Joseph Wright v Industrial Relations Secretary on behalf of the department of Primary Industries and Regional Development [2025] NSWIRComm 1035

"In any proceedings under s 213 to enforce the provisions of this section, it is presumed that an employee ... who suffers any detriment as a result of action by the employer ...was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer ... satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action"

1. The Full Bench in Lee v Ausgrid (No 6) (2013) 237 IR 63; [2013] NSWIRComm 62 at [87], observed long ago that:

"Section 210(2) is the legislature's recognition that the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer. Therefore, to avoid liability arising under the provisions of s 210(1) and 213, the employer must negative the statutory presumption that its conduct has been for the reasons condemned by s 210(1). This is not a technical requirement. As was submitted by the appellant, it serves the important public interest of ensuring that justice is done and the legislative prescription is not defeated by the inability of an applicant to adduce evidence upon a central issue".

1. Evidence from the decision maker (or decision makers) as to why detrimental action was taken is, in this context, self-evidently of fundamental importance to the determination of any proceedings under s 213 alleging a contravention of s 210. An illustration can be seen in the observations made by Mason J (with whom Stephen and Jacobs JJ agreed) in

General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 (dealing with an historical analogue of ss 210 and 213 of the IR Act in section 5 of the Conciliation and Arbitration Act 1904 (Cth)), where his Honour observed (at 242), absent evidence from the decision makers, the employer in that case had "left uncontroverted the possibility that the respondent's position as a shop steward was an influential, perhaps even a decisive, consideration in [the decision makers] minds". 2. In this case, the detriment actions relied upon by the Applicant are:

(1) He was denied a temporary assignment to a higher duties role, the Program Leader North East role, that he had been advised he would perform for a period of weeks in late 2024.

(2) He was issued a written warning in the form of an email from the then Director Fisheries Compliance, Fisheries & Forestry, Dr Andrew Moriarty, dated 8 October 2024.

1. Whether those matters amount to a detriment for the purpose of grounding a finding of victimisation in contravention of s 210 is in issue, and is a matter to be determined in the substantive proceedings. For present purposes, I shall refer to these matters as the detrimental actions.
2. It does not appear to be in dispute that the person who made the decision to take the detrimental actions was Dr Moriarty.
3. Dr Moriarty has prepared an affidavit dated 26 May 2025. It was served by the Respondent, in accordance with pre-hearing Directions, as part of the Respondent's case. In that affidavit Dr Moriarty describes, amongst other things, what I will broadly describe as his subjective reasons for taking the detrimental actions.
4. It is not in dispute the Applicant has given reasonable notice that he requires the Respondent to make Dr Moriarty available for cross-examination.
5. The Respondent has not made Dr Moriarty available.
6. The Applicant objects to the Commission receiving the affidavit of Dr Moriarty in evidence at all, and in the alternative, to paragraphs [23] - [24], the bulk of paragraph [25], [26] - [27], the second and third sentences of paragraph [28], paragraphs [29] - [31], [34], and [37] - [41] (including the annexure referred to in [37]). The bulk of that alternative position is directed to paragraphs of the affidavit that describe Dr Moriarty's subjective state of mind (his concerns, his intentions, the reason he did or did not do certain things, and the like).
7. Parts 3-10 of the Civil Procedure Act 2005 (NSW) (the CPA, see CPA s 4, Schedule 1) and Part 35 of the Uniform Civil Procedure Rules 2005 (the UCPR) apply to proceedings before the Commission when not in Court Session (UCPR rules 1.5 - 1.8).
8. Section 162 of the IR Act empowers the Commission to determine its own procedure. In addition, section 163 of the IR Act provides the Commission, when not sitting in Court Session:

(a) is not bound to act in a formal manner, and

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

1. The overriding purpose of the CPA and the UCPR is to facilitate the just quick and cheap resolution of the real issues in proceedings (CPA, s 56(1)). In exercising any power given by the CPA or the UCPR, the Commission must seek to give effect to that overriding purpose (CPA s 56(2)).
2. Part 35 of the UCPR deals with affidavits. UCPR 35.2 deals with the cross-examination of the deponent of an affidavit and relevantly provides a party may, by written notice to the party proposing to use an affidavit given a reasonable time before the relevant time, require the attendance of the deponent of an affidavit for cross-examination. UCPR 35.2(3) provides:

(3) If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise.

