UNFAIR DISMISSAL - termination of employment - APPEAL - leave to appeal - proper administration of justice - principles to be applied on appeal - EVIDENCE - credit findings - principles on appeal - conclusions of Commissioner not glaringly improbable or contrary to compelling inferences - Fox v Percy - limits of review credit finding - no basis overturn findings by Commissioner - absence incontrovertible evidence on uncontested fact pointers against credit finding - Longman principle - Briginshaw principle - no basis to interfere decision at first instance - application s 5A of the Teaching Service Act 1980 - leave to appeal granted - appeal dismissed. - [2010] NSWIRComm 178 - NSWIRComm 2010 case summary

Judgment (121 paragraphs)

[1]

CITATION: Bond and Director General of Education and Training [2010] NSWIRComm 178

[2]

PARTIES: Judith Anne Bond (Appellant) Director General of Education and Training (Respondent)

[3]

CORAM: Walton J Vice-President at [1]; Staff J at [34]; Ritchie C at [106]

[4]

CATCHWORDS: UNFAIR DISMISSAL - termination of employment - APPEAL - leave to appeal - proper administration of justice - principles to be applied on appeal - EVIDENCE - credit findings - principles on appeal - conclusions of Commissioner not glaringly improbable or contrary to compelling inferences - Fox v Percy - limits of review credit finding - no basis overturn findings by Commissioner - absence incontrovertible evidence on uncontested fact pointers against credit finding - Longman principle - Briginshaw principle - no basis to interfere decision at first instance - application s 5A of the Teaching Service Act 1980 - leave to appeal granted - appeal dismissed.

[5]

Commission for Children and Young People Act 1998 LEGISLATION CITED: Industrial Relations Act 1996 Teaching Service Act 1980

[6]

Abalos v Australian Postal Communication (1990) 171 CLR 167 Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Bond v Department of Education of New South Wales [2010] NSWIRComm 1006 Briginshaw v Briginshaw (1938) 60 CLR 336 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Chambers v Jobling (1986) 7 NSWLR 1 Devries v Australian National Railways Commission (1993) 177 CLR 472 Director General, NSW Department of Education and Training v Sud [2010] NSWIRComm 14 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 CASES CITED: Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 House v The King (1936) 55 CLR 499 Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited (2003) 128 IR 37 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Longman v R (1989) 168 CLR 79 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Qantas Airways Ltd v Gama (2008) 167 FCR 537; 247 ALR 273 Re Solicitors (State) Award (No 3) (1997) 72 IR 225 Rejfek v McElroy (1965) 112 CLR 517 State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3; (1999) 160 ALR 588 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Warren v Coombes (1979) 142 CLR 531

[7]

HEARING DATES: 18 October 2010 and 19 October 2010

[8]

Mr P Moorhouse of counsel (Appellant) Spinks Elphick Ho Lawyers LEGAL REPRESENTATIVES: Ms E Brus of counsel (Respondent) Director General of Education and Training

[9]

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

[10]

CORAM: WALTON J, Vice-President STAFF J RITCHIE C

[11]

JUDITH ANNE BOND AND DIRECTOR GENERAL OF EDUCATION AND TRAINING

[12]

Application by Judith Anne Bond for leave to appeal and appeal against a decision of Commissioner Connor given on 28 May 2010 in Bond v Department of Education of New South Wales [2010] NSWIRComm 1006

[13]

DECISION OF THE VICE-PRESIDENT [2010] NSWIRComm 178

[14]

1 I have had the advantage of reading the draft decision in this matter by Justice Staff. I agree with the orders proposed by his Honour. Further, his Honour's distillation of the issues and the factual background obviates the need for the repetition of such matters in this decision. 2 I find myself in agreement with his Honour's approach to the question of leave to appeal, the nature of the appeal and, in broad terms, his Honour's approach to those grounds of the appeal which concern the appellant's "night time conduct" (described in his Honour's decision as "the evidence of the Bond siblings") and the appellant's "unrestricted access to Andrew Bond's children". I am also in agreement with his Honour's rejection of the grounds of appeal based upon a failure to properly apply the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 and Longman v R (1989) 168 CLR 79. However, I would wish to make certain observations concerning the proper disposition of the appeal and the application of the judgments of the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 and State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3; (1999) 160 ALR 588 in this case. Further, I am, unfortunately, unable to agree with Staff J's conclusion regarding what was described in his Honour's decision as the "exposure incident" (I also make some observations about the issue raised in the proceedings concerning s 5A of the Teaching Service Act 1980 which were not resolved in his Honour's decision). 3 The appellant began her teaching career in 1966, and had various periods of full time, part time and casual teaching in various states of Australia between 1968 and 1977. In about 1979, the appellant returned to casual teaching with the New South Wales Department of Education and Training. That employment continued until her approval for employment as a casual teacher was withdrawn (then on a temporary basis) on 4 June 2007. At the same time, her name was placed on a list of teachers 'not to be employed'. After an internal investigatory and appeal process, the appellant was ultimately informed, on 1 April 2008, that her approval as a teacher had been withdrawn and her name had been retained permanently on the 'not to be employed' list. 4 The removal of the appellant from the teaching service was based upon the findings of an internal investigation conducted by the Department. The inquiry concluded that five of six allegations of improper sexual conduct by the appellant towards her son, Andrew Bond, were "sustained". The allegations were set out in correspondence from Ms Jane Thorpe, Director, Employee Performance and Conduct, dated 4 June 2007. The allegations, as sustained, were as follows:

[15]

When he was between the ages of approximately 12 and 19 and living in the family residence at 6 Colo Place, East Campbelltown, you would frequently enter his darkened bedroom of an evening and kiss him goodnight on the face, specifically the ears and then moving to "full kissing" on Andrew Bond's mouth; 2. Following the conduct outlined in Allegation 1, on the encouragement of your son, Andrew Bond, you would place your hand on his groin area; 3. Following the conduct alleged in Allegation 2, you would then proceed to rub your son, Andrew Bond's penis; ... 5. At your residence during the same period and up to when your son, Andrew Bond, was approximately 22 years of age, on occasions other than those outlined in Allegation 1, where you would hug your son and maintain this hug such that it lasted longer and developed into him moving/rubbing/gyrating his body against your body, you failed to act to prevent the continuation and/or the reoccurrence of this conduct, and by failing to act in each instance you encouraged it; 6. On an occasion, when your son, Andrew Bond, was approximately 22 years of age, when he visited your residence at 8 Calmar Close, Glen Alpine, you greeted him with a hug and a kiss and then proceeded to perform oral sex on him. 5 The State Crime Command of NSW Police decided not to bring charges for the crime of incest, apparently on the basis that Andrew Bond indicated he did "not wish to involve the Police" (even though the Police acknowledged that consent was not a defence). 6 There were many issues ventilated in the proceedings at first instance, most of which were repeated in the appeal proceedings. The primary issue which required determination was, to employ the terms of s 88(b) of the Industrial Relations Act 1996, whether there was any basis in fact for those allegations. That issue had the same potency in the appeal. 7 The resolution of that issue required, in essence, the Commissioner to determine, as he did, whether he accepted the evidence of the appellant or Andrew Bond. Despite some concessions as to factual matters, to which I will return, the appellant maintained, under oath, a denial of the allegations in her evidence before the Commissioner. Mr Andrew Bond maintained, by affirmation, his conviction as to the allegations or at least the events underpinning them. There were no witnesses to the events which were the foundation of the allegations and, hence, no direct corroboration of the accounts given by either the appellant or Mr Bond. 8 Mr Bond's evidence was preferred by the Commissioner based, in part, upon credibility findings. That conclusion was instrumental in the ultimate determination to dismiss the appellant's application at first instance. 9 Whilst there were a number of grounds of appeal (which are described in the decision of Staff J), the central issue requiring determination on appeal was whether this Full Bench, in the performance of the appellate function prescribed by Parliament, and in accordance with the principles for the hearing of such appeals, should, after making proper allowances for the advantages of the tribunal Member at first instance (and relevant credibility findings made by him), nonetheless intervene because of the existence of facts or testimony (or inferences deriving therefrom) which deny the conclusion reached at trial. Given the centrality of this issue to the determination made by Connor C, its resolution should, in my view, ultimately dispose of the proceedings. 10 The appellant mounted the attack on the Commissioner's decision, in this respect, based upon a contention that he made "clear errors going directly to his finding that the alleged conduct occurred" and that the finding was "glaringly improbable" and "contrary to compelling inferences" available from the facts. In contrast, the respondent relied heavily on the advantage Connor C had in making credit findings as well as inferences, it was submitted, he properly drew from the available facts. 11 The contemporary authorities relevant to the resolution of what I have described as 'the central issue' are Fox and Earthline. It is useful to set out some passages from those judgments which bear upon that question. 12 In Fox, the factual contest was whether the respondent's motor vehicle was on the correct, or incorrect, side of the road. The trial judgment was substantially predicated upon an acceptance of the testimony of a witness (and confirmatory testimony of a witness) which was found to be credible or reliable. Nonetheless, the High Court affirmed a judgment of the Court of Appeal overturning that decision because of the incontrovertible documentary evidence which pointed to a contrary conclusion. That evidence consisted of a notebook of a constable which recorded skid marks at the scene of the accident. It is, in this light, that the court described the circumstances in which a finding of fact by a trial judge based on the credibility of a witness may be set aside (per Gleeson CJ and Gummow and Kirby JJ at [28] and [29]):

[16]

[28]Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons (45) . However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings (46) .

