Wednesbury unreasonableness.
36 The Summons referred to the classic statement in respect of errors of law in the exercise of a discretion in House v The King (1936) 55 CLR 499. In that case, Dixon, Evatt and McTiernan JJ said this: (at 505)
" ... It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. ... "
37 At the end of this passage, their Honours referred to the circumstances in which error may be imputed, that is where the result was unreasonable or plainly unjust upon the facts proved. The same concept was discussed by Lord Greene MR in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, where the following was said: (at 230)
" ... Here Mr Gallop did not, I think, suggest that the council were directing their mind to a purely extraneous and irrelevant matter, but he based his argument on the word 'unreasonable', which he treated as an independent ground for attacking the decision of the authority; but once it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case. Once that is granted, Mr Gallop is bound to say that the decision of the authority is wrong because it is unreasonable, and in saying that he is really saying that the ultimate arbiter of what is and is not reasonable is the court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. ... "
38 His Lordship then stated the exception, where a Court would intervene, now sometimes referred to as "Wednesbury unreasonableness". His Lordship said this: (at 230)
" ... It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming , and, in this case, the facts do not come anywhere near anything of that kind. I think Mr Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. ... "
(emphasis added)
39 Courts have been enjoined to exercise caution in applying this ground, lest they substitute the Court's judgment on the merits for that of the decision-maker (Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419, per Beaumont and Gummow JJ at 427 - 429) (cf Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 82 ALJR 1425 at [190]). In Zattin v Rail Corporation NSW (supra), Johnson J said this:
"[15] ... The test for Wednesbury unreasonableness is stringent, and the decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Wyong Shire Council v MCC Energy Pty Limited [2005] NSWCA 86 at paragraph 79. ... "
40 There is little, if any, difference between a number of the paragraphs in Ground (a) (especially (a)(i), (ii) and (iii)) and Ground (c), which is Wednesdbury unreasonableness. It is therefore convenient to begin at the end and consider Ground (c), that is, whether the decision was so unreasonable as to amount to error.
41 The argument of RailCorp essentially rested upon three pillars. The first was concerned with the circumstances of the offence, as to which there was no issue. Mr Pegler pleaded guilty. He did not challenge the readings that had been taken by the RailCorp investigator, or the police. He held a railsafe position. The consequences of mistake could be catastrophic. He well understood RailCorp's drug and alcohol policy, which he had breached. It was plainly a very serious offence.
42 The second pillar concerns what may be termed Mr Pegler's "subjective case". The ultimate issue for the Board was whether the penalty of dismissal was appropriate and reasonable (RailCorp written submissions (WS) para [13]). An important consideration was Mr Pegler's present state of sobriety (WS [42]). According to RailCorp, the evidence did nothing to dispel concerns about his consumption of alcohol. The circumstances of the breach suggested an excessive consumption of alcohol. He had a history which included the incident in 1999, where he was directed by a doctor to abstain from alcohol for a time. He had undergone counselling and rehabilitation after he failed the random breath test in December 2007, and yet none of his counsellors had been called to give evidence. Therefore, the Board, according to RailCorp, had no evidence concerning Mr Pegler's drinking, apart from his assertions (WS [23]). Even his assurances were "nebulous". Mr Pegler had repeatedly said words to the effect: "The only assurance I can give is that my family does come first and I value that more highly than alcohol for sure" (T 12).
43 The third pillar of the argument concentrated upon the language of the Board's decision and the findings which it made. The Board accepted the seriousness of the offence. It accepted its potential to compromise safety, which could have catastrophic consequences. Importantly, it said this: (T 37)
"The Board acknowledged that RailCorp acted appropriately throughout and that it was fully entitled to impose the penalty of dismissal. "
(emphasis added)
44 Therefore, the Board, according to RailCorp, accepted that dismissal was appropriate. In its written submissions, RailCorp said this: (WS [43])
"[43] ... If a penalty which the Tribunal regards as 'appropriate' and which the employer was 'fully entitled' to impose was imposed, then on the evidence in this case, there is no warrant for the Tribunal to substitute another penalty for that penalty at all. Fundamentally, there was no evidence warranting the substitution of another penalty for the 'appropriate' one imposed by the Plaintiff. No tribunal, and specifically not the First Defendant, properly exercising its discretion could have done that. To do so was a reviewable error."
45 Alternatively, it was said that, even if the Board could have substituted another decision for that which was "appropriate", it would require compelling evidence. Here there was none (WS [44]).
