(d) Summarising his views as to the likely prospects of success in overturning the finding of improper conduct, his Honour thought it extremely unlikely that the appellant's appeal would have been upheld. "Express permission to store the goods at home does not seem to have been granted and the best that the plaintiff could have hoped for would be a finding that there was some kind of an implied waiver of the rule in his case."
54 The trial judge also addressed the appellant's fall-back argument that dismissal would not have been the appropriate punishment in the event that the finding of improper conduct stood. His Honour held that this would have depended on the Board's findings as to motive and state of awareness (presumably of Telecom policy). In this context, the trial judge referred to the evidence of Mr Morris who was the senior Telecom officer at the Lower North Shore branch who gave evidence. Mr Morris was called by the appellant. He said that he had approved and encouraged the acquisition and retention of spare parts in officers' vehicles in order to avoid the inefficiency of wasted trips to the Telecom store. He knew and obviously approved retention of spare parts in Telecom vehicles or at officer's homes, so long as they were kept secure (Blue AB 28-30, Black AB 390). This evidence was unchallenged. It was corroborated by the evidence of other Telecom officers, including the appellant. Unless disbelieved, it provided the strongest evidence that what the appellant did was common practice. Indeed, it was even capable of being regarded as "express authority of the Commission" within the terms of the Staff Information Bulletin. His Honour thought it unlikely that the Board would have accepted that Mr Morris was unaware of the official policy and equally unlikely that Mr Morris, who was still employed by Telstra at the time the appeal would probably have been heard, would have informed the Board that he had given express permission when he knew that he was not empowered to do so. It must said at the outset that the suggestion that Mr Morris' evidence at trial was affected by the fact that he was no longer a Telecom/Telstra officer imports a very jaundiced attitude to Mr Morris' integrity, as well as his honesty under oath. The matter is compounded by the fact that these matters were not put to Mr Morris. This thought should not have entered the judge's reasons.
55 In the light of the general principles outlined above, I would conclude that the learned trial judge erred in the way in which he approached the task before him. His Honour speculated unduly about what might have been, when the evidence before him provided a much clearer picture. Given that the appellant gave evidence at trial which was accepted in important respects by the trial judge, there was little cause to make any significant discount or to speculate unduly as to whether the appellant might have taken a different stance before the Board or might have been exposed as a witness of little credit had the appeal proceeded. His Honour should have considered how well the appellant had himself stood up as a witness and formed a view based (in large part) upon the impression which the appellant gave to his Honour. I say "in large part" because it would be appropriate to allow for the possibility that the Board, acting properly, might not reach the same view on credibility as the trial judge.
56 Conversely, his Honour should not have speculated in the way he did about Mr Morris (par 52, above).
57 His Honour's speculation that the facts of the possession charge raised suspicions of the existence of a dishonest motive (par 51, above) is an even more specific example of this phenomenon of failing to give full effect to the evidence actually led at trial. There is a further problem. The charge of improper conduct which resulted in the appellant's dismissal did not aver dishonesty, nor was it necessary that it do so (cf O'Connell v Palmer (1994) 53 FCR 429 at 434). Furthermore, dishonesty was not even put to the appellant by counsel representing the solicitor in these proceedings. In these circumstances, it was not open to the trial judge to infer that the appellant would or even could end up facing an appeal in which dishonesty became a factor in determining guilt or sentence with respect to the charge in question.
58 Quite apart from the attack upon the methodology adopted by the trial judge, there is the appellant's submission that the conclusion that the appellant's appeal prospects were about one chance in eight simply failed to give effect to matters firmly established at the trial. I would accept this submission.
59 The evidence as it enfolded in the Supreme Court revealed a vastly different picture to that painted by Mr Butler, the Discipline Officer whose findings were the basis of the appellant's dismissal.
60 It was established that the appellant had acted according to common practice at the Lower North Shore branch, and in accordance with the express permission and encouragement of Mr Morris. Other officers did likewise and they knew of the appellant's own practice. Mr Morris may have been turning the blind eye to official Telecom policy as represented in the Staff Information Bulletin (but even this is doubtful in the light of the express terms of the Bulletin). The appellant swore that he was unaware of the Bulletin. This evidence was corroborated by fellow officers and by Mr Morris' own evidence about his relative inaction in distributing the Bulletin in his area of command.
61 The statements of Messrs Cookson and Nordstom had been important to the Disciplinary Officer whose report led to the appellant's dismissal. But when those officers were cross examined at trial, practically all of the implied sting in their statements disappeared. They could not establish that the Bulletin was brought to the officer's attention. They did establish that departure from the policy implicit in the Bulletin was widespread at the time and that it had the approval or acquiescence of the appellant's superiors, including themselves. The absence of express permission from them had little relevance in the light of evidence that their superior Mr Morris had given such permission.
62 The equipment at the appellant's home was part of his own cache of spare parts which he used as required in service calls, including emergency calls at night. None of it consisted of complete phone sets. It was odd second-hand parts, many of them scavenged or "cannibalised" from phones previously replaced by the appellant in the ordinary course of his business. One can readily understand what lay behind the policy against unauthorised retention of Telecom property in private vehicles or homes. But the misconduct alleged against the appellant did not involve any suggestion of dishonesty. This was not within the particulars of the charge. Dishonesty was not put to the appellant in cross-examination and was expressly disavowed in addresses (WB 543).
63 All of this makes out a very strong case that the appellant would have succeeded in his lost appeal. I conclude that success would have been likely whether or not the appellant would have gone into the witness box before the Board.
64 The trial judge had evidence from Mr Garlick, a former (employer's representative) member of the Appeals Board. He was allowed to express an opinion about the appellant's prospects of success which the trial judge appears to have regarded as of some assistance. However, Mr Garlick did not have the benefit of considering the whole body of evidence favourable to the appellant. And his negative attitude was, like the trial judge's, influenced by an acknowledged suspicion of a dishonest motive on the appellant's part. These factors seriously undermined the weight of this evidence, much of which was effectively retracted in cross-examination (Black AB 501-8).
65 Senior counsel for the appellant conceded a 10% deduction from a 100% prospect of success. This is reasonable. Forensic experience shows that the strongest cases can fail, or may expect to be settled at some discount. I would however discount the prospects of success in the lost appeal by a further 10% because I am not at all sure that the appellant would have gone into evidence before the Board. He had been unwilling to offer an explanation to the Disciplinary Officer. Given that the appeal would have been heard while the criminal charges in the wiring matter remained pending, more than a token allowance needs to be made for the prospect that the appeal would have proceeded without evidence from the appellant and been riskier for that.