Court of Appeal (ACT)|2016-06-24|Before: Murrell CJ, Penfold and Rangiah JJ

For the reasons given in paragraph 10 above, I preferred the McInnis Advice (rather than the AGS Advice) that it was not necessary for me as an authorised officer to have evidence about Mr Dunstan's state of mind or motivation in relation to his unauthorised attempts to access the ATO's computer mainframe. The McInnis Advice also supported my view that there was sufficient evidence to lay a charge of misconduct against Mr Dunstan, as I had expressed in my draft report dated 11 July 1997.

48. The primary judge first considered whether the appellant had commenced the proceeding within the limitation period. His Honour concluded that s 33(1) of the Limitation Act was not engaged, and that the proceeding had not been commenced within the six year period imposed by s 11 of the Limitation Act. Although the appellant could not succeed for that reason, his Honour went on to consider the merits of each of the pleaded causes of action. His Honour concluded that each of the causes of action failed on its merits.

49. In considering the parties' arguments concerning the limitation period, his Honour dealt extensively with the evidence of Mr Higham. His Honour was satisfied that the National Office Minute was not a decision to not charge the respondent, accepting Mr Higham's evidence on that issue, despite noting that his evidence was criticised by the appellant on a number of grounds.

50. The appellant argued that Mr Higham had made no mention of the National Office Minute in his affidavit, despite its obvious and critical importance to the case. His Honour rejected that criticism on the basis that Mr Higham had expressly referred to the Minute in his affidavit.

51. The appellant criticised Mr Higham for only annexing to his affidavit a transcript of his evidence in chief in the proceeding before Besanko J in the Federal Court, but not the transcript of his cross-examination. That proceeding was an unsuccessful application by the appellant for judicial review of decisions made by the first, second and third respondents. His Honour held that Mr Higham's failure to annex the transcript of his cross-examination could not have been an attempt at concealment since it was obvious that the appellant was aware of the cross-examination.

52. The appellant submitted that Mr Higham had attempted to mislead Besanko J about the existence of the National Office Minute and had attempted to conceal the true nature of the National Office Minute by asserting that he had no recollection of its contents. The primary judge rejected this submission and also held that there was no material inconsistency between the evidence of Mr Higham in the current proceeding and his evidence before Besanko J.

53. The appellant submitted that Mr Higham's evidence was inconsistent with the terms of the National Office Minute. However, his Honour accepted Mr Higham's evidence that he had used the word "propose" in the National Office Minute to indicate something that was to happen in the future. His Honour found that the language of the Minute was equivocal.

54. His Honour also accepted that if Mr Higham had made a final decision, he would have provided a final report setting out, in terms, his decision to not charge the appellant, and would not have attached the draft report recommending that the appellant be charged. His Honour noted that it was easy, with the benefit of hindsight, to be critical of the language used by Mr Higham, but he was not to know in July 1997 that events would transpire so as to give the Minute its present importance. His Honour said that the Minute was written immediately upon receipt of the advice from the Australian Government Solicitor, which not only explained its brevity, but was itself suggestive that it was not intended to be a final determination. It was understandable that Mr Higham would want to consider the advice given by the Australian Government Solicitor where that advice seemed illogical, and it would be strange if Mr Higham had not wanted to consider whether anything further could be done to meet the Australian Government Solicitor's contentions before finally determining whether to charge the appellant.

55. The primary judge accepted the evidence of Mr Higham, notwithstanding the criticisms of that evidence by the appellant. His Honour held:

I am satisfied that the [National Office Minute] was not intended by Mr Higham to be a final determination not to charge the plaintiff. I accept the evidence of Mr Higham on this issue.

56. His Honour was also satisfied that Mr Higham independently and properly made a decision that charges should be laid against the appellant.

57. The primary judge went on to hold that as Mr Higham had not made a final decision to not charge the appellant, the existence of the National Office Minute and its contents were not relevant to any cause of action pleaded by the appellant. In view of this finding, his Honour also held that there could be no concealment of any fact relevant to the appellant's causes of action.

58. The primary judge then went on to consider the merits of each of the appellant's causes of action.

59. His Honour held that the appellant's claim of misfeasance in public office was not made out because, as a matter of fact, his Honour was not satisfied that the respondents had sought to have the appellant's employment terminated outside the scope of the Public Service Act, or that they acted in bad faith in their dealings with the appellant.

60. His Honour rejected the appellant's claim of breach of contract on the basis that the National Office Minute was not a final decision pursuant to s 61 of the Public Service Act. His Honour held that the appellant's allegation of interference with contractual relations failed for the same reasons.

61. As to the appellant's claims of conspiracy, his Honour noted that the appellant relied on a minute from the third respondent to the fourth respondent dated 15 August 1997 which set out options available to the ATO in dealing with the appellant. His Honour found that there was no evidence to suggest that this correspondence was contrary to law or the practices of the public service, and that it was not evidence of a conspiracy against the appellant. His Honour was satisfied that the actions the appellant complained of were part of legitimate management discussions within the ATO and were not part of a conspiracy to harm him. His Honour also noted that the appellant did not suggest that the minute of 15 August 1997 was concealed from him and found that s 33(1)(b) of the Limitation Act did not apply and that the proceeding in respect of this cause of action was brought outside the limitation period.

