Morton v Sydney Ferries Corporation

[2009] NSWSC 341

CITATION:

Morton v Sydney Ferries Corporation [2009] NSWSC 341

HEARING DATE(S):

4 March 2009, 5 March 2009

 
JUDGMENT DATE : 

4 August 2009

JURISDICTION:

Common Law

JUDGMENT OF:

Rothman J

DECISION:

(i) The proceedings before the Transport Appeal Board in the matter of Stephen James Morton and Sydney Ferries Corporation, be removed into this Court and the decision of the Transport Appeal Board, of 25 June 2008, dismissing the appeal, be quashed;

(ii) The matter of the aforesaid appeal by Stephen James Morton against the decision of the Chief Executive of the Sydney Ferries Corporation be remitted to a differently constituted Transport Appeal Board for determination according to law;

(iii) The parties be granted liberty to provide written submissions, within 14 days, on any order for costs, in the absence of which the Court will issue a further order that Sydney Ferries Corporation pay Mr Morton’s costs of these proceedings, as agreed or assessed.

CATCHWORDS:	ADMINISTRATIVE LAW – certiorari – error of law determinative of result – failure to apply regulatory scheme – denial of natural justice – Transport Appeal Boards - EMPLOYMENT LAW – grounds relied upon by Tribunal did not amount to misconduct and were not a valid basis for dismissal – termination for breach of contract could be effected for conduct that is repudiatory or in breach of an essential term or a sufficiently serious breach of an intermediate term.
LEGISLATION CITED:	State Owned Corporations Act 1989 State Owned Corporations Regulation 2003 Supreme Court Act 1970 The Constitution Transport Administration Act 1988 Transport Administration Amendment (Sydney Ferries) Act 2003 Transport Administration (Staff) Regulation 2000 Transport Administration (Staff) Regulation 2005 Transport Appeal Boards Act 1980
CATEGORY:	Principal judgment
CASES CITED:	Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211 ASIC v Farley & Anor [2001] NSWSC 326; (2001) 51 NSWLR 494 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Bettini v Gye [1876] 1 QBD 183 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811; (2005) 149 I.R. 276 Franks v Roads & Traffic Authority [1996] NSWCA 13 Hanna v DIMIA [2004] NSWCA 275 Herrington v British Railways Board [1972] AC 877 Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha [1962] 2 QB 26 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 McDonald v State of South Australia [2008] SASC 134 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Morton v The Transport Appeal Board and Anor (No 1) [2007] NSWSC 1454; (2007) 168 IR 403 NZ Classic Car Co Ltd v Motor Vehicle Dealers Licensing Board (1985) NZAR 170 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Poussard v Spiers (1876) 1 QBD 410 Public Service Association of South Australia v Federated Clerks’ Union of Australia (SA) [1991] HCA 33; (1991) 173 CLR 132 R v Electricity Commissioners [1924] 1 K.B. 171 R v Stones [1955] 56 SR (NSW) 25 Regina v Chief Constable of Sussex, Ex parte International Trader’s Ferry Ltd [1998] UKHL 40; (1998) 3 WLR 1260 Re a Solicitor [1960] VR 617 Re Racal Communications Ltd (1981) AC 374 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 Southern Portland Cement Ltd v Cooper [1973] UKPCHCA 1; (1973) 129 CLR 295 Spencer v Dowling [1997] 2 YR 127 Western Excavating v Sharp [1978] QB 761
PARTIES:	Stephen James Morton (Plaintiff) Sydney Ferries Corporation (First Defendant) Transport Appeal Boards (Second Defendant)
FILE NUMBER(S):	SC 30098/2008
COUNSEL:	D Cowan SC / D Knoll (Plaintiff) A Moses SC / Y Shariff (First Defendant) Submitting Appearance (Second Defendant)
SOLICITORS:	Diamond Conway Lawyers (Plaintiff) Sparke Helmore Solicitors (First Defendant) Crown Solicitor's Office (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

4 AUGUST 2009

30098/2008 Morton v Sydney Ferries Corporation & Anor

JUDGMENT

1 HIS HONOUR: The plaintiff, Mr Morton, challenges a subsequent or second decision (“the Decision”) of a Transport Appeal Board confirming Sydney Ferries Corporation’s termination of his employment with them. Sydney Ferries Corporation (“Sydney Ferries”), the first defendant, employed the plaintiff, Mr Morton as a Ferry Master. Mr Morton had been employed by Sydney Ferries for approximately 13 years, had received commendation, had a hitherto impeccable record and was one of a handful of masters, who was qualified, through advanced training, to be a training facilitator.

2 On 22 April 2004 there was an incident aboard a ferry in which, it is alleged, Mr Morton assaulted an Engineer, Tyson Best. Sydney Ferries conducted an investigation and on 16 June 2004 (over 7 weeks after the alleged incident) summarily dismissed Mr Morton because, it alleged, he had “harassed and physically assaulted Engineer Tyson Best”.

3 Mr Morton appealed to the Transport Appeal Board (“the Tribunal”), who upheld the dismissal (“the First Decision”). He then challenged the Tribunal’s decision in the Supreme Court and the Court issued orders quashing the First Decision and remitting the matter to a differently constituted Tribunal for determination according to law: Morton v The Transport Appeal Board and Anor (No 1) [2007] NSWSC 1454; (2007) 168 IR 403. The Supreme Court, Berman AJ, in the earlier proceedings, came to the conclusion that the Tribunal decision as to the alleged assault by Mr Morton “was one which is so devoid of plausible justification that no reasonable tribunal could have reached it”. There was no appeal against the earlier judgment. The Tribunal redetermined the matter in a manner adverse to the interests of Mr Morton.

The Subsequent Tribunal Proceedings and Facts

4 In the first proceedings before the Tribunal, the Engineer, Mr Best, gave evidence and was cross-examined. In the subsequent proceedings Mr Best did not give evidence and Sydney Ferries sought to tender the statements made by Mr Best, thereby denying to Mr Morton the ability to cross-examine him. Over the objection of Mr Morton, the Tribunal admitted the statements of Mr Best as to the occurrences on 22 April 2004. Otherwise, the evidence in the subsequent Tribunal proceedings did not substantially differ from the evidence before the Tribunal in the first proceedings and before the Supreme Court in the earlier proceedings.

