FEDERAL COURT OF AUSTRALIA Rudakova v Congregation of Religious Sisters of Charity of Australia trading as St Vincent's Private Hospital, Sydney [2020] FCA 1222 Appeal from: Rudakova v The Congregation of Religious Sisters of Charity of Australia trading as St Vincent's Private Hospital, Sydney [2019] FCCA 3717 File number: NSD 102 of 2020 Judge: FLICK J Date of judgment: 26 August 2020 Catchwords: INDUSTRIAL LAW – exercise of a workplace right to make a complaint against employer – employee dismissed – separateness of decision-making processes to investigate complaint and reasons for termination INDUSTRIAL LAW – adverse action – reason for acting not a prohibited reason – employer discharges reverse onus Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 360, 361 Federal Court of Australia Act 1976 (Cth) ss 27, 37AF Cases cited: Berkeley Challenge Pty Ltd v United Voice [2020] FCAFC 113 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, (2001) 117 FCR 424 Commissioner of Taxation v Scone Race Club Ltd [2019] FCAFC 225, (2019) 374 ALR 189 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122 Coulton v Holcombe (1986) 162 CLR 1 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [2020] NSWCA 160 James Cook University v Ridd [2020] FCAFC 123 Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019] FCAFC 2 Psychology Board of Australia v Mair [2010] VSC 628 Robinson Helicopter Company Inc v McDermott [2016] HCA 22, (2016) 331 ALR 550 Scone Race Club Limited v Commissioner of Taxation [2020] HCATrans 95 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 Whittaker v Child Support Registrar [2010] FCAFC 112 Date of hearing: 29 July 2020 Date of last submissions: 4 August 2020 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 72 Counsel for the Appellant: Mr M Rollinson Counsel for the Respondent: Ms E Raper SC with Mr A Flecknoe-Brown Solicitor for the Respondent: MinterEllison ORDERS NSD 102 of 2020 BETWEEN: GRUBER MARIANNA RUDAKOVA Appellant AND: THE CONGREGATION OF RELIGIOUS SISTERS OF CHARITY OF AUSTRALIA TRADING AS ST VINCENT'S PRIVATE HOSPITAL, SYDNEY Respondent JUDGE: FLICK J DATE OF ORDER: 26 AUGUST 2020 BY CONSENT, THE COURT ORDERS THAT: 1. Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth), there be non-publication of the names of any patients referred to in oral submissions or in any written material filed in this proceeding. 2. A notation be placed on the court file, including the electronic court file, that in the event that a third party seeks access to the court file, the parties be given the opportunity to make submissions regarding the confidentiality of any patient names prior to any access being granted. AND THE COURT ORDERS THAT: 3. The appeal is dismissed. 4. Any application for an order for costs is to be made within seven (7) days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 The Appellant in the present proceeding, Dr Gruber Marianna Rudakova, commenced employment with St Vincent's Private Hospital (the "Hospital") in Sydney in January 2017. She was employed for a fixed one year period as a medical intern. On 21 July 2017, the Hospital terminated her employment. 2 Dr Rudakova sought relief in the Federal Circuit Court of Australia. She claimed that her termination contravened s 340 of the Fair Work Act 2009 (Cth) (the "Fair Work Act"). In December 2019, the Federal Circuit Court dismissed her application: Rudakova v The Congregation of Religious Sisters of Charity of Australia Trading as St Vincent's Private Hospital, Sydney [2019] FCCA 3717. 3 Dr Rudakova now appeals to this Court. Both before the Federal Circuit Court and this Court Dr Rudakova was represented by Counsel. 4 The appeal is to be dismissed. Her application to adduce further evidence is rejected. The termination decision 5 As explained in Dr Rudakova's Outline of Submissions, the termination of her services was "the culmination of a process that involved two consecutive and overlapping procedures". One procedure focussed on complaints that had been made by Dr Rudakova and the investigation of her concerns as to (inter alia) "bullying behaviour by her medical superiors". These complaints made by Dr Rudakova were referred to as her "Grievance". The other procedure concerned two complaints made about Dr Rudakova's own conduct. 6 In June 2017, Dr Rudakova was called on to show cause as to why she should not be dismissed on account of these two complaints. In very summary form: one complaint was made by a doctor, previously identified as "Dr B" but later identified as a private psychiatrist (Dr Bokey), that Dr Rudakova had (inter alia) inappropriately "inspired" a female patient "with mild intellectual impairment" who had been adopted in her infancy to seek knowledge as to her birth parents; and the second complaint was made by another doctor, previously identified as "Dr A" but later identified as the Junior Medical Officer representative (Dr Auyeung) and the person "who provided support and guidance to other [Junior Medical Officers] if issues arose". Dr Auyeung complained that Dr Rudakova persisted in discussing "complaints" she had about other staff and the failure "to teach her things and support her at the Hospital". The decision to terminate the services of Dr Rudakova was made by the then Chief Executive Officer of the Hospital, Mr Robert Cusack. The letter of termination signed by Mr Cusack extensively canvasses the factual background and detail of these complaints. The letter concludes: In consideration of matters pertaining to the allegations as set out above, SVPHS has found the allegations to be substantiated and determined that you have: 1. caused a risk to the health and safety of the patient, who has a diagnosed mental illness, as she became angry and stressed after the discussion, in circumstances where there were current and serious concerns regarding her mental and personal wellbeing (Allegation/Complaint 1); 2. engaged in communications with a patient outside of acceptable patient/carer boundaries (Allegation/Complaint 1); 3. breached the expectations set out in (Allegation/Complaint 1): a. the Medical Board of Australia's Code of Conduct in respect of professional boundaries; b. your employment contract with SVPHS requiring to comply with policies; c. the SVHA Code of Conduct, specifically in relation to Respect, Integrity, Reflective Practice, Safety, Confidentiality and Responsibilities; 4. failed to comply with a lawful and reasonable direction provided to you to maintain confidentiality of the grievance (Allegation/Complaint 2); 5. failed to comply with a lawful and reasonable direction provided to you by the DPET on 30 May 2017, as stated in your Prevocational Trainee Action Plan, which was provided to you on 25 May 2017 by the JMO Supervisor not to contact employees outside of work hours (Allegation/Complaint 2); 6. engaged in inappropriate communications with a SVPHS employee (Allegation/Complaint 2); 7. breached the expectations set out in (Allegation/Complaint 2): a. the SVHA Code of Conduct, specifically in relation to Integrity, Respect, Reflective Practice, Safety, Confidentiality and Responsibilities; and b. your employment agreement. The Federal Circuit Court, again in very summary form, rejected the argument advanced on behalf of Dr Rudakova that a reason for the making of the decision to terminate her services was the fact that Dr Rudakova had exercised her "workplace right" to make a complaint. In doing so, the Federal Circuit Court accepted the evidence of Mr Cusack that the letter of termination set forth the reasons for his decision and, more specifically, Mr Cusack's evidence that the exercise of the workplace right and the complaints made by Dr Rudakova had played no part in his decision-making processes: [2019] FCCA 3717 at [297]-[298]. The Grounds of Appeal 7 In challenging the decision of the primary Judge, the Notice of Appeal as filed contains 37 Grounds of Appeal. But in her written Outline of Submissions Dr Rudakova stated she was abandoning Grounds 12, 13, 14, 15, 24, 25, 26, 29, 30, 34, 35, 36 and 37. 