Zattin v Rail Corporation NSW and Anor [2005] NSWSC 1265 | Case summary

Zattin v Rail Corporation NSW and Anor [2005] NSWSC 1265 | Case summary | Zoe

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(2) The decision of a Board in respect of an appeal is final and is to be given effect to by the Authority against whose decision the appeal was made." 9 There is no statutory avenue of appeal to this Court from a decision of the Board under the TAB Act. Indeed, s.23(2) states that the decision of a Board in respect of an appeal is "final". It was not submitted for Rail Corp that this provision prevented this Court from exercising supervisory jurisdiction with respect to the decision of the Board. Privative clauses are to be construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied: Public Service Association of South Australia v Federated Clerks Union of Australia, South Australian Branch (1991) 173 CLR 132 at 160; Darling Casino Limited v NSW Casino Control Authority (1996-1997) 191 CLR 602 at 629 and following. 10 Ms Ronalds SC referred me to the statement of Rogers J in Ford v Transport Appeal Board (1987) IR 163 at 164, where his Honour said: "It is of course clear that there is no appeal to this Court from the decision of either the Transport Appeal Board or the State Rail Authority of NSW. It is equally clear that the Supreme Court has a longstanding jurisdiction and indeed obligation to exercise supervisory jurisdiction over the acts of administrative and specialist inferior tribunals. In exercising this power the Court will be anxious to ensure that it does not trespass into areas of jurisdiction committed to specialist inferior tribunals; at the same time the Court must be anxious to safeguard the rights of the subject and to ensure that inferior tribunals are kept within the bounds of their jurisdiction and do provide procedural fairness in the exercise of their jurisdiction." 11 This Court may exercise its supervisory jurisdiction and grant prerogative relief under ss.65 and 69 Supreme Court Act 1970 in an appropriate case arising from a decision of the Board: State Rail Authority of NSW v Transport Appeal Board [2004] NSWSC 962; Duhbihur v Transport Appeal Board [2005] NSWSC 811.

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(d) apprehended bias on the part of the Board. 13 Given the issues raised in these proceedings, it is appropriate to state a number of legal principles that have application to the case. 14 A finding of fact may reveal error of law where it appears that the Board has misdirected itself or where there is no evidence to support a finding in relation to an essential element in the proceedings: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6. 15 The Plaintiff did not press an argument that the Board's determination was against the evidence and the weight of the evidence, accepting that such an argument involved an error of fact and not law: Azzopardi at 155-6. The Plaintiff did not advance an argument that the decision of the Board was unreasonable in accordance with the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The test for Wednesbury unreasonableness is stringent, and the decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Wyong Shire Council v MCC Energy Pty Limited [2005] NSWCA 86 at paragraph 79. No argument to such an effect was advanced in this case nor, in my view, was it open. 16 It is clear that, in exercising supervisory jurisdiction, this Court is not undertaking a merits review of the decision of the Board: Wyong Shire Council at paragraph 99. 17 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. 18 A failure on the part of an administrative tribunal to give any or any adequate reasons does not, without more, establish that the decision involved some error, although there may be cases that warrant the inference that the relevant tribunal has failed in some respect to exercise its powers or jurisdiction according to law: Absolon v New South Wales TAFE [1999] NSWCA 311 at paragraph 67; YG v Minister for Community Services [2002] NSWCA 247 at paragraph 37. 19 The failure of a decision maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he or she is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 39. 20 What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion or the decision-making power. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. The ground is not to be confused with an allegation of failing to have regard to a particular piece or pieces of evidence. This is a factual argument. The administrative law grounds of failing to take into account a relevant consideration or taking into account an irrelevant consideration are to be understood in the way described by Mason J in Peko-Wallsend at 39-40. 21 An argument that the Board failed to take into account certain evidence or erred in having regard to other evidence is an argument which contends that the decision was against the evidence or the weight of the evidence; such a matter involves a question of fact and not law: Azzopardi at 155-156. 22 Not every consideration that a decision maker is bound to take into account, but fails to take into account, will justify the court setting aside the impugned decision and ordering that the decision-making power be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Peko-Wallsend at 40. 23 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Peko-Wallsend at 40-41; Ford v Transport Appeal Board at 164. 24 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Peko-Wallsend at 41. 25 Where a claim of apprehended bias is made, the governing principle is that, subject to qualifications relating to waiver or necessity, a decision maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question that the decision maker is required to decide: Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344. That principle has application to an administrative body such as the Board: Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal [2004] NSWCA 291 at paragraphs 22-23. 26 I will refer to a number of these principles in the course of this judgment.