5 There were two versions of the “altercation” on the ferry, being the version given, in earlier proceedings, by Mr Best and the version given by Mr Morton. The Tribunal relied upon a schedule, which purported to contrast the evidence, in various forms, of Mr Morton. The schedule extracted evidence in relation to the events from a statement of 22 April 2004, criminal proceedings of 25 February 2005, a statement of 17 August 2005, evidence at the Tribunal hearing of 22 September 2005 and evidence in the Supreme Court earlier proceedings of 4 December 2007. Notwithstanding the submissions of Mr Moses SC, who appeared for Sydney Ferries, there is little or no substantial difference between the versions given by Mr Morton. Such differences as do exist are in the detail and seem to reflect the questions that were asked rather than any difference in the recollection of events. The Tribunal, in its decision of 25 June 2008, purported to summarise the evidence of each of the witnesses, largely without comment, over some 117 paragraphs and then said:

“[118] Having had an opportunity to review all of the evidence before it the Board finds the following:


i. that given the large number of discrepancies in Mr Morton’s evidence, past and present (MFI Document 13) the Board finds that Mr Morton is not a witness of truth;


ii. that following the incident which occurred in wheelhouse number two, the point at which an enraged engineer Best returned to the machinery control room, is the point at which Mr Morton should have ceased to be involved;


iii. that by following engineer Best to the engineers mess room in order to demand an apology, Mr Morton acted recklessly;


iv. that during the altercation which took place in the engineers mess Mr Morton by his own admissions pushed engineer Best backwards with considerable force towards the microwave oven, resulting in engineer Best sustaining a number of injuries to his head, neck and arm. The Board finds that for Mr Morton to put himself in such a position as to allow this incident to occur, is inappropriate behaviour;


v. that Mr Morton left Taronga Zoo Wharf as Master of the Lady Northcott unaware of whether or not engineer Best was in a fit state to carry out his duties, in spite of the fact he claims that after pushing engineer Best and seeing him flying backwards, he had no idea what happened to him, again in this regard the Board finds that Mr Morton acted recklessly.”

6 The foregoing conclusions refer to MFI 13. This is the schedule of purported discrepancies in the evidence to which reference was earlier made. It was Annexure A to the Affidavit of Ms Carla Fitzgerald of 27 October 2008 and is Exhibit 1 in these proceedings. Having reached the five conclusions set out above, the Tribunal issued orders in the following terms:

“[119] The Board makes the following orders:


i. it would not be in the public interest to reinstate Mr Morton to his position at the Sydney Ferries Corporation, however given his many years of unblemished service at the Corporation, Mr Morton is to be given seven days from the 27 ^th June 2008 in which to tender his resignation from the Corporation dated from the date of his dismissal (16 June 2004), which is to be accepted by the Sydney Ferries Corporation;


ii. should Mr Morton choose not to resign during this period, the decision of the Chief Executive of the Sydney Ferries Corporation to dismiss him from his employment will stand.”

7 As earlier stated, Berman AJ came to a conclusion that the First Decision of the Tribunal was such that no reasonable tribunal could have reached it. The full context of that finding is best summarised by reciting paragraphs [148] and [149] of the earlier judgment:

“[148] Of course the TAB had the undeniable advantage of seeing the witnesses and being able to assess their demeanour, a matter which the TAB specifically referred to in relation to Mr Best, but there is a growing realisation that human beings, even judges, are very poor at telling whether a person is lying on the basis of their demeanour. This is especially the case where the witness genuinely believes their version to be true, even if objectively it is not (a possibility raised by Dr Snowdon).


[149] When I take into account also the following matters:


The evidence of the Plaintiff's good character and good work record;
Evidence regarding the psychiatric condition of Mr Best insofar as it effected his thinking and reliability as a witness;
My finding that the Plaintiff's evidence as to what he did after pushing Mr Best was not implausible;
The neutrality of the medical evidence;
The damaged microwave;
The standard of proof required, see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336;
And even paying due allowance to the advantages the tribunal had of seeing the witnesses give their evidence;


I am satisfied that the TAB decision was one which is so devoid of plausible justification that no reasonable tribunal could have reached it.”

8 The conclusion of the Supreme Court, per Berman AJ, was made having regard to each of the statements of 22 April 2004, the evidence in the criminal proceedings of 25 February 2005, the statement of 17 August 2005, the evidence before the Tribunal hearing of 22 September 2005 and the evidence before the Court in those proceedings, namely the evidence of Mr Morton of 4 December 2007. In other words, all of the material extracted, in what the Tribunal in its second decision referred to as MFI 13, was material before the Supreme Court in the earlier proceedings.

9 It is only the alleged “inconsistencies” in MFI 13 that has led the Tribunal to determine that “Mr Morton is not a witness of truth”. The Tribunal, Sydney Ferries and Mr Morton were bound by the determination of issues of the Supreme Court in the earlier proceedings. The evidence was the same, or not substantially different, and the mere fact that Mr Moses SC put submissions more cogently or persuasively than his predecessors, does not allow the Tribunal to come to a conclusion different from the Supreme Court on an issue that was before the Supreme Court.

10 It is instructive to refer to the Tribunal’s summary of this aspect of Mr Morton’s evidence. The Tribunal said:

“[59] Mr Moses tendered a document for identification (MFI 13), containing a table which showed various statements given at:


the time of the incident, 22 April 2004;
the criminal proceedings, 25 February 2005;
prior to Transport Appeal Boards hearings, 17 August 2005;
the Transport Appeal Boards hearings, 22 September 2005;
the Supreme Court, for [sic] December 2007.


[60] Mr Moses then took the Board through various sections of the next set of documents that were handed up (Exhibit 14) which contained copies of Mr Morton’s evidence from the above listed prior proceedings.


[61] In spite of the fact that there were several major inconsistencies in Mr Morton’s statements, Mr Morton insisted that all of the statements he had given were the truth and that they were all accurate.


[62] Whilst being redirected [sic] Mr Morton reconfirmed his version of events.


[63] In order to better assist the Board with its understanding of events regarding the Lady Northcott leaving Taronga Zoo Wharf, Mr Morton was asked by the Chairman if he could be more specific about how control of the ferry was taken from him and locked into the dead slow ahead position.


[64] Mr Morton explained that he would have expected the ferry to have stopped if it had been locked out by engineer Best in the MCR. However this did not occur and instead the ferry continued at dead slow ahead.


[65] Mr Morton told the Board that everything should have just stopped, that is what he would have expected to happen.


[66] He explained that when one of the engineering superintendents, Mr Lieberman, tried to duplicate what had happened, he could not. He went on to say that no one could understand why the ferry stayed in gear because when they tried to do the same thing, it would just shut off.”

11 The above summary makes clear that the Tribunal took the view that it was the evidence adduced from Mr Morton in the earlier informal statement of 22 April 2004 and the evidence in the other proceedings that gave rise to the inconsistencies, and not evidence that was adduced before the Tribunal in the subsequent proceedings. It is appropriate to repeat the summary of some of the evidence of Mr Bell, a deck hand on the Ferry. At [23], the Tribunal summarised his evidence in the following manner:

“[23] He [Mr Bell] told the Board that he had removed the forward lines on the Lady Northcott. At this point as the Lady Northcott was moving away from the wharf, the engineer Tyson Best came up behind him, climbed over the gate on to the Sponson and then jumped on to the wharf. He said that all this took place within a couple of seconds.


[24] He told the Board at [sic] that at this point he looked up at the wheelhouse were [sic] he could see the Master (the appellant), making gestures as if he had no power.”

12 The Tribunal also dealt with the events after the “altercation” under the heading “Background”, which events are also described, in different terms in the summary of Mr Morton’s evidence (see [6]-[8] and compare with [63]-[66] of the Decision). It seems that the Tribunal does not formally make any findings of fact (other than those that may be gleaned from [118] of the Decision), unless those matters referred to as Background are findings.