62. The primary judge also held that issue estoppel operated to preclude the appellant from re-agitating matters that were the subject of factual findings in the proceedings before Mansfield and Besanko JJ in the Federal Court.

63. The primary judge ordered that judgment be entered for the respondents, and that the appellant pay the respondents' costs unless an application for some other order for costs was made within 14 days.

64. Ground 6 of the appellant's notice of appeal contends that the primary judge erred in failing to find that the National Office Minute was a decision made under s 61(2) of the Public Service Act to not charge the appellant with misconduct. The ground is expressed consistently with the way the appellant's case was put before the primary judge, namely that the Minute was a decision. In the appeal, the case was argued differently - that the Minute is not the decision, but, rather, is evidence of the decision.

65. It is common ground that if Mr Higham made a decision on about 29 July 1997 to not charge the appellant, he had no power to make a contrary decision on 13 October 1997 to charge the appellant.

66. The fact alleged by the appellant to have been deliberately concealed by the respondents is that Mr Higham made a decision on about 29 July 1997 to not charge the appellant. The first question is whether that fact is "relevant to the cause of action" within s 33(1)(b) of the Limitation [1998] FCA 1711; Act. In Paramasivam v Flynn (1998) 90 FCR 489, the Full Court of the Federal Court (Miles, Lehane and Weinberg JJ) held at 511:

The facts relevant to a cause of action, within the context, are those facts in a sequence of events which, once the sequence is concluded, bring the cause of action into existence. Once the cause of action is brought into existence, other matters which may relate to it, such as a person's right to sue or liability to be sued on that cause of action, are not relevant for the purpose of s 33(1)(b)...

67. Each of the appellant's causes of action is founded on the premise that Mr Higham made a decision to not charge the appellant. If Mr Higham made such a decision, it would be a "fact relevant to a cause of action" within the meaning of s 33(1)(b) of the Limitation Act. If that point is reached, it leads to the question of whether the relevant fact was "deliberately concealed" within the meaning of s 33(1)(b) of the Limitation Act.

68. Mr Higham's evidence was that when he wrote the National Office Minute he had not decided whether or not to charge the appellant with misconduct, but was expressing his intention to not charge him. The effect of his evidence was that he never made any decision to not charge the appellant, and the only decision he made was his decision of 13 October 1997 to charge the appellant.

69. The appellant makes two alternative submissions in support of Ground 6. His first submission is that the primary judge erred by failing to apply an objective test to the question of whether Mr Higham had made a decision to not charge the appellant. His alternative submission is that the primary judge erred in accepting Mr Higham's evidence rather than finding that other evidence demonstrated that he had made a final decision.

Must an objective test be applied in determining whether a decision was made?

70. As to the first submission, the appellant argues that an objective test must be applied in order to determine whether a "decision" within s 61(2) of the Public Service Act was made. We understand the appellant to refer to a test that asks whether a reasonable person would consider that the authorised person made a decision. The submission continues that in applying such a test, his Honour was required to confine his consideration to the National Office Minute and the circumstances of its creation, and should not have taken into account Mr Higham's evidence as to whether he made a decision.

71. The appellant relies upon the judgment of Higgins J in Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533. Higgins J was a member of the Full Court of the Federal Court considering an appeal from a judgment of Finn J. The issue concerned the point in time at which a migration tribunal had made its decision under the Migration Act 1958 (Cth).

72. All members of the Full Court accepted the following passage from the reasons of Finn J at first instance to be correct:

For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

What constitutes such an act can obviously vary with the setting in which the decision is made; it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc.

73. The appellant relies on the following passage in the judgment of Higgins J at [78]:

The mere writing of reasons pursuant to an opinion the decision-maker expects to be final does not put it beyond the power of a decision-maker to change his or her mind. Nor, in my opinion, would the signing of a document incorporating such an opinion constitute the making of a decision. It is not beyond recall. No person apart from the decision-maker (and, perhaps, his or her personal staff) is aware that an opinion has been expressed. However, once that decision is published, even if not yet to the affected parties, it is made. After that point, it can be established objectively that the decision-maker has made that decision rather than another. Given the procedures adopted by the tribunal, it seems to me that once the reasons for decision were delivered to and recorded in the registry of the tribunal, the decision was made. That is not to say that in a different statutory and procedural context, a decision might not be "made" though less formally recorded or notified.

(Emphasis added.)

74. In Semunigus, each member of the Full Court accepted that the making of a decision under a statute involves both a mental element in reaching a conclusion on a matter, and what may be described as a physical element, an overt act that gives finality to the conclusion, such as communication or publication of the conclusion: see also Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25 at [40] (Logan J, Barker J agreeing). The emphasised passage from the judgment of Higgins J is concerned with the latter element. His Honour can be taken to have concluded that the question of whether there was an overt act giving finality to a decision is to be decided objectively - it is difficult to think of a situation where what was in the mind of the decision-maker could be relevant to whether there was an overt act that gives finality to the conclusion. However, his Honour cannot be taken to have said that only an objective test must be applied to determine the mental element, namely whether the decision-maker reached a conclusion on the matter to be determined.

75. If there is a requirement that a purely objective test must be applied to determine whether an authorised officer has made a decision to charge or not charge under s 61(2) of the Public Service Act, then such a requirement must appear as a matter of construction of the provision.