8 Consistent with the case run before the Federal Circuit Court, Dr Rudakova's Outline of Submissions maintained that "one of the substantial or operative reasons for [the decision to terminate her employment] was [her] exercise of a workplace right". Notwithstanding the myriad of remaining Grounds of Appeal, Counsel on her behalf advanced two principal lines of argument, namely that: this Court, on appeal, should depart from the finding of fact made by the primary Judge that Dr Rudakova's exercise of her workplace right to make a complaint against the Hospital played no part in Mr Cusack's decision to terminate her services, and should instead make an entirely different finding that the making of a complaint formed at least part of the reasoning for the termination decision; and there was reason to make such a different finding by reason of what Counsel characterised as a "patent objective lack of seriousness" of the two complaints made against Dr Rudakova – the "patent objective lack of seriousness" (if established) presumably being the foundation for an inference that there must have been some other reason for the termination decision, on Dr Rudakova's case that other reason being the complaints she had made against the Hospital. As expressed in her written Outline of Submissions, the contention is: … that the patent objective lack of seriousness of the Complaints made against her – accepting for the present purpose that the Complaints have been upheld and it is not open in these proceedings to contend that they should not have been upheld - as matters to be treated as grounds to dismiss her from employment, was such as to cast doubt on whether SVPH's genuine, or sole genuine, reason for dismissing her was that the Complaints had been upheld. Contraventions of the Fair Work Act 9 Dr Rudakova's claim before the Federal Circuit Court was that her dismissal contravened s 340 of the Fair Work Act. That section provides as follows: Division 3 – Workplace rights 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. (emphasis in original). The "workplace right" relied upon by Dr Rudakova was the right to make a complaint or to raise what were referred to as "grievances", as provided for in s 341(1)(c) of the Fair Work Act. 10 The term "because", as used in s 340 (and other provisions of the Fair Work Act) invites an inquiry as to the reasons why "adverse action" was taken. The section is contravened if it can be said that the exercise of the workplace right "comprised 'a substantial and operative' reason, or reasons including the reason, for the employer's action": General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 242 per Mason J (as his Honour then was) (Stephen and Jacobs JJ agreeing); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [104], (2012) 248 CLR 500 at 535 per Gummow and Hayne JJ ("Barclay"). 11 Sections 360 and 361 of the Fair Work Act further address those circumstances where it is necessary to determine the "reason" why particular action was taken, such as s 340. Section 360 provides as follows: Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. And s 361 imposes what has been described as a "reverse onus". That section provides as follows: Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 12 Whether a respondent has discharged the "reverse onus of proof" is a question to be resolved at the end of a proceeding and upon consideration of the entirety of the evidence adduced: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 at 279 ("Anglo Coal"). Jessup J there observed: [27] In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question. The reasons & findings of the primary Judge 13 These were the provisions of the Fair Work Act that Dr Rudakova called in aid in arguing her case before the Federal Circuit Court. 14 Before that Court she contended that her case was that the Hospital had taken action against her – namely the decision to terminate her services – "because" she had exercised a workplace right: cf. Barclay [2012] HCA, (2012) 248 CLR. "Included" within the reasons for that decision (s 360), Dr Rudakova contended, was the fact that she had made a complaint and that the onus was thereby imposed upon the Hospital (s 361) to establish that it had not done so (Anglo Coal [2015] FCAFC, (2015) 238 FCR). 15 The primary Judge was obviously well aware of these (and other relevant) principles. In summarising the "Legal Principles" to be applied ([2019] FCCA 3717 at [88] to [105]), the primary Judge's reasons included the following: [100] … the central question for the court is "why was the adverse action taken?" (Barclay at [5] and [44] per French CJ and Crennan J). The actual operative reasons of the decision-maker (in this case Mr Cusack) at the time of the adverse action (the termination of Dr Rudakova's employment) are the focus of the inquiry (see Barclay at [101] and [127] per Gummow and Hayne JJ and at [140] and [146] per Heydon J and [Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243] at [7] and [19] per French CJ and Kiefel J and at [85] per Gageler J). As French CJ and Kiefel J pointed out in BHP Coal at [7], "the enquiry involves a search for the reasoning actually employed by the [decision maker]" (and see Barclay at [146]). The court is concerned to determine "the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reasons had subconsciously influenced the decision-maker. Nor should such an inquiry be made" (see State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32] describing the principles that emerge from Barclay and BHP Coal). This requires an inquiry into the mental processes of the decision-maker. No challenge is made on appeal to this exposition of the "Legal Principles". 16 In focussing attention upon the reason of the decision-maker (Mr Cusack) for terminating Dr Rudakova's employment, the reasons and findings of the primary Judge go on to record the advice being given to Mr Cusack by the Hospital's then HR Manager (Ms Taoro) in respect to the "grievances" being raised by Dr Rudakova in the complaints she had made and relevantly state: [159] Mr Cusack acknowledged that he was aware of the grievance. His evidence was that he did not take it into account in deciding to terminate Dr Rudakova's employment as it was not relevant to the reasons for the dismissal and also that he had disregarded it in accordance with Ms Taoro's advice in the meeting of 10 July 2017. His evidence in this respect is considered further below. … [172] Mr Cusack's evidence is that he did not take Dr Rudakova's criticism of the investigation of her grievance into account in deciding to terminate her employment, because it related to entirely different issues and was not relevant to his decision. He maintained this evidence in cross-examination. He also referred to following Ms Taoro's advice not to take into account any complaints Dr Rudakova had made in relation to her employment, but to limit his consideration to the allegations in the show cause letter and the information sent to him by HR. … [215] Ms Taoro attested in cross-examination that she wanted to distinguish Dr Rudakova's allegation about bullying (the grievance) and to educate Mr Cusack that his decision should not be influenced by Dr Rudakova's workplace right to make the original bullying complaint. [216] Mr Cusack's evidence was that he understood the guidance Ms Taoro had provided to him and that he made his decision to terminate Dr Rudakova's employment consistent with this guidance. In cross-examination he confirmed that he acted in accordance with this advice. … 17 The primary Judge went on to extract the termination letter in its entirety and set out as follows part of Mr Cusack's evidence: Mr Cusack's Evidence about his Reasons [230] In his affidavit evidence Mr Cusack stated: I decided to terminate Dr Rudakova's employment for the reasons set out in the termination letter [of 27 July 2017]. In particular: a. I was very concerned about her conduct in relation to the [Dr B] Complaint, as her failure to follow instructions and observe appropriate professional boundaries presented a serious clinical risk to patients and their care, particularly for vulnerable patients and may have resulted in a disastrous