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Factual Background 27 I turn to the factual background and history of the matter. Although the starting point with respect to the decision directly under challenge is the lodging of an application by the Plaintiff on 27 June 2002 for employment with Rail Corp, it is necessary to start a little earlier in time to place these proceedings in context. 28 The Plaintiff had been employed as a Boating Services Officer with the Waterways Authority from about 1998 until 4 October 2001. In the position of Boating Services Officer, he exercised enforcement and regulatory functions. 29 On 4 October 2001, the Plaintiff was dismissed from that employment. He was dismissed because the Chief Executive Officer of the Waterways Authority formed the view that it had been proved that the Plaintiff unlawfully removed sums of money from places of employment in the course of his employment in June 2000 and February 2001. 30 Following the Plaintiff's dismissal from employment with the Waterways Authority, further matters were raised alleging misconduct against him between March and October 2001. This occurred in the context of the Plaintiff bringing proceedings against the Waterways Authority in the Industrial Relations Commission of NSW seeking reinstatement pursuant to s.84 Industrial Relations Act 1996. In November 2001, it was brought to the Plaintiff's attention that there were further allegations involving alleged misconduct in March, May and October 2001 including allegations that he had falsely stated that he had sent an email to an employee. 31 The proceedings for reinstatement commenced before Deputy President Grayson in the Industrial Relations Commission and continued on 13-15 March 2002, 13-15 May 2002 and 8 July 2002, on which day judgment was reserved. The Plaintiff applied on 27 June 2002 for employment with Rail Corp. 32 Deputy President Grayson gave judgment and dismissed the Plaintiff's application on 29 August 2002: Zattin v Waterways Authority of NSW [2002] NSWIRComm 212. I shall return to those reasons shortly. 33 The Plaintiff lodged an application for employment with Rail Corp as a Senior Transit Officer. The document is in evidence (Exhibit A, page 16). The document made no mention of the Plaintiff's employment with the Waterways Authority. It described other employment positions, but asserted that from April 1998 to the present (27 June 2002), the Plaintiff was working as a supervisor/manager with an organisation called Administration and Business Support. 34 When considering the Plaintiff's grounds, I shall return to some arguments advanced concerning action taken by him before lodging this form. At this stage, I note that the form omits any reference to his employment with the Waterways Authority, let alone the fact that he had been dismissed by that Authority. 35 On 7 August 2002, the Plaintiff was interviewed by representatives of Rail Corp for the purpose of determining his fitness and suitability for the position of Senior Transit Officer. The interviewer was Ms Lise Robin to whom later reference will be made. By this stage, the hearing had been completed in the Industrial Relations Commission but Deputy President Grayson had not handed down his decision. 36 The Plaintiff brought along to that interview a curriculum vitae (Exhibit A, page 23). That document made no reference whatsoever to the fact that he had worked with the Waterways Authority, or that he had been dismissed by that body, nor was any reference made to the then part-heard proceedings in the Industrial Relations Commission. The document prepared by the Plaintiff for the interview included the following statement (Exhibit A, page 24): "Objective: To be successful as a Senior Transit Officer with City Rail utilising my previous law enforcement, supervisory and professional and ethical work practices, experiences and knowledge. I seek to achieve my career goals for this position and strive for both employer and employee satisfaction." 37 The document mentioned that the Plaintiff's qualifications included certificates of competency issued in 1994 and 1998 by the Waterways Authority as a Coxswain and as a Marine Engineer Driver, Grade 3. 38 Under the heading "Employment" in the same document was the following statement: " 1998 - Manager, Administration Business Support (Family Business ) Currently managing a family-owned business, accounts, sales, customer service, liaise with potential clients as well as existing clientele, typing, telephone enquiries, computer literacy, staff supervision."

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In the handwritten section is the statement: "Professionalism, follow guidelines, ICAC confidence, use of resources, reporting illegal practices, know able to do job in line [with] guidelines. Referred to previous example. Illegal goods eg. lobsters taken to retirement village. Take 14 then deliver. Temptation to take it home. Diving gear tagged and stored - will not borrow it." 41 In all of this, the Plaintiff did not refer to his employment with the Waterways Authority or his dismissal by that Authority. The Plaintiff's employment with the Waterways Authority was similar to the position for which he was applying, being a regulatory and enforcement position with a New South Wales Government authority. Ethical issues surrounding the Plaintiff were touched upon directly, without the Plaintiff revealing his recent dismissal by the Waterways Authority. I shall return to that issue later in this judgment. 42 The Plaintiff succeeded in this application for appointment as a Senior Transit Officer with Rail Corp. He commenced work in this position on 18 September 2002. Between the time of his interview and the time of commencement of the Plaintiff's employment, Deputy President Grayson handed down his decision on 29 August 2002 (Exhibit A, page 44). Deputy President Grayson made a number of strong findings adverse to the conduct of the Plaintiff as an employee with the Waterways Authority and his credit as a witness in the hearing before the Commission. 43 Deputy President Grayson observed (paragraph 13): "I am bound to say at this point, after careful consideration of the totality of the evidence and the submissions of Mr Daly for the Applicant, and Ms Anderson for the Respondent, that the case against the Applicant is overwhelming and I cannot in good conscience find in the Applicant's favour in one of the numerous allegations he defends." 44 Deputy President Grayson referred, at paragraph 15, to the fact that the Plaintiff had categorically denied the "matters in a way which, on any reasonable view, is difficult to understand given the evidence against him". Deputy President Grayson referred to the version of events proffered by the Plaintiff as being (paragraph 30): "riddled with inconsistency and implausibility and, as with other evidence which emerged in the course of these proceedings, is strongly suggestive of attempts on the Applicant's part to go to unusually elaborate attempts to obscure the truth." 45 The Deputy President said (paragraph 37): "Simply put, the Applicant's evidence again lacks credibility and as Ms Anderson submits, his preparedness to infer that Ms Byrne and/or a previous customer services officer at Nowra are in some way responsible for a failure to account for the money in question, demonstrates an unprincipled willingness to direct blame at others to escape the consequences of his own actions." 46 Deputy President Grayson referred, at paragraphs 46 and 47, to two documents which were produced by the Plaintiff. The Deputy President said (paragraph 47): "On the face of it, the memoranda or rather their contents, afford the Applicant a much needed element of corroboration in respect of the allegation that he unlawfully removed money from the Nowra office on 19 February 2001, and on that basis, form a critical part of his defence to the allegation. The only problem, and one which creates an insuperable hurdle for the Applicant, is that the memoranda in all probability are not authentic documents." 47 In concluding, Deputy President Grayson found (paragraph 54): "In all the circumstances, I am comfortably satisfied that the allegations against the Applicant have been made out and that he misconducted himself in a manner which justified his dismissal from the Respondent's employ. I am not persuaded, notwithstanding the earnest contentions of Mr Daly to this effect, that the Applicant was denied the opportunity at any stage of the investigatory or disciplinary process or at any stage in the proceedings before the Commission, of knowing what was alleged against him or preparing the defence of his choosing." 48 Deputy President Grayson found that the Plaintiff's dismissal was not harsh, unjust or unreasonable and dismissed the application. The Plaintiff did not reveal the findings of the Industrial Relations Commission to Rail Corp and commenced employment on 18 September 2002. 49 By letters dated 9 January 2004 and 2 February 2004, the Plaintiff was advised that Rail Corp was undertaking a disciplinary investigation with respect to him. He was suspended on full pay on 7 January 2004. Following investigative processes over some months about which no complaint was made in these proceedings, the Plaintiff was dismissed on 24 May 2004.