13 There are some facts that need to be recited and/or recorded.

(a) There were two separate conversations in the wheelhouse between Mr Morton and Mr Best, the first of which related to permission to fix the radio, and, the second of which occurred after Mr Best left the wheelhouse and returned with the new radio.

(b) After the incident in the engineer’s mess, Mr Morton went to the wheelhouse and went to the toilet.

(c) Mr Best communicates by radio with the control room, reports being attacked physically and verbally by Mr Morton and “bashed … several times in the head.” He makes two requests:

“I wanna [sic] be examined by a Doctor.”


and

“I wish to be discharged, thank you.”


(d) After the communication between Mr Best and the control room, the control room communicates with Mr Morton in the following relevant terms:

“Steve [Mr Morton] when you get to the Quay the night spare Master and Engineer will join that vessel. Yourself and Tyson [Mr Best] come ashore and possibly come around [to] the office.”


(e) As is obvious from the evidence of Mr Bell (see [11] above), which was relevantly uncontroverted, Mr Morton then commenced leaving the wharf, the lines were removed and the ferry moved away from the wharf. As it was moving away from the wharf, Mr Best climbed over the gate onto the sponson (the platform on the ferry for handling gear) and “jumped on to the wharf”. This evidence was corroborated by another witness, Mr Cowper.

(f) When Mr Morton sought to increase the speed of the ferry from dead slow ahead to full ahead, he was unable to do so, was also unable to regain full control of the vessel, and organised for a deckhand to stand by the controls, while he went to the engine room to swap control from the machinery control room to the bridge control panel, returned to the bridge and then returned the vessel to Taronga Zoo Wharf.

14 The Tribunal does not record any finding of fact about either the practice or requirement of Sydney Ferries, or directed by them, as to the reprimanding or counselling of subordinate staff (or its timing) or the physical checking of staff prior to undertaking a trip. Nor does the Tribunal recite the evidence from which it drew the conclusion that Mr Best was “enraged”, when he left the wheelhouse and returned to the machine control room (see [118(ii)] of the Decision, recited at [5] above).

15 Some of the policies of Sydney Ferries were in evidence, but none of those deal directly with the issues in [14] above. Some witnesses gave evidence of their practice (or hypothetical practice) in reprimanding an employee. Most, if not all, of the witnesses, who were called on this issue, gave evidence with the benefit of hindsight and with the knowledge of the reaction by Mr Best. Mr Millwood testified that he may have reprimanded Mr Best in the circumstances put to him, and after the incident occurred communicated with the control room. Mr Wright said he would not have reprimanded Mr Best, but Mr Wright knew Mr Best, his history and his likely reaction and, it seems, it was his knowledge of Mr Best that informed his expressed approach. Mr Pfenningworth would have “confronted” Mr Best for his conduct.

16 There is no evidence suggestive of a practice of or direction to a master of any vessel to check the physical capacity of staff, or even crucial staff, each time a trip is undertaken. Moreover, there is no finding by the Tribunal that Mr Best was physically incapable of performing his tasks or duties. The evidence, and inferences that arise from the evidence, would suggest that Mr Best was capable of performing his duties.

17 At the time of incident in the engineer’s mess, the ferry was idling. Thereafter (i.e. after the alleged injuries were said to have been incurred by Mr Best), Mr Morton engaged the engine and moved out from the wharf. If the controls, at that time, were in the hands of the Engineer, then Mr Best performed the tasks necessary to effect that change, and was capable of performing his duty. If he were not so capable, that would have been immediately obvious to Mr Morton, because he would have been unable to commence the ferry journey.

18 If, on the other hand, Mr Best had not locked out the wheelhouse, until after Mr Morton had engaged the engine and moved the vessel into the dead slow ahead, then Mr Best must, at that time, still have been capable of performing his duties, because, at that time, he performed duties, namely, the locking out of the wheelhouse.

19 Moreover, as the evidence of attempts at duplicating the event disclosed, Mr Best would have, most likely, “locked out” the wheelhouse after the vessel’s engine had been engaged and it had moved into dead slow ahead. Further, it was only at that time (i.e. after the vessel had commenced moving) that Mr Best left the machinery control room, walked toward the wharf, climbed over the gate and jumped from the moving vessel onto the wharf.

20 For reasons best known to counsel for Mr Morton who appeared before the Tribunal, attention seems to have been concentrated on whether he could walk normally on the wharf, instead of the far more physically demanding tasks referred to above (namely, leaving the vessel by climbing over the gate and jumping from the moving vessel) or on the far more relevant tasks associated with engaging and regulating the speed of the vessel (i.e. duties required in the position he actually filled). Nevertheless, these matters were addressed by counsel before the Tribunal and before the Court in these proceedings. The concentration on Mr Best’s capacity to walk on the wharf was probably a reaction to the fact that there was film of that activity.

21 Lastly, Sydney Ferries was aware of these events on the date of the incident (and shortly after their occurrence) and was aware of its disciplinary procedures and its rights to terminate the contract of employment and/or to suspend Mr Morton temporarily, pending an investigation. However, it chose to allow Mr Morton to continue to work until it dismissed him. No issue is raised in these proceedings, or below, as to whether the action of Sydney Ferries in continuing to have Mr Morton perform duties, without utilising the suspension rights, was an election inconsistent with its right to discharge, and I make no comment on it.

The Current Proceedings

22 As earlier stated, Mr Morton challenges the Decision in this Court. The originating summons seeks:

(i) a declaration of error of law by the Tribunal;

(ii) a declaration, alternatively, that the Tribunal denied Mr Morton natural justice;

(iii) a declaration, further and in the alternative, that the Tribunal has failed to exercise its jurisdiction;

(iv) an order in the nature of certiorari;

(v) an order in the nature of mandamus; and

(vi) costs and any other ancillary relief.

23 The error of law in paragraph 22(i) above is not specified. Nor is the act or omission that is said to give rise to the denial of natural justice. Further, the summons gives no indication of the act required of the Tribunal to exercise its jurisdiction, which act it omitted to perform. Lastly, in this regard, the summons does not specify any grounds for any of these orders or declarations. Neither the applicable Rules of Court, nor the Uniform Civil Procedure Rules, requires grounds, but it is advisable for them to be included and necessary when there is no specificity in the alleged errors.

24 It is probably for those reasons that a direction was issued for the filing of written submissions. Unfortunately, the plaintiff’s written submissions, while putting the argument, still do not, in a clear and precise way, specify the errors of the Tribunal or the grounds upon which the plaintiff relies.

25 There is one further matter that should be clarified. The summons (front page) refers to Sydney Ferries as the first defendant and the Tribunal as the second defendant. The relief sought is consistent with that approach and that is the approach adopted by the parties in their submissions and by the Court in these reasons for judgment. However, other references in the summons (see page 3 thereof) have the defendants in reverse order and some of the appearances that were filed reflect that confusion. It suffices to note that the Tribunal, most properly, has submitted to any order of the Court, save as to costs.

