Wyndham Lodge Nursing Home Inc v Reader

[1996] IRCA 131

DECISION NO:  131/96

INDUSTRIAL LAW - APPEAL from single judge - NATURE OF REVIEW of Judicial Registrar's exercise of power - use of the review of evidence taken before Judicial Registrar - consequences in relation to issues of credit - ONUS of proof on review -  what constitutes an OPPORTUNITY to answer ALLEGATIONS - REMEDY.

Industrial Relations Act 1988, ss. 170DB, 170DC, 170DE, 170EA and 377

Andrews v Uniting Church in Australia Frontier Services trading as Old Timers (1995) 60 IR 437;
Association of Professional Engineers, Scientists & Managers Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418;
Brandy v Human Rights & Equal Opportunities Commission (1995) 127 ALR 1;
Cox v South Australian Meat Corporation (1995) 60 IR 243;
Gibson v Bosmac Pty Ltd (1995) 130 ALR 245;
Harris v Caladine (1991) 172 CLR 84;
Keating v Teico Investments Pty Ltd (1994) 57 IR 339;
Mace v Murray (1955) 92 CLR 370;
Macs Foods Centre Pty Ltd v McLeish (Spender J, 12 July 1995, unreported)

WYNDHAM LODGE NURSING HOME INC v CECILE ANN READER
No. VI 95/5014

CORAM:            WILCOX CJ, RYAN and NORTH JJ
PLACE:             MELBOURNE

DATE:                15 APRIL 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY           No VI 95/5014

BETWEEN:WYNDHAM LODGE NURSING HOME INC

Appellant

AND: CECILE ANN READER

Respondent

CORAM:       WILCOX CJ, RYAN and NORTH JJ
PLACE:                  MELBOURNE
DATE:           15 APRIL 1996

THE COURT ORDERS THAT:

1.The appeal be allowed;

2.Orders 2 to 5 made by Marshall  J on 8 September 1995 and the order made by Marshall J on 12 October 1995 be set aside;

3.It be declared that the termination by Wyndham Lodge Nursing Home Inc of the employment of Cecile Ann Reader contravened s.170DC of the Industrial Relations Act 1988.

4.The following issues in the review of the exercise of power by Judicial Registrar Tomlinson on 13 January 1995 be remitted for hearing by a judge other than the trial judge, namely:

(a)whether Cecile Ann Reader assaulted Mrs Bullard on 12 June 1994; and

(b)the appropriate remedy for the contravention of s.170DC and s.170DE (if this be established) of the Industrial Relations Act 1988.

NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court rules.

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  No VI 95/5014

BETWEEN:WYNDHAM LODGE NURSING HOME INC

Appellant

AND:CECILE ANN READER

Respondent

CORAM:       WILCOX CJ, RYAN and NORTH JJ
PLACE:                  MELBOURNE
DATE:           15 APRIL 1996  

REASONS FOR JUDGMENT

THE COURT: On 13 June 1994, Cecile Ann Reader (“the respondent”) was summarily dismissed from her employment as a registered nurse at the geriatric nursing home operated by Wyndham Lodge Nursing Home Inc (“the appellant”) on the ground that she had assaulted a resident of the nursing home, Mrs Vera Bullard, on the previous day. The respondent filed an application under s.170EA of the Industrial Relations Act 1988 (“the Act”) which was heard by a Judicial Registrar. She found that the respondent had assaulted Mrs Bullard, that this constituted a valid reason for the termination of her employment (s.170DE(1)) and, in the circumstances, the termination would not be harsh, unjust or unreasonable (s.170DE(2)). The Judicial Registrar also found that the appellant had complied with the requirements of s.170DC by giving the respondent an opportunity to defend herself against the allegation of assault against Mrs Bullard. Consequently, on 13 January 1995 the Judicial Registrar dismissed the application.

The respondent applied under s.377(1) of the Act for review of the Judicial Registrar's exercise of power. The application for review came before Marshall J. At the invitation of the parties, his Honour determined the review on the evidence before the Judicial Registrar, comprising a transcript of the oral evidence of the witnesses and the exhibits tendered before the Judicial Registrar. The Judge held that the appellant had not proved that the respondent assaulted Mrs Bullard and, consequently, had not demonstrated a valid reason for the termination under s.170DE(1). He also held that, in breach of the requirements of s.170DC, the respondent had not been given an opportunity to defend herself against the allegation of assault on Mrs Bullard. On 8 September 1995, his Honour made five orders. They included:

1. The Order of the Court constituted by Judicial Registrar Tomlinson made on 13 January 1995 is set aside.

2.It is declared that the termination of the employment of the applicant contravened ss 170DC and DE of the Act.

1. The respondent shall appoint Cecile Reader to the position in which she was employed immediately before the termination.

1. The employment of Cecile Reader is deemed to have been continued for all purposes from 13 June 1994 to the date the final order is made in this matter.”

The fifth order concerned the calculation of loss of wages between the date of termination and the date of reinstatement.  It led to the making of a further order, on 12 October 1995, as follows:

1. That the Respondent pay the Applicant pursuant to Order 5 of Marshall J dated 8 September 1995 $24,152.40 gross less PAYE taxation of $3,871.31 being $20,281.09 nett.”

By a notice of appeal filed on 28 September 1995, the appellant appealed against the whole of his Honour’s judgment.

The appeal falls into two parts - one relates to the establishment of the assault as a valid reason for termination under s.170DE(1), and the other relates to compliance with s.170DC. We will deal with each part in turn, but, before doing so, we should say something about the principles that apply to the review by a Judge of a Judicial Registrar's exercise of power. This is the first occasion on which these principles have been canvassed before a Full Court.

1.REVIEW PRINCIPLES

Section 377(1) of the Industrial Relations Act enables a party to proceedings to apply to the Court "to review a Judicial Registrar's exercise in the proceedings of a power delegated under section 376".  By s.377(2), on such an application or of its own motion, "the Court may review a Judicial Registrar's exercise of a power so delegated.  The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised".       

In Keating v Teico Investments Pty Ltd (1994) 57 IR 339, Northrop J noted the similarity between s.377(1) and (2) of the Industrial Relations Act and s.31A(6) and (7) of the Bankruptcy Act 1966.  At 340 he said:

“Authorities have made it clear that a review under s.31A(6) of the Bankruptcy Act is by way of a re-hearing de novo on material put to the Court at that hearing.  This is made clear by a reference to one of a number of cases on this issue: see Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374.

My tentative view is that a similar approach should be adopted in relation to reviews under s.377 of the Industrial Relations Act ....

.... On review, the Court is required to look into the whole matter as part of its original jurisdiction.”

