Industrial Court of New South Wales CITATION: Anthony Veghelyi v Sydney Harbour Foreshore Authority [2007] NSWIRComm 54 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: Anthony Veghelyi PARTIES: DEFENDANT: Sydney Harbour Foreshore Authority FILE NUMBER(S): IRC 6298 of 2003 CORAM: Haylen J CATCHWORDS: Unfair contract - Industrial Relations Act 1996 - s 106 - three month appointment to temporary position in public service under s 38 Public Sector Management Act 1988- termination of employment after one week because applicant did not hold solicitor's practising certificate - applicant removed from Roll of Solicitors in 1991 for disciplinary reasons - no questions raised during recruitment of need for practising certificate - similar position held by applicant in SRA - applicant approached by recruitment agency - conflicting evidence of what disclosed to applicant in pre-employment interview - respondent conducts wide ranging attack on credit of applicant - jurisdictional issues raised by respondent - orders sought said to be in conflict with provisions of Public Sector Management Act - held Public Sector Management Act and Industrial Relations Act operate to allow s 106 proceedings - proposed orders available - proceedings not caught by s 109A - eligibility for holding practising certificate not essential requirement for appointment to temporary position - applicant led to believe he had prospects of permanent appointment - contract unfair - lack of procedural fairness in process of reviewing applicant's employment - in view of short period of employment practical course to void contract ab inito - no reason why applicant could not have performed duties for three months even if respondent required practising certificate for permanent employment - order for payment amounting to three months' salary Energy Services Corporation Act 1995 Industrial Arbitration Act 1940 Industrial Relations Act 1991 LEGISLATION CITED: Industrial Relations Act 1996 Public Sector Employment and Management (General) Regulation 1996 Public Sector Employment and Management Act 2002 Public Sector Management Act 1988 s 38 Public Service Act 1979 Abbood v The State of NSW (NSW Department of School Education) (1999) 92 IR 32 at 49-51) Behan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 Bell & Berg v Macquarie Bank Ltd and anor [2003] NSWIRComm 363 at [10] Crown Employees Lands Officers (Department of Lands) Award (1992) 40 IR 120 CASES CITED: Ferdinands v Commissioner for Public Employment (2006) 80 ALJR 555 Government Cleaning Services (Privatisation) Award (1993) 54 IR 112 Intergral Energy v Allen (2001) 107 IR 456 Public Service Association of New South Wales and anor v Industrial Commission of New South Wales and anor (1985) 1 NSWLR 627 Saraswati v The Queen (1990-91) 172 CLR 1 at 21 State of New South Wales v Banas (2004) 137 IR 63 31/01/07, 1/02/07, 13/02/07 HEARING DATES: Written submissions 19/02/07, 21/2/07, 22/02/07 DATE OF JUDGMENT: 14 March 2007 APPLICANT: Mr J de Meyrick of counsel SOLICITORS: Legal Ease Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr I Neil SC SOLICITORS: Mallesons Stephen Jaques JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 14 March 2007 Matter No IRC 6298 of 2003 ANTHONY VEGHELYI v SYDNEY HARBOUR AUTHORITY Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2007] NSWIRComm 54 INTRODUCTION 1 In September 2002, Anthony Veghelyi was a permanent employee of the State Rail Authority of New South Wales ("SRA") working as a contracts auditor. At that time he was approached by a recruitment agency enquiring if he was interested in a similar position as contracts manager for Sydney Harbour Foreshore Authority (" the Authority"). Mr Veghelyi indicated his interest, supplied some particulars and was ultimately interviewed and offered the position with the Authority. He commenced employment in that position with the Authority on 29 October 2002 but, one week later, his services were terminated. The circumstances surrounding these events became the subject of an application under s 106 of the Industrial Relations Act 1996. EVIDENCE 2 When Mr Veghelyi was approached by the recruitment agency in relation to the Authority position he had been employed by the SRA for nearly one year after satisfying a probationary period. He was then 50 years of age and the nature of the position with the Authority and the higher salary interested him. After supplying certain particulars to the recruitment agency (the applicant was unable to recall the name of the person), he was interviewed in early October 2002 by Mr Andrew Kelly, Executive Director - Business and Finance Services and Mr Stewart Schramm, Manager - Business Services, both executives of the Authority. During the interview, there was discussion about Mr Veghelyi's experience and qualifications and detailed information was provided regarding the position and the work involved with the Authority. Mr Veghelyi was asked for and provided the names of referees. 3 Mr Veghelyi had been provided with a document entitled "Position Description" for the position of contracts manager and that document was discussed at some length during the interview. Mr Veghelyi said that he was taken through it page by page and asked many questions about his ability to meet the various requirements set out in that document. That document contained no requirement that the successful applicant would be required to hold a current solicitor's practising certificate nor was there any specification that the duties would involve representing the Authority in court. 4 In Mr Veghelyi's assessment, the duties were similar to the duties he performed for SRA and he was able to perform those functions without being required to hold a solicitor's practising certificate. In any event. he had been struck off the Roll of Solicitors in 1991 and had resolved to leave practice as a solicitor and to undertake other work using his legal qualifications. He had not been told by the recruitment agency or in the interview that a practising certificate was required. He would not have entertained applying for the position had he been aware of that requirement. During the course of the interview for the position, Mr Veghelyi said that one of the Authority's representatives stated that they were looking for a person with a background in law/engineering/commerce and previously had an accountant in the job as well as an engineer. Mr Veghelyi's qualifications were a B.A. Macquarie University, LL.B. Melbourne University and a D.Litt from Florence University, Italy. He said he had other qualifications. Mr Veghelyi firmly stated that at no stage did the agency, members of the interview panel or any representative of the Authority inform him that they were looking for a solicitor holding a practising certificate or that the position would involve, from time to time, representing that Authority in court. Mr Veghelyi was of the view that, having regard to his experience in performing similar functions for SRA and in light of the requirements of the position and what was said at the interview, he would be able to perform the duties of the position and would not need a practising certificate. He did not mention to either the recruitment agency or the interview panel that he had been struck off as a solicitor in 1991 because he regarded it as irrelevant to the position. He regarded himself as being struck off for overcharging, particularly in relation to prescribed fees in family law matters but did not regard himself as being dishonest or subject of a finding of dishonesty . While he did not raise these matters generally, he stated that he was always prepared to disclose them to an employer where it was relevant. 5 After the interview in early October 2002 he was informed by the agency that he was to be offered the position with the Authority and that he would receive a written offer of employment. On receiving that information, he informed his director at SRA that he would be taking up this new position which would enable SRA to quickly find a replacement for him. On 14 October 2002, he received a letter from the Authority offering him the position of contracts manager at a salary of $84,322 per annum and that it was to be temporary employment ending on 28 January 2003. The employment was said to be in terms of s 38 of the Public Sector Management Act 1988, would last only as long as the department head considered it administratively justified and that his position could be dispensed with at any time if it was considered appropriate to do so. As the employment was not based on merit selection through open competition, Mr Veghelyi was advised in the letter that he was not eligible for permanent appointment "from this engagement". The temporary employment was conditional upon him producing "any of the following original documents as soon as possible", being a birth certificate, evidence of change of name, passport or certificate of naturalisation. He was also to certify that he was unaware of any health condition which would prevent him from carrying out the full range of duties of the position. He was informed that he would be required to meet all other conditions of employment including a criminal record check. The letter confirmed approval for his temporary employment but did not require the production of a current practising certificate or any evidence of eligibility to be able to obtain such a certificate. 6 Mr Veghelyi was concerned that he had been offered only temporary employment for a period of three months and said that the temporary nature of this employment had not been brought to his attention at any stage prior to receiving the letter of confirmation of appointment. He immediately contacted the person from the recruitment agency to express these concerns and was told that the agency would speak to the Authority about the matter. About a half hour later, Mr Schramm telephoned him. Mr Veghelyi told him that he had not been informed that the position was only temporary for a period of three months. Mr Veghelyi said that Mr Schramm told him that every position in the public service was appointed as a temporary position as a kind of probationary period and that after about 12 months people were made permanent. Mr Veghelyi recalled that, when he joined SRA, he was deemed to be temporary for the first six months before becoming a permanent employee. Mr Veghelyi then said that, while that might be the position, he was not prepared to leave a permanent position with the SRA only to find himself out of work three months later and asked for an assurance that the position was for at least one year. Mr Schramm replied that Mr Veghelyi would have to trust him but assured him that he would not be kicked out after three months as the Authority had gone through a lot of advertising and interviewing and would not have someone in the job just for three months: the way the system worked was that after 12 months the position would be advertised internally. He assured Mr Veghelyi that, at that time, he would get the position permanently. Mr Schramm said that he had interviewed and had recommended Mr Veghelyi for the job and that he should sign the acceptance form and send it back and that the matters raised by Mr Veghelyi could be sorted out when he started. 7 Mr Veghelyi said the conversation continued for a short time during which similar statements and assurances were repeated, so that during the conversation he gradually became confident that he had nothing to worry about and that he should accept the offer. He said to Mr Schramm that he would take his word for it and asked when he was required to start. Mr Schramm said that he was wanted as soon as possible and a starting date of 29 October 2002 was confirmed after discussions with his director at SRA. Mr Veghelyi left SRA on 18 October 2002 and took approximately 10 days to arrange his affairs in order to start on 29 October 2002 with the Authority. 8 In the course of discussing his proposal to leave SRA and take up this position, his SRA director asked him to write an updated job description for the purposes of filling the position. On supplying that document, the personnel unit decided that the position was no longer properly classified at the level occupied by Mr Veghelyi and upgraded the position level and salary rate to a level higher than the position he had acquired at the Authority. He nevertheless adhered to his decision to take up the position he had accepted with the Authority and the director of his unit, Bruce Turner, provided him with a reference. 9 Mr Veghelyi duly commenced employment with the Authority on 29 October 2002 and set about the task of familiarising himself with the requirements of his new role. One week later on 5 November 2002, he was called into Mr Schramm's office and was informed that enquiries had been made of the Law Society and that the Authority had been informed that Mr Veghelyi had been struck-off as a solicitor - Mr Veghelyi was asked to confirm this fact. Mr Veghelyi confirmed that he had been struck off as a solicitor. Mr Schramm then told him that, because of his ineligibility to hold a practising certificate, he would be immediately dismissed. Mr Schramm handed him a letter and asked him to pack his belongings and leave the premises at once. Mr Schramm quickly rose from his chair and escorted him to his desk, waited until he had gathered his few belongings, inspected his bag and then took him to the door of the building. Mr Veghelyi said he was shocked and dumbfounded at the pace at which this had happened and was only able to muster a few words of protest. The following day he attempted to telephone Mr Kelly to discuss the matter and to complain that he had had no chance to put his side of the situation but was told on legal advice that Mr Kelly was not able to discuss the matter. 10 Mr Veghelyi said he was shattered by the loss of his job as he was 50 years old, was a sole parent and had to care for a young son and had found himself out of work approaching Christmas. He tried to obtain re-appointment to his previous position at SRA but was told that it had now been filed. During 2003 he constantly sought other work, including quite menial work but without success. He applied for as many as 25 jobs per week. During this period, he suffered from a recurring condition that required careful monitoring to avoid ill health. During 2003, with little money and mounting debts, he had to cope with his financial and domestic obligations and found his general health and wellbeing rapidly deteriorated. He became seriously ill and deeply depressed requiring occasional hospitalisation and, at one stage, contemplated suicide. He was ultimately able to take up studies resulting in a consultancy and adjudication work in matters concerning building disputes under the New South Wales Building and Construction Industry Security of Payment Act 1999. 11 Mr Veghelyi was closely cross-examined on each matter mentioned in his affidavit and issues of credit were raised. In particular Mr Veghelyi was cross-examined as to the number of complaints made against him for which he was struck off as a solicitor and the fact that he was not only found guilty of overcharging but also of matters going to his professional standing as a solicitor and to issues of honesty. Mr Veghelyi accepted that a number of complaints had been made against him although not all had been found to be established and, while there were comments about his honesty, he regarded the thrust of adverse findings as relating to issues of overcharging. 