Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales (No 2)

[2021] NSWSC 1461

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales (No 2) [2021] NSWSC 1461

Hearing dates:

22 June, 19 July, 20 September 2021

Date of orders:

12 November 2021

Decision date:

12 November 2021

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1) Judgment for the plaintiff.

(2) The defendants pay to the plaintiff damages in the sum of $306,409.22, being $440,798.78 less a deduction of $134,389.56 comprising the total of all weekly payments (capped) of workers compensation paid to the plaintiff from 2 June 2020 to 26 July 2021 for either total or partial periods of incapacity.

(3) The defendants pay to the plaintiff interest in the sum of $8,231.49.

(4) The defendants pay the costs of the plaintiff:

(a) to 7 June 2021 on a standard basis as agreed or assessed; and

(b) from 8 June 2021 on an indemnity basis as agreed or assessed.

(5) The Court notes:

(a) The Plaintiff has not made a claim in the proceedings for personal injury damages in these proceedings pursuant to part V of the Workers Compensation Act 1987 (NSW) or under the general law and all rights are retained in this regard.

Catchwords:

JUDGMENTS AND ORDERS — In favour of plaintiff 

JUDGMENTS AND ORDERS — Matter of public interest — Referral to the Minister and Commissioner of Police

Legislation Cited:

Workers Compensation Act 1987 (NSW)

Cases Cited:

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

Category:

Costs

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. Judgment was entered for Mr Wood for reasons given in Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248. There explained were the circumstances in which Transport NSW summarily dismissed Mr Wood without notice or any payment in lieu under cl 15(d) of his employment contract, after he assisted police during a murder prosecution.

2. The parties were directed to confer on final orders but were initially unable to agree. After competing orders and written submissions were filed, an agreement was reached. In those circumstances I will now make orders in the terms agreed.

Referral

3. The evidence which I discussed in the principal judgment was disturbing, given that all of us have obligations I there discussed to assist police in upholding the law, especially in the prosecution of offences of the utmost seriousness, such as murder.

4. The evidence revealed that Transport NSW had failed to provide police with computer records which it held, which were relevant to the murder prosecution, when approached during the investigation. Later, after the murder charge had been laid, Mr Wood disclosed their existence to police and advised Transport NSW of his belief, knowing what they contained, that they were critical to the prosecution.

5. The computer records had come to light in investigations Mr Wood had conducted before Transport NSW dismissed the employee later charged with the murder. Not having earlier provided those records to police, when Transport NSW became aware of Mr Wood’s disclosure of their existence, it summarily dismissed him for serious and wilful misconduct.

6. But even then it did not produce the records to police.

7. Transport NSW also advised police that they should not discuss the information Mr Wood had disclosed further with him. That advice was not adhered to. Mr Wood was interviewed, with the result that they were pursued by police and eventually provided. It thus appears that without the information Mr Wood provided, computer records relevant to the murder prosecution would not have been produced.

8. On its case Transport NSW acted on views held about the privacy and confidentiality of the information Mr Wood disclosed; whether such information should be disclosed to police by an employee such as Mr Wood; people’s common law duties to assist police in the pursuit and prosecution of serious crimes and the offences which may be committed if they fail to do so; how contracts of employment may be crafted in order to deal with disclosures to police; and that criminal offences will not be committed when an employee who has assisted police in the way which Mr Wood did, is summarily dismissed for serious and wilful misconduct for providing that assistance.

9. After reflection I have concluded that the evidence and the case Transport NSW advanced about these views, in these very unusual proceedings, raised matters of such considerable public interest, that I have directed the Registrar to provide copies of my judgments to the relevant Minister and the Commissioner of Police.

Orders

10. For the reasons given in the principal judgment, I order:

1. Judgment for the plaintiff.

2. The defendants pay to the plaintiff damages in the sum of $306,409.22, being $440,798.78 less a deduction of $134,389.56 comprising the total of all weekly payments (capped) of workers compensation paid to the plaintiff from 2 June 2020 to 26 July 2021 for either total or partial periods of incapacity.

3. The defendants pay to the plaintiff interest in the sum of $8,231.49.

4. The defendants pay the costs of the plaintiff:

1. to 7 June 2021 on a standard basis as agreed or assessed; and

2. from 8 June 2021 on an indemnity basis as agreed or assessed.

5. The Court notes:

1. The Plaintiff has not made a claim in the proceedings for personal injury damages in these proceedings pursuant to part V of the Workers Compensation Act 1987 (NSW) or under the general law and all rights are retained in this regard.

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Amendments

12 November 2021 - (No 2) replaced (2) in Title

Decision last updated: 12 November 2021