FELETTI v KONTOULAS

COUNSEL : Appellant: P L G Brereton SC Respondent: M T McCulloch SOLICITORS : Appellant: Stewart Cuddy & Mockler Respondent: Phillips Fox CATCHWORDS : Negligence - solicitor - failure to advise client as to right of appeal against dismissal from Telecom - causation - valuing lost right - damages. ND DECISION : Appeal upheld

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40537/98 CLD 20212/94

MASON P SHELLER JA ROLFE AJA

JUDGMENT 1 MASON P: The appellant sued his former solicitor in the Supreme Court and recovered a verdict of $80,150. The appellant claims that the verdict should have been $668,766. The solicitor seeks leave to cross-appeal, contending that there should have been a verdict for the defendant, alternatively that excessive damages were awarded. 2 In 1967 the appellant commenced to work for the Postmaster General's Department as a technician in training. By 1978 he held the position of Technical Officer, Grade 1. By then his employer was the Australia Telecommunications Commission (Telecom). In 1988 the appellant was dismissed for misconduct in accordance with procedures found in Part V Division 6 (ss57-64) of the Telecommunications Act 1975 (Cth) ("the Act"). Stated broadly, the claim against his solicitor relates to the solicitor's contribution to the appellant's failure to lodge a timely notice of appeal against the dismissal and the loss stemming from this dismissal. That loss is in effect the value of the respondent's secure employment with Telecom. 3 In 1985 the appellant was posted to Telecom's Lower North Shore branch. At the St Leonards headquarters the subscribers' installation and repair manager was Mr Jack Morris. Beneath Mr Morris in the hierarchy was the principal technical officer responsible for customer planned equipment maintenance (Mr Cookson) and his assistant (Mr Nordstrom). Beneath them were technical officers of various grades (including the appellant), technicians and technician's assistants. 4 The appellant's job was to correct faults that occurred with telephone systems, usually business systems, within the relevant area. In his particular field time was of the essence. He had virtually permanent access to a Telecom van. Spare parts needed for servicing telephones or replacing damaged ones were drawn from a store at St Leonards. The appellant kept a ready supply of such parts in the van. These included older telephones whose parts were likely to be needed promptly if there was an emergency call at night or on the weekend. This appears to have been a common practice, but especially appropriate for the respondent's particular clientele. All of this equipment remained the property of Telecom. 5 At the beginning of February 1987 the appellant proceeded on five weeks annual leave. He left his Telecom van parked outside his premises, and unloaded the parts and equipment normally kept in the vehicle into the storeroom at his home. 6 He returned to work on 10 March 1987. On that day he was charged with the disciplinary offence of having failed to fulfil his duty as an officer (s58). It was stated by way of particulars that he had engaged in improper conduct as an officer in that without proper authority and outside his designated duties he had nominated a particular contractor to the exclusion of other contractors, the nominated contractor not being a contractor approved by Telecom. (This charge is referred to as "the wiring charge".) On 14 April 1987 notice of the charge was served and the appellant was suspended without pay. 7 The appellant denied the charge. Through the solicitor, he retained Mr J H Young, barrister to represent him in respect of the charge. Thereafter, many of the appellant's dealings were directly with the barrister. 8 On 5 June 1987 police officers executed a search warrant at the appellant's home. They were seeking documents referable to the wiring matter but in connection with the criminal offence of attempting to obtain a financial advantage by deception. The appellant was arrested and charged with three offences under s178BB of the Crimes Act. 9 During the search, the Telecom property which the appellant had removed from the van was found at the appellant's home. Subsequently, Mr Cookson made a statement to a Telecom investigator. He said that he had never given the appellant permission to have any equipment at home. 10 On 19 June 1987 the appellant and his barrister attended an interview with Telecom human resources staff. When it became apparent that there was to be a record of interview, the appellant (on his barrister's advice) declined to participate, fearing that he might incriminate himself in relation to the pending criminal charge. The Telecom representative undertook not to proceed with the wiring charge while the criminal proceedings were pending. In May 1989 the appellant was committed for trial. The trial took place in the District Court in October 1992 and the appellant was acquitted. 11 Meanwhile, Telecom instigated an alternative disciplinary charge (the "property charge") relating to the goods found at the appellant's home. On 8 October 1987 the appellant was charged with the disciplinary offence of having failed to fulfil his duty as an officer within the meaning of s58 of the Act. The particulars asserted that the appellant was guilty of improper conduct as an officer in that he had in his possession specified Telecom property without the express authority of Telecom or of the officer in charge. 12 Although a matter of dispute at the trial, it was established that the solicitor's retainer extended to representing the appellant with respect to the property charge. The solicitor received and sent correspondence about it and he was, to a degree, an intermediary between the appellant and his barrister. 13 Ms Brodie was the Telecom officer appointed to conduct the inquiry into the property charge. She gave the appellant an opportunity to reply to the charge either in writing or by oral representation. On 25 November 1987 the appellant phoned her indicating that he wished to do neither. On 8 January 1988 Ms Brodie wrote to the solicitor pointing out that the two departmental charges were separate and that Telecom's undertaking to delay finalisation of the wiring charge until the associated criminal proceedings were completed did not cover the property charge. A fresh opportunity to make submissions was reserved for 2 February 1988, with the indication that if the appellant did not attend the officer would proceed to finalise her inquiry. 14 The solicitor sent the letter to the appellant who in turn spoke to his barrister. The barrister said that he would contact Ms Brodie. He did so, but did not apparently follow through on his stated intention to ring her back and make an appointment. A further deadline passed. 15 The property charge was determined without further input from the appellant or his legal representatives. Telecom's Discipline Officer, Mr Butler found the charge proved and recommended dismissal. His reasons are set out in a Minute dated 28 March 1988 (Blue Book 160). Mr Butler cited the evidence of Mr Cookson and Mr Nordstrom to the effect that neither had given permission to the appellant or any other employee to have any Telecom equipment at his place of residence. It was found that the items listed in the charge were located in a storeroom under the appellant's residence. Mr Butler accepted Mr Nordstrom's statement that the items included: ... Two items of Main Equipment for Commander telephone services. These major items are normally issued from main store on a one for one basis and are not normally carried by Technicians as excess items. I also observed other items, including touchphones and Commander circuit boards, which I consider were excess to normal holdings by maintenance Technicians.