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You have failed to correct the false information at any time after your application for employment was successful or after you commenced employment with RailCorp." 52 The hearing before the Board progressed over three days. Mr Howarth appeared for the Plaintiff. Mr Simon Howard appeared for Rail Corp. A number of witnesses gave evidence before the Board including the Plaintiff. At the conclusion of the hearing of evidence on 10 August 2002, detailed oral submissions were made by Mr Howard and Mr Howarth. The members of the Board comprising the Chairperson and two other members (broadly described as an employer and an employee representative) retired to consider the matter. Later in the day, an ex tempore decision was given. In due course, the ex tempore reasons were supplemented by written reasons given on 24 August 2004. No point has been taken in these proceedings concerning the Board giving oral reasons on 10 August 2004 and written reasons on 24 August 2004. The reasons are broadly similar. 53 The ex tempore decision delivered by the Chairperson on 10 August 2004 included the following findings (transcript, page 33): "The Board believes that on the evidence provided to it that Mr Zattin did indeed provide false information on his application form for employment as a Senior Transit Officer. The Board is not satisfied that the affidavit sworn by Nicole Angela Zattin and untested before the Board has sufficient weight when combined with Mr Zattin's sworn testimony, to establish that Mr Zattin was employed as a manager for Administration Business Support as stated in both his application form and his attached application details. Given at the time of interview Mr Zattin had been dismissed from the Waterways Authority for misconduct, Mr Zattin did not mention in either his written application or subsequent interview and the SRA therefore did not have the opportunity to consider an aspect of Mr Zattin's prior employment history that was particularly relevant to the position, a position of trust, that was being applied for at the SRA, as it was at that time. The position description for the Senior Transit Officer as described by Mr Howarth in his closing submission clearly states in the essential criteria a commitment to ethical practice. The Board believes that during your employment with SRA, you have had several opportunities to correct or validate the information that you had supplied. Opportunities included discussions with your supervisors, managers, Mr Olsen during his inquiries and, indeed, the Board during this hearing. Therefore the Board has disallowed Mr Zattin's appeal". 54 In the written reasons handed down on 24 August 2004 (Exhibit C), the Board adverted to a number of additional features including the fact that the Plaintiff had been served with a summons to produce a number of documents relating to his employment and, in particular, his alleged employment between 1998 and 2002 with what was said to be a private family business. The Board noted that the Plaintiff had failed to produce any documents without explanation. The Board noted that the proceedings had been adjourned from 3 until 9 August 2004, in part to allow the Plaintiff a further opportunity to produce documents. The Board noted that upon resumption on 9 August 2004, a limited number of documents were produced. The Board noted that the Plaintiff had given evidence that he had not been paid by Administration and Business Support for the entire period from April 1998 to August 2002 when he had allegedly worked there. He claimed that he had been working for that entity for between 35 to 50 hours a week, and that all the monies he could have been paid were put back into the company. Thus, the Plaintiff said there were no group certificates for that employment. 55 The Board pointed to a contradiction between the Plaintiff's evidence and a statement made by him in a letter to Mr Olsen, the Rail Corp investigator. The Board noted (Exhibit C, page 4): "Mr Zattin's representative Mr Howarth claimed that the business may have been trading under another name (Ms Zattin's maiden name) at the time Mr Zattin claims he was working there."