76. Section 61(2) of the Public Service Act (at [36] above) requires that the authorised officer first consider whether he or she is of the opinion that an officer may have failed to fulfil his or her duty as an officer. If the authorised officer does not arrive at that opinion, that is the end of the matter, and paragraphs (a) and (b) have no application. In this case, the parties proceeded on the basis of a tacit acceptance that Mr Higham did form the required opinion.

77. If the authorised officer forms the opinion that an officer may have failed to fulfil his or her duty as an officer, the authorised officer must then decide whether or not to charge the officer. If the authorised officer decides to not charge, a further decision is required as to whether to counsel the officer or cause a supervisor of the officer to counsel the officer. If the authorised officer decides to charge, he or she is required to charge the officer by delivering a written charge to the officer.

78. The focus of the parties is on whether Mr Higham, as the authorised officer, made a decision to not charge the appellant. The nature of any statutory decision required to be made depends on the terms of the provision. In this case, s 61(2) of the Public Service Act requires that the authorised officer "decide whether he should be charged". The decision requires a choice to be made between two options - to charge, or not charge. A conclusion by the authorised officer upon which option to choose, together with an overt act giving finality to the conclusion, constitute the decision. The question in this case is whether the authorised officer, Mr Higham, arrived at a conclusion by making a choice between the two options on about 29 July 1997 when he wrote National Office Minute.

79. The question of whether the authorised officer arrived at a conclusion involves an inquiry as to the state of mind of that officer. The National Office Minute is evidence of whether a conclusion was reached, but does not itself conclusively prove the state of mind of Mr Higham when he wrote the Minute. Only one person can truly know whether a conclusion was reached. That person is the authorised officer. The position is quite different to the construction of a contractual term. There the search is for the shared intention of the parties. As the actual intentions of the parties may be inconsistent, the Court construes the shared intention objectively: see Lexis Nexis, Carter on Contract, vol 1 (at update 21) [12-020]. Here, it is only the knowledge and intention of the authorised officer which is relevant.

80. A wholly objective test might more readily be seen to be required under a statutory scheme such as the Migration Act which requires that written reasons for a decision are to be provided and prescribes the minimum content of those reasons. There is no requirement that a decision to not charge under s 61(2) of the Public Service Act be in writing, and no express requirement that such a decision be published or communicated to a particular person. A decision of an authorised officer under s 61(2) of the Public Service Act is not comparable to a decision made by a Tribunal under the Migration Act.

81. We can see no basis for interpreting s 61(2) of the Public Service Act to require the exclusion of the evidence of the authorised officer as to whether he or she reached a conclusion upon whether or not to charge the relevant officer. There is no reason why that question should be decided only on the basis of what a reasonable person would think.

82. Finally, there is authority to the effect that it is exceptional to admit evidence which seeks to explain or alter the published reasons for a decision: see R v Westminster City Council; Ex parte Ermakov [1995] EWCA Civ 42; [1996] 2 All ER 302 at 315-316 (Hutchinson LJ); East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605 at [308]- [313] (Ashley and Redlich JJ). That line of authority is not relevant to this case where the issue in contention is whether any decision was made, not what the reasons for the alleged decision are.

83. We reject the appellant's submission that a purely objective test must be applied to decide whether a decision under s 61(2) of the Public Service Act has been made.

Should Mr Higham's evidence have been rejected?

84. The appellant next submits that even if the evidence of Mr Higham as to what the National Office Minute was intended to mean could be considered, the primary judge erred in accepting that evidence.

85. The appellant relies upon four matters. Firstly, he submits that the words of the National Office Minute clearly demonstrate that Mr Higham made a final decision to not charge him with misconduct. Secondly, the appellant submits that Mr Higham demonstrably gave false evidence in a proceeding before Besanko J, and that reflects adversely on the credibility of his evidence at the trial in this proceeding. Thirdly, he submits that there is evidence of a plan between Mr Higham and some or all of the other individual respondents to have the appellant charged with misconduct as a means to achieve the termination of the appellant's employment. Fourthly, he submits that there is evidence that Mr Higham and some or all of the individual respondents deliberately concealed the National Office Minute in order to cover up their plan, and that indicates Mr Higham's evidence as to whether he made a decision is not credible.

86. The appellant's first submission is his strongest. There are a number of features of the National Office Minute consistent with Mr Higham having made a decision under s 61(2) of the Public Service Act to not charge the appellant at the time when the Minute was written.

87. The "Purpose" of the National Office Minute is stated as being "Outcome Of Authorised Officer Process". Those words are consistent with the purpose of the Minute being to report the outcome of the process under s 61(2) of the Public Service Act by which an authorised officer decides whether or not a public servant should be charged.

88. In the National Office Minute, Mr Higham referred to advice from the Australian Government Solicitor, that it was not legally open to conclude the appellant may have failed to fulfil his duty as an officer, and then stated, "I therefore do not propose to charge Mr Dunstan." In the context, those words tend to suggest that Mr Higham had already made a decision to not charge the appellant.

89. The Minute continued, "As a result it will be necessary to recall Mr Dunstan to duty". An inference is available that Mr Higham made this statement because he had decided to not charge the appellant with misconduct and there was no basis for the appellant to remain suspended from duty.

