Goddard v Public Service Appeal Board - [2024] WASC 167

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GODDARD -v- PUBLIC SERVICE APPEAL BOARD [2024] WASC 167
CORAM:   SEAWARD J
HEARD:   27 NOVEMBER 2023
DELIVERED          :   13 MAY 2024
FILE NO/S:   CIV 1897 of 2023
BETWEEN:   ROBERT DONALD GODDARD
Applicant
AND
PUBLIC SERVICE APPEAL BOARD
First Respondent
THE GOVERNING COUNCIL OF NORTH METROPOLITAN TAFE
Second Respondent

Catchwords:

Judicial Review - Appeal against a decision under the Public Sector Management Act 1994 (WA) to terminate employment - Allegation that the decision maker did not consider oral or written evidence - Whether the decision maker failed to accord procedural fairness - Whether the decision maker failed to take into account a relevant consideration - Whether the decision maker misapprehended the nature of their jurisdiction - Whether the decision was unreasonable - Allegations of actual or apprehended bias - Turns on own facts

Legislation:

Industrial Relations Act 1979 (WA)
Industrial Relations Commission Regulations 2005 (WA)
Public Sector Management (General) Regulations 1994 (WA)
Public Sector Management Act 1994 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	No appearance
Second Respondent	:	Mr J Carroll

Solicitors:

Applicant	:	In Person
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

Cases referred to in decision:

Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Browne v Browne [2019] WASCA 1
Craig v South Australia (1995) 184 CLR 163
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43
DL v R (2018) 266 CLR 1
Donaldson v Nolan [No 2] [2015] WASC 158
Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337
Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260
Frigger v Kitay [No 8] [2015] WASC 104
Goddard v Governing Council of North Metropolitan TAFE [2023] WAIRC 00260
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Mohareb v Kelso (No 2) [2018] NSWCA 246
Mount Lawley Pty Ltd v Western Australian Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273
MTI v SUL [No 2] [2012] WASCA 87
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Reynolds v Rayney [2023] WASCA 144
Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Titelius v Public Service Appeal Board [1999] WASCA 19

SEAWARD J:

Introduction

The applicant, Mr Goddard, was employed by the second respondent, the Governing Council of North Metropolitan Tafe (NMT), as a Technical Support Officer - Fabrication at NMT's Midland campus from 1 September 2007 to 13 April 2022.
Acting pursuant to the provisions of the Public Sector Management Act 1994 (WA) (PSM Act), NMT took disciplinary action against Mr Goddard in the form of terminating Mr Goddard's employment. Mr Goddard appealed that decision to the Public Service Appeal Board (the Board). The Board dismissed Mr Goddard's appeal.
Mr Goddard now seeks judicial review of the decision of the Board. For the reasons set out below, I dismiss the application for judicial review.

Legislative framework

Prior to outlining the facts regarding the appeal before the Board, and the Board's reasons for decision, it is helpful to first outline the legislative framework within which the disciplinary action and the appeal took place.

Public sector - breach of discipline

The PSM Act is concerned with the administration and management of what can generally be described as the public sector.
Part 5 of the PSM Act is concerned with substandard performance and disciplinary matters. Section 76(1)(b) of the PSM Act provides that pt 5 applies to (relevantly) such other employees, or members of such other class of employees, as are prescribed. Regulation 14(a) of the Public Sector Management (General) Regulations 1994 (WA) prescribes, for the purposes of s 76(1)(b) of the PSM Act, persons employed under s 47 of the Vocational Education and Training Act 1996 (WA). That provision, in turns, provides:
A college is to employ such persons as the governing council considers necessary to enable the functions of the college and the governing council to be performed.
There is no dispute that at all material times Mr Goddard was employed by NMT as Technical Support Officer - Fabrication.[1] Accordingly, the provisions contained in pt 5 of the PSM Act regarding substandard performance and discipline were applicable.
[1] See Goddard v Governing Council of North Metropolitan TAFE [2023] WAIRC 00260 (Primary Decision) [1]; Affidavit of John Matthew Carrol affirmed 6 October 2023 (Carroll affidavit), JMC-10, 341.
Section 80(b)(ii) of the PSM Act provides that an employee commits a breach of discipline if they (relevantly) contravene any public sector standard or code of ethics.
If an employing authority[2] of an employee is made aware (or becomes aware) that the employee may have committed a breach of discipline, the employing authority may: (a) decide to deal with the matter as a disciplinary matter in accordance with the PSM Act; or (b) decide that it is appropriate to take improvement action with respect to the employee or to take no action.[3]
[2] Defined in s 5 of the PSM Act.
[3] Section 81(1) of the PSM Act.
In dealing with a disciplinary matter, an employing authority:[4]
(a) must proceed with as little formality and technicality as [Part 5 Division 3], the [Public Sector] Commissioner's instructions and the circumstances of the matter permit; and
(b) is not bound by the rules of evidence; and
(c) may, subject to [Part 5 Division 3], and the [Public Sector] Commissioner's instructions, determine the procedure to be followed.
[4] Section 82A(1) of the PSM Act.
Section 82A(3)(b) of the PSM Act provides that subject to some presently irrelevant exceptions, after dealing with a matter as a disciplinary matter:
… if the employing authority finds that the employee has committed a breach of discipline … the employing authority must decide —
(i)to take disciplinary action, or both disciplinary action and improvement action, with respect to the employee; or
(ii) to take improvement action with respect to the employee; or
(iii) that no further action is to be taken.
Disciplinary action is defined in s 80A of the PSM Act as:
disciplinary action, in relation to a breach of discipline by an employee, means any one or more of the following —
(a)a reprimand;
(b) the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made;
(c) transferring the employee to another public sector body with the consent of the employing authority of that public sector body;
(d)if the employee is not a chief executive officer or chief employee, transferring the employee to another office, post or position in the public sector body in which the employee is employed;
(e) reduction in the monetary remuneration of the employee;
(f) reduction in the level of classification of the employee;
(g) dismissal;
Section 78 of the PSM Act provides for a right to appeal some decisions made under pt 5 of the PSM Act. Relevantly for present purposes, s 78(1) provides the following right of appeal:
(1) … an employee or former employee who —
(a) is, or was, a Government officer within the meaning of section 80C of the Industrial Relations Act 1979; and
(b) is aggrieved by —
…
(iv) a decision to take disciplinary action made in respect of the Government officer under section 82A(3)(b) …,
may appeal against that decision or finding to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.
There was no dispute that Mr Goddard was at all material times a 'government officer' as defined in s 80C of the Industrial Relations Act 1979 (WA) (IR Act)[5] or that a decision to take disciplinary action against Mr Goddard in the form of his dismissal was made.[6]

The Board

[5] Being employed on the salaried staff of NMT, which in turn is a 'public authority' as defined in s 7 of the IR Act. See also Primary Decision [4].

[6] Primary Decision [2].

