would form a basis for the respondent to have any comfort going forward that the same conduct/failures would not occur in the future?” and answered: “No.” 88

Ms Shields

[38] Ms Shields gave sworn evidence and submitted a witness statement. 89 It was Ms Shields’ witness statement that between 2003 and around September 2009, she was the Manager Technical Services managing an area approximately 30 kilometres around the centre of Sydney. In April 2008 she was the Acting Regional Manager with DSG, Sydney Central. She held the delegation “relevant to endorsing the disposal of fuel in the circumstances of this matter”.

[39] In May 2008 she gave approval for the commencement of the process to dispose of the contaminated fuel. Ms D Reddy was the Acting Manager and Delegate on 23 May 2010 when the recommendation from Mr Black to sell the fuel to SAFF was approved.

[40] “At no time was I made aware of any issues with regard to SAFF’s history of defaulting on payments, or the legal opinion which I now know was provided by [DMO] Legal to JFLA. I understood that, as the subject matter experts, JFLA were responsible for making recommendations in relation to the sale of the contaminated fuel. Delegates, myself included, rely on the expertise and advice of subject matter experts in carrying out their functions.”

[41] “My expectation is that, if any issues, and in particular risks, are identified in regard to disposals through the disposal process, these issues or risks should be reflected in documentation provided to the delegate who is exercising the delegation. In addition, any measure to mitigate identified risks should also be included in documentation provided to the delegate.”

[42] In cross-examination, Ms Shields said that Ms Reddy held the appropriate delegation because Ms Shields was absent on the day the sale recommendation was endorsed. 90 Ms Shields went on to say that she “was generally aware” that Ms Reddy had not been previously involved in the sale of individual Departmental assets.91

Mr Wright

[43] Mr J Wright, a solicitor employed by Sparke Helmore Solicitors, submitted a witness statement. 92 That statement concerned the reason why Ms Reddy was unable to be present to give sworn evidence because of the impending birth of her child. Attached to Mr Wright’s statement was a medical certificate stating that Ms Reddy needed to take maternity leave from 1 September 2010 onwards.

[44] Mr Wright was not required for cross-examination.

Ms Reddy

[45] Ms V Reddy submitted a witness statement. 93 She was not required for cross-examination but Mr Walkaden raised a number of objections to parts of her statement. At the time Ms Reddy’s witness statement was entered into evidence, I stated that: “some of this witness statement must be treated with greater than usual caution in the light of the fact that the witness hasn't been a witness and been cross-examined.”94 I have approached Ms Reddy’s statement in that way in my decision making.

[46] Ms Reddy’s witness statement said, in summary:

• That during the period April 2007 to September 2008, she held two acting positions, including Manager Resources and Governance and Manager Personnel and Business Services for Defence Support - Sydney Central.



• That on 23 May 2008 she acted in the position of Regional Manager for DSG, Sydney Central.



• That prior to 23 May 2008 she became aware of the contaminated fuel.



• That: “In order to limit the Commonwealth’s losses relating to the potential for further contamination of fuel and associated financial loss, DSG had to clean the tank and therefore DSG made the decision to relocate the contaminated fuel. I was advised that this was due to the off-site facility only being available for a limited time.”



• That on 23 May 2008 she “was contacted by Gary Black of JFLA, who was looking for Kathryn Shields as the Acting Regional Manager for DSG, to exercise a delegation of that position, and sign a delegation relating to the write-off of fuel. It was apparently critical that it occurred that day. As a result I contacted Kathryn Shields via mobile telephone to discuss the matter and it was decided that I would exercise the delegation on her behalf. I was then approached by Gary Black of JFLA to sign a document, entitled ‘Disposal of contaminated fuel - Recommendations of sale’ ... Mr Gary Black provided me with the disposal document.”



• “I understood that it was the responsibility of JFLA to manage the disposal of the fuel and as to make the recommendation of sale in relation to the contaminated fuel, as outlined in the disposal document. I have never participated in the disposal of assets by sale previously, either by exercising the delegation, recommending sale, or in any other way. I understood at that time that the delegation had to be exercised on that day (23 May 2008) as another ship needed to use the tank that was storing the contaminated fuel.”



• That she asked the DSG Facilities Operations Manager to check the details of the disposal document but that person did not have access to financial information concerning the prospective buyers.



