Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales

[2021] NSWSC 1248

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248

Hearing dates:

22 June, 19 July, 20 September 2021

Date of orders:

1 October 2021

Decision date:

01 October 2021

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

1. Judgment entered for Mr Wood.

2. The parties should confer on the final orders to be made, reflecting the conclusions reached, which should be filed within 7 days.

3. If costs remain in dispute Mr Wood should file a short outline as to costs within 7 days. In that event Transport NSW should provide a short reply within 7 days and the parties should also approach if they wish to be heard on those submissions.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Termination of employment – Public sector employee summarily dismissed for serious and wilful misconduct – Disclosure of information relevant to murder prosecution to police – Whether contractual right to dismiss for serious and wilful misconduct exercised – Whether disciplinary proceedings pursued under Transport Administration (Staff) Regulation – Whether employee denied procedural fairness – Whether employee engaged in serious and wilful misconduct – Relevance of ss 315, 315A and 316 Crimes Act – Whether contract repudiated

CONTRACT – Contract of employment – Whether employee employed as a senior manager under Transport Administration Act – Whether provision of contract of employment ineffective

CONTRACT – Breach of contract – Construction of contractual confidentiality provision – Whether employee contractually precluded from making disclosure to police – Whether employee had legal duty to make disclosure – Inconsistency between confidentiality provision and s 316 Crimes Act – Whether disclosure precluded by Privacy and Personal Information Protection Act

CONTRACTS – Remedies – Damages

ADMINISTRATIVE LAW – Judicial review – Whether to extend time to commence proceedings – Application brought 79 days out of time – Rule 59.10 of the Uniform Civil Procedure Rules – Public Interest – Extension of time granted

ADMINISTRATIVE LAW – Jurisdiction – s 68O Transport Administration Act

STATUTORY CONSTRUCTION – ss 68N and 68O Transport Administration Act – Whether s 68O operates to preclude judicial review or remedies for breach of contract – reg 30 Transport Administration (Staff) Regulation – What procedural fairness requirements regulation imposes – Privacy and Personal Information Protection Act – s 4 – Whether definition of personal information extends to information about an individual’s criminal activities – s 62 – Whether offence confined to corrupt disclosure or use of personal information – Crimes Act – s 316 – Whether s 62 Privacy and Personal Information Protection Act provides basis for a reasonable excuse under s 316(1)(c) of the Crimes Act

Legislation Cited:

Annual Holidays Act 1944 (NSW)

Civil Procedure Act 2005 (NSW) s 56

Crimes Act 1900 (NSW) ss 315, 315A, 316

Crimes Regulation 2015 (NSW) reg 4

Government Information (Public Access) Act 2009 (NSW)

Government Sector Employment Act 2013 (NSW) ss 7, 12, 36

Industrial Relations Act 1996 (NSW) ss 6, 8, 11, 12 105, 106, 107,130, 132, 134, 135, 137, 138,146, 355A, 355B, 355C, 365, 366, 367, Ch 2 Pts 6, 7, 9, Ch 6A, Ch 7 Pt 2

Interpretation Act 1987 (NSW) ss 34, 35

Long Service Leave Act 1955 (NSW)

Privacy and Personal Information Protection Act 1988 (NSW) Div 1 Pt 2, ss 3, 4, 18, 23, 62

Statutory and Other Offices Remuneration Act 1975 (NSW)

Supreme Court Act 1970 (NSW) s 75

Transport Administration Act 1988 (NSW) ss 3C, 3F, 68B, 68C 68D, 68E, 68F, 68G, 68I, 68J, 68K,68N, 68O, 68P,112, Pt 7A, Sch 1

Transport Administration (Staff) Regulation 2012 (NSW), regs 28, 30

Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 59.10(2)

Workers Compensation Act 1987 (NSW) s 151Z(1)(b)

Cases Cited:

A v Hayden (No. 2) (1984) 156 CLR 532; [1984] HCA 67

Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; [1977] HCA 71

Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 2

Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; [1933] HCA 8

Brooks v Burns Philp Trustee Co. Ltd (1969) 121 CLR 432; [1969] HCA 4

Brown v Dunn (1894) 6 R 67

Commonwealth v Amann Aviation Pty Ltd 174 CLR 64; [1991] HCA 54

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17

Director-General of Education v Suttling (1987) 162 CLR 427; [1987] HCA 3

Dyason v Butterworth [2015] NSWCA 52

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Howard v Odhams Press, Ld (1938) 1 KB 1

Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343; [2018] NSWCA 163

Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; [2005] HCA 50

Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537

Lucy v The Commonwealth (1923) 33 CLR 229; [1923] HCA 32

Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70

Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 33 [1912] HCA 69

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

O’Connor v State of New South Wales & Anor [2017] NSWSC 598

O’Connor v State of New South Wales [2017] NSWCA 335

Osmond v Public Service Board of NSW [1984] 3 NSWLR 447

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2

Police Association of New South Wales v State of New South Wales (2020) 101 NSWLR 626; [2020] NSWCA 3

Priest v State of New South Wales [2007] NSWSC 41

Re David, Alan and Mary and the Director General Family and Community Services [2014] NSWSC 1077

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56

Scott v Handley [1999] FCA 404; (1999) 58 ALD 373

Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475; [1976] HCA 53

Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214; [1954] HCA 21

Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381

Wilson v Department of Public Prosecutions (NSW) [2016] NSWSC 1458; (2016) 262 A Crim R 106

Wilson v Director of Public Prosecutions (NSW) (2017) 94 NSWLR 450; [2017] NSWCA 128

WorkPac Pty Ltd v Rossato (2021) 392 ALR 39; [2021] HCA 23

Texts Cited:

Privacy and Personal Information Protection Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates, (Hansard), 17 September 1998

Category:

Principal judgment

Parties:

Thomas Wood (Plaintiff)
Secretary of the Department of Transport on behalf of the Government of New South Wales (Defendant)

Representation:

Counsel:
Mr S Prince SC (Plaintiff)
Ms S Brenker (Plaintiff)
Mr M Seck (Defendant)
Solicitors:
Thrive Workplace Consulting & Legal (Plaintiff)
K & L Gates (Defendant)

File Number(s):

2020/330611

Judgment

1. On 2 June 2020, Transport NSW summarily dismissed Mr Wood without notice or any payment in lieu under cl 15(d) of his employment agreement, for having assisted police in a murder prosecution. He was then employed as a forensics manager. Mr Wood claims that there was no lawful basis for his dismissal for serious and wilful misconduct and that the termination involved a repudiation of his contract, for which he is entitled to various relief, including damages.

2. By his dismissal letter Mr Wood was advised by Ms Taylor, the Acting Chief People Officer, that his employment was being terminated because of his:

“1. failure to maintain confidentiality with respect to the release of confidential information without authorisation;

2. failure to comply with lawful and reasonable direction issued to you not to perform any work;

3. failure to protect personal information collected by Transport for NSW and releasing information without authorisation and releasing information not in the course of lawful exercise of your functions, particularly given the direction that was issued to you; and

4. failure to comply with Transport’s Code of Conduct.”

3. The letter also advised Mr Wood that account had been taken of a letter sent by his solicitor Ms Harvey in which an extension of time to respond to the allegations was sought, but refused; explained the circumstances which had led to the issue of his dismissal having arisen; and the considerations which had resulted in the decision to dismiss. The circumstances identified were:

“1. you were issued a written direction not to undertake any work which includes representing yourself as an active employee of Transport for NSW;

2. the information you have provided NSW Police was information that was obtained through the course of your employment and involves personal information relating to a former employee; and

3. given your seniority and your role as Forensic Manager within the Workplace Conduct and Investigation Unit and past matters you have worked on, you are aware of the appropriate process within Transport for NSW for reporting and providing evidence and information to the NSW Police.”

4. The information which Mr Wood had provided police was not in issue.

5. On 28 May 2020 Mr Wood had approached police with information relevant to the prosecution of Mr Pietrobon, a former Transport NSW employee, immediately on learning that he had been charged with murder, when Mr Wood saw a news report televising Mr Pietrobon’s arrest and recognised him. He was then asked to make a report to Crime Stoppers. He told Crime Stoppers that in the course of his work he had conducted two investigations into Mr Pietrobon, before Mr Pietrobon was dismissed in 2019.

6. One investigation had concerned a complaint that Mr Pietrobon had sexually harassed a work colleague and misused resources at work, including use of fetish dating apps, in order to access inappropriate sexual content. The other having failed to disclose a conviction for assault. His work mobile phone and computer had been imaged on both occasions and those records were still retained by Transport NSW.

7. Transport NSW became aware of this disclosure immediately after it was made, because Mr Wood then advised his manager Mr Marley, the Associate Director of the Workplace Conduct and Investigation Unit, of the information he had provided Crime Stoppers. In his email Mr Wood suggested that Mr Marley advise relevant senior management of the information he had provided, so that steps to contact police could be pursued under a memorandum of understanding which he believed Transport NSW had with police.

8. Strangely, his email, which he advised concerned “Information Critical to Possible Murder Investigation”, did not result in the records which were stored in his office being retrieved and provided to police. Instead Mr Wood was dismissed for misconduct.

9. In these proceedings it emerged that police had already sought information about Mr Pietrobon from Transport NSW, before he was charged. That request had been dealt with by its general counsel, Mr Zeng, but had not resulted in the provision of the records Mr Wood had disclosed. It was Mr Wood who disclosed their existence to police on 28 May 2020.

10. In these proceedings there was no issue that the information which Mr Wood provided police was relevant to the prosecution; that Transport NSW had the records in its possession; that despite Mr Wood’s advice Transport NSW did not then locate the records; Mr Marley knew they were stored in Mr Wood’s office, but neither he nor anyone else asked Mr Wood where they could be found; that production of the records was later pursued by police, after they interviewed Mr Wood following his dismissal; and that the records were only provided to police by Transport NSW in February or March 2021 by Ms Lam, who was acting in Mr Wood’s position.