Section 80H of the IR Act establishes the Board as a constituent authority of the Western Australian Industrial Relations Commission (WAIRC). A Board comprises three members, being the chairperson;[7] an employer's representative appointed by the employer of the appellant; and an employee's representative appointed by the relevant organisation.[8]
[7] Being a commissioner appointed by the Chief Commissioner as a public service arbitrator under s 80D(1) of the IR Act: see s 80H(7) of the IR Act.
[8] The relevant organisation being the Civil Service Association of Western Australia Incorporated, or if the appellant is not member, the organisation of which the appellant is a member: see s 80H(5) and (6) and s 80C of the IR Act.
A Board's jurisdiction and powers are detailed in s 80I of the IR Act. In the present case, the Board's jurisdiction was as follows:[9]
… a Board has jurisdiction to hear and determine – …
…
(b)an appeal by a government officer under the [PSM Act] section 78 against a decision or finding referred to in subsection (1)(b) of that section;
…
and to adjust all such matters as are referred to in paragraphs (a), (b), (c) and (d).
[9] Section 80I(1) of the PSM Act.
An appeal under s 80I of the IR Act must be instituted in the prescribed manner and within the prescribed time.[10] Regulation 107(1) of the Industrial Relations Commission Regulations 2005 (WA) provides that an appeal may be commenced by filing a notice of appeal in the approved form which includes such particulars as are approved by the Chief Commissioner from time to time. The approved notice of appeal requires an appellant to detail the reasons why the appellant disagrees with the decision the subject of the appeal.
[10] Section 80J(a) of the IR Act.
Section 80K of the IR Act provides that a Board may sit at any time and place appointed by the chairperson of the Board; the decision of a Board must be given in writing; the jurisdiction of a Board must be exercised by all the members sitting together and must be decided on a majority basis; and, to the extent it is not prescribed, a Board may regulate its own procedure.
Section 80L of the IR Act provides that certain provisions contained in the IR Act which apply to the WAIRC also apply to a Board. These provisions do not confer jurisdiction on a Board, but rather make provision for the manner in which that jurisdiction may be exercised. These provisions include that a Board:
(a)is to act with as much speed as the requirements of the IR Act and a proper consideration of the matter before it permits;[11]
(b)must, in the exercise of its jurisdiction: [12]
(i)act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms;
(ii)not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just;
(iii)have regard for the interests of the persons immediately concerned whether directly affected or not;
(c)where, in deciding any matter before it, proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Board must, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.[13]
[11] Section 22B of the IR Act.
[12] Section 26(1) of the IR Act.
[13] Section 26(3) of the IR Act.
An appeal to a Board is by way of hearing de novo.[14] A Board has the power to hear and consider fresh evidence during the appeal. However, in light of the requirement that an appeal be commenced in accordance with the approved form; the requirement that the appeal notice contain an explanation of the reasons for the appeal; and the statutory requirement to accord the parties procedural fairness, I accept the submission by NMT that the nature of an appeal before a Board (and therefore the task of a Board) will be guided by those reasons for appeal (or grounds) and will therefore vary on a case by case basis. For example, in one appeal it may be that there is no challenge to the finding that a breach of discipline occurred, but rather a challenge to a conclusion that the breach of discipline warranted dismissal. In another appeal it may be that the facts leading an employing authority to the conclusion that a breach of discipline has occurred are in dispute, and it will fall to the Board to make findings of fact on the basis of the evidence led on appeal and reach a conclusion as to whether a breach of discipline has occurred.
[14] Titelius v Public Service Appeal Board [1999] WASCA 19 [58].
No appeal lies from the decision of a Board. Sections 34(3) ‑ (4) of the IR Act[15] purport to limit the role of this Court in reviewing the decisions of a Board as follows:
[15] Which apply to a Board in accordance with s 80L(1) of the IR Act.
(3) Proceedings before the Commission cannot be impeached or held bad for want of form nor can they be removable to any court by certiorari or otherwise —
(a) on any ground relating to jurisdiction; or
(b) on any other ground.
(4) Except as provided by this Act, no award, order, declaration, finding, or proceeding of the Commission is liable to be challenged, appealed against, reviewed, quashed, or called in question by or in any court —
(a) on any ground relating to jurisdiction; or
(b)on any other ground.
However, in accordance with the decision of the High Court in Kirk v Industrial Court of New South Wales,[16] these sections are not to be read as excluding the supervisory jurisdiction of this Court to grant prerogative relief (or orders in the nature of that relief) if jurisdictional error on the part of a Board is established.
[16] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [97] - [100].

Factual background

The factual background to the disciplinary action and the appeal is not in dispute.[17]
[17] The below summary is taken from the Primary Decision and the Carroll affidavit, JMC-10 and JMC-11.
By letter dated 12 July 2021, two allegations of breach of discipline were put to Mr Goddard by NMT. Allegation 1 was to the effect that Mr Goddard had breached the NMT Staff Code of Conduct, the Public Sector Code of Ethics and the NMT Information Services Acceptable Use Policy for Staff by using excessive work time and resources for non‑work related purposes (email allegation). Allegation 2 was later withdrawn. The particulars provided of the email allegation were:[18]
●A review of your work email usage for the period from 9 August 2020 to 19 February 2021 indicated that the bulk of the emails you sent and received from your work computer contained, or were links to, videoclips, jokes, pictures or they were of a personal non-work related nature, including but not limited to;
[examples were then provided]
[18] Carroll affidavit, JMC-11, 361 - 363.
By letter dated 4 October 2021, NMT put a further allegation of breach of discipline to Mr Goddard. This allegation was to the effect that Mr Goddard had breached the NMT Staff Code of Conduct, the Public Sector Code of Ethics, the Occupational Safety and Health Act 1984 (OSH Act) and the NMT Occupational Health and Safety Policy for Staff by removing a tag from an electric forklift which was tagged out‑of‑service and using that forklift in circumstance where he had no authority to do so (tag‑out allegation). The particulars of that breach of discipline were as follows:[19]
●At approximately 2.30pm on 15 September 2021 you were observed driving a forklift that had been tagged out-of-service and marked 'DO NOT OPERATE' by a technician.
●In doing so you removed the 'DO NOT OPERATE' tag that had been placed on the steering wheel and which can only be removed by an authorised person.
●You were approached at this time by your Supervisor, Mr Adam Lansdown, and it was explained to you that as the forklift was tagged out-of-service 'DO NOT OPERATE' that staff were not authorised to remove the tag or operate the forklift.
●Your response to your Supervisor was that you had removed the tag, that you didn't care and that you had already operated this tagged out-of-service forklift on other occasions that week.
[19] Carroll affidavit, JMC-11, 382 - 384.
Mr Goddard responded to the various allegations of breach of discipline by way of letters dated 14 July 2021 and 7 November 2021.
NMT engaged an external consultant to investigate the allegations of breach of discipline and at the conclusion of that investigation the consultant produced a report which concluded that the email allegation and the tag out allegation had been substantiated.[20]
[20] Carroll affidavit, JMC-11, 350 - 360.
NMT then sent Mr Goddard a letter dated 22 February 2022 stating that there was sufficient evidence to find the email allegation and the tag‑out allegation substantiated, and that in light of this NMT was considering terminating his employment. Mr Goddard was given an opportunity to respond to that letter. Mr Goddard provided that response by letter dated 27 February 2022.
By letter dated letter dated 9 March 2022, NMT notified Mr Goddard that his employment was terminated with five weeks' notice.
Mr Goddard sought leave to appeal to the Board out of time against the decision to dismiss him from his employment. The appeal was heard by the Board on 27 and 28 February 2023. By order made on 5 May 2023, the Board granted Mr Goddard an extension of time within which to appeal, but dismissed his appeal.[21]
[21] Primary Decision [21] and [51].
By application filed on 11 August 2023, Mr Goddard seeks judicial review of the decision of the Board, relying on the following two grounds of review:[22]
1.Simply put, the board did not consider evidence I put forward orally or in written form.
2.The board in its findings had a [bias] to the other party, North Metropolitan Tafe.
[22] Application for Judicial Review filed 11 August 2023.
The application filed by Mr Goddard states that he applies for leave to proceed outside of the limitation period. However, leave is not required as the application for judicial review has been made within the required six month limitation period.[23]
[23] See O 56 r 2(4) of the Rules of the Supreme Court 1971 (WA), (read with the definition of 'limitation period' in O 56 r 1(1)).

