(e) Her Worship found that the defendant:
(i) had done well during his 9 years and 15 weeks of employment with the plaintiff;
(ii) was well qualified;
(iii) successfully retained management positions during earlier restructurings of the plaintiff;
(iv) had been promoted during earlier restructurings of the plaintiff, and
(v) was highly regarded by his superiors, and
(f) Her Worship found that the defendant did not give the plaintiff any reasons for terminating his employment with the plaintiff.
16 By ground 3 it is asserted that, "in circumstances where" the magistrate had found the same series of facts, she erred in her conclusion:
"that the defendant's uncertainty about how long his position would continue due to restructuring with the plaintiff was the real or motivating reason for the defendant terminating his employment with the plaintiff …"
17 By reference to the same findings of fact, ground 4 asserts that her Worship:
"erred in finding that the defendant's termination of his employment with the plaintiff was reasonable …"
18 In my view, these grounds raise nothing but questions of fact. They attack the reasoning process, but it is purely a factual reasoning process that they attack; that is, the process of reasoning from a series of established facts to a conclusion, which is itself a conclusion of fact.
19 In saying what follows, I would not wish it to be thought that I accepted the proposition that the reasoning process was in any way flawed. It is simply unnecessary, and not open to this Court, to consider that question. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 the Court of Appeal observed that, where an appeal is limited to a question of law, it is pointless to submit that the reasoning by which the court of first instance arrived at a finding of fact was demonstrably unsound as this does not amount to error of law (p 156).
20 I reject grounds 2, 3 and 4 as not raising a question of law, or a question of mixed fact and law.
21 Ground 1, while framed in essentially the same terms as the succeeding three grounds, is not in quite the same category. By reference to the same findings of fact, plus one additional fact (which it is not necessary here to specify) it is asserted that her Worship erred:
"in finding that the defendant terminated his employment with the plaintiff on account of a 'pressing necessity' within the meaning of paragraph 4(b) of clause 1 of Schedule 5 to the Public Sector Management Act 1988 …"
22 The written argument put in support of this ground referred to precedent in relation to the construction of the clause. Reference was also made to dictionary definitions of the two words "pressing" and "necessity". The opening words of the ground are capable of raising a question of law, if what is intended is a challenge to the construction placed upon the section by the magistrate. When regard is had to the citation of authority in the submissions advanced on behalf of the SRA, some colour of a question of law is suggested. However, the principal substantive argument that was put in support of the ground was that her Worship:
"could not have correctly applied the objective test … given her findings of fact."
23 In my view this is merely another question of fact dressed up as a question of law. The argument is no more and no less than an argument that error of law is demonstrated by a conclusion of fact that is perverse.
24 I assume that the point the SRA seeks to make is that the ultimate finding of fact was untenable in the sense of being not open on the evidence, or within the terms stated in Azzopardi, where Glass JA wrote:
"Further an ultimate finding of fact, even in the absence of a misdirection, may reveal an error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made …"
25 For this principle to be applicable it would be necessary for the SRA to establish that on the findings of fact made by magistrate, it was not open to her to conclude that Mr Smith had proved pressing necessity.
26 If this is what the SRA intended to argue, I reject it. The magistrate did acknowledge that the case may be on the borderline, but ultimately, having found the primary facts, she concluded that they brought Mr Smith within the statutory description. I am not satisfied that the SRA has made good an assertion that, on those primary facts, it was not open to the magistrate to find pressing necessity.
27 It was further argued that the magistrate failed to distinguish between "domestic necessity", "illness or incapacity" and "pressing necessity". This I do not accept. As I have observed above, neither illness, incapacity, nor domestic necessity was in issue and it was not necessary for the magistrate specifically to exclude those circumstances. What she had regard to, and properly had regard to, was the question of "other pressing necessity", and she derived guidance from the relevant authorities in relation to the tests applicable to that question.
28 As part of the same argument it was put that her Worship failed to take into account "the urgency and degree of compulsion" required to establish "pressing necessity".
29 I find nothing in the clause that requires either "urgency" or "compulsion". "Pressing necessity" is, in my view, something less than "compelling necessity" and probably something less than (and certainly something different from) "urgent necessity". In my view the legislature chose its terms carefully and the magistrate properly appreciated their import.
30 The SRA at least twice in its written argument relied upon the notion of "compulsion" or "compelling necessity". The origin of this gloss on the word used by the legislature appears to be Computer Science of Australia Ltd v Lesley [1983] 6 IR 188 at 191. There the Full Bench of the Industrial Commission of NSW in Court Session used the same terminology. Their Honours wrote:
"We do not think, in any event, that properly considered, the judgments in Eyles v Cook [(1967) 13 FLR 42] and British Motor Corporation v Chance [[1964] AR(NSW) 364] are to be read as implying that the test is a 'subjective' one in the sense that the worker's view is to prevail even though a reasonable person would not have felt compelled to seek a solution to the problem by terminating his employment in the same circumstances…
Applying that approach, the present case should be resolved, in our view, by asking the following question. (1) Was the reason claimed for termination one which fell within the section? (2) Was such reason genuinely held by the worker and not simply colourable or a rationalisation? (3) Although the reason claimed may not be the sole ground which actuated the worker in his decision to terminate, was it the real or motivating reason? (4) Was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate his employment? " (emphasis added)
31 I do not think, in these passages, the Commission intended to substitute a test of "compelling necessity" for "pressing necessity". If it did, then, not being bound by its decision, I would respectfully decline to follow it. I would accordingly find no error if her Worship also declined to apply to test so framed. What her Worship did was to consider the questions posed in Lesley and she then held:
"For Mr Smith it was not merely desirable to go but in those circumstances and with that uncertainty I accept that he felt compelled."
32 It seems to me that, in applying the tests posed by Lesley, her Worship may have subjected Mr Smith to a more stringent test than the legislation required. If there was error, it was error that favoured the SRA. In my opinion "compelling necessity" encompasses "pressing necessity".
33 I see no other error of law in the approach taken by the magistrate.
34 Ground 5 asserts error by the magistrate:
"in finding and taking into account in her decision that the defendant had 'a need for a secure future' when there was no evidence to support such a finding and no case advanced by the defendant to that effect."
35 This ground is, in my view, founded on a fallacy. The entirety of Mr Smith's case lay in the insecurity of employment created by the constant restructuring in the SRA and his need, both for his own professional reasons, and to support his family, for security of employment. There was no error of law in taking this circumstance into account. The foundational premise of the ground is not established.
36 Ground 6 is a reformulation of the argument to which I have earlier alluded, concerning the asserted failure to distinguish between tests for "domestic necessity", "illness or incapacity", and "other pressing necessity". I have already expressed my views in relation to this assertion. No error of law is demonstrated.
37 The final ground, ground 7, asserts that the magistrate erred:
"In finding that the defendant's desire for career advancement and job satisfaction, in circumstances where he had job security, compelled him to terminate his employment with the plaintiff."
38 This, again, in my view, is a ground that raises a question of fact. I have extracted above the passage in the judgment in which the magistrate made the finding now criticised. It is not open to the SRA to argue the ground as framed.
39 Having regard to the conclusions I have reached, it is unnecessary to consider whether the SRA should be granted leave to appeal on questions of mixed fact and law. The grounds, generally speaking, raise only questions of fact, and where they may be distilled to yield a question of law, it is a question of law in which no error has been demonstrated. There are no questions of mixed fact and law. The summons is dismissed. The SRA is to pay Mr Smith's costs of the proceedings.