26 The only clear and precise specification of the grounds raised is provided by senior counsel appearing for Sydney Ferries, in the following terms:

“(a) the Board erred by failing to make findings on essential matters: see paragraphs 22-23 [‘Ground 1’] ;

(b) the Board erred in making the findings recorded in paragraph 118(i) of the Decision: see paragraphs 24-26 [‘Ground 2’] ;

(c) the Board erred in making the findings recorded in paragraph 118(ii) of the Decision: see paragraphs 27-28 [‘Ground 3’] ;

(d) the Board erred in making the findings recorded in paragraphs 118(iii) and (v) of the Decision: see paragraphs 29-33 [‘Ground 4’] ;

(e) the Board erred in making the findings recorded in paragraphs 1 18 (iv) of the Decision: see paragraph 34 [‘Ground 5’] ;

(f) the Board erred in:

(i) failing to determine whether the Plaintiff’s conduct as charged justified summary dismissal: see paragraphs 35-40 [‘Ground 6(a)’] ;


(ii) failing to determine whether the Plaintiff acted in self-defence: see paragraphs 41-43 [‘Ground 6(b)’] ;


(iii) failing to take into account facts which the Board had to weigh in deciding whether or not summary dismissal could be justified: see paragraphs 44-53 [‘Ground 6(c)’] ;


(g) the Board erred by constructively failing to exercise jurisdiction: see paragraphs 54-57 [‘Ground 7’] ;

(h) the Board erred by:

(i) departing from the ‘ Wednesbury unreasonableness’ findings made by Berman AJ in Morton v Transport Appeal Board (No 1) (2007) 168 IR 403 in circumstances where the relevant facts remain unchanged: see paragraphs 58-67 [‘Ground 8(a)’] ;


(ii) finding that the Plaintiff acted ‘recklessly’ as there was no evidence to support such a finding and such a finding was ‘ Wednesbury unreasonable ’: see paragraphs 68-87 [‘Ground 8(b)’] ;


(i) the Board erred by admitting the evidence of Mr Best: see paragraphs 88-101 [‘Ground 9’] ;

(j) the Board erred by failing to exercise jurisdiction when it purported to decide facts without addressing the material before it, which contradicted its conclusions: see paragraphs 102-110 [‘Ground 10’] ; and

(k) the Board erred by failing to accord the Plaintiff natural justice by upholding the summary dismissal on a basis other than that the Plaintiff harassed and physically assaulted Mr Best: see paragraphs 112-121 [‘Ground 11’] .”

27 Sydney Ferries dealt with these “grounds” in five seemingly convenient groupings, being:

“(a) Grounds 1, 6(a), 6(b), 6(c) and 7: Alleged failures to make ‘ essential’ findings and constructive failure to exercise jurisdiction;

(b) Grounds 2 and 10: Alleged errors in relation to findings on credit;

(c) Grounds 3, 4, 5 and 11: Alleged failures relating to findings of inappropriate and reckless behaviour, and denial of natural justice;

(d) Ground 8: ‘ Wednesbury unreasonableness ’ grounds; and

(e) Ground 9: Alleged error in admitting evidence.”

The Court will also deal with the case presented for Mr Morton, and by Sydney Ferries, in that way. Before doing so, it is necessary to deal with two fundamental aspects: the grounds for the availability of certiorari; and the legal framework for the functions of the Tribunal.

The Availability of Certiorari

28 In its modern form, certiorari is a writ issued out of a superior court of record (either in its inherent jurisdiction, if it be a court that possesses one, or in its statutorily conferred jurisdiction) to remove to the court the official record of an inferior court or tribunal for the purpose of quashing the decision or judgment. The term “certiorari” is used, in this judgment, to mean an order in the nature of certiorari: see s 96(1) of the Supreme Court Act 1970.

29 Certiorari issues against any body of persons “having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially.” (R v Electricity Commissioners [1924] 1 K.B. 171 at 205.) Clearly the Tribunal is required to act judicially, and is therefore amenable to certiorari.

30 While at common law, the availability of certiorari was confined to error of law on the face of the record in circumstances where “the face of the record” was somewhat confined (see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163), the provisions of s 69 of the Supreme Court Act enlarge that jurisdiction substantially. Subsections 69(3) and 69(4) of the Supreme Court Act are in the following terms:

“69(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.


69(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.”

31 Arguably, at least, the foregoing provisions permit the issue of orders in the nature of certiorari for any and all errors of law in the reasons for judgment of any court or tribunal below. But that seems too broad a reading of the provisions and ignores the history of the issue of the writ. The better view, it would seem, is that orders will issue only in relation to errors of law that form the basis of the ultimate conclusion and are included in the reasons for judgment. While such a view may, in some limited circumstances, render the certiorari available for errors beyond an error of jurisdiction, those circumstances will be limited to errors that undermine the “legal authority” of the decision under review: see R v Electricity Commissioners, supra, at 205; Craig, supra, at 175-176; but compare ASIC v Farley & Anor [2001] NSWSC 326; (2001) 51 NSWLR 494 at 498-499 and Hanna v DIMIA [2004] NSWCA 275 at [28]. On that basis, an error of law in the admission of evidence, or on a matter that does not affect the ratio of the judgment or decision, will not affect its “legal authority”, unless it is an error that affects the jurisdiction of the court or tribunal. Certiorari (or other prerogative relief), or orders in the nature thereof, will always be available for error of jurisdiction. In that way, while giving full force to the extended effect given by s 69(3) and s 69(4) of the Supreme Court Act, the “Atkin dictum” (see R v Electricity Commissioners, supra, at 205) would still apply.

32 Care must be taken in applying to proceedings under s 69 of the Supreme Court Act, without qualification, dicta on the availability of certiorari against officers of the Commonwealth, because, in relation to Commonwealth officers, it is, at least currently, said to be available only as an adjunct to proceedings for mandamus and/or prohibition, which are writs available only for jurisdictional error: see s 75(v) of The Constitution; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 141; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 521 [121] per Callinan J. (I leave aside the ground of denial of natural justice, which, at least on one view, is jurisdictional, and the ground of fraud.)

Functions of the Tribunal

33 By the promulgation of the Transport Administration Amendment (Sydney Ferries) Act 2003, the legislature amended the Transport Administration Act 1988 (“the TA Act”). By s 35A of the TA Act, Sydney Ferries is constituted as a corporation and a NSW Government agency. The provisions of s 35B of the TA Act establish Sydney Ferries with the principal object of delivering “safe and reliable Sydney ferry services in an efficient, effective and financially responsible manner”. Sydney Ferries is to have other objects, namely, to be a successful business, to exhibit social responsibility, and other matters.

34 Section 35C of the TA Act requires Sydney Ferries to continue to operate the Sydney ferry services provided by the State Transit Authority (“STA”) prior to the commencement of the provisions. The Transport Administration Amendment (Sydney Ferries) Act also inserted amendments to Schedule 7 of the TA Act, dealing with transitional and other provisions, which had effect by operation of s 120 of the TA Act. Schedule 7 of the TA Act provided for the transfer of staff from the STA to Sydney Ferries (Clause 138) and applied Clauses 12, 13 and 14 of Schedule 6, which preserved, on transfer, the employees’ remuneration, conditions of employment and leave. Further, Clause 135 of Schedule 7 provided that any reference to the STA, in a statute or instrument, to the extent that it related to the provision of Sydney ferry services, included Sydney Ferries.