1. The Respondent seeks leave to rely upon the affidavit of Dr Moriarty, despite him not being available for cross-examination. In support of that leave the Respondent relies upon an affidavit of Nathalie King dated 6 June 2025 and certain parts of an affidavit of Ange Royal dated 25 May 2025 (specifically, paragraphs [55] - [58], and associated attachments AR25 and AR26).
2. Annexures NK1 and NK2 to the affidavit of Nathalie King and AR25 and AR26 of the affidavit of Ange Royal are two medical reports:

(1) A report dated 10 April 2025 from a Mrs Rebecca Lawrance, a psychologist who had apparently seen Dr Moriarty twice in January 2025 and once on 2 April 2025 for the purpose of preparing her report; and

(2) A report also dated 10 April 2025 of a Dr William McKay, a general practitioner. It is not clear on the face of the report what relationship Dr McKay has with Dr Moriarty, but I am told he is his treating general practitioner.

1. Orders were made by me under s 164A of the IR Act on 10 June 2025, amongst other things, prohibiting the publication of all or a part of those reports, including in any decision of this Commission, in light of concerns Dr Moriarty had expressed to the Respondent about the disclosure of his medical condition. For that reason, whilst I will refer to those reports below, I will not extract and publish parts of those reports in this decision. I have, nonetheless, had close regard to their terms in forming this decision.
2. It is unnecessary to set out the submissions of the parties in detail in this decision. It is sufficient for present purposes to note:

(1) Mr Seck, counsel for the Respondent, outlined his client's submissions in support of the grant of leave largely by reference to the decision of Senior Member Goodman SC, then a member of the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal New South Wales, in Kakoz v Chief Commissioner of State Revenue [2021] NSWCATAD 257. Kakoz was not relied upon as a binding authority, but rather as a useful rhetorical device, Mr Seck paraphrasing the contentions advanced by the Respondent in those proceedings in support of leave and summarised at [38] - [42] of the decision, adopted of course to the facts of the present proceedings, and urged I exercise my discretion consistent with Senior Member Goodman at [43] of Kakoz. In essence, it was submitted in light of Dr Moriarty being unavailable on medical grounds rather than by choice, the centrality of his evidence to the issues in the proceedings, the attempts to have him available such as they were, and that some the opinions expressed may be tested against contemporaneous records, I should receive Dr Moriarty's evidence and give it appropriate weight conscious it remains untested by cross-examination.

(2) Mr Saunders, counsel for the Applicant, relied upon Kakoz at [33] (and the observation made by MacFarlan JA (Gleeson and Leeming JJA agreeing) in AHB v NSW Trustee & Guardian [2014] NSWCA 40 at [4] there summarised, that the Court will not ordinarily act on a formulaic document (there referring to a medical certificate) and will require an explanation on oath from the medical practitioner of the illness and the reasons for the inability of the affected person to attend Court), and [44] where it was emphasised that the discretion is more likely to be exercised in a manner that excludes the affidavit evidence where that evidence goes to matters central to the issues to be decided than where the evidence is peripheral. In essence, it was submitted the medical reports are insufficient to establish Dr Moriarty is unavailable, the Respondent has not taken all reasonable steps to ensure Dr Moriarty's attendance to give evidence and be cross-examined, and the prejudice arising from the receipt of untested evidence of the decision maker as to the reasons for taking detrimental action (one of the central issues in these proceedings) is so great as to warrant the refusal of leave, noting the prima facie position of UCPR 35.2 (which did not apply in Kakoz) was the affidavit can not be used.

1. I have decided to refuse leave to the Respondent to rely on the whole of the affidavit of Dr Moriarty. My reasons for that decision may be shortly stated:

(1) The prima facie position provided by UCPR 35.2(3), is that the affidavit may not be used. The UCPR are fashioned to facilitate the just quick and cheap resolution of proceedings.

(2) The evidence of Dr Moriarty goes to a central issue in the proceedings, which would generally weigh against its receipt untested by cross-examination where notice is given.

(3) The nature of the evidence to be given by Dr Moriarty, being the subjective reasoning of the decision maker for the imposition of detrimental action, weighs heavily against it being received untested by cross-examination. That consideration is something of a two-edged sword, making the receipt of the evidence of particular importance to the defence of the Respondent. It is, however, also what creates particular prejudice for the Applicant.