11. As it transpired the murder charge was never heard, because Mr Pietrobon took his own life before the hearing.

12. Mr Wood’s dismissal for assisting police in a murder prosecution as he did, seems startling. But the merits or fairness of the decision to summarily dismiss him for that assistance does not arise for consideration. Rather, these proceedings are concerned with Transport NSW’s disputed right to act as it did; this Court’s power to grant the relief which Mr Wood seeks; and whether it should be exercised.

13. What is in issue also raises the obvious public interest in the disclosure and prompt production to police of information relevant to the prosecution of serious crimes, as well as common law obligations and offences potentially committed when such assistance is not given.

Conclusion

14. For reasons which I will explain, I have concluded that Mr Wood has established his case and is thus entitled to relief, including damages.

15. Mr Wood’s case was that he had committed no serious misconduct; Transport NSW had no right to dismiss him as it did; and he had never accepted the repudiation of his contract. He thus sought a declaration, amongst other things, that he still occupied his position. On the final day of the hearing it emerged that there had been a restructure in Transport NSW and that in July 2021 his position had been abolished.

16. I am satisfied that this precludes a declaration that Mr Wood still occupies his former position and must be taken into account in arriving at an award of damages.

Mr Wood’s claims

17. By his December 2020 amended summons Mr Wood sought various declarations, in summary that:

1. the exercise of the power granted by reg 30(3) of the Transport Administration (Staff) Regulation 2012 (NSW) in disciplinary proceedings required that he be afforded procedural fairness;

2. in the alternative, that:

1. the exercise of powers under his contract of employment was subject to the requirement of procedural fairness, which applied under the Transport Administration (Staff) Regulation and the Transport Administration Act 1988 (NSW); and

2. the power under cl 15(d) of his employment contract was “conditioned” by the need to accord him procedural fairness, consistent with the Transport Administration Act and Transport Administration (Staff) Regulation.

3. the decision to summarily dismiss him from his employment was unlawful, having involved a denial of procedural fairness in the purported exercise of the powers granted by reg 30(3) of the Transport Administration (Staff) Regulation;

4. that decision was otherwise void, of no effect and not authorised by law;

5. that he remained an employee occupying the position of forensic manager to which he had been appointed under the Act and was thus entitled to all payments and employments arising from that employment; and

6. in so far as cl 11(1) of Mr Wood’s employment contract was inconsistent with a person’s common law duty to bring information to the NSW Police, which might be of material assistance in securing the apprehension or prosecution of a person suspected of committing a serious indictable offence, it was void and of no effect.

18. Mr Wood also sought an order, in the further alternative, quashing or setting aside the decision to summarily dismiss him, as well as damages. He also sought an extension of time under rr 1.12 and 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW), to commence the proceedings.

19. The claims were defended, the Secretary also opposing the grant of an extension of time and contending, amongst other things, that Mr Wood was employed as a senior executive or senior manager under the Transport Administration Act, with the result that the Court had no power to make the declarations and orders sought: ss 68O and 112(2).

The issues

20. Before the hearing the parties agreed that there was no issue as to:

“Factual matters:

1 The plaintiff was employed by the first defendant at Transport for New South Wales (TfNSW) as a Forensics Manager from 10 November 2013 to 2 June 2020 under Part 7A of the Transport Administration Act 1988.

2 On 15 April 2014, the plaintiff and the first defendant signed a contract of employment (Employment Contract).

3 As part of his role as Forensics Manager, the plaintiff investigated an employee of TfNSW named Dennis Pietrobon:

(a) in around 2017, regarding Mr Pietrobon's alleged stalking, intimidation and sexual harassment of a colleague, and his misuse of TfNSW resources for harassment, pornography and dating apps; and

(b) in around September and October 2018, regarding Mr Pietrobon's assault of a male high school student at a bus stop, for which he was criminally charged, and Mr Pietrobon's failure to declare his criminal charges.

4 During each investigation, the plaintiff reimaged Mr Pietrobon's laptop and mobile phone. The reimaged data was saved to TfNSW's computers and data drives.

5 On or about 28 May 2020, the plaintiff:

(a) had been suspended from his employment effective 16 August 2019 during which he was directed not to attend or perform work, pending an investigation into the plaintiffs alleged misconduct;

(b) learned, by watching television, that on the previous day, Mr Pietrobon had been charged with the murder of a woman on 1 October 2018;

(c) called Crimestoppers during which he conveyed to the NSW Police Force that:

(i) he thought he had relevant information for NSW Police regarding Mr Pietrobon;

(ii) he had conducted an investigation into a person by that name on two occasions;

(iii) Mr Pietrobon was either employed by Sydney Trains or TfNSW at the time;

(iv) during those investigations he had reimaged Mr Pietrobon's computer and gathered evidence from his phone;

(v) he thought this information would be relevant to showing Mr Pietrobon's history of offending which NSW Police may not otherwise obtain as Mr Pietrobon no longer worked at TfNSW (or Sydney Trains);

(vi) if the information seemed relevant, NSW Police could contact him on his private mobile number,

(together, the Information);

(d) shortly after calling Crimestoppers, at 1:43pm, emailed his manager at TfNSW, Mr Grant Marley, words to the effect that:

(i) the plaintiff had told Crimestoppers that he had imaged Mr Pietrobon's laptop and taken evidence from his mobile phone around the time of the alleged murder, and that Crimestoppers said they may contact him for possible further discussions;

(ii) he was bringing this to Mr Marley's attention so that Mr Marley could raise it with senior management, take steps to contact NSW Police and look out for the mental well-being of employees who Mr Pietrobon harassed.

6 On 1 June 2020, at 1:23pm, Ms Tracey Taylor, Acting Chief People Officer of TfNSW, issued a letter entitled "Preliminary Decision: Summary Termination of Employment" to the plaintiff, which:

(a) alleged that the plaintiff's disclosure of information to Crimestoppers was an act of serious or willful misconduct;

(b) proposed the termination of the plaintiff's employment; and

(c) gave the plaintiff until 5:30pm the following day to make written submissions with regard to the proposed disciplinary action.

7 On 2 June 2020, at 3:25pm, the plaintiffs solicitor wrote to Ms Taylor and stated that the plaintiff was too unwell to provide a response to the Preliminary Decision and was on sick leave but that, in the meantime, the plaintiff's solicitor made certain observations regarding that Decision.

8 On 2 June 2020, at 9:28pm, Ms Taylor issued a letter entitled "Final Decision: Summary termination of employment" to the plaintiff by which the first defendant purported to terminate the plaintiff's employment (Summary Dismissal Decision).

9 The plaintiff was scheduled to go on parental leave on 3 June 2020.

10 The misconduct investigation referred to in paragraph 5(a) above was never completed.”

21. Before the hearing the parties identified what was in issue to be:

“(a) whether the plaintiff requires an extension of time to make the Judicial Review Claim and, if so, whether an extension of time is to be granted;

(b) whether s 68O of the Transport Administration Act 1988, on its proper construction, has application to the removal or termination of employment or other cessation of the plaintiff's employment, or purported removal, termination or cessation of that employment, having regard to the scope of the section and in light of Plaintiff S15712002 v The Commonwealth (2003) 211 CLR 476 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531, and whether s 68O operates to preclude the Court granting any relief for judicial review and/or breach of contract;

(c) whether the second defendant, as a member of a transport authority under s 112(2) of the Transport Administration Act 1988 made the decision to terminate the plaintiff's employment in good faith for the purposes of executing the Transport Administration Act 1988, and therefore under s 112(1) of the Transport Administration Act 1988, and therefore cannot be subject to any action, liability, claim or demand including the claims made in the Amended Summons;

(d) to the extent that the Summary Dismissal Decision was invalid, whether a purported decision by the second defendant which involves jurisdictional error is a matter or thing done for the purposes of executing the Transport Administration Act 1988, within the meaning of s 112(1) of that Act;

(e) given that the Information was conveyed to the Government of NSW in the form of the NSW Police Force, was the disclosure to a person other than the plaintiff's employer;

(f) whether the plaintiff had a duty to disclose the Information to the NSW Police Force or, in the alternative, whether, if any such duty exists it can be discharged by first fulfilling the obligations pursuant to clause 11(b)(i) and (ii) of the Employment Contract;

(g) whether the process prescribed by clause 11(b)(i) and (ii) of the Employment Contract, if followed, would constitute "reasonable excuse" within the meaning of s 316(c) of the Crimes Act 1900 (NSW);

(h) whether the plaintiff's confidentiality obligations to his employer are to be construed consistently with any duty to disclose information to the NSW Police Force;

(i) whether the plaintiff engaged in serious or willful misconduct by calling Crimestoppers on 28 May 2020 and providing them with the Information;

j) whether the plaintiff was denied procedural fairness in any purported termination of his employment or removal from office;

(k) whether the first and/or second defendant breached the Employment Contract by summarily terminating the plaintiff's employment; in particular:

(i) whether the defendant purported to terminate the plaintiff's employment under clause 15(d)(i) or another clause of the Employment Contract;

(ii) whether the plaintiff's conduct enlivened the defendant's power to summarily dismiss him under that clause;

(iii) further and alternatively, whether the defendant owed a duty to co­operate in the execution of the Employment Contract and, if so, whether that duty was breached;

(l) whether the plaintiff is entitled to the relief sought.”

22. When the hearing commenced the Secretary announced that the issues raised in relation to s 112 of the Transport Administration Act would not be pressed.

23. What otherwise remained in issue expanded during the course of the hearing to include, amongst other things, the validity of aspects of Mr Wood’s employment contract; the proper construction of provisions of the Privacy and Personal Information Protection Act 1988 (NSW) and their intersection with s 316 of the Crimes Act 1900 (NSW).

24. It only emerged from Mr Marley’s cross examination at the resumed hearing in September 2021, that there had been a restructure implemented by Transport NSW in July 2021, which had resulted in the abolition of Mr Wood’s former position, to which no-one had been appointed since his dismissal. Ms Lam, who had previously reported to Mr Wood, had been acting in that position until that restructure.