outcome for the patient and her family. Because of this risk, I took the view that it was not possible for Dr Rudakova to continue to be employed at the Hospital; b. Dr Rudakova's conduct in relation to the Confidentiality [Dr A] Complaint was, in my view, not as serious as the [Dr B] Complaint, however, it showed a pattern of behaviour by Dr Rudakova where she failed to follow instructions, which, again, is critical in a clinical setting; and c. Following my conversation with Associate Professor Scott, I was very concerned that Dr Rudakova had previously been counselled about her behaviour and it had not been improved and on each occasion, these complaints had been raised with Dr Rudakova, but she continued to overstep professional boundaries. The primary Judge then set out a summary of some of the evidence of Dr Rudakova, including the "grievance" she had previously expressed and continued: [232] Mr Cusack's evidence was that he did not take into account any of these matters in his decision to terminate Dr Rudakova's employment because he was either not aware of such matters (as was the case in relation to the alleged grievance of 30 April 2017) or because those matters related to entirely different issues and were not relevant to his decision. The primary Judge concluded: [296] On all the evidence, I am satisfied that the Hospital has established on the balance of probabilities that the fact that Dr Rudakova had raised her grievance played no operative part in the mind of Mr Cusack when he terminated her employment. Rather, I accept that Mr Cusack's considered view was that Dr Rudakova had engaged in conduct that amounted to serious misconduct and, as explained in the termination letter and in his direct evidence, that this was the reason he terminated her employment. [297] Dr Rudakova was a first year medical intern who was still on probation at the time her employment was terminated. Her conduct, within a very short period of the start of her internship, had been found by her superiors to reveal performance difficulties, to have placed a patient at clinical risk and to involve overstepping appropriate professional boundaries. This may well have raised an issue as to whether Dr Rudakova was either incapable, due to lack of insight, or unwilling, to follow directions, to accept feedback or to learn from her mistakes, as counsel for the Hospital suggested. Whether or not that is so, I accept Mr Cusack's direct evidence in relation to his reasons for terminating the employment of Dr Rudakova. I am satisfied that it has been established that Dr Rudakova's grievance was not an operative reason for Mr Cusack's decision on behalf of the Hospital to take adverse action against her. [298] The only claim in these proceedings is a claim of a contravention of the general protections provisions of the Act. The evidence before the court is such that I am comfortably satisfied by the Hospital that the termination of Dr Rudakova's employment was not for a prohibited reason and that the substantive and operative reasons of the decision-maker did not include the fact of the Applicant exercising a workplace right in making a complaint in relation to her employment. [299] It has not been established that the Hospital contravened s.340 of the Act. Hence it is unnecessary to determine whether, had there been a contravention, Dr Rudakova would have been entitled to the relief sought. 18 These extracts from the reason of the primary Judge, it should be noted, do a considerable disservice to the extensive analysis of the evidence and the detailed findings that were made. But the extracts sufficiently disclose the careful attention being given to: whether the exercise by Dr Rudakova of her workplace right in making a complaint played any part in the decision-making process of Mr Cusack in deciding to terminate her services; and the reasoning of Mr Cusack. The formidable task confronting the Appellant 19 In inviting this Court to make a finding of fact as to the reasons relied upon by Mr Cusack in deciding to terminate the services of Dr Rudakova, Counsel took on a formidable task. 20 The finding of fact that Counsel invited this Court to make was that a reason that formed part of the decision to terminate Dr Rudakova's services was the fact that she herself had made a complaint – a finding diametrically opposed to that in fact made by the primary Judge. 21 A further formidable difficulty confronting Counsel for Dr Rudakova was the identification of any appellable error said to have been made by the primary Judge in making the findings of fact set forth repeatedly in the reasons for decision. 22 Findings of fact can, of course, be reviewed on appeal. The appeal to this Court is an appeal by way of re-hearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [20], (2001) 117 FCR 424 at 434-435 per Allsop J (as his Honour then was) (Drummond and Mansfield JJ agreeing). And the willingness or ability of an appeal court to depart from findings of fact made by a primary Judge may vary depending upon the circumstances of a particular case; any advantages the primary Judge may have had in (for example) assessing the credibility of witnesses; and whether the case at first instance was largely one founded upon inferences drawn from uncontested facts: Construction, Forestry, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122 at [22] per Allsop CJ (Jagot and Lee JJ agreeing) ("Personnel Contracting"). "The extent of the perceived advantages of the primary judge in any particular case is relevant to how extensive the difference of opinion must be to warrant appellate court intervention…": Commissioner of Taxation v Scone Race Club Ltd [2019] FCAFC 225 at [50], (2019) 374 ALR 189 at 199-200 per Griffiths J (in dissent and noting that an application for special leave to appeal to the High Court was rejected: Scone Race Club Limited v Commissioner of Taxation [2020] HCATrans 95) (as cited: James Cook University v Ridd [2020] FCAFC 123 at [142] per Griffiths and SC Derrington JJ). 23 But, when reviewing findings of fact, an appellate court does not proceed as if the findings of the primary Judge had not been made: Whittaker v Child Support Registrar [2010] FCAFC 112. Keane CJ (as his Honour then was), Moore and Perram JJ there summarised the position as follows: [2] …It is not open to this court to determine issues of fact, as if the findings of the learned trial judge had not been made. While this appeal is an appeal by way of rehearing, the court's function is to correct errors in the decision below. It is necessary for an appellant to identify putative errors and to articulate the basis on which it is said that error has occurred. This is particularly important where the findings of the learned trial judge depend upon his Honour's view of the credibility of witnesses. The appellants' arguments do not recognize, much less seek to overcome, the constraints within which a challenge to findings on credibility in an appeal by way of rehearing must be decided… (citation omitted). Also in Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019] FCAFC 2 at [124], Jagot J expressed concurrence with the observation there made that it "is not open to this court to determine issues of fact, as if the findings of the learned trial judge had not been made". Besanko and Nicholas JJ agreed with Jagot J. An appeal, accordingly, does not proceed "without regard to the findings made in the court below": Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [73] per North, Barker and Katzmann JJ. See also Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 208-210 per Windeyer J. 24 Although an appellate Court is thus required to undertake a "real review", it does not lightly interfere with the findings made by a primary Judge: Robinson Helicopter Company Inc v McDermott [2016] HCA 22 at [43], (2016) 331 ALR 550 at 558 ("Robinson Helicopter"). French CJ, Bell, Keane, Nettle and Gordon JJ there expressed the approach to an appeal as to the facts as follows: [43] … A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences"…. (citations omitted). See also: Berkeley Challenge Pty Ltd v United Voice [2020] FCAFC 113 at [29] per Rares J (agreeing with Collier and Rangiah JJ); Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [2020] NSWCA 160 at [66] per Bathurst CJ, Bell P and Macfarlan JA. 25 The findings of fact as made by the Federal Circuit Court in the present case involved (inter alia) an assessment as to the evidence of Ms Taoro and an assessment of the credibility of Mr Cusack. The task confronting the primary Judge was one going beyond drawing inferences from largely uncontested facts and was a task which involved conflicting evidence and an assessment as to medical opinions. Albeit not decisive, the primary Judge did have an advantage over this Court in making findings of fact: cf. Personnel Contracting [2020] FCAFC 122 at [22]. The formidable task confronting Dr Rudakova in seeking to challenge the findings of fact as made by the Federal Circuit Court, and in particular the ultimate findings ([2019] FCCA 3717 at [296] to [299]), cannot thus be underestimated. 