By way of illustration, Dr Moriarty states at [30(a)] and [41(a)] that he did not take the detrimental actions because the Applicant "engaged in public or political activity". What Dr Moriarty understand by those words is not explained in his affidavit. Those words reflect s 210(1)(h) of the IR Act, being one of the protections relied upon by the Applicant. The meaning of the words "public or political activity" is in issue in the proceedings. In addition, whether the qualifying words in s 210(1)(h) "unless it interferes with the performance of the employee's duties" has any application on the facts, is also in issue. Receiving Dr Moriarty's evidence in the manner proposed would deny the Applicant the opportunity to test Dr Moriarty's evidence on issues of real significance in the proceedings.

It is the subjective reason of the decision maker that is of critical importance to the operation of s 210(2). The Applicant will, in my view, be fundamentally prejudiced in a manner that is incurable if that evidence is received.

(4) I am not satisfied of Dr Moriarty's asserted unfitness to give evidence based on the medical reports of Mrs Lawrance and Dr McKay:

(a) Neither practitioner diagnose Dr Moriarty suffering from any medical condition. In the report or Mrs Lawrance, reference is made to self-report inventories (the DASS-21, K10 and PCL-5), but as the report itself quite properly notes, the results of such inventories alone do not constitute a diagnosis.

(b) Neither practitioner sets out in any detail any history they have taken that informed their opinion.

(c) Neither practitioner provides any material reasoning for their stated opinions as to Dr Moriarty's unfitness to give evidence, or for why that unfitness will continue for any time into the future (in the case of Dr McKay) or for the long term (in the case of Mrs Lawrence), or for why there are no alternative mechanisms for the taking of Dr Moriarty's evidence and cross-examination (such as via AVL or telephone) that could lessen any trauma he may endure as a result of giving evidence.

(d) Mrs Lawrence's opinion is, at least in one respect, based on a misunderstanding of the facts insofar as it appears her opinion in answer to Question 11(2) (pg 6 of the report) is premised on a misunderstanding of why Dr Moriarty had not returned to his earlier position.

Broadly stated, the opinions expressed in each of the reports are little more than a mere ipse dixit that is entitled to little or no weight, even in the absence of any contradicting evidence: see generally Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.

(5) Whilst I accept the Respondent has taken some steps, I am not satisfied the Respondent has taken all reasonable steps to make Dr Moriarty available to give evidence.

(1) the Respondent could have, but did not, direct Dr Moriarty to attend an independent medical specialist to assess whether he was fit to give evidence in these proceedings. Ms King explains the Respondent's reasons for not doing so at [21]. Two reasons are given:

(a) As to the first, I am not satisfied that Dr Moriarty having stated he would refuse to attend provides a proper basis for declining to direct his attendance in circumstances where his evidence is so important to the Respondent's defence of this claim. Dr Moriarty would not be the first reluctant witness to reconsider an initial refusal to attend an independent medical examination when pressed.

(b) As to the second reason identified by Ms King, I have not been taken to any evidence demonstrating that requiring Dr Moriarty to attend an IME would cause him further psychological harm (neither Mrs Lawrance nor Dr McKay were asked to address that question).

(2) The Respondent could have, but did not, issue a summons for his attendance. Counsel for the Respondent provided an explanation for this client having taken that decision (in short, the Respondent did not want to take a step that would potentially expose Dr Moriarty, an existing employee, to a risk of harm). I do not accept that submission. It was reasonably open for the Respondent to have taken that step. Had it done so, Dr Moriarty could then have taken his own advice, obtained his own medical evidence if he was so advised (which may have been more substantive than that provided by Mrs Lawrance and Dr McKay), and made application to have the summons set aside if he considered it appropriate to do so - particularly if he had formed the view it would expose him to a risk of injury. I do not accept that issuing a summons for his attendance would have created the risk to safety suggested by the Respondent.

1. The Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and is to act according to equity, good conscience and the substantial merits of the case. The prima facie position under UCPR 35.2 is an affidavit may not be relied upon if reasonable notice is given and the deponent is not made available for cross-examination. I am not satisfied granting leave to the Respondent to rely upon the affidavit of Dr Moriarty would facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. Leave is refused.