Leave to Appeal - Termination of Employment - challenge to credit based findings of fact - apprehended bias - when appeal on the basis of apprehended bias lies.

[1] This is an appeal against the decision in transcript on 23 May 2008 and order [12

[30] Given the history of the matter and Dr Hanson's evidence it was a reasonable and proper exercise of discretion for the Senior Deputy President to first adjourn the matter to 16 April 2008 and, secondly, to decline to adjourn the matter on 16 April 2008.

[31] We will deal with Grounds 3 and 4 before returning to Ground 2.

[32] Ground 3 in the Notice of Appeal was not particularised. We can see no basis for concluding that the Senior Deputy President made findings that were not based on the evidence before him. Indeed, it seems to us that the Senior Deputy President's ultimate findings were inevitable given the evidence before him and the credit assessments that he made.

Ground 4 - Findings as to credit not reasonably open

[33] Ms Turville's employment was terminated for reasons of poor performance and misconduct. Specifically, the Commonwealth contended that Ms Turville, in her capacity as a staffer to Senator Watson:

• failed to provide properly drafted and completed speeches and Senate estimates questions as and when they were required;

• that she improperly and without authority utilised the parliamentary travel scheme for her private benefit and the private benefit of her children; and

• that during her employment she engaged in a serious breach of her duty of fidelity in that she improperly and covertly sought to discredit the Senator and lower his standing and reputation in the eyes of the community by making a false complaint about the Senator to ASIC ("ASIC complaint").

[34] The Senior Deputy President made credit-based findings of fact against Ms Turville on each of these matters.

[35] The law governing challenges on appeal to findings of fact based on an assessment of credibility of witnesses is well established. The classic statement of principle is to be found in the judgment of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission [13] where their Honours observed:[14]

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his (or her) advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

[36] However, no short exhaustive formula, such as "glaringly improbable", meets every case [15] and this statement of principle should be seen in the broader context provided by the lengthy discussion on the nature of appellate review of fact finding in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy.[16]

[37] The Notice of Appeal does not identify the findings as to credit which are alleged not to have been reasonably open to the Senior Deputy President. In the hearing before this Full Bench Ms Turville focussed on the finding by the Senior Deputy President that Ms Turville lied when she denied having been counselled for poor performance whilst working as a staffer in the office of the Attorney-General and lied when she denied having received or seen a letter relating to poor performance dated 15 March 2006 from the Attorney-General's Chief of Staff, Mr Steve Ingram.

[38] In cross-examination, Ms Turville repeatedly denied that poor performance had ever been raised with her whilst she worked in the office of the Attorney-General. She was shown a six page letter dated 15 March 2006 from Mr Ingram which deals with a number of performance issues including problems with attendance ("First Letter"). [17] Ms Turville denied receiving or ever having read that letter. She was then shown an email dated 27 March 2006 from her to Mr Ingram[18] which includes the following:

I have considered both the salary increment pro forma and your letter regarding work performance dated 15 March 2006.

Due to the serious nature of your claims, the pattern of your behaviour toward me over a year and given the breakdown of our professional relationship, I intend discussing the matter with the Attorney General when he is available later in the week...

[39] The Senior Deputy President saw the email of 27 March 2006 as objective evidence that Ms Turville had received the First Letter and consequently that her evidence denying receipt of the First Letter and denying that poor attendance had ever been raised with her was untruthful.

[40] Before the Senior Deputy President Ms Turville acknowledged the authenticity of the email of 27 March 2006 but denied that that email referred to the First Letter and at one point indicated that there was a second letter of 15 March 2006 ("Second Letter") and that it was this Second Letter to which her email referred. She complains that in some way the Senior Deputy President prevented her from relying on the Second Letter. The Senior Deputy President did not reject any attempt to tender the Second Letter. Indeed, Ms Turville did not seek to tender the Second Letter either on 16 April 2008 when she was self-represented or when the hearing resumed (more than a month later) by which time she was represented by Mr Storace who appeared for her for the balance of the hearing. Ms Turville was still in cross-examination when the hearing resumed. Mr Storace did not seek to re-examine Ms Turville on this issue nor did he seek to tender the Second Letter.