Appeal and decision of the Board

Mr Goddard's case

Mr Goddard's case before the Board, as contained in the amended appeal notice, can be summarised as follows:[24]
[24] Carroll affidavit, JMC-3, 34 - 49.
(a)Mr Goddard admitted the email allegation, but submitted that the allegation did not justify his dismissal;
(b)NMT had failed to provide Mr Goddard with procedural fairness in relation to the tag-out allegation;
(c)the findings in the investigation report and alleged breach of discipline letters relevant to the tag-out allegation were factually incorrect, including because the investigation report:
(i)misstated NMT's isolation procedure and Mr Goddard's responsibilities and authority under that procedure;
(ii)incorrectly found that Mr Goddard breached the isolation procedure;
(iii)incorrectly found Mr Goddard, by removing the tag and operating the forklift, deliberately acted in contravention of a lawful direction by his employer or failed to meet his obligations under the OSH Act, when there was no such direction and Mr Goddard had the authority to remove the tag and drive the forklift, and he did so after determining the forklift was safe;
(d)the tag was not placed on the forklift in accordance with NMT's usual practice or the relevant documents; and
(e)in the alternative, the events underpinning the tag-out allegation did not justify Mr Goddard's dismissal.

Mr Goddard also filed written submissions[25] in support of his appeal and gave oral evidence.[26] A significant aspect of Mr Goddard's appeal before the Board was his case that the tag placed on the electric forklift was part of a façade or a charade by others at NMT in order to force senior management's hand to get the forklift serviced. Mr Goddard's case was that everyone at the NMT Midland campus understood this, and there was no problem or danger associated with the brakes on the electric forklift.
[25] Carroll affidavit, JMC-5, 141 - 149; JMC-6, 151 - 157.
[26] Carroll affidavit, JMC-8, 183 - 233.
Mr Goddard's case was that he had removed the tag on a previous occasion (about one week before 15 September 2021) and used the electric forklift. After using the electric forklift on this previous occasion, Mr Goddard parked the electric forklift, placed the tag in the bin and did not replace the tag. Mr Goddard's explanation for doing so was that he was using the gas forklift to unload gas packs (including high‑pressure oxygen bottles) when the gas forklift tines twisted and the gas packs almost fell from the gas forklift. Accordingly, Mr Goddard considered the gas forklift to be unsafe to use and instead used the electric forklift to unload these gas packs. Mr Goddard's explanation was also that the tag on the electric forklift had not been completed in accordance with the relevant requirements; that he was authorised to remove the tag; that he had not been given an instruction not to use the electric forklift; and he did not consider the electric forklift to be unsafe.
Mr Goddard's case was that on 15 September 2021, he had received a call from another NMT employee (Mr Grealish) advising him that someone had put one of the inert gases in back to front and Mr Grealish could therefore not connect the gas. Mr Goddard's evidence was that as he did not consider the gas forklift to be safe to unload the gas (given his previous experience) and as he considered there was nothing wrong with the brakes on the electric forklift, he used the electric forklift to complete the job. Mr Goddard relied on his experience in operating the electric forklift and his past experience in working with machinery and his understanding of why the tag had been placed on the forklift as the source of his belief that there was nothing wrong with the electric forklift brakes.

NMT's case

NMT's case before the Board, as contained in the amended response[27] and its written opening submissions,[28] can be summarised as follows:
[27] Carroll affidavit, JMC-4, 50 - 58.
[28] Carroll affidavit, JMC-7, 164 - 171.
(a)NMT accepted that the email allegation did not, on its own, justify Mr Goddard's dismissal. However, submitted that it did justify dismissal when considered in combination with the tag‑out allegation;
(b)whilst NMT did not accept the allegations of a denial of procedural fairness in relation to the tag‑out allegation, given an appeal to the Board proceeds by way of hearing de novo, the allegations were cured by the appeal and therefore irrelevant;
(c)NMT's case was that the tag had been placed on the electric forklift by an external mechanic following a genuinely held concern being raised about the operation of the brakes;
(d)Mr Goddard was not authorised to remove the tag from the electric forklift prior to the brakes being fixed and was not authorised to use the electric forklift on 15 September 2021;
(e)in removing the tag and operating the electric forklift, Mr Goddard had failed to comply with:
(i) principle 4 of the Code of Conduct;
(ii)the obligation to recognise the interests, rights, safety and welfare of others in the Public Sector Commission Code of Ethics; and
(iii) the obligation in the Occupational Health and Safety Policy for employees to take reasonable care to ensure their own safety and that of any other person who may be affected by their acts or omissions,
(f)the conduct underpinning the tag-out allegation was serious, and Mr Goddard had indicated that he would engage in the conduct again; and
(g)in all the circumstances the decision to dismiss Mr Goddard was not unfair; a fair process was followed; the findings were reasonable and fairly made and therefore the disciplinary action imposed was fair.
NMT called five witnesses at the appeal hearing in support of its case in relation the tag‑out allegation, each being other employees of NMT. These witnesses gave evidence as to the facts surrounding the placement of the tag; the instructions/communications given to Mr Goddard; the purpose of the tag and details of who, in accordance with NMT policies and procedures, was authorised to remove the tag. By way of summary, NMT's case was that:
(a)there were two forklifts: a gas forklift and an electric forklift;
(b) both forklifts needed servicing and employees had noticed a low‑pitch noise coming from the electric forklift which might have been coming from its brakes. Additionally, Mr Tom Nagy, an employee of NMT, experienced an occasion where the electric forklift brakes did not work properly;
(c)after a meeting advising senior management of these matters, arrangements were made for the electric forklift to be serviced. A technician from G&M Forklifts came to service the electric forklift on 25 August 2021 and provide a quote for any repairs. Amongst other things, the technician noted the 'brakes seem to be metal on metal'. The technician provided a quote for repair of the electric forklift and tagged out the forklift by placing a yellow 'out-of-service' tag on the forklift;
(d)on the same day Mr Nagy sent two emails to his colleagues, including Mr Goddard. The first stated that the forklift had been serviced and 'the technician is not happy with the brakes'. The second, sent later that same day, stating 'the forklift has been tagged out because of the brakes';
(e) Mr Goddard was not qualified or authorised to remove the tag and use the electric forklift;
(f) despite the above, on 15 September 2021 Mr Goddard removed the tag which the forklift technician had placed on the electric forklift and used electric forklift without approval;
(g) the gas forklift was available to be used on 15 September 2021; and
(h)the brakes on the electric forklift were subsequently repaired.
Given the nature of issues raised by the parties in the appeal, the statutory task for the Board was to hear evidence and make findings as to the facts concerning the tag‑out allegation and whether it constituted a breach of discipline. The Board was then required to consider, in light of the parties' submissions regarding the email allegation and the Board's conclusions in relation to the tag-out allegation, whether the decision of NMT to dismiss Mr Goddard should be adjusted.

