Tucker v Secretary of the Department of Transport as Head of the Transport Service of New South Wales [2025] NSWIRComm 19

1. The applicant was employed by Transport for New South Wales Maritime (Maritime) as a Boating Safety Officer (BSO) stationed at Yamba on the New South Wales North Coast. At the time of making his first statement, the applicant was 53 years old and had been employed as a BSO for 23 years prior to his termination in January 2024. In his outline of submissions at first instance, the applicant described the role of such officers as follows:

"Boating Safety Officers are responsible for providing day to day waterway patrols, advice and management of navigation and vessel-related activities on assigned local waterways through education, liaison and enforcement ensuring compliance with relevant legislation and organisational policies and requirements. NSW Water Police often times request the assistance of Boating Safety Officers in their investigation of serious offences, and incidents involving grievous bodily injury."

1. On 26 September 2022, a boating accident occurred on the Sandon River. The seriousness of the accident caused the Coffs Harbour Water Police to commence an investigation. The applicant was asked by the police to provide background checks on the persons involved. This is a common occurrence as the police do not have direct access to Maritime's database.
2. The applicant promptly searched the database and provided the information to police without any comment suggesting concerns as to its accuracy. One of the persons involved in the accident was the son of a person known to the applicant, a Port Authority employee Mr Wayne Smith, with whom the applicant had both professional dealings and at least occasional social interactions. Mr Smith's teenage son, Noah, suffered a fractured femur in the accident and was transported to hospital for surgical treatment.
3. About seven months prior to the accident, the applicant had sent a text message to Mr Smith asking him to speak to his son, who attended the same school as the applicant's son. It was said that Noah had been bullying the applicant's son at school, and that the bullying involved disclosure of information which was confidential and could only have come from Mr Smith. The applicant said that Mr Smith acted upon the text and the bullying stopped. As far as the applicant was concerned, that was the end of it.
4. As to the information provided to police, the applicant noted that, according to Maritime's database, Noah had no record. The applicant said that this surprised him as he recalled that another BSO, Mr Karl Hamilton, had told him that Noah had been involved in an earlier incident. He felt there should have been a record. He said he was concerned that the information he had provided to the police may have been incomplete, though he did not tell the police that, nor did he contact the BSO who had informed him of the incident involving Noah. Mr Hamilton was still employed and, in fact, was emailed a copy of the police accident report by the applicant on 28 September 2022. No comment was made at that time about any concern as to the accuracy of the background check. As the applicant knew Mr Smith, he decided to contact him directly to ask if Noah had a record with Maritime.
5. On 28 September 2022 at 8.42am, the applicant telephoned Mr Smith, leaving a voicemail asking that he return his call. At 2.39pm, he attempted to call again with no success. At 2.40pm, Mr Smith sent a text saying:[1]

"Hope Noah is okay. Police have asked me to do Maritime background checks. I can't find a record for Noah. Guess that's a good thing, but I thought he would have a license?"

1. At 6.15pm that day the applicant sent Mr Smith another text. He wrote:

"Wayne, I'm sorry Noah is involved. I need to provide the info requested. Does Noah hold a Boating Licence or have previous offences or some record with Maritime?"

1. The following day at 2.09pm the applicant again attempted to call Mr Smith and left a voicemail which was transcribed as follows:

"Hi Wayne Luke just following up on seeing how Noah is and I still need some information about his licence if he has one or other record with Maritime. I can't seem to find anything which like I said I guess is good, but it surprises me we don't have anything I'm thinking there is a data error name spelling or date of birth something like that Give me a call back thank you."

1. The next exchange between the applicant and Mr Smith occurred on 14 October 2022 when they had a chance meeting. Mr Smith was at a coffee shop with a colleague when the applicant came upon them. The applicant and Mr Smith exchanged greetings, and the applicant asked Mr Smith how his son was going. He then referred to his calls and texts which were unanswered. Mr Smith cut him off, telling him it had "nothing to do with [him]". Mr Smith then proceeded to leave. The applicant called after Mr Smith that it did involve him.
2. On 18 October 2022 at 1.01pm, the applicant sent the following text to Mr Smith:

"Wayne.