• “Prior to signing the disposal document, the only information I received in relation to the buyer of the fuel was that they provided the best price and they were compliant with the conditions of sale. I did not receive any other information from JFLA staff, including Mr Black, in relation to the selection of the company that had successfully tendered to purchase the contaminated fuel company, the nature of the business of that company, or the history of that company (including payment history). I also was not made aware of legal advice, of which I am now aware, given to Mr Black by DMO Legal Officer, Carmen Mak. My role was to review the recommendation for sale as prepared by the subject matter experts. My expectation was that all relevant information would be put before me in the recommendation for sale, for my consideration. There was nothing in the disposal documentation provided to me by JFLA to indicate that there were any issues in relation to payment terms or the proposed buyer’s capacity to pay. If I had been provide with information about the defaulting history of the buyer, I would not have exercised the delegation on the disposal document in favour of the sale to SAFF. The defaulting history of the buyer should have been included in the disposal document, and if the view was formed by JFLA that the risk of defaulting could have been mitigated, steps for mitigation should have also been included in the disposal document. If I had of been provided with this information, or with the legal advice of Ms Mak, I would have sought further advice and mitigation measures and escalated the matter to Ms Kathryn Shields as Acting Regional manager for advice and guidance, prior to considering the exercise of any delegation.”

[47] Ms Reddy’s statement went on to detail her response to the statement of Mr Black. She said that Delegates routinely rely on the expertise and advice of subject matter experts in exercising their delegation. “On this occasion, neither Mr Black, nor any other officer of JFLA, recommended that I review any costings or other information held on file nor did he alert me to any risks, which would require me to do so.”

Submissions

[48] Both Mr Black and the Department, through their representatives, made written and oral submissions. I have paid regard to those submissions but ultimately I must base my decision on the evidence and materials brought forward during proceedings. I have also paid regard to the case law cited by both parties and will refer to some of it later in this decision.

Conclusion and Findings

[49] Mr Black’s employment was terminated by Ms Vella for a breach of the APS Code of Conduct amounting to misconduct over his actions concerning the sale to SAFF of contaminated fuel in May 2008. The Defence Enterprise Collective Agreement 2009 at clause 16 (Review of decision to terminate employment) provides at subclause 16.3 as follows:

“16.3 Nothing in this Agreement prevents the Secretary from terminating the employment of an employee for serious misconduct, without further notice or payment in lieu, in accordance with section 123(1)(b) of the FW Act, subject to compliance with the procedures established by the Secretary for determining whether an employee has breached the APS Code of Conduct under section 15 of the PS Act.”

[50] Ms Vella operated under delegated authority in terminating Mr Black’s employment following her own investigation which followed that of Mr Burge and Mr Burge’s subsequent report.

[51] As the Applicant’s conduct is the reason given by the Department for the termination, I have to determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 95:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[52] In Container Terminals Australia Limited v Toby 96, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”97

[53] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 98 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[54] In Qantas Airways Ltd v Cornwall 99, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[55] In Edwards v Justice Giudice 100, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[56] At the conclusion of the hearing on 17 September 2010, I found that there was a valid reason for the termination of Mr Black’s employment. His conduct in ignoring the advice of Ms Mak, his failure to reveal the details of the previous unhappy financial dealings with SAFF to Ms Shields and Ms Reddy and his ignoring the disposal procedures set out in the DPPM together with the subsequent loss to the Commonwealth of some 3.9 million dollars overwhelmingly support that finding. For the purposes of completeness, I therefore again find that there was a valid reason for the termination of Mr Black’s employment.

[57] The only allegation of lack of performance against Mr Black is the manner in which he assessed the SAFF bid and his subsequent actions leading up to the approval of the sale to SAFF by Ms Reddy on 23 May 2008. His performance otherwise whilst an employee of the Department for some 24 years appears to have been commendable. The Department takes the view that despite that previous history, Mr Black’s performance over the SAFF sale renders it void.

[58] In relation to both Mr Black’s conduct and performance, I have considered the evidence of each witness and the documentary materials put before me at the hearing. Mr Black’s evidence, albeit some of it being extracted under cross-examination, leads me to believe that his actions over the SAFF sale are now as mystifying to him as they would be to any objective observer, including myself. Under cross-examination, Mr Black resiled from earlier attempts to taint Ms Mak, Ms Shields and Ms Reddy with some of the blame for the SAFF debacle. On what is before me, Mr Driscoll appears to bear some responsibility in addition to Mr Black. However, that does not lessen Mr Black’s level of responsibility.

[59] I wish to make it clear that I find absolutely no fault to lay with either Ms Mak or Ms Shields or Ms Reddy and accept their evidence in its totality as being truthful as to the matters within their knowledge. Similarly, I accept the evidence of Mr Burge as being truthful. The investigation by Mr Burge was thoroughly professional, dispassionate and fair. I also find that the evidence of Ms Vella should be accepted on its face as truthful and candid. The affidavit of Mr Wright was truthful in its contents and the affidavit of Ms Reddy appears to be accurate and truthful in its recounting of events. Most of the relevant material in Ms Reddy’s affidavit also formed of part of the evidence of other witnesses which I have accepted as truthful.