In Association of Professional Engineers, Scientists & Managers Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418, Moore J was concerned with the appropriate directions to be made in a review of the exercise of power by a Judicial Registrar on an application under s.170EA of the Act. The Council, the applicant for the review, wanted to call witnesses to give oral evidence and be cross-examined. The Union, the respondent to the review, submitted that the review should be undertaken by reference to the evidence that had been led before the Judicial Registrar. Any further evidence that the Council wished to lead could only be led by leave of the Court. At 423-425, his Honour analysed the decisions of the High Court in Harris v Caladine (1991) 172 CLR 84 and Brandy v Human Rights & Equal Opportunities Commission (1995) 183 CLR 245. He concluded from the analysis, at 425-6:

“However, it is plain from Harris and Brandy that the maintenance of the integrity of the separation of powers arising from the application of the provisions of Ch III of the Constitution requires s.377 to be construed so as to treat the review as a hearing de novo. In such a hearing the parties are not bound to or limited by the evidence before the judicial registrar and may adduce evidence that was not put to the judicial registrar because either a party neglected to call it or it concerns events occurring after the hearing. The judge must decide the matter by reference to evidence led in the review and independently of the decision of the judicial registrar.

However, efficient case management by the court, and the factors I earlier identified as suggesting parliament may not have intended that a review be conducted as if the hearing before the judicial registrar had never occurred, justify the exercise to their fullest extent the powers the court has to ensure, while affording procedural fairness, that evidence given before the judicial registrar is, wherever possible, used when undertaking a review, at least in cases concerning alleged unlawful termination.  There will be situations where it will be necessary for some or all of the oral evidence given before the judicial registrar, both in chief and cross-examination, to be given again.  As Spender J said in Aldridge v Booth (1988) 80 ALR 1 at 7-8, which is a passage referred to by Mason CJ and Brennan and Toohey JJ in Brandy:  

'How matters of fact are established to the satisfaction of the court will depend upon the nature of the case but where, as here, the dispute requires an assessment of the credibility of the parties and their witnesses, it seems to me impossible to avoid the conclusion that those issues must be determined on the basis of oral evidence.'"

In Gibson v Bosmac Pty Ltd (1995) 130 ALR 245, the respondent to a review argued that the review “is not a hearing de novo in the sense that such a hearing requires a rehearing of all the evidence, by reference to which fresh findings of fact are made” and, further, that the judge conducting a review must approach the review on the same basis as a review of a discretionary decision governed by the principles applied in cases like Mace v Murray (1955) 92 CLR 370 at 378, namely:

“in such a case a court of appeal is not justified in interfering with the decision appealed from unless it reaches a clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a view different from that which the judges of the court of appeal would have taken if they had been in his place, but has failed properly to exercise the discretion committed to him ...”

Wilcox CJ rejected both submissions.  He accepted that s.377 does not state that a review is a hearing de novo.  But he pointed out that the section imposes no restriction on the extent of review and said the reason was that a right of full review is a constitutional precondition to the vesting of the Court's powers in a non-judicial officer:  see Harris at 95, 121-122, 151 and 164.

At 247-248 the Chief Justice pointed out that the term "hearing de novo" may be ambiguous.  He said:

"It may be understood to mean a hearing conducted as if there never had been a hearing before the judicial registrar, everything concerning that hearing being completely ignored.  Alternatively, it may be understood to mean no more than a hearing at which the parties are not bound by the course they took before the judicial registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the judicial registrar; and, of course, where the judge is not bound by the judicial registrar's findings of fact.  Like Moore J, I think a review hearing is a `hearing de novo' in the latter sense.  A hearing conducted in that way answers the constitutional requirement described by Mason CJ and Deane J, `a hearing and a determination by a judge', without forcing on the parties, as a matter of necessity in all cases, the burden of relitigating all issues.

...The relevant constitutional principle means no more than that, on review, the parties are entitled to have the case reviewed by the judge, without any limitation imposed by the conduct of the case before the judicial registrar or the judicial registrar's findings.  The parties have the right to call such additional evidence as they wish, subject to relevance and other usual canons of admissibility.  The judge must decide the relevant facts for himself or herself, and not simply adopt the findings of the judicial registrar.  But the principle does not require the parties to ignore the evidence tendered to the judicial registrar; on the contrary it will ordinarily be sensible for that evidence to be tendered to the judge conducting the review."

In Cox v South Australian Meat Corporation (1995) 60 IR 293 von Doussa J adopted what was said in Cross and Gibson but drew attention to a particular problem in acceding to the parties' wish that he conduct the review on the basis only of the evidence tendered to the Judicial Registrar. He had pointed out to the parties that the Judicial Registrar had expressly stated that her conclusions on two questions were partly based on her observations of the applicant as a witness. The parties had responded by informing the Court that, as neither of them wished to recall witnesses, they consented to the Court treating the review as if it were an appeal by way of rehearing. In his reasons for judgment von Doussa J spelt out the ramifications of that decision. He pointed out at 294 that, in Warren v Coombes (1979) 142 CLR 531, the High Court:

"held that the duty of an appellate court hearing an appeal by way of rehearing is to decide the case - the facts as well as the law - for itself.  In so doing it would recognise the advantages enjoyed by the judge who conducted the trial.  But if the judges of appeal considered that in the circumstances the trial judge was in no better position to decide the particular questions than they are themselves, or if, after giving full weight to the trial judge's decision, they considered that it was wrong, they must discharge their duty and give effect to their own judgment.  The Court held that there was no reason in logic or policy to regard inferences drawn from primary fact as matters peculiarly within the province of the trial judge who enjoys no significant advantage in drawing such inferences."

His Honour contrasted with that situation the position where challenged findings of primary fact depend in part upon questions of credibility.  In that case, he said,

"upon an appeal by way of rehearing an appellate court `cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusions ..."', (Abalos v Australian Postal Commission (1990) 171 CLR at 178)."

It followed, according to von Doussa J, that an "agreement by parties that the review is to be conducted as if it were an appeal by way of rehearing must considerably restrict the scope of the review process." 

Although it was not spelled out at length, Spender J adopted a similar approach in Macs Foods Centre Pty Ltd v McLeish (12 July 1995, unreported).  He commented that the parties had chosen to conduct the review on the basis of the evidence that had been before the Judicial Registrar notwithstanding serious conflicts in that evidence.  He said that, in those circumstances,

"unless there was no evidence to support a particular finding made by the Judicial Registrar the court on a review under s.377 has to acknowledge the great advantage of the Judicial Registrar who saw the witnesses give their evidence and saw them cross-examined.  As the cases make plain, a review on the papers so to speak, which is what I am being asked to conduct, suffers significantly where there are factual conflicts between the witnesses, as there are here."

This approach is open to a Judge if the parties agree that the

review is to be conducted as if it were an appeal.

In Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437, Gray J followed Cross and Gibson and said at 443:

"The duty of the judge is to ignore the findings and conclusions of the judicial registrar, except insofar as they may be adopted by the parties, and to deal with the matter afresh, even if relying on the evidence which was before the judicial registrar, supplemented as necessary.

In a sense, the exercise of the review is the real exercise of the judicial power of the Commonwealth in relation to the `matter' which constitutes the controversy between the parties. The exercise of delegated powers by a judicial registrar may be substituted for this exercise of judicial power, but only if each party is free to seek the exercise of the judicial power in relation to the matter. The difference between a review and an appeal is emphasised by the provision in s.377(2) of the Act to the effect that the Court may review a judicial registrar's exercise of a power of the Court's own motion."