[41] We allowed Ms Turville to tender, on her application for leave to appeal, what she says constitutes the Second Letter. [19] It has machine printed text dated 13 February 2006, is addressed to "Genevieve/Laura" and signed by Mr Ingram and deals with changes to administrative responsibilities between Ms Turville and Laura Florance. Two pages are attached. Each contains two tables listing responsibilities for each of these persons. One of the pages relates to the period "[p]rior to 13 February 2006" and the other relates to the period "[f]rom Tuesday 14 February 2006". One of the responsibilities that moved from Ms Florance to Ms Turville was "AGO switch". There is a handwritten note at the bottom of the document as follows:

It is my expectation that the switch should be open from at least 9am to 5:45pm each day. I believe this fits in with your childcare needs, even before you have the new nanny arrangements. Given there should be minimal need for you to be in the office at other times I believe this is a reasonable expectation.

[42] Attached to the Second Letter is a pink post-it note with the following handwriting.

[43] Ms Turville asserted that the Second Letter was given to her on 15 March 2006 by Mr Ingram in the form in which it was tendered, along with the salary increment proforma (the original of which was also handed up [20]). The salary increment proforma is a single sheet of paper with printing and writing on both sides. Mr Ingram's signature, dated 15 March 2006, appears on the second side immediately above an empty box labelled "Signature of Employee". The first side of the document contains a section headed "Employer's Report" and includes a box labelled "Comments". The handwritten comment, apparently in the writing of Mr Ingram, is as follows:

poor performance of duties, inability to prioritise, lack of consultation, poor attendance record, lack of communication with other staff

[44] The handwritten words "as discussed" appear beside this comment.

[45] Even if, in some fashion, the Senior Deputy President erred in not seeking the Second Letter (and we do not suggest that he did), we are satisfied that the tender of the Second Letter could not have altered the negative assessment of Ms Turville's credit made by the Senior Deputy President.

[46] The Second Letter cannot reasonably be characterised as a "letter regarding work performance" the receipt of which is acknowledged in Ms Turville's email of 27 March 2006. It is difficult to see how a reasonable person could characterise the Second Letter as being dated 15 March 2006. It bears a printed date of 13 February 2006 and otherwise bears no date. The post-it note bears a date of 15 March 2006 but the text on the post-it note strongly suggests that it was originally attached to the salary increment proforma rather than the Second Letter. The salary increment proforma, which was before the Senior Deputy President as Exhibit R16, was dated 15 March 2006 by Mr Ingram and contains provision for signature by the employee on the back face (ie "over"). The instruction to "please sign over and return to me" makes perfect sense in relation to the salary increment proforma but makes no sense in relation to the Second Letter. The only rational conclusion reasonably available on the evidence is that, despite her denials, Ms Turville's email was referring to the First Letter. We note that Ms Turville's denials of having received or seen the First Letter occurred in the context of her acknowledging that it was the sort of letter that she would have remembered if she had seen it.

[47] The comment, on the salary increment proforma, and the annotation "as discussed" beside that comment, constitute cogent evidence in the form of a contemporaneous business record that Mr Ingram did in fact have discussions with Ms Turville about poor performance issues including poor attendance. The decisions of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [21] and Fox v Percy[22] emphasise the need to give substantial weight to contemporaneous records that bear upon a factual issue in respect of which there is conflicting oral evidence given at a later time. Indeed, the Senior Deputy President was obliged not to accept the oral evidence of Ms Turville denying any counselling by Mr Ingram in relation to poor attendance unless the inconsistency between that evidence and the comment on the salary increment proforma was adequately explained by, for example, undermining the reliability of comment on the salary increment proforma. There was no adequate explanation for the inconsistency.