[17]

[29]That this is so is demonstrated in several recent decisions of this Court (47) . In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" (48) or "contrary to compelling inferences" in the case (49) . In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

[18]

(It should be noted, for later purposes in this decision, that footnote 49 appearing in para [29] of the judgment refers to Chambers v Jobling (1986) 7 NSWLR 1 at 10.) 13 Earthline was an earlier judgment. However, some particular passages from the judgment of Justice Kirby are instructive in the present context. In relation to the limited class of case which must be determined wholly upon the resolution of a clash of oral testimony, his Honour stated (at [92]): [92] This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it. This limitation is not confined to Anglo-Australian law. It is recognised in other countries of the common law 121 and doubtless beyond. 14 Kirby J then discussed the circumstances in which credibility of findings would not constitute a bar to an appeal. He gave a number of instances in that respect. For present purposes, I shall only refer to one of them by extracting part of para [93] of his judgment, as follows: [93] Yet even when the trial judge has expressed conclusions as to the credibility of a particular witness, that does not represent the end of analysis by the appellate court. It is only the beginning of a particular analysis which is then required. In many appeals, such a credibility finding will be far from conclusive of the proper outcome of the entire trial, and hence of the appeal. Take the following instances which are by no means exhaustive: ... ... 2. It may be possible to show, by reference to incontrovertible facts or uncontested testimony, that although the trial judge reached conclusions which were adverse to the credibility of an important, even crucial, witness, such conclusions are plainly wrong. For example, they may be based upon expressed

[19]

15 In conjunction with the appellant's challenge to the credibility of Andrew Bond as a witness, it was submitted that there were two aspects of the evidence at first instance which created compelling inferences that the conduct referred to in the allegations did not occur or, alternatively, demonstrated there was a glaring improbability that the impugned conduct occurred. The first was that those Bond siblings, who had slept in close proximity to Andrew Bond over many years, had never witnessed or otherwise discerned any sexual conduct by their mother towards Andrew Bond. The second concerned the unrestricted access given by Andrew Bond's mother to his children including the attendance by one of the children on a trip with the appellant to Adelaide without a parent. 16 The second issue can be shortly dispensed with because I agree entirely with the analysis undertaken by Justice Staff. 17 I have greater concerns about the former matter. It must raise questions as to the probability of the events occurring as described by Andrew Bond. It is not entirely explained, in my view, by the conclusion reached by both the Commissioner and his Honour that there was corroboration given by the admitted fact that Andrew Bond had encouraged sexual contact with his mother when she kissed him goodnight on a couple of occasions during the lengthy period that the impugned conduct was said to be engaged in by the appellant. Nor do those circumstances entirely explain how the behaviour continued without apparent discord or even notice within the family unit. Nevertheless, I do not consider that the absence of recognition by the Bond siblings in these circumstances is, in and of itself, sufficient to constitute incontrovertible evidence or a glaring improbability of the kind recognised in Fox and Earthline. That factor is some considerable distance from the incontrovertible evidence of "skid marks" referred to in Fox and is permissive of the alternative explanations discussed by Staff J. Further, that factor needs to be evaluated in light of other evidence in the proceedings which I will discuss below. 18 I agree with Staff J's resolution of issues raised about the Commissioner's findings as to the credibility of Mr Bond and the appellant. I also accept that the Commissioner understood and properly applied the standard required by the principles stated in Briginshaw (although I would note that the Commissioner did occasionally stray from a proper application of that approach in particular instances, such as his assessment that the witness, Jeffrey Bond, did not appear to be expressing "real surprise" over the allegations of sexual misconduct by his mother based purely upon observation of his expressions in the witness box). 19 There are, however, two additional matters which are of particular importance to the conclusion that I reach in this matter. 20 The allegations in this matter are of a most serious nature. They are, in one sense, alarming, and, in another, tragic. However, these same observations also provide the context in which the first of these two additional matters should be assessed. 21 Commissioner Connor's conclusion was based upon factual bases other than the direct observation of the key witnesses. One of those matters concerned the uncontested fact that, when the appellant was interviewed by two church pastors, Mr Timothy McMenamin and Mr Peter Jones, and presented with the substance of the allegations, she responded with a variety of expressions, none of which constituted a clear and unequivocal denial or, for that matter, in the absence of such a denial, an exclamation or other physical reaction (resulting from shock or surprise) which might otherwise clearly indicate a rejection or repudiation of what had been communicated. Instead, she used words like "I do not recall", "I have no recollection of that" or "I have no memory of that". 22 The appellant does not provide satisfactory explanation for those responses. She agreed she felt "shocked". In ordinary circumstances, it would be understandable that a person may be shocked about being confronted by such allegations because of their gravity. However, this emotional reaction does not, in my view, explain the responses given by the appellant which were equivocal, at best, and did not convey, by denial or some other means, a rejection or repudiation of the allegations or a sense of revulsion to them as may be otherwise expected. 23 Furthermore, and in any event, the appellant gave those responses after Andrew Bond had already confronted his mother about his childhood experiences. Whilst the appellant denied that he said to her "I have been thinking about stuff from my childhood, you used to nibble my ears and rub my penis", she conceded he said "there's things from my past that have affected me". In other words, the appellant had prior notice of issues with her son's family history before the meeting with the pastors and, nonetheless, gave the reactions that are recorded above. It might be also noted, in this context, that the appellant denied that she had asked Andrew Bond what was troubling him when he raised his concerns with her and claimed that she did not do so because she "needed to process" and "that's how I react". The full cross-examination, in this respect, is set out in para [86] of Staff J's decision.

[20]

24 When cross-examined as to her responses to the pastors, the appellant, in my view, prevaricated. I set out the relevant passages from her evidence: Q. All right. Now, you told us a little while ago that you didn't say much to McManaman and Jones at the first or second meeting because you were shocked, is that correct? A. That is right. Q. You were gobsmacked about these allegations? A. Yes. Q. You were taken aback about the extent of your former husband's liking for pornography? A. Yes. Q. And that's the reason why you were reluctant to give answers and denials, is that correct? A. No, that's not the truth. Q. I see. Well, what was the reason why you weren't answering the questions being put to you? A. Nothing happened. Q. I see. When the allegation of kissing the ears and the face was put to you what did you say to that? A. Nothing happened, there was nothing to recall.

[21]

Q. But in fact you said nothing, did you? A. I said nothing.

[22]

Q. You said nothing? A. That is right.

[23]

Q. You didn't deny it, you didn't admit it, but you didn't deny it, did you? A. I did not deny it, because there was nothing to recall.

[24]

Q. I see, But did you say, "I don't recall that occurring", didn't you? A. I don't recall what they said happening.

[25]

Q. I'm sorry, Mrs Bond, I think we're at odds here. When you were asked about the relationship between yourself and Andrew, one of the things that you were asked about was whether or not you kissed your son Andrew on the face and ears and neck. Do you remember that? A. I remember.

[26]

Q. Right. At that time, did you say, that didn't happen or I don't recall that happening? A. I don't recall it happening.

[27]

Q. Right. But when you said, "I don't recall that happening", did you know in your own mind whether this particular conduct did or did not happen? A. I knew that it did not happen.

[28]

Q. Well, why didn't you say, no, that did not happen? A. I did not say, because I did not say that it happened, because it had not happened, there was nothing to recall.

[29]

Q. No, why didn't you say it didn't happen, Mrs Bond? A. I didn't say it didn't happen, because I'm not going to say something happened when it didn't happen.

[30]

COMMISSIONER: Q. The significance of the point is, and obviously memory being what it is, a denial that it didn't happen is one thing, but "I cannot recall" seems to suggest, well, it may have happened, but I just can't recall it happening. I mean, Ms Brus is leading to something that is not necessarily as strong. Do you deny in these proceedings now that it happened? A. No, it did not happen. Q. Thank you. A. And I did not recall, because it did not happen.

[31]

Q. I understand, it's just that I'm approaching it from a slightly different way. "I do not recall" suggests that it could have happened, I just don't know about it. That's not the impression that you're trying to convey here? A. Okay. Well--

[32]

Q. That's not what you mean when you said, "I do not recall"? A. I do not recall, because there's nothing to recall. Q. Thank you. BRUS: Q. Could I take you to paragraph 127 of your affidavit, please, Mrs Bond. In this paragraph, you say at about the fourth line, "I felt I was being pushed further and further into a corner. McManaman's interrogation technique was oppressive and frightening. My reaction was to remain silent." Now, did you remain silent because of the shock of the allegations? A. Yes. Q. Did you remain silent because of the way in which Mr McManaman was putting the allegations to you? A. Yes. Q. Did you remain silent because of the way Mr Jones was putting the allegations to you? A. Yes. Q. Did you remain silent because you had no answers? A. No. Q. I see. Well, which was the most overpowering reason or the fundamental reason why you weren't giving an answer to the questions that were being put to you? A. (No verbal reply) Q. Was it shock? A. I had answered, "I don't recall anything happening", and they weren't taking my answer.