Primary Decision

The appeal took place on 27 and 28 February 2023. Whilst Mr Goddard initially had legal representation when commencing the appeal (including the drafting of the appeal notice), Mr Goddard represented himself during the appeal hearing and NMT was represented by a lawyer. Each party gave opening and closing submissions; tendered documents; called witnesses in support of their case and was given the opportunity to cross examine the opposing party's witnesses. The parties also tendered an agreed statement of facts[29] and an agreed bundle of documents.[30]
[29] Carroll affidavit, JMC-10, 341 - 342.
[30] Carroll affidavit, JMC-11, 343 - 408.
In the Primary Decision, after addressing and granting the application for leave to appeal out of time,[31] the Board addressed the email allegation. The Board noted that Mr Goddard conceded the unauthorised use of work resources, namely the excessive use of work resources to send personal emails during work hours regarding his daughter's legal issues, tenancy matters, the Speedway Commission, movie streaming, cryptocurrency trading and contesting an infringement.[32] The Board also noted Mr Goddard's submission that he experienced a 'fair amount of pressure' to assist his daughter and that he also invested time at home on work related duties.[33]
[31] Primary Decision [7] - [21].
[32] Primary Decision [22] - [24].
[33] Primary Decision [23].
The Board noted NMT's submissions that Mr Goddard's conduct potentially undermined the public's necessary and entitled confidence in NMT's use of taxpayer funded time and resources and that the emails could signal to external parties that they were sent on NMT's behalf or at least with NMT's approval.[34] Finally, the Board noted NMT's submission that Mr Goddard's lack of understanding regarding the seriousness of his actions demonstrates a lack of insight.[35] The Board then concluded as follows:
28[NMT's] letter dated 12 July 2021, outlining 'alleged breaches of discipline', describes the allegation as 'using excessive work time and resources on non-work related matters'. The allegation is to the effect that Mr Goddard engaged in time theft, which is a serious allegation.
29Mr Goddard stated that at the time, he was under extreme pressure, trying to save his daughter from going to prison and assisting her in retaining custody of her children. As a result, he did not recognise the inappropriateness of his actions, claiming 'at the time, I had no other choice'. While Mr Goddard admitted to the misconduct, his qualification supports [NMT]'s submission that he lacks insight into the seriousness of his conduct. This leads the Board to be concerned there remains potential for Mr Goddard to engage in similar conduct in the future, which could weigh against the Board adjusting [NMT]'s decision to dismiss him.
30However, [NMT] conceded in its written submissions that dismissal would not solely result from this conduct. In light of these circumstances, the Board refrains from making any findings regarding [NMT]'s decision to dismiss based on this conduct alone.
[34] Primary Decision [26].
[35] Primary Decision [27].
The Board then turned to the tag-out allegations. The Board summarised the evidence given by Mr Goddard.[36] The Board noted that Mr Goddard did not dispute that the forklift technician from G&M Forklift tagged the forklift as out-of-service. However, Mr Goddard disputed the circumstances leading to the tagging. The Board observed that:
32Mr Goddard's evidence was that he has good mechanical knowledge and can tell whether a forklift is safe to use or not. His evidence was that there was nothing mechanically wrong with the forklift, and the whole 'business with the brakes' 'was purely a charade' to justify the service of the forklift.
33Mr Goddard does not dispute that the forklift technician from G&M Forklift tagged the forklift as out-of-service. However, he disputes the circumstances leading to the tagging. He claims that the technician tagged the forklift at the suggestion of Mr Johnston, who told Mr Nagy to instruct the technician to do so in order to justify servicing the forklift.
[36] Primary Decision [31].
The Board observed that the five NMT witnesses gave evidence that was unchallenged.[37] The Board then outlined its findings as to the timeline of events, having had regard to the evidence and the documents tendered.[38] I have not repeated each of those findings here. However, significantly in the context of both the decision of the Board and the application for judicial review, the Board found that:
[37] Primary Decision [34].
[38] Primary Decision [34].
(a)in or around mid-August 2021, Mr Tom Nagy experienced an issue with the brakes on the electric forklift. While carrying a heavy load of steel on the tines, the electric forklift began to roll forward despite Mr Nagy applying substantial pressure on the brake pedal;[39]
(b)a few days later, during a meeting between Mr Lansdown, Mr Langridge, Mr Goddard, Mr Nagy, Mr Grealish and Mr Pilkington, Mr Goddard mentioned that the forklifts had not been serviced since 2016 and 2018. Mr Nagy also raised the incident he experienced with the brakes. Mr Nagy then drove the electric forklift and demonstrated a low‑pitch squeaking noise which had commenced being emitted from the electric forklift approximately 18 months ago;[40]
(c)steps were later taken to arrange for the service of both forklifts;[41]
(d)Mr Goddard was not present on 25 August 2021 when the technician from G&M Forklifts attended and placed the out-of-service tag on the electric forklift;[42]
(e)Mr Nagy emailed his colleagues (including Mr Goddard) on 25 August 2021 advising as follows:[43]
Hi All the service is done, The forklift has been tagged out because of the brakes. A quote is being done for the repairs hopefully I will see it soon
It is parked in its charging station - Tom_
(f)the electric forklift was repaired on 7 October 2021, and those repairs included replacement of the brake fluid, cleaning with brake cleaner and replacing the brake shoes.[44]
[39] Primary Decision [34(e)].
[40] Primary Decision [34(a)], [34(d)] and [34(f)].
[41] Primary Decision [34(g)] - [34(i)].
[42] Primary Decision [34(i)].
[43] Primary Decision [34(k)].
[44] Primary Decision [34(t)-(u)].
In relation to the procedure to be followed for an out of tag service, the Board concluded:
35Each of [NMT's] witnesses gave evidence regarding the purpose of an out-of-service tag, including who can apply one, who can remove one, and the procedure to be followed before removal, largely consistent with Mr Johnston's email sent on 15 September 2021. They emphasised that, barring an emergency situation, an out-of-service tag may only be removed by someone deemed competent to do so, and Mr Goddard did not meet this criterion.
36Additionally, other than in an emergency situation where using a tagged out forklift could save lives, a tagged out forklift should not be operated whilst tagged out. The witnesses concurred on the potential adverse consequences of using a forklift whilst tagged out.
The Board observed that there was no dispute that Mr Goddard removed the out-of-service tag and operated the forklift, and that:
38The dispute rests with Mr Goddard's refusal to acknowledge that the out-of-service tag was placed on the forklift due to its unsafe condition. He contends that the tag served as a façade or charade. While Mr Goddard concedes that a G&M Forklift technician tagged the forklift as out-of-service and admits to receiving emails from Mr Nagy conveying the technician's concerns about the brakes, he maintains that this occurred 'because we were all playing along'.
The Board concluded that the removal of the tag and operation of the electric forklift by Mr Goddard on 15 September 2022 was contrary to NMT's guidelines.[45]
[45] Primary Decision [37].
The Board accepted NMT's submission that Mr Goddard's case in relation to the purpose of the tag did not make sense and made the following findings:[46]
(a)Mr Nagy held a genuine concern regarding the forklift's brake safety, stemming from an incident in mid-August 2021 where, despite firmly applying both feet on the brake pedal, the forklift proceeded to roll forward. Mr Nagy communicated these concerns to his superiors and also to Mr Goddard.
(b)A forklift specialist from G&M Forklift serviced the forklift, and based on their concerns surrounding the brakes, tagged out the forklift. Despite Mr Goddard's assertion that all parties were 'playing along' to pressure management into servicing the forklift, the specialist performed the service on 25 August 2021 and tagged the forklift as out-of-service. Mr Goddard was not present during the service and cannot contradict that the forklift specialist tagged out the forklift for any reason other than the stated reason.
(c)On or around 8 October 2021, G&M Forklift replaced the brake shoes and invoiced [NMT] accordingly. There is no basis for the Board to conclude that G&M Forklift did not have a reasonable basis for undertaking a replacement of the brake shoes. This is supported by Mr Goddard's admission that, if he had been responsible for the task, he would have taken the shoes and old lining to a company in Malaga, where the turnaround for completion would be within a day.
[46] Primary Decision [39].
Ultimately, the Board found the tag out allegations substantiated, and accepted NMT's submission that Mr Goddard's conduct was wilful and deliberate, as he had intended to remove the out-of-service tag and operate the forklift, but was not malicious.[47]
[47] Primary Decision [41].
The Board accepted that the removal of a safety tag outside of the proper processes can amount to serious misconduct warranting summary dismissal, even where the conduct is not wilful or deliberate.[48]
[48] Primary Decision [40].
The Board considered Mr Goddard's submission that he had no option but to use the electric forklift on 15 September 2021, and concluded that:[49]
… Mr Goddard should not have operated the forklift once it was tagged out-of-service. If Mr Goddard needed to move steel or gas pallets, he should have used the gas forklift. If Mr Goddard truly considered the gas forklift unsafe, he should have submitted a formal report or tagged it as out-of-service himself. If this led to both forklifts being unavailable, work requiring a forklift would have to cease due to health and safety obligations.
[49] Primary Decision [42].
The Board also found that Mr Goddard had prioritised his mechanical knowledge over NMT's procedures and also proceeded to remove the tag on the basis of his belief that the forklift was tagged out for an ulterior purpose, which the Board did not accept.[50]
[50] Primary Decision [43].
The Board found that in light of Mr Goddard's insistence that his conduct was in good faith and without any fault; that there was not anything wrong with the brakes; and that he would not do anything differently, Mr Goddard lacked insight into his conduct and the Board was not persuaded that Mr Goddard would not engage in similar conduct if he was returned to work.[51]
[51] Primary Decision [43] - [47].
In those circumstances, the Board concluded:
48The Board finds that both the Excessive Use of [NMT] Resources and Tag Out Allegations are substantiated.
49While the Board has taken into account Mr Goddard's age, length of service, and financial situation, it finds that these mitigating factors are insufficient to warrant adjusting [NMT]'s decision to dismiss Mr Goddard in light of the circumstances.
50For the preceding reasons, the Board finds that dismissal is a proportionate and reasonable response to Mr Goddard's conduct and remains unconvinced that [NMT]'s decision to dismiss him should be adjusted.
51Accordingly, the Board will order that Appeal No. PSAB 60 of 2022 be dismissed.