[48] In summary, Ms Turville did not make out an arguable case that, in making the adverse credit finding against her, the Senior Deputy President "has failed to use or has palpably misused his advantage" in hearing the witnesses give their evidence or that he acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" or otherwise involved error amenable to appellate review.

[49] We have already dealt with particulars (a) and (b) of Ground 2. We are not persuaded that those matters are capable of founding a reasonable apprehension of bias within the meaning of the authorities, [23] either alone or in combination with the other matters relied upon by Ms Turville.

[50] We turn to particular (c) of Ground 2. During the hearing before the Full Bench Ms Turville placed particular emphasis on the Senior Deputy President's response to her opening statement. After objection from counsel for the Commonwealth, the Senior Deputy President prevented Ms Turville from completing her opening and ordered that the transcript of the opening be confidential. Ms Turville's opening, to the extent that it was transcribed, contains much that is irrelevant to the matters that the Senior Deputy President was required to determine and included serious allegations against a number of people. The purpose of an opening is to introduce a party's case to the court or tribunal, to draw attention to key factual issues upon which it is expected the case will turn and to identify particular matters that the court or tribunal may need to address in order to complete the hearing in an efficient and effective manner. It is not an opportunity, under the cloak of privilege, to say whatever one likes about others. What is said in an opening is not evidence in the case. We find no error in the exercise of procedural discretion by the Senior Deputy President to prevent Ms Turville from completing her opening and to order that the transcript of the opening be confidential.

[51] Apart from this, Ms Turville did not identify particular remarks said to lend support to Ground 2. For ourselves, we can see nothing in the transcript which would support a finding of apparent bias against the Senior Deputy President. It is true that at several points the Senior Deputy President, for one reason or another, used language that was forceful or was critical of Ms Turville. On each such occasion the remarks, when considered in context, were not without justification.

[52] Ms Turville complained that the Senior Deputy President, after terminating her opening, followed an unusual and unexpected course. This is incorrect. He followed the ordinary course of embarking upon the reception of the applicant's evidence after dealing with a particular housekeeping matter relating to witnesses who had been summonsed at short notice.

[53] Ms Turville complained about the Senior Deputy President releasing witnesses who had attended the hearing on 15 April 2008 under summons. It became apparent on 15 April 2008 that the hearing proper could not commence on that day because Ms Turville was not present. The Senior Deputy President adjourned the matter to 16 April 2008. It would have been more than tolerably clear to the Senior Deputy President that it was likely that Ms Turville's own evidence would take most or all of that day and that there would be a need to adjourn the matter to a future date to complete her case and the balance of the hearing. It was entirely reasonable for the Senior Deputy President to come to the view that summonsed witnesses should not be required to remain at the court when it was unlikely that they would be required to give their evidence before that future date. In the event the matter was adjourned for further hearing commencing on 21 May 2008. The witnesses in question had been summonsed at very short notice. Some did not wish to attend unless compelled to do so. On 16 April 2008 the Senior Deputy President questioned Ms Turville about the evidence she expected the witnesses to give and identified some of the evidence as irrelevant. It is clear that the Senior Deputy President was prepared to require the attendance of at least two of the witnesses. [24] In any event, it was open to Ms Turville to seek to have the Commission compel the witnesses to re-attend on the resumption of the hearing. By that time Mr Storace was acting for Ms Turville. Mr Storace did not seek to call any further witnesses and made no application to have any of the released witnesses attend. Finally, we should observe that, on the basis of Ms Turville's articulation of the evidence that she anticipated the witnesses would give, we are not satisfied that any of those witnesses could have given evidence bearing upon the critical credit issue in the case and, accordingly, their evidence could not have affected the outcome in relation to the most significant misconduct issues, namely misuse of travel entitlements and the breach of the duty of fidelity involved in the ASIC complaint. For completeness, we note that Ms Turville contended that her termination had been planned. She anticipated that one of the witnesses she wished to call would give evidence that would prove that a replacement for her was being sought prior to her termination. Even if this were established it does not bear materially upon whether Ms Turville in fact engaged in the misconduct alleged against her.