[33]

and, further: Q. You'd been shocked and gobsmacked at the first two meetings as these allegations were related to you, is that correct? A. Yes. Q. But at the third meeting, you knew what the allegations were? A. (No verbal reply) Q. You'd had some time to process them, hadn't you? A. I'd heard them, about them. Q. There is nothing at the third meeting that you didn't know or hadn't heard before? A. That is correct. Q. And when you met with Mr McManaman and Mr Jones and then your son, were you able to articulate answers to any questions that they might have had? A. No, because nothing happened. There was nothing further for me to say.

[34]

25 In my view, this evidence provided a substantial basis upon which the Commissioner may have made, as he did, adverse credit findings about the appellant. Whilst the uncontested facts and the testimony given in relation to it do not constitute admissions, they cast a very dim light on the appellant's later adamant denial of the conduct. 26 This situation raises, in fact, similar issues to those discussed by Kirby P and Samuels JA in Chambers v Jobling (although that case concerned the reversal of a determination based on credit findings). In that case the earlier statement of a witness (given as a contemporaneous statement to Police) was preferred over the later (and different) testimony of that witness which was found to be reliable on the basis of credit. Indeed, those conclusions resulted in a reversal of the first instance judgment, notwithstanding the advantage enjoyed by the trial judge (Kirby P at [7], [9] and [10] and Samuels JA at [19] - [21]). In this case, the appellant's earlier unguarded responses resulted in significant doubt as to her later emphatic denials and constitute a compelling reason for not interfering with the credit findings made at trial. 27 Secondly, a similar conclusion may be reached in relation to the appellant's evidence in relation to the exposure incident which was both inconsistent and unconvincing. (My observations here do not concern the 'oral sex' issue, which was an allegation of a separate and later occurrence.) 28 However, contrary to the view formed by Staff J, I consider that the appellant has demonstrated two errors in the decision at first instance. 29 First, the Commissioner did not deal with the sixth allegation in which Andrew Bond was accused of having oral sex with his mother. Whilst I can well understand the sensitivities associated with this issue, it was necessary for the Commissioner to deal with the allegation for two reasons. The process leading to the appellant's removal was based upon a series of charges. It was necessary for the Commissioner to consider with particularity the substance of those charges: Director General, NSW Department of Education and Training v Sud [2010] NSWIRComm 14 at [41] and [42]. Further, and more importantly, a finding adverse to Andrew Bond in relation to this allegation must have, given its gravity, had a significant bearing upon the assessment of his credibility. The failure of the Commissioner to make that assessment, therefore, constituted an error, which potentially went to the heart of his credibility findings. 30 This matter did not receive significant attention in the submissions of the parties. Nonetheless, as a result of matters raised by the Full Bench, the Commission was provided with all references concerning the exposure incident and the sixth allegation. After carefully reviewing those matters, I consider that, even though an error (of the nature I have described above) has been demonstrated, there is no proper basis to uphold the appeal or overturn the decision at first instance upon the basis of that error. 31 Secondly, counsel for the appellant contended that, whilst it was accepted that s 5A of the Teaching Service Act 1980 was relevant to the determination of whether the dismissal was harsh, unreasonable or unjust, the Commissioner erred by importing that factor into the consideration of whether the alleged conduct actually occurred. I agree that the Commissioner did adopt that approach and that it constituted an error. It is, however, not one which, in my view, should result in the appeal being upheld. Whilst the Commissioner does make reference to the provisions of s 5A of the Teaching Service Act 1980 in that context, it does not appear to have otherwise infected his reasoning. In any event, I have closely examined the Commissioner's reasoning process as to the determination of whether there was any basis in fact for the allegations and, for the reasons I have given, I do consider there is a proper basis for appellate intervention based upon this ground of appeal. 32 Finally, the appellant relied upon procedural failures as part of her challenge to the decision at first instance. Whilst I consider there was some substance in the contention that the Commissioner had failed to have sufficient regard to this factor, particularly in the light of the judgment in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited (2003) 128 IR 37 at [118] - [119], I do not consider that, in the light of the conclusions reached by the Commissioner, this factor could have been determinative of the proceedings at first instance. Given the conclusions I have reached on this appeal, it follows that this plank of the appellant's attack cannot properly result in the appeal being upheld. ORDERS

[35]

33 I would propose that the following orders be made:

Leave to appeal is granted;
The appeal is dismissed.

[36]

34 Judith Anne Bond seeks leave to appeal and appeal against a decision of Connor C delivered on 28 May 2010, dismissing an application brought pursuant to s 84 of the Industrial Relations Act 1996 ("the Act") for relief relating to alleged unfair dismissal by the respondent, Director-General of Education and Training: Bond v Department of Education of New South Wales [2010] NSWIRComm 1006. 35 The appellant was employed as a primary school teacher by the Department of Education and Training. She commenced duty in early 1969, but resigned in or around the middle of 1970, at which time approval was given for her to teach casually and she did so. 36 On 4 June 2007, she was informed by the Department that certain allegations concerning sexual misconduct had been made by her son against her and they were being investigated by the Department. 37 After the completion of an investigation by the Department, Mrs Bond was advised on 12 November 2007, that it had been determined that her name should be placed on the "Not to Be Employed" list ("NTBE list") of the Department. 38 In these proceedings, the appellant was represented by Mr P Moorhouse of counsel. Ms E Brus of counsel appeared for the respondent. Leave to appeal 39 Section 188(1) of the Act requires, for this appeal, which is brought under s 187(a), to be competent, leave to appeal is required. Although I have some reservations about granting leave to appeal in this case, because of the seriousness of the allegations, which will become apparent from a review of them, on balance, I consider leave to appeal should be granted. 40 The central issue which the Full Bench has been asked to consider, is whether the findings of fact in relation to serious misconduct were wrong. As was said by the Full Bench in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 326: The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves, we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal. ... 41 In this case, leave should be granted in order to ensure "the proper administration of justice:" see Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited (2003) 128 IR 37 at [77]. The appeal 42 It should be noted at the outset, that the decision of Connor C, to which this appeal relates, was not one of a discretionary nature of the kind considered in House v The King (1936) 55 CLR 499. The question which the Commissioner determined was whether the dismissal was harsh, unreasonable, or unjust in the circumstances. The determination of that question involved mixed issues of fact and law, rather than the exercise of discretion per se: see Burge v NSW BHP Steel at [4], citing Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at 181-182; 88 IR 282 at 310; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59. As such, the appeal is an appeal in stricto sensu: see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [65]. As cited in King v State Bank at [70], the relevant principles to be applied on appeal are those set out in the joint decision of Hungerford J and Murphy C (with respect to which Peterson J agreed, at 240) in Re Solicitors (State) Award (No 3) (1997) 72 IR 225 (citing Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149):

[37]

... It is not, of course, we would interpose, every case which would require an appellate court to substitute its views for those of the primary judge, and in that respect we agree with the comment by Hill J sitting on appeal in this Court in Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201; 48 IR 396 at 406 to the effect that there should be no interference with "conclusions on facts unless (the Full Court) is of the opinion that they were not reasonably open on the evidence". ... 43 The central argument advanced by Mr Moorhouse was that the Commissioner erred in finding that the alleged conduct occurred and that this finding was not reasonably available on the evidence. Counsel contended that the Commissioner's findings were contrary to the compelling inferences to the contrary available from the evidence of the Bond siblings who did not see, or otherwise discern any sexualised conduct by their mother towards Mr Andrew Bond and the undisputed evidence about the access to his children which Mr Andrew Bond allowed his mother to have. 44 The appellant sought that the Full Bench, after the grant of leave, uphold the appeal, overturn the decision under appeal and reach its own determination as to the disposition of the application under s 84 of the Act. 45 Ms Brus submitted that the findings based on credit made by the Commissioner were reasonably open on the evidence and that leave to appeal should be refused. Background 46 The background issues are succinctly set out by the Commissioner in the following terms at [17] - [26] of his decision:

[38]

[17] Much of the background information for this Part 6 application has already been outlined in my preliminary decision of Thursday, 18 December, 2008 but for convenience I set it out again in this decision in more detail. On Monday, 4 June, 2007 Mrs Bond had been informed by the Department that certain serious allegations concerning her sexual misconduct had been made by her son, Andrew, and they were being investigated. Those allegations were set out in the Department's letter, viz: * that when Andrew was between the ages of approximately 12 years and 19 years and living at their family residence, she would frequently enter his darkened bedroom in the evening to kiss him goodnight on the face, specifically the ears, them moving to "full kissing" on his mouth and placing her hands on his groin area and rubbing his penis;

[39]

that she permitted Andrew to rub/fondle her breasts and failed to act to prevent the continuation and/or reoccurrence of that conduct and therefore encouraged it;

[40]

that in her residence she would hug Andrew up to the time when he attained approximately 22 years of age, maintaining that hug and developing it into a moving/rubbing/gyrating motion with her body, failing to act to prevent the continuation and/or reoccurrence of that conduct and therefore encouraging it; and

[41]

on one occasion when Andrew was 22 years of age and was visiting her residence, she greeted him with a hug and a kiss and proceeded to perform oral sex on him.