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This was a reference to a statement in Ms Zattin's affidavit in which she said she would be in a position: "to provide any other information permitted by Mr Zattin under the relevant privacy legislation to be released in his defence". 56 The Board said (Exhibit C, page 5): "On the evidence presented to it, the Board believes that Mr Zattin did in fact provide false information on his application form for the position of Senior Transit Officer. The Board is not satisfied that the affidavit sworn by Ms Nicolle [sic] Angela Zattin has sufficient weight even when combined with Mr Zattin's sworn testimony to establish that Mr Zattin was employed as a manager for Administration & Business Support from April 1998 until August 2002 as declared in Mr Zattin's application and his application details." 57 Thus, the Board considered the weight to be given to the evidence of both the Plaintiff and Ms Zattin. The Board adverted, in its reasons, to the fact that the Plaintiff had made a limited disclosure to Rail Corp with respect to his dismissal by the Waterways Authority. The Board found (Exhibit C, page 5): "Prior to this investigation Mr Zattin had only seen fit to reveal to Mr Mark Abel that he had been dismissed from his position with the Waterways Authority, however, by his own admission under cross examination Mr Zattin did not declare the reasons for his dismissal to Mr Abel or anyone else in a position of authority at RailCorp." 58 The Board made findings to a similar effect as those made at the end of the oral hearing on 10 August 2004. It will be apparent from the recital of the findings made by the Board that it found that there was a failure by the Plaintiff to make proper disclosure to Rail Corp concerning his employment with the Waterways Authority, his dismissal by it, the reasons for that dismissal and the subsequent litigation in the Industrial Relations Commission. The Board also found that the Plaintiff made false statements in his application and at the interview with respect to his employment. The Board did not accept that the Plaintiff had been employed in a private family business. I shall return to aspects of these findings in dealing with the Plaintiff's grounds.

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69 I turn then to consider the particular complaints with the Absolon test in mind and the test of failing to take into account relevant considerations (to the extent that it has application to the matters raised by the Plaintiff). 70 Ground 2 originally contained seven paragraphs. Paragraphs 3, 4 , 6 and 7 were abandoned by Mr Howarth at the hearing. I shall deal with paragraphs 1 and 2 together. The background to this particular complaint is that there was evidence before the Board that the Plaintiff had made telephone contact with Ms Miriam Cartwright, a Rail Corp employee, in which he had stated his first name only and sought certain advice with respect to the requirements for the completion of the application form for the position of Senior Transit Officer. Ms Cartwright was not called to give evidence before the Board. The Plaintiff gave evidence that he had a conversation with her about whether it was necessary for an applicant to refer to his last three employers, or whether an applicant could select employers and whether an applicant had to provide reasons for leaving employment. The Plaintiff did not assert that he told Ms Cartwright that he had been dismissed from employment in the previous year, let alone the identity of his previous employer or the reasons for his dismissal. 71 The conversation with Ms Cartwright must be understood in its context. The evidence of the Plaintiff was that he had been told that he could, in effect, select the employers who may be of the greatest assistance to him, and that reasons for leaving employment need not be given. 72 Ms Robin gave evidence before the Board. She had conducted the interview with the Plaintiff on 7 August 2002. In response to examination by Mr Howarth, Ms Robin accepted in broad terms that the application form did not expressly require that the applicant's last three employers be identified (transcript, 9 August 2004, page 12). Ms Robin gave further evidence that, had she been shown the letters from the Waterways Authority informing the Plaintiff of his dismissal and the reasons for it during the interview on 7 August 2002, she would have regarded the Plaintiff as being unfit for appointment as a Senior Transit Officer. 73 Against this background, it is necessary to look at paragraphs 1 and 2 of Ground 2. Mr Howarth argued, with some vigour, that this was an important part of the Plaintiff's case before the Board - the fact that Ms Cartwright had given the Plaintiff a broad indication that he did not have to refer to his last three employers in the application form; that he did not have to provide the reasons for leaving employment and that Ms Robin accepted that, on the face of the application form, such an approach was tenable. 74 That evidence was before the Board. It seems to me to be of peripheral significance to the issues which the Board had to decide. This was not a situation where the Plaintiff asserted that he enquired of Ms Cartwright to the effect "even if I had been dismissed for misconduct by a government authority within the last year, can I leave that out?" A general discussion only had taken place between Ms Cartwright and the Plaintiff with the Plaintiff being selective as to the information that he provided during the conversation. 75 Having regard to what appeared in the Plaintiff's application form, his curriculum vitae and what was said and not said at the interview, it appears to me that this issue was not a matter of great significance to the Board's determination. I do not consider that the absence of any reference to this evidence in the Board's reasons supports an inference that the Board has failed to exercise its powers or jurisdiction given by law. 76 The Board has a broad fact finding function. It is not there to recite and resolve every single argument advanced in submissions. I am not satisfied that the Board failed to take these matters into account. Mr Howarth made detailed oral submissions which touched upon these matters on the day when the Board made its decision. In my view, it is understandable that the Board did not refer to these matters in its decision, given the peripheral nature of those issues. Certainly, I am not satisfied that the failure to record those matters constitutes a failure to give reasons as required by law or a failure to have regard to relevant factors in accordance with law. No basis for relief has been demonstrated in accordance with those complaints. 77 Within paragraph 5 of Ground 2, there is a complaint that the Board failed to have regard to certain application forms for other employers in other states which contained different wording to the application form relevant to this application. Mr Howarth tendered those documents before the Board. They were in evidence. He made submissions about them to the Board and to this Court. The Board, no doubt, considered the possible relevance of those matters whilst submissions were being made about them. The Board did not refer to them in its decision. 78 I do not detect any error in that regard. What might be contained in application forms used in other jurisdictions might reasonably be regarded as being of peripheral relevance to the issues in this case. This was not a type of inquiry into the adequacy of Rail Corp's application form nor whether the form might be improved by insertion of more questions. 79 The ultimate issue, in this case, involved the question of whether the Plaintiff had made false statements in the application form, in his curriculum vitae and at his interview, both by way of positive statements about the family business and material omissions in relation to his employment with the Waterways Authority, and his dismissal for misconduct by that Authority. I am not satisfied that there was a failure by the Board in its duty to give reasons nor the obligation to have regard to relevant matters as a result of the Board not adverting to application forms used by other organisations. No basis for relief has been demonstrated in this respect.