90. Mr Higham then said, "I believe it will be necessary to councel [sic] Mr Dunstan in relation to his attempted accesses..." This is consistent with a decision having been made under paragraph (a) of s 61(2) of the Public Service Act, which provided that if the authorised officer decides that the officer under investigation should not be charged, the authorised officer "may counsel the officer or cause a supervisor of the officer to counsel the officer."

91. The Minute indicated that the appellant should be briefed with the material "Your Password, Your Access, YOUR Responsibility." This is consistent with a decision having been made that would result in the appellant returning to work (that is, a decision to not charge him and to counsel him).

92. Section 61(2) of the Public Service Act required the authorised officer to make his or her decision "as soon as practicable". The National Office Minute was written about a month after Mr Higham had been authorised to make the decision, whereas his later decision to charge the appellant was made some three and a half months after he had been authorised. A decision to not charge the appellant was certainly capable of being made at the time the Minute was written, and the making of a decision at that time would be consistent with Mr Higham's obligation to make the decision "as soon as practicable".

93. It can be concluded that the natural and obvious meaning of the text of the National Office Minute was Mr Higham had already made a decision pursuant to s 61(2) of the Public Service Act to not charge the appellant with misconduct.

94. However, Mr Higham gave direct evidence that he had not made a decision to not charge the appellant with misconduct. He deposed that:

When I sent this Minute ... I had not made a decision not to charge Mr Dunstan. I was expressing my intention at the time, because of the legal advice I had received.

95. Mr Higham gave evidence that he received the Australian Government Solicitor's advice on 29 July 1997, the day he wrote the National Office Minute. Under cross-examination, he said he felt strongly that the appellant should be charged, and the legal advice indicating that there was no basis for any charge came as a surprise to him. He said he wrote the Minute as a "heads up", advice or update, to Mr Growder and Mr Whyte about the investigation and, in particular, the nature of the legal advice. When he wrote the Minute he had "some expectation" that they might respond and provide information or direction to him. He intended to look at the advice in detail and determine whether there was anything he could do to address the issues raised in the advice before he made his decision.

96. Mr Higham gave evidence that he used the word "propose" to indicate that it was not his intention to charge the appellant. He said that if he had already made a decision he would have provided a report expressly setting out his decision to not charge the appellant. He also said that if he had made a decision, he would not have attached his draft report, in which he said that the appellant should be charged. Mr Higham denied the proposition repeatedly put to him in cross-examination that he had concluded his investigation on 29 July 1997.

97. Having seen and heard Mr Higham being cross-examined at length, the primary judge was prepared to accept his evidence, which placed a different light on the text of the National Office Minute.

98. This appeal is brought pursuant to s 37E of the Supreme Court Act 1933 (ACT). The appeal is an appeal by way of rehearing. The powers of the appellate court are exercisable only if the appellant can demonstrate, having regard to all the evidence before the court, that the order of the primary judge is the result of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]. However, the circumstances in which an appellate court will conclude that the primary judge has made a factual error are limited where the finding of fact is based on the credibility of a witness.

99. In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said at 479:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

(Citations omitted.)

100. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ said, referring to Devries and other cases:

...The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
...[T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion.

101. This is a case in which the outcome depended substantially, although not entirely, upon the primary judge's assessment of the credibility of Mr Higham. Although his Honour made no express reference to Mr Higham's demeanour and credibility, that does not mean that those factors were not influential: see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179 (McHugh J). To the contrary, his Honour was prepared to accept Mr Higham's evidence in circumstances where his credibility was strongly challenged. However, it is a matter for this Court to assess the evidence for itself while bearing in mind the advantages enjoyed by the primary judge.

102. Although the National Office Minute points strongly towards Mr Higham having made a decision on about 29 July 1997 to not charge the appellant, there are textual indications that point the other way.

103. In the Minute, Mr Higham said, "I therefore do not propose to charge Mr Dunstan". He explained that by this he meant that it was not his intention, based on the legal advice he had received, to charge the appellant, but that he had not made a final decision to not charge him. The use of the word "propose" is consistent both with Mr Higham explaining what he intended to do in the future, and with Mr Higham having already made a decision to not charge the appellant. However, Mr Higham's evidence is plausible, particularly when taken with his evidence that he wanted to give further consideration to the Australian Government Solicitor's advice, received only that day, as to how the concerns raised in that advice might be met before making a decision whether or not to charge the appellant. It is also consistent with his use of the word "propose" in the phrase "I propose to make changes" in his draft report as indicating an action he intended to take in the future.

104. Mr Higham did not use any express or explicit language in the National Office Minute indicating that he had already made a decision. His evidence was that if the Minute was intended to finalise the matter he would have attached a final report which specifically said, "I have come to a conclusion and have decided X". That is the type of language he used in the draft report. His evidence was also that if he had, in fact, already decided to not charge the appellant, then he would not have attached to the Minute his draft report in which he said that the appellant should be charged.

105. Mr Higham agreed in cross-examination that the stated purpose of the National Office Minute, namely "Outcome of Authorised Officer Process", had connotations of finality, but said the Minute discussed legal advice which was part of the process of getting to an outcome, rather than reflecting the final outcome. In the context of Mr Higham's evidence, the Minute can be understood as discussing the proposed outcome of the process, rather than indicating that the outcome had already been decided.

