Hutchinson v RTA & Anor

[2002] NSWCA 148

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Hutchinson v RTA & Anor [2002]  NSWCA 148

FILE NUMBER(S):
40601 of 2001

HEARING DATE(S):    16/04/02

JUDGMENT DATE:      24/06/2002

PARTIES:
Rowan Hutchinson
v
Roads & Traffic Authority
&
Government and Related Employees Tribunal

JUDGMENT OF:        Meagher JA Handley JA Stein JA   

LOWER COURT JURISDICTION:       

LOWER COURT FILE NUMBER(S):     GREAT 310

LOWER COURT JUDICIAL OFFICER:   P A Lynch

COUNSEL:
A: Mr Game SC & Mr Howell
R: Mr Fernon

SOLICITORS:
A: Lawrence N Dunn
R1: Henry Davis York
R2: I V Knight Crown Solicitor

CATCHWORDS:
Application for prerogative relief - employment dismissal - alleged breach of Code of Conduct - harassment - whether the Second Tribunal used the First Tribunal's reasons as a template - summons dismissed with costs.

LEGISLATION CITED:

DECISION:
Summons dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40601 of 2001
GREAT 310 of 1998

MEAGHER JA
HANDLEY JA
STEIN JA

Monday, June 24 2002

ROWAN HUTCHINSON v ROADS & TRAFFIC AUTHORITY & 1 Or

FACTS

The appellant, Mr Hutchinson, was summarily dismissed from his employment with the RTA, the respondent, for an alleged breach of the RTA’s Code of Conduct. Mr Hutchinson appealed to the Government and Related Employees Appeal Tribunal (the First Tribunal), which dismissed his appeal. The appellant then successfully sought relief in this Court, and the First Tribunal’s decision was quashed on the ground of the apprehended bias of its Chairman. The Court directed a rehearing. The rehearing (the Second Tribunal), conducted by a differently constituted tribunal, also dismissed Mr Hutchinson’s appeal.

On appeal, the appellant contended that the decision of the Second Tribunal was invalid because it did not address the case before it, but adopted, wherever it could, the ipsissima verba, of the First Tribunal.

HELD Per Meagher JA (Handley JA and Stein JA agreeing):

1. There is no precise correspondence of language at the points which really matter. Since nobody had decided that the First Tribunal’s decision on the merits was incorrect, the temptation, in these circumstances, to adopt the ipsissima verba of the First Tribunal was, obviously, irresistible. It was not demonstrated to the Court that the Tribunal took into account some factor which they should not have, or failed to take into account some factor they should have.

ORDERS

Summons dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40601 of 2001
GREAT 310 of 1998

MEAGHER JA
HANDLEY JA
STEIN JA

Monday, June 24 2002

ROWAN HUTCHINSON v ROADS & TRAFFIC AUTHORITY & 1 Or

Judgment

1. MEAGHER JA:    This is an application for prerogative relief by Mr Hutchinson against the Government and Related Employees Appeal Tribunal, which dismissed an appeal by Mr Hutchinson against his dismissal from work by the respondent Roads and Traffic Authority (“RTA”).

2. Mr Hutchinson was employed by the RTA as an engineer from 1986 until 28 April 1998.  On 28 April 1998 he was summarily dismissed from his employment by the RTA.  The reason relied on by RTA was an alleged breach of RTA’s Code of Conduct relating to the maintenance of an harassment-free workplace.  The alleged breach arose out of an incident which took place on 19 December 1997.

3. There are, as one would expect, 2 versions of that incident.  According to Mr Doolan, who was a Project Manager with some sort of authority over Mr Hutchinson, Mr Donaldson, who was the Senior Project Manager, gave a direction that all staff should tidy up what he was pleased to call their “work stations”, which is the politically correct title of desks, before going on leave for the Christmas vacation.  Pursuant to this direction, Mr Doolan approached Mr Hutchinson and said:

   “Rowan, Wayne has asked the office to tidy up their work stations today.”

   Mr Hutchinson then said to Mr Doolan that he would not be tidying up his desk that day.  Mr Doolan replied by saying that if he, Mr Hutchinson, would not do it, he, Mr Doolan, would arrange for others to do it.  Whereupon Mr Hutchinson said:

   “If you arrange to have anyone touch my desk then I will shoot you.”

