The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." ( Craig at 179, per Brennan, Deane, Toohey, Gaudron and McHugh JJ.)
51 The above qualification, namely, to take account of separation of powers, does not, except in certain limited circumstances associated with the possible limitations deriving from The Constitution, apply to the exercise of state judicial power, but the principle operates in relation to the exercise of state judicial power in the same manner as described in both Racal and Craig.
52 Largely this ground depends upon the assertion that the Tribunal made no findings in relation to the assault and no findings in relation to harassment. Mr Morton submits that such findings were essential to the determination of the appeal. As earlier stated, some of these submissions are circular or repetitive, in that they utilise "the same error" in various ways.
53 A proper construction of the decision of the Tribunal is that the only findings of fact were those expressed in paragraph 118 of the Decision. As earlier stated, the Tribunal purports to summarise the evidence of the witnesses, without making findings, and concludes with a one paragraph "series of findings". It is the function of every tribunal, from which an appeal lies or which is subject to prerogative relief, to issue reasons for decision and to disclose in those reasons the path by which the tribunal has reached its conclusions. The Decision of the Tribunal, at [118] and [119], contains a series of assertions, the path to which is unknown or undisclosed.
54 On one view of this conglomeration of grounds, it relates to a failure to find the assault, the harassment and self-defence. However, on one view of the Decision of the Tribunal, the assault, the harassment and the issue of self defence was irrelevant to its findings.
55 Further, it seems that the Tribunal, notwithstanding its finding on the credit of Mr Morton, bases its Decision on Mr Morton's version of events. To the extent that the charge and particulars were confined to assault and harassment, it would be a necessary aspect of the appeal to determine whether there had been an assault, whether there had been harassment and whether Mr Morton was acting in self-defence. But Berman AJ decided these matters.
56 Interestingly, no one suggests that the Tribunal was not entitled to take into account the public interest: see [119] of the Decision. No issue was taken as to the form of the orders made by the Tribunal. However this series of grounds also contains the aspect that the Tribunal did not consider whether, as a matter of law, there were grounds for dismissal.
57 As earlier stated in dealing with the provisions of the statutory scheme, the appeal is an appeal against the dismissal. Different remedies arise if an appropriate punishment (i.e. dismissal) were implemented unlawfully.
58 However, it is necessary to determine whether dismissal is warranted. And, in that regard, it is essential to determine whether a dismissal on the basis found would be lawful. Leaving aside for present purposes a dismissal without cause, Sydney Ferries was entitled to dismiss Mr Morton, if and only if, there were frustration of the contract of employment (an issue seemingly not raised, and appropriately not raised), or a breach of the contract of employment by Mr Morton. Only certain types of breaches of the contract of employment would permit termination of the employment.
59 An employer is entitled to terminate the contract of employment (again, leaving aside termination on reasonable notice without cause) on one of three bases: repudiatory conduct by the employee (for which a right to dismiss summarily would arise); a breach, by the employee, of an essential term of the contract; or a sufficiently serious breach of an intermediate term of the contract: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61.
60 It is unnecessary, for present purposes, to discuss whether a sufficiently serious breach of an intermediate term of the contract must go to the root of the contract, in which case it may be repetitive of repudiatory conduct: see Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha [1962] 2 QB 26 at 65.9-66.5 and 69.3 and compare Bettini v Gye [1876] 1 QBD 183 at 188, Poussard v Spiers (1876) 1 QBD 410 at 414, 415 and 416, Western Excavating v Sharp [1978] QB 761, Spencer v Dowling [1997] 2 YR 127 at 159-160 (per hayne J) and McDonald v State of South Australia [2008] SASC 134. It is sufficient for present purposes to note that neither the so-called reckless behaviour of approaching a subordinate for the purposes of reprimanding him (or demanding an apology), nor the inappropriate behaviour and/or reckless behaviour described in [118(iv)] and [118(v)] are sufficient grounds for dismissal. None of the conduct described in [118] is repudiatory of the contract of employment, or a breach of an essential term of the contract of employment, or a sufficiently serious breach of an intermediate term of the contract of employment.
61 To the extent that the assault or harassment is relied upon, there is no finding of fact upon which one could base a dismissal and there is no finding of fact, essential to such an issue, as to the existence of self-defence. I reiterate that each of the later aspects was the subject of findings by this Court, in the earlier proceedings.
Grounds 2 and 10: Errors in Relation to Findings on Credit
62 Comment has already been made in this judgment as to the absence of discrepancies and as to the absence of the ability to find discrepancies in light of the judgment of this Court, and the reasons therefor, in the earlier proceedings. Further, the foregoing comments as to lack of reasons apply equally to the findings on credit.
63 Otherwise, however, the issues raised in these grounds are wholly academic. The Tribunal does not seem to rely upon the finding expressed by it, in that regard. Further, to the extent that Mr Morton relies upon the inconsistency between the finding on credit and the reliance placed upon the evidence of Mr Morton, no error of law arises. The mere fact that a witness may be considered to be unreliable or untruthful does not mean that the relevant decision maker may not rely upon some of the evidence from the witness.