26 Subject to the separate submission advanced on behalf of Dr Rudakova that there was a "patent objective lack of seriousness" in the complaints made by Dr Bokey and Dr Auyeung so as to question the findings made by the primary Judge, it is concluded that: Dr Rudakova has not established any error made by the primary Judge in making the findings of fact as to the reasons of Mr Cusack for terminating Dr Rudakova's employment; and there is otherwise no basis upon which it could be concluded that the findings of fact made by the primary Judge are "glaringly improbable" or "contrary to compelling inferences" (cf. Robinson Helicopter [2016] HCA 22 at [43]). A further difficulty – a different case on appeal 27 A further difficulty confronting Dr Rudakova is that some of the Grounds of Appeal which are pressed may be seen as seeking to change the basis upon which her claim was presented to and resolved by the primary Judge. 28 The normal rule, of course, is that a party is bound by the way in which it is conducted at first instance: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Leave, however, to raise a new argument may be granted where it is "expedient in the interests of justice to do so": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel J (as her Honour then was), Weinberg and Stone JJ. It is thus well recognised that it "is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial": Coulton v Holcombe (1986) 162 CLR 1 at 7. Gibbs CJ, Wilson, Brennan and Dawson JJ went on to further observe that if "it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish". 29 With reference to the facts of the present appeal, Counsel for the Hospital contends that Grounds 2 to 7 seek to change the manner in which Dr Rudakova sought before the primary Judge to characterise her "workplace right". 30 Before the primary Judge, the making of the complaint which was said to be the exercise of a "workplace right" was the making of a complaint in a letter dated 27 May 2017. The primary Judge was careful to identify this basis upon which Dr Rudakova sought to establish a contravention of s 340 at the outset of the reasons for decision, namely: [10] Dr Rudakova's Points of Claim did not clearly allege that the Hospital dismissed her for a reason that would constitute a contravention of s.340 of the Act. However, as understood by the Hospital in pre-hearing submissions and as confirmed by counsel for Dr Rudakova during the hearing, her contention in these proceedings is that her employment was terminated because she exercised a workplace right by making a complaint in relation to her employment in a letter of 27 May 2017 sent to Professor Abdullah Omari, Head of Vascular Medicine and senior staff specialist who was also the Director of Prevocational Education and Training at the Hospital (the DPET). In that letter (the grievance) Dr Rudakova alleged that she was bullied by her medical supervisor and a hospital staff member at a meeting of 25 May 2017. She also complained about perceived shortcomings in her training and the support provided to her. 31 Grounds 2 and 3, however, now seek to proceed on a potentially different footing. Ground 3 thus summarises this different approach as follows: On the above basis, the Appellant will contend that the Grievance letter of 27 May 2017 was the formal raising of a grievance but that the above earlier communications of 30 April and 21 May 2017 formed part of the relevant exercise of a workplace right, so that the issue of whether Rudakova's employment was terminated, as it was on 21 July 2017, for the reasons that she exercised a workplace right should be decided on the basis that such exercise had commenced on 30 April 2017 and comprised a series of complaints leading to the Grievance letter on 27 May 2017. (Reasons para [127]) The reference to para [127] is self-evidently a reference to para [127] of the reasons for decision of the primary Judge. That paragraph, together with the following paragraph state as follows: [127] Insofar as Dr Rudakova asserted that the "process" of complaints by her began in April 2017 with an email complaint of 30 April 2017 to Dr Omari, in her witness statement Dr Rudakova stated that this email was "not to hand". When asked at the hearing about the correctness of this statement, she claimed that she had sent a copy to her counsel. In cross-examination she explained that she did not have a copy of that document with her, but suggested that she could "pull it up on her phone". Her counsel advised the court that he did not have it to hand. He did not tender any such document, but nonetheless sought to rely on Dr Rudakova's evidence that she had emailed Dr Omari on 30 April 2017 raising concerns about "lack of training, insufficient supervision and lack of clarity regarding protocols during [her] Psychiatry rotation". [128] Accepting for present purposes that Dr Rudakova sent an email to Dr Omari on 30 April 2017, there is no evidence that such email was brought to the attention of Mr Cusack. I accept Mr Cusack's unchallenged evidence that he did not recall Dr Rudakova making any such complaint and was not aware of any such complaint at the time he made the decision to terminate her employment. As I accept that Mr Cusack was not aware of any such complaint I am satisfied that he did not take it into account in his decision to terminate Dr Rudakova's employment. 32 The potential shift in the manner in which Dr Rudakova now seeks to identify the exercise of her "workplace rights" is that: before the primary Judge, Counsel for Dr Rudakova committed her case to the exercise of those rights being the "grievance letter of 27 May 2017": [2019] FCCA 3717 at [106]. but before this Court, Counsel for Dr Rudakova seeks to contend that: the exercise of those rights was "formalised" by the 27 May 2017 letter but that the "earlier communications of 30 April and 21 May 2017 formed part of the relevant exercise of a workplace right…". 33 The letter of 27 May 2017, it may be noted, expressly refers to a 21 May 2017 letter and expressly summarises some of the points then made. The 27 May letter thus states in part: "I maintain that numerous unjustified criticisms have been levied against me by my supervisor which has created a risk to my health and safety, as outlined in a letter to you of 21st of May 2017 including but not limited to …". There were, however, two letters from Dr Rudakova to Dr Omari dated 21 May 2017: one letter being referred to as the ENT letter, which purported to be a "response to… allegations from [her] 2 weeks rotation in the Ear Nose and Throat department"; the other letter being referred to as the Psychiatry letter, which responded to "allegations brought to [her] attention from the department of Psychiatry". The reference in the 27 May letter to the earlier communication is a reference to the ENT letter. 34 The communications dated 30 April and the two 21 May 2017 letters should each be separately considered. 