25. This also raised an issue as to the quantification of Mr Wood’s damages.

Why an extension of time was granted

26. Mr Wood relied on his affidavit evidence and that of his solicitor Ms Harvey, to support his application for an extension of time to commence the proceedings, which was opposed.

27. I granted the extension after Ms Harvey was cross examined, for the following reasons.

28. Rule 59.10 of the Uniform Civil Procedure Rules requires proceedings such as these to be commenced within 3 months of the date of the decision in issue. Mr Wood’s application was thus brought 79 days out of time.

29. Under that Rule the Court has a discretion to extend time, taking into account relevant factors. They include:

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

30. Other relevant considerations are the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65] applied in O’Connor v State of New South Wales [2017] NSWCA 335 at [23]. There at first instance the leave sought had been refused, it having been found that significant prejudice would flow to the State from the delay, the decision in issue having been made over 22 years ago, a conclusion found on appeal to have been correct.

31. This was clearly an entirely different case, given not only the length of the delay, but the matters of public interest which it raised.

The parties’ cases

32. Mr Wood’s case was that the proceedings were not brought within time because of representative error. He relied on Ms Harvey’s explanation of why she had not advised him of the time limit which applied and why she had expected that the Secretary would not oppose the necessary leave to commence the proceedings being granted.

33. The Secretary contended that there was still insufficient evidence about the circumstances in which Mr Wood had failed to bring the proceedings within time, to grant the leave sought. Further, that there was insufficient evidence as to when the error about the limitation period was identified and that Ms Harvey had given insufficient explanation of her carelessness.

34. The evidence relied on was also submitted to be inadequate, given the absence of relevant medical certificates or other relevant documentary evidence. It was also relevant that within time, Mr Wood had given instructions for proceedings to be brought before the Fair Work Commission, which were later discontinued, the Secretary having raised a jurisdictional difficulty.

35. The Secretary also relied on prejudice.

36. There was no issue, however, that from shortly after his summary dismissal was communicated to Mr Wood, Transport NSW had notice of his intention to challenge its decision.

Why the Secretary’s case could not be accepted

37. Mr Wood’s case was clearly arguable.

38. He was summarily dismissed without notice or even payment of any of his outstanding entitlements late on the evening of 2 June, within days of his 28 May advice of the disclosure he had made to police. The decision was made despite Ms Harvey having sought further time for him to respond to the allegations, given the impending birth of his child, for which he was due to begin paternity leave on 3 June and the medical certificate then provided concerning his ill health, which advised that he was not fit for work.

39. It was difficult to see when it dismissed Mr Wood, what confidentiality Transport NSW conceivably might have considered it needed to maintain in the information he had provided police. Consistent with there being no such need, eventually the records whose existence he had disclosed were provided to police, who had pursued them. That this proved to be necessary, was puzzling.

40. On her evidence, Ms Harvey’s explanation in cross examination, that at the time of the dismissal she had forgotten the time limit imposed by the Rules on proceedings such as this, had to be accepted. She was later reminded of it by a Transport NSW representative, she believed after the limitation period had expired.

41. Ms Harvey also explained that she had not then been concerned about the question of leave, because of earlier advice received from Transport NSW’s solicitor. That advice included that it was “comfortable with its decision taken and prepared to defend it” and that as a public authority, it had decided not to “compromise the matter in the face of the serious allegations Mr Wood raises as to do so gives the appearance of it buying Mr Wood’s silence with respect to matters which, if sustained, should be exposed in the public interest”.

42. Those allegations included Ms Harvey’s advice on 1 June that Mr Wood’s threatened dismissal raised questions about offending under ss 315 and 315A of the Crimes Act. They are concerned respectively with hindering the investigation of a serious indictable offence or the discovery of evidence concerning such an offence and threatening or causing any injury or detriment to another person intending to influence any person not to bring material information about an indictable offence to the attention of police.

43. The advice Ms Harvey received, it had to be accepted, was relevant to her expectation that the Secretary would not oppose any application for an extension of time to bring these proceedings.

44. Also relevant was that the Secretary’s case that prejudice had resulted from the proper business of government having been compromised, did not rely on any actual or identified prejudice. Instead, what had been said in O’Connor v State of New South Wales & Anor [2017] NSWSC 598 was relied on. There N Adams J observed:

“64 In Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113, Biscoe J observed the following at [7]:

“A judicial review court is concerned with maintenance of the rule of law in the conduct of public authorities, but the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced. In considering whether to extend time, the factors listed in r 59.10(3) are not exhaustive. The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the court to carry out a balancing exercise. As regards the factor referred to in r 59.10(3)(c), a claimant cannot fairly be criticised for failing to take action before he knew or, by exercising reasonable diligence, should have known that there was anything to take action about.”

65 In Dyason v Butterworth [2015] NSWCA 52, McColl JA (with whom Barrett and Gleeson JJA agreed), observed of r 59.10 at [65]:

“UCPR 59.10 became effective on 15 March 2013. It has not been the subject of extensive judicial consideration. As is apparent from Toth v Director of Public Prosecutions (NSW [2014] NSWCA 133 (at [9]), in addition to the factors to be considered pursuant to UCPR 59.10(3), other relevant factors include those relevant to extension of time applications in contexts such as UCPR 51.16(2). These include the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]).” at [65].

66 The question of whether an extension of time should be granted is not to be confined either to the significance of the delay or the question of whether the plaintiff has a fairly arguable case. Each application turns on its particular facts. In some cases, an extension might be refused even though the delay is not significant on the basis that there is no fairly arguable case in any event. In other cases, an extension might be granted where there is significant delay but where the error is easily identified. The question of potential prejudice to a party caused by the delay is a significant consideration in all matters.”

45. In this case, however, not only did the Secretary not lead evidence of any prejudice, any possible prejudice could not be identified, even in submissions.

46. There is no question that soon after he was dismissed, Mr Wood informed Transport NSW that he proposed to challenge the legality of the termination of his employment. Understandably, given what it had done, Transport NSW then considered that his challenge was so serious, that it required public ventilation. That also made understandable Ms Harvey’s expectation that there would be no objection to the necessary extension being granted, if Mr Wood sought it.

47. This was thus an important aspect of the circumstances which established that justice required that the extension which the Secretary finally opposed be granted. They also included Mr Wood’s known difficult personal circumstances at the time of his dismissal, the day before he was due to take leave in respect of the birth of his first child and his known ill health.

48. Despite this, he was not given the further time he sought through Ms Harvey, to take advantage of the brief opportunity he had been offered only on 1 June to show cause why he should not be summarily dismissed for having advised police that Transport NSW had information relevant to the murder investigation. That there was then any need for haste was not apparent and raised serious and obvious questions in relation to the issues lying between the parties in relation to procedural fairness.

49. It emerged from the later cross examination of Mr Marley, Mr Wood’s supervisor, that because of the way that Transport NSW stored information it obtained from investigations into employee misconduct, it was only Mr Wood who was aware of where the records he had alerted police to, were stored.

50. Mr Wood was not asked to retrieve them, even though that could easily have been done. He was then at home, while a long ongoing investigation into other alleged misconduct was being pursed. It concerned Mr Wood’s alleged wrongful disclosure of information about an investigation into a Transport NSW senior employee in which he was involved, to an employee in another agency, which he had denied.

51. To that time Transport NSW had not exercised its contractual right to suspend Mr Wood, while it investigated what would have been serious misconduct under his employment contract, if true: cl 15(f). Instead, it had exercised its right to direct Mr Wood not to attend or perform work, while he continued to be paid: cl 4(g). As a result of Mr Wood’s dismissal, this investigation was never concluded.

52. But before he was dismissed there was thus nothing which precluded Transport NSW directing Mr Wood to return to work to retrieve the records which he had alerted police to.

53. In all of those circumstances, I was satisfied that Transport NSW’s earlier communicated view, that how it had acted in summarily dismissing Mr Wood for providing police with information about the existence of the records which it only produced after they were pursued, following his later police interview, required public ventilation was correct. Mr Marley was also aware of their existence, but before Mr Wood’s dismissal no-one from Transport NSW spoke to him to establish what those records contained, or where he had stored them. Nor were the contents of the records considered, before he was dismissed.

54. I was also satisfied that Mr Wood’s delay was explained. It had caused no detriment to Transport NSW and there was a very obvious public interest in the resolution of the issues lying between the parties about its dismissal of Mr Wood from his employment, for having provided information to police about the existence of records in its possession, relevant to Mr Pietrobon’s prosecution for murder.

55. The extension was thus granted.

Was cl 15 of Mr Wood’s employment agreement of no effect?

56. When the proceedings commenced the written opening submissions advanced for Mr Wood assumed, but did not concede, that he was either a senior executive or senior manager under the Transport Administration Act. As the cases were finally pressed, the question of whether Mr Wood was a senior manager to whom ss 68O and 68N of that Act applied, as Transport NSW contended, was in issue.

57. The case Transport NSW advanced in final submissions was also that the provisions of cl 15(d) of Mr Wood’s employment agreement, which he had been advised in his dismissal letter his employment had been terminated under, were of no effect.

58. These and other issues turned on whether Mr Wood had been employed as a senior manager under the Transport Administration Act. That depends on the parties’ agreement and the statutory regulation of the employment of Transport NSW staff: Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; [2005] HCA 50 at [10].

Was Mr Wood a senior manager?

59. It is both what the agreement does and does not provide for, which establishes that Mr Wood was not employed as a senior manager.

60. It was in 2013 that Mr Wood was first employed as a forensics manager in the Transport Service established by s 68B of the Transport Administration Act. In April 2014 he signed the agreement by which the parties remained bound when Transport NSW dismissed him. The agreement came into operation in January 2015 and Mr Wood accepted that while he had not given it his close attention when he signed it, he was bound by its terms.

61. As discussed in WorkPac Pty Ltd v Rossato (2021) 392 ALR 39; [2021] HCA 23, employment contracts such as this agreement, whether as originally agreed or later varied, create binding obligations that constitute "firm advance commitments": at [65]. Like that case, here what arises for consideration is an employment relationship where, on the evidence, there is no reason to doubt that the terms of that relationship were committed, comprehensively, to the written agreement by which the parties intended to be bound: at [101]. Still the agreement must be understood in the context of the statutory scheme which regulated employment in the Transport Service.