[60] There is nothing before me which would lead me to any suspicion that any of the Departmental witnesses did not act honestly and in the best interests of the Commonwealth at all material times. There was no taint in their evidence of any malice towards Mr Black. The conclusion reached by Ms Vella was open to her on the evidence presented to her.

[61] Mr Black’s evidence that he was not aware of the Disposals section in the DPPM is not credible in the light of the position he held and his training record. From the totality of the material available to me, I have concluded that, on the balance of probabilities:

• Mr Black felt himself to be under intense pressure to finalise the sale and removal of the contaminated fuel.



• He was aware from previous dealings with SAFF that it was a potential purchaser of the fuel.



• Because of his knowledge that SAFF had previously been a slow payer, he sought advice from Mr Driscoll as to whether SAFF was prohibited from dealing with the Department.



• Both Mr Black and Mr Driscoll wilfully ignored important parts of the advice from Ms Mak and took no action following that advice.



• Mr Black was determined to proceed with the sale to SAFF and tailored his subsequent actions to achieve that aim.



• Mr Black then prepared his recommendation for sale to SAFF omitting to advise the Delegate of SAFF’s previous history and of Ms Mak’s advice. Further, he ignored the provisions of the DPPM.



• He was cooperative in the ensuing investigation by Mr Burge and then Ms Vella but attempted to deflect as much of the blame from himself as he could. He was somewhat ‘economical with the truth’ concerning his knowledge and memory of previous dealings with SAFF.



• There was no fraudulent or corrupt action by Mr Black and he gained no personal advantage from the SAFF transaction.

[62] I now turn to the question whether the dismissal of Mr Black was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[63] In Byrne v Australian Airlines 101, McHugh and Gummow JJ of the High Court said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[64] The question of valid reason is dealt with above.

[65] It is apparent from the materials and evidence that Mr Black was notified of the reason for the termination of his employment and I so find.

[66] It is further clear on the materials and evidence that Mr Black was given an opportunity to respond and I so find. It does not appear that the Department refused to allow Mr Black to have a support person present during the process leading up to the termination of his employment and I so find. The issue of unsatisfactory performance beyond the SAFF incident does not arise.

[67] The size of the employer enterprise is a factor which is likely to have impacted on the procedure followed in effecting Mr Black’s dismissal. It is apparent that the Department is a large organisation with its own legal and industrial personnel and therefore wide access to advice on industrial relations matters. This appears to have impacted positively on the processes followed in the termination of Mr Black’s employment and I so find.

[68] However, I have come to the conclusion that the termination of Mr Black’s employment was harsh. It was not unjust or unreasonable.

[69] Mr Black was an employee of very long standing with an excellent employment record who held a position of some importance within the Department. There is no allegation of financial wrongdoing against him in relation to the SAFF sale. This is important in the context of the investigation by Mr Burge during which Mr Burge applied himself closely to examining whether there was a corrupt motive behind Mr Black’s actions. Mr Black was cleared of any corrupt or fraudulent behaviour.

[70] Mr Black made a huge error in judgement and then engaged in a process of attempting to mitigate the effects on himself of his error. Some of those attempts at mitigation do not reflect well on him. However, it comes down to this: a senior employee of some 24 years standing made one, admittedly large, error which caused the Commonwealth to lose some 3.9 million dollars. It is however possible that the Delegate may still have approved the sale even if armed with full information about SAFF and about Ms Mak’s advice.

[71] There is no doubt in my mind that Mr Black is now fully aware of the harm which his actions have caused and the degree of blame which legitimately attaches to him. However, I do not believe that Ms Vella attached correct weight to Mr Black’s previous good record, to the devastating effects that termination of employment has had upon him and his limited prospects of future employment within his field of expertise. Mr Black’s particular family circumstances, including various health issues, need also to be weighed.

[72] During her consideration of how to deal with Mr Black, Ms Vella considered several possible alternative sanctions to dismissal. In my view, it would have been more appropriate in Mr Black’s case to have applied any, and possibly all, of those sanctions against him but Ms Vella chose the ultimate sanction of termination of employment. In my view, her decision was harsh and I so find.