4. Mr Doolan then said:

   “Should I be contacting (sic) the police regarding this threat?”

   To this Mr Hutchinson replied:

   “They wouldn’t be able to protect you at all times and they wouldn’t get to you before I could.”

5. Mr Doolan said he was very upset by this conversation, felt threatened and contemplated going to the Police Station and requesting the issue of an Apprehended Violence Order.

6. That is Mr Doolan’s version.  Mr Hutchinson’s version is a little different.

7. Mr Hutchinson’s version of the incident, in his own words, is:

   “At about 9.30am Mr Doolan approached my desk and started a conversation.  I was standing up at the time rearranging some materials next to my desk.  I had not seen Mr Doolan previously that morning.  Words to the following effect were spoken:

   Doolan:

   “Wayne wants everyone to tidy up their work areas”

   Hutchinson:
     “I have more important things to do at the moment.”

   “At this point Mr Doolan began to move down the corridor towards his desk.  He continued to speak to me as he moved away.  Words to the following effect were spoken:

   Doolan:

   “we will arrange your desk over Christmas while you are away.”

   Hutchinson:

   “The penalty for touching my desk while I am away is to be shot at dawn or hung drawn and quartered.”

   Doolan (by this time sitting at his desk):

   “What’s the penalty?”

   Hutchinson:

   “Shot at dawn or hung drawn and quartered, take your pick.”

   Doolan:

   “Is this a matter for the police?”

   Hutchinson:
   “I don’t think they would be able to help you.”

8. RTA, after spending much time in the conference and correspondence typical of our Department of State, dismissed Mr Hutchinson for harassing Mr Doolan contrary to its Code of Conduct.  This was done, as I have said, on 23 April 1998.  Mr Hutchinson appealed to the Government and Related Employees Appeal Tribunal, which heard his appeal on 29 and 30 September 1998, and gave its decision on 10 November 1998, dismissing the appeal.  The Chairman of the Tribunal was a Mr J L Lynn, its other members being Messrs. P Collins and G Forster.  Mr Hutchinson then successfully sought relief in this Court which quashed the Tribunal’s decision on the ground of the apprehended bias of its Chairman, and directed a rehearing.  This rehearing was conducted by a differently constituted Tribunal on 4-7 June 2001 and it gave its decision on 13 June 2001.  Its chairman was a Mr P A Lynch, and its other members were Messrs. McClifty and Lippiatt.  This Tribunal also dismissed Mr Hutchinson’s appeal, and it is against their decision that Mr Hutchinson now seeks relief.

9. Mr Game QC, learned senior counsel for Mr Hutchinson, submitted that the second decision was invalid because it did not address the case before it but adopted, whenever it could, the reasons of the first Tribunal.  That was his principal complaint; there were other issues before us, but they are not really relevant.  If Mr Game is correct on his main contention, he must win; if not, not.

10. In order to evaluate the submission, one must remind oneself of what the case, which Mr Hutchinson sought to advance was.  It was, essentially, the same as the case he sought to advance before the First Tribunal.  And that case had, as its centrepiece, whether one believed Mr Doolan’s account of the incident, which took place on 19 December 1997, or whether Mr Hutchinson’s account was more credible.  The former account shows Mr Hutchinson aggressive, and clearly harassing; the latter shows him jocular, and even playful.  There is no doubt that the Second Tribunal accepted Mr Doolan’s account, as did the First Tribunal.  (If it were relevant to do so, one might surmise than even an appellate Court, although deprived of the advantage of seeing the witnesses, would be of the same mind).  Once that account is believed, one can understand Mr Doolan being afraid – one does not quite know of what, but as having a strong but innominate fear; and that must make Mr Hutchinson guilty of harassment.

11. That being so, it is not really surprising that the Second Tribunal’s reasons reflect the first Tribunal’s reasons; even in the precise words used.  For example, para 23 of the First Tribunal’s reasons is:

    “The Disciplinary Process

    Following receipt of the report Mr Style arranged for an officer to visit the Goulburn Office and take statements from a number of the staff there.  Statements were obtained from Mr Donaldson, Mr Doolan, Ms Maroney and Ms Boyle (now Ms K Maroney).  Those statements were provided to Mr Style and after consideration of their contents a decision was taken to suspend the appellant from duty”

    Whilst para 9 of the Second Tribunal’s reasons is:

    “The Disciplinary Process

    Following receipt of the report Mr Style arranged for an officer to visit the Goulburn Office and take statements from a number of the staff there.  Statements were obtained from Mr Donaldson, Mr Doolan, Ms G Maroney and Ms K Maroney.  Those statements were provided to Mr Style and after consideration of their contents a decision was taken to suspend the appellant from duty.