12 Mr Veghelyi denied that his probationary period at SRA had been extended because of dissatisfaction with his services or with issues dealing with sick leave he had taken. He denied that there was any issue about him abandoning his employment with SRA. In July 2002, he had been notified that he had completed his mandatory and extended period of probation with SRA and on 28 June 2002, had been appointed as a permanent employee of SRA. Mr Veghelyi did not understand that on 2 July 2002, Mr Turner had stated that his overall employment would be reviewed again in three months' time. 13 It was Mr Veghelyi's recollection that, during an interview for the position at SRA conducted by Neil Hunt, he disclosed that he had been removed from the roll of practising solicitors in New South Wales. Mr Hunt had raised that matter during the interview and Mr Veghelyi confirmed it. It seemed that Mr Hunt had some knowledge of the fact of the striking off before asking the question. Mr Hunt had also mentioned that he had worked with a person whom he described as a mentor who had also been struck off. Mr Veghelyi asked if his removal from the Roll of Solicitors would impact upon his suitability for the position with SRA and Mr Hunt told him that it would have no impact. When he applied for the position with SRA he understood the Authority was looking for a person with a legal background and legal knowledge - he had been told this at the interview with Mr Hunt and also by Mr Turner, who was a director of the SRA Unit. He was not told that the position required eligibility for professional membership related to a legal background and knowledge. 14 Mr Veghelyi was then cross-examined as to whether or not he had made a workers compensation claim for stress related illness during his employment with SRA: Mr Veghelyi stated that an issue had arisen about his supervision by Mr Hunt and that his union had made representations to resolve the position but he could not recall any claim for workers compensation. After his complaint, Mr Hunt had been removed as his manager and Mr Veghelyi's reporting line was altered so that he reported directly to Mr Turner. 15 Mr Veghelyi stated that he had been admitted to practice as a solicitor in Victoria and his name still appeared on the Roll of Solicitors at the Supreme Court. He had maintained his qualification to practice since 1978 but had last practiced in Victoria in 1991. After his name was removed from the Roll of Solicitors in New South Wales and in of light of the Tribunal's findings, he did not wish to practice as a solicitor anymore and his name was removed from the Roll of Solicitors. He denied that it was any part of his desire, when swearing affidavits for the purpose of these proceedings, to keep from the Court the findings made resulting in him being struck off as a solicitor. 16 The contact person from the recruitment agency was Mr Shepherd. Mr Veghelyi had not told him that he had taken up a position with a finance corporation operating out of Hong Kong after he had been removed from the Roll of Solicitors. However, during their first discussion, he told Mr Shepherd that he was not seeking a position in practice at all. Mr Shepherd had asked him whether he would consider a position with a firm of solicitors. Mr Veghelyi told him that he was not interested in such a position. He told Mr Shepherd that he was working as the manager of contracts audit at SRA, which might have been said during the course of providing Mr Shepherd with a history of his career. He told Mr Shepherd that, between 1980 and 1991, he had held a variety of positions as a solicitor in practice in various firms in Victoria and New South Wales. He had provided Mr Shepherd with a curriculum vitae. When he first applied for the position at SRA as a contracts auditor, Mr Veghelyi accepted that he was told that SRA was looking for a person with a legal background and knowledge. That position did not require him to be eligible for professional membership related to a legal background. There had been a requirement for professional membership of the Australian Society of Auditors but SRA hired him notwithstanding that he had no auditing experience. He was told that SRA would train him in this aspect, and that training occurred. 17 Mr Shepherd asked him a number of questions as to his career history and qualifications but they mostly focused on what he was doing in his role at SRA. He told the recruitment agency that he was admitted as a solicitor of the Supreme Court of Victoria in 1980, and had done so by providing the information it required on a form that he filled out. That form asked what year he was admitted as a solicitor and where. Mr Veghelyi denied that he had made a choice as to what he would tell the recruitment agency and said that he answered the questions they asked him. There was no question raised or request about whether he was also admitted in New South Wales, and it was not a matter of whether he chose to reveal that admission or not - it was not relevant to what was being requested. In 1991, he chose not to apply for a practising certificate in Victoria. Having regard to the events before the Disciplinary Tribunal in New South Wales he did not wish to practise as a solicitor anywhere so it never became an issue for consideration that he would be obliged to disclose to the Victorian authorities that he had been removed from the Roll of Solicitors in New South Wales. 18 In the course of the interview with Mr Schramm and Mr Kelly, Mr Veghelyi said he was not informed that the Authority did not have time to conduct a merit selection process for permanent appointment and for that reason the appointment was to be temporary. He was told that the Authority wished to fill the role as soon as possible and that there were some urgent contracts that needed to be attended to. He was not asked why he wished to give up a permanent position with SRA to take up a temporary position with the Authority. Mr Veghelyi denied that his permanent position with SRA was subject to an overall review and stated that he had already been made permanent with SRA. 19 During the interview for the position with the Authority, Mr Veghelyi said he was not told that there was no guarantee that he would be appointed permanently to the position. Mr Veghelyi rejected the suggestion that the conversation with Mr Schramm, in which he was persuaded to take the position on a temporary basis with a guarantee of 12 months' work and then being made permanent, was a conversation that did not take place. Mr Veghelyi relied on what was said by Mr Schramm by taking up the offer and trusting what was said to him by Mr Schramm as to the duration and permanency of the appointment. 20 In the brief period in which he worked for the Authority, Mr Veghelyi reported only to Mr Schramm and was not required to instruct barristers, solicitors or firms of solicitors. He had no contact outside the Authority with anybody in the legal profession. His duties were to review existing contracts, to assess and administer them and to recommend drafting changes before execution. He was advising and reviewing the general subject of contracts in the long term, identifying areas of risk and making suggestions about re-drafting additional clauses and advising about the tender process and probity issues. Mr Veghelyi stated that he would not have applied for the position had it required a person to be eligible to practice law and hold a practising certificate. During the interview with Mr Schramm and Mr Kelly he had not been told that the position had been changed from someone who reviewed contracts to someone who was capable of handling legal matters from inception right through to representing the Authority in court when necessary. He denied that he was told that the Authority had formed the view that, having regard to the nature of its business, an "in-house lawyer" was required for the position. Mr Veghelyi said that almost the entire interview was conducted by Mr Schramm with Mr Veghelyi referring heavily to the job description that had been provided to him. Nowhere in that job description did it mention having a practising certificate nor was there any suggestion of going to court, being a solicitor or an in-house lawyer - it was simply never discussed. 21 Mr Phillip Davenport had been a solicitor for over 40 years and in the past 15 years had been a sole practitioner specialising in construction law. He had previously been the head of the legal department of the New South Wales Department of Public Works and when he joined that Department in 1975, Mr Veghelyi was a contracts clerk. Mr Veghelyi had completed his law studies and later operated his own law firm. Mr Davenport was aware that his name had been removed from the Roll of Practising Solicitors and was aware of the circumstances surrounding his removal. Mr Davenport kept in touch with Mr Veghelyi and was aware that he was working for SRA. Mr Veghelyi told him that he was interested in taking up a position with the Authority and Mr Davenport agreed that he could put his name forward as a referee. Mr Davenport was shown a copy of the job description and being aware of Mr Veghelyi's qualifications and experience was of the view that he was "eminently suited" to the position. 22 Mr Davenport was later telephoned by someone from the Authority or on its behalf who asked about Mr Veghelyi and his abilities to carry out the position for which he had applied. Mr Davenport was asked about Mr Veghelyi's work at State Rail and his work at the Public Works Department as well as about his capacity to do the work involved in the position. Mr Davenport said he endeavoured to answer all of those questions and did so favourably to Mr Veghelyi. During the conversation with the person from or acting on behalf of the Authority, nothing was said about the need for a practising certificate in order to be appointed to the position. The impression that Mr Davenport was given during the conversation was that the work related to the examination of contracts and had nothing to do with the practice of law. There was no reference to the handling of trust monies or the conduct of litigation or anything else that would require an employee to have a practising certificate or to be covered by professional indemnity insurance. Mr Davenport was aware that since his dismissal from the Authority, Mr Veghelyi had experienced some difficult periods of poor health and financial problems but had recently managed to complete training and was now an accredited adjudicator under the Building and Construction Industry Security of Payment Act. In this new role, Mr Veghelyi had become "one of the State's most prominent and respected adjudicators". 23 In cross-examination, Mr Davenport said that he had spoken to a person representing the Authority in relation to his reference given to Mr Veghelyi but he could not recall whether that was a recruitment agency. Mr Veghelyi had asked him to provide a reference because he was applying for a position with the Authority. Mr Veghelyi had discussed the nature of the position and had shown Mr Davenport an advertisement. He denied that Mr Veghelyi had told him that one of the matters that would be addressed in the course of the reference was his skills as a lawyer. When spoken to by the Authority's representative he was not asked about Mr Veghelyi's skills as a lawyer. Mr Davenport did not tell the person from the Authority that Mr Veghelyi was an excellent lawyer nor that he was able to juggle a number of matters concurrently nor that he was able to deal with many different areas of the law. He did not say that Mr Veghelyi was able to identify aspects that other lawyers would miss and that one of his main areas of strength was his ability to analyse legal issues. He did not make any suggestion that Mr Veghelyi could develop himself by writing legal books and denied that the focus of the discussion was on the legal skills possessed by Mr Veghelyi. He was not told by the person to whom he spoke that the position for which Mr Veghelyi was applying was a position in which he would be required to exercise skills as a lawyer. 24 Mr Bruce Turner provided an affidavit which was read by counsel for Mr Veghelyi. No request had been made for his presence for the purpose of cross-examination until the last working day prior to the commencement of the hearing. Mr Turner was on leave in Victoria and was not able to return on the days the matter was set down for hearing. Mr Turner had specialised in the practice of internal auditing for some 18 years and had held a number of senior positions with the State Bank of New South Wales, the Reserve Bank and the State Rail Authority of New South Wales, his current position being head of Audit and Risk for Integral Energy Australia. At SRA he had become the Director of Audit and Investigation between 2001 and 2004. During his employment with SRA, Mr Veghelyi was appointed to the position of contracts auditor through a merit based selection process. 25 Sometime after Mr Veghelyi commenced working at SRA, Mr Turner became aware through the manager, contracts audits, that Mr Veghelyi's name had previously been removed from the Roll of practising solicitors although he was not aware of the specific circumstances giving rise to that action. Mr Veghelyi's position as contracts auditor did not require him to be a practising solicitor. On one occasion, Mr Veghelyi mentioned to him that he was interested in taking up a position with the Authority and asked Mr Turner if he would consent to being a referee to which he agreed. 26 Mr Turner said he was aware of the capabilities demonstrated by Mr Veghelyi in his work at SRA and that, when he was contacted by the Authority or their representatives as a referee, he felt he was in a position to respond to their specific questions and endeavoured to answer all their questions genuinely and honestly. During the telephone conversation with the representative of the Authority, enquiries were made about Mr Veghelyi's role at SRA and his demonstrated abilities, however, nothing was said about the need for the person appointed to hold a practising certificate as a solicitor. If that had arisen, Mr Turner says he would have responded to the question, namely, that to his knowledge Mr Veghelyi did not at that time hold a practising certificate as a solicitor. 27 Shortly after he had left SRA, Mr Veghelyi contacted Mr Turner and informed him that he had been dismissed because he did not hold a practising certificate as a solicitor. He enquired whether he would be able to return to his previous role with SRA but Mr Turner informed him that this was not possible because the position had been restructured and regraded to a higher level. 28 Mr Andrew Kelly was the Executive Director of Business and Financial Services when Mr Veghelyi applied for a position with the Authority in 2002. He recalled that in approximately August 2002, as a result of restructuring roles and responsibilities, the role of contracts manager became vacant. The person who had occupied the role of contracts manager up until that time had a background in engineering project management and, as a result of the restructure, that person took a new role. The executive of the Authority in formulating the restructure determined that the role of contracts manager would from that time be held by a person with "first and foremost" legal qualifications sufficient to provide regular advice to the Authority in relation to its contracts and, if necessary, legal representation where appropriate. This was regarded as a means of reducing costs for the more routine legal services and representations involving minor contracts and leasing disputes. 29 It was considered necessary to urgently fill the role of contracts manager because of a number of contracts requiring attention so Mr Kelly and Mr Schramm decided to appoint a person only on a temporary basis. A temporary appointment permitted the Authority to select somebody within a relatively short space of time, unlike the filling of a permanent position which required a merit selection process under public sector employment procedures and could result in substantial delay in making a final appointment. The merit selection process involved public advertising and an interview process consisting of a panel of two staff members and an independent person. Mr Kelly had been involved in the appointment of many permanent positions in the New South Wales Public Service and he was aware of the time consuming nature of the merit selection process. At the time, a temporary appointment made under s 38 of the Public Sector Management Act allowed appointment without the need for the position to be advertised or the interview panel to be established. Towards the end of August 2002 Mr Schramm engaged a recruitment firm (Michael Page International) to assist in finding a person suitable to fill the role of contracts manager. 