The observations made in these decisions of single Judges make apparent that the course to be taken on review depends largely upon the attitude of the parties.  As the word "review" itself indicates, the task of the Judge is to look again at the case.  If the parties, or one of them, wish a full rehearing with wholly fresh evidence, they are entitled to this.  If they wish to confine the scope of the new evidence, or to argue the review by reference only to the evidence tendered to the Judicial Registrar, the Judge is likely to accede to this wish.  Although the Judge has a discretion to go behind the Judicial Registrar's findings, regardless of the parties' attitude, there will ordinarily be no point in forcing the parties to litigate issues about which they are agreed.

Because the possible attitude of parties spans a wide spectrum, so does the significance on review of the Judicial Registrar's findings of fact.  If all the evidence is tendered anew, the Judicial Registrar's findings of fact will be of no assistance.  The evidence being different, the Judge will ignore the Judicial Registrar's findings and to make his or her own findings on the basis of the evidence adduced on the review.  On the other hand, to the extent that the parties agree to accept the Judicial Registrar's findings of fact, the Judicial Registrar's statement of findings will be the foundation upon which the review is argued.

Where contested ultimate findings of fact depend on what conclusions ought to be drawn from primary facts that are uncontested at the review stage, the Judge conducting the review is as well able to make those findings as was the Judicial Registrar.  In such a case, no difficulty arises from the fact that the Judge is considering the case "on the papers", without seeing and hearing the witnesses.  The task involves an analysis of the primary facts and the exercise of a judgment.  However, where there is a dispute as to primary facts, it will usually be impossible for the Judge to resolve it "on the papers".  Determination of a dispute about primary facts involves choosing between conflicting elements of the evidence.  This almost always involves an assessment of the witnesses, not only as to their truthfulness but also as their characters and personalities and the likelihood that they acted in a particular way.  Without seeing and hearing the witnesses, a Judge has no basis for substituting his or her opinion on such matters for that of the Judicial Registrar.  The Judge will be bound to hold that the party who bears the onus of proof on the disputed issue has failed to discharge that onus.  It is important that parties understand this in determining how they wish a review to be conducted. 

2.  THE APPROACH IN THE PRESENT CASE

In the present case, it seems, the respondent did not appreciate this limitation.  This has created a difficulty in the disposition of the appeal.

The Judicial Registrar regarded herself as being faced with a conflict of evidence as to whether the respondent assaulted Mrs Bullard. She resolved the conflict by reference to her assessment of the witnesses. However, on the review, the parties chose not to recall the critical witnesses but merely used the transcript of evidence taken at the Judicial Registrar's hearing. It follows from the principles stated above that, if there had been a true conflict of evidence, the Judge was not in a position to determine it. As the Judicial Registrar's findings were disputed, the Judge had to arrive at a decision without reference to her findings. As he could not resolve what we have called a true conflict on the transcript, he would have been left to hold that the appellant had not discharged its onus of proof under s.170DE(1).

Of course, if the parties had chosen to conduct the case as if it were an appeal, as in Cox, the Judge would have been required to have regard to the decision of the Judicial Registrar and entitled to reverse that decision only if he were satisfied that the advantage enjoyed by the Judicial Registrar in seeing the witnesses was not sufficient to explain or justify her conclusion.

Marshall J appreciated the difficulty presented to him by the parties' failure to recall any witnesses.  He cited Cross for the proposition that a Judge conducting a review must determine it independently of the decision of the Judicial Registrar.  He was speaking, of course, of a case, like this, where the parties had not agreed to adopt the findings of the Judicial Registrar.  Referring to Macs Foods, he said:

“the Court has to acknowledge the great advantage of the Judicial Registrar who saw the witnesses give evidence, but here the Court must look at the transcript as evidence on the review and where an account is unsatisfactory and inherently improbable, the Court is not bound by the Judicial Registrar’s favourable treatment of that version to accept that version when common sense and the justice of the situation suggest the contrary."

[As will be apparent from what we have said above, this comment really only applies where the parties have agreed that the review shall be conducted as if it is an appeal.] 

His Honour then undertook an analysis of the evidence given on behalf of the appellant.  He concluded that it was unsatisfactory and inherently improbable and, on that basis, set aside the Judicial Registrar's decision and made the orders set out above. 

As we understand Marshall J's approach, he thought an analysis of the transcript demonstrated that the evidence led by the appellant concerning the assault was unsatisfactory and inherently improbable, so that, even on the appellant's own case and irrespective of the respondent's denial of the assault, the Court must find the assault unproved.  In principle, there is nothing wrong with this approach.  If, on the view of the evidence before the Court that is most favourable to the case required to be proved by the party bearing the onus of proof, it does not establish that case, a Judge conducting a review can dispose of the matter in a manner akin to accepting a submission of no case to answer.  It will not be necessary to reconcile evidentiary conflicts.  They will not matter because, on any view of the evidence, it does not discharge the onus of proof.  However, in such a case, analytical accuracy is essential.  In this case the appellant submits that Marshall J's analysis was faulty; so we must consider the evidence and his Honour's analysis in some detail.

3.  THE ALLEGED ASSAULT
3.1        Proceedings before the Judicial Registrar

The Judicial Registrar heard evidence concerning the alleged assault from the respondent and from Michelle Sweeting and Carol Kinnear, two enrolled nurses employed by the appellant who had been present when the alleged assault occurred.  The Judicial Registrar also heard evidence from Ann Canterbury, President of the Management Committee of the appellant.

The evidence of the respondent referred to by the Judicial Registrar in her decision was that on 12 June 1994 at about 8.30 am, as the respondent was standing by the drug trolley dispensing medication, Mrs Bullard approached and slapped her twice on the face.  Mrs Bullard grabbed the respondent’s apron and tore it.  The respondent told Mrs Bullard to stop. Mrs Bullard then went to the breakfast trolley nearby, picked up a bowl of food and threw it on the floor.  The respondent then asked Mrs Bullard to come with her to her room.  As the respondent moved towards Mrs Bullard, Mrs Bullard seemed to sink at her knees towards the floor.  Ms Kinnearbehind a nurses assisted the respondent to guide Mrs Bullard to her room.  The respondent sat Mrs Bullard in a chair.

On the basis of this evidence, there was no assault at all.  The respondent expressly denied hitting Mrs Bullard.

The evidence of Ms Sweeting referred to by the Judicial Registrar in her decision was that Ms Sweeting was sitting in the day room feeding a resident while the respondent was standing at the drug trolley.  Mrs Bullard approached the respondent, who attempted to assist her with her dressing gown.  Mrs Bullard motioned the respondent away.  Mrs Bullard then turned and Ms Sweeting heard the respondent say to Mrs Bullard “That is twice you have hit me”.  Ms Sweeting then saw the respondent strike Mrs Bullard on the forearm and told another nurse sitting nearby that the respondent had struck Mrs Bullard.  Ms Sweeting saw Mrs Bullard move towards her room, pull a breakfast bowl off the breakfast trolley, and throw it on the floor.  Ms Sweeting completed a written incident report and reported the incident to her superior on the following day.  She did not report it immediately because the respondent was at that time her superior.

