Wong v National Australia Bank Limited

Counsel for the Appellant: Mr M Felman SC with Ms T Duthie

Solicitor for the Appellant: Jholl Lawyers & Consultants

Counsel for the Respondent: Ms R Doyle SC with Mr J Hartley

AND: NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 Respondent

order made by: KATZMANN, CHARLESWORTH AND O'SULLIVAN JJ DATE OF ORDER: 8 SEPTEMBER 2022

1. The appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 In July 2015 the appellant, Ms Sene-Li Wong, commenced employment with the first respondent, National Australia Bank (NAB), as the Manager of the bank's internet banking platform. 2 Ms Wong's appeal concerns three decisions made by NAB relating to her employment: a decision to remove her from her role on 21 March 2017 (removal decision), a decision to announce the removal in an email distributed to 423 of her colleagues on the same day and a decision to terminate her employment on 11 May 2017 (termination decision). According to NAB, those decisions were taken because of the poor performance of the internet banking platform under Ms Wong's management and Ms Wong's behaviour in the workplace. 3 Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) is titled "General protections". Its objects expressly include the protection of workplace rights. Section 340 (contained in Pt 3-1) prohibits a person from taking "adverse action" against another person because the other person has (relevantly) exercised a "workplace right". For the purposes of Pt 3-1, an employee has a workplace right if the person is "able to make" a complaint or inquiry in relation to his or her employment: FW Act, s 341(1)(c)(ii). The expression "adverse action" is defined to include the dismissal of a person from his or her employment and the alteration of an employee's position to his or her prejudice: FW Act, s 342(1), Item 1. It is common ground that the removal of Ms Wong from her role, the announcement of the removal (hereafter the 21 March 2017 Announcement) and the termination of her employment each meets the statutory definition of adverse action. 4 At first instance, Ms Wong relevantly alleged that NAB contravened s 340 of the FW Act by taking the adverse actions because she had exercised her workplace right to make complaints or inquiries concerning her employment. The case was founded on 19 discrete complaints and two discrete inquiries. The primary judge accepted that Ms Wong was "able to make" some (but not all) of those complaints and enquiries within the meaning of s 341. His Honour went on to find that NAB had not taken the adverse actions because of any of the pleaded complaints and inquiries and so rejected Ms Wong's claims: Wong v National Australia Bank Limited [2021] FCA 671. A claim founded in tort was also unsuccessful. 5 Ms Wong appeals from that part of the judgment concerning NAB's alleged contraventions of the FW Act. Seven grounds were pleaded. Ground 1 was abandoned during the hearing of the appeal. Briefly summarised, the remaining are to the effect that the primary judge erred by: (1) finding that Ms Wong's immediate supervisor, Mr Darran Arnott, did not participate in the decisions constituting the adverse actions in such a way that required any interrogation of his state of mind (grounds 2 to 4); and (2) finding that even if Mr Arnott participated in the decisions constituting the adverse actions such that his reasons for acting were to be attributed to NAB, he did not act for the prohibited reason that Ms Wong has made complaints and inquiries concerning her employment (grounds 5 to 7).

Outcome of the appeal 6 As explained at [8] to [86] below, the primary judge ought to have concluded that the decisions constituting the adverse actions were decisions in which Mr Arnott participated in such a way that his reasons for acting were relevant in determining NAB's reasons for taking the adverse actions. The arguments underpinning grounds 2 to 4 are accepted to that extent. 7 However, the primary judge did not err in concluding that NAB's reasons did not include the reason that Ms Wong had made the pleaded complaints or inquiries. The primary judge was correct to conclude that NAB had not contravened the FW Act in the manner alleged by Ms Wong, including by reference to Mr Arnott's state of mind: see [89] to [143]. Grounds 5 to 7 must fail.

Did the primary judge err in concluding that Mr Arnott was not a decision-maker (Grounds 2 to 4)? 8 On Ms Wong's pleaded case, the "person" alleged to have contravened s 340 of the FW Act (at least as the primary contravener) was NAB. As the primary judge observed, NAB is a large and well-known Australian bank and a corporate entity. 9 At trial it was necessary to identify the human actors whose conduct and states of mind were relevantly to be attributed to NAB in accordance with s 793 of the FW Act. It provides: 793 Liability of bodies corporate Conduct of a body corporate (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official; is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. State of mind of a body corporate (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind. Meaning of state of mind (3) The state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. Disapplication of Part 2.5 of the Criminal Code (4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act. Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility. (5) In this section, employee has its ordinary meaning. 10 Section 360 of the FW Act provides that for the purposes of Pt 3-1 a person takes action for a particular reason if the reasons for the action include that reason. 11 Section 361(1) of the FW Act provides: 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 12 At the time of her dismissal Ms Wong reported to NAB's "Head of Digital Platforms and Delivery", Mr Arnott. Mr Arnott reported to NAB's (erstwhile "Acting") "General Manager - Digital" Ms Catherine MacLeod, who in turn reported to Mr Todd Copeland, NAB's "Acting[,] Executive General Manager - Digital". 13 Ms Wong's pleaded case was that the decisions constituting the adverse actions were made by "Ms MacLeod and/or Mr Arnott". Ms Wong alleged that Ms MacLeod was knowingly involved in NAB's contraventions and so must be taken to have contravened s 340: see FW Act, s 550. Ms MacLeod was joined as the second respondent. Mr Arnott was not joined as a party. 14 Ms Wong has at all times acknowledged that Ms MacLeod (and not Mr Arnott) had the authority to remove her from her role and to terminate her employment. 15 It was also common ground that Ms MacLeod was not aware of any of the many complaints or inquiries by Ms Wong that predated the removal decision. Following her removal, Ms Wong made a further series of complaints to Ms MacLeod and other senior managers arising out of and concerning her removal from her role. Ms Wong alleged that she was dismissed because of those further complaints (about some of which Ms MacLeod was indisputably aware) as well as the complaints that she had previously made to Mr Arnott. 16 The primary judge found (and it was not disputed) that Ms MacLeod based her removal decision and the subsequent termination decision on information, assistance and advice provided to her by Mr Arnott, as well as on information and advice provided by others. Ms Wong contended that the provision and content of information provided by Mr Arnott to Ms Wong and the role that he otherwise played in the decision-making process were such that his conduct and state of mind were relevant to determining NAB's reasons for taking each adverse action. 17 The three grounds of appeal agitating that issue appear under the heading "Mr Arnott as a decision maker". They are expressed as follows: Removal from role as Manager, Internet Banking 2. His Honour erred in concluding that Mr Arnott's reasons were not part of the reasons for which the Respondent (NAB) should be understood to have engaged in adverse action against Ms Wong with respect to removing her from her role as Manager, Internet Banking (Decision [196]). His Honour erred in this respect by reason of the following: a. his Honour erred in concluding that the maker of a corporate decision, relevantly, the decision to remove Ms Wong from her role as Manager, Internet Banking, must exercise authority to effect that decision, whether actual, ostensible, formal or otherwise and that as Mr Arnott did not have such authority, he was therefore not a 'decision maker' in that respect (Decision [95], [195]); b. his Honour erred by concluding that Mr Arnott's role was not essential or indispensable to the decision to remove Ms Wong from her role as Manager, Internet Banking (Decision [196]); and c. having found that Mr Arnott had a 'significant role' in removing Ms Wong from her role as Manager, Internet Banking (Decision [193]), his Honour should have concluded that Mr Arnott's involvement had a material effect on the decision to remove Ms Wong from her role as Manager, Internet Banking and that his state of mind (and the reasons that animated him to do what he did) were the reasons for which the NAB should be understood to have removed Ms Wong from her role as Manager, Internet Banking. 21 March 2017 Announcement 3. His Honour erred in concluding that Mr Arnott's reasons were not part of the reasons for which NAB should be understood to have engaged in adverse action against Ms Wong with respect to sending the 21 March 2017 Announcement (Decision [289]). His Honour erred in this respect by reason of the following: a. his Honour erred by concluding that Mr Arnott did not contribute to a point sufficient to qualify him as a joint author of the decision to send the 21 March 2017 Announcement (Decision [289]); and b. his Honour should have concluded that Mr Arnott's involvement, in the circumstances, had a material effect on the decision to send the 21 March 2017 Announcement and that his state of mind (and the reasons that animated him to do what he did) were the reasons for which NAB should be understood to have sent the 21 March 2017 Announcement. Termination of employment 4. His Honour erred in concluding that Mr Arnott's reasons were not part of the reasons for which NAB should be understood to have engaged in adverse action against Ms Wong with respect to terminating her employment (Decision [303]-[304]). His Honour erred in this respect by reason of the following: a. his Honour erred in concluding that the maker of a corporate decision, relevantly, the decision to terminate Ms Wong's employment, must exercise authority to effect that decision, either actual, ostensible, formal, or otherwise (Decision [95], [304]); b. his Honour erred in concluding that Mr Arnott's contribution to the decision to terminate Ms Wong's employment was not such as to elevate him to the rank of decision-maker or to otherwise require, in the search for NAB's reasons for dismissing Ms Wong, any interrogation of his state of mind (Decision [303]); and c. having concluded that Mr Arnott's role in the process that ended with Ms Wong's dismissal was significant (Decision [303]), his Honour should also have concluded that Mr Arnott's involvement had a material effect on the decision to terminate Ms Wong's employment and that his state of mind (and the reasons that animated him to do what he did) were the reasons for which NAB should be understood to have engaged in adverse action against Ms Wong in terminating her employment.