30 In early October 2002, Mr Schramm told Mr Kelly that Michael Page Legal (a division of Michael Page International) had identified some candidates for the role of contracts manager, that he had looked at their resumes, that one person who looked "good" was Mr Veghelyi and he suggested that they interview him. On approximately 2 October 2001 Mr Kelly and Mr Schramm then conducted an interview with Mr Veghelyi. 31 During the interview, Mr Kelly recalled that Mr Schramm said the Authority needed a person to fill the role as soon as possible because there were some urgent design contracts requiring attention and that the appointment was a temporary appointment under s 38 because the Authority did not have the time to conduct a merit selection process for a permanent appointment. It was explained that the position had been restructured from a role requiring an engineering background to a role requiring a person with legal qualifications. Mr Schramm said that most of the standard contracts used did not need much alteration. The main function of the role had changed from someone reviewing contracts to requiring someone who was capable of handling legal matters from their inception right through to representing the Authority in court when necessary on more basic matters. It had been identified that the Authority now had the right suite of contracts and so needed to educate staff to better manage and enforce the terms of the contracts. It was believed that an in-house lawyer would strengthen their position. Mr Kelly recalled that Mr Veghelyi occupied a permanent position at SRA at the time of his interview and that he was asked why would he give up that permanent position to take a temporary position with the Authority. Mr Kelly thought that Mr Veghelyi said that he was confident that he would perform well above their expectations in the temporary role and would be able to obtain a permanent role when it was eventually advertised and that the roles seemed more interesting than his current role with SRA and that it was a challenge worth taking on. 32 Mr Kelly recalled that either he or Mr Schramm told Mr Veghelyi that if he was willing to give up his permanent position with the SRA to take on a temporary appointment, that was his own choice. There were no guarantees that he would obtain the permanent position at a later stage, although it was true that some people who started at the Authority as temporary employees had later been successful in securing the permanent position. Permanent appointment occurred when it was advertised and resulted from good performance and showing that they had the necessary skills required to succeed in the merit selection process. 33 After the interview, Mr Kelly and Mr Schramm agreed that Mr Veghelyi appeared to be suitable for the role of contracts manager. Mr Schramm contacted Michael Page Legal to make an offer to Mr Veghelyi, which he subsequently accepted. 34 Shortly after Mr Veghelyi commenced employment with the Authority, Mr Schramm told Mr Kelly that he was worried about Mr Veghelyi's ability to perform the role because he did not seem able to keep up with the tasks assigned to him or be able to perform basic parts of the position, such as responding promptly to queries by computer. Mr Schramm said there were obvious problems he noticed straightaway and that he had real doubts that Mr Veghelyi would keep up with the job. On 5 November 2001, Mr Schramm again spoke to Mr Kelly referring to his earlier concerns about Mr Veghelyi, stating that he had looked into his professional background to check that he was in fact qualified to do the job and had found that the New South Wales Law Society had struck him from the Roll of Solicitors in 1991 for professional misconduct. Mr Kelly noted that Mr Veghelyi had not mentioned that fact to them and had said he was a lawyer. Mr Schramm said he agreed but that Mr Veghelyi had been removed from the role of solicitors and could not practice law with the Authority. Mr Kelly offered the view the Mr Veghelyi should have informed them of this position. He said that Mr Veghelyi could not do what he had been hired to do. After that conversation, Mr Schramm and Mr Kelly recommended to the Chief Executive Officer that Mr Veghelyi's temporary employment as contracts manager be terminated. That recommendation was accepted. 35 Mr Kelly said that, during the course of the interview, neither he nor Mr Schramm suggested that a person with a background in engineering or commerce would be suitable to fill the role of contracts manager. Mr Kelly recalled that the resume supplied by Mr Veghelyi to Michael Page Legal stated that Mr Veghelyi was admitted to practice as a solicitor in Victoria. The resume made no statement about his ability or inability to practice law in New South Wales which was also not disclosed at the interview by Mr Veghelyi. He denied that either he or Mr Schramm made suggestions about the nature of the role as suggested by Mr Veghelyi in his affidavit. Mr Kelly also noted that the person appointed to the position of contracts manager immediately after Mr Veghelyi's termination was a legally qualified person eligible to practice law who had been recruited in the same manner as Mr Veghelyi. 36 In cross-examination, Mr Kelly said that he and Mr Schramm were not legally qualified. He was unable to say whether, at about the time Mr Veghelyi worked with the Authority, there was somebody in the office with legal qualifications. Mr Kelly understood that a person who was eligible to practice law was one who was able to represent a person or organisation in the courts or to provide relevant legal advice. He accepted that, during his time, prior occupants of the position did not, to his knowledge, hold legal qualifications. He expected that under the new position, the person would be able to go to court, represent the Authority, make submissions and, if necessary, instruct barristers. Mr Kelly agreed that was a very important and significant change in the role of a contracts manager because the previous occupant had nothing like those qualifications. 37 Mr Kelly accepted that the position description sent to the recruitment agency did not contain any requirement that the occupant be a legal representative who could perform the work of a solicitor where appropriate. The document did not precisely state that the occupant should be able to perform the type of role a family solicitor could perform, but it did mention relevant tertiary qualifications, that an appropriate balance of technical, legal and commercial discipline would be well regarded and that full membership or membership eligibility of a professional body would be highly desirable. The position description given to the recruitment agency about Mr Veghelyi was the existing position description and did not represent the restructured role. Mr Kelly did not think that document was used when Mr Veghelyi was interviewed and denied that document was gone through page by page by Mr Schramm and Mr Kelly during their interview with Mr Vegehlyi. He did not think that the previous position description document had been referred to at all during the interview. He accepted that the key point left out of the existing document was the legal representation and advice role that was required for this position. 38 Mr Stuart Schramm was the Manager, Business Performance for the Authority in 2001. In approximately August 2002, following the refinement of the procurement services of the Authority, a restructure of roles in business services made it necessary to recruit a person to fill the role of contracts manager. The contracts manager reported directly to Mr Schramm and thus became his responsibility. 39 Prior to filling the vacancy of contracts manager, the position had been filled by a person with an engineering background and many of the legal services associated with procurement had been outsourced. During refinement of the procurement services and the restructure of roles, it was determined that legal services would be "in-sourced" by ensuring that a qualified lawyer was selected for the position of contracts manager. Mr Schramm referred to a spreadsheet as demonstrating the restructure and reallocation of responsibilities in the business and financial services section of the Authority and noted that the following statements were contained at the bottom of the spreadsheet: Manager Contracts has been deleted as requirements of role have been changed to incorporate contract administration and legal training. Contracts Manager has been created to incorporate contract administration and legal training. 40 After a discussion with Mr Kelly, (the Executive Director of Business and Financial Services and Mr Schramm's supervisor) it was decided not to attempt to fill the role of contracts manager on a permanent basis because of the lengthy recruitment process for permanent appointment in the New South Wales Public Service but instead to fill the role on a temporary basis under s 38 of the Public Sector Management Act. This decision was taken because there were a number of design contracts that needed immediate attention. Mr Schramm viewed the temporary appointment as an "interim fix" to ensure that the urgent contracts could be attended to as quickly as possible. Towards the end of August 2002, he contacted the recruitment agency Michael Page International and engaged them to find a suitable candidate to fill the role. Mr Schramm forwarded to Mr Shepherd of Michael Page a general position description for the role of contracts manager. That was the same document given to Mr Veghelyi and annexed to his affidavit. 41 The recruitment agency through Mr Shepherd provided details of various potential candidates for the role of contracts manager which were reviewed by Mr Schramm. Mr Schramm noted that, in relation to Mr Veghelyi, he stated that he was admitted as a solicitor to the Supreme Court of Victoria in 1980 but no mention was made of him being ineligible to practice law in New South Wales. He assumed that the person appointed to the position would be a qualified lawyer eligible to practice law in New South Wales. 42 On 2 October 2002, Mr Schramm and Mr Kelly interviewed Mr Veghelyi for the position of contracts manager with the Authority. Mr Schramm said that, during the interview, he and Mr Kelly "went through the position description document" with Mr Veghelyi, a document Mr Schramm had provided to Mr Shepherd and which Mr Shepherd had passed on to Mr Veghelyi. This was a guide to the responsibilities and duties involved in the role of contracts manager. Mr Schramm recalled saying that they were looking for a lawyer with a background in commerce and procurement to review, prepare and advise on the Authority's contracts and also that Mr Veghelyi had said that he was a qualified lawyer who had been looking after contracts and procurement work with SRA. 43 Mr Schramm said that he told Mr Veghelyi that the Authority had some urgent interior design contracts to be dealt with so that the position would be a s 38 temporary appointment because there was no time to conduct the merit selection required for permanent employment and that the formal merit process for the position would occur at a future date. Mr Schramm also recalled that either he or Mr Kelly asked Mr Veghelyi why he would want to give up a permanent role with SRA for a temporary position with the Authority. Mr Veghelyi replied that he was sick of the politics of SRA and was keen for a change and that the role with the Authority seemed more interesting than his role at the SRA. He was confident that he would perform well in the temporary role and obtain a permanent appointment down the track. Mr Schramm said that some people appointed on a temporary basis were successful later on in obtaining a permanent appointment but there was no guarantee that this would occur. He advised Mr Veghelyi that he had to succeed in demonstrating the required skills and other matters through the merit selection process. He said that if Mr Veghelyi was willing to take the risk and give up his permanent role at SRA then that was Mr Veghelyi's choice. He pointed out, for example, that one person who had been a temporary employee for two years was then successful in gaining a permanent appointment after merit selection. Mr Veghelyi asked that, if he was successful, would he have a secretary and his own office but was told that he would not have a secretary because everyone at the Authority did their own typing. 44 Mr Shepherd of the recruitment agency had performed reference checks on the candidates and on 3 October 2002 forwarded to Mr Schramm a statement of referees comments after having interviewed each referee. Mr Shepherd had spoken to Mr Davenport and had also obtained a reference from a former client of the firm at which Mr Veghelyi had been the managing partner, although that referee had asked to remain anonymous. Following the interview and a check of the references in consultation with Mr Kelly, Mr Schramm determined that Mr Veghelyi was a suitable candidate to fill the temporary position of contracts manager. Mr Schramm sent an email to Mr Shepherd informing him that, subject to obtaining an acceptable reference from SRA, the Authority wished to offer Mr Veghelyi the position of contracts manager and stated that the offer was for a s 38 temporary appointment. On 4 October 2002, Mr Schramm received an email from Mr Shepherd confirming that, subject to acceptable final references from the SRA and a written offer of employment, the applicant would be happy to accept the appointment. In the afternoon of 4 October 2002, Mr Schramm received a facsimile from Mr Shepherd enclosing the final reference for Mr Veghelyi provided by Bruce Turner, director of audit and investigation at SRA. Mr Shepherd had conducted the interview with Mr Turner. Mr Schramm regarded that reference as being favourable and then submitted a request for s 38 temporary employment in relation to Mr Veghelyi, a requirement necessary to have a temporary appointment made under the Public Sector Management Act. 45 Reference was then made to an email from Mr Shepherd dealing with the fees payable to the recruitment agency Michael Page Legal in view of the fact that the appointment was to be made on a temporary basis pursuant to s 38 of the Public Sector Management Act. The fee payable had to be amended to reflect this fact. The email dated 4 October 2002 stated in part: I have checked with Brad how fees are paid on s 38 placements. He said that Michael Page will alter the guarantee period in our standard terms and conditions in order to protect you should you choose not to appoint Tony to the full-time role, or should he wish to leave. Therefore, rather than the three month guarantee period, we will offer a twelve month guarantee period as follows: Up to three (3) months' service - 80 per cent credit of total fee paid Three (3) to six (6) months' service - 60 per cent credit of total fee paid Six (6) to nine (9) months' service - 40 per cent credit of total fee paid Nine (9) to twelve (12) months' service - 20 per cent credit of total fee paid 46 Also on 4 October 2002, Mr Shepherd sent another email to Mr Schramm dealing with the offer of employment made to Mr Veghelyi. That document stated: I have spoken to Tony, who is delighted. Subject to the final reference and your written offer employment (sic) he is happy to accept. He's getting back to me this morning with some idea of the potential start date and as he has not had a holiday for the last 18 months he would be looking to take one week off between roles, so the start date should be within the two - three weeks. I will keep you posted. Earlier in the day, Mr Schramm had forwarded an email to Mr Shepherd offering Mr Veghelyi the position of contracts manager as a s 38 (temporary employee) subject to an acceptable reference from the SRA. The email confirmed that the role was currently graded with a salary of $84,322 with 9 per cent superannuation, being a total package of $91,9111. 