The evidence of Ms Kinnear referred to by the Judicial Registrar was that Ms Kinnear was behind a nurses' station walking through the day room, and saw Mrs Bullard walk up the passage near the drug trolley.  She was not sure if the respondent and Mrs Bullard made contact at that time, but within an instant thereafter she saw the respondent hit Mrs Bullard in the back with a closed fist.  She heard a thump when the respondent hit Mrs Bullard.  Mrs Bullard then continued to walk up the passage to the breakfast trolley.  She threw a bowl of food from the trolley and the respondent went after her and dragged her up the passage into her room.

The evidence of Ms Canterbury referred to by the Judicial Registrar was that she had a meeting on 13 June 1994 with Ms Sweeting, Ms Kinnear and the Director of Nursing to discuss the incident.  Ms Canterbury described Ms Kinnear and Ms Sweeting at this meeting as traumatised.

The Judicial Registrar was thus faced with a direct contradiction between the respondent's assertion that no assault had occurred and the assertion of Ms Sweeting and Ms Kinnear that there had been an assault.  The Judicial Registrar resolved the conflict in the following manner:

“In closing on behalf of the Applicant, Counsel was of the view that the fact that the main witnesses disagreed on certain points should have the effect of invalidating the whole of that particular evidence.  I do not agree.  To my mind the incident in the day room did in fact occur, an incident of such gravity that instant dismissal was warranted.  Any discrepancies as to detail did not detract from the firm conviction exhibited by all witnesses that the incident did occur.”

In this passage the Judicial Registrar was saying, in a summary way, that, having observed the way in which Ms Sweeting and Ms Kinnear gave their evidence in the witness box, she preferred their evidence to the evidence of the respondent.  This finding was made after consideration of alleged discrepancies between the evidence of those  two witnesses.

3.2        Proceedings before the primary Judge

After outlining his approach to the case, as described above, Marshall J undertook an analysis of the evidence.  He commenced with the evidence of Ms Sweeting.  He referred to her evidence that she was 20 feet away from the respondent and Mrs Bullard at the time of the alleged incident, and that Ms Sweeting said she had an unobstructed view of what was happening.  His Honour  proceeded:

“Ms Sweeting said that she was watching the events she described while continuing to feed a resident.  She said that the particular resident she was feeding had her back to a wall and that she, Ms Sweeting, was facing the wall sitting at right angles or 45 degrees (‘Could be 45. Right angles’) to that resident.”

He then referred to evidence of Ms Sweeting of her reaction to the incident.  She said she was shocked “Because it was a violent outburst from someone who was in charge of us.” In describing the incident, Ms Sweeting said that the respondent gave Mrs Bullard a “slap across the arm.”

His Honour also referred to Ms Sweeting’s evidence that the respondent put a bear hug on Mrs Bullard after the latter had thrown the food from the breakfast trolley and dragged Mrs Bullard to her room.  He observed that the dragging was not referred to in the incident report, which stated:

”On Sunday 12 June, I witnessed RN Reader slap Ms Vera Bullard across arm (sic).  I also saw her run down the passage and yell at her to go to her room.”

His Honour concluded:

“I generally find Ms Sweeting’s evidence to be unsatisfactory and in many respects inherently improbable.  I do not comprehend how someone sitting facing a wall (being in the opposite direction from the events witnessed) can have an ‘unobstructed view’ as to what was happening.  I also have difficulty with the over-dramatisation of a mere slap on the arm as a ‘violent outburst’.  If the ‘dragging’ occurred, why was it not in the incident report? I find it inherently improbable that the applicant would have been able to drag someone of the size of the resident.  It is extremely unsatisfactory to rely on Ms Sweeting’s evidence to prove any conduct of the applicant in respect of the resident given its unsatisfactory nature.”

His Honour then dealt with the evidence of Ms Kinnear.  He referred to Ms Kinnear’s evidence that she saw the respondent hit Mrs Bullard with a closed fist and heard a thump when the respondent hit Mrs Bullard.  Ms Kinnear said the respondent pulled Mrs Bullard to her room and pushed her into a chair.  Ms Kinnear and Ms Sweeting then spoke to each other and said that the respondent had hit Mrs Bullard.  Ms Kinnear described her position when she saw the respondent hit Mrs Bullard in the middle of the back by reference to a plan as follows:

Room	T	Lounge Area (Day Room)
M	T.R	B ____¬
½   ½ Vera’s Room	Nursing Station
K

“K” marks the position of Ms Kinnear at the time of the alleged assault.  “B” indicates Mrs Bullard approaching the respondent, “R”, with a trolley, “T.”, next to her.  “M” refers to the position of Michelle, Ms Sweeting, and “T” to Tracey Price, another nurse.  His Honour dealt with Ms Kinnear’s evidence about Ms Sweeting’s view of the incident at 8 as follows:

“She said that Ms Sweeting was sitting beside the resident Ms Sweeting was feeding.  This directly contradicts Ms Sweeting’s evidence that she was sitting at right angles or 45 degrees.”

His Honour then referred to Ms Kinnear’s evidence that the respondent called out for Ms Kinnear to assist with Mrs Bullard.  Ms Kinnear said she did not assist the respondent but went to the doorway of Mrs Bullard’s room and saw the respondent put Mrs Bullard in her chair.  His Honour then referred to the evidence of the respondent, which contradicted Ms Kinnear’s evidence. The respondent said that Ms Kinnear came into Mrs Bullard’s room with the respondent and together they sat Mrs Bullard in a chair.

His Honour listed seven reasons for regarding Ms Kinnear’s evidence as an unsatisfactory basis upon which to establish, on the balance of probabilities, that the respondent had punched Mrs Bullard in the back and violently pulled her into the room and had thrown her into a chair.  The reasons were:

1. I find it incredible that an elderly resident could be punched in the back by a blow loud enough to be heard 15 feet away but continue to walk away unaffected and unhurt and go off and do something else such as knock over a plate of breakfast and walk off.

1. The majority of the time when Ms Kinnear described how the applicant took the resident to her chair, her evidence was of ‘putting’ her into her chair, not throwing her.

1. The inconsistency in the evidence of Ms Kinnear and Ms Sweeting as to whether Ms Kinnear was in the resident’s room or not when the resident was placed in her chair.

1. The fact that Ms Kinnear saw nothing of the resident wave her arms around as did Ms Sweeting, whose evidence in that regard is consistent with the evidence of the applicant.

1. Other aspects of her evidence lacked sufficient clarity and detail to cast doubts on the reliability of her evidence on the critical issue.  For example, she gave evidence of the way Ms Sweeting was facing which was inconsistent with the evidence of Ms Sweeting herself.  Further, she could not recall what Mrs Bullard was wearing where Ms Sweeting alleges that the whole incident arose from the applicant’s attempt to put the resident’s arm back in her dressing gown.

1. On the evidence the resident had exhibited violent tendencies in the past and had struck nurses on other occasions.  It is not inconsistent with Ms Sweeting’s evidence that any blow heard by Ms Kinnear may have been as a result of the resident punching the applicant on the back and not vice versa.

1. The inconsistency in the evidence of Ms Sweeting and Ms Kinnear regarding what occurred immediately before the resident disrupted the breakfast trolley.  Ms Sweeting described a slap on the arm whilst Ms Kinnear described a punch.”