Materials before the Court

NMT filed an affidavit[52] attaching the various documents that were before the Board, the transcript of the appeal and the decision of the Board. NMT also filed an outline of written submissions.
[52] Carroll affidavit.
Mr Goddard filed the following documents in support of his application:
(a)a one-page document headed 'Dear Justice Seaward';
(b)a two-page document headed 'Factual points';
(c)a four-page document headed 'Reply re: Forklift', which was also before the Board;[53]
(d)a seven-page document headed 'Tag Out Allegations' consisting of extracts from the Primary Decision, which contains comments and responses from Mr Goddard;
(e)a three-page document headed 'Just a thought'; and
(f)a six-page document commencing 'It is my opinion the board'.
[53] Transcript 27 November 2023 (Judicial Review transcript), 18.

Legal principles - judicial review

A decision will involve jurisdictional error if the decision is made outside the limits of the powers and functions given to the decision maker.[54] As observed by the High Court in Kirk v Industrial Court of New South Wales,[55] it is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. However, some common examples of jurisdictional error in relation to a decision of an inferior court or anomalous tribunal (in addition to a denial of natural justice and bias) were summarised by the Court of Appeal in Bajaj v Magistrate Trevor Darge as follows:[56]
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ([...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
[54] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163].
[55] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71].
[56] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [53], citing Craig v South Australia (1995) 184 CLR 163, 177 ‑ 178. See also Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71].

In addition, an error will only be jurisdictional if the error was also material to the decision that was made. Some errors (eg bias or unreasonableness in the final result) will, of their nature, always be jurisdictional errors. However, for most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[57] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[58]
[57] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [6] ‑ [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80[32] - [33], [46], [63].
[58] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [14] - [15].

Importantly, an application for judicial review is not an appeal from the decision in question, and it does not involve the supervising court conducting a merits review of the decision in question and substituting its own decision for that of the decision maker. Rather, the court's role is to decide the limits within which the decision maker must exercise their discretion and whether the decision maker has exceeded those limits. If the decision is made within those limits, then it cannot be impugned. That is, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. This is sometimes described as the authority to go wrong.[59]
[59] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [66].
Mr Goddard represented himself at all times in his application for judicial review. I have, therefore, construed his grounds of judicial review generously. Whist the second ground of review is confined to the question of bias on the part of the Board, in relation to the first ground of review, I have considered whether the matters raised by Mr Goddard fall within any of the other common examples of judicial review referred to above.