47 In the afternoon of 4 October 2002, Mr Schramm received a facsimile from Mr Shepherd enclosing the final reference for the applicant provided by Mr Turner, Director of Audit and Investigation at SRA. As that reference was favourable, Mr Schramm submitted a request to employ a s 38 temporary employee for the purposes of the appointment of Mr Veghelyi. That request is dated 10 October 2002 and it is signed on that date by Mr Schramm as the branch manager seeking permission, and endorsed by the divisional director, the executive director and the human resources manager and ultimately approved by the chief executive officer on the same day. The request to employ a s 38 temporary employee stated that the position was to be full-time for the period of 29/10/2002 until 28/1/2003 and that the reason for filling the position was "to provide legal services and contract mgmt & administration". The letter of offer addressed to Mr Veghelyi was dated 14 October 2002 and is referred to in paragraph [5] dealing with Mr Veghelyi's evidence. That letter notified Mr Veghelyi that the position of contracts manager was to be temporary employment for the period 29/10/2002 to 28/1/2003. 48 After commencing employment, Mr Schramm said that Mr Veghelyi asked for a secretary and also for his title to be changed to "legal manager". It was explained to him that everybody at the Authority did their own typing and that it was not appropriate to change his title as it would be reviewed when the Authority was ready to go through the process of making a permanent appointment. Mr Schramm noted that, in the following days, it became apparent that Mr Veghelyi did not possess the basic word processing skills required to fulfil his duties and Mr Schramm had to explain simple word processing techniques to him. Other aspects of Mr Veghelyi's conduct raised serious doubts with Mr Schramm as to his ability to fulfil the position: for example, Mr Veghelyi was provided with some contracts to review and amend but he indicated the task could take three months. Mr Schramm said he was very concerned by this response as they were simple contracts that needed to be dealt with quickly. He was also concerned that Mr Veghelyi had taken time off to meet a legal colleague to discuss points of law. These matters prompted Mr Schramm to obtain information confirming Mr Veghelyi's professional background. He contacted SRA and was able to speak to a person about Mr Veghelyi. After that conversation, Mr Schramm searched the internet (as had been suggested to him by the person at SRA). That search revealed various information including legal cases relating to Mr Veghelyi's professional conduct as a lawyer. On 5 November 2002, Mr Schramm contacted the Law Society to enquire about the applicant's professional standing as a solicitor. As a result of these enquiries, it became apparent that Mr Veghelyi was ineligible to practice law in New South Wales. Mr Schramm's view was that he was not able to perform the functions and duties required of him to perform the role as contracts manager. Mr Schramm approached Mr Kelly to inform him of these developments and they agreed there was no alternative but to recommend that Mr Veghelyi's employment be terminated. The chief executive officer approved that recommendation. 49 Late in the afternoon of 5 November 2002, Mr Veghelyi arrived at Mr Schramm's office for a meeting - the human resources manager Ms Taylor also attended the meeting. Mr Schramm said to Mr Veghelyi that, in the interview conducted by Mr Schramm and Mr Kelly for this position, they told Mr Veghelyi that they required a qualified lawyer to fulfil the role of contracts manager. Enquiries revealed that Mr Veghelyi was not registered to practice law in New South Wales - Mr Veghelyi was asked to confirm that fact, which he did. Mr Schramm then said: "For that reason, we have no alternative but to terminate your employment". Mr Veghelyi said that at no time did he say or represent himself to be a practising lawyer and that he had not practised as a lawyer since 1991. Mr Schramm said to him that, on several occasions since he started and also during the interview, he held himself out and represented himself to be a lawyer and during the interview he had told them that he was lawyer at SRA. Mr Veghelyi said that he was an auditor at SRA and that it was not necessary to be a lawyer to perform the role and that he did not need to be a practising lawyer for his procurement role at SRA. Mr Schramm told him that, for the role of contracts manager with the Authority, he was required to be a practising lawyer and that the Authority had already refined the procurement processes so that a qualified lawyer was needed in the role. Mr Veghelyi reminded them that he had left a full-time position at SRA to take up the position at the Authority. Mr Schramm said he was aware of that but he had been clearly told at the interview, and it was stated in his contract, that the appointment was only temporary and may be terminated at any time. Mr Veghelyi was then handed a letter of termination and provided with a week's salary in lieu of notice although there was no legal requirement to do so. 50 It was Mr Schramm's view that, when he gave his instructions to Mr Shepherd of Michael Page Legal, he had made it clear, as he did in the interview with Mr Veghelyi, that the Authority required a qualified lawyer to fill the role of contracts manager. He understood that candidates referred by the recruitment agency would be qualified lawyers eligible to practice law. Mr Schramm denied that he or Mr Kelly said to Mr Veghelyi at the interview that the Authority was looking for a person with a background in law, engineering or commerce. He also denied that the temporary nature of the appointment had not be raised with Mr Veghelyi prior to him receiving the letter of offer of employment dated 14 October 2002. Further, Mr Schramm denied that he told Mr Veghelyi in a telephone conversation after the offer of temporary employment was made that every position in the public service was appointed as a temporary position which was simply a kind of probationary period, and that after about 12 months people were made permanent. He denied that in this conversation Mr Veghelyi had asked him for an assurance that he would hold the role of contracts manager for at least one year or that Mr Schramm gave him any such assurance or any other assurances as to Mr Veghelyi obtaining a permanent appointment. Mr Schramm confirmed that in the telephone conversation he did tell Mr Veghelyi that the Authority wanted him to start as soon as possible because the design contracts needed urgent attention. 51 In cross-examination, Mr Schramm accepted that the position had previously been held by a person with an engineering background and that the position had been altered to avoid out-sourcing of legal services. The Authority had developed the contract user kits from a process and procedural point of view under the previous contracts manager and the Authority was now looking to appoint a lawyer to in-source that function. The difference in the role was that, previously, it was essentially about setting up the procurement guidelines within the Authority to meet the objectives of New South Wales policy. However, once that was set up, the Authority wanted someone to actually "do the contract". When the Authority engaged in procurement for certain goods and services, with the new legally trained lawyer or contracts manager, that person would be responsible for developing the contracts to the point of execution. The new position was "very much involved with the contracts rather than the process of procurement". This was not necessarily in addition to the previous role but it was different to the previous roles. Under a review of the positions, the previous position was "manager contracts" but the new job was to be called "contracts manager" and there was as a change in responsibility. 52 It was put to Mr Schramm that there was nothing in the review and the changed role that suggested that the occupant of the position needed to have a practising certificate as a solicitor in New South Wales or be eligible to obtain such a certificate. Mr Schramm replied that the Authority required a qualified lawyer and that he understood a qualified lawyer was someone who was able to practice law. The person had to be able to represent the Authority in relation to contacts if the need arose. 53 The role of the new position was not yet fully defined and, when that was concluded, the Authority was to recruit a permanent appointee which would require proceeding through the stipulated process and would result in the appointment of a lawyer in the position. The framework of the role was known as was the fact that the Authority wanted a lawyer and there were contracts that required immediate attention: the specific detail of a job description for the new role had not yet been defined. 54 At the interview with Mr Veghelyi the process of permanent selection was discussed together with the fact that a person employed temporarily could not automatically transfer to permanency or that it might take three years before permanency was obtained. Mr Schramm denied saying to Mr Veghelyi that he would be there for at least 12 months. 55 The position description describing the position immediately before the appointment of Mr Veghelyi was sent to the recruitment agency. The difference between this position description and the new role was discussed with Mr Shepherd and Mr Veghelyi at the interview. Mr Shepherd was told that the Authority was changing the role of contracts manager and that a lawyer was needed to fill the role, amongst other things. Mr Shepherd was told this on the telephone but not by way of email or facsimile. 56 Mr Schramm was shown an email directed by Mr Shepherd to him dated 6 November 2002. In that email, Mr Shepherd said: I just wanted to confirm that Michael Page Legal will continue to seek suitable candidate for the contracts manager role. As discussed during our initial conversation in August, the original brief set out that we were to find someone with a legal background and experience with procurement contracts. Following our conversation today, I will also ensure that candidates will hold a current practising certificate in New South Wales. This email was sent the day after Mr Veghelyi was dismissed. Mr Schramm said that the confusion seemed to exist with Mr Shepherd as the Authority had always wanted a lawyer, being someone holding a current practising certificate able to appear in court. One of the candidates selected for interview in October was a paralegal and another was described as a "junior solicitor". 57 In the interview with Mr Veghelyi, the existing position description document was gone through in order to answer Mr Veghelyi's questions and for the interviewing panel to explain to him the differences between the old role and the new role. Mr Schramm thought that, by saying the Authority was looking for a lawyer, meant that it was looking for someone with a practising certificate who could act on behalf of the Authority. Mr Schramm said that he knew of some people in the public service who had commenced in temporary positions, had their appointments extended and after 12 months the merit process would be adopted and, because they were the incumbent, they had an edge on everybody else and were able to be permanently appointed to the job. When Mr Veghelyi was told at the interview that the job was to be filled on a temporary basis for three months he was being given an indication that, when the job description was formally assessed and developed, filling the position would have to proceed to merit based selection and there was no guarantee that he would be successful in that process. Mr Schramm did not remember ever discussing a 12 month appointment with Mr Veghelyi or that he had assured him of holding the position for 12 months. After being informed by the Law Society that he had been struck of the Roll of Solicitors it became evident to Mr Schramm that Mr Veghelyi was not a lawyer and that the Authority wanted a lawyer for this position. 58 Mr Schramm's attention was drawn to the typed Minutes of what occurred on 5 November 2002 at the meeting with Mr Veghelyi when he was dismissed. Those notes showed that Mr Schramm told Mr Veghelyi at the interview that he had been informed that the Authority was looking to employ a qualified lawyer to fill the position of contracts manager. It was also stated during the meeting that the Authority was searching for a lawyer to write, review and execute contracts. The previous contracts manager had moved to another position and the Authority was recruiting a lawyer to assist the organisation in writing and reviewing contracts and this had been stated at the interview. Mr Schramm said that he understood that under the Legal Profession Act the only person who could use the description lawyer was someone who had been admitted to the Bar or was on the Roll of Solicitors - they had to have a practising certificate. 59 Mr Schramm denied that after the letter of offer was sent to Mr Veghelyi, he had been contacted by the person at the agency who told him that Mr Veghelyi was dissatisfied with the terms of the offer and that within half an hour Mr Schramm had telephoned Mr Veghelyi. He said he did not recall any such telephone call and did not recall speaking to Mr Veghelyi following the interview. He did not recall any such telephone conversation and he assumed that there was no such conversation. A number of people were being interviewed for the position. During the interviews, candidates were asked questions as to their experience in representing organisations in court but he could not recall whether that was asked of Mr Veghelyi, although he was told there was a requirement to act on behalf of the Authority. At the time of Mr Veghelyi's interview, Mr Schramm said that he had his resume that showed significant experience as a lawyer. He stated that the interview panel probably worked on the assumption that Mr Veghelyi had significant and lengthy experience as a solicitor. 60 Mr Neil Hunt was employed by SRA in June 2002 and was the Manager Contract Auditor. In that position, he came to know Mr Veghelyi having engaged him as a contract auditor in September 2001. Mr Veghelyi reported to him from that time until June 2002. Mr Veghelyi requested that he not be under Mr Hunt's direction at that time and the director Mr Turner acceded to that request. 61 Mr Hunt said he became aware that Mr Veghelyi had been removed from the Roll of Solicitors in New South Wales in or about April 2002. He had interviewed Mr Veghelyi for the position with SRA in approximately mid-August 2001. Mr Hunt said that in approximately April 2002 Mr Veghelyi had been involved in a range of activities with corporate counsel and it was corporate counsel who informed him that Mr Veghelyi had been removed from the Roll of Solicitors. Mr Hunt believed that he then advised the director, who obtained documents relating to the proceedings involving Mr Veghelyi. To the best of Mr Hunt's recollection he may have spoken to Mr Veghelyi about his removal from the Roll of Solicitors but did not speak to him in relation to the detail of the documents that had been acquired. There had been no previous discussion with Mr Veghelyi about that subject before April 2002. Mr Hunt said that he had previously worked with a person in TAFE who had been struck off as a solicitor and he mentioned that person to Mr Veghelyi. This occurred in approximately April 2002. 