35 The parties could not agree as to which provisions applied. Sydney Ferries submitted that Clause 29 of the Transport Administration (Staff) Regulation 2000 applied, without explaining the reasons for its application. Mr Morton submits that Clause 9 of the State Owned Corporations Regulation 2003 applied the provisions of the Transport Administration (Staff) Regulation. Sydney Ferries submitted that the State Owned Corporations Regulation did not apply at the relevant date.

36 In some respects, resolving the foregoing disagreement is a futile exercise. All parties accept that either the Transport Administration (Staff) Regulation 2000 (“the 2000 Regulation”) or the Transport Administration (Staff) Regulation 2005 (“the 2005 Regulation”) applies. They are relevantly identical. Further, there is no substantive difference between those provisions and the corresponding provisions of the State Owned Corporations Regulation 2003 (“the SOC Regulation”), which plainly now applies. I will utilise the 2000 Regulation. The SOC Regulation did not apply until after the commencement of the amendments to the State Owned Corporations Act 1989 (“the SOC Act”) that applied the SOC Act to Sydney Ferries (i.e. until 1 July 2004). As a consequence, while the SOC Regulation commenced on 1 January 2004, it did not apply to Sydney Ferries until 1 July 2004. The incident on the ferry occurred, as earlier stated, on 22 April 2004. The termination by Sydney Ferries was communicated by notice dated 16 June 2004 (Exhibit B12 and B13 in these proceedings) and Mr Morton lodged the appeal to the Tribunal on 18 June 2004 (Exhibit B14).

37 As a consequence, it seems that the SOC Act did not, at any relevant time, apply to Sydney Ferries. Nor did the SOC Regulation, but the 2000 Regulation applied as if the references to STA were references to Sydney Ferries

38 The relevant clauses of the 2000 Regulation were in the following terms:

“ [29] Punishments in disciplinary proceedings
(1) The STA may impose any one or more of the following punishments in disciplinary proceedings against an STA officer:
(a) a caution or reprimand,
(b) a fine of an amount not exceeding $100,
(c) reduction in position, rank or grade and pay,
(d) suspension from duty without pay,
(e) dismissal.
(2) Instead of dismissing an STA officer, the STA may allow the officer to resign.
(3) The STA may deduct a fine imposed on an STA officer from the officer’s salary.
(4) This Division must not be construed as requiring the taking of disciplinary proceedings in order that the STA may dispense with the services of an STA officer or other employee of the STA.

[30] Suspension of STA officer pending disciplinary proceedings
(1) An STA officer may be temporarily suspended from duty:
(a) by the STA, or
(b) by any other STA officer who is senior in position, rank or grade,
pending the institution or determination of disciplinary proceedings against the officer.
(2) The STA may at any time terminate any such suspension.
(3) The STA may withhold the payment of salary to an STA officer suspended from duty.


…

[32] Procedure in disciplinary proceedings
(1) An STA officer who is subject to disciplinary proceedings is entitled to be notified in writing by the STA of the charge and of the particulars of the charge.
(2) A formal hearing is not required to be held before the person or body investigating the matter the subject of any such charge, but the STA officer charged may make representations to that person or body.

[33] Disciplinary appeals to Transport Appeal Board
An STA officer may appeal to a Transport Appeal Board against:
(a) a decision of the STA to impose a punishment referred to in clause 29 (1) (b)–(e) in disciplinary proceedings against the officer, or
(b) a decision to suspend the officer temporarily under clause 30.”

39 The Transport Appeal Boards Act 1980 (“the TAB Act”) constitutes Appeal Boards, any one of which, properly constituted, may exercise the functions under the TAB Act in relation to a particular appeal. The Act refers to disciplinary proceedings under the 2000 Regulation. The other relevant provisions of the TAB Act are in the following terms:

“ [11A] Nature of proceedings for promotion appeals
(1) The proceedings of a Board for the purpose of hearing a promotion appeal are to be formal unless the regulations conferring the right to make the appeal provide that promotion appeals (or any class of promotion appeals) are to be heard informally.
(2) The Chairperson may, in the case of a promotion appeal that would otherwise be heard informally as provided by the regulations referred to in subsection (1), determine that the proceedings for the purpose of hearing the appeal are to be formal if the Chairperson is satisfied that there is good and sufficient reason for making such a determination.
(3) A determination of the Chairperson for the purposes of subsection (2) may be made on his or her own motion or on the application of a party to the appeal.
(4) An application referred to in subsection (3) may be made before or at any time during the hearing.

[11B] Nature of proceedings for disciplinary appeals
The proceedings of a Board for the purpose of hearing a disciplinary appeal are to be formal.

[11C] Provisions relating to informal proceedings
(1) Informal proceedings of a Board are not to be conducted in an adversarial manner and, subject to this Act, are to be conducted in accordance with such directions as may be given by the Chairperson.
(2) The persons entitled to be present at informal proceedings of a Board are:
(a) the appellant whose appeal is being heard by the Board, and
(b) a person appointed by the employer against whose decision the appeal is brought, being a person appointed generally or in respect of a particular appeal or class of appeals, and
(c) the employee in whose favour the decision referred to in paragraph (b) has been made.
(3) A person who is entitled to be present at informal proceedings is not entitled to be represented by any person.
(4) A person who is entitled to be present at informal proceedings:
(a) being a person referred to in subsection (2) (a) or (c)—may adduce, orally and in writing, to the Board such matters, and address the Board on such matters, as are relevant to the appeal, and
(b) being a person referred to in subsection (2) (b)—may adduce in writing to the Board such matters as are relevant to the appeal and may, at the request of the Board, address the Board, otherwise than in writing, on any matter, and

(c) may produce documents or exhibits to the Board, and
(d) may with the leave of the Board, and must, if directed to do so by the Board, give evidence on oath.
(5) A person who is entitled to be present at informal proceedings cannot:
(a) call or examine any witness, or
(b) cross-examine any other such person.
(6) Informal proceedings of a Board are not to be recorded unless the Chairperson otherwise directs.

[11D] Provisions relating to formal sittings
(1) Evidence in formal proceedings of a Board is to be given on oath and is subject to cross-examination.
(2) The persons entitled to be present at formal proceedings are:
(a) the appellant whose appeal is being heard by the Board, and
(b) a person appointed by the employer against whose decision the appeal is brought, being a person appointed generally or in respect of a particular appeal or class of appeals, and
(c) the employee in whose favour the decision referred to in paragraph (b) has been made.
(3) Formal proceedings are to be open to the public unless the Board, on the application of a person who is entitled to be present at the proceedings, otherwise directs in relation to the whole or any part of the proceedings.
(4) A person who is entitled to be present at formal proceedings:
(a) is entitled to be represented by any person other than an Australian lawyer, and
(b) may, with the leave of the Chairperson, be represented by an Australian lawyer.
(5) A person who is entitled to be present at formal proceedings may call and examine any witness.
(6) A person proposed to be called as a witness in formal proceedings, not being a person who is entitled to be present at the proceedings, must, unless the Board otherwise orders, be excluded from the proceedings before giving evidence and the Board may exclude a person proposed to be called as a witness from giving evidence if he or she has been present at the proceedings before giving evidence.
(7) Formal proceedings are to be recorded.