106. Perhaps the strongest indication that Mr Higham had already made a decision was that he wrote, "As a result it will be necessary to recall Mr Dunstan to duty". However, Mr Higham's evidence was that he was saying that it would be advisable to recall the appellant if the outcome was going to be that he not be charged. This evidence is consistent with the purpose of the Minute being to give Mr Growder and Mr Whyte a "heads up". That evidence is plausible, and the primary judge accepted it.

107. There are other aspects of the National Office Minute that support Mr Higham's evidence that he had not made a final decision. The Minute attached a draft report that Mr Higham had prepared. The draft report was effectively a draft statement of reasons for a decision to charge the appellant. As the primary judge noted, if the National Office Minute was intended to communicate a decision to not charge the appellant, there was no reason to attach the draft report. Further, Mr Higham had prepared his draft report setting out in detail the charges and the reasons why the appellant should be charged with misconduct. If he had made a decision to not charge the appellant, it is likely that a similarly detailed report would have been prepared and sent with the National Office Minute. In addition, the draft report used clear and definite language to indicate the decision being made, whereas the Minute did not, in terms, indicate that a decision to not charge had been made.

108. Therefore, while the natural and obvious meaning of the National Office Minute is consistent with Mr Higham having already made a decision, Mr Higham's evidence to the contrary was plausible. The primary judge accepted that evidence, having had the advantage of seeing and hearing Mr Higham give evidence under cross-examination.

109. The appellant's second ground of appeal complains that the primary judge failed to apply the rule in Browne v Dunn (1893) 6 R 67 to the cross-examination of the appellant. However, the appellant's evidence could not have affected the question of whether Mr Higham had decided to not charge the appellant. The evidence relevant to that question was Mr Higham's. His Honour was prepared to accept Mr Higham's evidence.

110. The appellant's second submission as to why Mr Higham's evidence should not have been accepted is that he gave false evidence before Besanko J. An order for discovery was made in the proceeding before Besanko J, and legal professional privilege was claimed in respect of the National Office Minute (but not its attachments). That Minute was identified in the respondents' list of documents as Document 44 and described as:

29 July 1997 - National Office Minute from John Higham to John Growder and John Whyte both of the ATO which contains advice from Tony Burslem of the AGS and attaches a draft report by John Higham of the ATO and a document titled "Your Password Your Access YOUR Responsibility".

111. The appellant sought production of the National Office Minute and other documents, but his application was rejected by Mansfield J. In the trial before Besanko J, the appellant, who was then self-represented, cross-examined Mr Higham. Neither the appellant nor Mr Higham had the document available during the cross-examination.

112. Mr Higham was asked whether the National Office Minute was a document he had prepared. Mr Higham responded, "Yes, I can't - I don't recall that."

113. Later in the cross-examination, the appellant put the following proposition to Mr Higham:

I put it to you that the decision you had made and conveyed quite clearly in the document dated 29 July 1997 that you can't remember at the moment was the one that expressed what the correct decision was that you understood had to be made on that date.

114. Mr Higham responded, "No, I never prepared a document of that sort." He continued, "No. I'm just saying I have never prepared a document saying what you said."

115. Later Mr Higham said, "The only document I prepared was the one you mentioned had "draft" at the top." The appellant asked, "Sorry. I thought you said that only the document dated 11 July 1997 existed?" Mr Higham responded, "Yes. I don't recall preparing another document, but I certainly didn't prepare a document saying what you said before."

116. Later, the appellant asked, "[D]o you deny that that document exists?" Mr Higham replied "I don't know what the document would be. I don't have a recollection of it."

I want to get one thing clear. We are talking about the document which is number 44 or the reference to some report you prepared?

Well, I do recall because a report from Tony Burslem I think came to me, I think I forwarded that on to John Growder and John Whyte...I recall that, but I do not recall another document.

119. The appellant submits that Mr Higham said he did not recall the National Office Minute at one point, and denied that he had prepared the National Office Minute at another. The appellant submits that it is not credible that Mr Higham would not recall the document and, further, that Mr Higham's denial that he prepared the document, taken with his later admission in the present proceeding that he did prepare it, reflects adversely on his credibility.

120. The answers given under cross-examination must be considered in context. The cross-examination was quite confusing. We have extracted only a small portion of the questioning dealing with this topic, but the overall passage is much lengthier and demonstrates that Mr Higham was confused about what document he was being asked about. The confusion was created, or at least exacerbated, by imprecise questioning and the fact that neither the appellant nor Mr Higham had the National Office Minute in front of him. In addition, Mr Higham did not have the list of documents before him for at least part of the cross-examination.

121. It is unsurprising that Mr Higham could not recall the National Office Minute merely from the description of it in the list of documents. The cross-examination took place some ten years after he had written the Minute. Without having the document in front of him to refresh his memory, it is to be expected that he might not recall it. The evidence does not indicate that Mr Higham had actually seen that document in preparation for the hearing before Besanko J.

122. Further, we do not think that Mr Higham was denying that he had written the National Office Minute. What he was denying was that he had written a document which "expressed what the correct decision was that [he] understood had been made on that date". In the present proceeding Mr Higham explained that he was saying he had not written any document that was a final decision. Given that the existence and authorship of the National Office Minute was disclosed in the list of documents, it would be highly surprising if Mr Higham in fact recalled writing the Minute when giving evidence before Besanko J but falsely denied doing so. We do not consider that the evidence given by Mr Higham before Besanko J reflects adversely upon his credibility.