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Ground 4 - The Board Applied the Incorrect Test as to the Applicable Standard of Proof 81 Ground 4 alleges that the Board applied the incorrect test as to the applicable standard of proof. Both Mr Howard for Rail Corp and Mr Howarth for the Plaintiff submitted to the Board that the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 were applicable to the Board's functions. There are only two standards of proof known to the common law - beyond reasonable doubt in criminal proceedings and the balance of probabilities in civil proceedings: Briginshaw at 362; B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 at 460; Duhbibur at paragraph 59. The Briginshaw gloss involves the decision maker having regard to the seriousness of the subject matter in deciding whether it is satisfied on the balance of probabilities. Given that there was no debate in the submissions about the proper test, and both representatives reinforced with the Board in oral submissions the appropriate test, I am not satisfied that the Board failed to have regard to the proper standard of proof, being the balance of probabilities subject to the Briginshaw gloss. 82 The real argument being advanced by Mr Howarth is that the Board, in some way, did not apply this test correctly in the findings which were made. Before me, Mr Howarth emphasised the well-known statement of Dixon J in Briginshaw at 362, that "reasonable satisfaction' should not be produced by indirect proofs, indefinite testimony or indirect inferences". Mr Howarth made a similar submission to the Board. 83 This case involved findings concerning the acts and omissions of the Plaintiff and his state of mind at relevant times. There was little dispute about most issues in the case. Rail Corp's case was, to a large extent, documentary. The Plaintiff made the application and prepared a curriculum vitae. He did not refer to various matters in those documents. He asserted that he had been, for a period of time, working in a private family business although he asserted at the hearing before the Board that he received no payment for it. There were no documents to support that family business. There was the affidavit of Ms Zattin, which the Board took into account but gave limited weight. 84 The Plaintiff did not call Ms Zattin to give evidence. Before the Board, Mr Howarth acknowledged that, in those circumstances, less weight may be given to her affidavit (transcript, 120 August 2004, page 15). I am not satisfied that the Board failed to apply the relevant standard of proof in determining the matters which fell for decision by it. 85 It is for the Board to make findings of fact in discharge of its statutory function. It is not for me, exercising supervisory jurisdiction in this Court, to determine whether the matters alleged against the Plaintiff have been proved to the requisite standard. The Board is a specialist tribunal dealing with appeals, in this context, from a dismissal by a transport authority. There is no reason to conclude that the members of the Board did not consider the evidence before them and apply the appropriate standard of proof in the discharge of the Board's functions. 86 I am not satisfied that any error has been demonstrated with respect to Ground 4 to attract the grant of relief sought by the Plaintiff.

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Ground 5 - Denial of Natural Justice 87 Initially, Ground 5 contained two paragraphs, but one paragraph was abandoned by the Plaintiff. The remaining paragraph contains an allegation that the Board denied the Plaintiff natural justice in the proceedings. 88 The matter relied on, in this respect, is that the Board declined to issue a summons for the attendance of Ms Fran McPherson, a senior Rail Corp manager, to give evidence at the hearing. Whether a summons for attendance of a witness should issue was a matter lying within the discretion of the Board: s.18 TAB Act. Early on the first day of the hearing before the Board (3 August 2004), Mr Howarth applied that Ms McPherson should be called as a witness. He acknowledged that there had been no prior request for this to occur. 89 It was said that Ms McPherson might be in a position to give relevant evidence about what was known within Rail Corp about the Plaintiff's dismissal and the reasons for it. There was some material before the Board in the form of a note dated 2 March 2004 (Exhibit A, page 94) prepared by Mr Olsen, the workplace conduct officer, outlining the extent of Ms McPherson's recollection of what she had heard about the Plaintiff. The note said: "Ms McPherson recalls the issue being raised some time ago, however she was unable to recall who the person was who raised the issue or whether it was at a meeting or otherwise. She could not recall a particular staff member's name being raised, but merely that a current Transit Officer had been previously dismissed from Waterways prior to commencing with StateRail. Ms McPherson recalls stating that StateRail does not operate on anecdotal information, rumours or innuendoes but only on concrete information. Sometime later the document from the Industrial Relations Commission was produced. Ms McPherson had the document validated prior to the investigation being commenced." 90 On 3 August 2004, the Chairperson gave reasons for the Board's conclusion that Ms McPherson's evidence would not assist in its deliberations (transcript, 3 August 2004, page 5): "CHAIRPERSON: Thank you, Mr Howard. The Board's had a chance to have some deliberation on the earlier submissions and the Board feels that it would not assist in its deliberations in this case to have Ms McPherson subpoenaed to give evidence and the other two witnesses, we feel that if they are available and you wish to call them, you may do so. However, the key to this is what assists the Board in its deliberations and we feel that we have the information that we need to determine this case before us or amongst those people who have already been called as witnesses. The timing issue is also one that is unfortunate. We have made sure that all the documentation has gone to the right parties at the right time. It is unfortunate that Mr Zattin has changed his representative at the very last minute, however, the process is one that is well defined; we have the documentation in front of us, we're satisfied that the documentation got to the parties at the correct time and we intend to move ahead with the proceedings, Mr Howard." 91 I do not consider that the refusal to issue a summons for the attendance of Ms McPherson demonstrates a denial of procedural fairness. Indeed, I do not detect any error in that decision. It was a decision that lay within the discretion of the Board. The decision was made at the commencement of the hearing and there it appears the matter rested. I am not satisfied that any basis for relief is demonstrated by reference to paragraph 1 of Ground 5.