[73] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[74] Section 391 of the Act provides:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[75] In all of the circumstances of this case, reinstatement would in my view be practicable. Mr Black seeks reinstatement and I believe that the employment relationship between him and the Department can be re-established. I therefore find that reinstatement is an appropriate remedy in this case. Mr Black should not view this result as a vindication of his conduct but rather as a recognition of his otherwise good record which justifies him being given a second chance. In my view, the Department would be fully justified in placing Mr Black on a final warning and any future action by him similar to the SAFF matter would then have its inevitable consequence.

[76] The Applicant’s actions in contributing to the loss of his employment make it more than reasonable that some penalty apply to him. I therefore find that the Department should make no salary or wages payment to Mr Black for the period from the termination of his employment until the date of his reinstatement. That reinstatement should occur from the beginning of the first pay period to commence on or after 14 February 2011. I also find that Mr Black should not receive any leave accruals for the same period. His service with the Department is otherwise to be treated as continuous for all other purposes. This represents a significant penalty reflecting the gravity of the fault attaching to Mr Black.

[77] An order reflecting this decision is in PR505954.

COMMISSIONER

Appearances:

A Walkaden of AMWU for the Applicant.

A Searle of Counsel for the Respondent.

Hearing details:

2010.

Sydney:

September 6,7, 17.

 1   Exhibit Defence 4.

 2   Ibid and Exhibit Defence 5.

 3   Exhibit Defence 4.

 4   Exhibit AMWU 2.

 5   Transcript PN179.

 6   Transcript PN182.

 7   Transcript PN183.

 8   Transcript PN186.

 9   Transcript PN188.

 10   Transcript PN206.

 11   Transcript PN217.

 12   Transcript PN218.

 13   Transcript PN222.

 14   Transcript PN227.

 15   Transcript PNs232-233.

 16   Transcript PN239.

 17   Transcript PN260.

 18   Transcript PN329.

 19   Transcript PNs366-369, 374-379.

 20   Transcript PN381.

 21   Transcript PN382.

 22   Transcript PNs399-401.

 23   Transcript PNs425-426.

 24   Transcript PN437.

 25   Transcript PNs438-439.

 26   Transcript PN440.

 27   Transcript PNs450-453.

 28   Transcript PN454-455.

 29   Transcript PN457.

 30   Transcript PN468-469.

 31   Transcript PN478 and following.

 32   Transcript PN505.

 33   Transcript PN610.

 34   Transcript PNs627-628.

 35   Transcript PN630.

 36   Transcript PN632.

 37   Transcript PN659.

 38   Transcript PNs683-688.

 39   Transcript PN711.

 40   Transcript PN720.

 41   Transcript PN735.

 42   Transcript PN737.

 43   Exhibit Defence 5.

 44   Transcript PNs968-969.

 45   Transcript PN972.

 46   Transcript PN992.

 47   Transcript PN1004.

 48   Transcript PN1012.

 49   Transcript PNs1016-1019.

 50   Transcript PN1020.

 51   Transcript PN1023.

 52   Transcript PN1025.

 53   Transcript PN1030.

 54   Transcript PN1047.

 55   Transcript PN1051.

 56   Transcript PN1052.

 57   Transcript PN1098.

 58   Transcript PNs1112-1113.

 59   Transcript PN1130.

 60   Exhibit Defence 6.

 61   Transcript PN1247.

 62   Transcript PN1267.

 63   Transcript PNs1298-1299.

 64   Exhibit Defence 9.

 65   Transcript PN1441 and following.

 66   Transcript PN1547.

 67   Transcript PN1552.

 68   Transcript PN1553. See also discussion from PN1554 onwards.

 69   Transcript PN1563.

 70   Transcript PN1588

 71   Transcript PN1587.

 72   Transcript PN1601.

 73   Transcript PN1706.

 74   Transcript PN1768.

 75   Transcript PN1791.

 76   Transcript PNs1802-1804.

 77   Transcript PN1808.

 78   Transcript PN1821.

 79   Transcript PN1846.

 80   Transcript PN1851.

 81   Transcript PN1855.

 82   Transcript PNs1856-1858.

 83   Transcript PN1919.

 84   Transcript PN1927-1929.

 85   Transcript PN1944.

 86   Transcript PN1945.

 87   Transcript PN1952.

 88   Transcript PN1954.

 89   Exhibit Defence 10.

 90   Transcript PN2000.

 91   Transcript PN2007.

 92   Exhibit Defence 7.

 93   Exhibit Defence 8.

 94   Transcript PN1393.

 95   Print S4213, 17 March 2000.

 96   Print S8434, 24 July 2000.

 97   Ibid at para 15.

 98 (1995) 62 IR 371 at 373.

 99 [1998] FCA 865.

 100 [1999] FCA 1836.

 101 (1995) 185 CLR 410.

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<Price code C, PR505953>