62. The agreement provided that Mr Wood was employed under Pt 7A of the Transport Administration Act, in the full-time position of forensics manager. Part 7A deals with employment in the Transport Service of senior executives, senior managers and non-executive employees. They are all employed in the “government sector”, defined in the Government Sector Employment Act 2013 (NSW) to include those employed in that Service. The core values of the government sector are specified in s 7. Of particular relevance in Mr Wood’s case, they include upholding the law.

63. The agreement did not provide that Mr Wood was employed as a senior manager, a term which is not defined in the Act. Being employed as a “forensic manager” does not make an employee a “senior manager” under the statutory scheme. That requires agreement. There is no evidence that Mr Wood was offered or accepted such a position. Nor was that established by his agreement, as might be expected it would be, if he had been offered employment in such a position, given the provisions of this statutory scheme.

64. Section 68D(1) of the Transport Administration Act deals with senior executives and subs (2) provides that those employed who are designated by the Transport Secretary as senior managers “are Transport Service senior managers”. There was also no evidence that Mr Wood had ever been so designated. Had that occurred, Transport NSW no doubt would have led evidence about this.

65. Section 68D(3) provides that all others, “who are not Transport Service senior executives or Transport Service senior managers are Transport Service non-executive employees”. In accordance with that provision, Mr Wood cannot have been a senior manager under this statutory scheme.

66. If Mr Wood had been offered and accepted employment as a senior manager, it is also likely that his contract would have reflected applicable statutory provisions, such as the termination provisions of s 68N, which apply to senior managers.

67. Section 68N empowered the Secretary to terminate the employment of a senior manager at any time, for any or no stated reason and without notice. Mr Wood’s agreement did not accord with s 68N. It provided for termination for no reason with 38 weeks’ notice, or payment in lieu: ccl 15(a)(iv) and (b).

68. The agreement thus also accords with Mr Wood not having been employed as a senior manager.

59. The only evidence which supported that Mr Wood might have been a senior manager, it was conceded, was a position description updated in 2017, annexed to Mr Marley’s affidavit. There was no suggestion that he was involved in its production. It provided that the “Classification/Grade/Band” of the position was “Senior Service 1”. Mr Marley gave no evidence about what this meant, that not being a term dealt with in the agreement, the Act, or Regulations.

60. In cross examination Mr Wood said that this position description was later changed after he became responsible for managing one other employee, but that document was not in evidence. This evidence established that the parties’ agreement had been varied. It originally had annexed to it the position description which specified Mr Wood’s duties: cl 4(a). It was also not in evidence.

61. That the agreement was otherwise varied was not established. That would have required agreement between the parties, something which was not suggested to Mr Wood in cross examination.

62. Under the agreement Mr Wood was obliged to carry out his duties under any lawful direction he was given and all applicable laws: cl 4(b). He also had to act at all times in the best interests of Transport NSW and the Government of New South Wales: cl 4(c). He also had to comply with Transport NSW’s policies and procedures: cl 4(e).

63. Clause 4(g) empowered Transport NSW to direct Mr Wood at any time not to attend or perform work, a power which it had exercised some 9 months before his dismissal. This did not relieve him of his duty at all times to act in the best interests of the Government and in accordance with applicable laws, if he did perform work.

64. It follows that neither the agreement, the 2017 position description, nor any other evidence established that Mr Wood was employed as a senior manager, to whom s 68O and 68N of the Transport Administration Act applied. That accords with Transport NSW having dismissed Mr Wood, as it did, under the terms of the agreement, rather than under s 68N, as he was advised when he was dismissed.

65. The briefing note for the preliminary decision to dismiss Mr Wood stated, however, that Mr Wood was employed as a “Transport Service Senior Manager”. That can only have been an assumption, incorrectly made. The evidence simply does not establish that he was so employed.

Jones v Dunkel inferences

76. That Transport NSW called no evidence from those who could have shed light on these and other matters, is also relevant.

77. Section 3C of the Transport Administration Act constitutes Transport NSW as a corporation which is an NSW Government agency, whose affairs are to be managed by the Secretary. Its functions appear in Sch 1 to the Act and it is required to prepare, publish and annually revise a corporate plan for its activities: s 3F. But there was no evidence led about its plans, or the structure by which it delivered them at the time that Mr Wood was employed, or even about how its senior managers were employed, as opposed to how its non-executive employees, were employed or paid, in order that its activities could be pursued.

78. Matters of this kind could conceivably have shed light on whether the position in which Mr Wood was employed was that of a senior manager. Evidence could have been called from those involved in the decision to dismiss, who may have proceeded on the basis that he was a senior manager, to explain how that view was reached, as well as about the basis of the conclusion that he had engaged in serious and wilful misconduct.

79. But apart from documents tendered, the only evidence Transport NSW called was from Mr Marley, Mr Wood’s direct manager, who gave no evidence about any of these matters.

80. Mr Marley had only been in his position for a short time before he took lengthy sick leave and returned to work only shortly before Mr Wood was dismissed. He was not involved in Mr Wood’s dismissal.

81. Mr Marley’s evidence explained how he had dealt with Mr Wood’s advice of the disclosure he had made to police and with the importance of confidentiality to the work of those employed in the Workplace Conduct and Investigations Unit which he managed. It was others more senior to him who dealt with the termination of Mr Wood’s employment and with police. Mr Marley’s evidence thus shed but little light on what was here in issue.

82. In cross examination Mr Marley identified all the senior executives involved in Mr Wood’s dismissal, all of whom continue to work for Transport NSW. There was no explanation for why evidence was not called from any of them. That was the result of a forensic decision which Transport NSW made, not being prepared to put the evidence which they could give on what was in issue before the Court.

83. Jones v Dunkel inferences thus arose against Transport NSW, as explained in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75] onwards. The inference to be drawn in the result is that the evidence of these senior employees would not have assisted Transport NSW’s case, on the matters in issue.

84. That supports the conclusion that Mr Wood was not a senior manager and, as I will explain, not involved in any serious or wilful misconduct.

Mr Wood’s employment agreement was effective

85. Section 68K empowered the Transport Secretary to fix the conditions of employment of non-executive employees “in so far as they are not fixed by or under any other law”.

86. In Mr Wood’s case the Secretary exercised that power by entering into Mr Wood’s employment agreement, which Transport NSW had devised. It dealt with his duties in his position description in terms which had an impact on the confidentiality provisions which were agreed. That had to be taken into account, when the right to dismiss provided in cl 15(d) of the agreement was sought to be exercised. It provided for circumstances in which it was agreed that Mr Wood could be summarily dismissed, they amounting to serious or wilful misconduct.

87. Section 68P provided for the making of regulations “with respect to the employment of persons in the Transport Service, including conditions of employment and disciplinary matters”. The Transport Administration (Staff) Regulation made no provision for conditions of employment regulating notice to be given or payment to be made on termination of employment, in respect of which the Secretary was free to enter contracts with staff.

88. The Regulation did regulate the pursuit of disciplinary proceedings, which could result in dismissal, amongst other action: reg 30. It provided:

30 Disciplinary proceedings

(1) A member of the Transport Service who is subject to any disciplinary proceedings is entitled to be notified in writing by the Transport Secretary of the particulars of the alleged behaviour giving rise to the proceedings.

(2) A formal hearing is not required to be held before the person or body investigating or dealing with the alleged behaviour, but the member of the Transport Service who is the subject of the proceedings may make representations to that person or body.

(3) The Transport Secretary may determine any disciplinary proceedings that have been instituted against a member of the Transport Service by:

(a) taking disciplinary action with respect to the member, or

(b) taking remedial action with respect to the member, or

(c) taking no further action.

89. “Disciplinary action” is defined in reg 28 to include dismissal and suspension from duty. Such proceedings thus permit a response to misconduct or unsatisfactory performance for the purpose of improving the efficiency of the Transport Service: Police Association of New South Wales v State of New South Wales (2020) 101 NSWLR 626; [2020] NSWCA 3 at [6].

90. Clause 15 of the agreement dealt with other matters. It provided:

“Clause 15 Termination

(a) The Employee's employment may be terminated by either the Employer or the Employee in accordance with the Employer's relevant policy by way of the following:

(i) written agreement between the Employee and Employer;

(ii) the Employee giving 4 weeks' written notice to the Employer;

(iii) for termination for unsatisfactory performance, the Employer giving

up to 13 weeks' written notice to the Employee;

(iv) for termination due to redundancy or for no reason. the Employer

giving 38 weeks' written notice to the Employee,

(b) The Employer may provide the requisite notice in accordance with the provisions of clause 15(a) above, or alternatively it may pay the Employee in lieu of the requisite notice.

(c) If the Employee's employment is terminated due to redundancy, the Employee is not to receive any amount in addition to the payment in clause 15(a) and leave entitlements.

(d) The Employer may terminate the Employee's employment at any time and without notice if the Employee commits any act that would entitle an Employer to summarily dismiss the Employee. Such acts include, but are not limited to if the Employee:

(i) commits an act of serious or wilful misconduct;

(ii) commits an act of fraud or material misrepresentation against the Employer or Agency, or any supplier to, or customer of, the Employer or Agency;

(iii) misleads the Employer or Agency in a material way;

(iv) is convicted of a criminal offence which, in the reasonable opinion of the Employer, affects the Employee's employment;

(v) commits any serious or persistent breach of this agreement including intentional disobedience, dishonesty, serious or persistent breach of duty or serious or persistent neglect of duty;

(vi) engages in conduct (whether or not during the course of the Employee's duties) lending to bring the Employer, the Agency or the Government of New South Wales into disrepute;

(vii) fails to comply with any law or the Employer's or Agency's policy concerning harassment or discrimination; or

(viii) is absent from the business of the Employer or Agency without the Employer's approval for a period of 5 or more consecutive business days.