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Ground 6 - Apprehended Bias 92 Ground 6 alleges that the members of the Board demonstrated apprehended bias towards the Plaintiff. I referred earlier to the legal test of apprehended bias described in Ebner which is applicable to a Board of this type. The nature, function and composition of the Board must be taken into account in considering a claim of apprehended bias: Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal at paragraph 23. 93 I note that, at no time during the hearing before the Board, was any application made that the Board, or any member of it, should disqualify himself on the grounds of apprehended bias. Several matters are raised in support of the claim of apprehended bias. There is some overlap with matters to which I have already referred. 94 In approaching the apprehended bias claim, I bear in mind that it is appropriate to look at matters on a cumulative basis, as well as individually: Re Katherine [2004] NSWSC 899 at paragraph 48. 95 The first matter (paragraph 1 of Ground 6) is the refusal by the Board to allow the Plaintiff to call Ms McPherson as a witness. I am not satisfied that the refusal by the Board to issue a summons for Ms McPherson to attend is evidence of apprehended bias. As outlined above, the Board exercised a statutory discretion and concluded that Ms McPherson ought not be summonsed. The particular complaint about the refusal to issue the summons to Ms McPherson does not, in my view, give rise to a grant of relief by reference to apprehended bias or otherwise. 96 The second matter (paragraph 2 of Ground 6) relied upon is that the Chairperson formed a negative view of the Plaintiff for his failure to produce documents. The Board made findings adverse to the Plaintiff by reason of his failure to produce documents. The Chairperson raised with Mr Howarth the adequacy of the Plaintiff's production of documents during the hearing on 3 and 9 August 2004. The summons to the Plaintiff constituted a legal order requiring him to produce documents. The fact that the Chairperson returned to this issue, from time to time, during the hearing is not, in my view, an indicator of apprehended bias. 97 A reasonable bystander would have formed the view that the Chairperson was seeking to ascertain whether the Plaintiff was complying with his legal obligation. I do not consider that a reasonable bystander would regard that as being indicative of bias. I do not consider that this matter, taken alone, entitles the Plaintiff to relief. 98 The third matter (paragraph 4 of Ground 6) alleged that the Chairperson drew a negative inference from the non-attendance of Ms Nicole Zattin, who had not been summonsed by the Board. Reliance is placed upon the statement in the decision of the Board to which I have already referred. Mr Howarth acknowledged, in submissions to the Board, that the Board was entitled to attach less weight to the affidavit of Ms Zattin because she was not called and that it was open to the Plaintiff to call her. No impediment was placed in the Plaintiff's way in that respect. 99 Mr Howard, for Rail Corp, made strong submissions before the Board which were critical of the affidavit of Ms Zattin and invited the Board to draw an inference in accordance with Jones v Dunkel (1959) 101 CLR 298 arising from the failure of the Plaintiff to call her. It could not be said that, by the time Mr Howarth made his submissions, he and the Plaintiff were unaware of the fact that a very live issue in the case was the Plaintiff's failure to call Ms Zattin and the question of what weight was to be given to her affidavit. 100 In those circumstances, even viewed in conjunction with the evidence of the Plaintiff together with such documents as he had actually produced in accordance with his obligation under the summons, the Board heard submissions from both parties as to the weight to be given to Ms Zattin's affidavit. The Board made findings which were not as strongly adverse to the Plaintiff as those invited by Rail Corp, but which were clearly critical of the Plaintiff and indeed Ms Zattin's affidavit. 101 I am not satisfied that such an approach could cause a reasonable bystander to apprehend bias on the part of the Board. The Board was determining a live issue in the proceedings. The Plaintiff understood the strength of the argument being put against him on this issue. Mr Howarth sought to meet the argument. The Board decided the matter. That lay within the Board's jurisdiction. I am not satisfied that this matter constitutes a basis for the grant of relief by this Court. 102 The fourth matter (paragraphs 5(a) and (c) of Ground 6) refers to the evidence of the Plaintiff about his conversation with Ms Cartwright and the evidence of Ms Robin concerning the completion of the application form. I am not satisfied, for reasons already given, that any error is demonstrated in the Board's omission to refer to this matter in the decision, nor am I satisfied that those matters would cause a reasonable bystander to apprehend bias on the part of the Board. 103 The fifth matter (paragraph 5(d) of Ground 6) alleges apprehended bias on the part of the Board by finding that (Exhibit C, page 6): "RailCorp did not have an opportunity to consider an aspect of his prior employment history." 104 In support of this, Mr Howarth relied upon the two certificates issued by the Waterways Authority to the Plaintiff which were referred to in his curriculum vitae (see paragraph 37 above). It was said that these certificates provided an opportunity for Rail Corp, in some way, to consider the Plaintiff's employment history. With the greatest of respect, that submission lacks merit. It is fanciful to suggest that a potential employer would investigate the grant of two certificates referred to in a list of qualifications, together with other certificates such as a first aid certificate, as a type of pointer to prior employment. I do not consider that a reasonable bystander, being aware of these matters, would apprehend bias on the part of the Board. 105 The sixth matter (paragraph 7 of Ground 6) raises as a particular of apprehended bias the Board's alleged failure to have regard to legal principles arising from the decision of the Industrial Relations Commission in Court Session in Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151. Hollingsworth was referred to in submissions to the Board. The Board did not refer to Hollingsworth in its reasons. 106 Mr Howarth submits that Hollingsworth is authority for the proposition that there was no obligation on the Plaintiff's part to disclose to Rail Corp that he had worked with the Waterways Authority, nor that he had been dismissed by it nor that the Industrial Relations Commission had made the findings which it did, unless a direct question was posed to the Plaintiff in that regard. 107 During submissions, Mr Howarth indicated in answer to a question from me that a direct question such as: "Have you ever been dismissed from employment?" would be the necessary trigger to require such disclosure. He submitted that there was no express or implied obligation on the part of the Plaintiff to disclose his employment with the Waterways Authority nor his dismissal by that body. Mr Howarth submitted that, although the Plaintiff had at the interview on 7 August 2002 been asked questions with respect to ethical practice, the context did not call for a revelation of matters which had been found against him leading to his dismissal. 108 Ms Ronalds SC submits that application of the Hollingsworth principles to this case reveals no error on the part of the Board. 109 Hollingsworth involved an application to join the New South Wales Police Service by a young woman who had a history, several years before, of working as a prostitute and a stripper, including activities with police officers in that context. She failed to disclose those matters in her application for employment. This background later came to the attention of the New South Wales Police Service and Ms Hollingsworth was dismissed. 110 The Full Bench of the Industrial Relations Commission in Court Session came to consider the question. The majority of the Full Bench (Wright and Hungerford JJ) set out, at 192 - 193, a number of principles concerning the duty of an employee to disclose prior wrong doing to a potential employer: "(a) [Commissioner Connor's] finding as to the appellant's duty of disclosure about her past conduct and behaviour by reliance on Bell v Lever Brothers Ltd [1932] AC 161 was correct.