Ground 1

Case on review

The first ground alleges that the Board did not consider Mr Goddard's oral and written evidence. Mr Goddard filed a number of documents with the court for the purposes of the judicial review, which are outlined above. The key document is the document headed 'Dear Justice Seaward' which lists the following key facts which Mr Goddard submits were ignored or not considered by the Board:[60]
[60] Judicial Review transcript, 29 - 30.
There is a basic FACT, which for some reason or other is ignored or not considered.
And that fact is 'The electric forklift had a tag, which I consider inappropriate use of the tagging system, placed on it because a Port Folio Director and the campus Manager were arguing the point as to who was responsible for the service of the electric forklift, and to put it bluntly, staff were fed up'
In addition, it was not a legal tag as there was no information indicating any fault merely an indecipherable squiggle in the signature section and no other details.
The three or four so people that used the electric forklift agreed we would not use the unit in an endeavour to get management to do something.
Unfortunately, I had an emergency situation and had to use the electric forklift.
The reason I had to use the unit is covered in documents.
Another fact which has not been considered is, the person from the forklift company put in a false report as to the condition of the brakes to appease a request from the automotive section technician Tom Nagy, to justify the service of the unit.
FACT, at no time did any manager or supervisor tell me not to use the electric forklift.
(emphasis in original)
In addition, Mr Goddard relied on another issue which he says was not considered by the Board, which was his evidence as to another occasion after the electric forklift had been serviced when he was using the electric forklift and officers from WorkSafe attended the Midland campus. Mr Goddard's submission is that he was asked to put a tag on the electric forklift and not to use it, but after the WorkSafe officers left, he was told to take the tag off. Mr Goddard's submission was that there was no reference to this situation, which he described as senior managers deceiving WorkSafe in the Board's decision.[61]
[61] Judicial Review transcript, 30 - 32.
In response, NMT submitted that Mr Goddard's submission must fail as the Primary Decision reveals that the Board did consider Mr Goddard's evidence directed towards the tag-out allegation. NMT submitted that the true complaint raised by Mr Goddard was that the Board did not accept the critical aspects of his evidence (as opposed to not considering the evidence) and that a failure to accept the evidence of a witness does not, without more, constitute jurisdictional error. Finally, NMT submitted that it was reasonably open for the Board to reject Mr Goddard's evidence on the key areas of factual dispute for the reasons given in the Primary Decision.

Disposition

A submission that a decision maker failed to consider evidence may, depending on the facts of the case, form the basis of more than one jurisdictional error. For example, it may lead to a conclusion that the decision maker did not accord a party procedural fairness; or take into account a relevant consideration; or it may reveal that the decision maker did not understand the case being put and therefore misapprehended the nature of their jurisdiction, such that they failed to exercise that jurisdiction in fact; or it may reveal (on the assumption that the matters had been taken into account) that the final decision is unreasonable. As Mr Goddard is unrepresented, I have considered his submission in the context of each of these possible jurisdictional errors.
First, this is not a situation in which Mr Goddard was denied procedural fairness by the Board. Mr Goddard was afforded the opportunity to file written materials and give oral evidence; to cross examine the witnesses called by NMT and also to make opening and closing submissions in the appeal. The central point of Mr Goddard's submission is not that he was not given an opportunity to lead evidence, but rather that the evidence was not considered.
Secondly, this is not a situation in which the Board failed to take into account Mr Goddard's evidence at all, such that it could be said that the Board failed to undertake its statutory function of considering Mr Goddard's appeal.[62] I also consider that the present case is not one in which the Board overlooked any significant relevant aspect of Mr Goddard's evidence such that it could be said that the Board failed to understand or comprehend Mr Goddard's case in the appeal and therefore misunderstood or failed to undertake its task on appeal.
[62] Compare LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166.
The Board was required to give written reasons for its decision. Those reasons are not required to be lengthy or elaborate or refer to all the evidence led in the proceedings. What is required is for the Board to disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful. It is not necessary to refer to every submission advanced by a party, however the Board must engage with the central elements of a losing party's case and explain why that case fails.[63] Reasons are not required to address an irrelevant dispute or one which is peripheral to the real issues. Ordinarily it will be sufficient to summarise the crucial arguments of the parties.[64]
[63] Browne v Browne [2019] WASCA 1 [80]; Mount Lawley Pty Ltd v Western Australian Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 [28].
[64] DL v R (2018) 266 CLR 1 [33].
In the present case, I am satisfied that the Primary Decision reveals that the Board was aware of and considered the following key relevant aspects of Mr Goddard's case on appeal, and therefore did not misunderstand or fail to undertake its task:
(a)Mr Goddard's belief that the tag was placed on the electric forklift as part of a charade or a façade in order to ensure the forklift was serviced, and not as part of any genuine concern about the brakes, was referred to and considered by the Board at [31(a)], [33], [34(e)] - [34(i)], [38] and [39] of the Primary Decision.
(b)It was not in dispute that Mr Goddard was aware of the electric forklift being tagged out-of-service. The Board referred to and considered the email evidence of Mr Goddard being informed that the electric forklift had been tagged out-of-service due to an issue with the brakes at [33], [34(j)] - [34(k)] and [38] of the Primary Decision.
(c)Mr Goddard's reasons for using the electric forklift on 15 September 2021 were referred to and considered by the Board at [31(e)] and [42] of the Primary Decision.
(d)Mr Goddard's reasons for using the electric forklift on the earlier occasion when he had the incident with the gas forklift were referred to and considered at [31(c)] - [31(d)] and [42] of the Primary Decision (including that Mr Goddard had removed the tag on this occasion and threw it in the bin). Mr Goddard clarified in his oral submissions that his reference to an 'emergency situation' concerned the first occasion he used the electric forklift and his use of the electric forklift on 15 September 2021 was an imperative.[65]
(e)Mr Goddard's evidence that he knew, and had the experience to know, that there was nothing wrong with the brakes of the electric forklift was referred to and considered at [32], [43] and [45] of the Primary Decision.
(f)The question of the relevant tagging procedures; who placed the tag; who was authorised to remove the tag from the electric forklift and whether Mr Goddard was authorised to remove the tag were considered at [31(d)], [34(g)] - [34(m)], [34(s)], [35] - [36], [41] - [43] of the Primary Decision.
(g)The question of whether, if a breach of discipline was established, the decision of NMT to dismiss Mr Goddard ought to be adjusted, was considered at [45] - [50] of the Primary Decision.
[65] Carroll affidavit, JMC-8, 201 - 202; Judicial Review transcript, 23, 40 - 42.
To the extent Mr Goddard raised issues regarding whether WorkSafe had been deceived on a particular date by certain managers at NMT, Mr Goddard clarified in his oral submissions that this was a matter going to the credibility of the witnesses.[66] Whilst the Board did not refer in the Primary Decision to the allegation that NMT staff deceived WorkSafe, the Board did make a finding about what occurred on the date of the WorkSafe visit at [34(v)] of the Primary Decision.
[66] Judicial Review transcript, 78 - 79.
Ultimately, the Board preferred the evidence given by the NMT witnesses to the extent there were differences, including as to the reasons why the out-of-service tag was placed on the electric forklift and who was authorised to remove that tag. Further, the Board did not accept the central aspects of Mr Goddard's evidence and his submissions, being that the tag was placed on the electric forklift as part of a façade or a charade; that the tag was not in accordance with the NMT guidelines or requirements; that Mr Goddard was authorised to remove the tag; that Mr Goddard had not been told not to use the electric forklift; that Mr Goddard had a reasonable excuse for using the electric forklift on 15 September 2021; and that if a breach of discipline had occurred, that dismissal was not appropriate in all the circumstances such that it should be adjusted.
Conclusions as to the credibility of witnesses; which witnesses should be preferred; and the weight to be accorded to any particular piece of evidence; findings of fact as to what occurred and when; and findings regarding compliance (or not) with the tagging procedures and policies are matters for the Board and not this court. At best, if any errors were made in this regard, they are examples of what the authorities describe as errors within jurisdiction, and not a jurisdictional error.[67]
[67] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J) and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 [20] ‑ [23] (Kiefel CJ, Gageler & Keane JJ).
Thirdly, I do not consider that Mr Goddard has established that the Board failed to have regard to a relevant consideration when considering the appeal. In Jacob v Save Beeliar Wetlands (Inc),[68] McLure P (Buss and Newnes JJA agreeing) summarised the legal principles applicable to an allegation of jurisdictional error based on an alleged failure to take into account a relevant consideration. It is not necessary to set those principles out in full here. It is sufficient to observe that a relevant consideration is one which the decision maker is obliged, by the legislation granting the decision maker jurisdiction, to take into account. The legislation may expressly identify the particular matters which must be considered, or the obligation to consider may arise by implication from the subject matter, scope and purpose of the legislation. Importantly, this ground of judicial review is concerned with a failure to have regard to a relevant consideration, and not a failure to have regard to evidence.[69]
[68] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313 [50] - [53].
[69] LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166 [142]; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 [57].
Mr Goddard has not identified, with reference to the relevant statutory provisions or principles, which mandatory relevant considerations he alleges the Board failed to have regard to. Rather, Mr Goddard's submission is made at the more general level of a failure by the Board to consider his evidence. I am therefore not satisfied that Mr Goddard has demonstrated that the Board failed to have regard to a relevant consideration.
Fourthly, I do not consider that the matters raised by Mr Goddard demonstrate that the decision of the Board was unreasonable in the sense of outcome unreasonableness as explained by the High Court in Minister for Immigration and Citizenship v Li.[70] The Board summarised the evidence given by Mr Goddard and the NMT witnesses. The Board also outlined its findings of fact and the relevant timeline of events, which were drawn from the documentary evidence filed in the appeal and the oral evidence given by the five NMT witnesses, which the Board concluded was unchallenged.[71] The Board also addressed the substantive points raised by Mr Goddard. The Board ultimately preferred the evidence of the NMT witnesses, and the documentary evidence, over that of Mr Goddard (to the extent there were differences) and did not accept Mr Goddard's submissions or characterisation of facts or events or his submission that the conduct did not justify dismissal. There is nothing in that reasoning process which is inherently unreasonable or illogical or which reveals that the conclusions of the Board were not open.
[70] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63], [88] ‑ [89].
[71] Which I am satisfied, properly construed, is not a reference to the fact that the witnesses were not cross examined or that Mr Goddard did not disagree with the witnesses, but rather that the witnesses did not alter their evidence in cross examination.
In all the circumstances, I am therefore not satisfied that Mr Goddard has demonstrated any jurisdictional error on the part of the Board. Rather, the core of this ground is that the Board decided the appeal against Mr Goddard because the Board preferred the evidence of the witnesses called by NMT over Mr Goddard's evidence and version of events. This is not a case where the Board did not understand or consider Mr Goddard's written and oral evidence and submissions or misunderstood its statutory task. Even if the Board made any errors in preferring the evidence of the NMT witnesses, or in concluding that Mr Goddard failed to comply with the relevant occupational health and safety guidelines, these are errors within jurisdiction. It is not the role of this court to conduct a merits review of the appeal.
Ground 1 of the application for judicial review is therefore dismissed.