62 In cross-examination, Mr Hunt denied that Mr Veghelyi had raised the issue of his removal from the Roll of Solicitors at the time of initial interview in 2001. Mr Veghelyi was made a permanent employee after he was removed from Mr Hunt's supervision. DELIBERATION 63 The applicant moved on a Further Amended Summons for Relief seeking declarations that the contract was unfair, harsh or unconscionable and declaring the contract void in whole or in part, thus reflecting the statutory scheme. The remaining orders were the subject of jurisdictional argument and it is appropriate, therefore, to refer directly to those orders as sought, namely: (3) An order declaring void as a term or condition of the contract or arrangement, and any related or collateral arrangement between the applicant and the respondent (the "contract"), any requirement that the applicant was to hold a current practising certificate as a solicitor, issued by the Law Society of NSW, whether such term or condition was made or intended, expressly or impliedly, as part of that contract at the time it was entered into or as introduced later. (4) An order varying the contract to provide that any such term or condition as referred to in order (3) was unnecessary to the discharge and performance of the functions and duties of the position to which that contract related. (5) An order varying the contract to provide that the position for which the applicant was appointed was a permanent position (subject only to the terms agreed to between the parties and general law) and not a casual position within the provisions of s 38 of the Public Sector Management Act 1988 (NSW); nor was it a temporary position, or a position subject to any other provision of the said Act conditional of its tenure and status. (6) An order varying the contract to provide that the position to which the applicant was appointed was subject to the merit provisions of the said Act (ss 15, 26) and as such he was thereby eligible for appointment as a permanent employee. (7) An order varying the contract to provide that, pursuant to, and in keeping with, the provisions of the said Act as to the termination of employment, the terms and conditions of the contract by which the applicant could be dismissed, should not be unfair, harsh or unconscionable and/or contrary to the public interest. (8) An order varying the contract to provide that: a. termination of employment shall not be harsh, unreasonable or unjust; b. upon termination in circumstances due to wrongful dismissal, or improper conduct of the respondent, and/or if the contract is found to be unfair, the applicant shall be paid the equivalent of not less than twelve (12) months' salary; c. for the purpose of sub-paragraph (b) and without limiting the generality thereof, the applicant shall, in addition, be paid for annual leave, long service leave, superannuation and any other statutory entitlements, pro-rata to the amount arising in respects of paragraph (b) as that amount is calculated by time; d. for the purposes of sub-paragraph (b) the applicant shall also be paid the equivalent value of any allowance, provision, use of other contractual benefit which, by ceasing to be available to the employee, represents a loss and/or expense that the applicant would otherwise not have incurred; and e. for the purposes of sub-paragraphs (b) and (d) the amounts payable shall be calculated on the value of the applicant's total remuneration howsoever derived. 64 It was common ground that, notwithstanding the repeal of the Public Sector Management Act 1988 by the Public Sector Employment and Management Act 2002 which was assented to on 3 July 2002, transitional and saving provisions under s 165 of the new Act and sub-clauses 5(1) and 5(2) of Schedule 1 to the Public Sector Employment and Management (General) Regulation 1996 had the effect of continuing the operation of s 38 until Pt 2.4 of the new Act commenced: that did not occur until 15 December 2003. Bearing in mind the position of the parties and the brief submissions in relation to this matter I am content to proceed on the basis that at, all relevant times, s 38 of the Public Sector Management Act 1988 applied to the employment of Mr Veghelyi. 65 The respondent's "fundamental jurisdictional objection" asserted that the orders sought in the Further Amended Summons would have the effect of derogating from the statutory power to dispense with the applicant's services at any time under s 38(5). At all relevant times s 38 was in the following form: 38 Appointment of departmental temporary employees (1979 Act, s 80) (1) The appropriate Department Head may, if of the opinion that it is necessary to do so, employ temporarily a person who has appropriate qualifications to carry out work in the Department. (1A) Persons employed under this section are departmental temporary employees. (2) The employment of a person under subsection (1) is subject to the regulations (if any) concerning the employment of department temporary employees. (3) The appropriate Department Head: (a) may employ a person under this section for a period not exceeding 4 months, and (b) subject to the regulations, may from time to time employ the person at the end of that period, or at the end of any subsequent period, for a further period not exceeding 4 months. (4) A person may not be employed under this section for: (a) a continuous period in excess of 12 months, or (b) 2 or more periods that together are in excess of 12 months in any period of 2 years, except with the approval of the Public Employment Office. (5) The appropriate Department Head may dispense with the services of a departmental temporary employee at any time, but may not dispense with the services of a person employed as referred to in subsection (4) without the approval of the Public Employment Office. 66 It was submitted that the first to fourth orders would have no effect and have no relevant operation unless the applicant was able to persuade the Court to make the orders sought in paragraphs 5, 6, 7 and 8. By order 5 the applicant sought to overcome the effect of the appointment altogether thereby derogating entirely from the statutory basis upon which he was appointed and the operation of sub-section 5. By orders 6, 7 and 8 the applicant sought to draft new provisions by way of addition and limitation upon the statutory power. 67 Order 7 sought an order varying the contract to provide that Mr Veghelyi should not be dismissed in a way that was unfair, harsh or unconscionable and against the public interest. It was submitted that, if such an order were made, it would vary the contract in a way that was inconsistent with the provisions of s 38(5). There was no such limitation found in s 38(5): the effect of such a variation would be if made and, if effective, that the statutory power to dispense with the applicant's services conferred by s 38(5) could not be exercised unless the condition of the new variation was met. 68 It was accepted that the applicant's employment with the respondent was such that he was a public sector employee within the meaning of s 83(1)(a) of the Industrial Relations Act 1996 and as such was always entitled to the benefits of the provisions of Pt 6, Ch 2 of the Act dealing with unfair dismissals. While the decision to terminate the applicant was a decision which was liable to review under the provisions of Pt 6 upon application, no such application was made. The right to make such an application was based on the statute which was different to the orders sought by the applicant and which sought to import notions of fairness in s 38 in a way that was inconsistent, in particular with s 38(5). All the orders sought in paragraph (8) of the Amended Summons for Relief suffered the same difficulty as to jurisdiction in that they would operate by grafting an addition, by way of limitation or qualification, upon the power conferred by s 38(5), in an impermissible way. For instance the order that imposed the payment of 12 months' salary to the applicant would operate quite contrary to the statutory scheme, and there was no such right conferred upon a temporary employee. 69 An analogous position was said to be dealt with in Intergral Energy v Allen (2001) 107 IR 456. In that case the Full Bench held that there was no jurisdiction to hear and determine an application under s 106 seeking to vary the contract between Mr Allen and Integral Energy so as to provide for a period of notice. That result followed from the fact that Mr Allen's contract and employment was governed by the terms of the Energy Services Corporation Act 1995. Under that Act, the Board of Integral Energy had the power to remove Mr Allen from his position at any time for any reason without notice. It was held that any order made under the application would derogate from the right conferred by that provision on the Board. The Full Bench expressly left open the question of whether or not an order could be made varying Mr Allen's contract so as to provide for the payment of compensation upon his dismissal - that was not necessary to decide because it had not been claimed. Importantly, the task of statutory construction was settled by application of the maxim generalia specialibus non derogant. Particular provisions in the Public Sector Management Act were not to be found in the Energy Services Act and those provisions are dealt with below. It was accepted by the respondent that the approach in Integral Energy was merely helpful in determining the jurisdictional issue by way of analogy rather than conclusively determining the present application. 70 In dealing with these submissions going to jurisdiction little assistance is obtained from the judgment in Integral Energy because of the quite precise statutory provisions which in terms, are not found in s 38 or found in a relevant sense. The only significance of that decision is that, notwithstanding the provision whereby the Chief Executive Officer could be removed "for any reason or no reason and without notice", the Full Bench left it open as to whether an order of compensation might be made, notwithstanding the lack of jurisdiction to make an order requiring the giving of specified notice. This approach, if available, appears to be similar to the approach of the Court of Appeal in Public Service Association of New South Wales and anor v Industrial Commission of New South Wales and anor (1985) 1 NSWLR 627. In that case, the Public Service Act 1979 made express provision for dealing with excess staff while s 8 stated that, unless otherwise expressly provided nothing in the Act affected the Industrial Arbitration Act 1940. The Court of Appeal held that the provisions of the Public Service Act dealing with excess staff and excessive salaries indicated by way of negative implication that the functions and powers those sections created were to be exercised under that Act only by the persons mentioned in them, thus displacing the provisions of s 8 and the operation of the Industrial Arbitration Act. Accordingly, the Industrial Commission was unable to make an award in relation to redundancy concerning such persons although it still had jurisdiction to "flesh out or complement" the schemes set up by the provisions under those sections, provided that any award made was not inconsistent with or contradictory to the specific provisions of the sections because the legislature had not indicated an intention to preclude the Commission from entering the field at all. 71 It is to be noted that the respondent's argument concentrated on the orders sought by the applicant and how they would impermissibly derogate from the operation of s 38 of the Public Sector Management Act. Apart from the reliance on the Integral Energy case (suggesting by analogy that s 106 was excluded from operation in relation to s 38 of the Public Sector Management Act) the submission did not, in terms, suggest that s 106 had no operation in relation to employment contracts arising under the terms of the Public Sector Management Act. On this limited approach there would be no statutory impediment to an order providing, in fairness, compensation in lieu of notice or varying a contract to provide notice - such orders would, at least, flesh out the scheme under s 38, and would not be in direct conflict with s 38(5) and the power to dismiss a temporary employee at any time: nor would there be any bar to a declaration under s 154 that an appointment was permanent, or that a particular qualification was not required in order to be appointed to a particular position. 72 In the present case, at the relevant time, s 95(1) of the Public Sector Management Act provided that the Industrial Relations Act (and previously, the Industrial Arbitration Act ) was not affected by anything in the Act. Sub-section 2 provided that sub-section 1 did not limit s 27 or s 42J. Broadly speaking, s 27 operated so that the appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure, was not an industrial matter for the purposes of the Industrial Relations Act, and no proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or "for any other relief" lay in respect of the appointment or failure to appoint a person to a position in the Public Service the entitlement or non-entitlement of a person to be appointed or the validity or invalidity of any such appointment. Section 42J operated so that the employment of an executive officer or any matter question or dispute relating to any such employment was not an industrial matter for the purposes of the Industrial Relations Act. At the same time, s 404 of the Industrial Relations Act provided that the Act bound the Crown in right of New South Wales, when that Act commenced in 1996. 73 Having regard to the 1985 proceedings concerning the operation of the Public Service Act, it might have been expected that, when the Public Sector Management Act was enacted, it would expressly and directly deal with areas where the Industrial Commission had no jurisdiction to act: by operation of s 95(2), s 27 and s 42J fall into this category. That direct approach is to be contrasted with the provisions of s 38 in circumstances where s 404 of the Industrial Relations Act clearly indicated the legislative intention that the Act was to bind the Crown: s 95 of the Public Sector Management Act on its face accepts that position, with two express exceptions not relevant to the operation of s 38 and not including s 38. 74 The legislative framework is quite different to that considered by the Court of Appeal in 1985 as held by the Full Bench in the Government Cleaning Services (Privatisation) Award (1993) 54 IR 112. Under the Public Service Act, the concentration was upon the provision that, unless otherwise expressly provided, nothing in that Act affected the Industrial Arbitration Act. Thus, the excess staff provision was held to expressly provide otherwise. Similar provisions relating to excess staff under the Public Sector Management Act (s 51, s 52) were by operation of s 95 subject to the Industrial Relations Act not only in relation to award-making powers regarding redundancy but also in relation to the provisions of s 106. 