    The only conclusion can be that the Second Tribunal used the First Tribunal’s reasons as a template for the production of its reasons.  On the other hand, it is by no means the case that the second set of reasons is an exact copy of the first.  For example, para 1 of the first reasons is:

    “At the time of his provisional dismissal the appellant was employed by the respondent (RTA) as an Engineer Grade 2 at the Major Projects (Country) Office at Goulburn.  He was dismissed following an incident at that office on 19 December 1997.  The RTA found that the appellant had spoken to another officer, Mr Doolan, Project Manager, in a threatening manner.  It was considered that this constituted a breach of the RTA’s policy for maintaining an harassment-free workplace.  The dismissal took effect on 30 April 1998.  On 6 May 1998 the appellant lodged this appeal seeking an order that the decision of dismissal be set aside.”

    Para 1 of the Second reasons is:

    “Mr Rowan Hutchinson, the appellant in these proceedings, was employed by the Roads and Traffic Authority (RTA) as a Project Support Engineer, Grade 2, at the country Major Project Office in Goulburn.  He appeals to the Tribunal pursuant to s.24 of the Government and Related Employees’ Tribunal Act 1980 in respect of a decision by the Chief Executive Officer of the Roads and Traffic Authority to dismiss him from employment.”

    Most relevantly, there is no precise correspondence of language at the points which really matter.  For example, dealing with the question of whose account of the 19 December 1997 conversation should be believed, the First Tribunal said:

    “The Tribunal assesses Mr Doolan and Ms Moroney as truthful and reliable witnesses of relevant events.  It prefers and accepts their account of the conversation which took place between Mr Doolan and the appellant on 19 December 1997 and rejects the version given by the appellant where it conflicts with that given by them”

    Whilst the Second Tribunal said:

    “The Tribunal assesses Mr Doolan and Mrs G Moroney as truthful and reliable witnesses of relevant events.  In particular having heard and observed Mr Doolan we prefer and accept his account of the events which took place between Mr Doolan and the appellant on 19 December 1997.  We reject the version given by the appellant where it conflicts with that given by Mr Doolan.”

12. The position resolves itself to this: the Second Tribunal had before it substantially the same documents as those tendered before the First Tribunal; it had heard the same oral evidence as the First Tribunal had, with the exception of two extra character witnesses who were called on behalf of Mr Hutchinson (and their evidence was hardly decisive of anything, as they had never observed Mr Hutchinson at his place of work); it had come to the same conclusion as the First Tribunal on the only issue which really mattered, viz. the events of 19 December 1997; and it had before it the reasons for judgment of the First Tribunal.  That judgment had never been adversely criticised by the Court of Appeal.  Nobody had decided that the first Tribunal’s decision on the merits was incorrect.  The temptation, in these circumstances, to adopt the ipsissima verba of the First Tribunal was, obviously, irresistible.  It was not demonstrated to us, despite the great skill with which Mr Game presented his submissions, either that the Second Tribunal took into account some factor which they should not have, or failed to take into account some factor they should have.  Much less could it be said that the Second Tribunal did not address the issues before it.

13. I would dismiss the summons with costs. 

14. HANDLEY JA:     I agree with Meagher JA.

15. STEIN JA:            I agree with Meagher JA.  While it is clear that the Second Tribunal did a ‘scissors and paste job’ on the decision of the First Tribunal, it is also plain that the Second Tribunal gave separate consideration to the case before it and made up its own mind.  There were material differences in its decision on important aspects of the evidence.

16. The appellant sought to make much of the Second Tribunal’s failure to advert to the evidence of a new witness, Dr McKenzie.  But his evidence was really little more than character evidence.  It could not seriously go to the choice the Tribunal made between the evidence of Mr Doolan and the appellant.

******

LAST UPDATED:               24/06/2002