Ground 2

The second ground of the application alleges bias on the part of the Board. In his oral submissions, Mr Goddard appeared to indicate that this ground was directed towards apprehended bias. As Mr Goddard represented himself before this court, I have considered whether Mr Goddard has demonstrated actual or apprehended bias on the part of the Board.

Legal principles

The legal principles regarding when a judge must disqualify themselves on the grounds of actual bias were helpfully summarised by Allanson J in Frigger v Kitay,[72] that summary being drawn from the decision of the New South Wales Court of Appeal in Reid v Commercial Club (Albury) Ltd:[73]
1A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly, and cogent evidence is required.
2If there is an allegation of prejudgment, the party making that claim must establish that the judge is 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.
3There are distinct elements underlying an assertion of prejudgment: that the judge has an opinion on a relevant aspect of the matter in issue in the particular case; will apply that opinion to the matter in issue; and will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
4The test requires an assessment of the state of mind of the judge in question, although it is not confined to an intentional state of mind. Bias may be subconscious.
[72] Frigger v Kitay [No 8] [2015] WASC 104 [3]. See also Donaldson v Nolan [No 2] [2015] WASC 158 [22] (Beech J).
[73] Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 [68] - [74] (Gleeson JA, Emmett & Tobias JA agreeing).
The legal principles regarding when a judge must disqualify themselves on the basis of apprehended bias were recently summarised by the Court of Appeal in the decision of Reynolds v Rayney.[74] The key principles which are relevant to the present application are as follows:
[74] Reynolds v Rayney [2023] WASCA 144 [28] - [36].
(a)The test for the disqualification of a judge on the ground of apprehended bias is whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(b)Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party.
(c)The test for apprehended bias is objective.
(d)The determination of whether a fair-minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice largely raises a factual issue - one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision.
(e)In Ebner v Official Trustee in Bankruptcy,[75] the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) identified that the application of the apprehension of bias test involves two steps. First, it requires an identification of what might lead the judicial officer to decide a case other than on its legal and factual merits. Second, there must be a 'logical connection' established between that matter and the 'feared deviation from the course of deciding the case on its merits'. In Isbester v Knox City Council,[76] Gageler J articulated a third step, being consideration of the reasonableness of the apprehension of the deviation being caused by the factor identified in step 1.
(f)Four main categories of case leading to disqualification by reason of reasonable apprehension have been identified (these categories are often overlapping):
(i)Interest - where the decision maker has some direct or indirect interest in the proceedings (pecuniary or otherwise).
(ii)Conduct - either in the course of, or outside of, the proceedings.
(iii)Association - where the decision maker has some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.
(iv)Extraneous information.
[75] Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337.
[76] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [59].