75 This legislative intention is clear: the Public Sector Management Act (except for 2 provisions) is not to operate such as to derogate from the powers available to the Commission under the Industrial Relations Act. This approach clearly reversed the position under the Public Service Act. As McHugh J said in Saraswati v The Queen (1990-91) 172 CLR 1 at 21: ... it is always necessary in determining 'the ordinary meaning' of a provision ... to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning of the provision. Sometimes the purpose of the legislation is expressly stated: sometimes it can be discerned only by inference after an examination of the legislation as a whole: and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. Reference to the history of public sector legislation makes it quite clear that except for quite specific and limited exceptions referred to in s 95(2), nothing in the Public Sector Management Act affected the operation of the Industrial Relations Act. Shortly after the Public Service Management Act was introduced in 1988 replacing the Public Service Act 1979, the Industrial Relations Act 1991 was introduced. In the 1991 Industrial Relations Act, s 6 provided that: "This Act binds the Crown in Right of New South Wales and, so far as the legislative power of Parliament permits, the Crown in all its other capacities". That provision was continued in the Industrial Relations Act 1996 in s 404. 76 The power of a Department Head to dismiss an officer for disciplinary reasons under s 75 of the Public Sector Management Act was a decision that the respondent accepts was subject to orders that might be made under Ch 2, Pt 6 of the Industrial Relations Act dealing with unfair dismissals. Once it is accepted that the decision to terminate for disciplinary reasons, or that the exercise of the power of the Crown to dispense with the services of any person employed in the Public Service referred to in s 54 of the Public Sector Management Act, is subject to orders including the payment of compensation or reinstatement under the Industrial Relations Act, then it is difficult to see how the relief available under s 106 is not available to temporary employees engaged in accordance with the provisions of s 38 of the Public Sector Management Act. That is not to suggest that the provisions of s 38 dealing with the terms of temporary employment might be of no significance in the exercise of the Court's discretion but that position is far removed from a prohibition on relief under s 106. 77 There are other provisions of the Industrial Relations Act which tell against the respondent's approach. A temporary employee whose services are dispensed with under s 38(5) of the Public Sector Management Act may nevertheless seek reinstatement, for instance, under s 137 of the Industrial Relations Act in the resolution of an industrial dispute or under Ch 2, Pt 7 relating to an injured employee, (while that provision was in operation) and further, under s 213(2)(a) in relation to an employee who has been dismissed in breach of freedom of association principles. All of those provisions would apply notwithstanding the fact that s 38(5) empowers the Department Head to dispense with the services of a departmental temporary employee "at any time": it would need clear words to exclude this class of relief. 78 It is to be accepted that s 83(1)(a) operates specifically so that the unfair dismissal provisions of the Industrial Relations Act apply to the dismissal of any public sector employee. That sub-section also deals with restrictions on access to the jurisdiction by reference to a salary cap and award coverage for private sector employment: those matter may serve to explain why public sector employees were specified in the section but the particularity of the provision does not detract from the analysis of the legislative intent in enacting both s 95 of the Public Sector Management Act s 6/s 404 of the Industrial Relations Acts. 79 The respondent's argument did not identify the legal principle relied upon to reach the conclusion that the orders sought could not be granted because they would derogate from the provisions of s 38 of the Public Service Act: the submission proceeded by way of analogy with the approach in Integral Energy. The Public Service Management Act and the Industrial Relations Acts 1991 and 1996 proceed on the basis that the Industrial Relations Act binds the Crown. Having regard to the timing and content of these provisions there is no room for the application of the principles dealing with implied repeal of an earlier statutory provision by a later enactment. The usual principle is that later Acts repeal earlier inconsistent Acts although the courts will strive to give both provisions effect (see Ferdinands v Commissioner for Public Employment (2006) 80 ALJR 555). Here, of course, the later Acts are the Industrial Relations Acts of 1991 and 1996. To the extent that the maxim generalia specialibus non derogant is relied upon, the learned authors of "Statutory Interpretation in Australia" (6th edition, Pearce & Geddes, Butterworth) warn at [7.19]: The relationship between two Acts "must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims": per Windeyer J in Cobiac v Liddy (1969) 119 CAR 257 at 268. The history of this provision points to an intention that, except for orders and/or awards made under the Industrial Relations Act, that the provisions of the Public Sector Management Act would be effective - to this extent the provisions of each Act stand together: however, where the conflict in provisions cannot be reconciled the Industrial Relations Act provisions will prevail. Having regard to the legislative scheme of both the Public Sector Management Act and the Industrial Relations Act, as a matter of statutory construction the respondent's submissions relating to the jurisdiction of the Court to deal with the application under s 106 must be rejected. 80 In relation to the merits of the matter, the first issue of significance was what was actually discussed at the interview between Mr Veghelyi, Mr Kelly and Mr Schramm. In his first affidavit, Mr Veghelyi did not deal in great detail with what occurred during the course of the interview. He noted that there were extensive discussions as to his experience and qualifications as well as detailed information regarding the position and the work involved. He had in his possession the position description for contracts manager and he was taken through it page by page and asked many questions about his ability to meet the various requirements referred to in that document. 81 In an affidavit in reply Mr Veghelyi said that, during the course of the interview, neither Mr Kelly, Mr Schramm nor anyone else told him that the position required the representation of the Authority in court. If such words had been said to him he would have immediately enquired as to what was involved and what was meant especially as he did not possess a practising certificate. He asserted that, at no time during the interview, did anybody tell him that the position was temporary and he did not learn of that until he received the letter dated 14 October 2002 offering him the appointment. He denied that he was asked why he was willing to give up a permanent position with State Rail to take on temporary employment with the Authority or that he said he was confident of his prospects and had been warned that there was no guarantee of obtaining a permanent appointment. 82 Mr Kelly's recollection of the conversation was that the role was one requiring legal qualifications sufficient to provide legal advice and, if necessary, "legal representation where appropriate". There was an urgent need to attend to certain contracts, so it was decided that an appointment of a temporary employee would be made under s 38 of the Public Sector Management Act and that Mr Schramm had engaged a consultant to assist in that process. 83 In the interview, Mr Kelly said that Mr Veghelyi was told that the position was temporary employment under s 38 of the Act and that there was no time to make a permanent appointment. He was told that the role had been restructured and as to how that occurred in relation to the duties of the position and how there was a need for legal qualifications, although the position used to require an engineering background. Mr Schramm said that the Authority needed someone to handle legal matters from inception and to represent the Authority in court. Mr Veghelyi was asked why he would give up a full-time position in the SRA for this temporary position. He stated that he was confident that he would perform well in the role and obtain a permanent appointment when it was eventually advertised. He said the position was a more interesting role and presented a challenge to him. According to Mr Kelly, Mr Veghelyi was told by one of the interviews that it was up to him if he gave up his full-time job since there was no guarantee of a permanent appointment, although there was some discussion about temporary employees obtaining permanent appointment after holding the position for some little while. 84 Mr Kelly had agreed that representing the Authority in court proceedings was a very important and significant change to the role of contracts manager, and that the previous occupant had no such qualifications. While the position description did not contain any requirement for legal representation or the possession of a practising certificate, it did mention relevant tertiary qualifications, that there should be an appropriate balance of technical legal and commercial discipline and that full membership or membership eligibility of a professional body would be highly desirable. The position description given to the recruitment agency related to the existing position and did not represent the restructured role. Importantly, Mr Kelly did not think that the position description was used when Mr Veghelyi was interviewed and denied that the position description document was gone through page-by-page by Mr Schramm and himself during the interview with Mr Vegehlyi. He did not think the previous position description document had been referred to at all during the interview. 85 Contrary to what had been said by Mr Kelly, Mr Schramm stated that during the interview he and Mr Kelly went through the position description document with Mr Veghelyi. Mr Schramm had provided the document to the recruitment agency to be regarded as a guide to the responsibilities and duties involved in the role of contracts manager. Mr Schramm supported Mr Kelly's recollection that Mr Veghelyi was told that there were urgent contracts to be dealt with, that therefore the position would be a temporary appointment under s 38 of the Act and that permanent filling of the position would occur at a future date. It was Mr Schramm's recollection that either he or Mr Kelly had asked Mr Veghelyi why he would want to give up a permanent role in SRA for a temporary position with the Authority, to which Mr Veghelyi replied that he was sick of the politics of SRA, he was keen for a change and that the role with the Authority seemed more interesting than his role at SRA. He also said he was confident that he could perform well in the temporary role and obtain a permanent appointment down the track. Mr Schramm said to Mr Veghelyi that although some people appointed on a temporary basis were later successful in obtaining permanent appointment, there was no guarantee that this would occur. Mr Veghelyi was told that he had to succeed in demonstrating the required skills and other matters through the merit selection process. Mr Schramm also told him that, if he was willing to take the risk to give up his permanent role, that was Mr Veghelyi's choice and that one person who had been a temporary employee for two years was later successful in gaining a permanent appointment on merit selection. 86 What then is to be made of these contradictory recollections? All three participants in the interview gave their evidence from their recollection of what occurred and no one had available any contemporaneous note of what was discussed. Mr Kelly said that he took notes which was the usual procedure during interviews for appointment: those notes would have been left with the file relating to the contracts manager position. Those notes were not in evidence. It is of some significance that Mr Kelly did not have the same recollection as to the use made of the existing position description. The thrust of his evidence was that it had little relevance to the new position, although it was not yet settled as to precisely what were to be the changes. It is difficult to understand how Mr Kelly had such a different recollection: it may suggest no more than that his recollection of what took place in this interview is imperfect to the point where it should be treated with caution. 87 One matter that tended to support Mr Veghelyi is the concern he expressed when he received the written offer of employment stating that it was a temporary appointment under s 38 of the Public Sector Management Act and for a period of three months. On his version he contacted the employment agency to raise his concerns because he asserted that he had never been told that it was a temporary position. His evidence is that, shortly afterwards he was called by Mr Schramm who attempted to allay his fears on the basis that he would ultimately be successful in obtaining a full-time appointment. 88 In his affidavit, Mr Schramm denied that Mr Veghelyi said in a telephone conversation that he had not been told that the position was temporary and that he could not leave permanent employment with SRA to take up this less secure position. Mr Schramm stated that he did not give any assurance to Mr Veghelyi that he would be there for a minimum of 12 months, or that he had given any assurance as to Mr Veghelyi obtaining permanent appointment. In paragraph 22 of Mr Veghelyi's affidavit he said that, in his telephone call, Mr Schramm had asked him to start as soon as possible and that he replied that he would arrange it with State Rail so that he could start on 29 October 2002. In response to this, Mr Schramm's affidavit confirmed that he indicated to the applicant that he wanted him to start in the role as soon as possible due to interior design contracts that needed urgent attention. That answer confirms, at the very least, that there was a conversation with Mr Veghelyi after the position had been offered to him and that there was a discussion about a commencement date. The fact that there was such a conversation is of significance. In oral evidence, Mr Schramm stated that firstly, he could not recall such a telephone conversation. He stated that he did not recall speaking to Mr Veghelyi following the interview. When asked to clarify those statements and whether it was just a matter of memory, that it could have happened but that he was unsure, Mr Schramm answered: "I don't recall and my assumption is no, I didn't". Those answers were given in circumstances where Mr Schramm was shown Mr Veghelyi's affidavit and his own affidavit dealing with this telephone conversation. It is quite clear from his affidavit evidence that there was a discussion with Mr Veghelyi on the telephone after the position had been offered to him and that at least a commencement date was discussed and settled upon. Mr Schramm's oral evidence was equivocal and he relied upon an assumption that the call did not occur but he did not explain how he came to say something quite different in his affidavit. 89 There was another issue about Mr Schramm's evidence that assumes some significance. Mr Schramm was asked, in light of the change in the position of contracts manager and the apparent intention to have that person available to represent the Authority in court, whether candidates were questioned at the interview as to their experience in presenting cases in court and their capacity to do so. The candidates chosen for interview ranged from those experienced in the area of contracts, and in working in the commercial practice of legal firms to junior solicitors, and a paralegal: litigation experience was not emphasised. Mr Schramm's answer to this question was evasive and ultimately unsatisfactory. He first stated that, in the interview, they had talked about representing the Authority if issues arose acting on contracts and the like. When he was directed to the particular question about asking interviewees for their experience in presenting cases to a court and their advocacy skills, Mr Schramm said that he guessed from some of the resumes that it was very apparent that some did not have any such experience. His attention was again directed to the question and he stated that a range of the applicants were asked if they "had experience". When asked to specify in what area, Mr Schramm said - "In representing organisations in court". He was then asked if he spoke to Mr Veghelyi about that matter and said that he did not recall that question was asked but that Mr Veghelyi was told that there was a requirement to act on behalf of the Authority, and an assumption was made about his experience. 