46 Why, having made a finding that RailCorp was fully entitled to dismiss Mr Pegler, did the Board not impose the penalty of dismissal? RailCorp, in submissions, drew attention to the following reasons provided by the Board, which it suggested were unacceptable: (T 37)
" ... we have come to the view that he should be given a chance to prove this incident was indeed one off, an aberration and will never happen again."
(emphasis added)
47 In the context of that statement, counsel for RailCorp said this: (WS [45])
"[45] Put squarely, it was grossly unjust and simply wrong of the First Defendant to determine, at all, the more so without any evidence supporting such an approach, that the Second Defendant 'ought to be given a chance to prove that this incident was a one off' when what is put at risk by such a decision is the safety of the travelling public and the Plaintiff's employees. It is an error to require the Plaintiff to take that risk at all. ... "
48 Further, RailCorp drew attention to the statement that followed, which was unsupported by any evidence (T 37/38):
"This is a substantial leap of faith by the Board but is one we are prepared to make given your long and satisfactory work history, your supportive and indeed dependent family, and our assessment that you can be trusted not to offend again in a similar fashion."
(emphasis added)
49 These matters in combination, according to RailCorp, meant that the decision of the Board to reinstate Mr Pegler was "so unreasonable that no reasonable authority could ever have come to it" (WS [65]).
50 Let me examine each pillar of RailCorp's argument, drawing attention to other evidence which was before the Board. Having done so, I will then consider whether RailCorp has demonstrated that the Board's decision was so unreasonable that no reasonable authority could ever have come to it. The first pillar of the argument concerned the offence itself. The recital of facts by RailCorp, set out above, is accurate. Unquestionably it was a serious offence. But it was not an offence of drinking on the job, or drinking before going to work. It was not an intentional breach. It was a miscalculation after a Christmas party the night before. Mr Pegler's "big night out" finished at least 17 hours before he was due to begin work on Saturday 8 December 2007. One infers that, after the party, he had slept. He gave evidence that he had lunch. One would assume he had also had breakfast. He believed, wrongly, that he was completely sober. He drove to work. There is no suggestion that he made any mistake in performing his duties that afternoon. When seen by Investigator Whitmore at 4.10 pm (two hours after he commenced his shift), he did not exhibit any of the usual signs of alcohol intoxication. He did not smell of alcohol. His eyes and complexion were clear. His speech and movements were normal. When confronted by the incontrovertible evidence that he was over the limit, he was upset and remorseful.
51 Let me move from that to the subjective case of Mr Pegler. His evidence, in my view, was not "nebulous". He gave an unqualified assurance that "this would never happen again" (T 13/14) (supra para [27]). Nor, in my view, is it reasonable to expect him to call as witnesses the alcohol counsellors he had seen. Such an expectation may be reasonable in litigation before a court. This, however, was a disciplinary hearing in which, appropriately, there was a degree of informality. Mr Pegler was represented by a Union official. When he gave evidence, he repeated without objection what his counsellors had told him, that is, that he was not dependant upon alcohol although he had been drinking at risky levels. After his breach, he had undertaken rehabilitation, arranged by RailCorp. His programme envisaged assessment by RailCorp doctors and continuous reporting by the counsellors whom he saw. The letter from RailCorp to Mr Pegler of 23 January 2008, included these words: (Ex 3)
"Your counsellor, doctor and other providers will need to communicate and work closely with your Case Manager.
On-going drug/alcohol testing is part of the rehabilitation process."
52 On 24 January 2008, Mr Pegler signed "an information release authority" which was as follows:
"I authorise the Human Resources department to obtain and/or provide verbal or written information relevant to my current medical condition, rehabilitation and return to work programs from or to:
· My treating Doctor,
· My Counsellor,
· My Case Manager and HR Representative, and
· Any other persons necessary to ensure the successful implementation of my Rehabilitation Program."
53 Counsel for RailCorp acknowledged that his client would have received such reports. On the other hand, there is no reason to think that Mr Pegler would have been given a copy. Although Mr Pegler had the onus on the appeal, it would have been open to RailCorp, had they thought it appropriate, to place this material before the Board. One imagines they would have done so had it contradicted Mr Pegler's account of what his counsellor had said, or cast doubt upon his assurance that he had learned his lesson.