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(f) The appellant did not have any obligation to be frank about matters which she believed might disqualify her from appointment other than to honestly answer questions put to her." 111 Mr Howarth submits that Hollingsworth supports the conclusion that there was no obligation on the part of the Plaintiff to disclose to Rail Corp his dismissal by the Waterways Authority, nor his employment by that body, and that the Board has erred in law in finding against him on that basis. 112 Mr Howarth contends that such an approach by the Board supports a finding of reasonable apprehension of bias. With respect, this confuses the real argument advanced by the Plaintiff, which is that error of law is revealed. 113 Did the Board err in law in this respect? It is necessary to keep in mind the nature of the complaint against the Plaintiff. It was alleged that the Plaintiff made a false statement concerning his past employment and failed to reveal the true facts to Rail Corp thereafter. The Board found that complaint established. The false statement involved a combination of what the Plaintiff disclosed (that he had worked for a family business between 1998 and 2002) and what he did not disclose (that he worked for the Waterways Authority between 1998 and 2001 and had been dismissed by it in 2001 for misconduct). 114 Ms Ronalds SC submits that Hollingsworth is markedly different from the present case. Here, a decision was made by the Waterways Authority to terminate the Plaintiff's employment for misconduct less than 12 months before he applied for employment with Rail Corp. His previous employment had been with a New South Wales entity involving certain regulatory activities. The Plaintiff was interviewed shortly before the Industrial Relations Commission decision was handed down on 29 August 2002. The Plaintiff commenced employment with Rail Corp after 29 August 2002. Strong findings were made by Deputy President Grayson with respect to the Plaintiff's wrong doing whilst employed with the Waterways Authority and his lack of credit as a witness at the hearing in 2002. Those matters clearly impugned the ethical standards of the Plaintiff. The maintenance of ethical standards lay at the heart of the Plaintiff's desired employment with Rail Corp. 115 Ms Ronalds SC submits that, in reality, the provision of the application form, the curriculum vitae and responses given by the Plaintiff at interview involved a conscious decision by the Plaintiff to disguise the true facts. The Plaintiff had completed that part of the application form as to "work experience to date" and did not list the Waterways Authority (Exhibit A, page 17). He provided a comprehensive employment history in his curriculum vitae which did not list his employment with the Waterways Authority (Exhibit A, page 25). The similarities between the duties and functions of a Boating Services Officer with the Waterways Authority and a Senior Transit Officer with Rail Corp were such that they were of central relevance to the Plaintiff's application. The Plaintiff omitted entirely any reference to his employment with the Waterways Authority. He did not reveal the information at interview. Despite being questioned specifically about ethical practice, he did not reveal his dismissal or the reasons for it. The Plaintiff did not disclose, in his telephone conversation with Ms Cartwright, his full name nor the fact that he had been dismissed from previous employment for unlawfully taking money. 116 Ms Ronalds SC submitted that the application form required full disclosure and that the Plaintiff deliberately failed to comply with that obligation. It can only be inferred that the Plaintiff understood that disclosure would mean he would not be considered as a fit and proper person for appointment. 117 I do not accept Mr Howarth's argument that the only question that could have triggered an obligation to disclose the Plaintiff's prior wrong doing was a direct question to the effect: "Have you ever been dismissed from employment?" 118 In my view, the principles in Hollingsworth apply to this case. No error of law is revealed in the findings of the Board. The Board did not refer to Hollingsworth. To demonstrate that the Board had disregarded Hollingsworth would involve a finding that the Board's findings were inconsistent with the Hollingsworth principles. In my view, they are not. 119 It is important to keep in mind that a principal matter alleged against the Plaintiff was that he provided false information to Rail Corp. In determining whether a false statement was made, it is appropriate to examine what was said and was not said by the Plaintiff. In this case, the Board found that a false statement was made with respect to the Plaintiff being employed by a family business from 1998 to 2001. It was open to the Board to make that finding, which was a question of fact. 120 A related false statement was the omission by the Plaintiff to state that he had worked for the Waterways Authority in that period and had been dismissed for misconduct. 121 In R v Boskowitz [1999] NSWCCA 437, Smart AJ (Wood CJ at CL and Hidden J agreeing) delivered judgment of the Court of Criminal Appeal on an appeal against conviction for an offence of knowingly making false statements with intent to obtain financial advantage contrary to s.178BB Crimes Act 1900. The Crown alleged that the Appellant had made statements which created a false impression concerning the financial position of a corporate group of which the Appellant was a senior executive and director. Smart AJ said at paragraphs 123-125: "Although she [the Appellant] had knowledge of the $220 million transaction and what it involved and of the misleading impression created by the accounts of LGL, the appellant said nothing about the promissory note and it being pledged to Elfic. She knew that there was no available cash. LGL and the appellant were intent on obtaining and maintaining credit facilities. The accounts of the various companies reveal that these were much needed. The false statements were significant and relevant to obtaining and maintaining credit facilities. See Maslen v Shaw (1995) 79 A Crim R 199 at 202 and Kylsant [1932] 1 KB442. In the latter case the Court said: 'The falsehood in this case consisted in putting before intended investors, as material on which they could exercise their judgment as to the position of the company figures which apparently disclosed the existing position but in fact hid it. In other words, the prospectus implied that the company was in a sound financial position and that the prudent investor could safely invest…'