90 Mr Veghelyi made no reference to such an exchange during the course of the interview, nor did Mr Kelly. The issue of whether or not representing the Authority in court was raised in the interview with Mr Veghelyi was an important issue in the respondent's case and was strenuously denied by Mr Veghelyi. It seems to be an extraordinary position that the Authority had decided, on its case, to make a significant change to the role of the contracts manager so that the position was to become that of an in-house lawyer or in-house counsel with a role representing the Authority in court, yet there was no comprehensive analysis of the experience of inteviewees in presenting cases in court, nor was this aspect pursued with the referees. Quite apart from that requirement not being specified in any of the documentation, there is nothing in the actions taken by the recruitment agency suggesting such a role. It seems highly likely that, if this was contemplated as a role, some part of the interviewing process would have concentrated upon relevant experience in this specialised area of legal practice. Mr Schramm's answers in relation to this matter were less than satisfactory and, as with some other parts of his evidence, tended to spill into the role of advocate for the respondent's case. This is not unusual in the case of lay witnesses and in the nature of proceedings that frequently come before this Court: its occurrence on this occasion only has significance because it gave Mr Schramm the appearance of wishing to put the very best face upon the respondent's case rather than directly dealing with questions raised with him. 91 Having regard to the abovementioned matters and having closely observed the witnesses during the course of their evidence, I am nevertheless unable to reach a firm conclusion as to precisely what was discussed at the interview with Mr Veghelyi. I am quite satisfied that the position description used for the previous occupant formed the basis of questions about suitability for the position and had been sent to the recruitment agency for precisely that purpose. The recollections of Mr Kelly and Mr Schramm are, at best, imperfect and Mr Veghelyi's evidence was the subject of a strong credit attack (which will be dealt with later), leading to a submission that he could not be and should not be believed on his oath. Despite these alleged difficulties, I am satisfied that no questions were directed to interviewees, and especially Mr Veghelyi, about advocacy experience nor was there any indication given during the course of the interview that the position ultimately envisaged representing the Authority in court in the presentation of cases. To what extent there was any discussion about temporary employment or employment on probation or the steps to be eventually taken to make a permanent appointment, I am satisfied that, whatever the content of that discussion, Mr Veghelyi was left with the impression that, should he be offered the position, he stood a good chance of being permanently appointed to it. 92 Mr Veghelyi had experience of public sector employment and knew the process of probationary appointment and permanent employment. Provisions of the Public Sector Management Act would have operated so that his initial appointment was on probation until confirmed in permanent appointment, unless particular steps were taken by the Department Head. It does not accord with commonsense that he would have pursued a position that had no security and only, at best, a three month term which was renewable when he had secured permanency with SRA. It was put by the respondent that his permanency was under a cloud and subject to further review and these matters were part of the circumstances causing Mr Veghelyi to show an interest in employment elsewhere. The evidence does not support that submission especially since Mr Veghelyi appeared to have the very strong support of his superior officer and direct line report (Mr Turner). The document relied on for the suggestion that the security of Mr Veghelyi's employment was under review, properly read, deals with no more than the difficulty he was experiencing with Mr Hunt and the new reporting arrangements that had been instituted to overcome the problem. If Mr Turner had Mr Veghelyi's continued employment under any type of cloud, he could hardly have provided the wholehearted support of Mr Veghelyi and his capacities as contained in his affidavit and his reference to the Authority. 93 Whatever the detail of the discussion at the interview, Mr Veghelyi was in no doubt as to what was proposed by the time he received the letter of appointment, specifying the fact that the appointment was made pursuant to s 38 of the Public Sector Management Act and also indicating that the term of that appointment was three months. I accept Mr Veghelyi's evidence that he contacted the recruitment agency to complain about the lack of security of the position offered to him and that shortly afterwards he had a telephone conversation with Mr Schramm about the position at the end of which, according to his own account, he had been persuaded that all would be alright even though he had been given nothing in writing. Whatever was said to him by Mr Schramm, I accept that Mr Veghelyi was persuaded to take up the appointment and that he understood that he would be there for at least 12 months, although its temporary nature would continue until the process for permanent employment had been completed. 94 Being a person who had some experience in the public sector and, even though he had been persuaded that everything would be alright, Mr Veghelyi had to have taken up this position knowing that he did not have a permanent appointment although he did have prospects of obtaining that permanency both by occupancy of the position and by reference to his successful occupancy of a similar position with SRA. As previously referred to, his experience in the public sector would also have made him aware that his initial appointment would be for a probationary period in any event. There was always some risk that things might not work out, although he may have felt assured by whatever it was that was said to him by Mr Schramm. It is unlikely that Mr Schramm was trying to dissuade Mr Veghelyi from taking the position or pouring cold water on his ambitions for permanency. The Authority had urgent work to perform, had a somewhat different focus for this position and wanted it permanently filled. The recruitment agency had identified Mr Veghelyi as a suitable person and had urged the Authority to move quickly to secure his services. Despite the initial three month term of this position, the Authority had engaged a recruitment agency to assist in the process of filling the position and, because of the costs involved, it is unlikely (and the evidence has not suggested otherwise) that all that was being offered to Mr Veghelyi was three months work with no other prospects. Nevertheless, I am unable to conclude precisely what it was that was put to Mr Veghelyi that led him to a comfortable satisfaction that he had real and potentially long term prospects in employment in this position with the Authority. 95 The fact that some longer term employment was contemplated was supported by an exchange of emails between the Authority and the recruitment agency. The emails from the recruitment agency indicated that it was unaware that a temporary position was being contemplated and so had to reconsider the appropriate fee to be charged in relation to such an appointment. It appeared that they also, for the first time, for the purposes of charging an appropriate fee, had to factor in the possibility that Mr Veghelyi would not be permanently appointed. This material presented independent and quite strong evidence that, in a general sense, supported Mr Veghelyi's case. 96 After further consideration of the evidence, another possibility arises that allows more consistency in the competing versions of the discussions at the interview. Mr Veghelyi, while aware of SRA practices, may not have been well versed in the particularity of the Public Sector Management Act . In trying to understand the process, he said he equated temporary employment with probationary employment before obtaining permanency - a course he had followed in SRA. His concern was whether this job was ongoing and not just a temporary job lasting three months as advised in this letter of offer. In fact, there was a permanent position available and until the merit selection process could be completed, the position would be filled on a temporary basis under s 38. Both Mr Kelly and Mr Schramm confirmed this state of affairs with Mr Schramm saying the s 38 appointment was only an "interim fix". Mr Veghelyi's concerns were allayed by assurances that the position was ongoing but may take 12 months or more to fill - until that time, he would be employed on a temporary basis but with the inside running to take the permanent position when it was finally advertised. In this way, Mr Veghelyi's employment was not temporary, would last 12 months and would eventually result in permanent appointment. He was not overly concerned with the legal structure of the employment so long as he had all the elements present and the employment was not for a one-off, finite period of three months. Proceeding on this basis, it is also apparent that Mr Veghelyi was led to believe he would ultimately succeed in obtaining permanent employment as contracts manager. 97 It is then necessary to consider whether, at any relevant time, Mr Veghelyi was made aware that he needed to be the holder of a practising certificate so that he could represent the Authority in court by holding the position as contracts manager. It was common ground that there was no such prescription to be found in the position description sent by Mr Schramm to the recruitment agency as indicative of the work to be performed. The position description was the document used in the interview to assess candidates for their fitness for appointment to the position. It was said for the respondent that the position was altered under a restructure when the position "manager contracts" became "contract manager", and that there was then an intention to have a legally qualified person for the position: further, that legally qualified person should be able to represent the Authority in court. It is to be noted that there was nothing in the restructure document to indicate that it was an essential requirement that the occupant of this new position should be able to represent the Authority in court. The notes about the restructure simply stated that the contracts manager position had been created "to incorporate contract administration and legal training": there was no reference to providing "legal representation" in court. Mr Schramm spoke of looking for a background in commerce and procurement and made no mention of litigation experience or court advocacy. Mr Veghelyi clearly had legal training as well as experience in legal practice and contract administration, and he had contracts/procurement experience from his employment with SRA. 98 The evidence of Mr Kelly and Mr Schramm suggested that they held the mistaken view that a "qualified lawyer" was necessarily a person who held a practising certificate. There was nothing in the evidence suggesting that anyone on behalf of the Authority made any relevant enquiry as to what was required by way of qualification for an in-house person to be able to appear in court to represent the Authority. A simple query of the recruitment agency would have informed Mr Schramm and Mr Kelly that many people use their legal qualifications in employment without holding or being required to hold a practising certificate. 99 Contrary to the case for the respondent, the email dated 6 November 2002 from the recruitment agency made it abundantly clear that it had been requested to find someone "with a legal background and experience with procurement contracts", rather than a person who was eligible to hold or who had held a practising certificate and who could represent the Authority in court. That had been "the original brief" given to the recruitment agency. That is the clearest evidence of what was required and although it was said that there was a restructure and that these added requirements were part of the new position, the respondent was unable to produce any document in which that requirement was specified although it might be noted that the precise components of the position were yet to be finalised and that Mr Schramm believed that the position at the time of the interview, was almost the same as that previously occupied by an engineer but with the focus on the contracts rather than the process of procurement. 100 When the recruitment agency began a search for a person to replace Mr Veghelyi as noted in its email of 6 November 2002, it was said that, following its conversation of the same date, the agency "... will also ensure that candidates will hold a current practising certificate in New South Wales" (emphasis added). Clearly, this requirement was not within the "original brief". The fact that there was no requirement for a practising certificate when Mr Veghelyi applied for the job and was appointed is also indicated by the letter of offer. That document amongst other things, listed documents that should be produced to the respondent such as a birth certificate and, where relevant, evidence of citizenship. This was clearly the appropriate place to require the production of a practising certificate or evidence of eligibility to hold a practising certificate. No such specification was made but it did appear later in the letter of offer to the person who replaced Mr Veghelyi. That strongly tells against the respondent's case. In addition, there was no evidence of the Authority making any enquiries prior to or at the time of Mr Veghelyi's appointment as to what was involved in having a practising certificate issued or continued in respect of an employee in the public sector. Whatever may have been in the minds of Mr Kelly and Mr Schramm, especially as to the ultimate role of this position, there is no acceptable evidence that, at the time Mr Veghelyi was appointed, that it was a requirement of the position that the occupant held a practising certificate. 101 The respondent did not attempt to explain why the position was entitled "contracts manager", yet, when the position was to be filled after Mr Veghelyi's termination, consultant's documents commenced to refer to the position as "contracts manager/in-house counsel". Curiously, when Mr Veghelyi's replacement was appointed he was appointed to the position of "contracts manager" (not contracts manager/in-house counsel) but was required to produce an original current practising certificate issued by the Law Society of New South Wales. Mr Schramm's evidence was that Mr Veghelyi requested to be given the title legal manager but was rejected as premature and that such a change should wait until the full duties of the position had been finally determined and the position filled on a permanent basis. All of these matters are inconsistent with the respondent's case. It is also to be remembered that Mr Veghelyi had been approached by the recruitment agency because of the similarity of the role he was performing with SRA and the nature of that role with the Authority. There was nothing about the actual duties of these positions that required the holding of a practising certificate. 