16 Mr Butler referred to unaccepted offers to the appellant and his barrister to attend an interview and offer an explanation. He obviously drew an adverse inference, as he was clearly entitled to do. He also referred to a Staff Information Bulletin of July 1985 which stated: In your own interests you should be aware that it is unlawful to remove and hold Commission property at your residence or in your private motor vehicle without express authority of the Commission.

17 The recommendation for dismissal was adopted by the Chief Manager, Human Resources Department on 31 March 1988. The appellant was formally notified of the punishment on 9 April 1988. Accompanying the notification was advice about the right of appeal to a Disciplinary Appeal Board (cf s62 of the Act) and a form of notice of appeal. The advice document stated that any appeal had to be lodged within 14 days. The appellant read these documents. 18 On 13 April 1988 Telecom wrote to the solicitor enclosing copy of the notification of punishment and its accompanying documents. The letter concluded: The Commission therefore respectfully suggests that you determine your client's intention to lodge an appeal and pursue his remedy before the Disciplinary Appeal Board.

To facilitate the lodgement of an appeal I have included a copy of the Notification of Punishment and appeal documents should your client issue instructions to this effect.

19 What was later done about appealing by the solicitor, barrister and client (the appellant) was a matter of dispute at trial. The only thing known for certain is that the notice of appeal was not lodged with Telecom and that the appellant thereby lost any right to get his job back. This meant that the wiring charge effectively lapsed, because Telecom did not need to pursue it. 20 The appellant launched himself into another career that turned out to be a financial disaster compared to the security and remuneration of the Telecom job. The lost Telecom employment was valued at $743,073. The appellant submits that his damages should be assessed at 90% of this figure, or $668,766.