I draw your attention to Powers conferred to me under Section 117 of the Marine Safety Act 1998. You have refused to cooperate, although I made four separate requests for information from you in relation to a boating incident.

I draw to your attention Section 125 of same Act providing Penalty for refusing to co-operate and caution you accordingly.

I will discuss the matter with you in coming days.

Regards Luke"

"Luke,

Thank you for your concern.

Under no circumstances are you to approach or speak to my son in relation to this matter.

Under no circumstances are you to attend at my home address.

Under no circumstances are you to approach me and speak to me in relation to this incident.

This matter has been investigated by the Police and finalised.

Any further correspondence is to be directed to them.

Please do NOT Text me again in relation to this matter.

Wayne."

1. Mr Smith made a protected interest disclosure to the NSW Ombudsman on

10 November 2022. The Ombudsman referred the matter to the Independent Commission Against Corruption (ICAC). On 23 May 2023 ICAC referred the matter to the respondent who, on 28 June 2023, referred the matter for disciplinary investigation. On 3 July 2023 the respondent appointed an external investigator. On 10 July 2023 the respondent informed the applicant that it was undertaking an investigation into his conduct and that he was suspended on full pay. 2. The respondent made two allegations of misconduct against the applicant. They were:

(1) The applicant inappropriately exercised his official functions as a BSO whilst improperly engaging in enquiries which concerned Mr Smith and his son.

(2) The applicant engaged in enquiries which concerned Mr Smith and his son without declaring and/or appropriately managing a conflict of interest he had in dealing with them.

1. The investigator interviewed witnesses and considered documentary material such as the text records and the respondent's relevant policies. He also interviewed the applicant, and a transcript of that interview was annexed to his report. The report was considered by the respondent's Professional Standards Unit who made recommendations to the decision-maker, Mr Mark Hutchings, Executive Director of NSW Maritime, Transport for NSW, that disciplinary action should be considered.
2. The recommendations were contained in a document titled "Workplace Conduct/Disciplinary Case Summary" which was attached to Mr Hutchings' affidavit. Under the heading "Case Synopsis" there is a brief history of the matter, including a reference to media reports stating that Mr Smith and his son had died as a result of a murder-suicide. A link to a report in the Daily Mail Online is included, but there is no further reference to the matter.
3. Mr Hutchings was the only witness called by the respondent. Annexed to his statement was all the material provided to him for the purpose of considering whether disciplinary action should be taken and, if so, what that action should be. Those annexures included statements from the applicant's direct line supervisor, Mr Bret Ryan, and his manager, Ms Sonia McKay. It also included notes of a discussion with Mr Hamilton.

1. There were pre-hearing directions requiring the parties to file a notice of objection to evidence, and a "Statement of Issues and Agreed and Disputed Facts". The parties complied with those directions. In the latter document, relevantly, the issues identified were:

(1) whether the applicant engaged in misconduct as alleged by the respondent; and

(2) whether the applicant's dismissal was harsh, unreasonable or unjust in all the circumstances.

1. Two matters were identified as disputed facts. They were:

(1) The applicant disputes that his conduct in contacting Mr Smith in the period 18 September 2022 to 18 October 2022 amounted to a breach of the Code of Conduct.

(2) The applicant disputes that he engaged in misconduct.

1. For completeness we note that none of the agreed facts touched upon the deaths of Mr Smith and his son.
2. The applicant objected to the admissibility of much of the material attached to Mr Hutchings' affidavit on the basis of hearsay. In that regard, it is important to note that the Commission is not bound by the rules of evidence and is entitled to inform itself on any matter in any way it considers to be just: IR Act

s 163(1)(b). 3. At the outset of the hearing Mr Bond, for the applicant, responded to a question from the Senior Commissioner concerning discussions between the parties about the objections. Mr Bond indicated there had been some discussions and said:

"... I think the consensus was probably that we anticipate that you're not going to exclude any evidence. You're going to consider the objections and consider the evidence on weight and we're happy to proceed on that basis."