123. The appellant's third submission as to why Mr Higham's evidence should not have been accepted is that there was an illegitimate plan between Mr Higham and some or all of the other individual respondents to have the appellant charged with misconduct in order to achieve the termination of his employment. The appellant's argument is that this reflects adversely on Mr Higham's credibility and, therefore, his evidence that he had not made a decision whether or not to charge the appellant should have been rejected.

124. Each of the individual respondents gave evidence denying any plan to have the appellant charged with misconduct in order to get rid of him from the public service. They were cross-examined at length about this issue.

125. The primary judge had the advantage of seeing and hearing the respondents giving evidence. His Honour said at [14] of his reasons:

In final submissions the plaintiff made numerous criticisms of the evidence of the defendants. It would be an unproductive use of my time to set out in full those criticisms, which mainly centred around minor inconsistencies within the evidence that they gave, or between the evidence that they gave in these proceedings and that which they had given in earlier proceedings. To my mind none of the matters raised by the plaintiff raised serious concerns about the credit of the defendants. It is to be expected that after 17 years their memories will have deteriorated.

126. His Honour also found that the respondents, "did not act in bad faith in relation to their dealings with the plaintiff."

127. In the appeal, the appellant relies on "numerous conflicts between the evidence of the defendants" and "conflict between the evidence given by the defendants and the weight of documentary evidence".

128. The appellant's principal criticisms concerned the evidence of Mr Growder, the second respondent. Mr Growder said that he had not received the National Office Minute. This is said to conflict with the evidence of Mr Seymour, the fifth respondent, that he had become aware of the Minute as a result of briefings given to him by Mr Growder. The appellant claims that Mr Growder's evidence that Mr Seymour was not involved in making the decision to appoint an authorised officer was also contradicted by Mr Seymour's memorandum. The appellant also alleges that there was conflict between handwritten notes made by Mr Molineaux, a witness called by the respondents, and Mr Growder's evidence that he did not make any enquiries of Mr Higham as to an outcome of the process. Mr Growder was asked why the file subject to an update violation was said to be unrelated to the appellant's work, and replied that he did not know and would have taken advice about that from either Mr Best or Mr Littlejohn. Mr Best denied having provided any such advice and Mr Littlejohn was not called to give evidence.

129. The appellant asks the Court to conclude that the alleged discrepancies in Mr Growder's evidence demonstrate that he was lying about those matters. He submits that the Court should infer Mr Growder must also have been lying about other matters, such as his denial he was a party to a plan to have the appellant's employment terminated.

130. We have had difficulty identifying some of the evidence said to create the alleged discrepancies in the transcript of the evidence. Even assuming that there are the discrepancies alleged by the appellant, they are explicable by the passage of some 17 years between the relevant events and the trial. Mr Growder had been retired for about 10 years before he gave evidence. It would be surprising if there were no discrepancies between the evidence of the various witnesses and no discrepancies between the present recollections of witnesses and contemporaneous documents. The alleged discrepancies are far more likely to be the product of faulty recollection than deliberately false evidence. The trial judge, having seen and heard Mr Growder give evidence, was prepared to accept his evidence as credible. There is no basis for this Court to reach a different conclusion.

131. The appellant also points to discrepancies in the evidence of Ms Orr, the third respondent, and Mr Seymour. The flavour of the appellant's criticisms of their evidence may be gleamed from his criticisms of Mr Growder's evidence. It is enough to say that any discrepancies are minor and are consistent with difficulty recalling events that took place so long ago. Again, the primary judge had the advantage of seeing and hearing the witnesses give evidence and there is no reason for this Court to reach a different conclusion.

132. We can see no error in his Honour's assessment of the credibility of the individual witnesses, or his Honour's rejection of the submission that there was a conspiracy against the appellant.

133. The appellant's fourth submission as to why Mr Higham's evidence should not have been accepted is that Mr Higham and some or all of the other individual respondents deliberately concealed the National Office Minute in order to cover up their plan to have the appellant's employment terminated. That submission cannot be accepted. We will give our reasons for that conclusion in the section of these reasons dealing specifically with the question of "deliberate concealment".

134. It would certainly have been open to his Honour to reach the conclusion that Mr Higham had made a decision to not charge the appellant based upon the terms of the National Office Minute. However, Mr Higham was the only person who truly knew whether or not he had made such a decision, and the issue turned on the credibility of his evidence. The primary judge, having had the advantage of seeing and hearing Mr Higham give evidence under lengthy cross-examination, concluded that his evidence was credible.

135. The primary judge referred to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, where Dixon J said at 361-362:

Except upon criminal cases to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect references.

136. The appellant's case required the primary judge to accept that Mr Higham had given deliberately false evidence. There was no room for mere mistake. The allegation that Mr Higham had perjured himself both before the primary judge and in the proceeding before Besanko J was a very serious one. It was inherently unlikely that Mr Higham would commit perjury when there was no apparent motivation for him to do so. His Honour was entitled to give weight to the seriousness of the allegation and its improbability when considering whether Mr Higham had given deliberately false evidence.

137. The primary judge's assessment of Mr Higham's credibility was not based on evidence which was inconsistent with facts incontrovertibly established by evidence, glaringly improbable, or contrary to compelling inference. To the contrary, having considered the transcript of the cross-examination, and bearing in mind the improbability that a witness in Mr Higham's position would give evidence that was deliberately false, we consider that his Honour's acceptance of his evidence was reasonable. The appellant has not demonstrated that his Honour erred in finding that Mr Higham did not make a decision to not charge the appellant.