The solicitor's liability 21 The issue as to the solicitor's retainer was not pressed on appeal. In those circumstances there could be no doubt that the solicitor owed a duty of care to take reasonable steps to warn the client about the effect of failure to file a timely notice of appeal (Scott v Echegaray (1991) Aust Torts Reports ¶81-120). No such warning was given by the solicitor. 22 In the foreshadowed cross-appeal the solicitor contends that the trial judge erred in finding that the solicitor's negligence materially contributed to the loss of a valuable chance of reversing the appellant's dismissal by Telecom. It is convenient to address this point first. 23 It was common ground that the appellant's right of appeal to a Disciplinary Appeal Board under s62 of the Act was only available if the appellant filed a notice of appeal within 14 days of notification of the dismissal decision (Telecommunications Regulations, reg 16(2)). This did not occur. 24 The Board was constituted by a Chairman (who was in fact a former magistrate), an officer nominated by the Commissioner and a person "to represent officers" (s63). 25 The appellant's principal case at trial was that he requested the solicitor to "take immediate action" and that he delivered a signed notice of appeal to the solicitor within ample time for it to be served upon Telecom. This case was rejected by the trial judge, who did not believe the appellant's evidence on this point. 26 The appellant nevertheless succeeded on an alternative basis (which I am satisfied was fought at trial, notwithstanding the particulars in the statement of claim). He established that the solicitor gave him no advice about the necessity of appealing within time. There can be little doubt that it was careless for the solicitor not to have given such advice, particularly in view of the letter the solicitor got from Telecom on this matter (par 18, above). Merely because the client received information on the topic from Telecom, and had direct access to a barrister, did not in the present circumstances wholly relieve the solicitor of a duty of care in this regard. 27 The real issue on liability is causation. Did the solicitor's negligence cause the appellant's failure to file or instruct to be filed a notice of appeal within the 14 day period? More particularly, did it materially contribute to the appellant's neglect in this regard (cf March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514)? The appellant had to prove this on the balance of probabilities (Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355, Daniels v Anderson (1995) 37 NSWLR 438 at 528-9). 28 The trial judge held that, had the appellant received the advice to which he was entitled, he would probably have lodged or given instructions for lodgement of a notice of appeal: The plaintiff is most definite that he wished to appeal. Even rejecting, as I do his claim to have delivered the signed Notice of Appeal to the defendant, I regard it as more probable than not that had he received appropriate advice he would have given instructions for the lodgement of such a notice within the time limited. He is not the sort of man to go along quietly.

29 The solicitor challenges this finding. He points to the way the appellant addressed the property charge at the pre-appeal stage. Telecom's invitations to attend and to offer an explanation were repeatedly spurned. The appellant and his barrister were obviously worried about saying or doing anything that might incriminate the appellant in relation to the pending criminal proceedings. Perhaps they had little cause to be, because the property matter was unrelated to the wiring matter, but their concern was real at the time. Yet the successful prosecution of the appeal would almost certainly have required the appellant to go into the witness box. He said in evidence that he would have submitted to questioning if he "had to". 30 The solicitor also relies upon the facts that the appellant was suspended without pay for an indefinite period and that he faced the possibility of the departmental wiring charge going ahead even if he were ultimately acquitted in the criminal proceedings. These matters could have led the appellant to throw in the towel. It is unclear whether the appellant knew that his case was as strong as it turned out to be at trial. Finally, there is the evidence (from the appellant's own mouth: WB 25) that he had read and understood the material served by Telecom, including the reference to the time limit for lodging the notice of appeal whose form accompanied the notice of dismissal. 31 To my mind, these matters taken together make out a strong argument why the solicitor's failure to advise made no material contribution to the client's inactivity. But I cannot say that the trial judge's opposite conclusion was "glaringly improbable" or so lacking in justification on the evidence as to be reversible on an appeal conducted in accordance with the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167 and State Rail Authority of New South Wales v Earthline Constructions (1999) 160 ALR 588. 32 The trial judge's favourable conclusion on causation turned in part upon acceptance of the appellant as a witness of truth. There is also material giving objective support to this conclusion. As with all causation issues relating to the impact of an omission, there is necessarily an element of hypothesising. The appellant was anxious to defend his rights and, as his Honour observed, he was not the sort of person to go quietly. He may have underrated the risk he was facing when he and his barrister made no contact with the investigating officer prior to dismissal. But the shock of dismissal would have jolted him into reconsidering his position. The sort of advice that one might have expected to have been given by the solicitor would have included information that the charge would have to be proved afresh in the appellate process and that the timely lodgement of a notice of appeal would be a simple step that kept matters alive, enabling further investigations to be made. There is no direct evidence that the appellant or his barrister considered the prospects of appeal and decided to give up. The appellant's sworn evidence was to the contrary. The rejection of his account of having delivered the signed notice of appeal to the solicitor did not necessarily entail disbelieving him on the alternative case. 33 Accordingly, I would grant the solicitor leave to cross appeal but dismiss the cross appeal.