1. Ms Gall, counsel for the respondent, agreed to that, but drew a distinction regarding objections as to relevance, which she pressed, and objections as to opinion and conclusion, which she accepted would be considered on weight. That led to a significant discussion about the evidence in the affidavits of the witnesses called in support of the applicant which referred to the deaths of Mr Smith and his son. The Senior Commissioner asked Mr Bond the relevance of that evidence. His reply revealed a previously undisclosed "case theory". He said:

"Yes, we think it's at the heart of the case and we think that that is precisely the reason that the Department took the action that it did. The best I can tell, and I'm digging into documents that I consider hearsay, and trying to figure out the narrative, but it appears to us what happened was a complaint was made by Mr Smith back in November 2022 I believe, apparently to the Ombudsman. It sits there for three months. Three months later it goes to ICAC and then three months later goes back to the Department.

Shortly after it goes to the Department, Mr Smith kills himself and his son and the Department saw all sorts of, well, it was getting a lot of press in the Yamba area. He was well known, Mr Smith was, in that area. His son was well known and if you look at the actual complaint that was made by Mr Smith, he makes it sound like Mr Tucker destroyed his mental health, that he was causing him anxiety and stress and he's not sleeping, he's not able to attend work, and makes it sound like the actions of Mr Tucker destroyed his mental health and we say what the Department did was, once they became aware of those allegations, they panicked and said if the press gets a hold of this complaint, we could be blamed because this complaint's been sitting out there for six months. Nothing has happened and now we have a murder suicide and so it is the position of the applicant that the reason that the respondent took this action against him was tied directly to discovering the complaint shortly after the murder suicide by Mr Smith and his son."

"The submissions put by Mr Bond just a moment ago, that's the first time that's been raised as an issue. It's not raised in the written submissions at all in terms of that being a concern or that being, there being some sort of question of unfairness or harshness in the manner in which Mr Tucker was terminated with some link to that. That's the first time that that's been raised, and in my submission, that's without any proper foundation. It's quite a serious allegation to be put and if it was to be made, it really should have been put earlier. It was not raised at all by Mr Tucker in any of the contemporaneous documents when he was given an opportunity to respond to the various allegations and so forth. It's just being raised really for the first time now.

...

There is no suggestion at all in the material by the Department that Mr Tucker was to blame for anything that Mr Smith may or may not have done, or that that was a matter that was taken into account whatsoever with respect to the decision to terminate. So, it's just not relevant at all to the issues before you as to whether, one, there was a valid reason for a dismissal; we say there was, and two, the various other factors that the Commission is to have regard to. It just does not arise on any of those elements."

1. On a number of occasions, the Senior Commissioner asked Mr Bond why this "case theory", if it was at the heart of the case, had not been identified earlier, for example in the Statement of Issues and Agreed and Disputed Facts. Mr Bond's responses did not appear to satisfy her. The Senior Commissioner deferred making any final decision on the matter and proposed to deal with objections as the need arose.
2. Mr Hutchings was required for cross-examination. In the course of that

cross-examination it was put to him, in summary and consistent with the newly revealed "case theory", that the decision to terminate the applicant was made in order to avoid embarrassment to the Department of Transport (Department) arising from the deaths of Noah and Wayne Smith. Mr Hutchings did not agree. He explained the process and remained steadfast that he had made the decision based on the evidence and recommendations put before him. 3. A question was then put to Mr Hutchings as to why the people who made statements in the investigation, which he considered in making his decision, were not witnesses before the Commission. Objection was taken to that question. There followed a lengthy discussion mostly in the absence of the witness which culminated in a concession by the respondent which was accepted by the applicant. The transcript records it as follows:

"SENIOR COMMISSIONER: Okay, but I'm telling you that what I understand Mr Hutchings' evidence to be is that he considered the case summary, but in terms of the termination decision, which is outlined in the termination letter, he relied on what was contained in the show cause letter.