35 Taking first the email dated 30 April 2017, it may be noted that that communication is the subject of the application to adduce further evidence. If that application can presently be left to one side, that email stated as follows (without alteration): There are two incidences involving the insulin resistance/metabolic syndrome diagnosis and management protocol. My BPT colleague was surprised to hear that the endocrinology team is not involved in educating or supervising the intern in how to deliver this difficult diagnosis to the patient. I also believe the metabolic syndrome management protocol needs to be made clear for the clinicians and the psychiatry consultants. Especially as this matter concerns a regularly implemented protocol/procedure, I am wondering if this matter requires the RiskMan assessment by the hospital? The other matter is my skills of communicating patient treatment information to a senior clinicians and inadvertently making the clinician feel as if I am challenging their expertise/authority. The BPT colleague suggested that there is something called "graded assertiveness training" that I could benefit from. There may be some uncertainty, at least to a lawyer rather than a medical practitioner, as to the "two incidences" being referred to. Counsel for Dr Rudakova asserted that this email refers to "general criticisms of Dr Rudakova's communication skills and how she proposes that any deficiencies might be remedied by 'graded assertiveness training'". The 27 May 2017 letter refers to her taking issue with "Dr Biggs blaming everything on [her] 'communication'". But before the primary Judge, Dr Rudakova claimed that the 30 April 2017 email was directed to her psychiatry rotation ([2019] FCCA 3717 [19]), a rotation during which Dr Biggs was not her supervisor. It is concluded that the specific subject matter of this email formed no part of the complaint being made by Dr Rudakova on 27 May 2017. 36 Irrespective of whether or not the 30 April 2017 email should be admitted on appeal as "new evidence", it is sufficient for present purposes to note that the subject matter of the grievance being raised by Dr Rudakova in her 27 May 2017 letter was different to the subject matter of any grievance raised in the 30 April 2017 letter. Even though reference may have been made to the 30 April 2017 letter during the course of the hearing before the primary Judge, the subject matter of its content was not considered in any detail. To that extent, the 30 April 2017 letter departed from the manner in which the argument was presented to the primary Judge as to what constituted the exercise of the "workplace right". 37 If attention is shifted to the 21 May 2017 ENT letter, it may readily be accepted that there was some overlap between the "Grievances" raised in the 27 May 2017 letter and the earlier 21 May 2017 ENT letter. It may thus be noted at the outset that: the 27 May 2017 letter, when referring to the 21 May 2017 ENT letter, identifies her concerns as "including but not limited to…" the matters there referred to – what other concerns she had, but not communicated in the 27 May 2017 letter, is left to speculation. With reference to this letter, submissions advanced on behalf of Dr Rudakova: characterised this letter as one in which she "responds to specific performance concerns that had been raised with her". With reference to the 21 May 2017 Psychiatry letter, submissions made on behalf of Dr Rudakova: characterised this letter as one in which she "responds to performance issues which arose during her Psychiatry rotation". Neither letter, with respect, can be characterised as a letter in which Dr Rudakova was simply "responding" to complaints made against her rather than letters in which Dr Rudakova was also seeking to raise complaints against the Hospital. 38 The difficulty with both letters, however, is that each seeks to go beyond the subject matter of the grievances she had raised in her 27 May 2017 letter. These differences were not without significance – if for no other reason than that it was necessary for the Hospital to know with some specificity those matters which formed the subject matter of Dr Rudakova's complaints and in discharging the onus imposed upon it of establishing that the exercise of the "workplace rights" played no part in the decision to terminate her services. To the extent that there was overlap between the issues raised in each of these three letters, the evidence of Mr Cusack was that those issues formed no part of his decision-making processes in terminating her services. To the extent that there were different issues canvassed in each of the 21 May 2017 letters – and there were differences – Mr Cusack was not provided any real opportunity to give evidence in respect to these differences. 39 For Dr Rudakova to now depart from her prior commitment to the 27 May 2017 letter as constituting the exercise by her of her "workplace rights", and to now rely upon either the 30 April 2017 email or the 21 May 2017 letters, would thus constitute a significant departure (or at the very least, an uncertain departure) from the way in which she presented her case before the primary Judge. Grounds 2 and 3 of the Notice of Appeal should be rejected. 40 Before the primary Judge, Dr Rudakova was represented by Counsel. There is no reason why she should not be bound to the manner in which she then characterised the exercise of her "workplace right". She should not now be permitted on appeal to contend, as she seeks to contend, that the "workplace right" may have been "formalised" in the 27 May 2017 letter but also "consisted" of the April email or May 2017 letters. 41 Grounds 4 to 7 seem to proceed upon the same factual basis as Grounds 2 and 3. Even if reliance could be placed upon the email, the finding of fact made at para [128] of the primary Judge's reasons would only be a further reason why this new way of characterising the "workplace right" should not now be permitted. 42 Other Grounds of Appeal also seem to depart from Dr Rudakova's former reliance upon the 27 May 2017 letter as the exercise by her of her "workplace right" and also seek to impermissibly now seek to re-characterise the right now sought to be relied upon on appeal: e.g., Grounds 10 and 16. 43 There is no "substantial injustice" in confining Dr Rudakova to the manner in which she previously identified her "workplace right". She was then represented by Counsel. It was that "workplace right" which was the subject of the complaint and the focus of the specific attention of the Hospital as to what matters Mr Cusack had or had not taken into account when terminating the services of Dr Rudakova. 44 Those Grounds of Appeal which seek to do so should be rejected. Individual Grounds of Appeal 45 Separate from these two difficulties confronting Dr Rudakova in her appeal and the Grounds of Appeal to which these difficulties relate, it is separately concluded that there remain other reasons for rejecting these and the remaining Grounds of Appeal. 46 Some of these individual Grounds of Appeal may be considered together. 47 Thus, some Grounds allege that the primary Judge erred in making particular findings by reason of (for example) accepting the evidence of Mr Cusack. Grounds 9, 10 and 11 fall into this category. Ground 9 (for example) alleges that the primary Judge "erred in concluding that Cusack had not taken into account in making his decision, Rudakova's criticism of the investigation of her Grievance…". Reference is made to paras [171] and [172] of the reasons for decision. But this challenge should be rejected. Paragraph [172] (for example): comes after a detailed review of the evidence, including the evidence of Dr Rudakova; and sets out the evidence of Mr Cusack, and is reinforced by the primary Judge later including the entirety of the letter of termination dated 21 July 2017 (at para [222]). Paragraph [172] moreover sets out the reasons advanced by Mr Cusack for his evidence that he had not taken into account the "grievances" raised by Dr Rudakova – namely: the fact that, in his opinion those "grievances" related to "different issues"; and the advice given to him by Ms Taoro not to take those "grievances" into account. As set out in his affidavit, Mr Cusack deposes to a conversation between himself and Ms Taoro on 10 July 2017 in which she said words to the following effect: It is important that any decision you make about Dr Rudakova's employment is not influenced by any other matter other than the matters outlined in the show cause letter, Dr Rudakova's show cause reply, and all evidence I will send you today including the HR investigation. You cannot take into consideration Dr Rudakova's complaints or any concerns or enquiries she has made in relation to her employment, including her grievance. Mr Cusack's affidavit goes on to state that he "made [his] decision consistent with this guidance". 