(e) The Employer may terminate the Employee's employment without notice or pay in lieu where the. Employee is unfit to continue to perform the duties of the Position in accordance with the policy applied by the Employer regarding medical discharge.

(f) The Employer may suspend the Employee's employment without pay where an allegation is made that an Employee has engaged in any act or omission that could amount to serious misconduct, fraud, gross negligence or dishonesty whilst a formal investigation is conducted, and until such time as a decision on the Employee's termination or continued employment is made by the Employer.”

91. In its terms cl 15 thus did not conflict with this statutory scheme, for example by precluding the exercise of a statutory discretion to dismiss: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 [1977] HCA 71 at 74-75 and Attorney General (NSW) v Quin (1990) 170 CLR 1 [1990] HCA 21 at 17-18.

92. The agreement did provide that to the extent of any conflict, it would prevail over s 68D. That this could be so agreed by the parties, is not apparent: Director-General of Education v Suttling (1987) 162 CLR 427; [1987] HCA 3 at [433]. But in any event, there was no conflict between the agreement that Mr Wood would be employed as a forensics manager and s 68D.

93. Even if s 68N did apply to Mr Wood, that would not have precluded his dismissal in accordance with the agreement. That section not only contemplated that Transport NSW could enter an employment agreement with a senior manager, but that if it did, on termination the senior manager would be “entitled to such compensation (if any) as may be provided in the contract of employment”: s 68N(2). That accorded with s 68J(3), which specified that the conditions of employment of senior managers “are the conditions set out in their written contract of employment”.

94. Section 68N(5) precluded any payment being made on termination, if a senior manager was dismissed as the result of proceedings brought under cl 30 of the Regulation, which the agreement did not deal with. The agreement could not override this statutory provision, but it did not, in any event, provide for payment on summary dismissal for misconduct, which could result from such disciplinary proceedings.

95. Despite this, it was finally not only the Secretary’s case that Mr Wood had been employed as a senior manager, but that the agreement was in part of no effect, because it was inconsistent with the provisions of s 68N.

96. As I have explained, this may not be accepted. The section did not apply to him and there was no inconsistency between what was agreed in cl15 of the agreement, the Act or the Regulation.

Was Mr Wood dismissed under reg 30 of the Transport Administration (Staff) Regulation 2012?

97. Transport NSW’s case was that Mr Wood had been dismissed under reg 30 of the Transport Administration (Staff) Regulation, despite the briefing notes prepared for the preliminary and final decisions, which referred to termination under the agreement and the written advice Mr Wood was given of the preliminary and final decisions to dismiss him, under cl 15(d) of the agreement.

98. On Transport NSW’s case the regulatory process is a mode of dismissal different to that arising under s 68N of the Transport Administration Act, which permits dismissal of a senior executive or senior manager at any time, for any and no stated reason and without notice. It contended that it was Mr Wood’s dismissal under the Regulation which did not entitle him to any compensation, because of s 68N(5), he having been dismissed in accordance with the Regulation.

99. To make this good it was also submitted that the Regulation operated according to its own terms; it was not necessary for any specific reference to be made to it in any documents; and the fact of the dismissal itself established that it had been followed. Further that:

“there doesn’t necessarily have to be a conscious understanding that the power which is being exercised by the Transport Secretary through the relevant delegate was pursuant to a particular statutory power. Obviously being a public agency, there’s a statutory power which underpins various matters concerning the employment including taking disciplinary action, and the termination of employment, the fact that it may not have been in any express reference in any of the material communicated to Mr Wood specifying that the delegate was acting pursuant to either reg 30 or by reference to s 68N, in my respectful submission is not to the point.”

100. Further, that to the extent that the agreement dealt with serious or wilful misconduct, it was inconsistent with the statutory scheme and of no effect.

101. I am satisfied that these submissions may not be accepted.

102. The provisions of reg 30 of the Regulation and cl 15 of the agreement are earlier set out. The Regulation itself precludes a decision maker proceeding, unconscious of the power being exercised, requiring as it does that the decision maker ensure that steps which the Regulation requires, are taken before a decision of the kind which the Regulation permits, is made.

103. Cl 15(d) specified circumstances in which it was agreed that Mr Wood could be dismissed for serious misconduct, but it did not seek to limit those circumstances, or to depart from the regulatory disciplinary process, which it did not deal with. On the evidence the decision maker acted on the right it was thereby agreed Transport NSW would have, to dismiss Mr Wood for serious and wilful misconduct in the circumstances specified.

104. In other circumstances, Transport NSW would have had to proceed under the Regulation. In the case of such dismissal of non-executive staff, the Act did not preclude payment being made in accordance with the employment contract, on termination of employment. In Mr Wood’s case, however, it was agreed that on summary dismissal for serious and wilful misconduct, neither payment nor notice was required.

105. But the evidence did not establish that Mr Wood was dismissed as the result of disciplinary proceedings brought under the Regulation.

106. The Regulations do not define “disciplinary proceedings”. The term itself connotes something different to the exercise of a contractual right of dismissal in circumstances which are agreed will involve serious or wilful misconduct. And, at the least, that a person who becomes the subject of such proceedings is given notice that they are to be pursued, when written notice of the behaviour which has given rise to the proceedings is given: reg 30(1).

107. Mr Wood was not given any such notice.

108. The approach pursued in 2020 was consistent with that earlier taken when Mr Wood was directed in August 2019 not to attend work, Transport NSW then exercising a contractual right under cl 4, while the first alleged misconduct was investigated. He was then advised that the investigation did not involve disciplinary proceedings. In September 2019, during that investigation, he was also advised that if the allegations were substantiated, Transport NSW might elect to take disciplinary proceedings against him.

109. Those allegations were never substantiated, and no disciplinary proceedings were ever taken. Instead, after his disclosure in May 2020 a preliminary decision was made to dismiss him under cl 15(d) of the agreement, for specified misconduct. There was no prior advice given that disciplinary proceedings would be pursued.

110. Neither the Regulation nor disciplinary proceedings were referred to in Transport NSW’s letter of 1 June 2020, when he was informed of the preliminary decision which had been made to dismiss him under cl 15(d) of the agreement. It was only after the final decision to dismiss him under clause 15(d) had been made, when that decision was communicated to him in the 2 June letter, its rights under the agreement already having been exercised, that Transport NSW mentioned disciplinary proceedings in the reasons given for the decision.

111. That is a process which the Regulation did not provide for.

112. That Mr Wood was dismissed as the result of the pursuit of disciplinary proceedings brought under the Regulation, rather than the exercise of the contractual right to dismiss in accordance with cl 15 of the agreement, as it advised Mr Wood, was thus not established by the evidence. On the evidence such proceedings were not initiated or pursued.

113. Again, Transport NSW’s decision to call no evidence about this issue from those who devised and implemented the steps which were pursued under cl 15 of the agreement, as Mr Wood was advised, to dismiss him, supports this conclusion.

114. Namely, that in dismissing Mr Wood as it did, Transport NSW did not pursue disciplinary proceedings under the Regulation against him.

Was the process pursued procedurally fair?

115. Whether the process pursued was procedurally fair was also in issue.

116. It is settled that a power to remove a person from public office, thereby prejudicing their rights and interests, is regulated by the rules of natural justice, unless excluded by plain words of necessary intent: Jarratt at [24]. It was not Transport NSW’s case that the Regulation contained such words, understandably, given that such proceedings may result in dismissal for cause.

117. Rather, it contended that the proceedings had been conducted in accordance with the limited requirements of procedural fairness for which the Regulation provided. They were submitted to be the requirement that written notification be given of the alleged behaviour giving rise to the proceedings. The result was that Mr Wood’s dismissal for serious and wilful misconduct was not invalid, he having been given that notice.

118. I am satisfied that this also cannot be accepted.

119. Such a draconian outcome is not envisaged by the Regulation, which expressly also provides for the right to make representations, even when a formal hearing is not required: reg 30(2). That right must be given practical effect. In Mr Wood’s case it was not.

120. On Mr Marley’s evidence in cross examination, the regulatory disciplinary process involved, in practice, the employee first being advised by letter of the allegations and being given 7 days to respond; a preliminary decision then being made; and the employee then being given the opportunity to show cause why the proposed penalty should not be imposed.

115. That accorded with the parts of Transport NSW’s Discipline Handling Procedure, which should have been applied to Mr Wood, given that he was not a senior manager.

116. Part 6 of that procedure, which specified that it does not apply to senior managers, envisages:

• an investigatory meeting of which the three days’ notice is given, at which the staff member may have a support person present, even when a written response is provided;

• that witnesses may be required to attend;

• the staff member is then given the opportunity to provide evidence and ask questions;

• a report is then produced and is considered, to ensure that the proceedings have followed the applicable procedure;

• a disciplinary review panel comprising the Director People, Senior Legal Counsel Employment and Regulatory and the Executive Director of the business area in which the staff member works, then reviewing the facts; considering whether procedural fairness has been applied; and making recommendations;

• the staff member having a right to respond within 14 days;

• this then being reviewed by the panel; and

• the Director People making the final decision, of which the staff member is then given notice.

123. This is not the process which was followed.

124. Mr Marley also said that for executive employees, the Discipline Handling Procedure and the Managing Conduct and Discipline Policy were used as a guide. But if there was no doubt about the evidence of the misconduct, then it might be put to the executive, who would then be asked to show cause why the employment should not be terminated.

125. In Mr Wood’s case information released to him under the Government Information (Public Access) Act 2009 (NSW) showed that the process followed was that a briefing note and preliminary decision to summarily dismiss him under cl 15(d) were prepared on 28 May, the same day Mr Marley forwarded on Mr Wood’s email. A letter was settled and sent to him on 1 June, giving him until 5.30pm the next day to respond. Mr Wood’s medical certificate was not accepted, Ms Harvey’s 2 June request for further time was rejected and her email, which drew attention to certain provisions of the Crimes Act, treated as his response.