BOND: And if that's the case, I'm happy to move on from that. If he will confirm that in his evidence--

SENIOR COMMISSIONER: Well, we can't ask him that right now. Is the respondent willing to concede that?

GALL: Yes, I mean the termination letter speaks for itself.

SENIOR COMMISSIONER: Okay. So you've got the concession from the respondent. Do you need it from the witness?

BOND: No."

1. The termination letter and the show cause letter were in evidence. They each identified the two allegations set out in [29] above.
2. In the termination letter Mr Hutchings wrote:

"I accept the findings of the disciplinary investigation as set out in the show cause letter and have relied on the substantiated allegations."

1. The show cause letter set out the two allegations and the relevant circumstances supporting them and noted as follows:

"The investigation found that the allegations were substantiated on the balance of probabilities." (emphasis in original)

1. That show cause letter then set out the provisions of the Code of Conduct. It then raised some "Additional Concerns" and invited a response to those matters as well.
2. The respondent's case was that the additional concerns were matters relevant only to the question of reinstatement if the Commission determined that the substantiated allegations were insufficient reason for the applicant's dismissal.

1. In the course of the lengthy discussion referred to at [42], there was another concession by the respondent which limited its reliance on hearsay material. In the course of pressing an objection Ms Gall made the following submission:

"Yes. I object to the question and the line of questioning. The basis is that it doesn't arise on the issues to be determined. It's not a disputed fact. And in any event, I only rely on the statements that were before Mr Hutchings for the fact that they were before him. The misconduct and the valid reason for the dismissal is clearly established by the text messages that Mr Tucker has admitted he sent. I don't need to rely on anything in the other statements. It was simply provided as part of the briefing material that was before Mr Hutchings as a decision-maker. I'm not seeking to, and I haven't sought to rely on them to prove the truth of the matters contained within them." (emphasis added)

1. One of those who made a statement was the applicant's direct supervisor, Mr Bret Ryan. In [103] of the Decision the Senior Commissioner, in the course of considering whether Allegation 1 was made out, referred to the evidence of Mr Ryan. We have noted already at [36] that the Commission is not bound by the rules of evidence. Quite properly the Senior Commissioner noted that, as Mr Ryan had not been called, the weight which could be attributed to his evidence needed to be approached differently from that of a witness who was called or whose evidence was not challenged.
2. We accept that there was a tension in the evidence given by the applicant about what he was actually doing in pursuing Mr Smith repeatedly for information about his son, as noted by the Senior Commissioner at [96] of the Decision. However, in this case, because of the respondent's concession (which Ms Gall reiterated in the course of this appeal), it was not open for the Senior Commissioner to rely on Mr Ryan's evidence in support of a conclusion that the applicant was conducting a "parallel investigation". Notwithstanding that conclusion, we consider that there was ample evidence to support the finding that Allegation 1 was made out. The reasons at

[107]-[111] of the Decision are not disturbed by the exclusion of that material. For that reason, we consider that no substantial injustice arises from the error.