…

[17] Evidence
(1) A Board is not bound by the rules or practice as to evidence and may, subject to subsection (2), inform itself on any matter in such manner as it thinks fit.
(2) A Board shall not inform itself on, or take into consideration, any matter which has not been disclosed in evidence at a sitting of the Board if the matter is one which ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the sitting.
(3) Nothing in subsection (2) prevents a Board from informing itself on, or taking into consideration, any matter of which it is entitled to take judicial notice.


…

[23] Decisions on appeals
(1) A Board may, in relation to an appeal, decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.
(2) The decision of a Board in respect of an appeal is final and is to be given effect to by the Authority against whose decision the appeal was made.

[24] Orders by Board with respect to payment of salary and continuity of employment
(1) Without limiting section 23, if a Board decides to allow a disciplinary appeal, the Board may:
(a) if the appellant has paid a fine imposed by the Authority concerned or has had his or her pay forfeited by the Authority—order the Authority to repay the amount of any such fine or forfeited pay, and
(b) order the Authority to pay the appellant an amount stated in the order that does not exceed the remuneration the appellant would, but for the decision of the Authority, have received from the Authority, and
(c) order that any period of employment of the appellant with the Authority is taken not to have been broken by the decision of the Authority.
(2) Any such order by a Board must be given effect to by the Authority.
(3) Nothing in subsection (1) enables a Board to make an order for compensation in the case where a person is not reinstated or does not continue in employment.


…

[30] Supply of copies of statements and other things to appellant
(1) Where an officer of an Authority has lodged an appeal against punishment imposed, the officer shall, on application, be entitled to be supplied by the Authority without cost to the officer with copies of all statements or reports which have been submitted to the Authority in connection with the incident or incidents which formed the basis for the punishment against which the officer is appealing.
(2) Any copies referred to in subsection (1) shall, where practicable, be supplied to the appellant at least 3 days before the hearing of his or her appeal.
(3) No proceedings, civil or criminal, shall lie or be allowed against an Authority, or against the person who has made any statement or report a copy of which is supplied in accordance with this section, for or in relation to any matter contained in the statement or report which is, or is alleged to be, defamatory.”

Sections 17, 23 and 24 of the TAB Act apply to both formal and informal hearings (see ss 11A, 11B and 11C), while ss 11D and 30 of the TAB Act apply only to formal proceedings.

40 As a result of the foregoing (including the facts recited or otherwise uncontroverted), it follows that:

(i) A disciplinary procedure was prescribed by the legislature.

(ii) It required Sydney Ferries to notify Mr Morton, in writing, of any charge against him and of the particulars of that charge.

(iii) It allowed Sydney Ferries to suspend Mr Morton pending the institution and determination of disciplinary proceedings, which suspension could be with or without pay.

(iv) Sydney Ferries, knowing the foregoing, continued the employment of Mr Morton for the period from 24 April 2004 to 16 June 2004 (approximately 7 ½ weeks), during which period Mr Morton carried out his normal duties.

(v) By letter dated 12 May 2004 (E1 Form, Exhibit B6.1 in these proceedings), Sydney Ferries wrote to Mr Morton. This is the document Sydney Ferries submits is the notification of “the charge” and the particulars thereof. Although, it did seem to specify the charge, it raised the possibility of breach of sections of the Code of Conduct, State Transit Harassment Policy and “a general breach of the contract of employment”.

(vi) The possible breach of the Code of Conduct was specified as, it seems, “a failure to understand … duties and responsibilities and ensure [performance of] duties and … responsibilities to the required competency level….” It then stated:

“By harassing and physically assaulting … [Mr] Best, you have endangered the safe running of the vessel and failed to ensure the safety and well being [sic] of the crew and therefore have failed to perform your duties and carry out your responsibilities to the required competency level….”


(vii) The State Transit Harassment Policy was quoted in part and then the following was particularised:

“Your harassment and physical assault of … [Mr] Best was not in the interest of health and safety, efficiency, harmony in the workplace and the public image of State Transit [sic], and through your actions you have failed to show respect and consideration to another State Transit [sic] employee, have failed to be polite to a co-worker, harassed another employee and failed to maintain an appropriate professional standard of behaviour.”


(viii) A further particular of the breach of the State Transit Code of Conduct and Harassment Policy was recited, being the provisions of s 19 of the Code of Conduct. It was in the following terms:

“As a State Transit employee, you are required to perform all the duties of your position promptly and efficiently, in accordance with relevant legislation and regulations, relevant awards and agreements, State Transit policies and lawful and reasonable instructions from your supervisor or manager.”


Further, an extract of the Harassment Policy was recited. It was:

“This means providing a work environment free of intimidation, threat and humiliation.


It is the responsibility of every employee to ensure that they do not behave in a manner which another employee … could find offensive, intimidating or humiliating. Managers and supervisors have a legal obligation to prevent harassment from occurring in the workplace….”


The letter proceeds to charge:

“Through your actions of threatening, intimidating, and physically assaulting [Mr] Best you have failed as an employee to comply with the Harassment Policy and as supervisor you have failed to fulfil your legal obligation to prevent harassment in the workplace.”


(ix) In numbered paragraph 4 of the letter of 12 May 2004, Sydney Ferries specified a breach of Mr Morton’s contract of employment being:

“Your criminal assault of … [Mr] Best is regarded as a breach of the general obligations under your contract of employment to act faithfully, diligently and in the best interests of State Transit [sic].”


(x) Sydney Ferries then conducted an inquiry and took statements from witnesses. There is no issue concerning the conduct of the inquiry.

(xi) By letter (and accompanying notice) dated 16 June 2004 (seemingly received on 17 June 2004) Sydney Ferries purportedly dismissed Mr Morton from his employment.

I have taken the references to State Transit, when referring to the employer, to be intended as a reference to Sydney Ferries, which, by the date of the correspondence, had assumed responsibility.

41 The appeal, as earlier stated, lodged on 18 June 2004, was dealt with under the TAB Act. The decision of Sydney Ferries was, under Clause 29(1)(e) of the 2000 Regulation, the imposition of a “punishment”, following its inquiry, being the dismissal of Mr Morton. The appeal was an appeal, under Clause 33 of the 2000 Regulation, against the decision to impose the punishment.

42 The appeal proceedings before the Tribunal must be formal (s 11B of the TAB Act, supra), and evidence is to be given on oath and be subject to cross-examination (s 11D of the TAB Act). There is an issue between the parties on the proper construction of s 11D of the TAB Act and s 17 of the TAB Act, in relation to admission into evidence of the statements of Mr Best, without calling him and without providing Mr Morton with the right to cross-examine.