The corporate mind 18 As French CJ and Crennan J said in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500, the question of whether adverse action was taken for a prohibited reason is one of fact to be answered in light of all of the facts and circumstances established in the proceeding (at [45]). The effect of s 360 of the FW Act is that an employer contravenes s 340 if the prohibited reason is a "substantial and operative" reason for the employer's adverse action: Barclay at [104] (Gummow and Hayne JJ there citing Mason J in General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235). 19 In Barclay, an employee exercised a workplace right by virtue of his being an officer of an industrial association and by reason of his engagement in industrial activity. The employee alleged that his employment was terminated because of his exercise of those rights. The trial judge accepted the direct testimony of a single decision-maker who had acted on behalf of the corporate employer and, on the basis of that evidence, concluded that the employer had not contravened s 346 of the FW Act (then in equivalent terms to s 340). The Full Court allowed the employee's appeal. The employer appealed to the High Court. 20 French CJ and Crennan J observed: 44 There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression 'because' in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains 'why was the adverse action taken'? 45 … Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (footnotes omitted) 21 To similar effect, Gummow and Hayne JJ said (at [127]): In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a 'substantial and operative factor' as to constitute a 'reason', potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry. 22 In Wood v City of Melbourne Corporation [1979] FCA 42; 26 ALR 430 an employee was stood down by a municipal council in circumstances alleged to amount to a contravention of a general protection provision similar to s 340 of the FW Act. In identifying the relevant human actors, Smithers J considered the state of mind of the town clerk (Mr Rogan) who gave directions to the acting town clerk (Mr Reilly) after an exchange of information between them. His Honour observed that whilst "technically" it was Mr Reilly who took the adverse action on the corporation's behalf (as he was authorised to do), he had done so on the advice of Mr Rogan. Accordingly, his Honour said (at 446 - 447): … in this case, I think the better view is that it was Rogan's mind which was the mind of the defendant. Possibly the mind of the corporation has to be inferred from Rogan and Reilly's joint mind. What is in issue is a decision of the corporation. A decision is defined in the Shorter Oxford English Dictionary as including 'the action of deciding' and, notwithstanding that Rogan characterized his part in the affair as giving advice, the corporation is entitled to have the total transaction looked at objectively by the court. It is the duty of the court to draw such inferences as are proper on the evidence as to who it was that played the decision-making part in the joint administrative activities culminating in Reilly performing the actual act of standing down. So doing I would attribute the decisive factor in the matter to have been Rogan's so-called advice. A relevant statement of principle in this connection is to be found in the judgment of Bray CJ in Brambles Holdings Ltd v Carey (1976) 12 SASR 270 at 275-6: 'Of course, if mental states like knowledge or belief are to be attributed to a notional and metaphysical entity like a corporation, this can only be done by attributing to it the knowledge or belief actually possessed by some one or more of its officers. … Very difficult questions can arise in this connection. … It is enough to say that, in my view it is a fallacy to say that any state of mind to be attributed to a corporation must always be a state of mind of one particular officer alone and that the corporation can never know or believe more than that one man knows or believes. …' 23 In Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198, Evatt J concluded that in examining the reasons of a decision of a municipal council to dismiss an employee it was relevant to consider the reasons of a finance committee that had recommended that course. The decision of the finance committee was the "essential and material decision to be considered" (at 205). In circumstances where two members of that committee were also members of the Council, his Honour was not satisfied on the balance of probabilities that their minds were not actuated by the prohibited reason alleged by the employee. 24 In Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 172 CAR 1073 the Full Court of the Australian Industrial Court (Smithers, Woodward and Evatt JJ) said this of decisions made by a committee managing the affairs of a corporate body (at 1079): … considerations may have operated on the minds of the various members of the committee, and not all the considerations operating on the mind of every member would necessarily be known to the others. In addition it could well be that, in the decision-making process, the influence of one or more members may, for various reasons, have been greater than that of others. The effective decision may even have been made by a person who was not a member of the committee. In any particular case, a recommendation of one man may have been rubber-stamped by others without their giving the matter independent consideration. In another case a person actuated by improper motives may have overborne the minds of others who were not so motivated. Or a person improperly motivated may have presented a dishonest case to others. Of course there may be cases in which it would not be proper to go behind the proceedings of a formal meeting of a particular body. But in the circumstances of this case it is our view that the problem should be approached through an analysis of the motives and parts played by the individual actors. 25 As the decisions in Wood, Voigtsberger and Roberts demonstrate, the word "because" as it appears in s 340 of the FW Act directs attention to the reason for an action, which is to be found in the state of mind of the person alleged to have taken the adverse action. Where (as here) that person is a corporate entity, it will in all cases be necessary to examine the state of mind of the human actor or actors who (alone or together) caused the corporation to take the action that it did or, to adopt a phrase from Wood, who "played the decision-making part in the joint administrative activities" culminating in the actual act that constitutes the adverse action. It may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the "decision-maker" but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them. 26 The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation's reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind. 27 The primary judge expressed the view that the principles stated in the authorities were incorrect. His Honour made that clear in the following (at [95]): … For my own part, I am unable to see how an individual officer might qualify as a maker of any given corporate decision unless he or she can be thought to have exercised some authority or executive power to effect it, be that actual or ostensible, formal or otherwise. 28 His Honour referred to additional decisions of this Court, namely: (1) Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251 in which the Full Court (Lee, Madgwick and Gyles JJ) held that a corporate employer's reasons for dismissing an employee resided not only in the mind of the general manager who made the decision but in the mind of a supervisor who had made an "indispensable contribution" to rankings upon which the manager relied. The reasons of the supervisor, the Full Court held, had been "inadvertently adopted" by the manager without independent thought or analysis (at [37]). To found a contravention, it was not necessary for the decision-maker to have had conscious awareness that the supervisor's assessment was affected, motivated or explained by a reason prohibited by the FW Act; (2) National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139, in which Gray J held that a university's decision to dismiss an academic employee resided not only in the minds of those who made the decision but in the mind of the author a memorandum recommending that course; (3) Australian Red Cross Society v Queensland Nurses' Union of Employees (2019) 273 FCR 332 in which the Full Court (Greenwood, Besanko and Rangiah JJ) said (at [91]) that "a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a proscribed purpose" but refrained from formulating a precise test; and (4) Construction, Forestry, Mining and Energy Union v Claremont Coal Pty Ltd (2015) 253 IR 166 in which the decision-maker acknowledged that he "could not have made his ultimate decision" without referring to a ranking spreadsheet prepared by another employee, Reeves J there observing (at [121]), after referring to Kodak: … where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some 'unconscious' reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by 'inadvertently' adopting an 'undisclosed prohibited reason' in Kodak … 29 The primary judge doubted that Royal Melbourne, Kodak and Australian Red Cross could be reconciled with the High Court authority in Barclay and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 or with the terms of s 793 of the FW Act. 30 We consider the doubt expressed by the primary judge to have been unwarranted. In light of the nature of the error alleged in the present grounds of appeal it is appropriate to explain why that is so. 31 As the primary judge correctly acknowledged, neither Barclay nor BHP Coal concerned the anatomy of corporate decision-making. In BHP Coal, evidence of the reasons for the dismissal of a mining employee was given by the general manager of the mine and accepted by the trial judge. No issue arose as to whether any other person materially contributed to the decision. The same can be said of Barclay. 32 The primary judge was also correct to observe that both BHP Coal and Barclay illustrate the distinction between a person's reasons for doing something and the contextual influences that might bear in some way on those reasons (at [91]). However, whilst the distinction is relevant to issues of the kind that arise on grounds 5 to 7 on this appeal, it is not relevant to the antecedent question as to whether Mr Arnott's subjective motivations were relevant at all in determining NAB's reasons for taking the adverse actions that it took. It was necessary to consider whether Mr Arnott's role in the decision-making process amounted to more than a mere contextual influence. The circumstance that Mr Arnott did not have authority to remove Ms Wong from her position might be relevant to that inquiry but it is not conclusive. 33 The primary judge went on to say that the reasons of those who significantly or indispensably influence, or have a material effect on, contravening decisions ought not to qualify, merely by reason of that influence, as reasons that animate resultant corporate conduct (at [93]). The primary judge pointed to two further decisions which he said illustrated the point. 34 The first was Wood. However, as discussed above, the Court in that case examined the state of mind of Mr Rogan, notwithstanding that it was Mr Reilly who made the decision constituting the adverse action. It was critical to examine Mr Rogan's state of mind precisely because, on the facts, he had materially influenced Mr Reilly's decision. Whether Mr Rogan was motivated by a prohibited reason was plainly relevant. 35 The second case was Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205, correctly summarised by the primary judge as follows (at [92]): Earlier decisions of this court reinforce that reasoning. In AWU v John Holland (2001) 103 IR 205 (hereafter, 'John Holland'; Goldberg J), the court was called upon to consider a builder's decision to dismiss one of the applicant's members. A rival construction union had learned of his employment and, by way of protest against it, had embarked upon a campaign of industrial action against the builder. It demanded that the builder dismiss the employee. It was obvious enough that that demand was made because the employee was a member of the applicant union. The builder yielded to that demand and the employee (via the agency of his union) contended that it had done so because of his union membership. That contention was rejected: the court accepted that the builder had done what it had done out of concern to minimise disruption to its business. The fact that the employee's membership of the applicant union - although plainly significant in a contextual sense - did not factor in the putative mind of his employer as a reason for his dismissal. Equivalent reasoning was employed more than two decades earlier in Wood v City of Melbourne Corporation (1979) 26 ALR 430 (hereafter, 'City of Melbourne'; Smithers J). 36 In John Holland, the reasons of the employer in dismissing the employee did not equate to the motivations of the rival union demanding the dismissal. Goldberg J held that the rival union did not significantly or indispensably influence the employee's decision at all. The case does not provide any basis for the doubts expressed by the primary judge. 37 On this appeal, as at trial, neither party sought to argue that Kodak was incorrectly decided. In accordance with well-established principle, this Court should follow the reasoning in Kodak and the consistent but brief statement of the Full Court in Australian Red Cross. We do not consider there to be any tension between those authorities and s 793 of the FW Act. 38 Like the Full Court in Australian Red Cross, we consider it unnecessary to summarise the authorities in a single verbal formula or test. The High Court has frequently cautioned against elevating the particular words of a judgment to the status of a statute. As Gummow J observed in Brennan v Comcare (1994) 50 FCR 555 (at 572): The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given. 39 See also Comcare v PVYW (2013) 250 CLR 246, French CJ, Hayne, Crennan and Kiefel JJ (at [16]). 40 Notwithstanding his doubts, the primary judge stated that he was bound to follow the judgment of the Full Court in Kodak. The effect of Ms Wong's submissions on the present grounds of appeal is that his Honour did not in fact apply those principles but instead applied a test more aligned to his views as to what the law should be. 41 For the reasons that follow we consider there to be merit in that submission.