As we have indicated, in argument before us, Mr R R S Tracey QC and Mr B Lacy, counsel for the appellant, challenged Marshall J's analysis of the evidence.   They argued that his Honour's criticisms of the evidence adduced by the appellant were unjustified and he should not have substituted his view of the facts for that of the Judicial Registrar.  As will appear, we accept that there were errors in his Honour's analysis.  But that does not mean that the Judicial Registrar's findings must be restored.  It means that the Court is left with two conflicting versions of the relevant events.   We will return to the matter of the appropriate order after detailing our reasons for rejecting the primary Judge's criticisms of the respondent's evidence.

3.3  Analysis of the primary judge's criticisms
As to Ms Sweeting’s evidence:
1.  His Honour said:

“I do not comprehend how someone sitting facing a wall (being in the opposite direction from the events witnessed) can have an ‘unobstructed view’ as to what was happening.”

The critical evidence concerning the direction in which Ms Sweeting was facing occurred in cross-examination of Ms Sweeting.  Ms Sweeting gave evidence that she was watching the events from the position marked “T” on the plan set out earlier while feeding a resident.  The following exchange occurred at 177‑8:

“And which way is the resident facing? --- At what stage?

At the stage that you were feeding? --- The resident was sitting with her back against the wall.

And you are sitting in front of her, are you? --- No.  I was sitting at right angles to her.

Which side? --- Obviously - well I am right handed so I would have been sitting on her left so I can feed with my right hand.

So you are sitting on the left hand side of the patient? --- That is right.

And you are feeding her - - - ? --- But I was not in against the wall.

......

So you are sitting on the left hand side of her? --- That is right.

......

She has got her back to the wall? --- That is right.

You are on her left hand side, so you are higher up on this scale plan; is that correct? --- One chair.

And sitting a little in front of her? --- That is right.

At angle - you are facing towards her - what, 40 or 50 degrees; something like that? --- Could be 45. Right angles.”

This evidence positions Ms Sweeting on the left of the resident she is feeding, slightly forward of the resident, and at an angle of between 45 degrees and right angles to the resident.  It also has the resident with her back against the wall.  This position gives Ms Sweeting a direct view of the events in the vicinity of the letter “T.R” on the plan.  It is consistent with Ms Sweeting’s evidence on two occasions - first at 152, that she had an unobstructed view of what was happening, and second at 182, that she had a clear view of what was going on.

Mr Staindl of counsel, who appeared for the respondent, put two arguments in support of his Honour’s finding.  First, he relied on evidence in chief of Ms Sweeting (at 151) given in relation to a plan in the form of the plan referred to earlier in these reasons. 

“Could you perhaps lift up the document and show the registrar and the parties.

THE J.REGISTRAR: Whereabouts were you sitting? --- I was sitting here.

Yes, and the other nurse? --- She was sitting next to me with her back - - -

MS CIRKOVIC: My friend does not see that, perhaps if you could hold it up further back towards the wall, yes, thank you? --- I was sitting here the other nurse was sitting here with her back to the nurses’ station.

THE J.REGISTRAR: Thank you.

MR FEHRING: I think we should put this on transcript because pointing at things does not - - -

THE J.REGISTRAR: The witness indicated that she was sitting parallel to the word ‘room’ on the plan.

MR FEHRING: I will take the witness and I will ask her to mark the document that is probably the easy way.

THE J.REGISTRAR: Thank you Mr Fehring.  You may continue.

MS CIRKOVIC: Could you continue with your description of the events that day? --- From the start?”

Mr Staindl argued that, if Ms Sweeting had been sitting parallel to the word “Room”, she would have been facing the wall, and consequently had her back to the events.  But the evidence was not addressing the direction in which Ms Sweeting was looking; it was concerned only with her location.   When this was suggested to Mr Staindl by the Court he conceded that the evidence was not of great assistance.  Further, after the exchange set out, Ms Sweeting continued with her description of the events.  Twenty lines later in the transcript she is recorded as saying that she had an unobstructed view of the events from 20 feet away.  It must be remembered that the words relied on are the words of the Judicial Registrar, who was interpreting the witness’s motion of pointing to a location on the plan.  Mr Fehring, who on the hearing of the review was counsel for the respondent, suggested that the precise location should be marked on the plan to avoid confusion, but he did not return to this matter later in the proceedings.

Second, Mr Staindl argued that Ms Sweeting was sitting on the right hand side of the resident and not on the left.  In this position, it was argued, Ms Sweeting would have been facing the wall away from the events.  The argument was that Ms Sweeting said she was on the left of the resident only because she was right handed.  However, it was argued, a right handed person could feed the patient from the right of the patient if that person were facing the wall.  Indeed, it was said, it would be an easier position from which to feed than from the left side. 

This argument is without foundation.  It requires the Court to ignore the evidence of Ms Sweeting that she was on the left of the resident, which evidence was given four times in the extract reproduced above.  It is inconsistent with the evidence at 151 that Ms Sweeting was sitting next to Nurse Price because, on Mr Staindl’s approach, the resident Ms Sweeting was feeding would have been between Ms Sweeting and Nurse Price.  It is inconsistent with the evidence at 177 of Ms Sweeting that she was feeding and watching the events at the same time and it is inconsistent with the evidence of Ms Sweeting that she had an unobstructed view of the events and a clear view of the events.  Furthermore, if Ms Sweeting was on the right side of the resident at an angle of 90 degrees, not only would it be extremely awkward to feed the resident, because it would require a severe twist of Ms Sweeting’s body or for her to bring her right arm entirely across her body each time she fed the resident, but the line of vision would not be into the wall as his Honour found, but up the corridor in the direction of the words “Lounge Area (Day Room)” on the plan. Finally, there was no challenge to Ms Sweeting’s evidence of her position.  It was not put to her that she was looking at the wall throughout the events.  If there had been any real ambiguity about her evidence (which was not the case) the evidence should not have been rejected without her being given the chance to respond to the allegation that she did not see the events at all.

In our opinion, it was not open to his Honour to find that Ms Sweeting was facing the wall, away from the incident.

1. His Honour then said:

“I also have difficulty with the overdramatisation of a mere slap on the arm as a ‘violent outburst’.”

It seems to us that a slap across the arm may properly be described as a violent outburst.  Whether a slap merits that description depends on  the way it is delivered, especially its force, and the surrounding circumstances.  The way this slap was allegedly delivered was demonstrated by Ms Sweeting to the Judicial Registrar.  But the demonstration was not described on the transcript, so we do not know what the demonstration showed.  Moreover, the circumstances were important.  This was not a slap administered on the football field or in a children's fight.  It was a slap allegedly administered to an aged nursing home resident by a trained nurse.  The evidence that Mrs Bullard, immediately after the slap and hit, went to the breakfast trolley, took a bowl of food and threw it on the floor, was then intercepted by the respondent and dropped down on her knees, was returned to her room and incontinent of urine all over the floor and sobbing, supports the conclusion that the incident was a violent outburst.

3.His Honour then said:

“If the ‘dragging’ occurred, why was it not in the incident report? I find it inherently improbable that the applicant would have been able to drag someone of the size of the resident.”