Merely because a court has decided matters against a party and that party feels aggrieved does not provide a basis for a claim of reasonable apprehension of bias.[77] The making of error, including appealable error, does not demonstrate prejudgment.[78] The fact that a judge has ultimately rejected an appellant's case does not and cannot (on its own) demonstrate actual or apprehended bias.[79]
[77] MTI v SUL [No 2] [2012] WASCA 87 [14]; De Alwis v The State of Western Australia [No 4] [2015] WASCA 43 [8]; Donaldson v Nolan [No 2] [2015] WASC 158 [21].
[78] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]; Donaldson v Nolan [No 2] [2015] WASC 158 [21].
[79] Mohareb v Kelso (No 2) [2018] NSWCA 246 [15]; Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260 [43] (Bell P, Macfarlan & Payne JJA agreeing); SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 [38].
The above authorities are concerned with situations in which the decision maker is a judge. However, as the plurality observed in Isbester v Knox City Council,[80] the governing principle as articulated in Ebner v Official Trustee in Bankruptcy[81] has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision makers, albeit the test must recognise the differences in the decision maker and the decision making process.
[80] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [22] - [23].
[81] Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337.
In the present case, I have considered the application of the above principles in the context of the statutory framework establishing the Board and the task it was required to perform. Significantly, I consider that the requirement for impartiality in the performance of the decision making process applies equally to the members of the Board.

Disposition

I am not satisfied that Mr Goddard has demonstrated actual bias or a reasonable apprehension of bias on the part of any of the members of the Board.
Mr Goddard had some difficulty in articulating the precise basis upon which he alleged bias on the part of the Board. In his oral submissions Mr Goddard variously described this ground as follows:[82]
GODDARD, MR: … Well, I just consider - just the way the whole system went through, that they were completely biased on the other side. There was no (indistinct) about it in my mind.
…
GODDARD, MR: It would be - they were more concerned about the [NMT] side as against my side. That's the easiest way.
…
SEAWARD J: And you say they were more concerned about it from - are you saying it from what they said in the hearing to you or are you saying that based on what they wrote in their decision?
GODDARD, MR: It was - it was a sixth sense, so to speak, in the hearing, plus what they wrote.
[82] Judicial Review transcript, 51 - 53.
When pressed to be more specific, Mr Goddard's submission as to bias raised the following matters:
(a)that the Board preferred the evidence of the witnesses called by NMT, in circumstances where those witness travelled to and from the appeal hearing together, and waited outside the hearing room together until each was called to give evidence, such that it was clear the witnesses had discussed the questions and/or their evidence;[83]
(b)that the chairperson asked Mr Goddard whether he considered that Mr Nagy had a general concern about the brakes on the electric forklift, but did not ask Mr Nagy if Mr Goddard was concerned about packs of gas bottles falling over and exploding if the gas forklift was used;[84] and
(c)that Mr Goddard was restricted in what he could question.[85]
[83] Judicial Review transcript, 54 - 55.
[84] Judicial Review transcript, 51 - 52.
[85] Judicial Review transcript, 53 - 54.
I do not consider any of these matters establish actual or apprehended bias on the part of any of the members of the Board.
In terms of the first matter, I observe that there was no evidence before the court that the witnesses called by NMT travelled together; waited together outside the hearing room; discussed their evidence; colluded or lied to the Board. These were submissions made by Mr Goddard from the bar table absent any evidence. In these circumstances, and given the seriousness of the allegations, I am not prepared to accept the facts as alleged. However, even if Mr Goddard had been able to establish the facts he alleged, these are matters which go to the conduct of the NMT witnesses, and not the conduct of the Board. Significantly, there was no allegation that the Board was aware of these alleged facts. In these circumstances, I do not consider these facts, even if established, demonstrate actual or apprehended bias on the part of any of the members of the Board.
In terms of the second matter raised by Mr Goddard, the question asked by the chairperson to Mr Goddard occurred during Mr Goddard's closing submissions. Mr Goddard had been given an opportunity to make closing submissions,[86] and then asked if the Board had any questions about what he had said.[87] In that context, the chairperson asked Mr Goddard a series of questions. Relevantly, the chairperson asked as follows:[88]
TSANG, C: There was a proposition put that Mr Nagy - - -
GODDARD, MR: Yep.
TSANG, C: - - - had a reasonable and honest concern about the brakes on the forklift. What do you say about that?
[86] Appeal transcript, 152 - 161.
[87] Appeal ts, 161.
[88] Appeal ts, 163 - 164.
Mr Goddard's submission is that the failure to ask Mr Nagy whether he considered Mr Goddard held a concern about using the gas forklift indicates that the Board was only concerned with NMT's case and was biased against Mr Goddard. I do not accept this submission.
Mr Goddard was appealing the decision of NMT and in the course of doing so directly raised the issue of the electric forklift being tagged not because of any concern about the brakes from any person at NMT (including Mr Nagy), but in order to ensure the electric forklift was serviced. The chairperson's question was asked in the context of affording Mr Goddard the opportunity to respond to the position advanced by NMT in response, which was that Mr Nagy had a genuine concern about the brakes.
It is not immediately clear how Mr Nagy's opinion about Mr Goddard's concern about using the gas forklift was relevant to the Board's assessment of whether Mr Goddard had used the electric forklift because the gas forklift was not safe to use. The Board's assessment of this aspect of Mr Goddard's case fell to be determined by reference to Mr Goddard's evidence as to the previous incident involving the gas forklift; the steps taken by Mr Goddard after that incident; and the circumstances surrounding the use of the electric forklift by Mr Goddard on 15 September 2021, including the other options that were available to Mr Goddard. Mr Nagy's opinion as to what occurred on the day Mr Goddard used the electric forklift was not relied upon by either Mr Goddard or NMT in support of their case. Further, the chairperson did ask counsel for NMT during his closing submissions a question regarding Mr Goddard's case that he could not use the gas forklift on the day in question and that is why he used the electric forklift.[89] Therefore, it is not the case that the chairperson did not question counsel for NMT about the case advanced by Mr Goddard in the appeal.
[89] Appeal ts, 151.
I therefore do not consider there is anything in these circumstances which demonstrates actual bias on the part of the chairperson of the Board or the other members, or might lead a reasonable lay person to conclude that the chairperson or the other members of the Board might not bring an impartial mind to the appeal.
In terms of Mr Goddard's submission that he was restricted in what he could question, Mr Goddard's explanation was not that the Board restricted Mr Goddard's questioning, but rather that the various NMT witnesses were colluding and their answers, whilst not being 'lies', were often that the witness could not recall a particular event or matter.[90] That is, the alleged restriction concerned the answers being given by the witnesses and the effect this had on the case Mr Goddard wished to present at the appeal. This does not demonstrate actual or apprehended bias on the part of any of the members of the Board.
[90] Judicial Review transcript, 53 - 54.
Ground 2 of the application for judicial review is therefore dismissed.

Conclusion

For the above reasons I therefore dismiss the application for judicial review. I will hear further from the parties in relation to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to Justice Seaward
13 MAY 2024