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I follow this approach." 122 In the context of a claim for false and misleading conduct under the Trade Practices Act 1974 (Cth), Black CJ said in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32: "To speak of 'mere silence' or of a duty of disclosure can divert attention from that primary question. Although 'mere silence' is a convenient way of describing some fact situations, there is in truth no such thing as 'mere silence' because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed." 123 Concealment of a fact may cause the true representation of another fact to be misleading, and may thus become a substantive misrepresentation: Abigroup v Peninsula [2001] NSWSC 752 at paragraph 89. 124 In Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679, Handley JA (Meagher and Powell JJA agreeing) said at 701 (paragraph 115): "A so-called misrepresentation by omission or silence cannot occur in a vacuum. There can be no misrepresentation without communication, and it is misleading to speak of a misrepresentation by omission or silence. What is meant is that the omission or silence as to some matter makes what is actually stated a misrepresentation. The representation does not 're-present' the truth because it is incomplete, and as a result is a misrepresentation. The incomplete statement is the misrepresentation, not the silence or omission as such. There was 'a statement' in this case and that is sufficient for this decision." 125 In my opinion, these principles have application to this case. The Board was entitled to look at the whole of the circumstances - the application form, the curriculum vitae, what the Plaintiff said and did not say at the interview, and indeed what he did not say thereafter. The Plaintiff conceded before the Board, as Mr Howarth acknowledged before me, that it was in the Plaintiff's mind that it was not in his best interests to reveal to Rail Corp that he had been employed by the Waterways Authority and had been dismissed by it less than a year before. The Plaintiff understood that it was to his benefit to withhold that material from Rail Corp. 126 The argument advanced by Mr Howarth is that the Plaintiff was within his rights to do so, whatever impression was given to Rail Corp as a result. In my view, the principles in Hollingsworth apply to the facts of this case so as to require disclosure by the Plaintiff of his employment and dismissal by the Waterways Authority, as part of a truthful and complete response by him. There was a basis in law for the Board to make the findings which it did. There was evidence before the Board to support a finding that the Plaintiff made false statements to Rail Corp. I am not satisfied that any error of law is demonstrated in that respect. 127 I have now referred to each of the matters raised in support of the complaint of apprehended bias. In my view, taking these matters cumulatively, the Plaintiff has not established a reasonable apprehension of bias on the part of the Board.

Zattin v Rail Corporation NSW and Anor

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Judgment (51 paragraphs)

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Cases Cited (22)

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