The alleged dragging of Mrs Bullard to the room was a peripheral circumstance.  It was not the central concern of the witnesses.  It was an aftermath of the altercation between the respondent and Mrs Bullard.  As such, precision of its description is not as important as is precision of the description of the central event.  Even so, it is noteworthy that Ms Kinnear gave evidence at 188:

“What did Mrs Bullard do when she was hit? --- She continued to walk on, up the passageway.  I also heard one of the nurses say that Lee - she said, ‘Lee’s hit her.’ Vera then continued to walk up the passageway towards a breakfast trolley.  She threw a bowl from the - the trolley across the floor and Sister Reader proceeded to go after her and she dragged her up the passageway into her room.

Can you describe for the court how she did that? --- Did what, dragged - - -

How did she drag her? --- From behind with her arms - - -

Could you perhaps describe in detail who faced who in that - - - ? --- Sister Reader was - stood up and she - and Mrs Bullard was in front of her.  She had her arms round her and she pulled her up the passageway.” (Emphasis added)

The respondent herself gave the following evidence about the events after Mrs Bullard threw the bowl of breakfast on the floor, at 53:

“Right.You have spoken to Vera and said she will have to go to her room; what happened then? --- I walked over to Vera and I put my arm in Vera’s arm.  I’d have to demonstrate that - and Vera went down at the  knees, she sort of, you know, dropped down at the knees, and I thought, well, she is going to go on the floor so I went round the back of her and hooked my arms over hers from the back.  And then Vera - she was almost going to the floor and she was very heavy and of course at that stage, I mean, I weigh quite a bit now, I only weighed seven stone and she was quite heavy for me.  And Carol Kinnear ran across and said, ‘Let me help you, Lee’ and she helped me to assist Vera into her room.  Vera didn’t - she sort of - she just went into the room with us and we sat her down on her chair - - -

THE J.REGISTRAR: So she elevated - you elevated her? --- Yes, well - - -

If she was sinking a little or sagging at the knees - - - ? --- Yes, we actually - - -

- - - managed to raise her a bit, yes? --- Yes.  We raised her and she didn’t walk as such - - -

Resist much? --- - - - but she had her feet flat on the floor and she shoved herself backwards, but she was sort of like - I suppose like that with Carol and I on either side.  And I sat her in a chair beside her bed and said, ‘Stay there Vera - you’d better stay there, Vera, until you feel better.’ ”

Although there is a dispute between the respondent, on the one hand, and Ms Sweeting and Ms Kinnear on the other, as to whether Ms Kinnear assisted in getting Mrs Bullard to her room, it is common ground that the respondent was in contact with Mrs Bullard, supporting her from behind as she travelled some distance to her room.  That process may aptly be described as dragging.  It was wrong to conclude from the lack of reference to dragging in the incident report that it did not occur.  The incident report ends at an earlier point of time, at the point of the respondent addressing Mrs Bullard.  The dragging is not omitted as part of a chronological account.  The abbreviated form of incident report is explained in cross-examination of Ms Sweeting at 179:

“Is that statement a full description of what you saw? --- No, sir. It is a brief description.  That was all I was asked to write.

So you were asked to write only a brief description? --- That is right, sir.

So this is not a full statement of what you saw? --- I wrote a full statement, presented to the DON and the director of the board.”

The “full statement” was apparently not tendered in the proceedings.           Again, the lack of reference to the dragging incident was not put to Ms Sweeting in cross-examination.

It seems to us that it was not open to his Honour to find that the dragging did not occur.

4.  His Honour then said at 6:

“The Judicial Registrar appeared to accept the evidence of Ms Sweeting on the basis of Ms Canterbury’s description of Ms Sweeting being ‘traumatised’ by the incident.  I find that to be a most unsatisfactory basis for the acceptance of evidence given the conflict in the two accounts and the inherent unreliability of Ms Sweeting’s evidence as demonstrated above.”

As outlined earlier in these reasons, the role of the Judge conducting the review was to determine independently of the decision of the Judicial Registrar whether the assault was proved, that matter being in issue before him.  So it was not necessary for him to evaluate the reasoning of the Judicial Registrar.  However, his Honour having done so, we think it only fair to the Judicial Registrar to point out that his criticism of her reasoning is unjustified.

His Honour suggests by the use of the words “on the basis of” that the Judicial Registrar accepted Ms Sweeting’s evidence solely for the reason that Ms Canterbury described Ms Sweeting as being traumatised.  She did not do this.  She said at 9:

“Mrs Canterbury described the state of the two witnesses at that time as being 'traumatised’ which in my opinion reinforces my comprehension of the position that the incident did in fact occur.”

In other words, the Judicial Registrar believed, independently of Ms Canterbury’s evidence, that the events occurred as described by Ms Sweeting and Ms Kinnear.  Her belief, independently derived,  was merely fortified by the evidence of Ms Canterbury.  It was reasonable for her to regard Ms Canterbury's evidence as supportive of that of Ms Sweeting and Ms Kinnear.  In relation to the meeting on 13 June 1994 with Ms Sweeting and Ms Kinnear, Ms Canterbury said at 213-214:

“Do you recall how long that meeting went for? --- I’ve no idea. It was a very traumatic meeting because they were both extremely upset. They were not only upset about the incident; they were extremely upset because they were reporting a senior staff member and they weren’t sure what their position was going to be. They also - which seemed unbelievable to me - had a concern that the board might side with the senior staff member and not view - I think there was a concern that they thought the board might dismiss them for making the complaint, which was very disappointing for me.”

This evidence suggests, not only that Ms Sweeting was not anxious to report the respondent, but that she was reluctant to do so.  The evidence strongly supports the veracity of Ms Sweeting's evidence.

As to Ms Kinnear’s evidence:

5.His Honour said:

“1.I find it incredible that an elderly resident could be punched in the back by a blow loud enough to be heard 15 feet away but continue to walk away unaffected and unhurt and go off and do something else such as knock over a plate of breakfast and walk off.”

We think there are two objections to this reasoning.  As a matter of experience, it is quite possible for a hit with a closed fist loud enough to be heard 15 feet away not immediately to affect the victim. Fifteen feet is not a great distance, particularly if the witness has good hearing and the surrounding noise is low.  Second, the evidence was that, immediately after the hit, Mrs Bullard threw the breakfast bowl to the floor, was met by the respondent, dropped to her knees and was taken to her room where she urinated on the floor and sat in her chair sobbing. This is not a picture of a person “unaffected and unhurt”.

6.His Honour said:

1. The majority of the time when Ms Kinnear described how the applicant took the resident to her chair, her evidence was of ‘putting’ her into her chair, not throwing her.”

His Honour was there referring to the fact that, in her evidence, Ms Kinnear on three occasions (19, 199 & 202) described the way the respondent placed Mrs Bullard into her chair after the alleged assault as “putting”. His Honour apparently contrasted this description with the description in the incident report, where the word “throw” was used to describe the same event.  This is such a minor linguistic difference that it does not justify a lack of confidence in the witness’s evidence.  This is particularly so given that the witness was cross-examined about the incident report but the description “throw” was not put to her as inconsistent with her oral evidence.

7.His Honour referred to:

”3.The inconsistency in the evidence of Ms Kinnear and Ms Sweeting as to whether Ms Kinnear was in the resident’s room or not when the resident was placed in her chair.”