[54] Ms Turville complained about the dates that were set for the resumed hearing and, in particular, that on 16 April 2008 she was deprived of an opportunity to view her diary or to consult with a lawyer who she says had agreed to appear for her subject to the hearing being listed on suitable dates. The relevant transcript [25] discloses that the Senior Deputy President raised the issue of further dates before the luncheon adjournment on 16 April 2008 and discussed the matter with the parties upon the resumption. Ms Turville had an opportunity to make enquires and raise difficulties presented by particular dates. The transcript records that Ms Turville had her personal diary in the hearing room and consulted it. The Senior Deputy President does not appear to have refused a request by Ms Turville that she have an opportunity to make a call to her office so that her work diary could also be checked.[26] Some of the discussion about suitable dates occurred off the record. We have no evidence as to what was said in that short time. However, there is no indication of any complaint by Ms Turville when the Senior Deputy President went back on record. On the material before us there was nothing unfair about the way the Senior Deputy President went about setting the dates for the continuation of the hearing and it provides no evidence of apparent bias.

[55] After making the adverse credit finding against Ms Turville, the Senior Deputy President made the following observation ("'prism' observation"): [27]

I'm not even certain that Ms Turville realised or realises that she's not telling the truth. It's as though she views events through a prism that distorts reality. But that's not a finding that I am qualified to make.

[56] Ms Turville argued that this statement is evidence of bias. We do not agree. A judge or judicial officer experienced in life, after seeing a witness tested in cross-examination, may well be able to reach a conclusion that the witness seems to have a distorted or dysfunctional view of reality. The judge or judicial officer may not be qualified to diagnose a particular medical disorder as the cause of that distorted or dysfunctional view of reality but this does not mean that he or she lacks the qualification to make such an observation.

[57] Ms Turville also placed particular emphasis on what she saw as the unfairness in the Senior Deputy President refusing to allow her to call Mr Ingram and then, the very next day, permitting the Commonwealth to call Mr Ingram. In fact Ms Turville's legal representative did not seek to call Mr Ingram. Rather, he sought an adjournment for the purpose of contacting Mr Ingram: [28]

MR STORACE: Thank you, Commissioner. Commissioner, I'm instructed to apply for an adjournment in order to contact a witness, Mr Steve Ingram.

THE SENIOR DEPUTY PRESIDENT: No. Have you got someone else at the moment? Do you have another witness you may call?

MR STORACE: No, your Honour, that is it. That's my instruction.

THE SENIOR DEPUTY PRESIDENT: Well, why are we now trying to contact Mr Ingram?

MR STORACE: All I can tell you, your Honour, is that that is my instruction.

THE SENIOR DEPUTY PRESIDENT: On the basis of that request your application is refused.

[58] In circumstances where Mr Storace was unable or unprepared to articulate a reason for his application there was no error in the Senior Deputy President refusing an adjournment at that point.

[59] When, on the other hand, the Commonwealth subsequently sought to call Mr Ingram it did so on a specified basis, namely "by way of evidence in rebuttal to certain matters that were dealt with in cross-examination" [29]. In context, it is clear that those matters were Ms Turville's evidence in relation to the letter of 15 March 2006 and her email of 27 March 2006. Significantly, Mr Storace did not oppose the application and, indeed, seemed to welcome it:[30]

MR HARRINGTON: I just made the submission that I'm calling Mr Ingram by way of rebuttal evidence in respect of certain matters that were put and answered in cross-examination.

MR STORACE: Your Honour, we have no problem with that at all.