Valuing what the appellant lost: general remarks 34 As a claimant for damages in tort the appellant's task was to persuade the court on the balance of probabilities that he lost something of value through the solicitor's negligence. Having passed that threshold, the valuation of the loss was to proceed according to the principles enunciated in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, because the court was dealing with a "past hypothetical situation" (Sellars at 350). 35 Having found negligence in a case such as the present, the Court's duty is to value the chance lost by the client in consequence of the solicitor's negligence. What the appellant here lost was the chance of retaining valuable employment with Telecom. (It is common ground that the appellant was worse off to the tune of $743,073 when his lost Telecom earnings are place side by side with his earnings, actual and prospective, since his dismissal.) The client's lost chance has value even if the Court reviewing the facts with 20:20 hindsight assesses the plaintiff's prospects at less than 50% (Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 119; Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER at 907 at 919, 928; Phillips v Bisley Court of Appeal, unreported, 18 March 1997). 36 The court trying the negligence claim must necessarily proceed on the evidence before it. That does not mean that every event and every piece of information that comes to light by the date of the negligence trial is necessarily relevant to prove the value of what the plaintiff lost in consequence of having lost his or her "day in court" through the lawyer's negligence. The cause of action against the lawyer arose when the right to bring the proceedings was itself lost. Only matters that were foreseeable as likely losses at that date are recoverable. 37 There are types of evidence that will not be regarded as relevant to valuing the lost cause of action (see generally Johnson v Perez (1988) 166 CLR 351; Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394). However, these qualifications have no bearing on the present matter, because there is nothing to indicate that all of the evidence advanced in the present trial would not have been available to have been advanced in the lost appellate proceedings. In Phillips v Bisley (at 8) I said: Difficult and elusive though the distinction may be, the court trying the issue of the lawyer's negligence must proceed on the evidence before it. This involves considering … "the evidence that would or should have been available to the plaintiff at that time" ( [quoting from Nikolaou at 404] emphasis added). It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer's negligence, have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action.

38 Meagher JA and Dunford AJA agreed with my judgment in Phillips v Bisley. 39 In one sense the appellant lost the opportunity of pursuing an appeal which he submits would have been successful. This was the means of regaining his relatively secure, valuable employment with Telecom. There were two hurdles: his appeal against dismissal for the property charge had to succeed and (on that hypothesis) he had to reverse his suspension without pay consequent upon the laying of the wiring charge. 40 The trial judge set about evaluating the lost opportunity of a successful appeal. He recognised that this meant in effect determining (1) the prospects of success in the lost appeal on the property matter, on the basis that Telecom would have had to establish before the Board a case for dismissal in the light of evidence tested by cross-examination; and (2) the prospects that the appellant would (had he succeeded in the appeal) still have faced the departmental and criminal damages relating to the wiring matter for which the appellant was suspended without pay immediately before his dismissal on the property charge. 41 As to (1), the trial judge rated the appellant's prospects of success as not more than one chance in eight. 42 As to (2), his Honour recognised that the departmental wiring charge would have lain in abeyance until the disposal of the related criminal proceedings (in 1992). He appears to have assessed the prospect of whether Telecom would have reactivated the wiring charge and he definitely considered the appellant's prospects of beating that charge had it gone ahead. From the starting point of "not more than about one chance in eight" the learned judge came to a conclusion that the overall chances were "rather less than one in eight" after considering this second matter. 43 Had the appellant beaten both charges he would have been entitled to reinstatement with a retrospective restoration of pay entitlements. 44 The appellant attacks the detail of his Honour's reasoning, especially that leading to the conclusion that the prospects of success in the lost appeal were no more than about one chance in eight. It is submitted that the evidence at trial shows that the appellant would almost certainly have been successful in the appeal. The appellant seeks virtually the whole value of the last employment, conceding a 10% discount from the proven figure of $743,073 for the contingency of failure. 45 For reasons which follow, I hold that the appellant has made good his attack in relation to step (1), although I would not rate the appellant's prospects on the basis of such a "sure thing" as the appellant contends. If factor (1) stood alone, I would give the appellant 80% of the value of the lost employment. 46 Factor (2) (the prospects with regard to the dormant wiring charge) will require a fresh assessment because there is a world of difference between applying a compounding percentage (cf Malec at 644-5) to an already low fraction like 1/8 when compared to a fraction such as 8/10. 47 I now address the two steps.