Facts 42 The role of Mr Arnott in the decision-making process, culminating in the removal of Ms Wong from her role was summarised by the primary judge in the following terms (at [193]): There is no doubt that Mr Arnott had a significant role to play in the process that culminated in Ms Wong's removal from the role of 'Manager[,] Internet Banking'. Mr Arnott, of course, was Ms Wong's immediate supervisor. On any view, he had greater visibility of her work, her conduct, her strengths and her imperfections than did Ms MacLeod. He was, on any view unsurprisingly, Ms MacLeod's primary (though not sole) source of information concerning Ms Wong. It cannot be doubted that the reasons that actuated Ms MacLeod's decision - or 'formal decision', as the case may be - to remove Ms Wong from her role were reasons that formed in Ms MacLeod's mind because of (or partially or largely because of) information or advice that Mr Arnott fed to her. It is also plain beyond doubt that he played a not-insignificant administrative role in the process that culminated in Ms Wong's removal. By way of example, he assisted with the drafting of the 21 March 2017 Announcement and a script to which Ms MacLeod spoke at her meeting with Ms Wong earlier that day. 43 The primary judge later summarised the information conveyed to Ms MacLeod (at [239]): … Over a series of discussions, he told Ms MacLeod about the behavioural problems that he and others had encountered or observed (including Ms Wong's aggressive and dismissive interactions with colleagues and her seeming unwillingness to accept feedback with which she disagreed), and the disproportionate amount of time that he was spending dealing with her and with problems associated with the internet banking platform (including, most recently, problems associated with the NPP). Mr Arnott told Ms MacLeod of his concerns that Ms Wong's impact on others threatened to sound in 'team members taking stress leave or leaving NAB'. He told her that he did not think that he could continue to work with Ms Wong, noting words to the effect that 'Ms Wong is the most difficult person I have had to deal with in my life'. 44 The findings recited in those paragraphs are not the subject of challenge by any party. The following intermediary facts are the subject of findings elsewhere in the reasons for judgment or are otherwise undisputed. 45 Ms MacLeod sent an email to Ms Wong on 21 March 2017 by which she summarised what had occurred during a meeting earlier that day and notified Ms Wong of the decision to remove her from her role. The meeting was attended by Ms MacLeod, Ms Wong and a member of NAB's human resources department, Mr Adrian Sbrugnera. The email (accurately) recorded that Ms MacLeod had raised three issues. 46 First, Ms MacLeod said that she was concerned about the performance of the internet banking platform for which Ms Wong was responsible. The concerns were summarised as follows: • Consistent feedback from stakeholders within and outside of Digital that the platform is incredibly challenging to deal with. • Clear lack of leadership, direction and coherence across the team. • Ongoing loss of key people within the team (key examples include UX & Design resources, and digital technology staff). • Lack of transparency and clear articulation of risks and issues within the platform. 47 Second, Ms MacLeod said that the internet banking platform had suffered from a significant cost blowout, putting one of the bank's major strategic priorities at risk and impacting on customers. She said that the cost blowout "ha[d] only been called out in recent weeks" and added that the internet banking platform was a "clear anomaly" among other areas of NAB's digital work. The email continued: • You have demonstrated a distinct lack of accountability for the NPP issues, and have not been able to clearly articulate and justify many aspects of the work effort and NPP plan (e.g. costs increasing from $3.2m to $5.2m and then $7.2m over a matter of weeks without clear and concise justification). 48 Third, Ms MacLeod said that she had ongoing concerns about Ms Wong's behaviour "not aligning to NAB's values", despite a number of behavioural issues having previously being raised. The behavioural issues were summarised as follows: • Concerns have continued to be raised by members of the Digital leadership team, your peers and other members of the Digital team and organisation. • The themes in this feedback relate to aggressive and combative behaviour, and lack of willingness to accept ideas and feedback from others, which has led to feedback that others are hesitant to approach yourself and the IB team. 49 The email stated that Ms Wong would no longer be responsible for the internet banking platform in light of Ms MacLeod's concerns and that a review was being conducted into her employment which may culminate in her termination. Ms MacLeod said that before making a final decision she wished to provide Ms Wong with the opportunity to reflect on what she had said and to respond. Ms MacLeod said that she would consider Ms Wong's response, together with "all of the other information I have" and then make a final decision. 50 The 21 March 2017 Announcement was made later that day by way of an email sent to 423 recipients by Ms MacLeod together with NAB's general manager of digital technology, Mr David Killen. The email did not contain any statement of the concerns that had been set out in Ms MacLeod's email to Ms Wong. It did, however, state that the internet banking platform was facing some immediate challenges and that a number of changes to the team would be made "to ensure we are best set up for success". The email confirmed that Ms Wong would be replaced in her role, thanked her for her contribution to the platform and stated that Ms MacLeod and Mr Killen were "working through next steps with her". 51 Following her removal, Ms Wong asserted in a series of emails that the process being undertaken by NAB was unfair. She sought details in relation to each allegation made in Ms MacLeod's email together with an independent investigation into those matters. On 3 May 2017 Ms MacLeod sent a further email to Ms Wong. In that email, she stated that she had received feedback from multiple employees about Ms Wong's general behaviour. She stated that the feedback was consistent with prior feedback that had been received and that had been addressed with Ms Wong throughout 2016. She stated that the feedback was reflected in mid-year and end of year performance ratings of "D" and "C" respectively. The email continued: I am concerned your response in your letter of 24 March 2017 is focused on obtaining specific details of feedback received, rather than to actually consider why multiple employees would provide such feedback. Of further concern is your failure to acknowledge your accountability for the underperformance of the [internet banking] platform. As per my feedback, in addition to the negative feedback from employees, there has been a sharp degradation in your performance from a platform delivery perspective, including a clear lack of leadership and direction for the team, and a lack of ability to clearly articulate and resolve key risks and issues on the platform. 52 The email went on to provide the following four examples of behavioural issues: (1) Significant behavioural concerns have been raised by a number of members of the Digital Technology team, including multiple Delivery Managers, who have cycled through the Internet Banking team over the last six months. Despite the turnover in people, there have been consistent concerns raised about your behaviours and a divisive 'us vs them' attitude that you have created between the Digital Business and Digital Technology teams. One employee has stated that you are the most difficult person they have dealt with during their extensive career at the bank. (2) Numerous members of the Digital UX & Design team have raised concerns with the Digital Leadership Team about your behaviours, which they have described as dismissive, combative and, at times, aggressive. This has prompted one employee to break down in tears when describing their difficulties in working with you, which cannot be tolerated. (3) A number [sic] Digital Leadership Team members have cited ongoing difficulties in working with you since similar feedback was provided throughout the 2016 performance year. Specific feedback has been escalated to me from Nick Walker, Brendan Donoghue and Piers Balmer. This feedback has related to specific interactions with you, and they have also highlighted a degree of fear in approaching you regarding standard workplace matters because of the behaviours you have exhibited. (4) In relation to NPP delivery, both the broader NPP Program Team and the Digital Program Manager have specifically highlighted the difficulties they have encountered working with you (lack of schedule & cost transparency, lack of willingness to work in a transparent and collaborative manner with the Program team) relative to the other Digital teams they have worked with throughout the NPP Program. 53 Ms Wong repeated her requests for more detail of all the allegations raised by Ms MacLeod in the correspondence. A representative of NAB responded to those requests in terms that asserted that the information provided to Ms Wong was sufficient and that Ms Wong's request for the appointment of an external investigator was refused. Ms Wong's employment was terminated shortly afterward. 54 The involvement of Mr Arnott in each of the steps culminating in Ms Wong's termination was the subject of affidavit and oral evidence of Ms MacLeod and Mr Arnott, both of whom were called as witnesses in NAB's case and cross-examined at length. 55 Ms MacLeod informed the Court that, in respect of matters concerning Ms Wong's behaviour, she relied on what Mr Arnott told her and accepted what he said to be true without speaking to Ms Wong. More generally, she said that she took briefings from "senior leaders" and relied on them "for the detail". To similar effect, Mr Arnott said that he had to help Ms MacLeod "with [the] detail" because he had "more intimate knowledge of" it. He acknowledged that he had provided Ms MacLeod with "a lot of information" in the process leading to Ms Wong's removal from her role. 56 In March 2017 Ms MacLeod had a dozen discussions in person with Mr Arnott concerning Ms Wong's employment, during which she considered terminating Ms Wong's employment or removing her from her role. Other personnel were present at some of the discussions. 57 On Ms MacLeod's account Mr Arnott told her that he had spent months working with Ms Wong in an effort to "lift her behaviours to an appropriate level". He told Ms MacLeod that Ms Wong was not receptive to feedback and was "constantly combative with him". He told her that Ms Wong's behaviours were having an impact on him personally and that he could not manage Ms Wong any more. He told her that Ms Wong's employment was "untenable". 58 From at least January 2017, Ms MacLeod observed Mr Arnott becoming "close to tears and on the verge of breaking down" on a number of occasions when he spoke to her about Ms Wong. Ms MacLeod regarded Mr Arnott's emotional state as uncharacteristic and formed the view that he was physically and mentally exhausted from managing Ms Wong and that he could no longer deal with her himself. Ms MacLeod attributed Mr Arnott's state to Ms Wong's behaviour, based on what Mr Arnott told her and on her observations of his demeanour. On the basis of what Mr Arnott told her, Ms MacLeod believed that Ms Wong was responsible for the tension in the workplace. 59 Ms MacLeod sought advice from human resource personnel within NAB concerning Ms Wong's employment. That part of Ms MacLeod's affidavit is expressed in terms that make it plain that the advice was sought together by Ms MacLeod and Mr Arnott and Mr Copeland. The human resources personnel were asked to consider whether there was "a sufficient case management history such that we could begin a process that would lead to the termination of Ms Wong's employment". 60 Ms MacLeod's decision to remove Ms Wong from her role was made before putting the asserted facts to Ms Wong and providing her with an opportunity to respond to them. Ms MacLeod's affidavit evidence confirms that she had already believed that the reports of behavioural concerns provided by Mr Arnott and others were true: I decided that the best course of action for the wellbeing of the business would be to remove Ms Wong from her role as Internet Banking Manager, as this would provide NAB with an ability to inject stable positive leadership on the Internet Banking Platform. I expected this course would then provide me with an opportunity to receive Ms Wong's feedback about the many issues which had been raised about her conduct and behaviours. I thought that if Ms Wong was receptive and open to my feedback, such that I gained confidence that she would be committed to changing her behaviours, I would then explore options for Ms Wong to continue as an employee at NAB in a different role. (emphasis added) 61 The removal decision had been made by 9 March 2017 and preparations for putting it into effect then followed. 62 Ms MacLeod acknowledged that she was aware of behavioural issues concerning Ms Wong in 2016. She acknowledged that the removal decision was not made until she formed the view that Mr Arnott could not work with Ms Wong any more. Ms MacLeod said that she was deeply concerned about Mr Arnott's wellbeing and attributed his decline to Ms Wong's behaviour. She had "no doubt" that the situation had deteriorated to a point where she could "no longer allow an ongoing working relationship between Mr Arnott and Ms Wong". In cross-examination Ms MacLeod said that the breakdown of the relationship between Mr Arnott and Ms Wong was a "very important" factor in her decision and that it played a "large role". 63 Ordinarily Mr Arnott would have been asked to "lead [the] process" culminating in Ms Wong's termination but after receiving advice from human resources personnel about Mr Arnott's emotional state Ms MacLeod determined that she would lead the process. 64 From 9 March 2017, Mr Arnott drafted a script for Ms MacLeod to use in a meeting with Ms Wong to verbally advise her of the decision to remove her from her position. 65 Mr Arnott also prepared a "run-sheet" setting out the steps in the process. The process of preparing the script and "run-sheet" proceeded over a number of days with Mr Arnott providing Ms MacLeod with "advice, information and assistance". 66 Importantly, it was Mr Arnott who drafted that part of the email sent to Ms Wong following her removal that set out the three reasons for her removal and a series of dot points relating to them, extracts of which appear at [46] to [48] above. 67 Mr Arnott told the Court that there was "a group of four of us" who were "actively involved in preparing what would happen" on the day of Ms Wong's removal. The four persons were Ms MacLeod, Mr Arnott, Mr Killen and a person from human resources. It was not suggested that Mr Killen or the human resources personnel fed Ms MacLeod with information forming the asserted reasons for the removal. 68 Ms MacLeod spoke to other personnel within NAB about the matters raised with her by Mr Arnott. However, as the primary judge held, her primary source was Mr Arnott. The effect of Ms MacLeod's evidence is that she accepted at face value the facts asserted by Mr Arnott and the other personnel, especially in relation to the behavioural issues. 69 Whilst Ms MacLeod received briefings from another employee concerning the fact of the costs blowout, Mr Arnott also contributed to that information and it was Mr Arnott who asserted that Ms Wong had not "called out" the blowout in a timely way. 70 In respect of concerns regarding Ms Wong's leadership, Ms MacLeod gave evidence to the effect that she walked around the levels of the NAB building every day and noticed different dynamics between Ms Wong's team and other teams. It was not suggested that those observations could have justified the adverse actions, nor was it suggested that Ms MacLeod conducted an independent assessment of Mr Arnott's claims concerning his own conflicts with Ms Wong in the workplace. 71 Unsurprisingly, Ms MacLeod's views as to the importance of the information provided by Mr Arnott was the subject of cross-examination, which included the following exchange: COUNSEL: I understand, Ms MacLeod, that you spoke to a number of people about Ms Wong? MS MACLEOD: That's correct. COUNSEL: But I put to you that Mr Arnott's input into your decision to remove Ms Wong from her role was a substantial factor in your decision-making? MS MACLEOD: It certainly was a factor. COUNSEL: I'm putting to you that it was a substantial factor. If you have regard to what he said about the cost blowout and her behaviours, it was a substantial factor? MS MACLEOD: It certainly was a factor. COUNSEL: I understand it's a factor, but I'm saying to you that it's a substantial factor. Are you saying it wasn't? MS MACLEOD: I would say it is a major factor. Substantial, I think that's something different again. COUNSEL: All right. Well, I'm not going to argue with you about the difference between major and substantial, but you would agree, Ms MacLeod, that his input was essential? MS MACLEOD: Yes. That's correct. 72 It is difficult to understand how Mr Arnott's contribution could be described as "major" and "essential" but not "substantial", but nothing of importance turns on the point. Ms MacLeod's acknowledgement that the input was major and essential is consistent with the evidence we have summarised above.

Reasoning of the primary judge 73 After again describing the role of Mr Arnott as "significant" (at [196]), the primary judge said: … Nonetheless, I do not accept that he should be understood to have possessed any power or authority, formal or otherwise, to effect that removal such that he should be understood to have decided jointly with Ms MacLeod that it should occur. On the contrary, the unchallenged evidence from both Ms MacLeod and Mr Arnott was that it was in Ms MacLeod alone that that power was vested. The information, advice and assistance that she received from Mr Arnott - though plainly important - was just that. Mr Arnott no more made the decision to remove Ms Wong from her role than did the NAB human resources personnel that assisted Ms MacLeod through the process. Not only was Mr Arnott not endowed with any power to effect the decision, the information, advice and assistance that he gave, though important, was not 'essential' or 'indispensable' in the sense that the authorities recognise. It was not at a level sufficient to constitute the reasons that animated his conduct as the reasons (or part of the reasons) for which NAB should be understand [sic] to have removed Ms Wong from her role. 74 The primary judge went on to observe that, when she made the removal decision, Ms MacLeod was not aware that Ms Wong had made any of the complaints or inquiries. His Honour continued (at [198]): That alone is reason enough to conclude that, insofar as concerns the decision to remove Ms Wong from her role, Ms MacLeod was not actuated by any reason or purpose proscribed by Pt 3-1 of the FW Act (and that the statutory presumption for which s 361 of the FW Act provides stands, in this instance, properly rebutted). … 75 The primary judge held that the decision to announce the removal to other employees was, as Ms Wong had acknowledged, "inextricably linked to the decision to remove [her] from her position" (at [291]). The primary judge said that whilst Mr Arnott contributed to that decision, he "did not contribute to a point sufficient to qualify him as a joint author of the decision to send the 21 March 2017 Announcement, or otherwise to constitute his state of mind as part of the NAB state of mind that endured when it was sent" (at [289]). 76 Accordingly, the primary judge concluded (at [203]) that it was "not necessary to consider whether Mr Arnott did anything for any reason proscribed by s 340(1) of the FW Act" in connection with the removal decision or the 21 March 2017 Announcement. 77 As to the termination of Ms Wong's employment, the primary judge accepted that Mr Arnott's role in the process ending in that decision was "significant" (at [303]), but considered that his contribution was not "such as to elevate him to the rank of decision-maker, or to otherwise require, in the search for NAB's reasons for dismissing Ms Wong, any interrogation of his state of mind" (at [303]). His Honour continued: 304 There is no evidence to suggest that Mr Arnott had any executive power or authority, formal or otherwise, and exercisable jointly with Ms MacLeod or otherwise, to bring an end to Ms Wong's employment. That he enjoyed some influence - even a great degree of influence - over Ms MacLeod's decision is not sufficient. Dismissal decisions often involve input from multiple sources, some more significant or powerful than others. It might be that, in some circumstances, an adviser might wield such a degree of influence over a decision-maker that he or she should be understood to have participated in the making of a given decision; but that is not the case here. Here, Ms Wong confuses a desire that she attributes to Mr Arnott to wield the influence that he had toward a particular end (namely, her dismissal) with his having possessed the means to effect that end. There is no evidence that Mr Arnott possessed any such means: he wielded no more influence over Ms MacLeod's decision to dismiss Ms Wong than Mr Kane's former employee organisation wielded in City of Melbourne or the AWU's rival union wielded in John Holland. 305 That is not to say that Mr Arnott's conduct, assuming that it was animated by some prohibited purpose, would necessarily be immune to challenge under Pt 3-1 of the FW Act. It might well be that, by having had the discussions about Ms Wong that he had and by having provided the assistance that he provided during the process that resulted in her dismissal (and, indeed, in the other instances of adverse action to which she was subjected), Mr Arnott exposed Ms Wong to some relevantly prejudicial alteration to her position as a NAB employee; and, thereby, took adverse action against her directly. Were that so, some interrogation of his state of mind would be necessary. That, though, is not the case that Ms Wong advances. 306 The decision to dismiss Ms Wong was Ms MacLeod's. In determining the corporate state of mind with which NAB effected that decision, it is not necessary to interrogate the state of Mr Arnott's conscience.

Consideration 78 The inquiry into whether Mr Arnott contributed to the decision-making process culminating in the adverse actions to a degree sufficient to warrant interrogation of his state of mind involved an evaluation of the objective facts in light of the principles stated in the authorities. We do not consider the underlying facts to be the subject of significant controversy. It is plain that the information Mr Arnott provided to Ms MacLeod was adopted by her for its truth, just as she accepted the truth of what other personnel told her. It is also plain that Ms MacLeod was motivated to remove Ms Wong from her role because of the breakdown in relations between her and Mr Arnott. She accepted Mr Arnott's word that Ms Wong's behaviour was the cause of the problem. She could not tolerate a situation in which Mr Arnott and Ms Wong could not work together. 79 The case was not one in which Ms MacLeod received information from Mr Arnott the reasonableness, truth or accuracy of which she investigated for herself. Mr Arnott was not a mere informant or witness among many. Rather, in our view, he was an instigator of the process that led to the adverse actions being taken on the basis of his word, without reference to Ms Wong. Not only did he provide a large part of the information upon which Ms MacLeod acted, he also personally authored the reasons for the removal decision in dot points that reflected his own experiences with Ms Wong in the workplace. He accompanied Ms MacLeod in the seeking of advice as to whether the "case management history" (being an historical narrative largely provided by him) would form a sufficient basis to put in train a process for Ms Wong's dismissal. He expressed the opinion that Ms Wong's employment was untenable. That Ms MacLeod formed the same view is hardly surprising, given her acknowledgement that she accepted everything Mr Arnott said to be truthful (including the assertion that Ms Wong was to blame for his deteriorating emotional state). 80 On the facts, there could be no doubt that Mr Arnott was in a position of conflict with an employee under his direct managerial supervision. In that context, and given what is said in the preceding context, we consider the primary judge was in error to conclude that in order for Mr Arnott's state of mind to be relevant, it was not sufficient that he enjoyed some influence - even a great deal of influence - over Ms MacLeod's decision. The error is made manifest in the primary judge concluding in the above passages that Ms Wong's submissions "confuses a desire that she attributes to Mr Arnott to wield the influence that he had toward a particular end (namely, her dismissal) with his having possessed the means to that end". In our review, that reasoning involves a misapplication of the principles stated in the authorities referred to earlier in these reasons. More than once, the primary judge emphasised that Ms MacLeod was the person having the authority to cause NAB to take the adverse actions. But, as discussed above, an inquiry into the reasons of a corporate entity may require an examination of the states of mind of human actors other than the single individual having the authority to bind the corporation in the relevant act. We consider that, whilst the primary judge correctly recognised that he was bound to follow the principle stated by the Full Court in Kodak, the principle in fact applied reflected his Honour's preferred view of the law. 81 The correct position may be illustrated by assuming that Mr Arnott formed the view that Ms Wong was one of the most difficult employees he had encountered because of her conduct in making multiple complaints and inquiries concerning her employment, and that he reported that her position was "untenable" because she persisted in her complaints, that he considered her to be "combative" because of the complaints, that his emotional state was deteriorating because of the complaints, and so on. That was Ms Wong's case at trial, bearing in mind that NAB bore the onus on the critical topic. In light of the degree of involvement of Mr Arnott in the process on the particular facts of this case it would not be difficult to conclude on those assumed facts that NAB had failed to discharge its onus. Given the nature and degree of Mr Arnott's involvement, NAB could not discharge its onus without calling Mr Arnott in order to positively establish that he was not motivated by the prohibited purpose alleged by Ms Wong. 82 It would matter not that Ms MacLeod, in adopting Mr Arnott's asserted facts and opinions, was unaware that the complaints and inquiries had been made. Nor would it matter that Ms MacLeod also relied on the advice of others. On the objective facts, the content of the information Mr Arnott provided formed a critical part of Ms MacLeod's conclusion. The point is reinforced by NAB's refusal to accede to Ms Wong's request for further details to enable her to dispute the facts, other than to restate facts largely based on Mr Arnott's accounts. The objective correspondence demonstrates that Ms Wong's requests for details only served to reinforce the perception in Ms MacLeod's mind that Ms Wong lacked insight into her behaviour and was unwilling to receive "feedback". 83 In accordance with the principles stated in Kodak, it was necessary to inquire into Mr Arnott's reasons for making the contribution that he did, whether it be described as "significant", "plainly important", "major", "substantial" or "essential". It is enough to identify that Ms MacLeod proceeded from factual assumptions that were detrimental to Ms Wong and that were principally (although not solely) based on an assumption that Mr Arnott's assertions were true. Mr Arnott's motivations were relevant and as such his actions and accompanying state of mind may be attributed to NAB in accordance with s 793 of the FW Act. 84 The arguments underpinning grounds 2 to 4 should be accepted. 85 However, it does not follow that the appeal should be allowed. 86 As discussed below, the primary judge proceeded to consider and make findings concerning Mr Arnott's state of mind on the assumption that his conclusion that Mr Arnott was not "relevantly a decision-maker" was wrong (at [203]). The greater portion of his Honour's reasons for judgment are devoted to that topic and are the subject of grounds 5 to 7. As Counsel for Ms Wong properly acknowledged, the appeal cannot succeed unless those grounds are also made good.

Did the primary judge err by accepting Mr Arnott's evidence that he was not actuated by THE PROHIBITED REASON (Grounds 5 to 7)? 87 Ground 5 concerns the primary judge's conclusion that nothing Mr Arnott (and therefore NAB) did in relation to the removal decision was because of, or for reasons that included, the making of any of the complaints or inquiries upon which Ms Wong relied. It alleges that the primary judge erred in the following respects: a. his Honour erred in concluding that the evidence led to establish the veracity of the opinions about Ms Wong to which Mr Arnott attributed his conduct rose no higher than to establish that those opinions were formed wrongly or unfairly (Decision [206] and [280]). His Honour should have regarded the veracity (or otherwise) of the opinions of Ms Wong to which Mr Arnott attributed his conduct as important to the overall facts and circumstances in assessing whether NAB had discharged its onus pursuant to s.361 of the FW Act; b. his Honour failed to give adequate or sufficient weight to evidence and arguments that Mr Arnott's concerns about Ms Wong's behaviour were exaggerated and were not an actuating reason for removing Ms Wong from her role as Internet Banking Manager (Decision [242]-[249]); c. his Honour failed to give adequate or sufficient weight to the evidence and arguments that the allegations of poor performance levelled against Ms Wong relating to the late notification of the cost increase to the Internet Banking platform on the NPP Project were not part of the real reason for removing Ms Wong from her role as Manager, Internet Banking and were manufactured as an excuse to remove Ms Wong from that role (Decision [251]-[269]); d. his Honour failed to have regard to the evidence (or failed to provide adequate reasons for not having regard to the evidence) that established that Mr Arnott did not like the fact that Ms Wong complained; e. his Honour erred in concluding that the evidence that Mr Arnott gave about the views that he formed about Ms Wong and their influence on his conduct were not exaggerated or untruthful (Decision [283]). Specifically, his Honour erred: i. in concluding that none of the aspects of Mr Arnott's evidence that were plainly wrong or inconsistent were of essential importance (Decision [274]), in circumstances where they were of central importance; and ii. in concluding that Mr Arnott did not try to downplay his role in providing the figures and information to Ms MacLeod in relation to the alleged NPP costs blowout, in the face of evidence led by NAB itself of Ms MacLeod that she relied on Mr Arnott for the figures and information about the alleged costs blowout to the NPP (Decision [276]); f. his Honour failed to give adequate reasons for his conclusion that the views Mr Arnott formed about Ms Wong and their influence on his conduct were not exaggerated or untruthful (Decision [283]) (the credibility of Mr Arnott and his evidence being a critical issue to be determined in the proceeding); … 88 Grounds 6 to 7 allege that the same errors affected the primary judge's conclusion that nothing Mr Arnott did in relation to the "sending" of the 21 March 2017 Announcement or the termination decision was because, or for reasons that included, Ms Wong's complaints or inquiries. It is contended that the primary judge should have concluded that Mr Arnott's contribution to each adverse action was made for reasons that included the fact that Ms Wong had made the complaints or inquiries upon which she relied. 89 At trial, Mr Arnott gave evidence about the matters that did and did not enter his mind or factor into his thinking when he had the discussions with Ms MacLeod and otherwise contributed to NAB's decision-making. A substantial part of the trial was devoted to that topic. 90 Mr Arnott told the Court that his actions were motivated by his opinions concerning Ms Wong's behaviour and her responsibility for the poor performance of the internet banking platform. As the primary judge observed, a good proportion of evidence adduced at the trial went to the question of whether Mr Arnott's stated opinions were genuinely held. Unsurprisingly, Ms Wong sought to challenge the correctness of the opinions held by Mr Arnott and the facts alleged by NAB to underpin them. 91 The issue raised by these grounds of appeal must be approached with s 361 of the FW Act at front of mind. It was not for Ms Wong to establish that Mr Arnott's conduct was actuated by a prohibited reason. The question at trial was whether NAB had established that the adverse actions were not taken for a reason that included the exercise by Ms Wong of the pleaded workplace rights. To succeed at trial it would have been sufficient for Ms Wong to show that NAB had not proven that aspect of the case to the requisite standard. 92 At trial, as on this appeal, Ms Wong submitted that the trial judge ought to have found that "the objective evidence" concerning the subject matter of Mr Arnott's opinions supported a conclusion that he was a discreditable witness and that his asserted opinions could not be accepted as reliable and truthful. The objective evidence related to the three reasons asserted by NAB to be the reasons for the adverse actions, being those set out in the email addressed to Ms Wong on 21 March 2017 summarised at [46] to [48] above. As has already been mentioned, the part of that email summarising those reasons was authored by Mr Arnott and it was Mr Arnott who drafted the script that Ms MacLeod employed in her meeting with Ms Wong earlier that day in which the same reasons were verbally conveyed to her. Mr Arnott's evidence was to the effect that he genuinely held the opinions he conveyed to Ms MacLeod such that his own reasons for acting were the same as those conveyed to Ms MacLeod.

Reasons of the primary judge 93 After summarising the principles in Barclay, the primary judge (correctly) described the nature of his task in the following terms: 81 Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ). 82 Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed, or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3-1 of the FW Act '… is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome': Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J). 83 In some circumstances, it might be possible to infer from evidence tending to show that a respondent's opinions were formed wrongly or unfairly - that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism - that those opinions either were not, in fact, formed or did not relevantly actuate the respondent's conduct (or both). Such circumstances might warrant the rejection of the respondent's evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)? 94 Later in his reasons, the primary judge said that it was "not necessary for the court to resolve the significant evidential conflict concerning Ms Wong's capacity or behaviour" (at [278]). He continued: 278 … It is not necessary - much less is it realistic - for the court to determine whether Ms Wong was, as she maintains, a very high-performing employee who was wrongly pegged to take the fall for problems created by others; nor, as Mr Arnott would suggest, whether she was a needlessly and overly confrontational and difficult employee who was unable to accept valid criticism, and whose grasp on the essential components of her role was properly found wanting. In all respects, the matters in which the evidence on those scores conflict are matters that do not lend themselves to binary analysis. 279 It must be said, then: Ms Wong might have a point. It could well be that the opinions that Mr Arnott formed about her were opinions that others might not have formed. I make no findings on that score - indeed, at the risk of repetition, I cannot sensibly do so given the subjective nature of the issues at hand. 280 What is sufficiently clear is that the opinions that Mr Arnott says that he formed - and that he says animated the discussions that he had with Ms MacLeod (and others) about Ms Wong - were opinions that he genuinely held, rightly, fairly or otherwise. Even assuming that Ms Wong is right about what she says concerning the objective circumstances in which those opinions were formed, the most that might flow from that is that Mr Arnott's opinions about her were unwarranted or wrong. It is simply not possible to advance as far as Ms Wong needs to and conclude that he, in fact, neither formed nor acted upon them; that is, that the evidence that he gave as to why he was minded to do what he did was untruthful. 95 As to the removal of Ms Wong from her role, the primary judge accepted Mr Arnott's evidence as to the factors that did and did not factor into his mind. His Honour said that the evidence led by Ms Wong concerning the veracity of Mr Arnott's opinions rose "no higher than to establish that the opinions were formed wrongly or unfairly" (at [206]), and that "nothing that Mr Arnott relevantly did was done because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relies" (at [284]). 96 The primary judge concluded that the views Mr Arnott claimed to have formed were not obviously disconnected from the circumstances from which he claimed to have formed them (at [283]). His Honour said it was not a case in which objective circumstances conspire to render Mr Arnott's evidence so improbable that the Court should reject it as deliberate falsity (at [283]). He found that the evidence Mr Arnott gave about the views he formed of Ms Wong and their influence on his conduct were neither untruthful nor exaggerated (at [283]). 97 The primary judge premised his findings with observations he made of both Mr Arnott and Ms Wong in the course of giving their evidence, describing them both as impressive witnesses. As to Mr Arnott, the primary judge described him as "a very impressive witness". His Honour explained (at [281]): … At the time of the trial, he was no longer employed by NAB and resided in Canada. Nonetheless, he gave his oral evidence voluntarily and in person. Although it was not squarely put to him that aspects of his evidence were untruthful, he was subjected to nearly a day-and-a-half of very skilful, persistent and, at times, (not inappropriately) aggressive cross-examination, during which the decisions that he had made, the views that he had formed, and the discussions and meetings in which he had participated - in some cases as long as three-and-a-half years earlier - were dissected, challenged and second-guessed in atomic detail. Throughout his time in the witness box, he remained composed and focused upon what was asked of him. He did not attempt to evade difficult questions. He was direct and articulated his positions with uncommon clarity. He was inclined toward concessions where appropriate. He accepted, for example, that Ms Wong was a capable employee who had secured significant improvements to the internet banking platform. He accepted that the NPP had been beset by numerous difficulties not of her making. But on every occasion on which the opinions that he claimed to have formed about Ms Wong back in 2016 and 2017 were challenged - and on every occasion that it was put to him that circumstances undermined those opinions or warranted alternative views - he explained, rationally and with clear conviction, why he did not agree. Again, he might not have been right; but he plainly believed that he was. 98 With one minor exception, there is no challenge to anything said in this passage. 99 The primary judge considered that Mr Arnott "answered the questions he was asked as clearly and truthful as he could". He said that he could not discern and could not accept that his evidence or "his time in the witness box" disclosed any "instinctive hostility" toward Ms Wong (at [276]). 100 At trial, Ms Wong advanced 13 reasons for concluding that Mr Arnott should not be regarded as a witness of truth. The primary judge grouped them into five categories: (1) there were aspects of Mr Arnott's evidence that were plainly wrong, or that contained obvious errors that he could not explain; (2) there were otherwise some inconsistencies as between the evidence that Mr Arnott gave and matters that were verified by documents; (3) the language that Mr Arnott employed was emotive and, on occasions, extreme; (4) Mr Arnott had a tendency to hold Ms Wong accountable for matters more properly attributed to others; and (5) Mr Arnott tried improperly (or falsely) to downplay the importance of his role in providing the information upon which Ms MacLeod acted. 101 His Honour said that whilst there were aspects of Mr Arnott's evidence that were "plainly wrong or inexplicable", none of those aspects concerned an issue of central importance (at [274]) and there was no reason to treat Mr Arnott's evidence with any broad scepticism (at [277]). He did not accept Ms Wong's submissions based on Mr Arnott's demeanour. Before proceeding further, and in light of the challenge to findings based in substantive part on the impressions Mr Arnott made as a witness, it is necessary to set out some well-established principles concerning the role of this Court on an appeal by way of rehearing such as this.

Appellate review 102 In Devries v Australian National Railways Commission (1993) 177 CLR 472 the majority (Brennan, Gaudron and McHugh JJ) said (at 479): More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'. (footnotes omitted) We interpolate that the advantage the trial judge has over an appellate court is that which is derived from seeing and hearing the witnesses give evidence, and reading and hearing all the evidence as the trial unfolds, rather than the selection included in the appeal book. 103 Their Honours cited Jones v Hyde (1989) 63 ALJR 349 and Abalos v Australian Postal Commission (1990) 171 CLR 167. Devries, Jones and Abalos were later considered by the High Court in Fox v Percy (2003) 214 CLR 118. Gleeson CJ, Gummow and Kirby JJ emphasised that nothing in the trinity of cases should be understood as departing from established doctrine. Rather, they served as "a reminder of the limits under which appellate judges typically operate when compared with trial judges" (at [26]). 104 Their Honours continued: 27 The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute. 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. 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. 29 That this is so is demonstrated in several recent decisions of this Court. 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' or 'contrary to compelling inferences' in the case. 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. (footnotes omitted) 105 In a separate judgment, McHugh J said that it would be a serious mistake to think that anything said in Abalos or Devries necessarily prevents the reversal of findings based expressly or inferentially on demeanour (at [90]). His Honour said that whilst that may be done: … there must be something that points decisively and 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 (NSW) 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. (footnote omitted) 106 The issue arose again Lee v Lee (2019) 266 CLR 129. In that case, an appellate court was shown to have erred in deferring to the judgment of a trial judge in circumstances where deferral was not warranted and so had failed to conduct the "real review" required on an appeal by way of rehearing. The majority, Bell, Gageler, Nettle and Edelman JJ said (at [55]): A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general 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'. … (footnotes omitted) 107 The majority went on to say that the findings challenged on the intermediate appeal were not findings that were likely to have been affected by impressions about the credibility of witnesses formed as a result of the trial judge seeing and hearing the witnesses giving their evidence. Accordingly, (at [56]): … It was an error for the Court of Appeal to dismiss the appeals in this 'very closely balanced' case on the footing that the trial judge's decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of 'weighing [the] conflicting evidence and drawing its own inferences and conclusions' and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant's second ground is made good. (original emphasis, footnote omitted) 108 The principles were reiterated by the Full Court of this Court in Liberty Mutual Insurance Company Australia Branch (t/as Liberty Speciality Markets) v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; 396 ALR 193 (Allsop CJ, Besanko and Middleton JJ), on appeal from a trial concerning the intention to be convincingly proven for the rectification of a deed in equity. The Full Court said: 272 How that convincing proof is reached is a matter of fact finding. Here, there were competing witnesses who were cross-examined as to their reliability, on their credit in that sense, for a full day each. The primary judge had the documents and had a period of a week at the hearing and reflection during and after the hearing to consider all the evidence as it fell out in its order and as relevant documents were put to witnesses. The real review in those circumstances involves the giving of appropriate weight to that advantage of the trial judge: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 at [90] (Earthline); approved in Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at [23] (Fox v Percy), and more generally Lee v Lee (2019) 266 CLR 129; 372 ALR 383; 89 MVR 388; [2019] HCA 28 at [55] (Lee v Lee). Not only did the primary judge have the advantage of a trial in which the evidence unfolded before him with the opportunities described in Earthline, but he made factual findings which were plainly 'affected by their impression about the credibility of witnesses' (Fox v Percy at [26]) having seen and heard them give the evidence. This is a further important advantage. This advantage includes 'findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts': Lee v Lee at [55]. No findings the subject of this advantage should be disturbed unless they are 'glaringly improbable' or 'contrary to compelling inferences': Fox v Percy at [29] or where the trier of fact 'palpably misused the advantage…of seeing and hearing the witnesses' Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354 at 363 and Fox v Percy at [26]. 273 The respect for clear findings of fact by the primary judge that are not capable of being described as glaringly improbable, or contrary to compelling inferences or the product of a misuse of the advantage cannot be unpicked by pointing to documents said to be contrary to the findings, being documents that were taken into account, or where like documents were taken into account, by the trial judge, if the conclusions of fact do not suffer the character to which we have referred. … 109 There is a particular need for caution here where the finding which is challenged concerns the state of mind of a witness. That is because it has long been accepted that an appellate court should only interfere with a finding of this nature in "exceptional circumstances". See Nocton v Lord Ashburton [1914] AC 932 Viscount Haldane LC (at 957, also 945 and 949); Clark Boyce v Mouat [1994] 1 AC 428 at 436-7 (PC); Barclay, Heydon J (at [141]). 110 Ms Wong's arguments proceeded on an assumption that Fox v Percy and the preceding cases erected three alternative bases upon which factual findings based on the demeanour of a witness may be set aside. It was contended that it would be sufficient to show that the primary judge "palpably misused his advantage", irrespective of whether the impugned findings were glaringly improbable or contrary to compelling inferences. If it were necessary to resolve that contention we would be minded to reject it for the same reasons expressed by the New South Wales Court of Appeal in Sica v Brophy [2020] NSWCA 181 (at [23] to [25]). In that case, based on the analysis of the authorities by McHugh J in Fox v Percy, McCallum JA, with whom Basten and Payne JJA agreed, explained at [24]: … the expression 'palpably misused his or her advantage' means no more than that the 'misuse' of the advantage enjoyed by the trial judge may be demonstrated (is 'palpable') by reason of the existence of incontrovertible facts or uncontested testimony demonstrating error in the judge's conclusion or where the decision was glaringly improbable or contrary to compelling inferences. …

Ms Wong's submissions 111 Ms Wong submitted that the primary judge erred in concluding that Mr Arnott was a witness of truth and so erred in concluding that NAB had discharged its onus, notwithstanding the favourable impressions the trial judge formed of Mr Arnott having seen and heard him give evidence. 112 Ms Wong submitted that the primary judge palpably misused his advantage by avoiding the task of deciding substantive questions of contested fact. Whilst the observations of the primary judge concerning his impressions of Mr Arnott as a witness were open to him to make, it was submitted that those impressions could not justify the primary judge avoiding the determination of contested questions of fact, nor could they justify the primary judge ignoring facts that contradicted or could not be reconciled with Mr Arnott's asserted opinions. Ms Wong submitted that it was necessary for the primary judge to grapple with the anomalies in NAB's evidentiary case that she alleged put a lie to Mr Arnott's claimed opinions, or at least rendered him an unreliable witness irrespective of his outward demeanour. 113 Ms Wong's additional submissions concerning discrete aspects of the evidence will be summarised in the pages that follow.

Ground 5(a) - The importance of Mr Arnott's opinions of Ms Wong) 114 Contrary to the allegation in ground 5(a), the primary judge did not proceed from the basis that the "veracity of Mr Arnott's opinions rose no higher than to establish that those opinions were formed wrongly or unfairly" and that those opinions were not "important to the overall facts and circumstances in assessing whether NAB had discharged its onus [of proof]". Rather, his Honour concluded that in the particular circumstances of the case, proof that Mr Arnott was incorrect or unfair in the opinions he formed about Ms Wong would not demonstrate that the opinions were not genuinely held. The primary judge explained at some length why that was so (at [278] to [285]). The passages extracted above make it plain that the primary judge recognised that objective facts may show that an asserted opinion was not in fact held. His Honour also recognised that a genuinely held opinion may be objectively wrong or unfair. 115 As explained below, the aspects of the evidence emphasised by Ms Wong on the appeal (whether considered separately or cumulatively) do not warrant interference with the conclusion of the primary judge as to Mr Arnott's reliability or more broadly as to NAB's reasons for taking the adverse actions.

The attacks on credit 116 Many of the 13 factors relied upon in written closing submissions before the primary judge were not the subject of substantive submissions on this appeal. Rather, the submissions focussed on five factual issues said to be of critical importance to the outcome. It was submitted that, by failing to make factual findings to resolve the evidentiary conflicts in respect of those issues, the primary judge "palpably misused his advantage". 117 The first and second issues concerned Mr Arnott's opinion that Ms Wong's behaviour in the workplace did not align with NAB's values. It was submitted that the asserted opinion was undermined by virtue of Mr Arnott making no reference in his affidavit to having any discussions with Ms Wong about her behaviour after April 2016 (when Ms Wong was put on notice that her job was on the line if she did not change her behaviour). In cross-examination Mr Arnott said that he did discuss the issues with her after that time, but could not recollect what those discussions were and when they occurred. 118 Between April 2016 and November 2016, performance reviews showed that Ms Wong's behaviour had improved from a "D" rating to a "C" rating. In his affidavit Mr Arnott gave an explanation for the "C" rating to the effect that if Ms Wong was given a "D" she would not have been eligible for a bonus. He said that despite a unanimous decision of the leadership team, he and Mr Copeland determined that Ms Wong should receive a bonus because she had made significant achievements on the internet banking platform and it was thought that the positive feedback might help Ms Wong to turn her behaviour around. He said that he frankly hoped that the bonus would act as a carrot rather than a stick. He told the Court that the decision to give Ms Wong a "C" rating represented a balance between the views of two leaders in NAB about how to approach the problem of Ms Wong's behaviour. 119 Much was also made of Mr Arnott's failure to discipline Ms Wong after April 2016 until early 2017 or put her on a performance plan despite referring to her in evidence as "the worst behaved employee he had ever come across". However, in response to a proposition put to him in cross-examination that he did nothing about her behaviour in that period, Mr Arnott testified that Mr Walker informed him that "they raised a case with workplace relations" and "he was doing everything he could … to play everything through the correct NAB process". Mr Arnott flatly refuted the suggestion that he was exaggerating the extent of the problem. 120 Counsel for Ms Wong submitted that there was an inconsistency in Mr Arnott's affidavit evidence and his oral testimony on this topic and that the explanations Mr Arnott gave for them were unimpressive. We do not detect any inconsistency of a kind that would reflect adversely on Mr Arnott's credit. As the primary judge observed, Mr Arnott was cross-examined over a long period in respect of this and other topics. His Honour's reasons contain a correct summary of the evidence Mr Arnott gave on the topic, including his explanation for the "C" rating. The written reasons for removing Ms Wong expressly referred to both the "D" and the "C" rating. The fact of the improvement from a "D" to a "C" is not so compelling as to warrant appellate interference with the conclusion that Mr Arnott genuinely remained of the view that Ms Wong's behaviour in the workplace was problematic. The fact that Ms Wong received a "C" rating did not demand the conclusion that there were no behavioural issues at the time it was given (several months prior to the removal decision). 121 Mr Arnott said that the performance reviews for the period ending November 2016 occurred in September 2016 and concerned behaviours in the months prior to that time. 122 The reasons of the primary judge correctly set out the evidence relating to this issue in some detail and in terms that are not the subject of challenge. His Honour noted a concession by Mr Arnott that between April and September 2016 he had observed some improvement in Ms Wong's behaviour and style and additional evidence to the effect that Mr Arnott considered her behaviour to have been inconsistent and to have again deteriorated after September 2016. In light of his Honour's observations of Mr Arnott as a witness more generally, it is plain that the primary judge accepted Mr Arnott's explanations. We do not consider his Honour's approach to that aspect of the evidence to be affected by error, let alone error that warrants appellate intervention in accordance with the principles summarised above. 123 The third issue also concerned Mr Arnott's opinion about Ms Wong's behaviour. In his affidavit, Mr Arnott deposed that he had had discussions with at least seven employees whom he named, each of whom "provided negative feedback about their interactions with Ms Wong", the substance of which he went on to describe. One of the named employees was Johnathan Zhuang. 124 Mr Zhuang gave affidavit evidence in Ms Wong's case. He said that he did not have any interaction with Mr Arnott, that he had not spoken to anyone about Ms Wong's behaviour and that no-one had asked him about it. He said that he had daily interactions with each of the other employees Mr Arnott identified and that none of them had said anything (to him) in the nature of a complaint about Ms Wong's behaviour. He reported: 4 … Sene-Li was a very open and direct communicator … She was one of the most effective managers with whom I have worked. … 5. I observed Sene-Li in a number of meetings with managers of other business units … I formed the view that she was a strong and fact-driven negotiator. I would describe her manner as direct and rational, but not antagonistic. 125 Mr Zhuang was not cross-examined on that evidence. 126 In cross-examination Mr Arnott admitted that Mr Zhuang's name came up in the discussion with Ms Wong in relation to the negative feedback but could not recall if he told her that Mr Zhuang had come to him and made observations about her behaviour. 127 It was submitted that Mr Zhuang's evidence put a lie to Mr Arnott's claim that he had received negative feedback from him concerning Ms Wong and was of such significance that the positive impressions of Mr Arnott as a witness could not stand. We do not accept that submission. The primary judge was alert to the issue concerning Mr Zhuang. Reading the reasons for judgment as a whole, the primary judge's general observation that some aspects of Mr Arnott's evidence were inexplicable or plainly wrong must necessarily be taken to include a reference to this aspect of the evidence. In cross-examination Mr Arnott said he could not actually recall having a conversation with Mr Zhuang specifically about Ms Wong. He explained that not all the feedback was direct. As senior counsel for NAB put it in argument, this was hardly a "gotcha" moment. 128 After correctly summarising the evidence, the primary judge observed that "evidential anomalies like that, though regrettable, are not uncommon". The primary judge did not consider the anomaly warranted rejection of Mr Arnott's evidence more broadly. It is apparent that the primary judge regarded the anomaly in the evidence to be the product of an honest mistake and not an instance of deliberate falsity. That assessment is to be understood as based in part on the observations the primary judge made of Mr Arnott in the course of a long period of cross-examination. In accordance with the principles stated earlier, we do not consider there to be a proper basis to interfere with it. 129 The primary judge's assessment of this matter is unremarkable. His Honour was not bound to find that the statement in Mr Arnott's affidavit was a lie. Before coming to such a conclusion he would need to rule out other possible explanations and an honest mistake was an obvious one. It is a matter of common experience that memory is fallible. As one former chief justice of New South Wales observed extra-curially, memory is "plastic" and "[w]itnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen (emphasis added)": JJ Spigelman AC, "Truth and the law" in N Perram and R Pepper, The Byers Lectures 2000-2012 (The Federation Press, 2012, p 250). Spigelman CJ proceeded to refer to a number of "distinct problems with memory" identified by Dr Daniel L Schacter, a leading researcher in the field and a professor of psychology at Harvard University, in The Seven Sins of Memory: How the Mind Forgets and Remembers (Houghton Mifflin, 2001). One such problem Dr Schacter described (at p 5) is "misattribution, [which] involves assigning memory to a wrong source", a phenomenon that is "much more common than most people realize". 130 Ms Wong submitted that the primary judge erred in concluding that a defect of such a kind did not go to an issue of central importance. Of course, Mr Arnott's state of mind was an issue of central importance. However, the inquiry undertaken by the primary judge involved a multitude of factors, circumstances and events. The circumstance that Mr Arnott wrongly included Mr Zhuang in a list of seven employees from whom he said he had received negative feedback about Ms Wong's behaviour did not require the wholesale rejection of his evidence. 131 That other employees spoke in favourable terms about Ms Wong's behaviour and performance, another piece of evidence upon which Ms Wong put weight in her submissions, could scarcely undermine the primary judge's evaluation of Mr Arnott's credibility concerning the evidence he gave of his own opinions on those subjects. That is particularly so in the face of an express reference to that evidence in the reasons for judgment (at [246] to [248]) and in the absence of a challenge to the accuracy of his Honour's observation that Mr Arnott did not deny it or suggest that it was not well-founded. 132 The fourth issue concerned Mr Arnott's opinion about the performance of NAB's internet banking platform and Ms Wong's inability to understand financial information she presented on 14 September 2016. It was submitted that the issue assumes some importance because on Ms Wong's case she "called out" the cost blowout in the internet banking platform in September 2016 and that there was no late call-out as stated in the letter informing her of her removal. It was also submitted that Mr Arnott's evidence on the topic could not be reconciled with the results achieved by Ms Wong on her performance review relating to her technical performance. 133 In his affidavit, Mr Arnott was critical of what he said was an inability on Ms Wong's part to explain information she presented in September 2016 about estimated figures concerning the performance of the internet banking platform. He claimed that she did not have a sound understanding or "control and oversight" over one of the projects for which she was responsible and could not adequately explain the detail behind the project. He said that Ms Wong blamed others, including by claiming that employees within NAB's technology team were responsible for the estimates. 134 In cross-examination on that topic, Mr Arnott acknowledged that NAB's technology team were responsible for preparing the estimates. However, he said, it was Ms Wong's responsibility to understand the numbers and to explain them. He said "I think most sane people would probe pretty deeply and get a real understanding of what's in those numbers". Counsel for Ms Wong pointed to that response as an example of Mr Arnott's use of emotive language. The primary judge dismissed Mr Arnott's occasional use of emotive language as "minor rhetorical flourishes that spilled out during the day-and-a half that Mr Arnott spent in the witness box, during the course of which he was subjected to the usual and prolonged provocations that adroit cross-examination typically entails". His Honour added that, although they might have been regrettable, they did not cause him to doubt the veracity of Mr Arnott's evidence "more broadly". 135 It was put to Mr Arnott that the opinions he expressed about the September 2016 presentation could not be reconciled with the very high performance ranking Ms Wong received for her technical competency in November 2016. His response was that the meetings with respect to the November 2016 performance review occurred in early September 2016 and were already complete before these particular concerns arose. He said that it was an unfortunate coincidence that some of the things relating to the performance of the internet banking platform occurred after the end of year performance review process. When pressed on the timing of the validation meeting, Mr Arnott responded in terms that suggested he could not accurately recollect the dates or sequence of events. It was submitted that his responses to that questioning were unsatisfactory and his explanation ought not to have been accepted. We do not accept those submissions. The explanation Mr Arnott gave was to the effect that the information that fed into the performance review validation meeting had been gathered in the period leading up to it. That explanation is not inherently incredible, unusual or contrary to objective evidence. The circumstance that Mr Arnott was unclear around the precise timing in the course of a trial occurring more than four years later does not provide a basis for interfering with the findings of the primary judge as to his credit more generally. 136 In the result, we do not consider the primary judge palpably misused his advantage in seeing and hearing the witnesses giving their evidence in the various ways contended for by Ms Wong.

Reasons not inadequate 137 Finally, it was submitted that the primary judge erred in failing to make substantial findings based on evidence that demonstrated that Mr Arnott did not like Ms Wong complaining. Ground 5(d) alleges that the failure to give reasons in relation to that aspect of the evidence constitutes appealable error in and of itself. 138 In our view, the submissions on this topic misstated the overall effect of the evidence adduced at the trial. Mr Arnott repeated in his evidence that he did not like the manner in which Ms Wong complained. He acknowledged that he did not like her conduct in expressing her disagreement with one of Mr Arnott's recruitment decisions of a more senior manager and noted that the senior manager had queried why the issue had been elevated in that way. Mr Arnott was frank and consistent in his expressions of disapproval of Ms Wong's mannerisms. Equally, he was persistent with his denials that he was motivated by the fact that the complaints and inquiries had been made. 139 Nor do we consider the primary judge erred in failing to set out the evidence on this topic in his reasons and in failing to make substantive findings in respect of it. Counsel for NAB pointed out that evidence on the topic received scant attention in Ms Wong's written closing submissions at trial, occupying one paragraph out of 72 pages and only a few lines of oral transcript in a dense factual landscape. As Ryan, Mansfield and McKerracher JJ observed in Devers v Kindilan Society [2010] FCAFC 72; 269 ALR 404 at [58], "a judge's duty to give reasons is not one which requires him or her to examine in detail every issue raised in the proceedings or to record in minute detail the reasons which led to any particular conclusion". Rather, "[i]t is enough if the judge outlines the facts found and the process of reasoning which led to the ultimate conclusion". The primary judge discharged his obligation in this regard. His reasons were not inadequate. 140 The resolution of the issues did not require the primary judge to decide all of the arguments advanced by Ms Wong such as whether she did or did not have behavioural issues sufficient in the view of the primary judge to warrant the adverse actions. The objective circumstances to which she pointed were not so compelling as to demand the conclusion that the whole of Mr Arnott's evidence was unreliable, notwithstanding the positive assessment the primary judge made of his demeanour. The primary judge was correct to so find. 141 The primary judge had the advantage of seeing and hearing Mr Arnott give evidence in response to questioning on all of the topics sought to be agitated on this appeal. Whilst some of the issues raised on the appeal illustrate deficiencies in aspects of Mr Arnott's evidence, they are not such as to preclude the primary judge from acting on the impressions he formed of Mr Arnott in the course of giving evidence, whether considered alone or in any combination. It was plainly legitimate for the primary judge to have regard to the impressions formed of Mr Arnott as a witness in assessing whether his asserted opinions were genuinely held and (as an essential incident of that task) in assessing whether his explanation for asserted deficiencies in his evidence should be accepted. Indeed, he was bound to do so. Whilst the discrepancy concerning Mr Zhuang was notable, it is the only instance in which Mr Arnott's account could be said to have been indisputably wrong, and it is a defect of which the primary judge was plainly aware. Although it is notable, it is insufficient to warrant this Court interfering with the primary judge's assessment of Mr Arnott's credibility overall having regard to the evidence as a whole. 142 It follows that the primary judge did not fall into appealable error in concluding that Mr Arnott's opinions were genuinely held and that (to the extent that his state of mind was relevant) NAB had discharged its onus. 143 As Ms Wong did not advance any specific argument to the effect that the findings were glaringly improbable or contrary to compelling inferences it is unnecessary to assess the evidence against those thresholds.

Conclusion 144 In light of our conclusions in respect of grounds 5 to 7, the appeal must be dismissed. 145 Neither party sought, or foreshadowed an application for, costs. In the circumstances, and having regard to the limitations on the Court's power to award costs in a case of this kind (see FW Act, s 570), there will be no order as to costs. I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Charlesworth and O'Sullivan.