[60] We can well understand that the Commonwealth's representatives would not have anticipated that Ms Turville would deny receiving or seeing the letter of 15 March 2006 and deny ever being counselled on poor attendance by Mr Ingram. The Senior Deputy President was correct to allow the Commonwealth to call Mr Ingram for the purpose of rebutting that unanticipated evidence in cross-examination. This is particularly so when there was no objection to that course from Mr Turville's representative.

[61] More fundamentally in relation to Ground 2, apprehension of bias - as distinct from actual bias - cannot provide a basis for an appeal unless an application has been made to the trial judge that he or she disqualify him or herself on the ground of apprehended bias. An appeal will only lie where such application has been made and incorrectly refused unless the apparent bias emerges for the first time in the reasons for decision. [31] Apart from the 'prism' observation, none of the matters relied upon by Ms Turville arose for the first time in the Senior Deputy President's decision. No disqualification application was made by Ms Turville or Mr Storace and, accordingly, no appeal lies "by reason of apparent bias" other than in relation to the 'prism' observation. For the reasons given, we are not satisfied that that observation could found a reasonable apprehension of bias.

[62] An appeal will always lie where actual bias can be demonstrated. In oral submissions, Ms Turville contended that this was a case of actual bias. We can see nothing whatever in the material before us to suggest actual bias on the part of the Senior Deputy President.

Ground 5 - Taking into account irrelevant consideration - reliance on conduct in previous position

[63] Although Ms Turville's position in the office of the Attorney-General was a previous position it was not previous employment. She had been continuously employed by the Commonwealth in a succession of positions with several members of parliament. We are not persuaded that reliance on conduct that occurred when Ms Turville was working in the office of the Attorney-General involved taking into account an irrelevant consideration. On the contrary, in an appropriate case such evidence is relevant as tendency evidence and properly received. This was such a case.

[64] Ms Turville failed to establish an arguable case of appealable error on the part of the Senior Deputy President. We were not persuaded that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice might result if leave was refused. The adverse credit finding against Ms Turville was critical to the outcome of the case. The key allegations of misconduct against Ms Turville turned on conflicting oral evidence. The Senior Deputy President preferred the evidence of the Commonwealth's witnesses over the evidence of Ms Turville with the inevitable result that the misconduct was found to be proved. We were satisfied that Ms Turville had identified no proper basis for interfering with the adverse credit finding made by the Senior Deputy President. We have dealt with the main arguments advanced by Ms Turville. To the extent that there are arguments advanced in the Directions Document which we have not addressed in detail or not addressed at all, they had no impact on the outcome of the application for leave to appeal. For all these reasons leave to appeal was refused.

Mr N Harrington of counsel instructed by Mr L Connolly of Clayton Utz for the respondent

Printed by authority of the Commonwealth Government Printer

[1] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

[2] [1936] HCA 40; (1936) 55 CLR 499 at 504-5

[3] Transcript of mention, 24 July 2008, PN187ff

[4] [1997] HCA 1; (1997) 189 CLR 146

[5] Part of Exhibit A on the application for leave to appeal

[10] Last page of Exhibit A on the application for leave to appeal

[12] Transcript at PN220ff esp at PN222

[15] State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 per Gaudron, Gummow and Hayne JJ at [3] - [4]

[16] [2003] HCA 22; (2003) 214 CLR 118 at [20] - [31]

[19] Exhibit 2 on the application for leave to appeal.

[20] Exhibit 3 on the application for leave to appeal.

[21] [1999] HCA 3; (1999) 160 ALR 588

[22] [2003] HCA 22; (2003) 214 CLR 118

[23] See the summary of authorities in Oram v Derby Gem Pty Ltd (2004) 134 IR 379 at [107]ff.

[24] Transcript at PN511, PN513 and PN665ff

[31] Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 422; R v Justices of Rankine River; Ex parte Sydney; Ex parte Pluto (1962) 3 FLR 215; Nickelseekers Ltd v Vance [1985] 1 Qd R 266