Valuing the lost appeal 48 In the assessment of the appellant's prospects of success in his lost appeal there must necessarily be a fair degree of informed speculation. Nevertheless, the starting point is what was proved at the trial, there being no suggestion that witnesses who gave evidence would not have been available to be called in proceedings before the Disciplinary Appeals Board. 49 It would be anticipated that evidence before the Board would be given on oath and subject to cross-examination (cf s62(3),(4)). The appellant would in all probability have been legally represented. Assertions made in untested written statements that turned out to be critical to the investigating officer at first instance would have been tested and weighed in the light of competing evidence. This is exactly what occurred in the trial. 50 One point of distinction is that, in the appeal to the Board, Telecom would have borne the onus of proof and persuasion (so much was common ground); whereas the appellant at trial bore the onus of proof and persuasion as to assessment of damages. I do not think that much turns on this, so long as it is kept in mind that the former proposition is a factor in the appellant's favour. 51 Mr Butler, Telecom's Discipline Officer had regarded it as important that neither Mr Cookson nor Mr Nordstrom gave permission for any goods to be stored at home. Implicit in the recording of this evidence was the inference that these were appropriate officers to give such permission to the appellant. Mr Butler also quoted the Staff Information Bulletin to show Telecom policy and, I infer, to suggest that its contents were known to the appellant. Nothing in the investigating officer's Minute suggests knowledge of any official permission or encouragement for the appellant to act as he did nor any common practice in that regard. Mr Nordstrom's statement about inappropriate possession of the commander touchphones was accepted as was his conclusion that other items of Telecom property found at the appellant's house were "excess to normal holdings by maintenance Technicians". Finally, there was the pregnant observation by the investigating officer that the appellant had made no attempt to explain his position. 52 Each and every one of these matters was negated in the evidence led at the trial. 53 The trial judge rated the appellant's prospects of succeeding in the lost appeal as no more than about one chance in eight. Perusal of his reasons indicates that, in doing so, his Honour reached the following views:

(a) The Court simply did not know what decision would be taken by the appellant as to entering the witness box before the Board or what advice he would have been given on that matter (RB 30J-P).

(b) The judge recorded the evidence of Mr Garlick, who had sat as the employer's representative on appeal boards, in terms indicating that Mr Garlick thought that the Board would attach importance to the fact that the goods were being kept at home and not in a departmental vehicle; and that the appellant's employment record (which was not perfect) would have been an impediment, at least on the question of penalty.

(c) The facts of the possession charge raised in his Honour's mind suspicions of the existence of a dishonest motive. His Honour held that the appellant would have been cross-examined on any appeal with a view to establishing the existence of such a motive.

(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.