[42]

Subsequent internal investigations have resulted in the deletion of the allegation that she allowed her son Andrew to rub or fondle her breasts. The Department believed that the other allegations were sustained.

[43]

[18] Mrs Bond was placed temporarily on the NTBE list at that time and consequently she was not to be employed as a teacher pending the outcome of investigations. The letter she received at that time was in the following terms: "....I am writing to advise you that the allegations about your conduct are being investigated by Employee Performance and Conduct [EPAC]... You do not have to make any comment about this matter at this time. However, this is an opportunity to respond to the allegations if you wish to do so... In the circumstances, I have temporarily withdrawn approval for you to be employed as a casual teacher in Departmental schools... Any information which you provide will be taken into account in deciding whether or not further action is required, and may be used if disciplinary action is taken against you..."

[44]

[19] Mrs Bond responded in a letter dated Wednesday, 13 June, 2007, highlighting her lengthy period of satisfactory employment as a teacher and asserting that she was guilty of no wrongdoing. She indicated that the "...content of the letter was no shock..." to her as she had already met with two church pastors - Mr Timothy McMenamin and Mr Peter Jones - in counselling and with her son Andrew. She typed out the letter, making allegations of her own against Andrew: "....As a young teenager experiencing normal adolescence with hormones firing, it shocked me to have Andrew accuse me of initiating sexual acts. I set boundaries in the physical sense very clear as our children were growing.

[45]

Once Andrew sat next to me in the family room. He took my hand and put it on his leg, moved my hand to his groin then to his penis. The second time, I knew it was wrong. It is against my behaviour and values, so I reinforced a very clear: 'No Andrew. No more.' I made sure that it did not happen again.

[46]

At bed time, as a mother, I would give our children a goodnight hug. For a time, Andrew would pull me close in an embrace. I didn't feel comfortable with this. I knew that it was inappropriate, more than just a cuddle. I would say: 'No Andrew, I've said goodnight.' Andrew was giving wrong affection and I would leave the room immediately.

[47]

I have only ever allowed my husband to touch my breasts. They are 'sacred' to me. I have not encouraged or allowed anyone else to play with my body. When Andrew visited our home as a married man and tried to expose himself, I firmly said to Andrew: 'No Andrew. Don't! Go home to your wife.' No, I did not proceed to perform oral sex with Andrew. I gave a very firm 'no' to Andrew. Again, I set and made very clear boundaries.

[48]

My clean record of forty years of school teaching still stands because my behaviour, actions and morals have been right with students. My driving record of forty years still stands clean with no police record because my driving has been right. Before God and man, I have a clear conscience..."

[49]

And in handwriting at the foot of the letter she stated:

[50]

"...I feel that I am being convicted when I am innocent of something that I haven't done..."

[51]

[20] In a further letter dated Wednesday, 18 July, 2007 Mrs Bond asked that the investigations be "...fast tracked as a matter of priority...", stating further that she needed "...day to day teaching for day to day living expenses...". She wrote what she described as relevant information regarding her son, viz: "....Andrew, when younger, was very friendly with young ladies. I, being his mum have been aware of his 'roaming' eyes. Especially since being married, Andrew has been very lustful. I am now finding out that Andrew has had to repent to many women. In my reading and research findings, I quote: 'Because a person who has been caught up in sexual sin has wounded his soul, usually his perceptions are inaccurate and clouded by his own sin.' Andrew's allegations are attacks on me. My own clean, clear teaching record of 42 years in South Australia, Victoria and New South Wales still stands to show my high morals and ethics and standards..."

[52]

[21] In a subsequent letter dated Tuesday, 28 August, 2007 to EPAC, Mrs Bond's solicitor at that time clarified "certain ambiguities" in Mrs Bond's earlier correspondence and outlined her position, viz: * she agreed that she would kiss her son when he was in the bedroom of the family residence but she denies that she would kiss him anywhere but on the face and that she engaged in "full kissing" on his mouth;

[53]

she denies any of the conduct otherwise alleged occurred in the bedroom when the son was aged between 12 years and 19 years;

[54]

she agreed that she did hug her son and that on one or two occasions the son exhibited an "...inappropriate degree of affection..." which she concedes, with the benefit of hindsight, may have possibly led to the son engaging in the conduct described: she denies encouraging such conduct by the son;

[55]

she concedes that on Wednesday, 13 June, 2007, when the son had been married and was aged about 22 years, he attended her home, exposed his genitals and asked her: "Mum, play with me": she told him to go home to his wife; and

[56]

she also agreed that there was an occasion when she and the son were watching television and she placed her hand on his leg in a comforting manner and he moved her hand firstly to his side and then to his penis: it was the second movement to his penis that she was referring to in her letter of Wednesday, 13 June, 2007.

[57]

Mrs Bond's solicitor confirmed that: "....our client is hurt and offended that these allegations have been made at this stage. We further note that, although certain allegations relate to a period when her son was a child, the most recent incident occurred when he was an adult and that on our understanding there has been no previous complaint or mention of it to any person prior to recent times. On our submission, this must give rise to some significant question as to the credibility of our client's son in this regard.

[58]

We are further advised that it is our understanding, particularly in the light of the guidelines to '...responding to allegations against the employees in the area of child protection...' that, since (one allegation) related to an adult person who is not a school student, it (is) not one that should be dealt with in these procedures in any case.

[59]

Our client wishes to ensure this matter is resolved as soon as possible as she wishes to have her name and character cleared and be able to return to classroom teaching..."

[60]

[22] The subsequent investigation was conducted by Mr Steven White, an investigator for the EPAC who was called as a witness in this hearing by Ms Brus . Mr White's conclusion was that all of the allegations against Mrs Bond had been sustained, except the allegation that she allowed her son Andrew to rub and fondle her breasts. On Friday, 21 September, 2007 her solicitor was informed that consideration was being given to the permanent withdrawal of her teaching approval and her permanent retention on the NTBE list.

[61]

[23] In the letter Mrs Bond was invited to respond with written submissions concerning the matter within fourteen days. Mrs Bond's solicitor wrote a letter on Wednesday, 3 October, 2007 requesting an extension of time for those submissions and the Department agreed to that request. Ultimately, the response from Mrs Bond's solicitor in a letter dated Monday, 15 October, 2007 was to deny the relevance of some of the allegations as far as Mrs Bond's employment as a teacher was concerned and to challenge other allegations made against her.

[62]

[24] On Monday, 12 November, 2007 the Department wrote to Mrs Bond and forwarded that letter to her solicitor at that time. That letter indicated that: "....I have reviewed all the information available, including your responses and the responses made on your behalf by your legal representatives and have determined that your name be placed on the list of people who are not to be employed in any capacity in New South Wales Department of Education and Training, including schools and TAFE institutes, without reference to the Director of Staffing Services... In accordance with the Ombudsman Act, 1974, all relevant documentation is to be forwarded to the New South Wales Ombudsman's Child Protection Team. An officer of that office will assess whether the matter was properly investigated and appropriate action taken. Having completed these employment proceedings, I am required to consider whether the allegations amount to reportable conduct... This being the case, in line with employer's responsibilities as required by legislation, your name has been referred to the Commission for Children and Young People [CCYP] as a Category 1 report..."

[63]

As I outline in more detail later in this decision, in the light of the conclusions it has reached concerning the allegations, the Department was under a clear obligation flowing from S.39(1) of the CCYP Act to notify the CCYP of the allegations against Mrs Bond.

[64]

[25] On Tuesday, 13 November, 2008 Mrs Bond was informed by her solicitor of the contents of the Department's letter of Monday, 12 November, 2008. She claimed some confusion as to her status, ie whether she had been dismissed or not, and she wrote to the Department on Thursday, 22 November, 2007, viz: "...I request that you re-enlist my name for employment in the New South Department of Education. I am seeking a review of the investigation... I have worked in the Education Department in New South Wales, South Australia and Victoria, on and off, for forty two years and I have never had any misconduct nor any report against me. I have maintained and met professional standards in my teaching profession. I have not caused physical harm to any student or my son. When working with children, I am very conscious and aware to protect children..."

[65]

Mrs Bond's request for a further review of the matter was subsequently rejected by the Department. She received advise that she could make an application for access to her file and she did so on Thursday, 23 November, 2007. She was also made aware that she could approach the Ombudsman or take action before the Administrative Decisions Tribunal [ADT]. She has not to date done so.

[66]

[26] On Wednesday, 12 December, 2007 Mrs Bond was informed that her approval to teach had been withdrawn and her name was to be retained permanently on the NTBE list. Subsequently, the Department agreed for an independent review into Mrs Bond's employment status and confirmed that to the solicitor then representing Mrs Bond in a letter dated Tuesday, 4 March, 2008. On Tuesday, 1 April, 2008 Mrs Bond was informed that her appeal to that independent body was unsuccessful and that no further consideration would be given to any further requests for a review of her employment status. The challenged decision 47 The particular findings of the Commissioner to which the appeal relates are found at [58] - [61] of the decision as follows:

[67]

[58] As Mr Moorhouse submitted, since the allegations against Mrs Bond by Andrew were essentially denied by her, the onus of proof of those allegations rests on Ms Brus. As the Full Bench of the Commission (Cahill J - Vice President, Hill J and French C) indicated in Wang v Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464, viz: "…The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw at p.362..."