48 The findings made by the primary Judge in respect to accepting the evidence of Mr Cusack cannot be said to expose any self-evident reason let alone be characterised as "glaringly improbable": cf. Robinson Helicopter [2016] HCA 22 at [43]. 49 The findings made by the primary Judge moreover proceeded, in part, upon the evidence in chief of Mr Cusack and his evidence in cross-examination. Part of that cross-examination was as follows: MR ROLLINSON: All right. I will go straight to it, Mr Cusack. Your real reason for - your real reasons, plural, on behalf of the hospital for dismissing Dr Rudakova, were, number 1 - a combination of these things. They were a combination of these things. Number 1 -you're upholding - agreeing with Ms Taro's conclusion in regard to the Bokey complaint and the Auyeung complaint. That's number 1. Number 2 - you're upholding - agreeing with three other complaints that Dr Scott had drawn to your attention. Number 2. And number 3 - your decision that, all things considered, it was best for the hospital to be rid of this intern who had unhelpfully raised a baseless grievance?––Look, I don't accept that last comment at all. The situation was, there had been a very serious patient complaint raised. I dealt with that on it - on its own. It was separate to the other matters. It could have had very dire outcomes for the patient involved. We went through due process to find out what the reasons, you know, to - Dr Rudakova was given her opportunity to respond. She claims it didn't happen, and so it was necessary to - to look at other matters, including other complaints that may have - that occurred during that time, which demonstrated there was, you know, similar sorts of issues that had occurred. I might say the - the letter from Dr McDonald was also pretty important as well. Like, do you mind if I go to that? Am I allowed to do that? We've already- I've asked you some questions about Dr McDonald's letter, but …?––Well, I- I'm making it clear that the issues about the grievance are - are matters that were over that, weren't taken into account in relation to investigation of the patient complaint matter. Right?––So - so issues related to other patient complaints most definitely were, and issues about overstepping professional boundaries were taken into account. Because they're – they're the two critical issues that were at the forefront of my mind when making the decision. Do you agree that this matter of overstepping professional boundaries was inextricably intertwined with her grievance that she - as she had formulated it, that she was not overstepping professional boundaries, but was simply attempting to do her job and was being unjustly criticised and bullied for doing it in the way that she had?––No, I don't accept that, because in the - in the psychiatric rotation, and I'm going back to Dr McDonald's statements. So I think it would be helpful to refer to those if we can. Well, in regard to Dr McDonald's statements, you say that that's another matter that was weighing on your mind when you made the termination decision?––-It was a- could I - could I just refer to the particular points that Dr McDonald raised? All right. Well, we can go back to that page, which is at page …?––It's - I think … 58. Thank you. Page 58 of your bundle?––Okay. At the bottom of that page it says: But as time progressed I realised that Marianna seemed oblivious to the obvious hierarchal effect that she is the intern and I am the consultant. That is, she was uncomfortable with taking direction or advice. This seems to be - to me to be a significant problem for a young, inexperienced doctor. Right. And then he gives two examples that are on page 59, of that, according to himself?––Sure. But – but it's a general statement though. Dr Scott had indicated that she had spoken to Dr Rudakova about the issue about overstepping professional boundaries before in relation to those complaints that she had received. Dr McDonald, it may be noted, was a consultant psychiatrist at the Hospital. He had emailed the Hospital in May 2017 about an incident when Dr Rudakova "became irritated" with his decision not to commence a particular drug which Dr Rudakova considered appropriate for a patient. Dr McDonald had raised his concerns about Dr Rudakova with Dr Scott. Mr Cusack had referred to this exchange in his letter of termination. 50 The cross-examination went on to separately challenge the evidence of Mr Cusack in respect to the complaint made by Dr Auyeung, a complaint which on one view may have assumed less importance to the decision made to terminate the services of Dr Rudakova. But, to Mr Cusack, this complaint evidenced a pattern on Dr Rudakova's part of "not following a clear instruction". When cross-examined on this complaint, Mr Cusack was taken to an exchange between himself and Dr Scott in which Dr Scott was saying that Dr Rudakova was "overstepping professional boundaries". The exchange between Mr Cusack and his cross-examiner continued as follows: But to decide that there has been a pattern of overstepping professional boundaries, one has got to – they're satisfied that the pattern, that is the other instances, actually exist and are not just allegations that are unproven. Do you agree?––What I had to do was, look to advice from people who were dealing with the matters at the time. So her professional and her senior professional colleagues. And that's what you did, you consider. Is that right? Well, just to be clear, what I'm suggesting is that, one of your reasons in ultimately deciding to issue the termination was also that you were mindful of her history, of her grievance with a capital G, grievances – plural, which had been found unsubstantiated, and you considered that it was in the best interest of the hospital to terminate her employment so that there would be no repetition of such raising of unjustified grievances?––I don't accept that. What – the reason for her termination primarily was in relation to a very serious patient complaint which could have – could have had very poor outcomes for the patient and their family, and those sort of things can't be ignored. It was a – it – it could have, you know, fortunately it wasn't but it could have been a very serious matter. And so if that sort of pattern of behaviour, about overstepping professional boundaries, was happening despite counselling by a senior colleague – clinical colleagues at the time, that was a serious concern. That was – that was primarily what the decision was made by. The – the issue with Dr Yeung was more that – that was another example of not accepting a – a clear instruction. Not – not following a clear instruction. It was a very venial sin though, wasn't it, the Dr Auyeung matter? Do you agree?––It - it was. On its own it wasn't - it wasn't a major issue, but it - it fell into a pattern of not following a clear - clear - very clear instructions that had been given to Dr Rudakova. Of present relevance is the fact that there is nothing in this exchange in cross-examination that would cast doubt upon the findings made by the primary Judge. The propositions being advanced by the cross-examiner as to the matters "inextricably intertwined" with the decision to terminate the services of Dr Rudakova were put to the decision-maker and rejected. 