The dormant wiring charge 66 Assuming therefore that the appellant would probably have succeeded in the appeal, he would have remained suspended without pay until at least the disposal of the criminal charge. This occurred in October 1992. Had the appellant not then been dismissed, Telecom would have had to have made up its mind about proceeding with the departmental wiring charge. 67 Would Telecom have bothered? And what would have been the prospects of Telecom succeeding in having the appellant dismissed (subject to appeal rights)? 68 The trial judge said: Even had he succeeded to the extent of having the dismissal set aside, he still could not have been employed then and there. A decision on that question would have had to await the final disposal of the other charge on which he had been suspended without pay. Notwithstanding his acquittal on the criminal charge the outcome need not have been the same. Not only is the onus of proof different but the elements of the charge are different and the standard of proof is less. The objective facts are not disputed - see the evidence of the plaintiff before me - the dispute being limited to the plaintiff's motivation in recommending his former school friend. Had he succeeded in escaping dismissal in respect of both departmental charges, he would have been entitled to re-instatement with a retrospective restoration of pay entitlements. Taking into account the difficulty that the plaintiff would have had in defeating not merely one charge but two, I think that his overall changes of success were rather less than one in eight.

69 The appellant submitted that the respondent bore the onus of proof and persuasion in this area. He cited the remarks of Parker LJ in Mead v Clarke Chapman & Co Ltd [1956] 1 WLR 76 at 84. Read in their context, I doubt whether those remarks establish any such principle. In my view the evidentiary and persuasive onus remains with the appellant, bearing in mind that the defendant is not Telecom. Cf however Dolman v Penrose (1983) 34 SASR 481 at 483 where Zelling J applied the maxim omnia praesumuntur contra spoliatorem. In the end, nothing turns on onus in my perception. 70 The evidence about the wiring charge is exiguous. The particulars of misconduct asserted that without proper authority and outside his designated duties the appellant nominated a particular contractor to the exclusion of other contractors, the nominated contractor not being a contractor approved by Telecom. 71 The criminal charges upon which the appellant was ultimately acquitted were related to the departmental charge. But the linkage is unclear because there must have been an element of dishonesty and the indictment was not put into evidence. The gravamen of the criminal charge appears to be that it was alleged that the appellant recommended the nomination of a particular contractor that was not an authorised Telecom contractor and in circumstances where, to the knowledge of the appellant, Telecom was prepared to do the wiring work for free. Telecom policy was to do this work for free with respect to buildings erected before 1967. 72 The appellant's acquittal did not mean that Telecom would have been precluded from continuing with the departmental wiring charge. The civil onus would have applied and proof of dishonest intent would have been irrelevant, albeit that "improper" conduct would have had to be established. The nub of the departmental charge appears to have been that the appellant knew that the recommended contractor was not on an approved list. 73 At the trial the appellant admitted that he had recommended an electrician, Artarmon Building and Electrical Pty Ltd as a contractor. But he swore that he did not know at the relevant time that the electrician was not an approved contractor (Black AB 310). He said that he had referred to a list which included this electrician and he denied involvement or knowledge in that list being "doctored". He said that the electrician had been recommended by Telecom Chatswood (AB 317). 74 Counsel for the respondent had endeavoured unsuccessfully at trial to cross-examine admissions of impropriety out of the appellant. No such admissions were forthcoming. Quite the opposite. Whether or not the appellant's evidence in this area was credible, it was not contradicted and no further attempt seems to have been made by the respondent to establish even a prima facie case of impropriety as an officer. Two lists of "Telecom Australia Approved Wiring Contractors" were put into evidence. One had Artarmon Building and Electrical the top of the list. The other did not mention that firm. 75 There the matter was left. 76 My assessment is that the prospects of Telecom prosecuting the wiring charge after the (assumed) upholding of the appeal and the (actual) acquittal on the criminal charge were fairly slight. And the prospects that the appellant would have been dismissed, with such dismissal surviving a near inevitable further appeal were slighter still. I would deduct no more than a further 5% for this contingency.

Disposition 77 I propose the following orders: 1. Appeal upheld. 2. Substitute a verdict in the sum of $557,305.

5. Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified. 78 SHELLER JA: I agree with Mason P. 79 ROLFE AJA: I agree with Mason P.

   ---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.