43 The Tribunal’s power on appeal is confined to allowing or disallowing the appeal or making such other decision with respect to the appeal as it thinks fit. It is, subject to the statutory regime, entitled to do so on any ground available to the employer, either at the time of the employer’s decision or subsequently discovered, and it may make any decision that could have been made by the employer: see, inter alia, Franks v Roads & Traffic Authority [1996] NSWCA 13 at [17]; Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811; (2005) 149 I.R. 276 at [119].

44 These provisions, as has been stated, provide for a procedure for dismissal. While the provisions of Regulation 29(4) would render valid a dismissal otherwise than in accordance with the disciplinary proceeding, the scheme envisaged by the Regulations presupposes dismissal for cause and, relevantly, that is how it has been applied. The provisions of Regulation 29(4) would allow Sydney Ferries to dismiss in circumstances that were obvious and did not require a proceeding. An extreme example would be an employee convicted of an offence, the commission of which was inconsistent with the employee’s duties. This sub-regulation would allow dismissal without the necessity for a disciplinary procedure, over and above that which had already occurred.

45 But the right to appeal is the right to an appeal against the punishment imposed: dismissal. Mr Morton relies on the employer’s “summary dismissal” and submits that there is no basis in law for a summary dismissal. The fact that Mr Morton was dismissed without reasonable notice may be relevant to the appeal, but the appeal is still against the dismissal and is not an appeal against its summary execution. An unlawfully effected termination of employment is still effective under the common law. The remedy is damages.

46 The TAB may still uphold an unlawfully executed dismissal, because the dismissal was warranted. If grounds for summary dismissal did not arise, then the remedy, if the appeal to the Tribunal were unsuccessful, would sound in damages.

47 Secondly, Mr Morton is and was entitled, by express prescription, to notice in writing of the charges against him and the particulars thereof. He was never given, and he did not receive, charges relating to recklessness in his conduct as a supervising officer, nor inappropriate behaviour in his conduct as a ferry master. The only charge (and the particulars thereof) related to his “assault” on Mr Best, the evidence for which was dealt with by the Court (Berman AJ) in the earlier proceedings.

48 Lastly, as to this aspect, it is necessary to refer to the interaction of sections 11D and 17 of the TAB Act. As earlier noted, section 17 of the TAB Act relates to both formal and informal proceedings. It is the general provision and section 11D is the specific provision: Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 24, and the cases cited thereat. The provisions of section 11D of the Act make clear that where evidence of the kind adduced in the statements of Mr Best is to be relied upon by the Tribunal, Mr Best, or a person giving such evidence, to the extent that the person is available, is to give their evidence on oath and be subject to cross-examination. Any other construction, either in reliance on section 17 of the Act or otherwise, would render the limitations in section 11D otiose.

Grounds 1, 6(a), 6(b), 6(c) and 7: Alleged Failures to Make “Essential” Findings and Constructive Failure to Exercise Jurisdiction

49 Jurisdictional error may occur when, amongst other bases, a tribunal asks itself (and answers) the wrong question, when it considers factors irrelevant or extraneous to the exercise it must undertake or when the tribunal fails to consider a factor that it is required to consider. An “error” in the weight given to any particular factor is not an error of jurisdiction. Nor is the last-mentioned matter an error of law, unless the statute requires a particular weighting that has not been observed: see generally Public Service Association of South Australia v Federated Clerks’ Union of Australia (SA) [1991] HCA 33; (1991) 173 CLR 132; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; Craig, supra, at 179.

50 Ordinarily, a statutory power may only be validly exercised on a correct understanding of the law, at least on those matters that form the basis of the conclusion of the tribunal or officer: Re Racal Communications Ltd (1981) AC 374 at 383; and Craig, supra, at 179:

“At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd (22):

‘Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.’

The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.” ( Craig at 179, per Brennan, Deane, Toohey, Gaudron and McHugh JJ.)

51 The above qualification, namely, to take account of separation of powers, does not, except in certain limited circumstances associated with the possible limitations deriving from The Constitution, apply to the exercise of state judicial power, but the principle operates in relation to the exercise of state judicial power in the same manner as described in both Racal and Craig.

52 Largely this ground depends upon the assertion that the Tribunal made no findings in relation to the assault and no findings in relation to harassment. Mr Morton submits that such findings were essential to the determination of the appeal. As earlier stated, some of these submissions are circular or repetitive, in that they utilise “the same error” in various ways.

53 A proper construction of the decision of the Tribunal is that the only findings of fact were those expressed in paragraph 118 of the Decision. As earlier stated, the Tribunal purports to summarise the evidence of the witnesses, without making findings, and concludes with a one paragraph “series of findings”. It is the function of every tribunal, from which an appeal lies or which is subject to prerogative relief, to issue reasons for decision and to disclose in those reasons the path by which the tribunal has reached its conclusions. The Decision of the Tribunal, at [118] and [119], contains a series of assertions, the path to which is unknown or undisclosed.

54 On one view of this conglomeration of grounds, it relates to a failure to find the assault, the harassment and self-defence. However, on one view of the Decision of the Tribunal, the assault, the harassment and the issue of self defence was irrelevant to its findings.

55 Further, it seems that the Tribunal, notwithstanding its finding on the credit of Mr Morton, bases its Decision on Mr Morton’s version of events. To the extent that the charge and particulars were confined to assault and harassment, it would be a necessary aspect of the appeal to determine whether there had been an assault, whether there had been harassment and whether Mr Morton was acting in self-defence. But Berman AJ decided these matters.

56 Interestingly, no one suggests that the Tribunal was not entitled to take into account the public interest: see [119] of the Decision. No issue was taken as to the form of the orders made by the Tribunal. However this series of grounds also contains the aspect that the Tribunal did not consider whether, as a matter of law, there were grounds for dismissal.

57 As earlier stated in dealing with the provisions of the statutory scheme, the appeal is an appeal against the dismissal. Different remedies arise if an appropriate punishment (i.e. dismissal) were implemented unlawfully.

58 However, it is necessary to determine whether dismissal is warranted. And, in that regard, it is essential to determine whether a dismissal on the basis found would be lawful. Leaving aside for present purposes a dismissal without cause, Sydney Ferries was entitled to dismiss Mr Morton, if and only if, there were frustration of the contract of employment (an issue seemingly not raised, and appropriately not raised), or a breach of the contract of employment by Mr Morton. Only certain types of breaches of the contract of employment would permit termination of the employment.

59 An employer is entitled to terminate the contract of employment (again, leaving aside termination on reasonable notice without cause) on one of three bases: repudiatory conduct by the employee (for which a right to dismiss summarily would arise); a breach, by the employee, of an essential term of the contract; or a sufficiently serious breach of an intermediate term of the contract: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61.