Whether any relevant fact was deliberately concealed

138. Section 33(1)(b) of the Limitation Act requires not only that the appellant demonstrate the existence of "a fact relevant to the cause of action", but also that the fact was "deliberately concealed". The primary judge decided that as the fact alleged by the appellant did not exist, there was nothing to deliberately conceal. We agree with his Honour's conclusion. However, as the question of deliberate concealment was agitated in this appeal, we will consider it. It must be considered on the assumption, contrary to the conclusion we have expressed, that the fact exists. We will assume that Mr Higham had made a decision to not charge the appellant on about 29 July 1997 and that he was therefore functus officio when he purported to make his decision to charge the appellant.

139. The appellant's case is that the decision to not charge is revealed in the National Office Minute, and that fact was concealed by the respondents concealing the Minute.

140. An order for discovery was made in the course of the proceeding before Besanko J for judicial review. Pursuant to that order, Robert Cutler, a solicitor acting for the respondents to the proceeding produced a list of documents. The respondents claimed that a number of documents were privileged from production on the basis that they "contained legal advice". The National Office Minute (but not the attachments to it) was one of those documents. Mr Cutler certified that, "according to my instructions, this list and the statements in it are correct".

141. The appellant submits that the respondents deliberately concealed the National Office Minute by falsely claiming legal professional privilege in respect of the whole of the document. Although the basis of the claim for legal professional privilege was that the Minute contained legal advice, the content of legal advice was set out in only one paragraph of the Minute. The appellant argues that privilege should only have been claimed over the single paragraph instead of the whole of the Minute. In our view, that argument is correct.

142. The appellant was self-represented in his application for the production of documents before Mansfield J. The National Office Minute was placed before Mansfield J in a sealed envelope. His Honour did not inspect the document, nor was he asked by the appellant to do so. The claim of privilege was upheld by Mansfield J and, accordingly, the document was not produced to the appellant. His Honour's reasons stated:

There is nothing in the material before me to indicate that the description of those documents is inaccurate. On their face they are clearly privileged.

143. The claim that the National Office Minute was privileged from production implied that the whole, or at least a substantial part, of the document contained legal advice. That representation was inaccurate. If the claim had been accurately made, Mansfield J would undoubtedly have ordered that a version of the document, redacted to obscure the single paragraph containing legal advice, be produced to the appellant.

144. The National Office Minute was not inspected by Buchanan J in the course of the application for leave to appeal from the judgment of Mansfield J, no doubt, because of the same inaccuracy in the claim for privilege.

145. The respondents to the application for judicial review before Besanko J were the first three respondents to the present proceeding, Mr Higham, Mr Growder and Ms Orr. Mr Cutler's evidence before the primary judge was that he received instructions to claim privilege from the Commonwealth. His evidence does not indicate whether he obtained instructions from Mr Higham, Mr Growder and Ms Orr, but we infer that he did so, at least at some level, because he certified that the list of documents and the statements in it were correct according to his instructions, and instructions would ordinarily be obtained from the respondents to the proceeding.

146. Section 33 of the ACT Limitation Act is based on s 32 of the Limitation Act 1980 (UK). Section 33(1)(b) of the ACT Limitation Act is in almost identical terms to s 32 (1)(b) of the UK Act. In Cave v Robinson Jarvis & Rolf [2002] EWHC 30; [2003] 1 AC 384, Lord Scott (Lord Slynn, Lord Mackay and Lord Hobhouse agreeing), said at [60]:

I agree that deliberate concealment for section 32(1)(b) purposes may be brought about by an act or an omission and that, in either case, the result of the act or omission, ie, the concealment, must be an intended result... A claimant who proposes to invoke section 32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question...

(See also Commonwealth v Cornwell [2007] HCA 16; (2007) 229 CLR 519 at [44]).

147. Lord Scott considered that no requirement of unconscionable behaviour is imported into s 32(1)(b) of the UK Act, but noted at [65]:

[I]t is difficult to think of a case of deliberate concealment for section 32(1)(b) purposes that would not involve unconscionable behaviour...

148. There is a difference between the judgments of Lord Millett (with whom Lord Mackay and Lord Hobhouse also agreed) and Lord Scott. Lord Millett suggested at [23] that "deliberate concealment" within s 32(1)(b) requires "actual concealment", whereas Lord Scott indicated that an omission to provide information is enough. In AIC Ltd v ITS Testing Services (UK) Ltd [2006] EWCA Civ 1601; [2007] Lloyds Rep 555, Rix LJ said that an omission could not be enough unless there is a duty to disclose a relevant fact: see also Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2012] ACTSC 126; (2012) 7 ACTLR 70 at [257]- [259] (Refshauge J); Williams v Fanshaw Porter and Hazelhurst (a firm) [2004] EWCA Civ 157; [2004] 1 WLR 3185 at [14] (Park J) and at [39] (Mance LJ).

149. In the present case, the appellant asserts that there was both active concealment of the fact and a deliberate omission to disclose the fact when there was a duty to disclose the National Office Minute under the discovery order.