126. The decision to dismiss Mr Wood summarily under cl 15(d) was then made and communicated that night, for the reasons given in the 2 June letter. They establish the breach of Mr Wood’s agreement, which in part was the result of the unfair procedure which was pursed. A process which did not accord with those which Mr Marley explained, or with the requirements of the Regulation or the applicable policy.

127. The process was procedurally unfair, depriving Mr Wood as it did of any effective opportunity to make representations about what had been put to him, as reg 30 of the Regulation also required, had it been disciplinary proceedings which were being pursued. There was no evidence of anything which would have precluded Transport NSW then giving him a reasonable time frame within which to respond to the very serious allegations which were being pursued.

128. Mr Wood had been directed not to attend work and so could not himself produce for consideration the records he had informed police existed, even though they were in his office, as Mr Marley knew. The birth of his child was imminent, as was the leave he was about to take, and the state of his ill health was also known.

129. That Mr Wood was thus not in a position himself to locate the records was relevant to the fairness of the process pursued, given that the question of whether he had engaged in serious or wilful misconduct depended on what they contained. Mr Wood’s communicated belief was that they were critical to the police investigation, but he had no effective opportunity to explain why. Mr Marley knew they were in Mr Wood’s office, but did not arrange for them to be produced, so that they could be considered. Nor was he asked to do so. Nor was Mr Wood.

130. Mr Wood had instructed Ms Harvey to seek further time to respond, providing his medical certificate. She also drew attention to provisions of the Crimes Act which she considered precluded a decision to dismiss summarily for misconduct. That opportunity was refused, the decision maker deciding to treat Ms Harvey’s email as Mr Wood’s response to the allegation, which was also procedurally unfair.

131. The result was that the decision to dismiss was made without Mr Wood having a real opportunity to make the representations he indicated he wished to have the opportunity to make. Despite this the decision was made without any consideration of the information within Transport NSW’s hands, critical as they were to the question of whether there had been any misconduct in Mr Wood’s disclosure to police.

132. This course was followed even though Mr Wood had already advised that he believed that information to be critical to the police investigation, that raising s 316 of the Crimes Act. Even though Ms Harvey had not made any reference to that section, she had raised ss 315 and 315A. The reasons for dismissal given in the 2 June letter establish that whether there was a basis for Mr Wood’s belief was not considered, as it should have been.

133. Despite this, Transport NSW submitted that it was “hard to believe” that additional time would have made a difference, with the result that in reality, Mr Wood had not been deprived of the opportunity to present any reason why his employment should not be terminated.

134. This may not be accepted, given the time frame and the irrational decision which was made.

135. The evidence establishes that Mr Wood had relevant matters to raise. But the result of the process pursued was that he was not given a real opportunity to present the response the Regulation entitled him to make to the allegations, if, contrary to my conclusion, it was the regulatory process which was being pursued. Had he had that opportunity, a different outcome is likely to have been arrived at, given the explanation Mr Wood had to advance.

136. The reasons for the departure from the process which the Regulation and the policy envisaged and the then perceived need for the great haste with which Mr Wood’s dismissal was pursued, were not explained. That the leave on which Mr Wood was about to embark would have precluded the pursuit of regulatory disciplinary proceedings, which required that he be given a real opportunity to respond, is not apparent.

137. The procedurally unfair course taken is simply unexplained. The failure to call evidence from those who could have shed light on this issue, also supports the conclusion that their evidence would not have assisted Transport NSW’s case that the process adopted accorded with the requirements of the Regulation and was procedurally fair.

Was Mr Wood precluded from making his disclosure to police?

138. Contrary to Transport NSW’s case, I am satisfied that Mr Wood was entitled to make his disclosure to police.

Mr Wood’s position description

139. The 2017 position description described Mr Wood’s “key accountabilities”. They included not only investigation, search, recovery, collection and preservation of evidence and forensic examination of computer systems, but also:

“Communication and Relationship Management – Establish and maintain effective working relationships with key stakeholders across the Cluster. Communicate effectively with external investigators, the public, team members, law enforcement and investigation agency personnel, employees of other government organisations, financial institutions and solicitors.”

140. Mr Wood’s “key challenges” included:

“Using appropriate independent judgement and reasoning to develop credible and accurate data-based conclusions. Accurately interpreting and applying laws, codes, regulations, awards, policies and procedures. Maintaining confidentiality and discretion on sensitive and confidential matters. Effectively coordinating, performing and completing multiple concurrent priorities and assignments in a timely manner.”

141. Mr Wood’s identified “key relationships” were with external agencies, including police. This established that the duties which he was required to perform included communicating with police about confidential and sensitive matters which might have to be disclosed.

142. Consistent with this position description, Mr Wood explained how he had in the past interacted with police, when Transport NSW had relevant information to communicate. He understood from his former manager that it had a memorandum of understanding with police, to which he referred in his email to Mr Marley, and about which he was cross examined. Mr Marley however was not aware of it and later investigation established that there was no such MOU, despite the reference made to it in the 2 June letter.

143. Mr Wood was also cross examined about how he interacted with police, which understandably depended on what he had to deal with and the involvement of others at Transport NSW in those dealings. He accepted that others would have been aware of them. But the evidence did not establish that in order to perform his duties, Mr Wood required prior approval to communicate with police about the sensitive and confidential matters he routinely dealt with.

144. Mr Marley gave evidence about his expectations about those he managed dealing with police. But the time that he worked with Mr Wood was very short, as he explained, and his evidence did not establish that such expectations were communicated to Mr Wood, let alone that they confined the performance of his contractual duties.

The contractual confidentiality provisions

145. Mr Wood’s agreement also included confidentiality provisions in cll 10 and 11, which had to be understood in the context of his written duties.

146. Clause 10 dealt generally with confidentiality and precluded disclosure of confidential information, other than in accordance with cl 11.

147. “Confidential information” was defined to mean not only information which Transport NSW designated to be confidential, but all “information disclosed by or on behalf of the Employer, to the Employee, or of which the Employee becomes aware, during the Employee’s employment”: cl 1.1(a).

148. This definition was wide enough to capture information Mr Wood obtained about Mr Pietrobon in his investigation and the existence and content of the records which he disclosed to police.

149. But cl 11(a) permitted disclosure of “confidential information”, to the extent required for the performance of Mr Wood’s duties, subject to any directions he was given, or policies or procedures.

150. Transport NSW’s Code of Conduct dealt with protection of confidential information and privacy, which made reference to the Privacy andPersonal Information Protection Act, to which I will return. It provided that “confidential information in any form must not be disclosed to any party without official approval or as otherwise permitted by legislation or court order”.

151. The Code thus also contemplated that confidential information could be disclosed in the performance of an employee’s duties, if officially approved. For example, in a contractual duty statement which Transport NSW devised, such as that which applied to Mr Wood. It also contemplated disclosure required by law.

152. In Mr Wood’s case such disclosure of confidential information was expressly contemplated by his position description, where his accountabilities specifically included his communication with law enforcement about such matters. His unchallenged evidence about how he had in the past communicated such information to police, accorded with this aspect of his duties, as well as with his express contractual duty always to act in the best interests of the Government of NSW, which such disclosure might require.

153. There can be no question that prompt disclosure to police that Transport NSW had in its possession records relevant to the murder prosecution, was not only in its own interests, but also those of the Government. After all, it has the onerous responsibility of ensuring the investigation and prosecution of such serious crimes, for the good of the society which it governs.

154. Another identified key challenge for Mr Wood was maintaining confidentiality and discretion on sensitive matters. That would have regulated how Mr Wood conducted his communications with police. A disclosure to Crime Stoppers, as police had advised him to pursue, accorded with this obligation.

155. In the face of these contractual requirements, it is difficult to see how Mr Wood’s communication of the information he provided to police, that Transport NSW had in its possession records relevant to the murder prosecution being pursued against Mr Pietrobon, could have been considered to have been inconsistent with the contemplated performance of his duties.

156. Still Transport NSW contended that because in August 2019 Mr Wood had been directed not to perform any work, his disclosure involved such a serious breach of his contract, that it permitted his summary dismissal for serious and wilful misconduct. This requires consideration of the balance of cl 11, which dealt with his confidentiality obligations.

157. Clause 11(b) of the agreement also permitted disclosure of confidential information “to the extent required by Law”, but subject to first complying with cl 11(b). “Law” was defined to include “any statutory instrument, any order of a court, tribunal, governmental or regulatory body”. It was accepted that this encompassed any duty of disclosure which Mr Wood may have had under s 316 of the Crimes Act, which was also in issue and to which I will return.

158. The breadth of cl 11, on Transport NSW’s approach, had the result that Mr Wood’s disclosure to police of any information of which he had become aware, during the course of his employment, without prior notice involved a breach of his contract.

159. What the contract required before Mr Wood approached police was that he first notify Transport NSW of his intention and:

“(ii) if possible, give the Employer a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of the Confidential Information; and

(iii) notify the third party that the information is the Confidential Information of the Employer, Agency, or a member of the Employer or Agency.”

160. By their terms these contractual provisions did not empower Transport NSW to direct Mr Wood not to make the disclosure. To the contrary, they clearly contemplated the disclosure being made, unless it took steps to restrain disclosure. That there were any steps which could have been taken to restrain Mr Wood’s disclosure is not apparent, let alone any reason for Transport NSW seeking to take them. So much was accepted in these proceedings.

161. Steps which involved any breach of the provisions of either ss 315 or 315A of the Crimes Act, could certainly not lawfully be taken.

162. Given the records in question, that Transport NSW would have taken steps to prevent Mr Wood informing police that it had in its possession material relevant to the murder charge if he had given it prior notice of his intended disclosure is also inconceivable, given the offence dealt with in s 316 of the Crimes Act.

163. That Transport NSW, having learned of Mr Wood’s disclosure, did not take immediate steps to locate those records and provide them to police, as it undoubtedly should have, also does not establish any basis for the conclusion that it would have sought to prevent disclosure, had he provided a notification of his intention to disclose beforehand. Consistent with this, in 2021 they were finally provided, after their production had to be pursued by police.