1. The Senior Commissioner set out at [8] and [10] that Messrs Watson and Staines and Ms Schulze had provided statements upon which the applicant relied. At [11], the Senior Commissioner noted that they were cross-examined. Save in a remote way which we will shortly discuss, none of the statements went to the substantive issues in the case and were generally in the nature of character references. Nevertheless, the Senior Commissioner did not discuss their evidence beyond noting its existence. We will provide, therefore, a brief summary of their evidence.
2. The first witness called by the applicant after Mr Tucker was Mr Darren Watson. There were some objections to his evidence. Where that evidence was pressed, most of the objections were dealt with by allowing the evidence as opinion or conclusion but observing that the weight to be attributed to that evidence was a matter for the Commission.
3. To the extent that they were relevant, the facts concerning the death of Noah Smith were agreed between the parties and the Senior Commissioner accepted them as such. The Senior Commissioner ruled Mr Watson's evidence on the nature of the allegations against the applicant to be irrelevant, as the documents speak for themselves. The balance of Mr Watson's statement dealt with his knowledge of the applicant and the positive opinions he had of him as a BSO, his opinion that the applicant was merely doing his duty in pursuing information from Mr Smith and how he could not see a conflict of interest based upon the bullying complaint.
4. In cross-examination, Mr Watson agreed that he was an experienced BSO who had been asked by police to provide details from Maritime's records many times. He also agreed that, were he to have a concern that there was detail missing from the information provided, he would inform the police of that and perhaps even suggest to the police a line of enquiry in relation to it. That evidence is at odds with his view that Mr Tucker was merely doing his duty by pursuing Mr Smith for information.
5. Moreover, his opinion as to the applicant's conflict of interest was based upon the proposition that "all that Luke was doing is [sic] regurgitating for the water police information that was stored on NSW Maritime database". That is clearly not consistent with the evidence of Mr Tucker's conduct.
6. The next witness was Mr John Staines, a Fisheries Officer who had been stationed in Maclean, New South Wales, for the previous 14 years. He was employed by the New South Wales Department of Primary Industries. He had known Mr Tucker throughout that time and would patrol waterways with him approximately twice a month. Based on information provided to him by Maritime Union of Australia (MUA) officials and given his observations of the applicant, he was very surprised that the applicant had mismanaged a conflict of interest. Mr Staines also spoke of the challenges of working as a regional based compliance officer when it comes to managing conflicts of interest with people in a small community. In cross-examination, Mr Staines said he could not recall being provided with any documents by the MUA disclosing allegations against the applicant. It is therefore unclear what information formed the basis of his opinions.
7. The third witness was Ms Anita Schulze. She had been employed as a BSO between 2004-2023. When she began the role in 2004 on Sydney Harbour, she said that the applicant had been a mentor to her. She regarded him as an exceptional mentor. To her observation, he was "honest, transparent and treated everyone fairly, without any discrimination".
8. After Mr Tucker left Sydney in 2011, they kept in touch and Ms Schulze frequently sought his advice. She considers him a friend and someone she can trust.
9. Ms Schulze said she was shocked to learn that the applicant had been terminated for misconduct. Having reviewed the materials relied upon to terminate his employment, she was "in disbelief".
10. In her view, background checks are purely administrative and do not involve any decision-making by a BSO. Therefore, she said she doesn't understand how a conflict of interest can be said to arise from the bullying complaint. Clearly the conduct of the applicant was not "purely administrative". Ms Schulze's opinion about the conflict of interest suffers the same deficiency as Mr Staines' evidence in that regard.
11. In cross-examination, like Mr Staines, she agreed that if she had a concern about the accuracy or completeness of background information provided to police, she would inform the police of that. Again, her evidence on this point is not supportive of the applicant's conduct.
12. Ms Gall drew attention in her Outline of Submissions to the decision of Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 and in particular to the dicta of McColl JA at [152] and Emmett AJA at [227] to the effect that not every matter raised before a decision-maker needs to be discussed at length or even at all if it is not a mandatory consideration. It is not to be inferred that a matter has escaped the attention of a decision-maker simply because it has not been referred to or referred to in detail.
13. Notwithstanding that authority and noting that the Senior Commissioner clearly referred to the evidence given by these witnesses, we consider it would have been appropriate to deal, at least briefly, with their evidence. However, any error involved, if in fact there is an error, does not impact on the ultimate decision. There is therefore no substantial injustice arising.
14. Accordingly, we are of the view that the Commissioner's decision is not attended with sufficient doubt to warrant its reconsideration.

[1] In the evidence, there are various forms of the texts exchanged between Mr Smith and the applicant. There are, however, no material differences between them. We have reproduced the versions attached to Mr Hutchings' evidence, as they were the basis of the allegations against the applicant.