[68]

[59] I accept that, as Mr Moorhouse submitted, simply because Andrew has repeated the same story concerning his mother to a number of different people does not give it corroboration. A person cannot corroborate himself otherwise the simple repeat of the same allegation by that person 25 times would mean that the story is corroborated [R v Whitehead (1929) 1 KB 99 at p.102]. And, as Mr Moorhouse indicated in his submissions, Andrew does not necessarily present himself as an entirely credible witness on some points. But those are to my mind minor issues which I do not regard as very significant in this hearing. He still impressed me as a forthright witness in the hearing who was prepared to give very detailed - and I believe for the most part honest - evidence on matters which clearly would have been very stressful and sensitive for him and much of which was against his interests - to "...bear his soul..." in these proceedings, as Ms Brus submitted. I do not believe that the discrepancies in his evidence diminish the central issues of concern in this hearing. I also note the comments made by Jeffrey when he was cross-examined by Ms Brus. The transcript records him saying: "....Andrew is someone who - he has always been straight and honest. Sometimes he will push the boundaries but Andrew is the real deal, you know, if there's a situation, he'll bring it up: he'll tell you, listen, I don't like the way you did this with my kids and you can work with that..."

[69]

[60] In any event, I do not believe that Mrs Bond presents as a credible witness. Jeffrey indicated in his evidence under cross-examination: "....With mum, you're ducking, you're dodging, you're weaving. You don't know where you stand. Unfortunately you don't know with mum - sorry, you don't know the accuracy of what mum is saying and yes, there's the difference between (Andrew and his mother) is between night and day..."

[70]

That has also been my experience in the hearing, and apparently also the opinions of Mr McMenamin, Mr Jones and Mr White.

[71]

[61] I have also been particularly influenced in my opinion of Mrs Bond's evidence by the following factors: * Whilst Mrs Bond has now denied many of the allegations in these proceedings, her initial response to the allegations when they were raised with her in meetings with Mr McMenamin and Mr Jones - and later in interviews with EPAC - was far from convincing as support for her innocence of the serious allegations made against her. In her sessions with Mr McMenamin and Mr Jones, when confronted with the allegations, Mrs Bond used the expressions: "I do not recall", "I have no recollection of that" or "I have no memory of that". Not an unqualified denial, I would think. Mr Simpson and his wife suggest that Mrs Bond often spoke in such vague terms and it does not surprise them that she would be less than emphatic when confronted with the allegations. But words like "I do not recall", "I have no recollection of that" or "I have no memory of that" when confronted with the serious allegations is to me a lukewarm response and, to my mind, not really a denial at all. That is the assessment of Ms Brus in her submissions and I agree with her.

[72]

It is Andrew's evidence that on occasions when she kissed him goodnight, Mrs Bond aroused him sexually with her kissing and he put her hand directly on his penis. But it was, he claimed, Mrs Bond who actually rubbed his penis, making it hard. That would not have happened if Mrs Bond had pulled her hand away and, if she rubbed his penis, she was, in fact, the instigator of the action and Andrew merely responded to it.

[73]

Whilst the night-time visits allegedly happened on occasions when Andrew was sharing a bedroom with Jeffrey or Peter, Mrs Bond claimed that when Andrew was seeking to have him rub his penis, she said to him: "No Andrew. No more." Jeffrey or, apparently Peter do not recall the incident Andrew describes but neither it would appear do they recollect Mrs Bond speaking to Andrew either, and telling him no. That would be likely to remain in their memory, I would think, if it had occurred at all. In fact, to my mind, it would be more likely that, if Mrs Bond had spoken to Andrew in the manner she claimed, they would have heard it and remembered it. That suggests to me that Mrs Bond remained silent when she visited Andrew at night.

[74]

Mrs Bond's letter of Wednesday, 13 June, 2007 to EPAC is confusing. She indicated in that letter that "... once Andrew sat next to me in the family room. He took my hand and put it on his leg, moved my hand to his groin then his penis..." but then stated that "...the second time I knew it was wrong...". Why did it take a second time for the incident to be considered to be wrong? The solicitor who had initially represented her subsequently explained what Mrs Bond had meant in that letter, ie that, as she indicated in the passage in her letter to which I have highlighted in this paragraph, the incident only happened once . What she apparently meant in the letter was that in that one incident her son had placed her hand on his leg (to which she did not object) and then on his groin area (when she knew it was wrong and told him to stop). But, in my opinion, there remains some ambiguity in the letter to suggest that Mrs Bond was not altogether blameless over the incident. I also note from her evidence in cross-examination in the hearing that she was prepared to concede that the incident actually occurred twice .

[75]

In that letter of Wednesday, 13 June, 2007 Mrs Bond indicates that her "...driving record of forty years still stands clean with no police record because my driving has been right...". It is not Mrs Bond's driving record at issue in these proceedings, however, and not something which weighs in her favour, in my opinion.

[76]

According to Mrs Bond's evidence, on Wednesday, 13 June, 2007 Andrew attended her home and exposed his genitals in front of her, asking her to play with him. Since at the time Andrew was an adult, the incident was not "reportable conduct" as Category 1. But to my mind the incident she does describe still suggests some earlier indiscretions by Mrs Bond. Why would Andrew simply appear at her house and make that offensive request unless there was some history of an unhealthy sexual relationship between the two of them already?

[77]

Andrew seems to be suggesting in his evidence that it was another incident entirely to which he was referring when Mrs Bond gave him oral sex (and he allowed it to continue because, as he indicated in his evidence, he was enjoying it). His evidence on that point was very emphatic. Mrs Bond does not appear to be addressing that incident at all in her evidence.

[78]

I accept that much of the evidence in this hearing is speculative and circumstantial but it leads me inevitably to conclusions adverse to Mrs Bond, even on the higher standard of proof demanded by Briginshaw v Briginshaw (if not according to the criminal standard of proof - beyond reasonable doubt) - and certainly, having regard to the obligations on the Department under S.39(1) of the CCYP Act, the Department's findings concerning Mrs Bond's conduct with Andrew was such as to require the Department to notify the CCYP as "reportable conduct". 48 At [65] - [67], Connor C concluded that there was no ground for the Commission to intervene and dismissed the application: [65] And it must still be of concern to the Department that it is facing not one isolated incident with Mrs Bond but a series of incidents over a lengthy period of time. Also, whilst Mrs Bond has not been emphatic in her denial of the serious allegations against her by Andrew, she still does deny them. I believe she has not come to terms with them. To use Andrew's words, she is continuing to live a lie.

[79]

[66] Furthermore, in my opinion, the question of risk assessment arises in Part 6 proceedings only when I am considering the prospect of reinstatement in employment of Mrs Bond. Mr Taylor's assessments are directed to the question of recidivism. As Ms Brus submitted, the primary task before me remains to determine whether or not the placement of Mrs Bond, as a casual teacher, on the NTBE list ( ie the effective termination of her services) was unfair, ie "harsh" "unreasonable" or "unjust" within the meaning of S.84(1). In my considerations in that respect I should have particular regard not only to the obligations on the Department by virtue of S.5A of the Teaching Services Act but also the obligations placed on the Department by S.39(1) of the CCYP Act. It is trite to say that Mrs Bond's continued engagement as a casual teacher by the Department must be dependent upon her meeting all of the requirements of the teaching service currently imposed by those legislative provisions. If there were discrepancies in the investigation carried out by the Department, it may open the door for a review of the position with Mrs Bond but I am satisfied that there are none.