Grounds 3, 4, 5 and 11: Denial of Natural Justice and Failures Relating to Findings of Inappropriate and Reckless Behaviour.
64 The circumstances of Mr Morton approaching Mr Best have already been discussed. Further, the circumstances in which Mr Morton moved the ferry from the wharf, and returned it, have also been discussed. Neither amounts to recklessness.
"Thus the standard test of a man's mind in the commission of an act is the foreseeable consequences. If he applied his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness." ( R v Stones [1955] 56 SR (NSW) 25 at 34.)
65 Recklessness is more than negligence. It is more than gross negligence. It is a conscious or contumelious disregard of the consequences of an act: Southern Portland Cement Ltd v Cooper [1973] UKPCHCA 1; (1973) 129 CLR 295 at 306, citing Herrington v British Railways Board [1972] AC 877 at 928.
66 Moreover, the acts in question would not seem to meet the test for misconduct.
"The words used in the statutory test ('misconduct in a professional respect') plainly go beyond that negligence which would found a claim against a medical practitioner for damages: Re Anderson , (at 575). On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient: cf Re Anderson (at 575). Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: ibid. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner." ( Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200, per Kirby J.)
67 While the foregoing comments clearly apply to a medical practitioner under a particular and peculiar statutory scheme, the principles have been applied more broadly. It has been held to require personal implication in conduct which others in that trade or profession would regard as disgraceful or dishonourable: Re a Solicitor [1960] VR 617 at 620; and should be wilful and arising from a wrong motive: NZ Classic Car Co Ltd v Motor Vehicle Dealers Licensing Board (1985) NZAR 170 at 174.
68 As to the ground of a denial of natural justice, the disciplinary regime implemented by the statute and regulations expressly requires written notice of the charges and particulars. The Tribunal, as previously stated, stands in the shoes of the employer and is entitled to dismiss for any valid reason. Nevertheless, Mr Morton is entitled to written notice of the charge and the particulars. Such notices that were given to Mr Morton did not specify recklessness or inappropriateness as a ground for dismissal.
69 There was some cross-examination by Mr Moses SC of Mr Morton before the Tribunal, relating to inappropriateness and/or recklessness. But that cross-examination did not comply with the regulatory scheme. Nor did it put Mr Morton sufficiently on notice as to the allegations to be made. It certainly did not give rise to an expectation of findings of the kind made by the Tribunal. Evidence of the practice of others, evidence of directions and training on the handling of subordinates would have been available if notice had been provided. Mr Morton was significantly prejudiced by the lack of notice.
70 Further, Mr Morton was involved in a conversation with the control room, which necessarily involved the proposition that Mr Morton was required, by Sydney Ferries, to proceed from Taronga Zoo Wharf to Circular Quay. A refusal to proceed as directed may well have amounted to misconduct of the kind that would or could warrant dismissal. That communication with the control room occurred at a time when Mr Morton was aware that the control room had spoken with Mr Best. The necessary question arises, if the conduct of Mr Morton had been reckless, was it not as a direct result of the conduct of Mr Morton's supervisors in the control room? Was not Mr Morton's behaviour a direct result of the "recklessness" of his supervisors?
71 I do not consider Mr Morton's conduct as reckless. However, his conduct was a reasonable reaction to a direction that he proceed to Circular Quay at which point there would be an exchange of staff and a conference with his supervisors.
Grounds 8 and 9: Wednesbury Unreasonableness and the Error in Admitting Evidence
72 In the light of the foregoing, it is unnecessary to determine whether the findings of the Tribunal were vitiated by Wednesbury unreasonableness. Given the errors that have already been found, orders will be made quashing the decision of the Tribunal. As a consequence of those errors, the determination of the Tribunal is vitiated by error and, necessarily, is unreasonable. Without reaching a concluded view, on the material before the Court, it would seem that the finding is not one, which the Tribunal, "acting with due appreciation of its responsibilities", could have decided to adopt: Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211 at [10], citing Regina v Chief Constable of Sussex, Ex parte International Trader's Ferry Ltd [1998] UKHL 40; (1998) 3 WLR 1260 considered
73 As to the admissibility of the evidence, issues arose as to the practical availability of Mr Best and a range of other factors. As has already been made clear, the findings, such as they are, of the Tribunal do not seem to depend upon the evidence of Mr Best and no purpose is served in dealing with an academic point.
Conclusion
74 The Decision of the Tribunal was reached in circumstances where the reasons for the Tribunal's Decision disclose error of law, which error is determinative of the result. As a consequence, orders in the nature of certiorari will issue. The errors include a denial of natural justice (as prescribed by the regulatory scheme) (or a failure to comply with the provisions of the scheme itself), the failure to disclose adequate reasons for the findings made, the finding that grounds existed for dismissal and the failure to consider whether, even on the findings of fact of the Tribunal, there were sufficient grounds for a dismissal.
75 The Court makes the following orders: