Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales

2, ss 3, 4, 18, 23, 62 Statutory and Other Offices Remuneration Act 1975 (NSW) Supreme Court Act 1970 (NSW) s 75 Transport Administration Act 1988 (NSW) ss 3C, 3F, 68B, 68C 68D, 68E, 68F, 68G, 68I, 68J, 68K,68N, 68O, 68P,112, Pt 7A, Sch 1 Transport Administration (Staff) Regulation 2012 (NSW), regs 28, 30 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 59.10(2) Workers Compensation Act 1987 (NSW) s 151Z(1)(b) Cases Cited: A v Hayden (No. 2) (1984) 156 CLR 532; [1984] HCA 67 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; [1977] HCA 71 Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 2 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; [1933] HCA 8 Brooks v Burns Philp Trustee Co. Ltd (1969) 121 CLR 432; [1969] HCA 4 Brown v Dunn (1894) 6 R 67 Commonwealth v Amann Aviation Pty Ltd 174 CLR 64; [1991] HCA 54 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 Director-General of Education v Suttling (1987) 162 CLR 427; [1987] HCA 3 Dyason v Butterworth [2015] NSWCA 52 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Howard v Odhams Press, Ld (1938) 1 KB 1 Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343; [2018] NSWCA 163 Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; [2005] HCA 50 Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 Lucy v The Commonwealth (1923) 33 CLR 229; [1923] HCA 32 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 33 [1912] HCA 69 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 O'Connor v State of New South Wales & Anor [2017] NSWSC 598 O'Connor v State of New South Wales [2017] NSWCA 335 Osmond v Public Service Board of NSW [1984] 3 NSWLR 447 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Police Association of New South Wales v State of New South Wales (2020) 101 NSWLR 626; [2020] NSWCA 3 Priest v State of New South Wales [2007] NSWSC 41 Re David, Alan and Mary and the Director General Family and Community Services [2014] NSWSC 1077 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Scott v Handley [1999] FCA 404; (1999) 58 ALD 373 Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475; [1976] HCA 53 Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214; [1954] HCA 21 Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 Wilson v Department of Public Prosecutions (NSW) [2016] NSWSC 1458; (2016) 262 A Crim R 106 Wilson v Director of Public Prosecutions (NSW) (2017) 94 NSWLR 450; [2017] NSWCA 128 WorkPac Pty Ltd v Rossato (2021) 392 ALR 39; [2021] HCA 23 Texts Cited: Privacy and Personal Information Protection Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates, (Hansard), 17 September 1998 Category: Principal judgment Parties: Thomas Wood (Plaintiff) Secretary of the Department of Transport on behalf of the Government of New South Wales (Defendant) Representation: Counsel: Mr S Prince SC (Plaintiff) Ms S Brenker (Plaintiff) Mr M Seck (Defendant) Solicitors: Thrive Workplace Consulting & Legal (Plaintiff) K & L Gates (Defendant) File Number(s): 2020/330611

Judgment

1. On 2 June 2020, Transport NSW summarily dismissed Mr Wood without notice or any payment in lieu under cl 15(d) of his employment agreement, for having assisted police in a murder prosecution. He was then employed as a forensics manager. Mr Wood claims that there was no lawful basis for his dismissal for serious and wilful misconduct and that the termination involved a repudiation of his contract, for which he is entitled to various relief, including damages.
2. By his dismissal letter Mr Wood was advised by Ms Taylor, the Acting Chief People Officer, that his employment was being terminated because of his: "1. failure to maintain confidentiality with respect to the release of confidential information without authorisation; 2. failure to comply with lawful and reasonable direction issued to you not to perform any work; 3. failure to protect personal information collected by Transport for NSW and releasing information without authorisation and releasing information not in the course of lawful exercise of your functions, particularly given the direction that was issued to you; and 4. failure to comply with Transport's Code of Conduct."
3. The letter also advised Mr Wood that account had been taken of a letter sent by his solicitor Ms Harvey in which an extension of time to respond to the allegations was sought, but refused; explained the circumstances which had led to the issue of his dismissal having arisen; and the considerations which had resulted in the decision to dismiss. The circumstances identified were: "1. you were issued a written direction not to undertake any work which includes representing yourself as an active employee of Transport for NSW; 2. the information you have provided NSW Police was information that was obtained through the course of your employment and involves personal information relating to a former employee; and 3. given your seniority and your role as Forensic Manager within the Workplace Conduct and Investigation Unit and past matters you have worked on, you are aware of the appropriate process within Transport for NSW for reporting and providing evidence and information to the NSW Police."
4. The information which Mr Wood had provided police was not in issue.
5. On 28 May 2020 Mr Wood had approached police with information relevant to the prosecution of Mr Pietrobon, a former Transport NSW employee, immediately on learning that he had been charged with murder, when Mr Wood saw a news report televising Mr Pietrobon's arrest and recognised him. He was then asked to make a report to Crime Stoppers. He told Crime Stoppers that in the course of his work he had conducted two investigations into Mr Pietrobon, before Mr Pietrobon was dismissed in 2019.

Conclusion

1. For reasons which I will explain, I have concluded that Mr Wood has established his case and is thus entitled to relief, including damages.
2. Mr Wood's case was that he had committed no serious misconduct; Transport NSW had no right to dismiss him as it did; and he had never accepted the repudiation of his contract. He thus sought a declaration, amongst other things, that he still occupied his position. On the final day of the hearing it emerged that there had been a restructure in Transport NSW and that in July 2021 his position had been abolished.
3. I am satisfied that this precludes a declaration that Mr Wood still occupies his former position and must be taken into account in arriving at an award of damages.

Mr Wood's claims

1. By his December 2020 amended summons Mr Wood sought various declarations, in summary that: 1. the exercise of the power granted by reg 30(3) of the Transport Administration (Staff) Regulation 2012 (NSW) in disciplinary proceedings required that he be afforded procedural fairness; 2. in the alternative, that: 1. the exercise of powers under his contract of employment was subject to the requirement of procedural fairness, which applied under the Transport Administration (Staff) Regulation and the Transport Administration Act 1988 (NSW); and 2. the power under cl 15(d) of his employment contract was "conditioned" by the need to accord him procedural fairness, consistent with the Transport Administration Act and Transport Administration (Staff) Regulation. 1. the decision to summarily dismiss him from his employment was unlawful, having involved a denial of procedural fairness in the purported exercise of the powers granted by reg 30(3) of the Transport Administration (Staff) Regulation; 2. that decision was otherwise void, of no effect and not authorised by law; 3. that he remained an employee occupying the position of forensic manager to which he had been appointed under the Act and was thus entitled to all payments and employments arising from that employment; and 4. in so far as cl 11(1) of Mr Wood's employment contract was inconsistent with a person's common law duty to bring information to the NSW Police, which might be of material assistance in securing the apprehension or prosecution of a person suspected of committing a serious indictable offence, it was void and of no effect.
2. Mr Wood also sought an order, in the further alternative, quashing or setting aside the decision to summarily dismiss him, as well as damages. He also sought an extension of time under rr 1.12 and 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW), to commence the proceedings.
3. The claims were defended, the Secretary also opposing the grant of an extension of time and contending, amongst other things, that Mr Wood was employed as a senior executive or senior manager under the Transport Administration Act, with the result that the Court had no power to make the declarations and orders sought: ss 68O and 112(2).

The issues

1. Before the hearing the parties agreed that there was no issue as to: "Factual matters: 1 The plaintiff was employed by the first defendant at Transport for New South Wales (TfNSW) as a Forensics Manager from 10 November 2013 to 2 June 2020 under Part 7A of the Transport Administration Act 1988. 2 On 15 April 2014, the plaintiff and the first defendant signed a contract of employment (Employment Contract). 3 As part of his role as Forensics Manager, the plaintiff investigated an employee of TfNSW named Dennis Pietrobon: (a) in around 2017, regarding Mr Pietrobon's alleged stalking, intimidation and sexual harassment of a colleague, and his misuse of TfNSW resources for harassment, pornography and dating apps; and (b) in around September and October 2018, regarding Mr Pietrobon's assault of a male high school student at a bus stop, for which he was criminally charged, and Mr Pietrobon's failure to declare his criminal charges. 4 During each investigation, the plaintiff reimaged Mr Pietrobon's laptop and mobile phone. The reimaged data was saved to TfNSW's computers and data drives. 5 On or about 28 May 2020, the plaintiff: (a) had been suspended from his employment effective 16 August 2019 during which he was directed not to attend or perform work, pending an investigation into the plaintiffs alleged misconduct; (b) learned, by watching television, that on the previous day, Mr Pietrobon had been charged with the murder of a woman on 1 October 2018; (c) called Crimestoppers during which he conveyed to the NSW Police Force that: (i) he thought he had relevant information for NSW Police regarding Mr Pietrobon; (ii) he had conducted an investigation into a person by that name on two occasions; (iii) Mr Pietrobon was either employed by Sydney Trains or TfNSW at the time; (iv) during those investigations he had reimaged Mr Pietrobon's computer and gathered evidence from his phone; (v) he thought this information would be relevant to showing Mr Pietrobon's history of offending which NSW Police may not otherwise obtain as Mr Pietrobon no longer worked at TfNSW (or Sydney Trains); (vi) if the information seemed relevant, NSW Police could contact him on his private mobile number, (together, the Information); (d) shortly after calling Crimestoppers, at 1:43pm, emailed his manager at TfNSW, Mr Grant Marley, words to the effect that: (i) the plaintiff had told Crimestoppers that he had imaged Mr Pietrobon's laptop and taken evidence from his mobile phone around the time of the alleged murder, and that Crimestoppers said they may contact him for possible further discussions; (ii) he was bringing this to Mr Marley's attention so that Mr Marley could raise it with senior management, take steps to contact NSW Police and look out for the mental well-being of employees who Mr Pietrobon harassed. 6 On 1 June 2020, at 1:23pm, Ms Tracey Taylor, Acting Chief People Officer of TfNSW, issued a letter entitled "Preliminary Decision: Summary Termination of Employment" to the plaintiff, which: (a) alleged that the plaintiff's disclosure of information to Crimestoppers was an act of serious or willful misconduct; (b) proposed the termination of the plaintiff's employment; and (c) gave the plaintiff until 5:30pm the following day to make written submissions with regard to the proposed disciplinary action. 7 On 2 June 2020, at 3:25pm, the plaintiffs solicitor wrote to Ms Taylor and stated that the plaintiff was too unwell to provide a response to the Preliminary Decision and was on sick leave but that, in the meantime, the plaintiff's solicitor made certain observations regarding that Decision. 8 On 2 June 2020, at 9:28pm, Ms Taylor issued a letter entitled "Final Decision: Summary termination of employment" to the plaintiff by which the first defendant purported to terminate the plaintiff's employment (Summary Dismissal Decision). 9 The plaintiff was scheduled to go on parental leave on 3 June 2020. 10 The misconduct investigation referred to in paragraph 5(a) above was never completed."

Why an extension of time was granted

1. Mr Wood relied on his affidavit evidence and that of his solicitor Ms Harvey, to support his application for an extension of time to commence the proceedings, which was opposed.
2. I granted the extension after Ms Harvey was cross examined, for the following reasons.
3. Rule 59.10 of the Uniform Civil Procedure Rules requires proceedings such as these to be commenced within 3 months of the date of the decision in issue. Mr Wood's application was thus brought 79 days out of time.
4. Under that Rule the Court has a discretion to extend time, taking into account relevant factors. They include: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest.
5. Other relevant considerations are the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65] applied in O'Connor v State of New South Wales [2017] NSWCA 335 at [23]. There at first instance the leave sought had been refused, it having been found that significant prejudice would flow to the State from the delay, the decision in issue having been made over 22 years ago, a conclusion found on appeal to have been correct.
6. This was clearly an entirely different case, given not only the length of the delay, but the matters of public interest which it raised.

The parties' cases

1. Mr Wood's case was that the proceedings were not brought within time because of representative error. He relied on Ms Harvey's explanation of why she had not advised him of the time limit which applied and why she had expected that the Secretary would not oppose the necessary leave to commence the proceedings being granted.
2. The Secretary contended that there was still insufficient evidence about the circumstances in which Mr Wood had failed to bring the proceedings within time, to grant the leave sought. Further, that there was insufficient evidence as to when the error about the limitation period was identified and that Ms Harvey had given insufficient explanation of her carelessness.
3. The evidence relied on was also submitted to be inadequate, given the absence of relevant medical certificates or other relevant documentary evidence. It was also relevant that within time, Mr Wood had given instructions for proceedings to be brought before the Fair Work Commission, which were later discontinued, the Secretary having raised a jurisdictional difficulty.
4. The Secretary also relied on prejudice.
5. There was no issue, however, that from shortly after his summary dismissal was communicated to Mr Wood, Transport NSW had notice of his intention to challenge its decision.

Why the Secretary's case could not be accepted

1. Mr Wood's case was clearly arguable.
2. He was summarily dismissed without notice or even payment of any of his outstanding entitlements late on the evening of 2 June, within days of his 28 May advice of the disclosure he had made to police. The decision was made despite Ms Harvey having sought further time for him to respond to the allegations, given the impending birth of his child, for which he was due to begin paternity leave on 3 June and the medical certificate then provided concerning his ill health, which advised that he was not fit for work.
3. It was difficult to see when it dismissed Mr Wood, what confidentiality Transport NSW conceivably might have considered it needed to maintain in the information he had provided police. Consistent with there being no such need, eventually the records whose existence he had disclosed were provided to police, who had pursued them. That this proved to be necessary, was puzzling.
4. On her evidence, Ms Harvey's explanation in cross examination, that at the time of the dismissal she had forgotten the time limit imposed by the Rules on proceedings such as this, had to be accepted. She was later reminded of it by a Transport NSW representative, she believed after the limitation period had expired.
5. Ms Harvey also explained that she had not then been concerned about the question of leave, because of earlier advice received from Transport NSW's solicitor. That advice included that it was "comfortable with its decision taken and prepared to defend it" and that as a public authority, it had decided not to "compromise the matter in the face of the serious allegations Mr Wood raises as to do so gives the appearance of it buying Mr Wood's silence with respect to matters which, if sustained, should be exposed in the public interest".
6. Those allegations included Ms Harvey's advice on 1 June that Mr Wood's threatened dismissal raised questions about offending under ss 315 and 315A of the Crimes Act. They are concerned respectively with hindering the investigation of a serious indictable offence or the discovery of evidence concerning such an offence and threatening or causing any injury or detriment to another person intending to influence any person not to bring material information about an indictable offence to the attention of police.

Was cl 15 of Mr Wood's employment agreement of no effect?

1. When the proceedings commenced the written opening submissions advanced for Mr Wood assumed, but did not concede, that he was either a senior executive or senior manager under the Transport Administration Act. As the cases were finally pressed, the question of whether Mr Wood was a senior manager to whom ss 68O and 68N of that Act applied, as Transport NSW contended, was in issue.
2. The case Transport NSW advanced in final submissions was also that the provisions of cl 15(d) of Mr Wood's employment agreement, which he had been advised in his dismissal letter his employment had been terminated under, were of no effect.
3. These and other issues turned on whether Mr Wood had been employed as a senior manager under the Transport Administration Act. That depends on the parties' agreement and the statutory regulation of the employment of Transport NSW staff: Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; [2005] HCA 50 at [10].

Was Mr Wood a senior manager?

1. It is both what the agreement does and does not provide for, which establishes that Mr Wood was not employed as a senior manager.
2. It was in 2013 that Mr Wood was first employed as a forensics manager in the Transport Service established by s 68B of the Transport Administration Act. In April 2014 he signed the agreement by which the parties remained bound when Transport NSW dismissed him. The agreement came into operation in January 2015 and Mr Wood accepted that while he had not given it his close attention when he signed it, he was bound by its terms.
3. As discussed in WorkPac Pty Ltd v Rossato (2021) 392 ALR 39; [2021] HCA 23, employment contracts such as this agreement, whether as originally agreed or later varied, create binding obligations that constitute "firm advance commitments": at [65]. Like that case, here what arises for consideration is an employment relationship where, on the evidence, there is no reason to doubt that the terms of that relationship were committed, comprehensively, to the written agreement by which the parties intended to be bound: at [101]. Still the agreement must be understood in the context of the statutory scheme which regulated employment in the Transport Service.
4. The agreement provided that Mr Wood was employed under Pt 7A of the Transport Administration Act, in the full-time position of forensics manager. Part 7A deals with employment in the Transport Service of senior executives, senior managers and non-executive employees. They are all employed in the "government sector", defined in the Government Sector Employment Act 2013 (NSW) to include those employed in that Service. The core values of the government sector are specified in s 7. Of particular relevance in Mr Wood's case, they include upholding the law.
5. The agreement did not provide that Mr Wood was employed as a senior manager, a term which is not defined in the Act. Being employed as a "forensic manager" does not make an employee a "senior manager" under the statutory scheme. That requires agreement. There is no evidence that Mr Wood was offered or accepted such a position. Nor was that established by his agreement, as might be expected it would be, if he had been offered employment in such a position, given the provisions of this statutory scheme.
6. Section 68D(1) of the Transport Administration Act deals with senior executives and subs (2) provides that those employed who are designated by the Transport Secretary as senior managers "are Transport Service senior managers". There was also no evidence that Mr Wood had ever been so designated. Had that occurred, Transport NSW no doubt would have led evidence about this.

Jones v Dunkel inferences

1. That Transport NSW called no evidence from those who could have shed light on these and other matters, is also relevant.
2. Section 3C of the Transport Administration Act constitutes Transport NSW as a corporation which is an NSW Government agency, whose affairs are to be managed by the Secretary. Its functions appear in Sch 1 to the Act and it is required to prepare, publish and annually revise a corporate plan for its activities: s 3F. But there was no evidence led about its plans, or the structure by which it delivered them at the time that Mr Wood was employed, or even about how its senior managers were employed, as opposed to how its non-executive employees, were employed or paid, in order that its activities could be pursued.
3. Matters of this kind could conceivably have shed light on whether the position in which Mr Wood was employed was that of a senior manager. Evidence could have been called from those involved in the decision to dismiss, who may have proceeded on the basis that he was a senior manager, to explain how that view was reached, as well as about the basis of the conclusion that he had engaged in serious and wilful misconduct.
4. But apart from documents tendered, the only evidence Transport NSW called was from Mr Marley, Mr Wood's direct manager, who gave no evidence about any of these matters.
5. Mr Marley had only been in his position for a short time before he took lengthy sick leave and returned to work only shortly before Mr Wood was dismissed. He was not involved in Mr Wood's dismissal.
6. Mr Marley's evidence explained how he had dealt with Mr Wood's advice of the disclosure he had made to police and with the importance of confidentiality to the work of those employed in the Workplace Conduct and Investigations Unit which he managed. It was others more senior to him who dealt with the termination of Mr Wood's employment and with police. Mr Marley's evidence thus shed but little light on what was here in issue.
7. In cross examination Mr Marley identified all the senior executives involved in Mr Wood's dismissal, all of whom continue to work for Transport NSW. There was no explanation for why evidence was not called from any of them. That was the result of a forensic decision which Transport NSW made, not being prepared to put the evidence which they could give on what was in issue before the Court.

Mr Wood's employment agreement was effective

1. Section 68K empowered the Transport Secretary to fix the conditions of employment of non-executive employees "in so far as they are not fixed by or under any other law".
2. In Mr Wood's case the Secretary exercised that power by entering into Mr Wood's employment agreement, which Transport NSW had devised. It dealt with his duties in his position description in terms which had an impact on the confidentiality provisions which were agreed. That had to be taken into account, when the right to dismiss provided in cl 15(d) of the agreement was sought to be exercised. It provided for circumstances in which it was agreed that Mr Wood could be summarily dismissed, they amounting to serious or wilful misconduct.
3. Section 68P provided for the making of regulations "with respect to the employment of persons in the Transport Service, including conditions of employment and disciplinary matters". The Transport Administration (Staff) Regulation made no provision for conditions of employment regulating notice to be given or payment to be made on termination of employment, in respect of which the Secretary was free to enter contracts with staff.
4. The Regulation did regulate the pursuit of disciplinary proceedings, which could result in dismissal, amongst other action: reg 30. It provided: 30 Disciplinary proceedings (1) A member of the Transport Service who is subject to any disciplinary proceedings is entitled to be notified in writing by the Transport Secretary of the particulars of the alleged behaviour giving rise to the proceedings. (2) A formal hearing is not required to be held before the person or body investigating or dealing with the alleged behaviour, but the member of the Transport Service who is the subject of the proceedings may make representations to that person or body. (3) The Transport Secretary may determine any disciplinary proceedings that have been instituted against a member of the Transport Service by: (a) taking disciplinary action with respect to the member, or (b) taking remedial action with respect to the member, or (c) taking no further action.
5. "Disciplinary action" is defined in reg 28 to include dismissal and suspension from duty. Such proceedings thus permit a response to misconduct or unsatisfactory performance for the purpose of improving the efficiency of the Transport Service: Police Association of New South Wales v State of New South Wales (2020) 101 NSWLR 626; [2020] NSWCA 3 at [6].

Was Mr Wood dismissed under reg 30 of the Transport Administration (Staff) Regulation 2012?

1. Transport NSW's case was that Mr Wood had been dismissed under reg 30 of the Transport Administration (Staff) Regulation, despite the briefing notes prepared for the preliminary and final decisions, which referred to termination under the agreement and the written advice Mr Wood was given of the preliminary and final decisions to dismiss him, under cl 15(d) of the agreement.
2. On Transport NSW's case the regulatory process is a mode of dismissal different to that arising under s 68N of the Transport Administration Act, which permits dismissal of a senior executive or senior manager at any time, for any and no stated reason and without notice. It contended that it was Mr Wood's dismissal under the Regulation which did not entitle him to any compensation, because of s 68N(5), he having been dismissed in accordance with the Regulation.
3. To make this good it was also submitted that the Regulation operated according to its own terms; it was not necessary for any specific reference to be made to it in any documents; and the fact of the dismissal itself established that it had been followed. Further that: "there doesn't necessarily have to be a conscious understanding that the power which is being exercised by the Transport Secretary through the relevant delegate was pursuant to a particular statutory power. Obviously being a public agency, there's a statutory power which underpins various matters concerning the employment including taking disciplinary action, and the termination of employment, the fact that it may not have been in any express reference in any of the material communicated to Mr Wood specifying that the delegate was acting pursuant to either reg 30 or by reference to s 68N, in my respectful submission is not to the point."
4. Further, that to the extent that the agreement dealt with serious or wilful misconduct, it was inconsistent with the statutory scheme and of no effect.
5. I am satisfied that these submissions may not be accepted.
6. The provisions of reg 30 of the Regulation and cl 15 of the agreement are earlier set out. The Regulation itself precludes a decision maker proceeding, unconscious of the power being exercised, requiring as it does that the decision maker ensure that steps which the Regulation requires, are taken before a decision of the kind which the Regulation permits, is made.

Was the process pursued procedurally fair?

1. Whether the process pursued was procedurally fair was also in issue.
2. It is settled that a power to remove a person from public office, thereby prejudicing their rights and interests, is regulated by the rules of natural justice, unless excluded by plain words of necessary intent: Jarratt at [24]. It was not Transport NSW's case that the Regulation contained such words, understandably, given that such proceedings may result in dismissal for cause.
3. Rather, it contended that the proceedings had been conducted in accordance with the limited requirements of procedural fairness for which the Regulation provided. They were submitted to be the requirement that written notification be given of the alleged behaviour giving rise to the proceedings. The result was that Mr Wood's dismissal for serious and wilful misconduct was not invalid, he having been given that notice.
4. I am satisfied that this also cannot be accepted.
5. Such a draconian outcome is not envisaged by the Regulation, which expressly also provides for the right to make representations, even when a formal hearing is not required: reg 30(2). That right must be given practical effect. In Mr Wood's case it was not.
6. On Mr Marley's evidence in cross examination, the regulatory disciplinary process involved, in practice, the employee first being advised by letter of the allegations and being given 7 days to respond; a preliminary decision then being made; and the employee then being given the opportunity to show cause why the proposed penalty should not be imposed.
7. That accorded with the parts of Transport NSW's Discipline Handling Procedure, which should have been applied to Mr Wood, given that he was not a senior manager.
8. Part 6 of that procedure, which specified that it does not apply to senior managers, envisages:

• an investigatory meeting of which the three days' notice is given, at which the staff member may have a support person present, even when a written response is provided;
• that witnesses may be required to attend;
• the staff member is then given the opportunity to provide evidence and ask questions;
• a report is then produced and is considered, to ensure that the proceedings have followed the applicable procedure;

Was Mr Wood precluded from making his disclosure to police?

1. Contrary to Transport NSW's case, I am satisfied that Mr Wood was entitled to make his disclosure to police.

Mr Wood's position description

1. The 2017 position description described Mr Wood's "key accountabilities". They included not only investigation, search, recovery, collection and preservation of evidence and forensic examination of computer systems, but also: "Communication and Relationship Management - Establish and maintain effective working relationships with key stakeholders across the Cluster. Communicate effectively with external investigators, the public, team members, law enforcement and investigation agency personnel, employees of other government organisations, financial institutions and solicitors."
2. Mr Wood's "key challenges" included: "Using appropriate independent judgement and reasoning to develop credible and accurate data-based conclusions. Accurately interpreting and applying laws, codes, regulations, awards, policies and procedures. Maintaining confidentiality and discretion on sensitive and confidential matters. Effectively coordinating, performing and completing multiple concurrent priorities and assignments in a timely manner."
3. Mr Wood's identified "key relationships" were with external agencies, including police. This established that the duties which he was required to perform included communicating with police about confidential and sensitive matters which might have to be disclosed.
4. Consistent with this position description, Mr Wood explained how he had in the past interacted with police, when Transport NSW had relevant information to communicate. He understood from his former manager that it had a memorandum of understanding with police, to which he referred in his email to Mr Marley, and about which he was cross examined. Mr Marley however was not aware of it and later investigation established that there was no such MOU, despite the reference made to it in the 2 June letter.
5. Mr Wood was also cross examined about how he interacted with police, which understandably depended on what he had to deal with and the involvement of others at Transport NSW in those dealings. He accepted that others would have been aware of them. But the evidence did not establish that in order to perform his duties, Mr Wood required prior approval to communicate with police about the sensitive and confidential matters he routinely dealt with.
6. Mr Marley gave evidence about his expectations about those he managed dealing with police. But the time that he worked with Mr Wood was very short, as he explained, and his evidence did not establish that such expectations were communicated to Mr Wood, let alone that they confined the performance of his contractual duties.

The contractual confidentiality provisions

1. Mr Wood's agreement also included confidentiality provisions in cll 10 and 11, which had to be understood in the context of his written duties.
2. Clause 10 dealt generally with confidentiality and precluded disclosure of confidential information, other than in accordance with cl 11.
3. "Confidential information" was defined to mean not only information which Transport NSW designated to be confidential, but all "information disclosed by or on behalf of the Employer, to the Employee, or of which the Employee becomes aware, during the Employee's employment": cl 1.1(a).
4. This definition was wide enough to capture information Mr Wood obtained about Mr Pietrobon in his investigation and the existence and content of the records which he disclosed to police.
5. But cl 11(a) permitted disclosure of "confidential information", to the extent required for the performance of Mr Wood's duties, subject to any directions he was given, or policies or procedures.
6. Transport NSW's Code of Conduct dealt with protection of confidential information and privacy, which made reference to the Privacy and Personal Information Protection Act, to which I will return. It provided that "confidential information in any form must not be disclosed to any party without official approval or as otherwise permitted by legislation or court order".
7. The Code thus also contemplated that confidential information could be disclosed in the performance of an employee's duties, if officially approved. For example, in a contractual duty statement which Transport NSW devised, such as that which applied to Mr Wood. It also contemplated disclosure required by law.
8. In Mr Wood's case such disclosure of confidential information was expressly contemplated by his position description, where his accountabilities specifically included his communication with law enforcement about such matters. His unchallenged evidence about how he had in the past communicated such information to police, accorded with this aspect of his duties, as well as with his express contractual duty always to act in the best interests of the Government of NSW, which such disclosure might require.
9. There can be no question that prompt disclosure to police that Transport NSW had in its possession records relevant to the murder prosecution, was not only in its own interests, but also those of the Government. After all, it has the onerous responsibility of ensuring the investigation and prosecution of such serious crimes, for the good of the society which it governs.

Did Mr Wood have a duty of disclosure at law?

1. In issue was also whether, when he made his disclosure to police, Mr Wood had any legal obligation to do so.
2. I am satisfied that he did.
3. At common law the existence of an obligation to provide information about criminal offences to authorities has long been recognised as explained in A v Hayden (No 2) (1984) 156 CLR 532; [1984] HCA 67. There it was said at 555 that: "the effective enforcement of the criminal law and the administration of justice, which are central elements in a well ordered democratic society, depend for their efficacy on the unrestricted freedom of each and every citizen to assist and co-operate with the authorities in the investigation and prosecution of criminal offences. There is therefore a powerful public interest in promoting and preserving the citizen's freedom to assist and co-operate with the authorities in the investigation and prosecution of crime."

Section 316 of the Crimes Act

1. There is no issue that in 1990 the common law offence of misprision of felony, was abolished with the enactment of s 316 of the Crimes Act. That did not abolish the obligation to assist police, but rather reformed the circumstances in which an offence will be committed, when information is not disclosed. Section 316(1) provides: 316 Concealing serious indictable offence (1) An adult - (a) who knows or believes that a serious indictable offence has been committed by another person, and (b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and (c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority, is guilty of an offence.
2. Section 316 is thus concerned with both knowledge and belief.
3. The word "believes" is not defined. As I explained in Wilson v Department of Public Prosecutions (NSW) [2016] NSWSC 1458; (2016) 262 A Crim R 106, which was not challenged on appeal, unlike other statutory provisions, it is not a reasonable belief which is required in the case of this offence. In its ordinary meaning, belief "is a state of mind which can be reached as the result of a mix of knowledge which an offender has come to possess, as well as suspicions and opinions which he or she has come to hold and conclusions which he or she has reached": at [34].
4. In Wilson v Director of Public Prosecutions (NSW) (2017) 94 NSWLR 450; [2017] NSWCA 128 it was observed that "By punishing the withholding of information, believed to be material in securing a conviction, by someone who knows or believes such an offence has been committed, the provision operates as a deterrent to people who might otherwise withhold information from the police. In doing so it furthers the more general objective that members of the public report information and beliefs about serious offences to the police so as to assist in the apprehension, prosecution and conviction of offenders." at [45].
5. The pre-condition for the application of s 316(1) is either knowledge or belief that a person "has committed a serious indictable offence". That is "a state of affairs which has arisen and is continuing in the sense that it has not been dealt with by the offender being prosecuted to conviction or acquittal." Wilson [2017] at [41].

Re David, Alan and Mary and the Director General Family and Community Services [2014] NSWSC 1077

1. Consistent with these later cases, in Re David, Alan and Mary and the Director General Family and Community Services, the case there advanced by the Director General, accepted by Slattery J, was that both the Director General and departmental employees were, like others, bound by s 316, following A v Hayden (No. 2) (1984) 156 CLR 532; [1984] HCA 67: at [112].
2. An application to restrain disclosure of the confidential information there in question was thus refused, his Honour concluding that "would have the tendency to obstruct the administration of criminal justice in the sense described in Hayden.": at [111]. This was despite the unlikelihood of what was disclosed being admitted at any criminal trial, his Honour taking the view that it cannot be part of the concept of "reasonable excuse" dealt with in s 316(1), for a person in possession of information second guessing what would happen at a later criminal trial, or for the Director General to decide on behalf of prosecuting authorities whether a trial is likely: at [113]-[114].
3. The approach of the Secretary stands in very marked contrast to that adopted by the Director General. It was pursued despite in this case a murder charge having actually been laid against a former employee and Mr Wood having advised of his disclosure of the existence of records in Transport NSW's possession, which he believed were critical to the prosecution.
4. I am satisfied that this approach did have the tendency to obstruct the administration of criminal justice and was not consistent with what s 316 required of Mr Wood.

The evidence

1. The evidence establishes that Mr Wood had learned that Mr Pietrobon had been charged with murder from the televised report that he saw before he approached police. Mr Wood's evidence was, in short, that he then approached police, believing that he had an obligation to do so, because:

• he learned from the report the circumstances in which the victim had been found and Mr Pietrobon charged, he having met her through a fetish dating app;
• when he saw Mr Pietrobon's image, he recognised him to be a former Transport NSW employee, who he had investigated in relation to two separate complaints;
• the first was into a complaint about sexual harassment, which had resulted in his recommendation that Mr Pietrobon be dismissed and the second, into a failure to disclose a conviction for an assault, which resulted in his dismissal;
• the last investigation had been undertaken around the time of the murder;
• during both investigations, he had taken and retained copies of what was on Mr Pietrobon's work computer and mobile phone;
• there Mr Wood had seen things such as Mr Pietrobon's access to pornography, use of fetish dating apps and inappropriate images, including some sent to others, which Mr Wood considered to be relevant to the murder charge; and
• His understanding of his obligation to disclose this to police, which had arisen from his past involvement in another murder investigation.

1. In cross examination Mr Wood said that it was what he had seen on the computer and phone records he had investigated, which had included Mr Pietrobon sending random images to girls which were not wanted, which he found had involved completely abnormal and unusual behaviour, having not seen anything that significant in his career before, which had led him to believe that Mr Pietrobon had committed the murder. He disagreed that he then still believed that the murder charge was merely an allegation. He also agreed that he then believed that he had a moral and ethical obligation to provide the information to police, not understanding that he had a specific legal obligation and not being aware of the provisions of s 316.
2. Mr Wood's credibility was sought to be challenged by cross examination about advice Ms Harvey had given, that he did not know whether the evidence established that an indictable offence had been committed. He accepted that this must have reflected instructions he had given but said that he did not pick up on the significance of this, at the time.

Inconsistency between cl 11 of the agreement and s 316 of the Crimes Act

1. Ordinarily, without a provision to the contrary, a contractual confidentiality provision will be construed as limited only to information which is confidential in character: Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 at [45].
2. But here the contractual definition did extend the term to information which was not confidential in nature. Parties by their contract may impose such restraints on the use or disclosure of information which is not in its nature confidential and which would not be protected in equity: Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343; [2018] NSWCA 163. But there are limits on what may be so agreed.
3. Also in issue was whether cl 11 of the agreement was inconsistent with s 316, it being well established that contractual obligations are subject to and overridden by the parties' duty to comply with the law of the land: Smorgon v. Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475; [1976] HCA 53, at 488.
4. A contract which tends to pervert or obstruct the course of justice is also against public policy and either illegal and void, or unenforceable: Brooks v. Burns Philp Trustee Co. Ltd (1969) 121 CLR 432; [1969] HCA 4, at 458-461. It follows that if a contract is intended to have that effect, it will be invalid: Hayden at 544. There a contract preventing the disclosure to police of the identity of persons who the Victoria police wished to investigate in relation to the commission of alleged offences, was unenforceable for public policy reasons.
5. In Howard v. Odhams Press, Ld (1938) 1 KB 1, a promise not to divulge information relating to frauds which had been committed and other frauds which were planned was also found to be invalid, as being against public policy. That was because it purported to prevent the defendant from giving information to third parties which might assist them to secure the convictions of persons who had defrauded them in the past, or to prevent the commission of frauds against them in the future: at [42].
6. Even if a contract is valid, an obligation of confidentiality will not be enforced if the consequence "would be to prevent the disclosure of criminality which in all the circumstances it would be in the public interest to reveal": Hayden at 544-545. The public interest in disclosure of iniquity, that is serious crime, will always outweigh the public interest in the "preservation of private and confidential information": Hayden at 545.

The Privacy and Personal Protection Act

1. What Mr Wood disclosed to police has been explained. It was not suggested to him in cross examination that thereby he had committed any offence under the Privacy and Personal Information Protection Act, nor was that the basis upon which he was dismissed.
2. In issue finally, however, was also whether his disclosure to police was contrary to the provisions of the Privacy and Personal Information Protection Act.
3. This legislative scheme is concerned with "personal information", a term which is defined in s 4(1) in broad terms to mean "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion": (my emphasis).
4. The section then deals with specific matters which are and are not included in the definition, none of which concern criminal activity. What is excluded by s 3(j) is information or an opinion about an individual's suitability for employment as a public sector official.
5. The definition thus concerns itself with information about an individual, not with information about the individual's criminal activities. The two are not the same and the latter is not the subject of this statutory scheme.
6. Of course, the information and records which Transport NSW kept no doubt contained some personal information, as defined, about Mr Pietrobon. Some of it had been provided to police before Mr Wood made his disclosure. Some of the information disclosed could also have fallen with the exception provided in s 3(j).
7. Mr Wood's disclosure to police that he had investigated two complaints made about Mr Pietrobon during the course of his employment, also fell within the definition of personal information, that also being information about Mr Pietrobon.
8. But not only was Transport NSW free to provide the records the existence of which Mr Wood disclosed to police, he was also lawfully entitled to make the disclosure he made about their existence.
9. To resist this conclusion Transport NSW relied on s 62, which provides: 62 Corrupt disclosure and use of personal information by public sector officials (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions. Maximum penalty - 100 penalty units or imprisonment for 2 years, or both. (2) A person must not induce or attempt to induce a public sector official (by way of a bribe or other similar corrupt conduct) to disclose any personal information about another person to which the official has or had access in the exercise of his or her official functions. Maximum penalty - 100 penalty units or imprisonment for 2 years, or both. (3) Subsection (1) does not prohibit a public sector official from disclosing any personal information about another person if the disclosure is made in accordance with the Public Interest Disclosures Act 1994. (4) In this section, a reference to a public sector official includes a reference to a person who was formerly a public sector official.

Was there serious misconduct?

1. The contractual power to suspend without pay while his dismissal for making the disclosure was considered, was not exercised. Mr Wood was dismissed within days of his advice to Mr Marley of what he had disclosed to police.

The dismissal

1. To understand how he came so to be dismissed, it should be noted that before his employment with Transport NSW, Mr Wood had been involved in a police investigation into the murder and robbery of a family member. When police sought information of his knowledge of the murderer's actions before and after the murder and the victim's financial status, he having earlier been providing her with financial advice, Mr Wood provided a statement.
2. It was during that process that Mr Wood came to learn how important it was for police to receive information about crimes from members of the public. It was this experience which motivated him to approach police about Mr Pietrobon, at a time when he was not performing his normal work.
3. Mr Wood had investigated Mr Pietrobon in 2017 in relation to alleged stalking, intimidation and sexual harassment of a colleague and his misuse of Transport NSW resources, for harassment, pornography, and dating apps, where he downloaded naked photos. In 2018 he investigated Mr Pietrobon again in relation to his failure to declare a criminal charge for assault of a student at a bus stop and domestic violence offences, which led to Mr Pietrobon's dismissal.
4. In August 2019, while another employee was acting in Mr Marley's position, Mr Wood had been directed not to attend work while an investigation was conducted into his alleged breach of confidentiality, during an investigation into another manager's failure to declare a conflict of interest. It was later claimed that he had not been truthful, when answering questions he was asked about the alleged breach.
5. Mr Wood had denied both allegations and in his affidavit explained his part in the investigation; the steps he had taken; the allegation of breach of confidentiality later raised, which he denied; and the explanation which he had given of his actions, when they were first raised with him, which he explained had been truthful.
6. Mr Wood was then given written instructions by the Director People, Ms Mares not to attend or perform work while the investigation was pursued. That was a right given by cl 4(g) of the agreement. Mr Wood was then also informed that this direction "did not involve disciplinary action", but that any failure to comply with the direction, could result in disciplinary action being taken, including dismissal.

The reasons given for Mr Wood's dismissal under cl 15(d).

1. The 2 June letter advised that Mr Wood had being summarily dismissed for serious and wilful misconduct under cl 15(d), because of his serious breaches of the Transport Code of Conduct and his employment agreement, cl 10 and 11 being there identified, as well as his breach of the direction not to perform work.
2. That there was a basis for the conclusions Ms Taylor arrived so as to permit the exercise of the right to summarily dismiss was also in issue. I am satisfied that there was not.
3. It will be remembered that the serious misconduct identified in the 2 June letter was: "1. failure to maintain confidentiality with respect to the release of confidential information without authorisation; 2. failure to comply with lawful and reasonable direction issued to you not to perform any work; 3. failure to protect personal information collected by Transport for NSW and releasing information without authorization and releasing information not in the course of lawful exercise of your functions, particularly given the direction that was issued to you; and 4. failure to comply with Transport's Code of Conduct."
4. It also advised that the disclosure to Crime Stoppers was an act of serious and wilful misconduct in breach of the Code of Conduct: s 3 Staff Responsibilities and s 16 Protecting confidential information. They relevantly required: "Section 3 Staff Responsibilities • Behave in a lawful, professional and reasonable manner and always act in the best interest of Transport; • comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you • understand the duties, responsibilities and accountabilities of your role, and perform these safely, honestly, courteously and fairly; • comply with reasonable lawful requests, directions and instructions given in the course of your duties by any person with authority to do so; • maintain the integrity, confidentiality and security of corporate information; Section 16 Protecting confidential information: "You may handle or use confidential information in the course of your duties. Confidential information, in any form, must not be disclosed to any party without official approval, or as otherwise permitted by legislation or court order."
5. The disclosure was also identified to have been an act of serious and wilful misconduct in breach of cll 10 and 11 of the employment agreement.

There was no serious misconduct

1. Despite the submission that cl 30 of the Regulation did not limit dismissal to situations in which there had been serious or wilful misconduct, that is why Mr Wood was dismissed summarily and without notice, as cl 15(d) of the agreement permitted, for the reasons communicated to him in the 2 June letter.
2. The onus thus fell on Transport NSW to establish the serious and wilful misconduct on which it purported to exercise its contractual rights. It did not satisfy that onus.
3. The evidence established that Mr Wood's Crime Stoppers call involved neither serious nor wilful misconduct, let alone a breach of cl 11 of the contract or of the Code of Conduct. His post-employment conduct, the statement which Mr Wood later made to police, on which Transport NSW relied in final submissions, reinforces that conclusion. That shed light on how contrary to public policy the terms of cl 11 and the Code of Conduct, as Transport NSW understood them, truly were.
4. By the time that Mr Wood was interviewed by police, contrary to Mr Zeng's suggestion, Transport NSW was well aware of his disclosure and of his belief that the records were critical to the prosecution. Still it had taken no steps to produce the records, or to restrain him from making further disclosures to police. Police pursuit of their investigation into the records cannot have involved any breach of cl 11 of the agreement.
5. This aspect of Transport NSW's case was untenable. It was not above the law and could not constrain either the police, or Mr Wood providing his further assistance, as he did.

The law

1. There was, at least, no issue as to this aspect of the law.
2. In a case also concerned with a manager employed in a confidential position, "serious misconduct" was explained to be conduct which "in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee …. but the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises": Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; [1933] HCA 8 per Dixon and McTiernan JJ at 82.
3. There it was concluded that the conduct in issue was conduct "capable of an innocent construction": at 82. Further, that "the motives and intentions of the respondent become all-important; for the significance and sufficiency as a justification of the other items of misconduct relied upon appear to us to depend upon the truth of his explanation or the bona fides of his acts".
4. On this approach Mr Wood's disclosure cannot have involved serious misconduct.
5. Wilful misconduct involves intentional conduct regardless of or with reckless indifference to the consequences of the misconduct and a deliberate flouting of the employment contract: Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214; [1954] HCA 21 at 223 and 228.
6. Plainly conduct involving a breach of an employment agreement can be both serious and wilful. Mr Wood's was neither.

Conclusion

1. The evidence establishes that the decision that Mr Wood had engaged in serious and wilful misconduct of the kind which had been agreed in cl 15(d) would warrant his summary dismissal, without notice or payment in lieu was not available, given what had occurred.
2. As soon as Mr Wood became aware of the murder prosecution and that the records which Transport contained information critical to the prosecution, he drew the existence of the records to the attention of both police, as he was legally bound to do and to Mr Marley.
3. Nothing in the evidence established that Mr Wood had represented himself to police to be "an active employee".
4. Mr Wood was then employed by the State in one of its agencies. The disclosure which he made, as he was obliged to do at pain of committing an offence under s 316, given his knowledge of what the records contained and the belief which he formed as a result, was to the NSW police.
5. This cannot have involved misconduct or breach of his contract of employment and if it did, that aspect of the agreement was unenforceable. Even if it did involve a breach, it was not serious enough to have amounted to serious and wilful misconduct warranting summary dismissal. The view that Mr Wood could no longer be trusted, as the result of having acted in accordance with his legal obligation to bring information relevant to the prosecution to the attention of police and having then informed Transport NSW of what he had done, so that it could produce the records, was not rationally available.
6. In fact, what Mr Wood did was of assistance to Transport NSW, it having to that point failed to disclose or provide those records to police and as it emerged, having instead provided inaccurate information about Mr Pietrobon.
7. Mr Wood did not know that Transport NSW had already earlier provided various personal information about Mr Pietrobon to police, or that Mr Zeng had then incorrectly advised police that there were "nil complaints" recorded in Mr Pietrobon's personnel file. The file was not in evidence but given what had been investigated before he was dismissed, that advice did not accurately reflect Mr Pietrobon's employment history.
8. Correctly, Mr Wood understood his duty to provide the information of which he was aware to police, given his belief that it was critical to the murder investigation, as he told Mr Marley. Its provision could not be incompatible with any duty which he owed Transport NSW. To the contrary, Transport NSW itself had a duty to disclose the information and could have had no conceivable interest in keeping those records from police. Belatedly it did provide them.

The duty to co-operate

1. Mr Wood also contended that Transport NSW had a duty to co-operate with him in the performance of his duties.
2. I cannot see that what is in issue in this case turns on this implied duty, Transport NSW having exercised its contractual right to direct him not to perform any work, while it pursued the long ongoing investigation into the earlier misconduct allegation.
3. Mr Wood's disclosure was thus not made in the ordinary performance of his duties. Had it been, there could be no question that he was entitled under cl 11 to make that disclosure, without prior notification. Given the circumstances in which it was made, the duty to co-operate does not appear to be relevant to the disclosure.

Section 68O Transport Administration Act

1. In issue was also the proper construction of s 68O, which applies to senior managers. This issue should be dealt with, in case I am incorrect in my conclusion that Mr Wood was not employed as a senior manager.
2. This issue undoubtedly raises difficult questions of statutory construction, s 68O construed as it must be, coherently with both other provisions of the Transport Administration Act and of the Industrial Relations Act 1996.
3. For the following reasons I have concluded that properly construed, the section is not concerned with the contracts of employment which Transport NSW is free under this statutory scheme to enter with its senior executives or senior managers, or with proceedings brought in this Court in relation to their proper construction, breach or enforcement.
4. The section does not affect this Court's jurisdiction to deal with proceedings which raise such issues, or issues concerning Transport NSW's compliance with applicable aspects of the Transport Administration Act or regulatory scheme, when purporting to exercise these contractual rights.

The statutory provision

1. The section provides: 68O Senior executives and managers - industrial or legal proceedings excluded (1) The employment of a Transport Service senior executive or senior manager, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of a Transport Service senior executive or senior manager. (3) Any State industrial instrument (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of Transport Service senior executives or senior managers. This subsection does not prevent the provisions of any such industrial instrument being adopted by reference in the conditions of employment of any such executive or manager. (4) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996. (5) In this section, a reference to the employment of a Transport Service senior executive or senior manager is a reference to - (a) the engagement of, or failure to engage, a person as such an executive or manager, or (b) the assignment or re-assignment of the executive or manager to a role in a band or a classification, or (c) the removal, retirement, termination of employment or other cessation of employment of the executive or manager, or (d) any disciplinary proceedings or action taken against the executive or manager, or (e) the remuneration or other conditions of employment of the executive or manager.
2. The section must be construed in its statutory context, some of which I have already discussed.
3. Part 7A of the Transport Administration Act deals generally in s 68B with all those employed in the Transport Service and in s 68C, with employment in that service, including in Transport NSW, the Secretary exercising the employer functions of Government in relation to those employees. Those employed in the Transport Service are employees of the Crown, but not employed in the public service of the State: s 68B.
4. Section 68E specifies the types of employment available, ongoing, term, temporary, and casual. Section 68F provides for senior executives to be employed in "Public Service senior executive" bands that the Secretary considered appropriate for the role and s 68J with employment of senior managers under a contract of employment.

The parties' cases

1. Mr Wood's case was that s 68O(4) must be construed in light of the limitations in s 68O(1), with the result that it takes those to whom it applies out of the purview of aspects of the industrial relations system. The result is that merits review of employment decisions otherwise available under the Industrial Relations Act 1996 (NSW) are precluded, but this Court is not precluded from dealing with the relief which he seeks.
2. The Secretary contended that s 68O precluded the Court from granting the relief which Mr Wood seeks, including the damages which he claims, given that s 68O(4) precludes the Court from granting "any other relief", in relation to "a matter that is declared by this section not to be an industrial matter".

The proper construction of the section

1. Section 68O(1), it will be remembered, deals with limited aspects of the employment of those to whom it applies. It makes no provision in relation to contracts of employment, unlike s 68O(3). It rather provides: The employment of a Transport Service senior executive or senior manager, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.
2. The extent of the subsection comes from s 68O(5), which also makes no reference to contracts of employment. It provides: In this section, a reference to the employment of a Transport Service senior executive or senior manager is a reference to - (a) the engagement of, or failure to engage, a person as such an executive or manager, or (b) the assignment or re-assignment of the executive or manager to a role in a band or a classification, or (c) the removal, retirement, termination of employment or other cessation of employment of the executive or manager, or (d) any disciplinary proceedings or action taken against the executive or manager, or (e) the remuneration or other conditions of employment of the executive or manager.
3. The effect of s 68O(1) is thus to exclude the provisions of the Industrial Relations Act, which deal with "industrial matters", from applying to senior executives and senior managers, in relation only to the matters specified in s 68O(5). That term is pivotal to much of the jurisdiction of the Industrial Relations Commission.
4. "Industrial matters" is defined in s 6 of the Industrial Relations Act, which provides: 6 Definition of industrial matters (1) General definition in this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. (2) Examples of industrial matters are as follows - (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace, (k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades.

The Judicial Review Claims

1. These alternative claims can be shortly dealt with, depending as they also do on whether Mr Wood was employed as a senior manager and dismissed in accordance with the regulatory dismissal procedure.
2. A decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all" and invalid: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11at [51]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24]. It is not a decision which is merely being attacked on its merits, which turns on a mere disagreement with factual findings, which will not necessarily establish unreasonableness: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
3. Transport NSW's case that not only was the decision to dismiss summarily for wilful and serious misconduct "lucid, coherent and intelligible", it set out the reasons upon which it was based, addressed Ms Harvey's submissions and was correct as a matter of merit, even if that did arise for determination, cannot be accepted.
4. As I have explained, the Regulation required the observance of procedural fairness when disciplinary proceedings were pursued. What must be ensured is practical fairness: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. That was not what Mr Wood received.
5. The result of the course pursued, like in Jarratt, was a failure to comply with a condition of a magnitude which resulted in taking the decision to dismiss Mr Wood summarily for serious and wilful misconduct, outside the jurisdiction conferred on Transport NSW by the Regulation.
6. The evidence also establishes that the process pursued deprived Mr Wood of the real possibility of a successful outcome: Hossain at [30]. Had he been given the opportunity to make representations which he was denied, the only lawful result could have been the conclusion that his disclosure to police could not provide a lawful basis for his summary dismissal. That result was not arrived at, a regulatory precondition to dismissal as the result of disciplinary proceedings, the giving of the procedural fairness I have discussed, not having been given.

Damages

1. It is long settled that breach of an agreement such as this entitled Mr Wood to damages for the actual loss he sustained, including compensation for any wages of which he was deprived by reason of his dismissal: Lucy v The Commonwealth (1923) 33 CLR 229; [1923] HCA 32; per Starke J at 253 and Jarratt at [58]-[59].
2. Mr Wood is thus entitled to damages which flowed from Transport NSW's breach of the agreement, by summarily dismissing him in circumstances which provided no basis for the exercise of that contractual right, thereby repudiating what had been so agreed. A repudiation which Mr Wood did not accept.

The abolition of Mr Wood's position

1. The result of all these conclusions would have been that, at least until his position was recently abolished, Mr Wood remained in his position: Jarratt. This was only revealed belatedly by Mr Marley in final cross examination on the third day of the hearing. He did not disclose this when earlier cross examined, shortly before the position was abolished in July, as I consider he should have, given the question which he was asked. In the circumstances his answer was not as frank as it should have been. Despite this, Transport NSW did not disclose the restructure to Mr Wood, so that proper account could be taken of this development, in these proceedings.
2. It is thus convenient to refer, at this point, to what was described long ago in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69 at 342, by Griffith CJ to be "the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects". That is a concept which continues to have a role to play, today.
3. It is also a standard to which statutory corporations like Transport NSW are expected to adhere: Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 per Mahoney JA at [558]. It must also be adhered to in litigation, where it has become to be known as the "model litigant" obligation: Scott v Handley [1999] FCA 404 at [43]; 58 ALD 373 at 43 per Spender, Finn and Weinberg JJ.
4. In Priest v State of New South Wales [2007] NSWSC 41 Johnson J considered that this obligation was enshrined in s 56 of the Civil Procedure Act 2005 (NSW), which specifies the overriding purpose of that Act and of rules of court, in civil proceedings such as this to be "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": at [34]. That precludes the conduct of litigation by ambush or surprise.
5. It is difficult to see that these obligations have been adhered to by Transport NSW. But still, I am satisfied that the restructure precludes a declaration that Mr Wood still occupies his former position, it no longer existing.

Calculation of damages

1. The evidence does not, however, establish that but for this dismissal, Mr Wood would have been dismissed for unsatisfactory performance, as Transport NSW also submitted. Under cl 15 that would have required the giving of only of 13 weeks' notice.
2. Mr Marley gave no such evidence, understandably, given the long ongoing investigation into other alleged misconduct, in which Mr Wood had not even been interviewed and the foreshadowed disciplinary proceedings having not been initiated. Mr Wood's explanation of his defence of that allegation of misconduct was not challenged. The evidence does not establish that if this investigation had been pursued, it would have resulted in the foreshadowed disciplinary proceedings, let alone his dismissal.
3. What the evidence did establish was that if Mr Wood had received a real opportunity to respond to the allegations which resulted in his summary dismissal, so that he could advance the matters which he relied on in these proceedings, their consideration could not have resulted in a conclusion that Mr Wood's performance, when he made his police disclosure, was unsatisfactory. That is precluded by Transport NSW's own case, that he was not then performing any work.
4. The Court is not obliged to assess damages by reference to "an improbable factual hypothesis": Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 at [117].
5. The applicable principle is "that the mere existence of a contractual right in a party to terminate does not operate automatically to restrict the damages that can be awarded. …The court must have regard to the facts and evaluate the possible exercise of the right in all the relevant circumstances of the case.": Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 [1991] HCA 54 at 93.
6. The evidence does not permit the conclusion that Mr Wood's employment would have, in any event, have been terminated.
7. That Mr Wood sought to mitigate his damage by seeking other employment was established by documents in evidence, about which he was not cross examined, so that Brown v Dunn (1894) 6 R 67 inferences arise to be taken into account. On the evidence he has applied for other work, albeit unsuccessfully.
8. In issue was also whether evidence should be received about workers compensation claims which Mr Wood made after his dismissal, given their claimed relevance to damages.

Orders

1. For the reasons given judgment will thus be entered for Mr Wood.
2. The parties should confer on the final orders to be made, reflecting the conclusions which I have reached, which should be filed within 7 days.
3. Mr Wood presently wishes to be heard on costs. They should also be discussed.
4. If they remain in dispute, Mr Wood should file a short outline as to costs within 7 days. In that event Transport NSW should provide a short reply within 7 days and the parties should also approach my Associate, if they wish to be heard on those submissions.

Amendments 08 October 2021 - Correction of 316(c) to 316(1)(c) in Catchwords; 316(3) to 316(1) para 176; 316(3)(c) to 316(1)(c) para 234; decisionmaker to decision maker paras 102, 103, 292, 366; pf to of para 163 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2021