51 Ground 10 raises a like conclusion. That Ground seeks to focus attention on a complaint made by Dr Rudakova "regarding Dr Omari's communications (or lack thereof) with her". Irrespective of whether this Ground also seeks to impermissibly depart from the identification of the "workplace right" relied upon before the primary Judge, no appellable error is exposed in the "accept[ance]" by the primary Judge of Mr Cusack's evidence that "the fact Dr Rudakova raised concerns about Dr Omari was not a matter he took into account in deciding to terminate her employment": at [178]. 52 Consistent with her forensic objective of seeking "to cast doubt on whether SVPH's genuine, or sole genuine, reason for dismissing her was that the Complaints had been upheld", an underlying and recurring purpose in advancing many of the Grounds of Appeal was the forensic objective of seeking to undermine the evidence of Mr Cusack as to his not placing reliance upon any aspect of the grievance complaint made by Dr Rudakova. Grounds 16, 17, 18, 19, 20, 21, 22 and 23 are but examples. 53 As but a further example, Ground 16 of the Notice of Appeal provided as follows: The judge erred in not deciding that the fact that Rudakova, by her email at 6.00 pm on 28 June 2017 to Cusack, and the copies of emails attached to it (between Rudakova and Ms Coleman on 25 June and 26 June 2017, and copy of Rudakova's letter of 9 June 2017 to Ms Taoro), had further reminded Cusack of her Grievance – by which she complained inter alia of bullying behaviour by Dr Omari and Dr Biggs in relation to her Psychiatry and ENT rotations, and contrasted SVPH's suspension of her from duty and threat to terminate her employment over its own complaints against her with the failure of SVPH to proceed in any similar way against those against whom she had complained; and this was a further reason to infer that Rudakova's exercise of her workplace rights to complain (the Grievance) was an operative factor in Cusack's decision to terminate her employment. (Reasons par 53, 171, 198, 199, 263 – 264) Ground 22 also provides as follows: The judge erred in not deciding that one of the operative reasons for the decision by Cusack was the desire to terminate the employment of an intern who had unhelpfully raised grievances against SVPH management, that is, exercised workplace rights to complain about her employment. (Reasons par 240 – 253, 255, 262 – 264) The Grounds of Appeal are variously expressed in terms of the primary Judge having erred "in concluding" or "in deciding" particular matters (e.g., Grounds 9 and 11), and Grounds 16 and 22 are but instances where the error is expressed in terms of "not deciding…". The various expressions are but means of seeking to undermine findings made with a view to ultimately seeking to impugn the ultimate findings as to what Mr Cusack did and did not take into account. 54 In advancing Ground 16, for example, and as recognised by Dr Rudakova, no contention could prevail that the primary Judge had overlooked the reliance placed by Dr Rudakova upon the 28 June 2017 email. Paragraph [198] of the reasons for decision thus states as follows: [198] It appears that Dr Rudakova was aware that Mr Cusack would have a decision-making role in relation to the complaints about her. She went to his office on 28 June 2017. That day she emailed Mr Cusack copies of her text messages with Dr Auyeung of 2 June 2017, her letter to HR of 14 June 2017, a copy of the Dr B complaint and part of Patient B's hospital records. Later that day, after Mr Cusack advised her that in any decision-making he would carefully consider all the information, Dr Rudakova sent Mr Cusack an email as follows: Today you also mentioned that any [the Hospital] employee faced with allegations of serious nature would be put through the process that I am going through right now. I'd like to bring your attention for comparison to the attachment and below email thread in relation to my grievance of bullying. None of the parties that I have complained about went through the process of suspension or had the impact on their jobs or potentially (sic) careers and, I would argue that an allegation of bullying is just as grave, if not more, as those that I am faced with currently. The primary Judge further refers to the email as follows: [218] As described above, Mr Cusack had previously received other information about Dr Rudakova, including in relation to the grievance investigation and the material Dr Rudakova sent him on 28 June 2017. And, as with other aspects of the evidence of Mr Cusack, the primary Judge accepts his evidence. In the absence of reason to question the findings of fact made by the primary Judge, this is but another example of the broader conclusion of the primary Judge that the evidence of Mr Cusack was to be accepted. That was a decision, at least initially, for the primary Judge. Whatever may have been the conclusion had important evidence not been adverted to in reasons for decision, the 28 June 2017 email was a matter taken into account by the primary Judge and findings of fact were made. The evidence of Dr Rudakova was taken into account, as was the evidence of Mr Cusack. Ultimately, the primary Judge had to weigh the evidence and the competing submissions. No appellable error is exposed in the approach of the primary Judge. 55 Other Grounds of Appeal contend that the evidence relied upon by the Hospital was "so weak" that the evidence of Mr Cusack could not be accepted or (differently expressed) "given the plethora of evidence" one of the "operative reasons… for the decision was the exercise of workplace rights…". Grounds 23 and 28 thus provide as follows: 23. The judge erred in not deciding that the evidence upon which the employer found both the Dr B Complaint – regarding Rudakova's interaction with Dr B's Psychiatry patient ("the Dr B Patient") – and the DR A Complaint – regarding communications with Dr Titus Auyeung – against Rudakova to be substantiated, was so weak that such Complaints could not have been the only genuine operative reasons for Cusack's decision to terminate Rudakova's employment. (Reasons par 262 – 274) … 28. The judge erred in deciding that Cusack's evidence that the Dr A and Dr B Complaints were the only matters he took into account when making the dismissal decision could not be accepted given the plethora of evidence supporting the inference that the operative reason, or one of the operative reasons, for the decision was the exercise of workplace rights by Rudakova in continually raising issues regarding her employment. (Reasons par 262 – 274) These Grounds present no reason to reach any different conclusion. Both the affidavit evidence of Mr Cusack, for example, and his evidence in cross-examination accept that the complaint made by Dr Auyeung was not "as serious" as the complaint made by Dr Bokey, but show that it assumed importance by reason of the complaint raising concerns as to Dr Rudakova "overstepping professional boundaries …" or "not accepting… a clear instruction". The evidence of Mr Cusack thus accepted his own weighing or assessment as to the comparative seriousness of the subject matter of the complaints made by Dr Bokey and Dr Auyeung. And no error is exposed in the primary Judge taking the considered approach of Mr Cusack into account when making the findings set forth in the reasons for decision. Further evidence 56 Section 27 of the Federal Court of Australia Act 1976 (Cth) expressly permits this Court on appeal "to receive further evidence". 57 There is no constraint upon the power of this Court on appeal "to receive further evidence" such as, for example, to only do so "on special grounds". The circumstances in which this Court may receive further evidence has nevertheless been summarised as follows by Beaumont, Lindgren and Tamberlin JJ in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 as follows: [42] In order for this Court to receive further evidence, generally speaking ... it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: …. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: … (citations omitted). 58 With reference to the facts of the present case, Dr Rudakova seeks to tender on appeal: the email to Professor Omari on 30 April 2017, being the email raising the "two incidences", which was "not to hand" during the course of the hearing before the primary Judge; and a handwritten "[n]otebook entry dated 28 June 2017 … of [a] meeting with Robert Cusack". 