164. It follows that if Mr Wood’s notification to police had involved any breach of his contract, it was a breach of no consequence to Transport NSW. Disturbingly, on the evidence there is reason to think that without Mr Wood’s notification, Transport NSW would not have provided those records to police. That his disclosure was thus in the public interest, is unarguable and helps explain why the offences with which ss 315, 315A and 316 are required.

Did Mr Wood have a duty of disclosure at law?

165. In issue was also whether, when he made his disclosure to police, Mr Wood had any legal obligation to do so.

166. I am satisfied that he did.

167. At common law the existence of an obligation to provide information about criminal offences to authorities has long been recognised as explained in A v Hayden (No 2) (1984) 156 CLR 532; [1984] HCA 67. There it was said at 555 that:

“the effective enforcement of the criminal law and the administration of justice, which are central elements in a well ordered democratic society, depend for their efficacy on the unrestricted freedom of each and every citizen to assist and co-operate with the authorities in the investigation and prosecution of criminal offences. There is therefore a powerful public interest in promoting and preserving the citizen's freedom to assist and co-operate with the authorities in the investigation and prosecution of crime.”

Section 316 of the Crimes Act

168. There is no issue that in 1990 the common law offence of misprision of felony, was abolished with the enactment of s 316 of the Crimes Act. That did not abolish the obligation to assist police, but rather reformed the circumstances in which an offence will be committed, when information is not disclosed. Section 316(1) provides:

316 Concealing serious indictable offence

(1) An adult—

(a) who knows or believes that a serious indictable offence has been committed by another person, and

(b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority,

is guilty of an offence.

169. Section 316 is thus concerned with both knowledge and belief.

170. The word “believes” is not defined. As I explained in Wilson v Department of Public Prosecutions (NSW) [2016] NSWSC 1458; (2016) 262 A Crim R 106, which was not challenged on appeal, unlike other statutory provisions, it is not a reasonable belief which is required in the case of this offence. In its ordinary meaning, belief “is a state of mind which can be reached as the result of a mix of knowledge which an offender has come to possess, as well as suspicions and opinions which he or she has come to hold and conclusions which he or she has reached”: at [34].

171. In Wilson v Director of Public Prosecutions (NSW) (2017) 94 NSWLR 450; [2017] NSWCA 128 it was observed that “By punishing the withholding of information, believed to be material in securing a conviction, by someone who knows or believes such an offence has been committed, the provision operates as a deterrent to people who might otherwise withhold information from the police. In doing so it furthers the more general objective that members of the public report information and beliefs about serious offences to the police so as to assist in the apprehension, prosecution and conviction of offenders.” at [45].

172. The pre-condition for the application of s 316(1) is either knowledge or belief that a person “has committed a serious indictable offence”. That is “a state of affairs which has arisen and is continuing in the sense that it has not been dealt with by the offender being prosecuted to conviction or acquittal.” Wilson [2017] at [41].

173. Section 316 imposes criminal liability by reference to “a non-disclosure of information without reasonable excuse that occurs in circumstances in which the person has the requisite knowledge or belief as to the commission of the predicate offence and as to the possession of material information in relation to it”: Wilson [2017] at [42].

174. Section 316(4) provides for exceptions in respect of prescribed occupations. Regulation 4 of the Crimes Regulation 2015 (NSW) specify them, but they did not include Mr Wood’s occupation.

323. Section 11 also regulates the circumstances in which such an award may be made. Section 12(1) specifies that awards are binding on employers and employees to which they relate. That is a status which results from entry into a contract of employment.

324. It follows that if an award is made containing such conditions of employment which are more favourable than those which the parties have agreed in the contract of employment, the award will prevail over those contractual terms.

325. In an arbitration the Commission may also make dispute orders under s 138. Section 137 specifies the kinds of dispute orders which may be made to be:

(a) The Commission may order a person to cease or refrain from taking industrial action.

(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.

(c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.

(d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute.

330. It follows that s 68O(1) and (5) together preclude the Industrial Relations Commission from dealing with a dispute or making an award or orders about matters there specified, in relation to Transport Service senior executives and senior managers, in the way such industrial matters may otherwise be dealt with. Thus, neither awards nor orders may be made in relation to the matters specified in s 68O(5), whether the Commission is given notice of a dispute of such a matter or acting of its own initiative. Such matters cannot become the subject of proceedings before the Industrial Relations Commission, or of any order or award which it might otherwise make.

331. On its face, what neither s 68O(1) nor the jurisdiction generally given the Industrial Relations Commission in relation to industrial matters are concerned with, however, are the terms on which parties contract with each other; the breach or enforcement of such contracts, or with the provisions of legislation such as the Transport Administration Act or of the Regulations which regulate such contracts, or their breach or enforcement.

332. The rights of parties to an employment contract to pursue such matters before a court are thus unaffected by s 68O.

333. It is convenient next to consider s 68O(4), which provides:

No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996.

334. On its face s 68O(4) does not deal generally with such proceedings in the case of senior executives or senior managers. By its plain words s 68O(4) is also concerned only with such proceedings in relation to matters declared by the section “not to be an industrial matter for the purposes of the Industrial Relations Act”. That is what ss 68O(1) and (5) deal with.

335. This is consistent with the provisions made in s 68O(2), which provides:

Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of a Transport Service senior executive or senior manager.

336. Section 68O(2) thus specifies the other parts of the Industrial Relations Act which do not apply to or in respect of the employment of a senior executive or senior manager. Parts 6 and 7 of Ch 2 of that Act deal respectively with unfair dismissal and public sector disciplinary appeals, which also fall within the Industrial Relations Commission’s jurisdiction.

337. Part 9 of the Industrial Relations Act deals with unfair contracts, as defined in s 105, which fall within this Court’s jurisdiction: ss 106 and 107. Had the Parliament been concerned by s 68O to also preclude the exercise of the Court’s general powers in respect of the contracts of employment of senior executives or senior managers, it could easily have done so. But it did not.

338. There was no doubt good reason for this. Had it done so, the Secretary would also be constrained, for example, from seeking to restrain any breach of such a contract. That would include a breach of the confidentiality provisions of an agreement of a senior executive or senior manager, such as cl 11 of Mr Wood’s contract.

339. Section 68O(2) also does not preclude senior executive or senior managers claiming relief of the kind provided for by other parts of the Industrial Relations Act.

340. Thus, senior executives and senior managers are not precluded by s 68O from bringing proceedings, for example, under Pt 2 of Ch 7 of the Industrial Relations Act. There ss 365, 366 and 367 empower this Court to order payment of amounts unpaid under an industrial instrument, a contract of employment, or remuneration not fixed by an industrial instrument: s 355B(h) of Ch 6A Industrial proceedings before Supreme Court. That includes what is payable to an employee under a contract of employment on termination.

341. The Court’s jurisdiction under s 355B of the Industrial Relations Act also includes proceedings for offences against any “industrial legislation”, specified in s 355A to include, for example, the Annual Holidays Act 1944 (NSW) and the Long Service Leave Act 1955 (NSW): s 355B(a). Under s 355B(k) the Court is also given jurisdiction over “any other industrial proceedings”, defined in s 355A to mean “proceedings before the Supreme Court for the exercise of its functions under any industrial legislation”.

342. Consistently with this, s 68O(3) provides that an “industrial instrument” may be “adopted by reference in the conditions of employment of senior executives or senior managers. The term “industrial instrument” is defined in s 8 of the Industrial Relations Act to mean “an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement.”

343. Such instruments commonly deal with notice and payments to be made on termination of employment, as do contracts of employment which do not adopt the terms of any instrument, as s 68N(2) of the Transport Administration Act expressly provides for.

344. What the Commission and this Court are precluded by s 68O from dealing with, includes claims or disputes about matters such as the notice or payment which senior executives and senior managers should fairly be given on termination. The legislative scheme contemplates that the parties are free to contract with each other about such matters, unimpeded by any award or order which the Commission or the Court might otherwise make.

345. Claims about the fairness or merit of a decision to terminate may likewise not be pursued before the Commission, or in this Court.

346. What s 68O(4) thus does not preclude is this Court dealing with proceedings which concern the proper construction of the employment contract of a senior executive or senior manager; whether the contract has been breached; whether the contract should be enforced; and on what terms and whether applicable statutory or regulatory rights or requirements have been breached. That includes disputes over contractual payments which are triggered by the termination of the employment.

347. But what is not precluded is proceedings which concern breaches of the Transport Administration Act or of the Regulation, they also not being matters which fall within the definition of industrial matters in the Industrial Relations Act and are not dealt with in s 68O(1) or (5).

348. As explained in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2; a provision such as s 68O, which purports to deprive courts of jurisdiction of their power to review the acts of public officials, in order to enforce compliance with the law, or which limit, or purport to limit, such jurisdiction, is not easily construed as protecting “manifest jurisdictional errors or ultra vires acts": at [11]. I am satisfied that s 68O was not intended to have such a result.

349. Section 355C of the Industrial Relations Act also thus has work to do in the context of senior executives and senior managers. It provides:

355C Declaratory jurisdiction

(1) The Supreme Court may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Supreme Court may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Supreme Court are not open to objection on the ground that a declaration of right only is sought.

(3) This section does not limit any jurisdiction or power that the Supreme Court has apart from this section to make binding declarations of right.

350. Section 75 of the Supreme Court Act 1970 (NSW) is also relevant. It provides:

75   Declaratory relief

No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.

351. In the result the construction of s 68O for which the Secretary contended, could not be accepted.

352. Like the privative clause of the legislative scheme which arose for consideration in Osmond v Public Service Board of NSW [1984] 3 NSWLR 447, s 65A of the Public Service Act 1979 (NSW), what is precluded by s 68O is limited. Consistent with the protection of the rule of law and ensuring that public powers are exercised in accordance with the law there discussed, s 68O must also be read strictly, paying close attention to the description of the acts which it protects from review by this Court.