54 Further, the assurance given by Mr Pegler was not unsupported, as suggested by RailCorp. Mr Pegler's wife wrote a letter assuring the Board that her husband had followed every instruction of his employer since the incident. She ventured the opinion that he did not have an alcohol problem. RailCorp arranged for Mr Pegler to have a liver function test. On 17 January 2007, an organisation known as Health Solutions, advised that his blood test was "entirely normal showing no liver damage". Dr Moss added, however, these words: (Ex 3)
"As we discussed, you still need to reduce your alcohol intake."
55 It was also relevant that Mr Pegler had been working for RailCorp for 23 years. He had committed no disciplinary offence in that time. He had undertaken many random breath tests, and had never previously failed. The issue he had with alcohol in 1999 had arisen outside work, although he had been directed to abstain from alcohol for a time once he returned to work.
56 A further aspect of Mr Pegler's subjective case was his likely future, were he dismissed. He was a man aged 40 years, married with two children. He had been working for the railways since the age of 17 years. His work was in an area, signalling, which would not readily translate into a job outside the railways. His wife, in these circumstances, made the following statement which was realistic:
" ... David and I are very concerned for their futures because we feel it will be extremely difficult for David to get any future employment at only the age of 40 with a one off history of being dismissed from a 23 year career and the circumstances surrounding his dismissal."
57 Let me move, finally, to the Board's decision. What did the Board mean when it said that RailCorp "was fully entitled to impose the penalty of dismissal"? Does it mean, as RailCorp suggested, that the Board had accepted that dismissal was the appropriate penalty? I do not believe that it does. The Board's reasons must be read as a whole. The Board's statement must be read in conjunction with what follows, where the Board determined that a penalty other than dismissal was appropriate. It is possible that the Board may simply have been stating the maximum penalty, which is always a relevant guidepost when considering an appropriate penalty. When RailCorp first wrote to Mr Pegler on 18 December 2007, identifying the charge and warning of the "possible outcomes of the disciplinary process", their letter said this:
"The possible outcomes of the disciplinary investigation are:
1. No further action required;
2. A caution or reprimand;
3. A fine;
4. Reduction in position, rank or grade and pay;
5. Suspension from duty without pay; and
6. Dismissal."
58 However, I think it likely that the Board was saying that the decision of RailCorp was comprehensible, given its perspective. It was the employer. It had a Code of Conduct. The Code had been breached. There were safety implications. The breach was serious. It is understandable that in such circumstances, from an employer's perspective, such matters should be given primacy, such that they may swamp considerations of a personal kind, including rehabilitation.
59 The Board well understood that it was reviewing RailCorp's determination in the light of the material placed before it, and considering whether it was appropriate and reasonable. In the nature of things, the Board had a wider perspective and was in a position to view the matter with greater dispassion. It was constituted by three members, an independent Chairman who is a statutory appointment (s 5(1) Transport Appeal Boards Act), and two members drawn, respectively, from the Corporation and the relevant industrial union (Schedule 1: Pts 1 and 2 of the Act). The Board, in its decision, determined that dismissal was not the appropriate sanction.
60 The remaining passages from the judgment, which are the subject of criticism in the submissions of RailCorp, must be seen as the expression of reasons by a lay tribunal, not a court. In Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367, Kirby P (McHugh JA agreeing) said this:
" ... I believe that it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved. Increasingly, courts have to review, on questions of law, expert specialist tribunals. Thus the Federal Court of Australia must review, on questions of law, decisions of the Administrative Appeals Tribunal. This Court has functions to review on questions of law the Government and Related Employees Appeals Tribunal, certain decisions of the Land and Environment Court and other bodies. There are powerful reasons of policy, quite apart from loyalty to the statutory language, that would suggest restraint in criticising the language used in their decisions by lay tribunals.
Here, the Parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the Parliament."
61 The Board recognised that it needed to address whether there was a risk that Mr Pegler would transgress again. It made "an assessment ... that you can be trusted not to offend again". Although it used expressions such as: "he should be given a chance" and "substantial leap of faith", the determination which the Board made was, in truth, no different from an assessment made by courts every day in the context of the imposition of penalties (cf Crimes (Sentencing Procedure) Act 1999, s 21A(3)(g) "The offender is unlikely to re-offend" and s 21A(3)(h) "The offender has good prospects of rehabilitation ... ").
62 RailCorp has not established that the balance which the Board ultimately struck was "grossly unjust and simply wrong". There is no substance in Ground (c) of the Summons, nor Grounds (a)(i), (ii), (iii). The decision of the Board was certainly open to it and, in my view, both reasonable and sensible.
63 However, that does not answer all the complaints made by RailCorp in its Summons. Let me therefore examine the remaining suggested errors of law.