He said:

"Ms Sweeting gave evidence that she saw Ms Kinnear go into the resident’s room. Ms Kinnear’s evidence was that she only went to the doorway of the room.”

It appears to us that his Honour mistook Ms Sweeting’s evidence. In cross-examination of Ms Sweeting, the following exchange occurred at 184 about Ms Kinnear’s movements as Mrs Bullard and the respondent moved to Mrs Bullard’s room:

“Did she go into the room, into Vera’s room? --- To my knowledge I can’t recall that she did.”

8.His Honour said:

“4.The fact that Ms Kinnear saw nothing of the resident wave her arms around as did Ms Sweeting whose evidence in that regard is consistent with the evidence of the applicant.

......

7.The inconsistency in the evidence of Ms Sweeting and Ms Kinnear regarding what occurred immediately before the resident disrupted the breakfast trolley. Ms Sweeting described a slap on the arm whilst Ms Kinnear described a punch.”

In making these two findings, his Honour assumed that Ms Sweeting and Ms Kinnear were describing the same incident.  We do not think this is correct.  The most reasonable view of the evidence is that, from position “M” on the plan, Ms Sweeting saw the front of Mrs Bullard near the position marked “R”, and saw the waving of arms. Ms Kinnear, at the position marked “K”, could not see Mrs Bullard at this point. Ms Sweeting then observed the slap on the arm, again out of sight of Ms Kinnear. The slap on the arm was followed by the hit on the back. By this time the back of Mrs Bullard was within the sight of Ms Kinnear but not Ms Sweeting. Ms Sweeting said at 182:

“So if she was struck in the back, you would have seen it, would not you? --- No, because Vera had turned around. I did not see her back.”

Mr Staindl pointed out that after Ms Kinnear witnessed the hit to the back she heard a nurse say “Lee’s hit her”.  ("Lee" is Ms Reader).  He also pointed out that Ms Sweeting’s evidence at 152 was that she said these words to Nurse Price immediately after the slap to the arm.  Mr Staindl said it followed from that evidence that Ms Sweeting and Ms Kinnear witnessed the same event.  But this conclusion does not follow, given the momentary nature of the interval between the two events.  The comment from Ms Sweeting need not have related to the event seen by Ms Kinnear.  It coincided with the event witnessed by Ms Kinnear only because the two events occurred so closely together that there was no time to make it before the second event occurred.

9.His Honour said:

“5.Other aspects of her evidence lacked sufficient clarity and detail to cast doubts on the reliability of her evidence on the critical issue. For example, she gave evidence of the way Ms Sweeting was facing which was inconsistent with the evidence of Ms Sweeting herself. ....”

Paragraph 1 deals with his Honour’s mistaken view that Ms Sweeting was facing the wall in the opposite direction to the area where the incidents occurred. Once it is appreciated that Ms Sweeting was facing the area in which the occurrences happened, Ms Kinnear's evidence is consistent with the evidence of Ms Sweeting herself.

1. His Honour said:

“6.On the evidence the resident had exhibited violent tendencies in the past and had struck nurses on other occasions. It is not inconsistent with Ms Sweeting’s evidence that any blow heard by Ms Kinnear may have been as a result of the resident punching the applicant on the back and not vice versa.”

This conclusion depends on rejecting Ms Kinnear’s evidence that she not only heard but saw the respondent hit Mrs Bullard. His Honour was not entitled to accept the respondent’s evidence on the basis that it was not inconsistent with Ms Sweeting’s evidence. As explained in paragraph 8, Ms Sweeting’s evidence did not go to the second assault at all.

1. His Honour said:

“The evidence of Ms Kinnear was accepted by the Judicial Registrar because she was described by Ms Canterbury of the respondent, who subsequently interviewed her about the matter, as ‘traumatised’. The Judicial Registrar gave no other reason for not preferring the evidence of the applicant.”

His Honour erred in his view that the Judicial Registrar gave no “other reason” for not preferring the evidence of the respondent. The same comments apply to his Honour’s conclusion on this matter as apply to his conclusions on the same matter in relation to Ms Sweeting’s evidence. This is dealt with in paragraph 4.

4.  REMEDY ON APPEAL

This case presented on review as one involving disputed primary facts concerning a central issue. That being so, the primary Judge ought to have considered the case on the evidence without regard to the Judicial Registrar’s findings. With respect to him, it seems to us that, if he had analysed the appellant's evidence correctly, and not fallen into the errors just discussed, he would have determined that there was an irreconcilable conflict of evidence on the transcript as to whether the respondent assaulted Mrs Bullard or not. He would have been left in the unsatisfactory position of being unable to make a finding either way and compelled to base his decision upon the onus of proof. He would have had to hold that the appellant bore the onus of proving the existence of a valid reason for terminating the respondent's employment and relied on the assault as its reason; but had failed to prove that the assault in fact occurred. Subject to one consideration, he would have had to conclude that the appellant should fail on the review. Of course, his Honour reached the same conclusion, but by a different route. We have held that route erroneous. The question arises whether we should nevertheless confirm his Honour's decision in relation to s.170DE(1) by reason of the appellant's failure to discharge its onus of proof. This involves the consideration to which we have just referred.

If the appellant had made a decision to conduct the review on the transcript appreciating the principles explained in this judgment, there would be no unfairness about disposing of the review by reference to the onus of proof.  However, it appears that the appellant did not do so.  Its failure is understandable.

The appellant agreed to the review being conducted on the transcript alone at a directions hearing conducted by Keely J on 6 March 1995.  There were a number of review applications listed that day and Keely J raised with the representatives of all parties the general question of how they should proceed.  At that time review procedures were at an early stage of evolution. His Honour referred to Keating and to the possibility of proceeding by way of transcript, although he expressed a preference for the calling of evidence in cases where credit was in issue. In discussion at the directions hearing, nobody referred to the consequence of proceeding on the transcript in cases that involved a dispute about primary facts.  At that time there was no decision of the Court touching that question.  Even by the time the hearing of the review commenced, on 29 August 1995, only one case had been decided where a conflict of evidence had to be resolved by reference only to transcript evidence.  That case was Macs Foods, in which - no doubt because of the attitude of the parties - Spender J gave weight to the Judicial Registrar's view.

In opening the present case before Marshall J, counsel for the appellant submitted that weight had to be given to the findings of the Judicial Registrar in relation to matters depending on the demeanour of witnesses.  This suggests that the appellant’s decision to rely solely on use of the transcript was based on the belief that the findings of the Judicial Registrar would be accorded weight on matters where the evidence conflicted.  His Honour indicated that he would adopt that approach.  In response to the opening submission, his Honour said:

“Well, I think Spender J in Mac's Foods v McLeish on 12 July 1995 in matter WIR94/305 said that unless there was no evidence to support a particular finding made by a Judicial Registrar the court has to acknowledge the great advantage of the Judicial Registrar who saw the witnesses give evidence.

MR LACY: Yes, your Honour.

HIS HONOUR: And I have endorsed that and followed it in a decision I gave last Friday.

MR LACY: I am indebted to your Honour for that. I have not seen either of those decisions, unfortunately.

HIS HONOUR: I think it was in De Lima and the Board of Management of Princess Margaret Hospital for Children, a decision of 25 August.