[80]

[67] I therefore conclude that the Department has acted fairly to Mrs Bond in that context. I regard her conduct over a lengthy period of time with her child to be such as to be totally incompatible with the teaching profession and to make her unsuitable for it. I therefore see no ground for my intervention in support of her in this hearing. I decline to do so and I dismiss her Part 6 application. Grounds of appeal 49 The appellant claimed 12 grounds of appeal. Eight of those grounds are effectively a single ground that the Commissioner erred in finding that the alleged conduct occurred. These grounds seek to reverse findings of fact at first instance. 50 The remaining grounds of appeal are only enlivened if leave is granted in respect of those grounds dealing with the factual findings and the appeal is upheld. These grounds include a contention that the Commissioner erred in relation to the effect of the Commission for Children and Young People Act 1998 on any reinstatement of the appellant; that the Commissioner erred in the way that he approached the question of any risk posed by the appellant to the protection of children; that the Commissioner had regard to irrelevant matters, including that the appellant may obtain no real benefit from reinstatement; that reinstatement was not possible as a result of her being reported to the Commissioner for Children and Young People as a Catergory 1 Report and that the Commissioner erred in concluding that he could not rely on the assessment and opinions of Dr John W Taylor, a psychologist. Dr Taylor's evidence was admitted without him being required for cross-examination. Approach on appeal 51 The first task on the appeal is to consider whether, in making findings of fact and drawing inferences from those facts, and in making findings as to the law, Connor C committed any error in finding that the dismissal was not harsh, unreasonable, or unjust. The next task, depending on its findings regarding the above, is whether the Full Bench confirms, quashes, or varies the decision, or exercises other powers available to it under s 192 of the Act. The consideration of whether the Commissioner committed any error of fact or law must be undertaken against the background of understanding the nature of the misconduct for which Mrs Bond was dismissed. 52 In essence, the appellant challenged the findings made by the Commissioner in respect of firstly, the evidence of the Bond siblings; secondly, the access Mr Andrew Bond gave the appellant to his children, and in particular, permitting her to take his son to Adelaide in April 2006; thirdly, when Mr Andrew Bond confronted the appellant with the allegations, and fourthly, the attendance of Mr Andrew Bond at the appellant's home where he exposed himself and alleged that she performed oral sex on him. I will address each of the challenged findings made by the Commissioner. 53 However, before doing so, I should observe that the Full Bench did not have the benefit, as Connor C had, of observing the witnesses, including Mr Andrew Bond and Mrs Bond giving evidence. I shall return to the approach that should be adopted in such circumstance by an appellate tribunal later in these reasons. The principles to be applied 54 In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37, the Full Bench summarised the principles applicable to an appellate tribunal in reviewing credit findings, stating at [82] - [85] as follows: [82] ... [t]he relevant principles to be applied on appeal are those set out in the joint decision of Hungerford J and Murphy C (with respect to which Peterson J agreed, at 240) in Re Solicitors State Award (1997) 72 IR 225 (citing Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149): "It is not, of course, we would interpose, every case which would require an appellate court to substitute its views for those of the primary judge, and in that respect we agree with the comment by Hill J sitting on appeal in this Court in Hussmann Australia Pty Ltd v Walker ((1993) 48 IR 396 at 406) to the effect that there should be no interference with "conclusions on facts unless (the Full Court) is of the opinion that they were not reasonably open on the evidence." [83] The relevant principles to be applied on appeal in such circumstances may conveniently be adopted from the decision of the Full Bench in Burge v NSW BHP Steel (at [7]): "The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). (Emphasis added)." [84] These principles were also articulated in Wilson v Department of Education and Training [2000] NSWIRComm 120 (at [61]-[62]): "The appellate court substitutes its own judgments only if the trial judge makes a finding of fact which is wrong or not reasonably available on the evidence: ( Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688). The appellate court should otherwise not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made. This Commission and its predecessors have adopted the above view: ( Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 at 154)." [85] The proof of the conduct of the appellant in this matter was dependant on circumstantial evidence. In this respect, the reasoning of the Full Bench in Burge v NSW BHP Steel (at [6]) is also applicable: "We have to say the Commissioner's process in reasoning the available facts, many of which were based on circumstantial evidence, was inconsistent with the evidence so as to lead to an unreasonable explanation for what occurred. As was said by Dixon J, with whom Latham CJ agreed, in Martin v Osborne (1936) 55 CLR 367 at 375: If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference." In the result, as will later emerge from these reasons, Redman C, in our opinion, fell into error both of fact and law requiring appellate intervention.

[81]

55 In determining this appeal, I propose to be guided by these principles.

[82]

The evidence of the Bond siblings 56 Each of Mr Andrew Bond's three siblings gave evidence in the proceedings. Jeffrey Bond, the eldest child, is 16 months older than Andrew Bond. Joanne Bond, the third child, is approximately two years, four months younger than Andrew Bond. Each gave oral evidence and were cross-examined. The evidence of Peter Bond, the youngest child, who is about five years younger than Andrew Bond, was admitted in the form of a transcript of his interview with Mr White, the Department's investigating officer. Each of the Bond siblings gave evidence that they never witnessed, or otherwise discerned any sexual conduct by their mother towards Andrew Bond. 57 Mr Moorhouse submitted when this evidence was considered against the evidence for the sleeping arrangements and night time routines in the Bond household during the period that the alleged "night time conduct" was said to have occurred, and Andrew Bond's evidence regarding that conduct, it was sufficient of itself to create a compelling inference that the conduct did not occur. 58 The alleged "night time conduct" was said to have occurred during the period when Andrew Bond was between the ages of 12 and 19 and living in the family home. It was common ground that during the relevant period, the three boys shared a bunkroom where, during the period, sometimes, there was two bunks, one on top of the other and on other occasions, they were separated by about a metre to a metre and a half. There were two other bedrooms, one occupied by Joanne Bond and the third, by one of the boys on his own. For at least the year that Jeffrey Bond was doing the Higher School Certificate, and perhaps for some time prior to that year, he had his own bedroom. After Jeffrey Bond left home, when Andrew was 16 years of age, Andrew had his own bedroom. Jeffrey Bond remembered sharing a bedroom with Andrew when Jeffrey was in Year 8. Andrew Bond accepted that he shared a bedroom for some, and perhaps most, of the relevant period and that the "night time conduct" must have occurred many times while one of his brothers was in the room. 59 Mrs Bond's evidence was that her usual routine was to go into the children's rooms, for a short time, to say goodnight, to switch off the light, and close the door on the way out. and to generally not return to the bedroom. Mrs Bond also gave evidence that she would always take Peter a cut up apple for him to eat after the lights were out. Peter Bond had a recollection of his mother bringing him an apple in bed "sometimes at least." 60 Jeffrey Bond did not observe any conduct of the sort referred to in the allegations. His mother did not act in any sexual way towards him or towards any of his siblings as far as he was aware. Joanne Bond, during the relevant period, did not see any sexual abuse of Andrew, or hear anything that made her think that such behaviour was occurring. Mr Peter Bond stated that when he was a child he did not observe or hear anything that worried him, or concerned him about his mother. When sharing a room with Andrew, he did not observe anything occur between his mother and Andrew. 61 Mr Andrew Bond's evidence about the "night time conduct" included that:

[83]

(a) it occurred frequently throughout the relevant period, probably at least once a week; (b) it involved the Appellant leaning over him, or 'sort of sitting close to him', and when it involved rubbing his penis it involved movement that would be noticeable to someone else awake in the room; (c) it could last for between five seconds and a couple of minutes; (d) when it involved kissing on the ear or nibbling the ear it was probably not silent; (e) there were not any large periods of time where the conduct did not occur; and (f) it did not occur after his mother had identified that anyone else in the room was asleep. 62 Mr Moorhouse submitted that in assessing the weight which should be given to the evidence of the Bond siblings, it must be remembered that they were not young children during the relevant period and that it was almost inconceivable that the "night time conduct" could have taken place with the frequency alleged without being noticed by any of the other three children. Counsel submitted that the evidence given by the Bond siblings, of itself, created a compelling inference that the alleged "night time conduct" did not occur. 63 The Commissioner dealt with this evidence at [52] - [53] of his decision:

[84]

[52] The sleeping arrangements for Mrs Bond's children do not necessarily appear to have been particularly conducive to the secret liaisons between Mrs Bond and Andrew that is alleged against her. For a time Andrew shared a bedroom with his younger brother, Peter or his older brother, Jeffrey. When Jeffrey, left home after completing the Higher School Certificate, Andrew moved into his bedroom alone. Joanne at the relevant time had a separate bedroom. The bedrooms for the children were together in one part of the house with adjoining doors. Jeffrey and Joanne were summonsed to appear in the proceedings by Mr Moorhouse . (Peter was not.) Jeffrey and Joanne assert that until Andrew made the allegations against his mother, they were not aware of any unhealthy relationships between Mrs Bond and Andrew. (That apparently was also the view of Peter when he was interviewed as part of the EPAC investigation.)

[85]

[53] Andrew indicated in his evidence that the incidents when his mother kissed him goodnight were conducted in a darkened room. The incidents were silent, brief and regular but, apparently occurred on occasions when he must have been sharing a bedroom with either of his two brothers. Yet neither brother apparently was aware of anything of a sexual nature occurring between Andrew and his mother, although in the hearing Jeffrey did not appear to me to be expressing any real surprise over the serious allegations made against his mother by Andrew. It would be difficult to accept as credible evidence that the incidents actually took place as Andrew described them in a shared bedroom were it not for the fact that Mrs Bond has to some extent provided some corroboration of the incidents when she claimed that Andrew encouraged sexual contact with her when she kissed him goodnight.