60 It is unnecessary, for present purposes, to discuss whether a sufficiently serious breach of an intermediate term of the contract must go to the root of the contract, in which case it may be repetitive of repudiatory conduct: see Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha [1962] 2 QB 26 at 65.9-66.5 and 69.3 and compare Bettini v Gye [1876] 1 QBD 183 at 188, Poussard v Spiers (1876) 1 QBD 410 at 414, 415 and 416, Western Excavating v Sharp [1978] QB 761, Spencer v Dowling [1997] 2 YR 127 at 159-160 (per hayne J) and McDonald v State of South Australia [2008] SASC 134. It is sufficient for present purposes to note that neither the so-called reckless behaviour of approaching a subordinate for the purposes of reprimanding him (or demanding an apology), nor the inappropriate behaviour and/or reckless behaviour described in [118(iv)] and [118(v)] are sufficient grounds for dismissal. None of the conduct described in [118] is repudiatory of the contract of employment, or a breach of an essential term of the contract of employment, or a sufficiently serious breach of an intermediate term of the contract of employment.

61 To the extent that the assault or harassment is relied upon, there is no finding of fact upon which one could base a dismissal and there is no finding of fact, essential to such an issue, as to the existence of self-defence. I reiterate that each of the later aspects was the subject of findings by this Court, in the earlier proceedings.

Grounds 2 and 10: Errors in Relation to Findings on Credit

62 Comment has already been made in this judgment as to the absence of discrepancies and as to the absence of the ability to find discrepancies in light of the judgment of this Court, and the reasons therefor, in the earlier proceedings. Further, the foregoing comments as to lack of reasons apply equally to the findings on credit.

63 Otherwise, however, the issues raised in these grounds are wholly academic. The Tribunal does not seem to rely upon the finding expressed by it, in that regard. Further, to the extent that Mr Morton relies upon the inconsistency between the finding on credit and the reliance placed upon the evidence of Mr Morton, no error of law arises. The mere fact that a witness may be considered to be unreliable or untruthful does not mean that the relevant decision maker may not rely upon some of the evidence from the witness.

Grounds 3, 4, 5 and 11: Denial of Natural Justice and Failures Relating to Findings of Inappropriate and Reckless Behaviour.

64 The circumstances of Mr Morton approaching Mr Best have already been discussed. Further, the circumstances in which Mr Morton moved the ferry from the wharf, and returned it, have also been discussed. Neither amounts to recklessness.

“Thus the standard test of a man’s mind in the commission of an act is the foreseeable consequences. If he applied his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness.” ( R v Stones [1955] 56 SR (NSW) 25 at 34.)

65 Recklessness is more than negligence. It is more than gross negligence. It is a conscious or contumelious disregard of the consequences of an act: Southern Portland Cement Ltd v Cooper [1973] UKPCHCA 1; (1973) 129 CLR 295 at 306, citing Herrington v British Railways Board [1972] AC 877 at 928.

66 Moreover, the acts in question would not seem to meet the test for misconduct.

“The words used in the statutory test (‘misconduct in a professional respect’) plainly go beyond that negligence which would found a claim against a medical practitioner for damages: Re Anderson , (at 575). On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient: cf Re Anderson (at 575). Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: ibid. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.” ( Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200, per Kirby J.)

67 While the foregoing comments clearly apply to a medical practitioner under a particular and peculiar statutory scheme, the principles have been applied more broadly. It has been held to require personal implication in conduct which others in that trade or profession would regard as disgraceful or dishonourable: Re a Solicitor [1960] VR 617 at 620; and should be wilful and arising from a wrong motive: NZ Classic Car Co Ltd v Motor Vehicle Dealers Licensing Board (1985) NZAR 170 at 174.

68 As to the ground of a denial of natural justice, the disciplinary regime implemented by the statute and regulations expressly requires written notice of the charges and particulars. The Tribunal, as previously stated, stands in the shoes of the employer and is entitled to dismiss for any valid reason. Nevertheless, Mr Morton is entitled to written notice of the charge and the particulars. Such notices that were given to Mr Morton did not specify recklessness or inappropriateness as a ground for dismissal.

69 There was some cross-examination by Mr Moses SC of Mr Morton before the Tribunal, relating to inappropriateness and/or recklessness. But that cross-examination did not comply with the regulatory scheme. Nor did it put Mr Morton sufficiently on notice as to the allegations to be made. It certainly did not give rise to an expectation of findings of the kind made by the Tribunal. Evidence of the practice of others, evidence of directions and training on the handling of subordinates would have been available if notice had been provided. Mr Morton was significantly prejudiced by the lack of notice.

70 Further, Mr Morton was involved in a conversation with the control room, which necessarily involved the proposition that Mr Morton was required, by Sydney Ferries, to proceed from Taronga Zoo Wharf to Circular Quay. A refusal to proceed as directed may well have amounted to misconduct of the kind that would or could warrant dismissal. That communication with the control room occurred at a time when Mr Morton was aware that the control room had spoken with Mr Best. The necessary question arises, if the conduct of Mr Morton had been reckless, was it not as a direct result of the conduct of Mr Morton’s supervisors in the control room? Was not Mr Morton’s behaviour a direct result of the “recklessness” of his supervisors?

71 I do not consider Mr Morton’s conduct as reckless. However, his conduct was a reasonable reaction to a direction that he proceed to Circular Quay at which point there would be an exchange of staff and a conference with his supervisors.

Grounds 8 and 9: Wednesbury Unreasonableness and the Error in Admitting Evidence

72 In the light of the foregoing, it is unnecessary to determine whether the findings of the Tribunal were vitiated by Wednesbury unreasonableness. Given the errors that have already been found, orders will be made quashing the decision of the Tribunal. As a consequence of those errors, the determination of the Tribunal is vitiated by error and, necessarily, is unreasonable. Without reaching a concluded view, on the material before the Court, it would seem that the finding is not one, which the Tribunal, “acting with due appreciation of its responsibilities”, could have decided to adopt: Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211 at [10], citing Regina v Chief Constable of Sussex, Ex parte International Trader’s Ferry Ltd [1998] UKHL 40; (1998) 3 WLR 1260 considered

73 As to the admissibility of the evidence, issues arose as to the practical availability of Mr Best and a range of other factors. As has already been made clear, the findings, such as they are, of the Tribunal do not seem to depend upon the evidence of Mr Best and no purpose is served in dealing with an academic point.

Conclusion

74 The Decision of the Tribunal was reached in circumstances where the reasons for the Tribunal’s Decision disclose error of law, which error is determinative of the result. As a consequence, orders in the nature of certiorari will issue. The errors include a denial of natural justice (as prescribed by the regulatory scheme) (or a failure to comply with the provisions of the scheme itself), the failure to disclose adequate reasons for the findings made, the finding that grounds existed for dismissal and the failure to consider whether, even on the findings of fact of the Tribunal, there were sufficient grounds for a dismissal.

75 The Court makes the following orders:

(i) The proceedings before the Transport Appeal Board in the matter of Stephen James Morton and Sydney Ferries Corporation, be removed into this Court and the decision of the Transport Appeal Board, of 25 June 2008, dismissing the appeal, be quashed;

(ii) The matter of the aforesaid appeal by Stephen James Morton against the decision of the Chief Executive of the Sydney Ferries Corporation be remitted to a differently constituted Transport Appeal Board for determination according to law;

(iii) The parties be granted liberty to provide written submissions, within 14 days, on any order for costs, in the absence of which the Court will issue a further order that Sydney Ferries Corporation pay Mr Morton’s costs of these proceedings, as agreed or assessed.

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