MR LACY: If your Honour pleases. And as I understand your Honour, that supports the proposition that I have just made?

HIS HONOUR: Well, it supports the statement that Spender J made that I read out.

MR LACY: Yes. Well, I think that that supports the proposition that I have just made, that some weight must be given to the findings of the Judicial Registrar..

HIS HONOUR: At least the general thrust of your submission, yes.”

Given this history, it would be unjust simply to dismiss the appeal on the ground that the appellant failed to satisfy the onus of proof in the review. Onus was not relied on in the review.  The question whether the appellant assaulted Mrs Bullard on 12 June 1994 should be remitted for determination on oral evidence.  Having regard to the fact that Marshall J has already expressed views about the facts of the case, it would be preferable for the remitted hearing to be conducted by another Judge.  Further matters concerning the remittal will be addressed later in these reasons.

5.  OPPORTUNITY TO ANSWER ALLEGATIONS

5.1The facts

Ms Canterbury was phoned at home on 13 June 1994 and told by the Director of Nursing that there were allegations of an incident involving the respondent and Mrs Bullard.  She told the Director of Nursing to arrange two meetings:  one involving herself, Ms Sweeting, Ms Kinnear and the Director of Nursing; and, afterwards, a meeting involving herself, the Director of Nursing and the respondent.

At the first meeting, Ms Sweeting and Ms Kinnear each presented a written report. Ms Canterbury then went to the site of the alleged incident.   Afterwards, she met with the respondent.  She told her that she had received two reports of an incident involving the respondent and Mrs Bullard which occurred on the previous day. She asked the respondent to tell her what had happened with Mrs Bullard. The respondent told Ms Canterbury that Mrs Bullard had hit her while she, the respondent, was attempting to help Mrs Bullard put on her dressing gown. Ms Canterbury said the respondent should not have been assisting Mrs Bullard because she had a detrimental effect on Mrs Bullard. Ms Canterbury also said the respondent’s version did not agree with the two reports.  She added that this was the latest in a number of incidents. Ms Canterbury then told the respondent that she was dismissed and handed her an envelope containing a cheque. The respondent refused to take the envelope.

It is common ground that Ms Canterbury asked the respondent for her version of the incident.  It is also common ground that Ms Canterbury did not show the respondent the two written reports and did not outline their contents.  She merely stated that they disagreed with the respondent’s version of events.  Ms Canterbury did not tell the respondent that Ms Sweeting and Ms Kinnear respectively claimed to have seen the respondent slap Mrs Bullard on the arm and hit Mrs Bullard on the back.

5.2The issue on appeal and its resolution

Section 170DC provides:

”170DC  An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:

(a)the employee has been given the opportunity to defend himself or herself against the allegations made”; or

(b)the employer could not reasonably be expected to give the employee that opportunity."

Nobody suggests that para. (b) applies to this case.  The question is whether the appellant satisfied para. (a).

Marshall J held that the respondent had not been told of the allegations made against her and consequently did not have an opportunity to defend herself against them.  The issue is a narrow one. Was it sufficient that the respondent was given the opportunity to explain what happened with Mrs Bullard, or did the appellant have to tell the respondent, at least, that it was claimed that she had slapped and hit Mrs Bullard? Put another way, the question was whether the respondent had been given an opportunity to defend herself against the allegations made when the allegations themselves had not been specified.  The appellant argued that the respondent had been given sufficient opportunity because she had been invited to tell Ms Canterbury all about the incident.

In a case where an employee knows the allegation being made, it is not necessary for it to be stated.  For example, an employee may be caught in an act of apparent wrongdoing.  Then it may be sufficient simply to ask for an explanation of what the employee is doing, without expressly stating the allegation.  The allegation will be implicit in the circumstances in which the employee is required to give an explanation.  Similarly, an employer may be aware that someone else has already told the employee the nature of the allegation.  In such a case repetition is unnecessary.  Again, the nature of the problem may already be apparent to the employee from previous conversations, as in Gibson.

The present case has none of those features. The allegations were that, on the day before the interview, the respondent had hit and slapped Mrs Bullard. Nobody had told her of those allegations. She knew that there had been a complaint about her behaviour. But she was not made aware of the nature of the complaint. She was given no opportunity to deal with the critical allegations, that she had slapped and hit Mrs Bullard. In these circumstances, it was open to his Honour to find (as he did) that s.170DC was not complied with.

Other criticisms were made by the respondent of the procedure leading to the dismissal, such as the appellant's failure to disclose the medical report from a doctor who examined Mrs Bullard after the incident, and the alleged pre-judgment of the situation by Ms Canterbury, evidenced by her attending the interview with a letter of termination and cheque prepared. It is unnecessary to deal with these matters.

6.  ORDERS

As we have indicated, the question whether the respondent assaulted Mrs Bullard on 12 June 1994 should be remitted for rehearing before another Judge. The parties agree that, if it is found that the respondent assaulted Mrs Bullard, it should be determined that there was a valid reason for the termination (s.170DE(1)) and the termination was not harsh, unjust, or unreasonable (s.170DE(2)). These positions must govern the rehearing. If it is found that the respondent assaulted Mrs Bullard, the appellant will succeed on the s.170DE issues. Nonetheless, it will be faced with Marshall J's finding, which we have upheld, that the termination was rendered unlawful by the appellant's contravention of s.170DC. The Judge hearing the remittal will need to determine what remedy is appropriate in that situation.

If, on remittal, it is found that the respondent did not assault Mrs Bullard, she will succeed under s.170DE, as well as under s.170DC. Once again it will be for the Judge conducting the remittal hearing to determine what remedy ought to be granted.

We propose to order that the appeal be allowed and orders 2 to 5 made by Marshall J on 8 September 1995 and the order made by him on 12 October 1995 all be set aside. In lieu of those orders, it will be declared that the appellant's termination of the respondent's employment contravened s.170DC of the Industrial Relations Act and ordered that the following two issues be remitted for hearing by a judge other than Marshall J:

(a)whether the respondent assaulted Mrs Bullard on 12 June 1996; and

(b)the appropriate remedy for the contravention of s.170DC and 170DE (if this be established) of the Industrial Relations Act.

I certify that this and the preceding forty-two (42) pages
are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:    15 April 1996

APPEARANCES

Counsel for the Applicant:                   R R S Tracey, QC and B J Lacy

Solicitor for the Applicant:                   Tanya Cirkovic & Associates

Counsel for the Respondent:  D Staindl

Solicitor for the Respondent:                Wilson Potter Nicholson

Dates of hearing:  22 November 1995

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA                 )       No. VI. 95/5014
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN:WYNDHAM LODGE NURSING HOME INC

Applicant

AND:CECILE ANN READER

Respondent

CORAM:    WILCOX CJ, RYAN and NORTH JJ
PLACE:    MELBOURNE
DATE:     15 APRIL 1996

CORRIGENDUM

Please note on p.16 from top page on second line the sentence beginning "Ms Kinnear behind a nurses assisted the respondent to guide Mrs Bullard to her room."  The sentence should be substituted with "Ms Kinnear assisted the respondent to guide Mrs Bullard to her room."

Associate:

Dated:     26 April 1996