59 The email was said to be but one of the occasions on which Dr Rudakova exercised her "workplace right" to make a complaint against her employer. The additional importance sought to be ascribed to this email was that it placed the making of the complaint and the exercise of the "workplace right" at a time pre-dating 27 May 2017. The "temporal link" between the "two consecutive and overlapping procedures" was thus, on this approach, pushed forward and the "overlap" made more apparent with the decision made by Mr Cusack to terminate her services. This "temporal link" was said, on her behalf, to be of importance in assessing the evidence of Mr Cusack as to what matters he took into account when making his decision. This "temporal link" was said to be part of the reasons of the primary Judge as evidence by the following paragraph of the reasons for decision: [261] Having regard to the temporal and limited factual connection between the grievance and the subsequent termination of Dr Rudakova's employment I have given consideration to the "true motivations" of the decision-maker …, although I note that the dismissal followed a HR investigation which was conducted after, and separate from, the finalised grievance investigation. (citation omitted). Even though this reasoning was but part of the reasoning of the primary Judge, and irrespective of the fact that Mr Cusack "was not aware of any such complaint" ([2019] FCCA 3717 at [128]), it nevertheless assumed some importance to the case being advanced on behalf of Dr Rudakova. 60 The application to adduce a copy of this email on the hearing of the appeal was nevertheless rejected at the outset of the hearing. 61 The tender of the email was rejected because: the evidence was previously available, even though for whatever reason it was not accessible at the hearing before the primary Judge; and the evidence was not such as would in all likelihood cause the primary Judge to reach any different conclusion – indeed, on the finding made by the primary Judge, it would have made no difference at all to the decision to accept the evidence of Mr Cusack: [2019] FCCA 3717 at [128]. 62 The "handwritten note" is rejected because: there is no explanation as to why it was not adduced at the hearing before the primary Judge; and it has the potential to now operate to the very real prejudice of the Hospital, the Hospital having been deprived of the opportunity to have Mr Cusack separately consider the note. Mr Cusack was cross-examined at some length about the meeting held on 28 June 2017 with Dr Rudakova and there was an exchange of email correspondence directed to that meeting. But to now admit a "handwritten note" presumably confirming Dr Rudakova's account of what was said may create prejudice. A patent objective lack of seriousness 63 The principal reason why it is contended on behalf of Dr Rudakova that there is reason to go behind the evidence of Mr Cusack and to question whether the exercise of workplace rights played a part in his decision-making processes to terminate her services is what is said to be "the patent lack of seriousness of the Complaints made against her …". 64 Even assuming that there was room to question the findings of fact made by the primary Judge based upon (inter alia) her Honour's assessment of Mr Cusack's credibility and the reliability of his evidence more generally, the present submission – at least initially – is not self-evidently correct. 65 The decision of Mr Cusack that Dr Rudakova's conduct constituted "serious misconduct" obviously involves a grave and serious finding. The potential impact of the decision upon the future career prospects of Dr Rudakova may well be considerable. But Mr Cusack's decision follows: the making of a complaint by two medical practitioners, Dr Bokey and Dr Auyeung – those two practitioners presumably having responsibly formed the view that the conduct of Dr Rudakova warranted the making of a complaint; and an investigation into the substance of the concerns raised in each of the two complaints. The decision, moreover, follows: a recognition on the part of Mr Cusack as to the comparative seriousness of the two complaints made by Drs Bokey and Auyeung – the complaint of Dr Bokey being recognised by Mr Cusack during (inter alia) his cross-examination as being the more serious complaint. Mr Cusack, it would appear, was a person well experienced in the management of large hospitals. He had occupied his position at St Vincent's for a period of about ten years. Prior to this position, he was employed by the Prince of Wales Hospital as its General Manager. There was no error in Mr Cusack (inter alia) seeking "advice from people who were dealing" with Dr Rudakova at the time and people who were "her professional and her senior professional colleagues." 66 Some weight is to be given to those with greater expertise in assessing, for example, the seriousness of an allegation that a medical practitioner "urged" or "inspired" a patient with a mental condition to take action to seek out her birth parents: cf. Psychology Board of Australia v Mair [2010] VSC 628 at [12] per Osborn J. But, at the end of the day, it is the Courts that determine whether proved conduct constitutes "serious misconduct". 67 Accepting that there may well be some degree of an advocate's flourish in characterising the complaints against Dr Rudakova as possessing a "patent lack of seriousness", the underlying submission advanced on behalf of Dr Rudakova is rejected. On the contrary, the findings of fact made by Mr Cusack are susceptible of being characterised as "serious misconduct". And it is further concluded that, more relevantly, when a comparison is made between the seriousness of those findings and exercise of the workplace right by Dr Rudakova to make a complaint as to bullying, there is no reason to question the evidence of Mr Cusack and the findings of fact made by the primary Judge by reference to his evidence. There is, with respect, no such "patent lack of seriousness" as to the complaints levelled against Dr Rudakova for this Court on appeal to now make a finding of fact inconsistent with that made by the primary Judge, nor to now find that the subject matter of those complaints necessarily intruded into the decision-making process to terminate her services. CONCLUSIONS 68 The appeal should be dismissed. 69 In some respects Dr Rudakova seeks to depart from the manner in which she initially sought to identify her "workplace right" for the purposes of alleging a contravention of s 340 of the Fair Work Act. She should not now be permitted to depart from the manner in which she conducted her case by her Counsel before the primary Judge. 70 Although this Court can consider for itself – and should consider for itself – the findings of fact as made by the primary Judge, no appellable error is shown in the fact finding task as engaged in by the primary Judge. The findings of fact (particularly in respect to Mr Cusack) involved an assessment as to his credibility when denying that he had taken into account the fact that Dr Rudakova had also raised a number of "grievances" in respect to her employment at the Hospital. None of the primary Judge's findings can be characterised as "glaringly improbable". 71 No Ground of Appeal has been made out. 72 The appeal should be dismissed. BY CONSENT, THE COURT ORDERS THAT: 1. Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth), there be non-publication of the names of any patients referred to in oral submissions or in any written material filed in this proceeding. 2. A notation be placed on the court file, including the electronic court file, that in the event that a third party seeks access to the court file, the parties be given the opportunity to make submissions regarding the confidentiality of any patient names prior to any access being granted. AND THE COURT ORDERS THAT: 3. The appeal is dismissed. 4. Any application for an order for costs is to be made within seven (7) days. I certify that the preceding seventy two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 26 August 2020