[86]

64 Mr Moorhouse submitted that the appellant's evidence did not provide any corroboration of Andrew Bond's evidence of the alleged "night time conduct". 65 Counsel submitted that the Commissioner should have proceeded on the evidence of the Bond siblings that they discerned no sexual conduct at all. When this evidence was combined with the evidence of the sleeping arrangements and the night time routines, it created a compelling inference, counsel submitted, that the alleged "night time conduct" did not occur. 66 I would observe that at no time did Andrew Bond assert that any of his siblings were aware of his mother's conduct at the time it took place, nor has such an assertion been part of the respondent's case. The effect of the appellant's contention is that, because the Bond siblings did not observe the conduct, the Commissioner should have determined that, firstly, it did not occur, and secondly, Andrew Bond was being untruthful and therefore a witness of dubious credit. Although this conclusion may have been available to the Commissioner, it could not, as was asserted, be available to the exclusion of any other rational alternative. 67 Mr Andrew Bond was not able to provide any evidence as to the specific dates when the conduct occurred. I do not agree that the sleeping arrangements would have made it impossible for the alleged "night time conduct" to have occurred without one or more of the Bond siblings being aware of it. The evidence established that there were occasions, for unspecified periods of time, when Andrew Bond slept in a bedroom by himself. There were other occasions, for unspecified periods of time, when Andrew Bond shared a bedroom with one or other of his brothers. His younger brother by five years, Peter, did share a bedroom with Andrew during part of the period when Andrew alleged his mother engaged in sexually inappropriate conduct. At that time, Andrew Bond was in his early to mid teens. It was undisputed that when the beds were configured in a double bunk arrangement, that Andrew Bond slept in the bottom bunk. Whilst there was evidence that the beds were sometimes configured as two single beds approximately one to one and a half metres apart, there was no evidence as to when this configuration was in place; how long the configuration was in place; which of the two beds was occupied by Andrew Bond; what could and could not be seen by the occupant of the other bed, if indeed they were awake, noting that Peter Bond was five years younger than his brother; or who, if anyone was sharing the room at that time. 68 The alleged conduct was not, at any time, described as being either overtly physical, or noisy in nature. It was, according to Andrew Bond's evidence," ... a silent thing that happens, ok, there are no noises. People don't make noises. You don't shout and scream and go yeah, everyone guess what's going on." 69 At [61], the Commissioner noted that:

[87]

Mrs Bond claimed that when Andrew was seeking to have him [her] rub his penis, she said to him: "No Andrew. No more." 70 Mrs Bond confirmed, in her affidavit evidence, that there had been occasions when there had been a move towards sexually inappropriate conduct, albeit, instigated by her son. This was not, as asserted by the appellant, inconsistent with the evidence of Mr Andrew Bond, who stated at various times, that he encouraged the conduct because "it felt good." The issue before the Commissioner was not who instigated the conduct, but rather, whether the alleged conduct occurred. Given the appellant's own evidence that there had been instances where Mr Andrew Bond was seeking contact of a sexual nature when the appellant was kissing him goodnight, in my opinion, the Commissioner was entitled to rely upon this evidence as partial corroboration of Mr Andrew Bond's allegations about a sexual, or semi-sexual relationship between himself and Mrs Bond. The fact that the appellant denied that she responded to the encouragement did not, in itself, preclude the Commissioner from drawing certain inferences about the nature of the relationship that existed between the appellant and her son. 71 I find that the conclusions reached by Connor C in respect of the alleged "night time conduct" were open to him. Unrestricted access to Andrew Bond's children and the trip to Adelaide 72 It was common ground that, until at least October 2005, the appellant had unrestricted access to Andrew Bond's three children. That included having them sleep over at her home. It was also common ground that in April 2006, the appellant took Andrew Bond's son, Joshua, then aged 7, to Adelaide for four days. That occurred with Andrew Bond's approval. 73 His evidence was that he restricted his mother's access to his children from October 2006. His evidence in relation to allowing his mother to take his son to Adelaide was that he "was just hoping like hell that it wouldn't happen to my seven year old son. 74 Mr Moorhouse submitted that the fact that the appellant had unrestricted access to Andrew Bond's children until at least October 2005 and that the appellant was permitted to take Andrew Bond's son to Adelaide for four days in April 2006, is entirely inconsistent with Andrew Bond's evidence that the alleged conduct occurred. Counsel contended that the Commissioner appeared to accept this at [54] of his decision, but that he did not subsequently explain why he had dismissed it, or the extent to which he had given it any weight, in determining that the alleged conduct occurred. 75 Mr Moorhouse submitted that, properly considered, this evidence also created a compelling inference that the alleged conduct did not occur. 76 It is to be remembered that at the time Mr Andrew Bond agreed to let his mother take his son to Adelaide, he had not revealed to anyone the appellant's alleged conduct. His evidence was that he was continuing to suppress what had occurred and was still grappling with it in his mind. Critically, Mr Andrew Bond's wife, who also gave evidence, did not know about the allegations at the time of the Adelaide trip and she was a co-decision-maker in permitting her son to undertake the Adelaide trip. Furthermore, in my view, the criticism of the Commissioner's finding by the appellant ignores the fact that Mr Andrew Bond's son was only 6 or 7 years of age at the time of the Adelaide trip, whereas the alleged conduct involving Mr Andrew Bond occurred in his post pubescent early to late teens. The exposure incident 77 One of the factors which influenced the Commissioner in making an adverse finding in respect of the appellant's credit was her account of an incident which occurred when Mr Andrew Bond was about 23, and shortly after he had been married. Her evidence was that in or about 1995, Mr Andrew Bond came to her house and exposed himself to her, which caused her to tell him to go home to his wife. 78 The Commissioner concluded at [61] of his decision, that the appellant's evidence of this incident suggested earlier indiscretions by her. Mr Moorhouse contended that there was no evidence to support such a suggestion, and submitted that the Commissioner erred in proceeding on the basis that the appellant's evidence of the exposure incident somehow cast doubt on her credibility. This submission overlooked the evidence of the appellant that on two occasions when Andrew Bond was a teenager whilst sitting on a lounge in their home, he took her hand and placed it on his groin. 79 The final reason given (at [61]) for the Commissioner rejecting the appellant's credit, related to a separate incident when Mr Andrew Bond attended his mother's house and he alleged that she performed oral sex on him. There is no issue that the appellant and the respondent gave evidence about two different incidents involving a visit by Andrew Bond to his mother's house some time in 1995. Mrs Bond denied the alleged oral sex incident in her affidavit evidence and under cross-examination. The Commissioner did not determine the oral sex incident. In my view, it is unsurprising that the Commissioner did not proceed to make a finding in respect of this allegation. Clearly, the proceedings were traumatic enough. A positive finding in respect of this allegation would have been horrendous for the parties. The Commissioner was mindful that the evidence as to the exposure incident was about a completely separate incident and concluded that this incident, described by Mrs Bond, suggested some earlier indiscretions by Mr Andrw Bond. In light of the findings that the Commissioner had reached (at [60] - [61]), such an inference was reasonably open to him. Credibility of Mrs Bond and Mr Andrew Bond 80 Mr Moorhouse submitted that the Commissioner erred in failing to have regard, or sufficient regard to the inconsistencies and discrepancies in Mr Andrew Bond's evidence and in accepting his evidence regarding the alleged conduct. Counsel pointed to inconsistencies regarding the alleged conduct; Andrew Bond's failure to give details of the alleged "night time conduct", for example, whether he was sharing a room and who was in the room with him at the time; whether he had pyjamas on or not, and how the bedroom lights came to be off when the alleged conduct occurred. Counsel submitted Mr Andrew Bond repeatedly changed his evidence about the order in which he disclosed the alleged conduct to various persons, and Mr Andrew Bond's record of dishonesty in relation to sexual matters. 81 Mr Andrew Bond, quite fairly, acknowledged that he had got the order wrong of who he told about the sexual conduct at various times. In my view, nothing turns on Mr Andrew Bond being mistaken about this issue, or that he may have engaged in extra marital affairs. These matters, in my view, are not critical to a determination as to the honesty of his evidence regarding the allegations. 82 Mr Moorhouse submitted that the Commissioner fell into error in the reasoning he adopted to conclude that the appellant did not present as a credible witness. I have earlier set out the Commissioner's reasons for this conclusion. The assessment of the appellant's credibility by the Commissioner is criticised by the appellant because the Commissioner made reference to the opinion of others (Jeffrey Bond, Pastors Mr Timothy McMenamin and Mr Peter Jones), who shared the Commissioner's ultimate assessment of the appellant. 83 The Commissioner acknowledged (at [60]) that the views held by the various witnesse, were concurrent with his own assessment of the appellant, gained from his assessment of the appellant during the hearing and not the witnesses experiences. The Commissioner set out (at [61]) the factors that had particularly influenced him and made no reference to the views of the other witnesses. 84 Mr Moorhouse also pointed to the fact that the appellant denied all of the allegations in the proceedings below; the rejection of the appellant's credibility on the basis of Mr Andrew Bond's evidence; the rejection of the appellant's credibility on the basis of a misapprehension of her evidence about the bedtime hugging incidents; the rejection of the appellant's credibility on the basis of drawing unsupported conclusions from her evidence of the exposure incident, and the appellant's use of "I do not recall" and similar phrases during interviews with the investigation by the Department, all of which were relied upon by the Commissioner, thereby leading him into error. In light of the authorities to which I have earlier referred, I conclude that the findings reached by the Commissioner about the credibility of the appellant and Mr Andrew Bond were open to him on the evidence and the way in which the evidence was given by the respective individuals during the course of the hearing. 85 In this regard, I make brief reference to the evidence of the appellant during cross-examination. 86 There was clear evidence that in October 2006, Mr Andrew Bond went to see his mother and a conversation took place. Mr Andrew Bond's evidence was that he commenced the conversation by saying words to the effect "Mum, I've been thinking about the stuff from my childhood, you used to nibble my ear and rub my penis." Mrs Bond agreed that her son came to see her and a discussion took place but that he did not give her any specific details of what occurred. Mrs Bond was asked in respect of this issue:

[88]

COMMISSIONER: Q. Didn't you ask him to explain what things he meant? I mean, that would be the natural reaction. You didn't advance it further? He didn't explain to you what he - reading your statement, he didn't explain what he meant by "things". Did you ask him what he meant by "things"? A. No, I didn't.