150. The appellant alleges that by claiming privilege in respect of the whole of the National Office Minute, the respondents "deliberately concealed" that document from the appellant. However, it is necessary for the appellant to prove not merely that the National Office Minute was actively or by omission concealed, but that the respondents' intention was to conceal the fact that Mr Higham had made a decision to not charge the appellant.

151. An inference that the respondents intended to conceal the fact that Mr Higham had made such a decision might be drawn if the respondents knew or suspected that they could not legitimately claim legal professional privilege over the whole of the National Office Minute.

152. However, the evidence does not demonstrate such knowledge or suspicion. Mr Cutler was cross-examined at the trial. His evidence was that he decided that legal professional privilege should be claimed. He said his view was that the document in its entirety effectively disclosed the legal advice.

153. At one point, Mr Cutler was asked the following questions and gave the following answers before he was cut off:

I put to you, Sir, that you were, on instructions, attempting to not reveal any of the content of the National Office Minute, rather than not reveal privileged parts of that document? --- No, I reject that.

You've redacted other documents for your clients in these proceedings? --- Yes.

And you made the decision or your client made the decision to not redact this document --- Correct.

And that, Sir, I put to you was because the document was embarrassing to your client? --- Incorrect.

Well, have you read that whole document? --- Yes, I have.

Yes. And when you were preparing your list of documents, did you talk to Mr Higham before making your decision about whether or not legal privilege applied? --- I don't recall that I did, but I...

154. It was suggested to Mr Cutler under cross-examination that there was no proper basis for claiming legal professional privilege in respect of all except one paragraph of the National Office Minute. In the passage extracted, Mr Cutler denied the proposition that the claim for privilege was made over the whole document because it was embarrassing for the Commonwealth. That passage should also be interpreted as putting to Mr Cutler that he did not genuinely believe that there was a basis for a claim of legal professional privilege over the whole document; and as reflecting Mr Cutler's denial of that proposition. Mr Cutler was wrong in his belief that legal professional privilege should be claimed over the whole of the National Office Minute, but there is no basis to conclude that he did not genuinely hold such a belief. His evidence was credible.

155. If Mr Cutler believed that legal professional privilege should be claimed in respect of the whole of the document, there is no reason for any of the respondents, who were not lawyers, to have had a different belief. It was not put to any of the respondents that they believed there was no proper basis for claiming legal professional privilege in respect of the whole of the document. Therefore, the evidence does not establish that the respondents engaged in improper or unconscionable behaviour that might allow an inference to be drawn that they intended to conceal the fact that Mr Higham had made a decision to not charge the appellant.

156. Further, proof that a party intended to conceal a fact would ordinarily require evidence of the party's motivation to conceal the fact. To demonstrate such motivation, the appellant must show that the respondents knew or suspected the significance of the document. That is, that they knew or suspected that the National Office Minute was evidence of a decision by Mr Higham to not charge the appellant, and they knew or suspected that such a decision meant that Mr Higham's power was spent, such that he had no power to make the later, contrary decision. Otherwise, the absence of motivation for them to conceal the fact would suggest that they did not deliberately do so.

157. The evidence does not demonstrate that the first three respondents knew or suspected that if Mr Higham had made a decision to not charge the appellant he could not later make a contrary decision. That proposition was not put to any of the respondents in cross-examination at the trial, although it may have been indirectly suggested to Mr Higham. There is nothing in the evidence that could lead to a conclusion that the respondents knew that if Mr Higham made a decision, his later contrary decision would be invalid.

158. The appellant has not demonstrated that any or all of the respondents had a motivation to conceal the National Office Minute. Further, the appellant has not demonstrated that the respondents acted improperly in claiming legal professional privilege over the whole of the document.

159. In these circumstances, even assuming that Mr Higham had, in fact, made a decision to not charge, the appellant has not proved that any of the respondents deliberately concealed that fact.

160. The appellant's case that the proceeding was brought within the limitation period is premised on the allegation that Mr Higham made a decision on about 29 July 1997 to not charge the appellant with misconduct. Each of the appellant's causes of action (other than defamation) also depend upon a finding that Mr Higham made such a decision. As the appellant has not demonstrated any error in the primary judge's finding that Mr Higham made no such decision, his Honour's judgment that each of these causes of action failed must also be upheld.

161. The appellant's counsel accepted that, the fate of the appeal depends upon the sixth ground of appeal. As that ground has failed, the appeal must be dismissed with costs.

I certify that the preceding one hundred and sixty-one [161] numbered paragraphs are a true copy of the Reasons for Judgment of the Court

Public Service Act 1922(Cth)

Dunstan v Higham [2016] ACTCA 20 (15 July 2016)

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Cave v Robinson Jarvis & Rolf [2002] EWHC 30; [2003] 1 AC 384

Commonwealth v Cornwell [2007] HCA 16; (2007) 229 CLR 519

Dunstan v Orr & Ors [2008] FCA 31

Dunstan v Orr & Ors [2007] FCA 652

Dunstan v Orr & Ors [2007] FCA 873

East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605

Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25

Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489

Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533

Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2012] ACTSC 126; (2012) 7 ACTLR 70

Dunstan v Higham [2016] ACTCA 20

At a glance

Court

Decision date

Before

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Judgment (135 paragraphs)

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Legislation Cited (4)

Cases Cited (26)

Dunstan v Higham [2016] ACTCA 20 (15 July 2016)