353. They do not include those which I have identified.

354. It follows that if Mr Wood was a senior manager, this Court would have power to deal with his claims that Transport NSW breached his agreement when it dismissed him under cl 15(d), he not having engaged in any serious or wilful misconduct for which it was thereby empowered to dismiss him summarily, without notice or payment in lieu, as it purported to do in exercise of that right.

355. The Court would also have power to determine whether, if the decision to dismiss him had been made as the result of disciplinary proceedings brought under cl 30 of the Regulation, it had adhered to the requirements the Regulation imposed, intended as they were to ensure that he was given the procedural fairness it required him to receive.

The Judicial Review Claims

356. These alternative claims can be shortly dealt with, depending as they also do on whether Mr Wood was employed as a senior manager and dismissed in accordance with the regulatory dismissal procedure.

357. A decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all" and invalid: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11at [51]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24]. It is not a decision which is merely being attacked on its merits, which turns on a mere disagreement with factual findings, which will not necessarily establish unreasonableness: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

358. Transport NSW’s case that not only was the decision to dismiss summarily for wilful and serious misconduct “lucid, coherent and intelligible”, it set out the reasons upon which it was based, addressed Ms Harvey’s submissions and was correct as a matter of merit, even if that did arise for determination, cannot be accepted.

359. As I have explained, the Regulation required the observance of procedural fairness when disciplinary proceedings were pursued. What must be ensured is practical fairness: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. That was not what Mr Wood received.

360. The result of the course pursued, like in Jarratt, was a failure to comply with a condition of a magnitude which resulted in taking the decision to dismiss Mr Wood summarily for serious and wilful misconduct, outside the jurisdiction conferred on Transport NSW by the Regulation.

361. The evidence also establishes that the process pursued deprived Mr Wood of the real possibility of a successful outcome: Hossain at [30]. Had he been given the opportunity to make representations which he was denied, the only lawful result could have been the conclusion that his disclosure to police could not provide a lawful basis for his summary dismissal. That result was not arrived at, a regulatory precondition to dismissal as the result of disciplinary proceedings, the giving of the procedural fairness I have discussed, not having been given.

362. The evidence also establishes that the decision to dismiss was irrational and legally unreasonable, founded as it was on considerable misunderstanding. Not only that the records whose existence had been disclosed by Mr Wood had already been provided to police; but of the law which required that Mr Wood give the assistance he provided to police, in the circumstances in which he found himself and what he believed; and of the offences created by ss 315, 315A and 316 of the Crimes Act.

363. This all required not only the disclosure which Mr Wood made to police, but that he not be injured by Transport NSW’s summary dismissal, for that disclosure.

364. This is not a case where unreasonableness must be objectively drawn, but where the evidence establishes that the decision to summarily dismiss Mr Wood was “in effect an irrational, if not bizarre, decision” ”: In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68]. Transport NSW also sought to draw a distinction between information which he believed to be critical to a murder investigation, which had come into Mr Wood’s possession as an employee, rather than as “a natural person”.

365. The law draws no such distinction.

366. Not only did the decision go beyond the “decisional freedom’’ where reasonable minds may differ, discussed in Li at [28]. The evidence establishes that no reasonable decision maker, taking into account the relevant matters, could have arrived at the decision that Mr Wood should be summarily dismissed for the assistance he had provided police, because that involved serious and wilful misconduct. That decision lacked evident and intelligible justification, despite the explanation given: Li at [76].

Damages

367. It is long settled that breach of an agreement such as this entitled Mr Wood to damages for the actual loss he sustained, including compensation for any wages of which he was deprived by reason of his dismissal: Lucy v The Commonwealth (1923) 33 CLR 229; [1923] HCA 32; per Starke J at 253 and Jarratt at [58]-[59].

368. Mr Wood is thus entitled to damages which flowed from Transport NSW’s breach of the agreement, by summarily dismissing him in circumstances which provided no basis for the exercise of that contractual right, thereby repudiating what had been so agreed. A repudiation which Mr Wood did not accept.

The abolition of Mr Wood’s position

369. The result of all these conclusions would have been that, at least until his position was recently abolished, Mr Wood remained in his position: Jarratt. This was only revealed belatedly by Mr Marley in final cross examination on the third day of the hearing. He did not disclose this when earlier cross examined, shortly before the position was abolished in July, as I consider he should have, given the question which he was asked. In the circumstances his answer was not as frank as it should have been. Despite this, Transport NSW did not disclose the restructure to Mr Wood, so that proper account could be taken of this development, in these proceedings.

370. It is thus convenient to refer, at this point, to what was described long ago in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69 at 342, by Griffith CJ to be “the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”. That is a concept which continues to have a role to play, today.

371. It is also a standard to which statutory corporations like Transport NSW are expected to adhere: Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 per Mahoney JA at [558]. It must also be adhered to in litigation, where it has become to be known as the “model litigant” obligation: Scott v Handley [1999] FCA 404 at [43]; 58 ALD 373 at 43 per Spender, Finn and Weinberg JJ.

372. In Priest v State of New South Wales [2007] NSWSC 41 Johnson J considered that this obligation was enshrined in s 56 of the Civil Procedure Act 2005 (NSW), which specifies the overriding purpose of that Act and of rules of court, in civil proceedings such as this to be “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: at [34]. That precludes the conduct of litigation by ambush or surprise.

373. It is difficult to see that these obligations have been adhered to by Transport NSW. But still, I am satisfied that the restructure precludes a declaration that Mr Wood still occupies his former position, it no longer existing.

Calculation of damages

374. The evidence does not, however, establish that but for this dismissal, Mr Wood would have been dismissed for unsatisfactory performance, as Transport NSW also submitted. Under cl 15 that would have required the giving of only of 13 weeks’ notice.

375. Mr Marley gave no such evidence, understandably, given the long ongoing investigation into other alleged misconduct, in which Mr Wood had not even been interviewed and the foreshadowed disciplinary proceedings having not been initiated. Mr Wood’s explanation of his defence of that allegation of misconduct was not challenged. The evidence does not establish that if this investigation had been pursued, it would have resulted in the foreshadowed disciplinary proceedings, let alone his dismissal.

376. What the evidence did establish was that if Mr Wood had received a real opportunity to respond to the allegations which resulted in his summary dismissal, so that he could advance the matters which he relied on in these proceedings, their consideration could not have resulted in a conclusion that Mr Wood’s performance, when he made his police disclosure, was unsatisfactory. That is precluded by Transport NSW’s own case, that he was not then performing any work.

377. The Court is not obliged to assess damages by reference to “an improbable factual hypothesis”: Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 at [117].

378. The applicable principle is “that the mere existence of a contractual right in a party to terminate does not operate automatically to restrict the damages that can be awarded. …The court must have regard to the facts and evaluate the possible exercise of the right in all the relevant circumstances of the case.”: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 [1991] HCA 54 at 93.

379. The evidence does not permit the conclusion that Mr Wood’s employment would have, in any event, have been terminated.

380. That Mr Wood sought to mitigate his damage by seeking other employment was established by documents in evidence, about which he was not cross examined, so that Brown v Dunn (1894) 6 R 67 inferences arise to be taken into account. On the evidence he has applied for other work, albeit unsuccessfully.

381. In issue was also whether evidence should be received about workers compensation claims which Mr Wood made after his dismissal, given their claimed relevance to damages.

382. They were not claims about which Mr Wood was cross examined, but I am still satisfied that they are relevant, evidencing as they do the making of the claim for reasons he gave, his injury resulting from the response to his police disclosure, the termination of his employment for serious and wilful misconduct. The workers compensation payments which he has received as a result were not in issue.

374. They are payments to which it was finally submitted that s 151Z(1)(b) of the Workers Compensation Act 1987 (NSW) apply. But it is concerned with injury for which compensation is payable which was caused “under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury”. That is not this case.

375. Neither these records nor any other evidence established that Mr Wood would not have been able to continue performing his work, had he not been dismissed. That was also not put to him in cross examination.

376. Mr Wood’s claim was pressed on the basis that but for the termination of his employment, he would have continued in his position until January 2023, that reflecting records in evidence about employment generally in the public sector. I am not satisfied that damages can be awarded on the basis of such an assumption.

377. What is certain is that Mr Wood’s position was abolished as the result of a restructure, in July 2021. That was the position in which he was employed. He was not employed in the general position of “senior manager”, despite Mr Marley’s view that his position was not a specialist one. Given Mr Wood’s contractual duties and qualifications, this evidence was difficult to accept.

378. In my view, damages must thus have regard to the abolition of the position which Mr Wood was employed to perform.

379. The result is that his damages must reflect payment of his salary up until the date of the abolition of his position; as well as the payment of the 38 week’s pay he was entitled to receive under the agreement, in the event of redundancy, of which he was not given prior notice; together with statutory entitlements which his ongoing employment would have attracted in relation to long service leave, annual leave and superannuation. Interest is also payable.

380. There was no evidence that Mr Wood was entitled to any other payment in respect of redundancy. Had there been, that would also have been taken into account in arriving at damages.

381. I am satisfied that the workers compensation payments which Mr Wood received must be deducted, however, reflecting as they do the impact which the dismissal had on his health. He is not entitled to both damages for salary which he would have been paid, had he not been dismissed as he was, as well as payments which he received because he could not work, because of the injury he suffered as the result of the dismissal.

Orders

391. For the reasons given judgment will thus be entered for Mr Wood.

392. The parties should confer on the final orders to be made, reflecting the conclusions which I have reached, which should be filed within 7 days.

393. Mr Wood presently wishes to be heard on costs. They should also be discussed.

394. If they remain in dispute, Mr Wood should file a short outline as to costs within 7 days. In that event Transport NSW should provide a short reply within 7 days and the parties should also approach my Associate, if they wish to be heard on those submissions.

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Amendments

08 October 2021 - Correction of 316(c) to 316(1)(c) in Catchwords; 316(3) to 316(1) para 176; 316(3)(c) to 316(1)(c) para 234; decisionmaker to decision maker paras 102, 103, 292, 366; pf to of para 163

Decision last updated: 08 October 2021