102 The respondent's case relies heavily upon its attack on the credit of Mr Veghelyi. In addition to being struck-off as a practising solicitor in 1991, it was alleged that he had knowingly and deliberately kept from the Authority the fact that he had been struck off, had represented himself as being admitted to practice in Victoria and, in his affidavit, had denied that he had been struck off for dishonesty when there was a specific finding to the contrary. This attack was launched primarily to support a submission that his evidence as to the representations and what was said to him in the interview could not be believed and that the contrary versions of Mr Kelly and Mr Schramm should be accepted: Mr Veghelyi was described as disingenuous and a dissembler. For reasons already expressed, I have made findings as to important differences between Mr Kelly's version and Mr Schramm's version of that meeting and also in relation to the telephone call between Mr Schramm and Mr Veghelyi after he had received the offer of employment. I am not persuaded that the attack on Mr Veghelyi's credit should have the consequence that he should be disbelieved on any matter on which there is contrary evidence. The attack on credit on numerous occasions went to collateral matters and included a quite detailed analysis of his working history with SRA, despite the fact that his immediate supervisor and senior officer Mr Turner had given him strong support as both a person and as a competent employee in this area. There were times when the strength of the attack perhaps ventured beyond the usual restraint appropriate when dealing with a collateral attack, raising questions of credit. I have no doubt, having observed Mr Veghelyi give his evidence, that he fully understood how his professional career had been ruined by his actions and that there may have been an element of reluctance to raise the matter in any employment situation. I do, however, accept Mr Veghelyi's evidence that where his striking-off was a relevant consideration in his employment, he disclosed it. It was not relevant to the position he held in SRA nor was it relevant in the duties required for the position with the Authority. It should also be remembered that Mr Veghelyi was approached by the recruitment agency and did not seek this position, nor did he hold himself out as being in possession of a practising certificate. There was nothing in this behaviour that warranted the scope and extent of the attack on his credit as undertaken by the respondent. 103 Particular reliance was placed by the respondent on a paragraph in Mr Veghelyi's affidavit, where he mentioned that in 1991 his name had been removed from the role of solicitors after certain complaints were made against him "for overcharging". Mr Veghelyi's affidavit then continues: In that regard there was no finding of dishonesty but rather that the Law Society considered that the fees I had charged for work actually done were not justified, particularly in relation to the prescribed scale of fees for a certain family law matter. It was put to Mr Veghelyi in cross-examination that he had separately been found to be dishonest and to have conducted himself in relation to an arbitrator in a way that was dishonourable. While the precise findings were not in a proper form in evidence before the Court, Mr Vegheyli accepted that there were a number of other issues but maintained the view that the core of professional offences related to overcharging and, in relation to that matter, there were no adverse findings of dishonesty. That is precisely what is said by Mr Veghelyi in his affidavit and, while it might have the appearance of being carefully drawn, it might well be accurate. It is frequently the case that human nature will lead a person to place the best light possible upon a dark episode in their life, and this human affliction might well have affected Mr Veghelyi in relation to the matters which caused him to be struck off as a solicitor. However, that fact must be put in the context of the issues to be determined by the Court and the nature and relevance of the collateral attack on credit. Both SRA and the Authority were able to discover details of Mr Veghelyi's professional misbehaviour by a search of the internet: Mr Veghelyi asserted that the circumstances of his case were well known and were referred to in texts. His letter of appointment notified him that he would be the subject of a criminal check although no mention was made of Law Society enquiries: he was also aware of the possibility of referee checks . I can find nothing about his behaviour since 1991 which would suggest that he would pursue a position with the Authority in the knowledge that he was required to be eligible to hold a practising certificate and to withhold essential information from his intended employer in the hope that nobody would ask him and then, having been appointed, have to face the consequences of not being qualified for the position, with the inevitable consequences that he would lose the position. There is nothing else in Mr Veghelyi's history that was relied upon to cast doubt on his credit and he appears to have been able to obtain employment and other qualifications at a significant level of responsibility after being struck off. In determining this matter, I have not been persuaded or assisted by the respondent's attack on Mr Veghelyi's credit. 104 The question then arises as to what was the unfairness, if any, that arose at the beginning or during the course of Mr Veghelyi's employment with the Authority. On the conclusions referred to above, I am satisfied that the applicant may obtain a declaration pursuant to s 154 of the Industrial Relations Act that it was not a term or condition of the contract of employment between Mr Veghelyi and the Authority that he hold a current practising certificate in order to be employed as contracts manager in October 2002. Having regard to the fact that the only stated reason for his termination was that he did not hold a solicitor's practising certificate, Mr Veghelyi might also be entitled to a declaration that the termination of his employment on that ground was invalid. 105 As to the other substantive relief sought in the Further Amended Summons, on the view which I have formed of what occurred at the interview and in the telephone conversation after Mr Veghelyi was offered the position, I am not prepared to make a finding that there was a promise in any way binding that there be a minimum 12 month appointment. Rather, there was a discussion in which it was held out to Mr Veghelyi that he might continue in the position for 12 months and was likely, ultimately, to be permanently appointed to the position: this was a well known path to permanent employment and fully understood by Mr Kelly and Mr Schramm. The actual offer of employment was for temporary employment. I am unable therefore to make a declaration that the applicant was, in fact, subjected to merit review and was permanently appointed to the position. In fact, that process was not followed, although I am satisfied that there were representations made to the applicant to convince him that, ultimately, he would secure permanent employment. 106 From a consideration of all the material before the Court, I have formed the view that the contract of employment was unfair at its inception and/or became unfair due to the respondent's conduct in not providing for or according procedural fairness to the applicant when it formed the view that he did not possess an essential qualification for the position, namely, the capacity to represent the respondent as required in court. Mr Veghelyi was given no opportunity to contest that assertion in circumstances where there was no proper basis for the assertion. In addition, the respondent made no enquiry, nor did it permit Mr Veghelyi to make enquiries, as to the circumstances in which he might be given a limited practising certificate to perform duties as an employee of the respondent. Further, the respondent made no enquiries to ascertain what work could be performed by Mr Veghelyi without the necessity of a practising certificate for the three month term of his contract under s 38 of the Public Sector Management Act. There was no established process to ensure these protections. 107 The respondent's case was that there were contracts requiring his urgent consideration which was why his appointment was proposed on a temporary basis under s 38. There is no evidence supporting a finding that this work required the possession of a practising certificate and, indeed, it seemed to be work similar to that performed by the previous occupant who was not legally qualified and was work similar to that performed by Mr Veghelyi for SRA and confirmed by the Law Society as not requiring the possession of a practising certificate. The person who replaced Mr Veghelyi was apparently legally qualified and did hold a practising certificate, but there was no evidence of him performing work that could only be performed by a person who held a practising certificate. It therefore appears that there was ample work for Mr Veghelyi to perform, work that he was qualified to perform for at least the three months of his initial appointment and it was likely that there was such work available for him for a considerably longer period. In those circumstances, it was unfair not to have permitted Mr Veghelyi to complete at least the three months of his temporary employment even on the understanding that he would not be renewed because the respondent had changed its mind or had now made up its mind that it required a person with a practising certificate to be appointed to this newly structured position. 108 It should be noted at this point that despite the respondent regarding itself as having been gravely and deliberately misled, Mr Veghelyi was given one week's pay in lieu of notice (although there was no obligation to make that payment) and he was terminated under s 38(5) and provided with a certificate of service. There is no indication given within that document that he was terminated for cause. While the respondent may say that reflects its fair treatment of Mr Veghelyi, it rather suggests their concern at the circumstances of his termination especially when the recruitment agency suggested that the matter had become somewhat serious. 109 As a consequence of this unfairness, considering the whole of the circumstances, it is just that an order be made requiring the respondent to pay the applicant the equivalent of three months' pay. It is also appropriate that, having regard to the fact that the employment relationship endured for only one week, the contract be declared void ab initio except as to payments made to the applicant under the contract, including the payment of a week's notice. In view of that approach, there is ultimately no utility in varying the contract to provide for the inclusion of procedures, consistent with the requirements of procedural fairness, or provisions ensuring fairness during the contract or the provision of notice, especially in circumstances where the respondent was considering the termination of Mr Veghelyi's employment because of an alleged failure to possess essential qualifications for the position. 110 Two further matters require consideration. Apart from the primary position of the respondent, it also argued in the alternative that, if the Court came to the point of considering relief, such relief was not available because of the provisions of s 109A of Industrial Relations Act. In the present case, the applicant sought a number of declarations and orders, some of which could only be made by a judicial member of the Court pursuant to s 154 of the Act. The Court has indicated that a case has been made out for at least some of those declarations or declarations to similar effect. In addition, it was a significant part of the applicant's case that he be declared, by way of variation of the contract, a permanent employee, that the contract be varied to provide procedural fairness in its termination and to ensure the payment of 12 months' salary should the contract be terminated wrongly or unfairly. The complaint that the process leading to termination was unfair leading to a denial of procedural fairness has been considered as available under s 106 (see Bell & Berg v Macquarie Bank Ltd and anor [2003] NSWIRComm 363 at [10], following an earlier Full Bench judgment in Abbood v The State of NSW (NSW Department of School Education) (1999) 92 IR 32 at 49-51). This variety of relief is simply not available under Pt 6 of the Act. Ultimately, an assessment has to be made whether the application in substance was merely a disguised application for unfair dismissal. The applicant has succeeded in establishing a case that would normally require the variation of the contract but, because of its short duration, a practical course has been adopted in declaring the contract void ab initio which step, in the circumstances, does not fall within the operation the provisions of s 109A. The nature of the claim falls within the class found in Behan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 to be within the operation of s 106. 111 The last matter concerns the possible application of s 55 of the Public Sector Management Act replaced by s 61 of the 2002 Act . That section provides that an employee is not, except as provided by this or any other Act, entitled to any compensation as a result of the applicant's services being dispensed with. Earlier in this judgment, it has been outlined why the provisions of s 106 applied to public sector employment and it is therefore consistent with those findings that the provisions of s 55/s 61 do not provide an impediment to the orders proposed in this case. Having regard to the approach of the Full Bench of the Commission in the Government Cleaning Services (Privatisation) Award case, it would appear, at the very least, that the legislature intended s 106 to operate in relation to public sector employment and in a relevant sense, the proposal to make a money order is compensation provided by "any other Act". Significantly, the Full Bench held that the Industrial Relations Act 1991 had primacy over the Public Service Management Act in the event of conflict. This decision followed the Full Bench decision in Crown Employees Lands Officers (Department of Lands) Award (1992) 40 IR 120 that the effect of s 95 of the Public Service Management Act was that the Industrial Arbitration Act 1940 was to prevail in the absence of specific preservation such as made in s 95(2). This issue did not arise for consideration in State of New South Wales v Banas (2004) 137 IR 63 as there was no inconsistency between the orders sought under s 106 and the provisions of the Public Sector Management Act said to be relevant to that case. 112 The applicant is to file and serve Short Minutes of Order within 14 days, reflecting the orders proposed in the judgment and dealing with the question of interest and costs. Should the parties wish to be heard further in relation to the proposed orders, contact should be made with my Associate for the listing of such argument as required by the parties. ORDERS The Court orders and declares: 1. The contract between the applicant and the respondent, the subject of these proceedings, is void ab initio except as to payments made to the applicant under the contract, including the payment of one week's notice. 2. The respondent is to pay the applicant the equivalent of three months' pay in the sum of $22,980.50. 3. The respondent is to pay the applicant interest to the date of judgment in the sum of $8,992.60. 4. The respondent is to pay the applicant's costs as agreed or assessed. DATED: 17 April 2007 AMENDMENTS HISTORY: 17/04/2007 - Orders made 14 April 2007 and appended to end of judgment - Paragraph(s) 112 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.