[89]

BRUS: Q. May I inquire as to why you didn't Mrs Bond? A. Because it came as a shock to me what (sic) he was coming around.

[90]

Q. What was a shock? The fact that he [was] coming around? A. That he was coming around saying that there was things in his past.

[91]

Q. It came as a shock to you. Why were you shocked? A. Because I didn't know that things had troubled him.

[92]

Q. Then again I ask, why didn't you ask him what those things were? A. Because at the time I needed to process and I didn't ask.

[93]

Q. What were you processing? A. I needed to think what could be said.

[94]

Q. Well, according to your evidence, the only thing he had said was that there were things in his past that he wasn't happy with. So what were you processing? A. What perhaps he could be referring to, but I had no idea.

[95]

Q. Well, in fact didn't Mr Bond tell you, as set out in his affidavit, exactly what it was that was causing him concern? A. Will you please-

[96]

Q. Mr Bond told you, and I put it to you that he told you that you used to nibble his ear and rub his penis? A. I have already said Andrew did not say that.

[97]

Q. And I am putting it to you formally that that was said to you? A. No, that is not the truth.

[98]

Q. I also put it to you that Mr Bond said, "Why did you do this? Do you know the effect it has had on my life? Why don't you admit it?" A. Nothing happened.

[99]

Q. Well, I'm putting that Mr Andrew Bond said those words to you. Do you agree or disagree? A. I disagree.

[100]

Q. I see. So the extent of this conversation was as set out in your affidavit? A. Yes.

[101]

Q. How long did this conversation go on for? A. The conversation, which included casual - at the most, no more than 20 minutes.

[102]

Q. Now, you told us a little while ago that you were shocked and you were processing. Is that correct? A. I was shocked.

[103]

Q. Yes. And you were processing, that's what you said? A. Yes.

[104]

Q. Right. When did you finish processing? A. I can't recall.

[105]

Q. Well, was it that night, was it the next day, the next week? A. I can't answer that.

[106]

Q. Did you give any further though to what your son Andrew had said to you? A. No.

[107]

Q. You did not give thought to your son telling you that he was, on your evidence, things in his past that he wasn't happy with? A. (No verbal reply).

[108]

Q. Is that what your evidence is? A. I did not think about it.

[109]

Q. So your son left after telling you this and you gave it not one further thought, is that what you're saying? A. No, it was not a major - I didn't think of it for days. 87 The Commissioner was entitled, on the basis of all the evidence before him, to form a view as to who he believed and ultimately he believed Mr Andrew Bond. 88 Mr Moorhouse submitted that although the Commissioner referred to the High Court's judgment in Briginshaw v Briginshaw (1938) 60 CLR 336 and to this Commission's judgment in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464, the Commissioner failed in fact to apply the Briginshaw principle. 89 In Qantas Airways Ltd v Gama (2008) 167 FCR 537; 247 ALR 273, Branson J discussed "the Briginshaw standard" and stated at [123] that each of the expressions "the Briginshaw standard" and the Briginshaw test" (and in this case "the Briginshaw principle") should be avoided because of its tendency to mislead. 90 Her Honour observed at [124] - [126]:

[110]

[124] It is appropriate to start by referring to the well-known statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362: "Fortunately ... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." [125] I note, incidentally, that in the above passage Dixon J speaks of "allegations" rather than, for example, causes of action. His Honour was concerned, as it seems to me, with the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding. [126] More importantly for present purposes, Dixon J did not purport to identify any particular standard; rather his Honour made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted. As his Honour observed, the common law has not developed a third standard of persuasion; it acknowledges only the two standards - the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction. 91 Her Honour proceeded to discuss a number of decisions of the Full Federal Court of Australia and the High Court of Australia (at [128] - [132]) noting in Rejfek v McElroy (1965) 112 CLR 517 that the High Court made it plain at 521 that:

[111]

"the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused" (her Honour's emphasis). 92 I do not understand the Full Bench in Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 to have said anything different at [9]:

[112]

[T]he High Court has stressed on many occasions that Briginshaw v Briginshaw does not displace the burden of proof in civil cases which remains on the balance of probabilities. Rather, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove; a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of illegal or fraudulent conduct (see the discussion of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449 - 450 and the decision of the Full Bench of the Commission in Four Sons Pty Limited v Sakchai Limsiripothong (2000) 100 IR 400 at [10] - [11]).

[113]

93 It is to be observed that proving a fact and reaching a conclusion that it meets the requisite standard of reasonable satisfaction as referred to in Briginshaw involves a weighing up and comparison of evidence. This process requires more than a mere mechanical comparison of possibilities. It requires an assessment of the evidence in its totality and it is clear, in my view, from the Commissioner's decision that this was the process that he adopted. 94 I am unable to reach a conclusion that the decision of the Commissioner was glaringly improbable, or contrary to compelling inferences in the case. There is nothing that points decisively to error on the part of the Commissioner in acting on the evidence and his assessment of Mr Andrew Bond and Mrs Bond. 95 The appellant also contended that the Commissioner erred in not having regard to the need to proceed cautiously, consistent with the principles in Longman v R (1989) 168 CLR 79. This decision established the need, in criminal trials, for a jury to be warned about the dangers of convicting on the basis of uncorroborated evidence of a sexual offence complainant where there had been a significant delay in making any complaint. 96 Mr Moorhouse highlighted this principle to the Commissioner and counsel's submission was duly acknowledged at [55] of his decision. The fact that the Commissioner omitted, or declined to make any further reference to the Longman principles, and in particular the need to proceed with caution when dealing with delayed allegations, does not, in my opinion, lead to a conclusion that the Commissioner did not adopt a cautious approach to the evidence before him. Clearly, he did, as is evidenced by his determination of the application which immediately follows reference to Longman. 97 I consider that the findings of fact made by the Commissioner as to the appellant's involvement in sexual misconduct with her son were open to him. I agree with Ms Brus' submission that:

[114]

One cannot get away from the question of the credibility of the witnesses. That is unavoidable because the facts rise and fall on the evidence. ...

[115]

... [T]he way in which the evidence was given, the demeanour, the emotion of which the transcript does not give any indication at all, is critical to anyone making an assessment about the credibility of the various witnesses. 98 I am also mindful of the observations of the High Court in Fox v Percy (2003) 214 CLR 118 in reaching the conclusion I have, and particularly the observations at [30] - [31] where Gleeson CJ, Gummow and Kirby JJ stated:

[116]

[30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") : " ... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. (my emphasis)

[117]

99 McHugh J in Fox v Percy discussed the decision of the High Court in Abalos v Australian Postal Communication (1990) 171 CLR 167 which was applied in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. These authorities considered the principles to be applied by an appellate court in reviewing a trial judge's findings based on demeanour leading to findings of credit. In Abalos, McHugh J said at 178, 179:

[118]

"[W]here a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion': Watt or Thomas v Thomas [1947] AC 484 at 488. ... [W]hen a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked." 100 His Honour proceeded to discuss decisions of the House of Lords and also referred to the decision of the High Court of Australia in Warren v Coombes (1979) 142 CLR 531 and said at [90] - [91]:

[119]

[90] It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) , for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it. [91] Legal doctrine is most likely to command the respect of the profession and, consequently, the public which the profession serves when it evolves by processes of induction and deduction from the experience of decided cases and the application of established legal principles to cover new situations. To now reject the doctrines to which Abalos and Devries give effect would be a revolutionary, not an evolutionary step.

[120]

101 In my view, this is one of those cases where the established principles about witness credibility are crucial. 102 For these reasons, I consider that the appeal against the decision of Connor C should be dismissed. 103 In these circumstances, although it is unnecessary to consider the remaining grounds of appeal, I note that the Commissioner did make a number of observations about the provisions and purpose of the Commission for Children and Young People Act 1998 and a possible tension between that Act and an order for reinstatement pursuant to the Industrial Relations Act 1996. These observations were obiter, and on my reading of the Commissioner's decision, did not form part of the final determination regarding the dismissal. 104 Similarly, the question of any risk posed by the appellant to the protection of children only needed to be considered if an order for reinstatement was being considered by the Commissioner. ORDERS 105 I would make the following orders: 1. Leave to appeal is granted; 2. The appeal is dismissed.

DECISION OF RITCHIE C 106 I have had the benefit of reading the draft reasons for decision by Walton J, Vice-President and Staff J. I agree with the orders proposed by their Honours. I agree with the reasons of their Honours. However, I prefer the approach of Staff J to the resolution of the oral sex issue and s 5A of the Teaching Service Act issue.

[121]

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